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The latest proposed update to the Occupational Safety and Health Administration (OSHA) Hazard Communication Standard (HazCom) has been in development for nearly three years. Since its submission to the White House Office of Management and Budget (OMB) in the final rule stage on 11 October 2023, industry leaders are concerned that they have been left in the dark — with little indication of the nature of the changes that will be made, how much the agency plans to consider stakeholder feedback, and the timeline for implementation and enforcement.
When contacted for comment by 3E, an OSHA spokesperson responded, "Thank you for your interest in occupational safety and health. After checking with our subject matter experts, we think it best to hold on this request until after the final standard is published. Unfortunately, I don’t have a date on when the final standard will go out."
Among those concerned about the content of the final rule are trade group representatives who have participated in recent meetings with OSHA and Office of Management and Budget (OMB), the arm of the executive branch of the federal government tasked with oversight of agency performance, financial management, and regulatory objectives.
In public comments submitted to OMB and in interviews with 3E, industry leaders voiced concerns about communication between trade associations and OSHA leadership, worker safety, and the burden of additional costs, time, and logistics required for compliance with several provisions of the new HazCom standard.
“With respect to this proposal, I will say it is surprisingly long in coming out,” said Peter F. Downing, president of New Jersey-based EHS consulting firm Environmental & Safety Solutions, and a member of the Alliance for Chemical Distribution (ACD). “I honestly thought this was going to be out back in late 2022 or early 2023 at the latest. We're surprised at how long it sat at OSHA before it ever got to OMB. And it scares me because I don't know what they're doing with it.”
The update to the HazCom standard is one of two OSHA regulatory actions that have been under review for more than 90 days and is among six other Department of Labor regulatory actions under review. By Executive Order, OMB’s Office of Information and Regulatory Affairs (OIRA) has 90 days to review a rule, which can be extended by 30 days at the request of the rulemaking agency.
Costs of Compliance
In early 2021, OSHA proposed updating the HazCom Standard to align with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS) Revision 7. Before that, it was last updated in 2012 to align with Revision 3 of the GHS. The proposed changes include updating hazard classes and categories, improving precautionary statements, and facilitating international trade through increased alignment.
The transition period proposed was one year for chemical manufacturers, importers, and distributors of substances, and two years for chemical manufacturers, importers, and distributors of mixtures after the effective final rule is published.
Jennifer Gibson, vice president of regulatory affairs for ACD, said her organization has had plenty of input throughout the course of the proposed update to the HazCom standard.
“Hopefully, the agency will take it into consideration, but we won't know until we see the final rule,” Gibson said.
Following the 16 February 2021 Federal Register notice from OSHA regarding its proposed revisions to the HazCom standard, the American Composites Manufacturers Association (ACMA) responded in its public comments that the requirement to convey information about hazards resulting from downstream reactions on safety data sheets (SDS) “will be both impractical if not infeasible to implement and counterproductive to workplace health and safety.”
ACMA also wrote that OSHA had not shared any data that would suggest it has “quantified the costs of these proposed new requirements or established that they are economically feasible.”
A single SDS can cost between $400–$800 to produce, which would range between $60,000–$120,000 for 150 SDS, according to a 2021 estimate from ACD members.
Others argue that the revisions run the risk of further deviating from the GHS, which would be counterproductive from the intent of aligning with the standards developed by the United Nations’ (UN) Purple Book.
“When implementation of the UN GHS by specific countries deviates from the UN version of GHS, the perceived benefits of harmonization substantially decrease for all stakeholders,” wrote Raleigh Davis, director of global affairs at the American Chemistry Council (ACC) in a 19 May 2021 letter to Maureen Ruskin, then the director of standards and guidance for OSHA. “While we fully understand the complicated task of reconciling [the HazCom standard] with UN GHS, we strongly urge OSHA to pull directly from the UN GHS wherever possible, while retaining flexibility for existing provisions that provide similar levels of protection.”
Defining Distributors
Another sticking point for industry advocates like Gibson is the language OSHA uses to define some of its stakeholders. The OSHA definition of a distributor unfairly excludes ACD members who are instead classified as manufacturers and importers because they are working with chemicals, she said.
The standard would give manufacturers and importers 12 months to:
- Evaluate hazards: Chemical manufacturers and importers must evaluate the hazards of the chemicals they produce or import.
- Prepare labels and SDS: They must prepare labels and SDSs to convey the hazard information to their downstream customers.
- Update labels: When significant new information about the hazards of a chemical is learned, they must update container labels within six months. However, containers that have been “released for shipment” and are awaiting distribution would not need to be re-labeled.
- Provide updated labels: Manufacturers and importers would still be required to provide updated labels for all containers with each shipment.
Distributors have 18 months to:
- Cease shipment of noncompliant containers: The distributor cannot ship containers labeled by the chemical manufacturer or importer unless that label is compliant with the HazCom standard.
- Update labels: Similar to manufacturers and importers, distributors also must update container labels within six months when significant new information about the hazards of a chemical is learned.
Both Downing and Gibson said the definition of “distributor” needs to be expanded for the purposes of the HazCom standard timeline to include those who take manufactured products and store and ship them to end customers, to provide more flexibility and time for compliance.
Downing said OSHA’s ultimate responsibility is to protect workers and making SDS too complex undermines worker safety.
“We’ll be back to where we were pre-2012 where the lawyers and the medical people stepped in and loaded these safety data sheets with so much information that [they were] no longer useful to the worker,” Downing said. “I think that's really where OSHA is slipping on this one. They're looking for information that's going to put an onus on a distributor or manufacturer but does nothing to provide an additional layer of protection to the worker.”
The last major revision to the HazCom standard, effective 25 May 2012, included a four-year phase-in window for training employees on new label elements and SDS format, container shipping compliance, and updating workplace labeling and hazard communication training programs for newly identified physical or health hazards.
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About the author: Stefan Modrich is a Washington, D.C.- based reporter for 3E. He covers the latest developments in environmental health and safety policy and regulation. Modrich previously wrote for S&P Global Market Intelligence, The Arizona Republic and Chicago Tribune. He is an alumnus of Arizona State University and the University of Zagreb.
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