OSHA Directive on Inspection Procedures for the Hazard Communication Standard

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iStock_000060649768MediumOSHA has just announced a compliance Directive on “Inspection Procedures for the Hazard Communication Standard,” CPL 02-02-079 (July 9, 2015).

We had previously blogged that June 1, 2015 was the deadline for compliance with the all new hazardous communication (HazCom) standard (29 CFR section 1910.1200) (HCS 2012) requirements, with exceptions for chemical distributors, and for employers to update workplace labeling and hazard communication programs. 77 Fed. Reg. 17574 (March 26, 2012). Also, earlier this year OSHA had issued an Enforcement Guidance on the June 1, 2015 effective date. The Enforcement Guidance applied only to HCS 2012 compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures.

This new Directive outlines revisions to the HCS, including the revised hazard classification of chemicals, standardizing label elements for containers of hazardous chemicals, and specifying the format and required content for safety data sheets. According to OSHA, it explains “how the revised standard is to be enforced during its transition period and after the standard is fully implemented on June 1, 2016.”

Notably, the Directive provides OSHA inspectors with a useful appendix (“J”) on “Other Standards to Consider When Citing Chemical Exposures with No PEL”. This provision has been an issue over the last couple of years as OSHA seeks to work around the regulatory process needed to establish more stringent permissible exposure limits (PELs) – so that it may regulate the unregulated. We previously blogged about the Agency’s “Annotated Permissible Exposure Limits and Chemical Toolkit,” through which OSHA “recommended” that employers “voluntarily” comply with lower chemical permissible exposure limits (PELs) than those that currently existed in the OSHA regulations.

In the Directive OSHA also clarified its position relating to consumer products:

It is the Agency’s policy not to issue citations for consumer products unless the [inspector] can document that the product was used in the workplace in a manner not intended by the manufacturer or the frequency and duration of use results in exposures that are significantly greater than those experienced by a normal consumer. Citations may only be issued in cases where the [inspector] can document that the use falls outside of the 1910.1200(b)(6)(ix) exemption.

Emphasis in the original.

Employers are encouraged to look closely at their HCS policies, procedures, and training programs to ensure compliance with this new Agency Directive.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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