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OSHA gives ASC, others reprieve on GHS penalties

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WASHINGTON—Members of the Adhesive and Sealant Council and eight other associations won't face penalties next June, thanks to the Occupational Safety and Health Administration making a positive response to their petition.

OSHA Administrator David Michaels replied in an undated letter to the Aug. 11 petition that the companies represented by the ASC and other associations will not have to fear penalties under the requirements of the Global Harmonization Standard, as long as they can demonstrate good-faith efforts to comply with the GHS.

The associations told Michaels that it could be impossible for them to have the new Safety Data Sheets and safety labels ready by the June 1, 2015, deadline because their suppliers may not give them the required information in time to devise the new SDSs and labels. Michaels replied that OSHA realized such problems can occur for chemical manufacturers and formulators.

“Our policy allows us to consider barriers to the downstream flow of information that is beyond their control,” he wrote.

To ensure they aren't assessed penalties, Michaels said, chemical manufacturers and formulators should:

• Document all efforts to obtain required information, including all attempts to contact suppliers;

• Make reasonable efforts to find suppliers that can provide timely and accurate classifications; and

• Make reasonable efforts to find the necessary data themselves.

“OSHA plans to provide guidance to regional and area offices to ensure this policy is uniformly applied to individual situations,” Michaels wrote. “The agency intends to apply the same approach to distributors that can demonstrate that they have received chemicals labeled under this policy.”

At the same time, Michaels rejected the petitioners' suggestion that OSHA should undertake rulemaking to postpone the SDS and labeling requirements.

“The rulemaking process requires considerable time and agency resources,” he wrote. “It is unlikely that any new rulemaking could be concluded by June 1, 2015, and therefore would not provide the relief your request seeks.”

A rulemaking also could delay implementation of the GHS rule by months or even years, according to Michaels. OSHA could expedite rulemaking by publishing a Direct Final Rule, but that would work only if the agency received no significant adverse comments from the public, he said.

The SDS and labeling portions of the GHS are the last parts of that standard to go into effect, according to Mark Collatz, ASC director of regulatory affairs.

But in approaching compliance with those provisions, chemical fabricators are in a different position from chemical suppliers, Collatz said. “Suppliers work at their own pace,” he said. “The situation is different for our members when they try to get all the information they need.”

In the Aug. 11 petition, the ASC said the classification of chemical products under the GHS system is much more complicated than anyone realized when the rule was promulgated.

“The process of classifying substances under the regime is not a simplistic, check-the-box exercise,” the ASC said. “This problem is compounded for a product that is comprised of multiple components that are themselves formulated products. “Often this involves a supply chain that is three to five layers deep.

OSHA and officials of the involved associations will meet over the next few months, according to Collatz. He said he expected the meetings to result in OSHA developing a formal policy compliance directive.

Besides the ASC, signers of the petition included the American Coatings Association, the American Composites Manufacturers Association, CropLife America, ISSA—the Worldwide Cleaning Industry Association, the National Association of Chemical Distributors, the National Association of Manufacturers, Responsible Industry for a Sound Environment and the Society of Chemical Manufacturers and Affiliates.