The New OSHA Hazard Communication Program

1. The New OSHA Hazard Communication Program Barry Hartman Barry.Hartman@klgates.com Kate Dewberry Kate.Dewberry@klgates.com Friday, September 23, 2016 11:00 AM

2. klgates.com

3. WHAT WE WILL COVER • What is the Hazard Communication Standard • Why is it important now? • How do I comply? klgates.com

4. What is Osha’s hazard communication standard (HCS)? • Employees learn about work hazards from chemicals; • How to protect themselves • How to handle spills • Goal: Reduce incidence of illness/ injuries from chemicals in the workplace. klgates.com

5. Why is this important now? • The Rules klgates.com

6. How have the rules changed? • Align information with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS). • Reduce trade barriers posed by differing global requirements for classification and labeling of chemicals. • Revisions mostly relate to how chemical manufacturers/importers classify chemical hazards and prepare labels and SDSs. • But training must be to the new classifications klgates.com

7. Exemptions from HCS • Hazardous waste regulated under the Resource Conservation and Recovery Act (RCRA) • Tobacco and tobacco products • Wood and wood products, • Food, drugs, and cosmetics for use by employees in the workplace • Articles. • Exempt articles are those which are formed to a specific shape or design, have end use functions dependent on that shape or design, and do not release or produce exposure to hazardous substances under normal conditions of use. klgates.com

8. Components of HCS • Safety Data Sheets (“SDS”) • Container Labeling • Hazard Communication Program klgates.com

9. Who MUST comply? • General industry, shipyard, marine terminals, longshoring, and construction employers • Chemical manufacturers, importers, employers, and employees exposed to chemical hazards klgates.com

10. Manufacturers/importers • Required to perform hazard classifications on the chemicals they produce or import. • “manufactures, processes, formulates, blends, mixes, repackages, or otherwise changes the composition of a hazardous chemical is considered a “chemical manufacturer.” • Distributors or resellers of consumer fireworks are only required to have SDSs for the consumer fireworks, not for the individual chemicals that make up those fireworks. klgates.com

11. FIRST QUESTION: What am I???? • Manufacturer • Importer • Distributor • Employer klgates.com

12. Manufacturers • It all starts here. • If you mix chemicals to produce a particular type of pyrotechnic article (“pyrotechnic manufacturer”). • The hazard information from the suppliers of the individual ingredients is critical to the classification of the pyrotechnic article’s composition. • U.S. pyrotechnic manufacturers are equivalent to manufacturers in other industries. klgates.com

13. IMPORTERS • Importers of pyrotechnic articles and consumer fireworks are essentially distributors. • Responsible for making sure that compliant labels and SDSs are available for the products they import. • Must get them from manufacturer. • Still legally responsible even if you don’t have them. klgates.com

14. Manufacturers / importers • Both U.S. manufacturers and importers of consumer fireworks must provide SDSs to their downstream distributors, including those at the retail level. klgates.com

15. TWO BIG EXCEPTIONS for consumer fireworks • HCS 2012-compliant labels are not required on consumer fireworks as long as they are labeled in conformance with Consumer Product Safety Commission (CPSC) requirements. 15 U.S.C. §1261. See http://www.cpsc.gov/en/Business--Manufacturing/Business-Education/Business-Guidance/Fireworks/ • SDSs are not required to be provided to consumers at retail sales locations. klgates.com

16. EMPLOYERS • Most manufacturers, importers and distributors are employers (they employ people). • Not all employers are manufactures, importers or distributors. klgates.com

17. Employer responsibilities • Employers only have to focus on: • establishing a workplace program and • communicating information to their workers. klgates.com

18. Employer responsibilities klgates.com

19. Employer responsibilities • Inventory: Identify and list hazardous chemicals in workplaces • SDS & Labeling: Obtain Safety Data Sheets and labels for each hazardous chemical, if not provided by the manufacturer, importer, or distributor • Written Program: Implement a written HazCom program, including labels, SDS, and employee training • Communication & Training: Communicate hazard information to employees through labels, SDSs, and formal training programs klgates.com

20. WHAT DO I INVENTORY? • Inventory any hazardous chemicals  defined as • “any chemical which is classified as a physical hazard or a health hazard, a simple asphyxiant, combustible dust, pyrophoric gas, or hazard not otherwise classified.” • Household consumer product - do not need to provide SDSs when the products are used in the workplace in the same manner that a consumer would use them. https://www.osha.gov/html/faq-hazcom.html#faq8 klgates.com

21. How do I inventory? • Start with invoices. • Walk around just like you would inventory product. • If you find things you don’t use, properly discard them. • If it’s there and not exempt, it requires SDS and training. • “Old” stock needs new SDS. klgates.com

22. SDS and Labelling • Demand it from seller or don’t buy the product; • Make it a condition of payment in order; • Take a look at SDS date: • If before June 1 2015, beware • If it says “MSDS” beware. • If it is dog-eared, beware. • You are legally liable for fines if you don’t have the SDS klgates.com

23. Why compliance matters *For FY 2015; https://www.osha.gov/Top_Ten_Standards.html klgates.com

24. HCS Enforcement: Recent EXAMPLES klgates.com

25. fines New penalties took effect August 2, 2016: https://www.osha.gov/penalties/ klgates.com

26. HAZARD COMMUNICATION PROGRAM

27. GENERAL REQUIREMENTS • All workplaces where workers are exposed to hazardous chemicals must have a written hazard communication program. • The Program must outline how the employer will address the requirements of: • Labels and other forms of warning • Safety Data Sheets • Employee Information and Training klgates.com

28. In what workplaces are workers exposed “Employee means a worker who may be exposed to hazardous chemicals under normal operating conditions or in foreseeable emergencies. Workers such as office workers or bank tellers who encounter hazardous chemicals only in non-routine, isolated instances are not covered.” 1910.1200(c) klgates.com

29. In what workplaces are workers exposed • “Office workers who encounter hazardous chemicals only in isolated instances are not covered • intermittent or occasional use of a copying machine does not result in coverage under the rule. However, if an employee handles the chemicals to service the machine, or operates it for long periods of time, then the program would have to be applied.” https://www.osha.gov/html/faq-hazcom.html#faq10 • Reference Interpretation and Compliance Letters: • Applicability of the HCS to office workers and copy machine operators. [3/31/89] • Application of the Hazard Communication Standard to art materials industry. [9/17/87] • See Also: OSHA Instruction CPL 2-2.38D, Inspection Procedures for the Hazard Communication Standard, 29 CFR 1910.1200, 1915.99, 1917.28, 1918.90, 1926.59, 1928.21 [3/20/98] klgates.com

30. General requirements • Must also include: • Listof the hazardous chemicals known to be present in the workplace (identified by product identifier from the SDS) • Methods to inform employees of the hazards of non-routine tasks klgates.com

31. MULTI EMPLOYER WORK SITES • For multi-employer worksites • How on-site access to SDSs will be provided to the other employer(s). • How such employers will be informed of needed precautionary measures. • How such employers will be informed of the on-site labeling system if it is different from the labels specified for shipped containers under the standard. klgates.com

32. Six steps to effective hazard communication program klgates.com

33. Six steps to effective hazard communication program klgates.com

34. Contents of hazard communication program • Summary of the Occupational Health and Safety Administration (OSHA) Standard • Hazard Determination Policy • List of the Hazardous Chemicals Used in this location • Safety Data Sheets (SDSs) for every known hazardous chemical found in this location • Hazardous Chemical Container Labeling Policy • Employee Information and Training Material klgates.com

35. HAZARD DETERMINATION POLICY: If company is not a manufacturer or importer “The company relies on suppliers to make the determinations required under the OSHA Standard concerning the hazards of the products they sell. The company in no way undertakes to verify the information provided and relies on the suppliers to provide accurate, up-to-date information on their products. “ klgates.com

36. Hazard determination policy: If company is a manufacturer or importer Determine which chemicals require a hazard classification. • Prepare an inventory of all the chemicals you manufacture or import, as well as a list of the ingredients in the mixtures produced. • To create the list of ingredients from the mixtures produced, consider information found in the chemical formula, on order receipts, batch sheets, and so on. • While a single SDS must be created for the mixtures produced, you may rely upon the information provided on the SDSs and labels for ingredients obtained from the chemical manufacturer or importer, unless you have reason to believe the information is incorrect. • Or you may choose to conduct a hazard classification for those ingredients if there is concern about the adequacy of the hazard information received. klgates.com

37. Hazardous chemicals inventory • List of every hazardous substance known to be present in the workplace • Should include a product identifier for each chemical on the list that matches and can be easily cross-referenced with the product identified on its label and on its SDS. • Must be updated whenever necessary to reflect accurately all the hazardous chemicals that are present in the workplace. • All mixtures (stars, fountain composition, fuse powder, etc.) prepared at this facility are listed on the Hazardous Chemical Inventory. • Obtain a list of all hazardous chemicals to be used at the worksite by outside contractors klgates.com

38. Inform and train employees Training must consist of instruction in: • The requirements of the OSHA Standard. • Operations in their work areas where hazardous chemicals are present. • The location and availability of the Hazard Communication Program • Details of Hazard Communication Program developed by the company, including an explanation of the labeling systems and the SDSs, and how employees can obtain and use appropriate hazard information. • Methods and observations to detect the presence or release of hazardous chemicals in the work area. • Physical and health hazards of chemicals in the work area. • Measures employees can take to protect themselves (e.g., work practices, emergency procedures, protective equipment, etc.). klgates.com

39. Inform and train employees • At the time of employee’s initial assignment to work with hazardous chemicals, or whenever a new hazard is introduced. • Before any non-routine task that could involve exposure to hazardous chemicals • Before any contractors work on company property • Periodic updates and seminars regarding the Hazardous Communication Program and workplace safety klgates.com

40. CONTAINER LABELING

41. Exemption from labeling if labeled under other laws • finished consumer fireworks, labeled in compliance with consumer product safety regulations • pesticides, • foods and food ingredients, • distilled spirits • consumer products • certain other hazardous substances klgates.com

42. Exemption for articles • “If a manufacturer makes a reasonable determination that its product satisfies the requirements specified at 29 CFR 1910.1200(c), including that it poses no health risk or physical hazard to downstream workers, the product would then be considered an article.” https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28664 klgates.com

43. EXEMPTION FOR ARTICLES • The ‘article’ exemption can pose difficulties for manufacturers in determining whether their products meet the definition. The key to the definition of an “article,” and thus exemption, is the requirement that the manufactured item does "... not release, or otherwise result in exposure to, a hazardous chemical under normal conditions of use ...” Many items appear to meet the definition in their manufactured form, but, manufacturers must consider their products’ end use before the “article” exemption may apply.” https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=19490 klgates.com

44. Labeling policy • No hazardous chemicals are accepted for use in the company unless the chemicals are labeled with at least the following information: • Identity of the hazardous chemical(s) • Appropriate hazard warnings • Name and address of the chemical manufacturer, importer, or other responsible party klgates.com

45. Labeling policy No hazardous chemical is used in the work area unless labeled with at least the following information: • The original manufacturer’s label -includes a product identifier, an appropriate signal word, hazard statement(s), pictogram(s), precautionary statement(s) and the name, address, and telephone number of the chemical manufacturer, importer, or other responsible party. • Workplace labeling includes the product identifier and words, pictures, symbols, or combination that provides at least general information regarding the hazards of the chemicals. klgates.com

46. Labeling policy -sample • “John Smith is responsible for ensuring all containers are appropriately labeled and update workplace label information as necessary.” • Policy to provide persons with reading disabilities and language difficulties are provided with appropriate information. klgates.com

47. Labels: required information“The BIG 6” • Product Identifier • Signal Word • Hazard Statement(s) • Pictogram(s) • Precautionary Statement(s) • Name, address, and phone number of responsible party klgates.com

48. PSHPNN klgates.com

49. Labels: Product identifier klgates.com

50. Product Identifier • Any chemical, common, or trade name or designation that the chemical manufacturer or importer chooses to use on the label • The term must also appear on the SDS klgates.com