Companies committed to environmental, health, and safety (EHS) compliance face a complicated array of federal, state, and local regulations that may vary by industry sector, facility size, setting, and location. Technical EHS compliance has undergone significant changes over the last several of years—and more is likely to come in the foreseeable future. The evolving EHS landscape presents some significant challenges that companies must address to remain in compliance.

Pandemic

The COVID-19 pandemic has certainly impacted EHS, as it has other operations. There are probably few organizations that have not implemented operational changes on some level to respond to the pandemic—whether that has involved more remote working situations for staff, increased or decreased production, or updated travel and health and safety guidelines.

Changes such as these have had a cascading impact on the way organizations and EHS operations work. With more staff working from various and often remote locations, Cloud-based access EHS and facility documents, records, and shared applications has become essential. Employees need access to everything regardless of location. Along the same line, virtual monitoring methods have also become a necessity. With new guidelines for travel and who may be allowed in a facility, in-person monitoring, assessing, and auditing to meet EHS compliance requirements may not be possible for some facilities.

After over a year of adjusting to a new way of operating through the pandemic, resuming “normal” operations can present additional challenges. Workplace culture has undoubtedly changed. Defining what the culture is as individuals may (or may not) return to the work environmental will requirement management of change and, likely, training. It is important for organizations to address workplace changes and expectations and to evaluate new ways of doing business.

Staffing

EHS department understaffing has long been reported as an issue. In a 2016 study done by Triumvirate, 72% of companies reported EHS understaffing. Many organizations do not have dedicated EHS resources, and many EHS departments often consist of one individual who fulfills multiple roles. Internal resource growth as operations resume is questionable, as EHS expertise can be expensive. This presents an even bigger issue with many experienced workers—often those with the facility EHS background—electing not to return to the workplace full time. This is an area where EHS compliance efficiency and tracking tools are becoming essential to allow companies to do more with fewer resources.

Regulatory Uncertainty

Not surprisingly, EHS regulations—climate change, air, waste, water—are undergoing seismic shifts with the new Administration taking office. Some of these notable changes include the following:

• Environmental Protection Agency’s (EPA’s) new Waters of the U.S. (WOTUS) Rule
• Major Lautenberg Law Amendments to the Toxic Substances Control Act (TSCA)
• Chemical Safety Board’s (CSB’s) new Chemical Release Reporting Rule 
• Latest Clean Air Act (CAA) requirements for facilities 

On top of this, the differences between state and federal regulations are growing in many states. Organizations need to understand what requirements are applicable and what must be done to maintain compliance at all levels.

Enforcement

From 2017-2020, the U.S. experienced the lowest number of Occupational Safety and Health Administration (OSHA) inspections in over 10 years—including fewer complex investigations. In this same period, the Agency also has had the fewest OSHA inspectors conducting inspections in 40 years.

Not surprisingly, COVID has stalled many enforcement activities and court cases. However, despite COVID, EPA issued approximately $3 million in fines in Q3 of 2020:

• > $1.5 million Resource Conservation and Recovery Act (RCRA)
• > $1 million in Clean Air Act (CAA)
• > $0.5 million in Clean Water Act (CWA)

With the new Administration and resumed business activities, the frequency of comprehensive multimedia environmental inspections appears to be increasing. EHS regulatory enforcement is regaining momentum and likely will continue over the next few years.

Facing the Challenges

Achieving and maintaining EHS compliance requires great management and expertise to ensure all aspects of a company’s technical compliance have been identified and are being actively managed. A management system can provide the organizing framework to enable organizations to achieve and sustain their operational and business objectives through a process of continuous improvement. Information technology (IT) can further help to carry out daily tasks, connect staff, manage operations—and play a vital role in managing compliance requirements.

A compliance information management system brings IT and management systems together to coordinate, organize, control, analyze, and visualize information in such a way that helps organizations remain in compliance and operate efficiently. A system like this will help provide operational flexibility, generate business improvement, and prepare organizations to address these and other EHS compliance challenges that will continue to surface. 

Audits provide an essential tool for improving and verifying compliance performance. Audits may be used to capture regulatory compliance status (e.g., FDA, USDA); certification system conformance (e.g., FSSC 22000, SQF, IFS, BRC); and adequacy of internal controls, potential risks, and best practices.

Most regulations, standards, and certification programs require audits to be conducted with some established frequency. For many food companies, figuring out how to meet these audit requirements amongst travel restrictions, new company safety protocol, and government quarantines related to COVID-19 has presented a significant challenge.

The Online Alternative

Fortunately, the Global Food Safety Initiative (GFSI) and the benchmarked certification schemes have responded to this challenge, recognizing that online/remote/virtual audits can offer a viable alternative to onsite audits—even when companies are not operating in a pandemic.

Read KTL’s recent article in Food Safety Magazine about remote food safety auditing and best practices for doing it right.

As a facility environmental or plant manager, one of the most daunting letters you can receive is a Section 114 request from the U.S. Environmental Protection Agency (EPA). Under Section 114 of the Clean Air Act (CAA), EPA is authorized to require facilities to provide information about their operations. EPA can then use that information to develop new emissions standards or, as the case may be, to determine whether a facility is in violation of a rule or standard.

Section 114 Requests

Under the new administration, EPA sent out a Section 114 request earlier in 2021. This request asks facilities questions pertaining to compliance with Section 112(r) of the CAA, which requires facilities that store or use enough of a hazardous chemical to develop and implement a Risk Management Plan (RMP), as codified in 40 CFR 68.

While EPA normally asks for Section 114 responses within 30 days, they are providing leniency because of the COVID-19 pandemic. Despite the additional time, many facilities receiving this letter may not have the background to understand the requirements of the RMP program, whether their facility is in compliance, and how to respond to EPA’s request.

RMP Program

The RMP program was developed in the 1990s. RMP regulates approximately 12,500 facilities, including agricultural supply distributors, waste/wastewater treatment facilities, chemical manufacturers and distributors, food and beverage manufacturers, chemical warehouses, oil refineries, and other chemical facilities. 

The goal of the RMP program is to prevent accidental releases of toxic substances that can cause serious harm to the public. To do this, the program requires subject facilities to develop and implement an RMP for their specific operations. According to EPA, “The RMP rule requires facilities that use extremely hazardous substances to develop a Risk Management Plan which:

• identifies the potential effects of a chemical accident,
• identifies steps the facility is taking to prevent an accident, and
• spells out emergency response procedures should an accident occur.”

Modeling Analysis

The RMP must include an air dispersion modeling analysis that addresses air pollution impacts from both a worst-case release of a toxic substance (e.g., a storage tank that ruptures and releases all its contents) and an alternative/more realistic release of a toxic substance (e.g., a loading hose that gets unhinged). This modeling establishes how far from the facility potential harmful impacts can occur and then identifies public receptors within that area—locations where the public would be at risk should an accident occur.  These public receptors include schools, residences, parks, hospitals, etc. 

In most cases, the required modeling is known as “dense gas” modeling, because typically the toxic substances covered by this rule behave as dense gas when they hit the atmosphere. For example, ammonia is liquefied under pressure in many refrigeration systems. If that ammonia is suddenly released to the atmosphere, it forms a mixture of vapor and very fine liquid droplets, and those droplets quickly cool the nearby air such that a cold mixture of air and ammonia vapor is formed. This mixture is denser than air and thus needs to be modeled appropriately. The dispersion model most often used for industries, AERMOD, is not the right model in this case.

Next Steps

For facilities who have received a Section 114 request and/or who are impacted by the RMP, it is important to:

• Understand the hazards posed by chemicals at the facility.
• Assess the impacts of a potential release.
• Design and maintain a safe facility to prevent accidental releases.
• Coordinate with local emergency responders.
• Minimize the consequences of accidental releases that do occur.

KTL has experience working with a broad cross-section of industries impacted by RMP, particularly chemical companies. We have created RMP and General Duty Clause audit protocols, conducted audits and investigation/improvement programs following significant release events. In addition, our team provides Tier II and TRI reporting, writes plans for OSHA and Emergency Response, routinely works with Local Emergency Planning Commissions (LEPCs) to coordinate emergency response efforts and exercises to keep communities informed and safe, and has partnered with Blue Sky Modeling to provide the required air dispersion modeling analysis.

About Blue Sky Modeling LLC

Blue Sky Modeling, LLC (BSM) is a KTL partner specializing in air quality modeling. BSM primarily models emissions of air pollutants using traditional air dispersion models (i.e., AERMOD and CALPUFF) in support of air quality permitting efforts. In addition to traditional air dispersion modeling, BSM also performs both accidental release and noise modeling; negotiates modeling strategies with air quality regulators; teaches air dispersion modeling courses; and provides expert testimony on modeling issues. BSM has modeled every type of source imaginable, including, but not limited to, oil and gas, power generation, smelting, cement, and chemical.

Get to know our KTL team! This month, we are catching up with KTL Senior Consultant Jessica Dykun. Jessica has 15 of experience working in the food and beverage industry, with particular expertise in food safety and microbiology. She has a wealth of experience to support Global Food Safety Initiative (GFSI) certification and regulatory compliance efforts. Jessica is based in Scottsdale, Arizona. 

Tell us a little bit about your background—what are your areas of expertise?

 My background is in food safety and microbiology. I have a master’s degree in food safety and defense and started my career working in analytical chemistry and microbiology labs conducting food analyses. I then advanced into a management role within the food industry and focused on Food Safety and Quality Assurance (FSQA) program development and implementation, including obtaining GFSI certification for multiple manufacturing facilities.

I joined the consulting world at KTL in January 2017. My areas of expertise include food safety, quality assurance, GFSI certification (i.e., FSSC22000, SQF, IFS, BRC), food microbiology and environmental monitoring, analytical methods, FDA and USDA labeling, USDA and Seafood Hazard Analysis and Critical Control Points (HACCP) development, and regulatory compliance. I have experience working with beverages, dairy products, seafood, raw and ready-to-eat (RTE) proteins, baking, food packaging, soups, sauces, condiments, and nutraceuticals.

What types of clients do you work with? What are the biggest issues you see them facing right now?

All my clients are in the food supply chain—from harvesting to food manufacturing, to food packaging manufacturing, to distributors and importers, to retail. We have recently started working with companies in the dietary supplement and food additives industry, as well, due to growing food safety requirements.

The COVID-19 pandemic has been a big challenge for most of my clients this past year. We have had to develop some creative solution strategies to overcome the obstacles of social distancing and reduced workforce, including creating COVID response plans and using remote GFSI auditing platforms. We have worked with clients to develop data management solutions and remote training applications, as well, to help them navigate the remote COVID-19 world.

What would you say is a highlight of your job?

I enjoy consulting because it allows me to work with people from different sectors of the food industry across the globe. I enjoy the fast-paced environment of food manufacturing, and I get satisfaction knowing that our consulting expertise is helping to create a safer food supply chain. One of the biggest highlights is helping my clients develop a food safety culture and seeing them achieve GFSI certification after months of program development and implementation. 

What do you like to do in your free time?

I have three little boys—all age three and under—so free time is very limited. Due to the pandemic and staying at home, we have found great entertainment improving our backyard garden and expanding our green-thumb skills. I enjoy involving my boys in planting, harvesting, and cooking with our homegrown food. Some of our favorite homegrown recipes include salsa, pasta sauces, and fresh squeezed orange juice and lemonade.

Read Jessica’s full bio.

Current Challenges of Technical Compliance in the U.S.:
Focus on Occupational Health & Safety and Environment
May 17, 2021 | 4 pm – 5 pm CT

Technical compliance regarding EHS has seen tremendous changes over the last couple of years and is likely to change even more in the foreseeable future. EHS regulatory enforcement will undoubtedly regain momentum in the next few years. Achieving and maintaining EHS compliance requires great management and expertise to ensure all aspects of a company’s technical compliance have been identified and are being actively managed.

KTL’s Sarah Burton will be joining Martin Mantz Compliance Solutions, our German alliance partner, to discuss the challenges of technical EHS compliance and to provide an up-to-date understanding of technical compliance in the U.S. today.

Don’t miss this free American Bar Association event on April 22, 2021 — Demonstrating Compliance in a Socially Distanced World: Virtual Auditing.

In the time of COVID-19, virtual auditing has become increasingly necessary and valuable to organizations as they seek to achieve environmental compliance while facing worldwide travel restrictions and remote work policies that have disrupted routine in-person audits. With this shift, comes the need for both regulated entities and regulators to develop new approaches and procedures to ensure the effectiveness of audits conducted remotely. Practitioners, including auditors and legal counsel, must consider new dynamics related to security, data protection, and audit integrity-on top of the usual audit considerations. This session will highlight some of these new challenges and provide real-world solutions to aid attendees form new practice skills to apply in the (virtual) field.

Panelists–including KTL’s Sarah Burton–will explore the new world of remote auditing, focusing on real-world solutions to the challenges that virtual auditing presents.

Register online.

Managing the complexities of a management system is challenging for any food and beverage company, particularly for the team tasked with implementing the system throughout the organization. That is because every regulatory agency (e.g., FDA, USDA, OSHA, EPA) and voluntary certification (e.g., GFSI-benchmarked standards, gluten-free, organic, ISO) calls for companies to fulfill compliance requirements—many of which overlap. Supply chain and internal requirements can create further complications and confusion.

In today’s “New Era of Smarter Food Safety,” having a common system to organize, manage and track compliance offers an ideal solution. Dynamic tools are becoming available—systems that can manage employee training, pest control, laboratory testing, supply chain management tools, regulatory compliance and certification requirements, etc.

Unfortunately, these systems are often not set up to “talk” to each other, leaving company representatives to navigate many systems, databases, folders, and documents housed in many different locations.

The Solution: Compliance Management Systems

An integrated compliance management system (CMS) is intended to bring all these tools together to create one system that effectively manages compliance requirements, enables staff to carry out daily tasks and manage operations, and supports operational decision making by tracking and trending data that is collected daily by the team charged with implementation.

Read KTL’s recent article and case study in Food Safety Tech about how a  CMS can be used to coordinate, organize, control, analyze, and visualize information to help organizations remain in compliance and operate efficiently.

Under the Toxic Substances Control Act (TSCA), certain manufacturers (including importers) must provide the U.S. Environmental Protection Agency (EPA) with information on the production and use of chemicals in commerce. This is done through a Chemical Data Reporting (CDR) report. CDR is required for all chemical substances listed on the TSCA inventory, with some exceptions, as discussed below.

EPA uses CDR to collect basic exposure-related information, including information on the types, quantities, and uses of chemical substances produced domestically and imported into the United States. This data is important, because it allows the Agency to assess potential human health and environmental impacts of chemicals and to share up-to-date information with the general public on chemical risks.

Manufacturers and importers who work with chemicals must understand TSCA and CDR, how the rules apply, and what is required to ensure compliance.  

What Is CDR?

The CDR rule was originally issued under TSCA in the 1980s as the Inventory Update Reporting (IUR) rule. In 2011, EPA changed the name to CDR to recognize the changes in reporting requirements over the past several decades.

Today, CDR remains a means to collect information on basic chemical exposure, including types, quantities, and uses of chemicals produced domestically and imported to the United States. According to this rule, manufacturers and importers must report on production and use of chemicals in commerce if specified thresholds are met.

What Is TSCA?

TSCA was published in 1976 to provide EPA with the authority to require reporting, recordkeeping and testing requirements, and restrictions related to chemical substances. In 2016, President Obama signed the Frank R. Lautenberg Chemical Safety for the 21^st Century Act, which modernized and updated TSCA to include the following:

• Mandatory requirement and clear deadlines for EPA to evaluate existing chemicals
• Risk-based chemical assessments
• Increased public transparency for chemical information
• Consistent source of funding for EPA to carry out responsibilities

The CDR rule remains a key component of TSCA, as revised under the Lautenberg Chemical Safety Act.

Who Must Report under the CDR Rule?

The CDR rule applies to manufacturers and importers of chemicals who meet specified production volume thresholds:

• In general, the threshold is 25,000 lbs. or more of a chemical substance at any single site during any calendar year since the last principal reporting year.
• With respect to chemicals that are subject to certain TSCA actions, a reduced threshold of 2,500 lbs. may apply.

Are Any Chemicals Exempt from Reporting?

Certain types, manner of manufacture/import, or use of chemicals are exempt from CDR reporting (i.e., polymers, microorganisms, naturally occurring chemical substances, water, and certain forms of natural gas when manufacture (including import) of those chemical substances meets other reporting requirements).

It is important for facilities to assess whether they have chemicals that fall into the following categories, as outlined by EPA, which are all exempt from CDR:

• Chemicals manufactured or imported for non-TSCA uses are not required to be reported (e.g., pesticides are exempt from reporting under CDR by TSCA). If a portion of a manufacturer’s or importer’s production is not subject to TSCA (e.g., if the use is regulated by the Food and Drug Administration (FDA)), that portion will not be reported to CDR. Note that manufacturers may report downstream non-TSCA uses for their chemical.
• Generally, water and naturally occurring substances are exempt from CDR requirements. Three other groups of chemicals (i.e., polymers, microorganisms, and certain forms of natural gas) are also generally exempt. However, it is important to note that a particular polymer, microorganism, or form of natural gas may not be exempt if the chemical becomes the subject of certain TSCA actions (e.g., an enforceable consent agreement).
• Chemicals that are non-isolated intermediates, imported as part of an article, impurities, or byproducts destined for certain commercial uses are exempt from reporting.

Are Any Manufacturers/Importers Exempt from Reporting?

EPA recently amended the definition of small manufacturer in 2020 in accordance with TSCA. This provides an exemption from reporting for manufacturers who meet the following criteria:

• Total sales during 2019 combined with those of the parent company (domestic or foreign) are less than $ 12 million; or
• Total sales during 2019 of the parent company (domestic or foreign) are less than $120 million and annual production volume of a qualifying chemical substance does not exceed 100,000 lbs. at any individual site. If the annual production volume of the chemical substance exceeds 100,000 lbs. at a site, the manufacturer is required to report for that particular site.

How Is the CDR Rule Different from Toxic Release Inventory (TRI) Rule?

CDR collects exposure-related information and requires manufacturers/importers to report industrial, commercial, and consumer use information for certain chemical substances on the TSCA inventory. TRI, on the other hand, is designed to track the management of certain toxic chemicals that might pose a threat to human health and the environment. Under TRI, regulated facilities must report on releases and waste management of specific chemical substances under the Emergency Planning and Community Right-to-Know Act (EPCRA).

How Often Must Data Be Reported?

Impacted manufacturers and importers must and submit information to the EPA every four (4) years. For chemical substances that trigger reporting, total annual production volume must be reported for each calendar year since the last principal reporting year. The 2020 submission reporting period was based on data for the calendar years 2016-2019. The next submission period will be 2024 for data collected from 2020-2023.

How Do Companies Submit CDR Data?

Companies subject to reporting must submit the required information using e-CDRweb, the CDR web-based reporting tool. To access this reporting tool, companies must register on EPA’s Central Data Exchange (CDX) system.

What Should I Do Now to Prepare?

The most recent submission period closed on January 29, 2021. To prepare your company for the 2024 submission:

• Keep records on production volume of imported and manufactured chemical substances.
• Follow EPA actions under TSCA to check if they have an impact on your reporting requirement.
• Make sure to submit your report within prescribed deadline; otherwise, you may be subject to EPA enforcement action.
• Visit the CDR website for program updates, announcements, and other guidance materials.

Spring is here…warmer temperatures, melted snow, anticipated rain, and, potentially, elevated flood warnings. Spring thaw is a critical time to evaluate potential runoff impacts from storm waters and to ensure compliance with regulatory requirements for storm water management.

Permit Requirements

According to the U.S. Environmental Protection Agency (EPA), “The National Pollutant Discharge Elimination System (NPDES) permit program addresses water pollution by regulating point sources that discharge pollutants into the waters of the United States.” NPDES permits are issued by states that have obtained EPA approval to issue permits or by EPA Regions in states without such approval.

Businesses with specific SIC/NAICS codes are required to have an NPDES permit or a No Exposure certification in place to help ensure protection of the nation’s surface waters. If a business is required to have an NPDES permit, they are also required to have a Storm Water Pollution Prevention Plan (SWPPP) for their site.

What Is a SWPPP?

A SWPPP is a site-specific, written document that is required to comply with a storm water general permit. The primary goal of the storm water permit program is to improve the quality of surface waters by reducing the number of pollutants potentially contained in the storm water runoff. The SWPPP describes:

• Potential sources of storm water pollution at the site
• Activities to control sedimentation and erosion
• Practices to reduce pollutants in storm water discharges from the site
• Procedures to comply with the terms of the general permit and Clean Water Act (CWA) requirements

SWPPPs are intended to be “living” documents that are updated to reflect changes at the site. With spring thaw and rains in the forecast, it is important to review the SWPPP and any Best Management Practice (BMP) strategies to ensure the site is effectively managing storm water and meeting permit and regulatory requirements.

SWPPP: Key Parts and Pieces

The SWPPP identifies potential sources of pollution that may reasonably be expected to affect the quality of storm water discharges associated with activity at the facility. The plan also describes the implementation of practices that are to be used to reduce those pollutants. The SWPPP, which should be prepared in accordance with good engineering practices, documents the following:

• Summarizes major activities conducted at the facility.
• Inventories exposed materials and summarizes storm water sampling requirements for the facility.
• Identifies potential source areas of storm water contamination and significant polluting materials.
• Identifies Best Management Practices (BMPs) for facility activities.
• Identifies impacts of BMPs.
• Identifies the individuals who will implement the SWPPP.
• Provides information on required storm water inspections.
• Discusses training requirements.
• Provides a means of recordkeeping for storm water-related documents at the facility.
• Provides a non-storm water discharge assessment.
• Summarizes storm water discharge regulatory applicability and implementation schedule.
• Fulfills the requirements of the General Permit issued to the facility.

SWPPP Development: Best Practices

EPA cites a number of common compliance problems associated with SWPPPs in its SWPPP guide.  Based on KTL’s experience, the following best practices can help ensure successful development of the SWPPP and implementation of the overall storm water pollution program to avoid those pitfalls.

1. Determine whether you need a SWPPP. Many facilities do not realize they need a SWPPP. Others may use a generic template to fulfill the need. To be effective, SWPPPs should be customized to address site-specific operations.
2. Implement control measures. The SWPPP identifies control measures for managing storm water. It is vital that those control measures outlined in the SWPPP are the control measures that are actually being used at the site. As operations change and control measures change, the SWPPP must be updated.
3. Keep a copy onsite. A copy of the SWPPP—hard copy or electronic—must be maintained onsite at all times in case of a regulatory inspection.
4. Authorize the SWPPP. A responsible facility representative must sign and authorize the current version of the SWPPP.
5. Identify and train your storm water pollution prevention team. The storm water pollution prevention team identified in the SWPPP must be current, familiar with the storm water program, and adequately trained on the program and their respective roles/responsibilities.
6. Collect representative visual assessment samples. Visual storm water samples collected from pooled areas onsite are not representative, as these areas tend to concentrate pollutants.
7. Cover dumpsters. This is a simple action that is often overlooked. Dumpsters from contract waste collection agencies must be appropriately sealed to prevent leaking oil or other contaminants. Check with your regulatory authority on what is required for outside dumpsters—even those for contractors.
8. Control outdoor storage. Keep outdoor storage to a minimum. Store only items specified in the SWPPP in the designated storage areas.
9. Maintain inspection and monitoring records. Facilities are required to maintain records of routine site inspections, visual assessments, monitoring results, and implementation of practices required in the permit.

On February 16, 2021, the Occupational Safety and Health Administration (OSHA) issued a proposed rule to update the agency’s Hazard Communication Standard (HCS) to align with updates to the United Nations (UN) Globally Harmonized System of Classification and Labeling Chemicals (GHS), as well as those of Canada and other U.S. agencies.

According to OSHA, the agency “expects the proposed updates to the HCS will increase worker protections and reduce the incidence of chemical-related occupational illnesses and injuries by further improving the information on labels and safety data sheets (SDS) for hazardous chemicals.”

HCS and GHS

The HCS was initially adopted by OSHA in 1983 to create a standardized approach for communicating about workplace hazards associated with hazardous chemical exposures. The standard requires chemical manufacturers and importers to classify the hazards of chemicals produced and/or imported to the U.S. and to communicate to employees about these chemicals through a hazard communication program, including labels and other forms of warning, SDS, and training.

Like HCS, the GHS is an international standard that was created as a “universally harmonized approach” to classifying chemicals and communicating hazard information. Warning pictograms that can be understood in any language are a key component of the GHS, in addition to universal standards for hazard testing criteria and SDS. The UN updates the GHS every two years, with the most recent updates in 2019 with Revision 8.

OSHA’s proposed HCS updates are the agency’s first since 2012 and are intended to address issues that have emerged since 2012, align with GHS Revision 7 and some provisions from GHS Revision 8, and enhance cooperation with international trading partners. Correspondingly, as part of OSHA’s proposed rule, the agency is evaluating whether it should establish a schedule for updating the HCS to coincide with GHS updates or maintain the status quo of updating when there are substantial changes to GHS requirements.

Major Proposed Changes

The following proposed modifications to the HCS are intended to improve hazard communication so employees are more aware of the hazards associated with potential chemical exposure, while creating additional clarity and flexibility in requirements:

• Flexibility for bulk shipments of hazardous chemicals, including allowing labels to be included on immediate containers or with shipping papers, bills of landing (BOLs), or other electronic means that are immediately available to workers in printed form on the receiving end of the shipment.
• Options for labeling small containers when it is not feasible to use traditional pull-out labels, fold-back labels, or tags containing full information. This includes using just the product identifier, pictogram, signal word, chemical manufacturer’s name/phone number, and statement that full information is provided on the immediate outer package for containers less than or equal to 100 ml capacity. For those with a capacity of 3 ml or less, only the product identifier needs to be displayed.
• New requirements for updating labels on individual containers that have been released for shipment but are waiting future distribution. These shipments would not need to be relabeled; however, the chemical manufacturer/importer would need to provide the updated label for each individual container with each shipment.
• Updates to precautionary statements in every hazard class and category. OSHA is also proposing certain statements related to medical response be prioritized.
• Withholding of a chemical’s concentration range as a trade secret. In addition, OSHA is proposing to allow the use of prescriptive concentration ranges rather than actual concentration/concentration ranges (consistent with those required by Canada) when these are deemed trade secrets.
• New required information on SDS, including U.S. address/phone in Section 1, hazards associated with change in chemical’s physical form, identification of hazards that result from a chemical reaction, more information on physical and chemical properties (e.g., particle size), and more information on interactive effects.

Next Steps

OSHA is currently seeking public comment on the HCS proposed updates through April 19, 2021.

While many of OSHA’s proposed changes will provide additional flexibility to chemical manufacturers and importers, as well as alignment with GHS and international trading partners, the regulatory burden is not insignificant to those impacted. The fundamental structure of the HCS is not changing; however, the revisions will require companies to update SDS, labels, and training. All of this will take appropriate and resources to meet deadlines once any proposed updates are finalized.

View the Federal Register notice.