Monday, December 19, 2011

OSHA issues new National Emphasis Program (NEP) for chemical facilities

The Occupational Safety and Health Administration today issued a new National Emphasis Program* (NEP) for chemical facilities to protect workers from catastrophic releases of highly hazardous chemicals.

"Far too many workers are injured and killed in preventable incidents at chemical facilities around the country," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. "This program will enable OSHA inspectors to cover chemical facilities nationwide to ensure that all required measures are taken to protect workers."

The new NEP replaces OSHA's 2009 pilot Chemical Facility National Emphasis Program which covered several OSHA regions around the country. The program* establishes policies and procedures for inspecting workplaces that are covered by OSHA's process safety management (PSM) standard. The program's inspection process includes detailed questions designed to gather facts related to PSM requirements and verification that employers' written and implemented PSM programs are consistent. The intent of the NEP is to conduct focused inspections at facilities randomly selected from a list of worksites likely to have highly hazardous chemicals in quantities covered by the standard.

OSHA implemented a multi-year pilot NEP for PSM-covered facilities in July 2009 in an effort to reduce releases of highly hazardous chemicals. "During our pilot Chemical NEP we found many of the same safety-related problems that were uncovered during our NEP for the refinery industry, which is also covered by the PSM standard," said Michaels. "As a result, we are expanding the enforcement program to a national level to increase awareness of these dangers so that employers will more effectively prevent the release of highly hazardous chemicals."

OSHA's Safety and Health Topics Web page on Process Safety Management contains information on PSM for general industry and construction, guidance on how to develop a process hazard analysis, and OSHA requirements for preventing the release of hazardous chemicals.

Wednesday, December 14, 2011

Small Businesses not to worry about GHS changes - Think Again!

OSHA's new Hazcom regulation to align with GHS is likely only a few weeks away. As this final rule approaches there are many small organizations that think they are too "small" to worry about the upcoming changes. Every business, construction site, healthcare facility, K-12, warehouse, office, and college campus, etc., in the United States that exposes workers to chemical hazards needs to pay attention to OSHA’s alignment with GHS. Alignment with these new regulations has much to do with your safety and the employees' safety. Some workplaces think they are either too small to be caught, or so large that they can afford any fines assessed.

Staying on top of relevant safety standards is simply the right thing to do, and for employers it is the minimum responsibility they have to their workers.

When it comes to GHS, staying compliant will not be terribly difficult. The most difficult part will probably be the hazard communication safety training; however, the benefits (a safer workforce) will greatly outweigh the costs.

The risk of not aligning with the new HCS is much greater than the cost of complying. As an example of the dangers of chemicals we look no further than an ammonia leak at a workplace in Rosemount, MN reported by SafetyNewsAlert:

A recent fatality serves as a reminder of the dangers present at facilities that use, store or transfer anhydrous ammonia.

One truck driver was killed and another was critically injured when ammonia leaked during a loading operation at CF Industries’ Pine Bend Terminal in Rosemount, MN.

The leak immediately killed 31-year-old Robert Shue and critically injured 56-year-old Roy Taylor.

Two law enforcement officers are being credited with saving Taylor’s life by pulling him 35 feet away from the location of the leak.

The ammonia leaked when a connection between a supply tank and a truck failed.

A driver had noticed a problem with the connection and tried to fix it. The connection broke, causing the leak. The leak was quickly cut off, but the ammonia escaped quickly, creating a toxic cloud that proved fatal.

The Pioneer Press reports that CF Industries has had no safety violations at any of its facilities in the last five years.

The Minnesota Department of Labor and Industry named one of CF’s locations a Star work site. The program recognizes companies for putting systems in place to identify and eliminate safety hazards.

Friday, December 9, 2011

Facts on Aligning the Hazard Communication Standard to the GHS

  • Proposal to modify the HCS to align with the GHS: OSHA is proposing to modify the current Hazard Communication Standard (HCS) to align with the provisions of the Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The HCS requires that chemical manufacturers and importers evaluate the chemicals they produce or import and provide hazard information to downstream employers and workers by putting labels on containers and preparing safety data sheets. Under the current HCS all employers must have a hazard communication program for exposed workers, including container labels, safety data sheets, and training.

  • GHS: The primary benefit of the GHS is to increase the quality and consistency of information provided to workers, employers and chemical users by adopting a standardized approach to hazard classification, labels and safety data. The GHS provides a single set of harmonized criteria for classifying chemicals according to their health and physical hazards and specifies hazard communication elements for labeling and safety data sheets. Under the GHS, labels would include signal words, pictograms, and hazard and precautionary statements and safety data sheets would have standardized format. This system was agreed on at an international level by governments, industry, and labor, and adopted by the UN in 2002 with a goal of 2008 for implementation.

  • Why modify the HCS: OSHA's proposal to adopt the GHS will not change the framework and scope of the current HCS but will help ensure improved quality and more consistency in the classification and labeling of all chemicals. This will enhance worker comprehension, resulting in appropriate handling and use of chemicals. The harmonized format of the safety data sheets will enable workers to access the information more efficiently. In addition, currently multiple labels and safety data sheets must often be developed for the same product when shipped to different countries. This creates a major compliance burden for chemical manufacturers and those involved in international trade, increasing the cost of providing hazard information. The adoption of GHS will minimize this burden.

  • Major proposed changes to the HCS:
    • Hazard classification: Provides specific criteria for classification of health and physical hazards, as well as classification of mixtures.
    • Labels: Chemical manufacturers and importers will be required to provide a label that includes a harmonized signal word, pictogram, and hazard statement for each hazard class and category. Precautionary statements must also be provided.
    • Safety Data Sheets: Will now have a specified 16-section format.
    • Information and training: The GHS does not address training. However, the proposed HCS will require that employees are trained within two years of the publication of the final rule to facilitate recognition and understanding of the new labels and safety data sheets.

  • Number of workers affected by the proposed HCS: Over 40 million workers

  • Affected Industries: Over 5 million workplaces

  • Impact of the proposed HCS: The costs associated with compliance with the proposed revisions to the HCS would generally be incurred by the affected industries as one-time transition costs over the phase-in period of three years. The cost includes reclassification of all chemicals, additional training of workers on the new label elements and SDS format, and familiarization of the modified HCS standard. Aside from the transition costs, the ongoing annual compliance costs associated with the proposed revisions to the HCS generally are expected to be the same or lower than under the existing standard.

  • Annualized compliance costs of the proposed standard: Approximately $97 million per year
    • OSHA estimates that the cost of classifying chemical hazards in accordance with the GHS criteria and revising safety data sheets and labels to meet new format and content requirements would be $11 million a year on an annualized basis for an estimated 90,000 establishments.
    • OSHA estimates that training for workers to become familiar with new warning symbols and the revised safety data sheet format under GHS would cost $44 million a year on an annualized basis for all affected workplaces.
    • Although not a requirement in the proposed rule, OSHA estimated annualized costs of $42 million a year for management to become familiar with the new GHS system and to engage in other management-related activities as may be necessary for industry's adoption of GHS

  • Benefits of the proposed standard: OSHA estimates that the revised standard will prevent 43 fatalities and 585 injuries and illnesses annually. The annualized monetized benefits associated with these reductions in safety and health risks are an estimated $266 million a year. OSHA estimates additional annualized benefits of $585 million a year from cost reductions and productivity improvements attributable to the proposed revisions. In total, OSHA estimates that the proposed revisions will provide net annualized savings of $754 million a year.

  • Comment Period: OSHA is allowing 90 days for the comment period. Interested parties can submit their comments by mail, facsimile or electronically. OSHA welcomes questions on all relevant issues of this proposed rulemaking including hazard classification, economic impacts and specifically impacts on small businesses, other affected standards, outreach, and finally alternative approaches.

  • Public Hearings: OSHA will be conducting informal public hearings and will publish a separate federal register notice on the date and location(s) for the hearings.

  • Major Stakeholders: Comments for the ANPR were received from a broad range of stakeholders. The comments were received primarily from chemical manufacturers, users and trade associations. Other interested parties are government (federal, state and local), emergency responders, transporters, unions, consultants, individuals, and others.

  • Future updates of the HCS: The GHS is updated as necessary to reflect new technology and scientific developments, or provide explanatory text. This proposed rule is based on Revision 3, published in 2009. OSHA anticipates that future updates of the HCS will be necessary and can be done through various rulemaking options:
    • Technical updates: for minor terminology changes
    • Direct Final Rules: for text clarification
    • Notice and Comment rulemaking: for more substantive or controversial updates such as additional or changes in health or safety hazard classes or categories

  • Other U.S. Agencies: The Department of Transportation (DOT), Environmental Protection Agency (EPA), and the Consumer Product Safety Commission (CPSC) were actively involved in developing the GHS. DOT has already modified their requirements for classification and labeling to make it consistent with international UN transport requirements and the GHS.

Tuesday, November 29, 2011

Description of a retailer's responsibilities regarding Material Safety Data Sheets (MSDS) under the hcs.

1. "What are the requirements of a retailer in maintenance and employee training of these sheets?"

In the February 9, 1994, Hazard Communication Final Rule paragraph (g)(7), (enclosed) OSHA clarifies the different responsibilities of wholesale and retail distributors with respect to commercial customers and employers purchasing in retail quantities. According to paragraph (g)(7)(iii) of the HCS, retail distributors selling hazardous chemicals to employers having a commercial account shall provide a material safety data sheet to such employers upon request and shall post a sign or otherwise inform them that a material safety data sheet is available.

For employees who may be exposed to hazardous chemicals in the workplace, paragraph (h) specifies the information and training requirements. For example, employers are required to inform employees of the location and availability of MSDSs.

2. "Assuming these are to be used in helping the consumer in case of an emergency. What happens after the retailer's regular business hours or when the manufacturer's facility is closed on the weekend."

It is the manufacturer and not the retailer that is responsible for maintaining an emergency number. The emergency number is used when additional product information is required during a hazardous chemical emergency. Hours of emergency line operation must be decided individually by each chemical manufacturer.

3. "Seems to me that trying to utilize and maintain these sheets at the retail level is a futile waste of valuable time. This also seems to create a position for some bureaucrat."

The requirement to provide material safety data sheets (MSDSs) to employers who buy their hazardous chemicals from a retail outlet and who request an MSDS for the purchased chemical is a requirement of the standard for these types of distributors if they are transmitting hazardous chemicals to downstream employers. As mentioned in the preamble to the 1987 final rule on Hazard Communication (FR Vol. 52, No. 163, page 31866): "retail distributors will have to assess their product lines, and whether or not they have commercial accounts, to determine whether they must comply with this provision."

The preamble to the HCS quoted a comment obtained during the notice and comment period. This comment, reiterated below, states OSHA's position that this provision is not burdensome.

"If OSHA does require commercial customers to get information through a retail outlet, I do not foresee any problems with that arrangement. The manufacturers could supply us with the information, as they are required to now for shipments to manufacturing plants, and we could make it available to customers upon request. We would merely keep the sheets in a file drawer and post a sign informing customers of their availability. We have less than 100 chemicals that would probably be affected, and keeping information on those would require at most, one file drawer. It would not be burdensome."

4. "I believe a better approach would be to create a system similar to the poison control center where the consumer can call an 800 number for an immediate response. This would allow the consumer to receive accurate information 24 hours a day. (Employees have a difficult time understanding these sheets)."

The HCS does not apply to the general public. Normally, MSDS's are not required to be transmitted to retail consumers unless they request one. The purpose of OSHA's HCS is to reduce chemical source illnesses and injuries through acquisition of hazard information. This can only occur if employees receive the information on the hazardous substances they work with in usable form through appropriate training, which will enhance their ability to understand the sheets. In effect, employees at a worksite with hazardous chemicals must be trained on the hazardous materials they are exposed to, how to obtain and use information on labels and material safety data sheets (MSDSs), and how to follow appropriate work practices.

Thursday, November 17, 2011

OSHA Letter of Interpretation: Hazcom intended to preempt state regulatory actions, but not tort claims.

The Hazard Communication Standard

The Hazard Communication standard was given because millions of American workers work with and are potentially exposed to hazardous chemicals, but many employers and employees know little or nothing about the often serious hazards of those chemicals. 59 Fed. Reg. 6126 (Feb. 9, 1994); 48 Fed. Reg. 53280, 53282-83 (Nov. 25, 1983). Chemical exposure may cause or contribute to many serious health effects such as heart ailments, central nervous system, kidney and lung damage, sterility, cancer, burns, and rashes. Id. Some chemicals also have the potential to cause fires, explosions and other serious accidents. Id. There are an estimated 650,000 existing chemical products, and many new ones introduced annually. Id.

The standard establishes uniform requirements to make sure that the hazards of all chemicals produced or used in U.S. workplaces are evaluated, and that this hazard information is transmitted to affected employers and exposed employees. 29 CFR § 1910.1200(a)(l). It sets up a "downstream flow of information" requirement, whereby manufacturers of chemicals have the primary responsibility for generating and disseminating information about chemical hazards. 29 C.F.R. §1910.1200(b)(l). Employers using the chemicals must obtain this information and inform their employees of the hazards and the identities of workplace chemicals to which they are exposed. 29 C.F.R. §1910.1200(b)(2).

In general, responsibilities are allocated as follows: Chemical manufacturers and importers must determine the hazards of each product they produce or import. Then they, as well as intermediate distributors of the chemicals, must communicate the hazard information and associated protective measures downstream to customers through labels (which include appropriate hazard warnings) and material safety data sheets (MSDSs). 3

In addition to these workplace protections, the standard had a secondary purpose: it sought to "reduce the burden on interstate commerce produced by conflicting state and local regulations" relating to the identification of hazardous chemicals. 48 Fed. Reg. at 53334; id. at 53283 (noting "recent proliferation of state and local right-to-know laws," which subjected chemical manufacturers to "numerous different and potentially conflicting regulations"); id. at 53284 (explaining that twelve states and six local governments had enacted differing hazard communication laws and thirteen other states and three local governments were considering such enactments); id. ("The potential for conflicting or cumulatively burdensome State and local laws has been acknowledged by industry representatives to be immense").

The standard thus includes a preemption provision, §1910.1200(a)(2), which provides in pertinent part
[t]his occupational safety and health standard [the Hazcom standard] is intended to address comprehensively the issue of evaluating the potential hazards of chemicals, and communicating information concerning hazards and protective measures to employees, and to preempt any legal requirements of a state, or political subdivision of a state, pertaining to this subject.

As explained more fully below, these "legal requirements of a state ..." were limited to positive enactments of laws and regulations, and do not include the duties and remedies recognized only by tort law.

Analysis: Preemptive Effect of §1910.1200(a)(2)

A typical failure to warn tort claim involves an allegation that a manufacturer (or employer) failed to provide adequate warning about the risk of harm associated with a chemical or other product or its use. All reported decisions we have found have held that §1910.1200(a)(2) does not preempt state tort claims alleging inadequate warnings of chemical hazards. See, e.g., In re Welding Fume Prods. Liab. Litig., 364 F.Supp.2d 669, 693 (N.D.Ohio 2005); Anderson v. Airco, Inc., 2003 U.S. Dist. LEXIS 13765,2003 WL 21842085 (D.De1. July 28, 2003) York v. Union Carbide Corp., 586 N.E.2d 861, 866 (Ind. Ct. App. 1992); Fullen v. Philips Electronics North Am. Corp., 266 F.Supp.2d 471, 476 (N.D. W.Va. 2002). However, your letter referred to two unpublished cases that held that the standard preempts such state tort law claims. Bass v. Air Products, 2006 WL 1419375 (N.J. Super. A.D. 2006); Vettrus v. Ashland, No. C9-04-817 (Minn. 3d Jud. Dist. 2008).

It is the Department of Labor's position that the latter cases were decided incorrectly, and that section 1910.1200(a)(2) does not preempt a failure-to-warn state tort claim. The decisions finding preemption are inconsistent with the savings clause discussed above, because OSHA does not have the authority to broadly preempt any state tort law claim. Cf Wyeth v. Levine, 129 S. Ct. at 1201 (FDA labeling requirement not necessarily preemptive of state tort failure to warn claim where Congress did not authorize the FDA to directly preempt state tort law). OSHA therefore intended the provision to preempt only state and local laws and regulations, i.e., positive enactments, and the use of the word "requirements" is properly understood as limited to such law. This was also the common understanding of the word when the standard was announced in 1983. The regulatory history makes this limitation clear. Moreover, there does not appear to be a direct conflict between the requirements of the Hazcom standard, i. e., adequate warning, and the duty underlying a failure to warn tort claim.4

First, although the meaning or scope of the regulatory term "legal requirements" is on its face ambiguous, its intended meaning in the hazcom standard is clearly explained in the preamble. There, the Secretary describes the burden on interstate commerce arising from the recent proliferation of state and local legislative enactments that contain differing and conflicting hazard reporting requirements. 48 Fed. Reg. at 53283-84. Nowhere in that discussion is there any complaint regarding the availability of state tort remedies. Id. This is not surprising in light of the savings clause making clear that the Secretary has no authority to "enlarge or diminish or affect in any other manner the common law . . . duties . . . of employers." 29 U.S.C. 653(b)(4). Indeed, one commenter, apparently recognizing the limits of OSHA's authority to provide uniformity, stated:

While we recognize statutory limitations in this area, we believe every effort should be made to see that such a Federal standard preempts State and local efforts.
48 Fed. Reg. at 53283-84 (emphasis added). Had the Secretary believed the savings clause was inapplicable or superseded, she would have provided an explanation. But there is none.5

Moreover, both the Hazcom standard and its preamble state that in order for a state to regulate in this area, it must submit "its intended requirements" to OSHA for approval under section 18 of the OSH Act, 29 USC §667. 48 Fed. Reg. at 53284,53322-23; 29 C.F.R. §1910.1200(a)(2) (no state may adopt or enforce "any requirement" except through state plan approval process). And section 18 governs only positive enactments of state law. Gade, 505 U.S. 103-04 ("If a State wishes to regulate an issue of worker safety for which a federal standard is in effect, its only option is to obtain the prior approval of the Secretary of Labor."). State laws submitted under section 18 must be part of a state plan meeting requirements that are wholly inapposite to tort remedies. Thus, by requiring section 18 approval, Congress made clear that it did not intend for the OSH Act's preemptive effect to extend to the case-by-case judicial development of the common law, and by referring to that provision, OSHA made clear that it understood that the preemption provision in the Hazcom standard could not preempt such common law.

We note that nine years after OSHA announced the Hazcom Standard, in Cipollone v. Liggett Croup, Inc., 505 U.S. 504 (1992), a plurality of the Supreme Court ruled that the statutory term "requirement or prohibition" in a broad preemption provision in a different statute precluded certain common law claims. However, that ruling sheds no light on the Secretary's intent in the Hazcom standard, nor could it enlarge the Secretary's statutory authority by allowing her to "diminish . . . the common law rights" of parties asserting a right in tort. In any event, later Supreme Court cases clarify that the scope of the term "requirement" in a preemption provision depends on its particular statutory context, use and intent. For example, in Medtronic Inc. v. Lohr, 518 U.S. 470 (1996), the Court stated that the term "was not intended to pre-empt most, let alone all, general common-law duties enforced by damages actions." §18 U.S. at 491. Among other reasons, the Court explained that in the statute at issue there, Congress (like OSHA here) "was primarily concerned with the problem of specific, conflicting state statutes and regulations rather than the general duties enforced by common-law actions." Id. Cf: Bates v. Dow Agrosciences LLC, 544 U.S. 431,443 (2005) (observing that the term "requirements" in a preemption clause does not "invariably" extend beyond positive enactments, such as statutes and regulations, and embrace common-law duties.6

The above analysis reveals that neither the OSH Act nor the Hazcom standard expressly preempts state tort actions. Nor do they contain any indication of Congressional or agency intent to preempt such actions. This conclusion does not mean that a state tort suit could never be preempted on conflict grounds. If the Hazcom standard requires (or prohibits) a specific action that must be specifically performed (or avoided), a state could not make that action (or omission) a tort. Our review of the Hazcom standard and a typical failure to warn claim, however, reveals no such conflict. The underlying duty (allegedly breached) of such a tort claim - the provision of an adequate hazard warning - is not inconsistent with the Hazcom standard. See In re Welding Fume Products Litigation, 364 F. Supp. 2d 669, 694 (N.D. Ohio 2005) (finding "no substantial, clear, or direct conflict between the HazCom Standard and the common law duty to warn invoked by plaintiffs"); Wyeth, 129 S.Ct. at 1197-1199 (no conflict between FDA's label requirements and the common law duty to warn at issue in that case). Therefore, it is the Department of Labor's position that the Hazcom standard, as a general matter, does not preempt state tort failure to warn suits.

Friday, September 30, 2011

Globally Harmonized System in 2012?

OSHA published a proposed rulemaking on September 30, 2009 to align OSHA's Hazard Communication standard (HCS) with the GHS. The primary benefit of the GHS is to increase the quality and consistency of information provided to workers, employers and chemical users by adopting a standardized approach to hazard classification, labels and safety data. The GHS provides a single set of harmonized criteria for classifying chemicals according to their health and physical hazards and specifies hazard communication elements for labeling and safety data sheets. Under the GHS, labels would include signal words, pictograms, and hazard and precautionary statements. Additionally, all safety data sheets would have standardized format. This system was agreed on at an international level by governments, industry, and labor, and adopted by the UN in 2002 with a goal of 2008 for implementation.

The major proposed changes to the Hazard Communication Standard (HCS) are the following:

  • Hazard classification: Provides specific criteria for classification of health and physical hazards, as well as classification of mixtures.
  • Labels: Chemical manufacturers and importers will be required to provide a label that includes a harmonized signal word, pictogram, and hazard statement for each hazard class and category. Precautionary statements must also be provided.
  • Safety Data Sheets: Will now have a specified 16-section format.
  • Information and training: The GHS does not address training. However, the proposed HCS will require that workers are trained within two years of the publication of the final rule to facilitate recognition and understanding of the new labels and safety data sheets.
This Final Rule is expected to be in full effect in early 2012. You may visit National Safety Compliance's web site to preorder your Safety Data Sheet Binders and Accessories.

Thursday, September 1, 2011

When is the chemical manufacturer required to distribute MSDSs?

We are frequently asked if we can provide the Material Safety Data Sheet(s) for chemicals. The manufacturer of the hazardous chemical is always the best source for the MSDS. So when is the manufacturer required to distribute the MSDS?

Hazard information must be transmitted on Material Safety Data Sheets (MSDSs) must be distributed to the customer at the time of first shipment of the product. The Hazard Communication Standard also requires that MSDSs be updated by the chemical manufacturer or importer within three months of learning of "new or significant information" regarding the chemical's hazard potential.

Further explanation of this issue is given in a Letter of Interpretation on June 24, 1994 written to Congressman McHale explaining:

OSHA's Hazard Communication Standard (29 CFR 1910.1200) is designed to ensure that employees are adequately informed of hazards associated with exposure to hazardous chemicals used in the workplace. This standard requires chemical manufacturers and importers to evaluate the hazard potential of chemical products that they manufacture or import, and to disseminate hazard information to downstream distributors and users of those products. Hazard information must be transmitted on Material Safety Data Sheets (MSDSs) that must be distributed to the customer at the time of first shipment of the product. The Hazard Communication Standard also requires that MSDSs be updated by the chemical manufacturer or importer within three months of learning of "new or significant information" regarding the chemical's hazard potential. Therefore, chemical manufacturers and importers have a positive requirement to keep informed of developing hazard information relative to the products that they produce, and to transmit new information with the next shipment of a product made after the MSDS has been updated. The standard also contains specific criteria for defining hazards and for making the hazard determination.

The Hazard Communication Standard requires all employers (including those in the health care industry) to develop a written hazard communication program that ensures that employees are formally trained in the hazards associated with exposure to chemical agents, and in the methods and procedures designed to protect them from those hazards. It is the employer's obligation under the standard to incorporate any new hazard information transmitted on MSDSs into the hazard communication program.


Sunday, February 6, 2011

Electronic MSDS in the Workplace

As computers have become common in most workplaces, there have been several companies that have introduced the service of providing MSDSs electronically. OSHA has addressed the following questions about the use of such systems.
  1. If an employer maintains an electronic system as the primary means of providing MSDSs in the workplace, is it acceptable for employees to obtain hazard information verbally over the phone if the primary system is temporarily inoperable? Is it acceptable for employees to obtain hazard information over the phone in the case of other kinds of emergencies?

    In the event of a power outage, equipment failure, or other "emergency" involving a foreseeable failure of the primary electronic system, OSHA would consider telephone transmittal of hazard information to be an adequate back-up as long as the MSDS is delivered to the site as soon as possible. In emergencies other than failure of the primary electronic system, the MSDSs must be available and we would consider telephone transmittal of hazard information supplemental to the data sheets.


  2. Is it acceptable for an employer to rely on receiving verbal hazard information over the phone and then receive the actual MSDS as soon as possible, but no longer than two hours later?

    No. Ready accessibility to MSDSs means that the employee may read and refer to the information. OSHA interprets "readily accessible" to mean immediate access to MSDSs. The employer has flexibility to determine how this will be accomplished and may provide the data sheets via paper copies, computer terminal access, or some other means of providing readable copy on-site. The only situation in which it would be acceptable to supply a readable copy of the MSDS two hours after the request is made would be in situations where the primary system has failed and two hours describes the shortest time frame possible for delivering the MSDS.


  3. Is an auxiliary power system acceptable to ensure that an MSDS is retrievable in case of a general power failure?

    Yes. An auxiliary power system would be acceptable to ensure that MSDSs are retrievable in the situation of a general power failure.


  4. What is the employer's responsibility to provide an MSDS in the event of a catastrophe such as an earthquake or fire?

    The Hazard Communication Standard applies to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency. A foreseeable emergency includes, but would not be limited to, equipment failure, rupture of containers, or failure of control equipment which could result in an uncontrolled release. This does not include fires or other catastrophic events. Laws such as the Emergency Planning and Community Right-to-Know Act provide an infrastructure at the state and local levels to plan for chemical emergencies and catastrophic events. The employer's obligation is to ensure that MSDSs are readily accessible during each work shift to employees when they are in their work areas.
OSHA makes it clear that employees must have "immediate access" to an MSDS sheet, especially in the case of an emergency. This includes natural disasters and power outages. Therefore, if MSDS sheets are stored electronically, a back up system must also be utilized.

For more information about MSDS sheets or Hazard Communication, National Safety Compliance has developed an employee training program. For more information about this program, please visit the following link:

MSDS Hazard Communications Safety Training

Thursday, January 6, 2011

MSDS Training

This question was recently received by OSHA: Is it acceptable merely to distribute copies of MSDSs and consider that to be training? If not, what are the criteria for training?

Response: OSHA's Hazard Communication Standard (HCS) contains the required, minimum elements in an employee information and training program. See, 29 CFR 1910.1200(h). Employers must provide training on hazardous chemicals in an employee's work area when the employee receives his/her initial work assignment and whenever a new physical or health hazard is introduced into the employee's work area. The HCS training requirements are not satisfied by merely providing employees with copies of MSDSs.

Appendix A of the Compliance Directive for Hazard Communication, CPL 2-2.38D explicitly provides that "The training provisions of the HCS are not satisfied solely by giving employees the material safety data sheets to read. An employer's training program is to be a forum for explaining to employees, not only the hazards of the chemicals in their work area, but also how to use the information generated in the hazard communication program. This can be accomplished in many ways, and should include an opportunity for employees to ask questions to ensure that they understand the information presented to them. One of the most common methods of employee training include the use of training programs such as the Hazard Communications Safety Training Program offered by National Safety Compliance.