OSHA releases Hazard Communication Standard inspection procedures.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has released a new Directive outlining the changes in enforcement caused by the modification of the Hazard Communication Standard (HCS 2012) to harmonize with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals (GHS). The new Directive, titled Inspection Procedures for the Hazard Communication Standard (HCS 2012), describes how to determine if a violation has occurred under the revised standard as well as how it will be enforced both during its transition period and after full implementation.

The Inspection Procedures note that HCS 2012 is based on GHS Revision 3 (2009), not the more recent Revisions 4 or 5 issued by the UN in 2011 and 2013, respectively. The Directive notes that using a more recent version of GHS may result in noncompliance with HCS 2012 “if it contradicts or casts doubt on OSHA required information.” Notably, OSHA requires that precautionary and hazard statements incorporated from GHS be changed to mandatory, e.g., “should” must be replaced with “shall.”

The Directive provides significant discussion on hazard classification under the revised standard. Classification must be based on criteria specific to each hazard class, and evaluations must “consider all available data on the hazards.” Other considerations include quality and quantity of data and positive and negative results in a single weight-of-evidence determination. Detailed evaluation procedures are included in the Directive’s appendices. In terms of inspection guidelines, the Directive notes that “[t]he adequacy of a company’s hazard classification should be assessed primarily by examining the outcome of that classification.”

The HCS 2012 labeling and SDS requirements went into effect on June 1, 2015 (except for distributors, for whom labeling requirements do not apply until December 1, 2015). However, where a company has “exercised ‘reasonable diligence’ and ‘good faith’ to obtain HCS 2012-compliant SDSs from upstream suppliers but have not received them, they will be allowed limited continued use of HCS 1994-compliant MSDSs and labels.”

Canada imposes new reporting requirements for nanoscale substances.

Canada’s Minister of the Environment is requiring manufacturers and importers of certain nanoscale substances to report information for “the development of a list of nanomaterials in commerce in Canada and subsequent prioritization activities for these substances, which may include risk assessment and risk management activities.”

A notice published in the Canada Gazette on July 25 lists 206 substances by CAS number. A listed substance is reportable if it “has a size of between 1 and 100 nanometres in at least one external dimension, or internal or surface structure.” The Minister of Environment intends to use the reported data to assess whether the listed substances “are toxic or are capable of becoming toxic,” or to assess whether and how to control the substances.

The reporting requirements apply to any person who manufactured or imported more than 100 kg of a listed nanoscale substance in calendar year 2014, including imports of substances in mixtures and products, at any concentration. However, the notice does not apply to listed nanoscale substances that are in transit through Canada, are naturally occurring, were incidentally produced, or are covered by various other laws, such as the Fertilizers Act or Export and Import of Hazardous Waste and Hazardous Recyclable Material Regulations.

Reportable information includes total quantities manufactured or imported, end uses (commercial, consumer, or use by children under 14 years of age) and studies or data on physical-chemical properties, bioaccumulation, persistence, toxicity, metabolism, degradation, and release or disposal from the final mixture or product. The reporting deadline is February 23, 2016.

EPA issues new electronic reporting rule for TSCA section 5.

Today, EPA released a pre-publication version of a new rule for electronic reporting under section 5 of the Toxic Substances Control Act (TSCA). The action, which comes in the form of a Direct Final Rule, amends the regulations governing the electronic submission of premanufacture notices (PMNs), other TSCA § 5 notices, and related documents to EPA. The rule provides for various new procedures and requirements for registration, reporting and submission, including new ways to access and complete the electronic-PMNs (e-PMNs), changes to the registration process for the Central Data Exchange (CDX), and requiring all “bona fide intents to manufacture” notices to be submitted electronically. The Agency’s intention in passing this rule is “to further streamline and reduce the administrative costs and burdens of TSCA section 5 notifications for both industry and the EPA.”

The Agency previously issued a Final Rule in January 2010 requiring the use of e-PMN reporting software for the submission of PMNs, other TSCA § 5 notices, and related documents through CDX. The new rule mandates the use of a new version of the e-PMN software, which is cloud-based. Firewall and file submission size limitations from the old version of the software have been eliminated.

Other minor changes to the regulations include:

  • Corrections of regulatory cross- references in 40 CFR parts 720 and 721;
  • Standardizes use of “manufacture” and similar language in parts 720, 721, and 725; and
  • Specifies electronic reporting procedures for the notification of new manufacturing sites pursuant to 40 CFR 723.50(j)(6)(ii).

After this rule, the only submissions related to TSCA § 5 that cannot be handled via e-PMN are:

  • Certain notices, like polymer exemption annual reports;
  • Certain support documents, including § 5(e) consent orders;
  • Certain communications, such as pre-notice communications and TSCA Inventory correspondence.

The Agency “may consider offering electronic reporting of these and other submissions in the future.”

The rule is scheduled to be published on Monday, July 20, and will become effective 180 days thereafter, unless EPA receives adverse comment within 30 days of the rule’s publication date. EPA will begin accepting submissions via the new e-PMN system beginning 45 days after the rule’s publication.

Senate leaders urged to consider competing TSCA reform bills.

Since our last update, U.S. lawmakers and other stakeholders have kept busy with competing legislation to reform the Toxic Substance Control Act (TSCA), with the hope of bringing the issue to the Senate floor for debate before the August Congressional recess. The TSCA Modernization Act of 2015 (H.R. 2567) passed the House by a vote of 398-1 on June 23, while the Udall-Vitter bill (S. 697), which was approved by the Senate Environment and Public Works Committee in April, continues to await scheduling for a floor vote.

Last week, Democratic supporters of the bipartisan Udall-Vitter bill urged Senate leaders to bring the bill to a floor vote “as soon as possible.” In a letter addressed to Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Harry Reid (D-NV), thirteen senators lauded S. 697 as “stronger and more comprehensive” than the House bill. The lawmakers criticized the House bill for creating a “virtually unlimited pathway for chemicals favored for review by industry.” The Democrats also took issue with the House bill for failing to overhaul the new chemical review program, provide for an independent funding mechanism, limit animal testing, or mandate EPA to review Confidential Business Information (CBI) claims.

A vocal critic of S. 697, Sen. Barbara Boxer (D-CA) joined a group of environmental and public health organizations in lobbying for adoption of the more limited House bill, which she called “the best approach for meaningful TSCA reform.” Led by the Safer Chemicals, Healthy Families coalition, 57 advocacy groups sent a letter [PDF] advocating the House bill as “more appropriate to use as the vehicle for changes as the process moves forward.” The coalition stressed that if the Senate proceeds with S. 697, then the bill’s “primarily failings” – including provisions regarding state preemption and the “low-priority loophole” – must be addressed.