You and the Law
OSHA on the Move
New Chemical Hazard Communication Standard
On May 26, 2012, employers using chemicals in their workplace—and now manufacturers and importers—face a compliance performance standard. The Global Harmonized System (GHS) requires chemical manufacturers and importers to evaluate the hazards of the chemicals they produce or import; and all employers need a hazard-communication program to protect workers exposed to hazardous chemicals.
The first requirement on manufacturers and importers, a broad new enforcement expansion for OSHA, likely will engender multiple court challenges. At least, this new standard—designed to address inconsistencies in hazard classification and communications—will require considerable clarifying, interpretive guidance.
Many of OSHA’s existing requirements for basic hazard communication, such as defining management responsibility for a program, developing a list of hazardous chemicals, labeling of hazardous chemical containers and management of safety datasheets, remain the same. Material safety data sheets have become simply “safety data sheets.” However, the criteria for classifying physical and health hazards now becomes an extended 16-category classification system of physical hazard categories, starting with explosive properties and ending with metal corrosive properties. In addition, health hazards and environmental-hazard categories must be assessed. New labels for containers will include universal hazard symbols. Check out the meaning of the exclamation point symbol. And, the skull-and-crossbones sign returns.
Employers have until December 1, 2013, to train employees on the new label elements and Safety Data Sheet (SDS) format. Additional training for any newly identified physical or health hazards will need to be provided affected employees by June 1, 2016. Employees will require training under the new “right to understand” concept or threshold, which will compel considerable clarification.
OSHA Average Penalties Double for “Serious” Citations
Average penalties for OSHA “serious” citations have climbed from $1053 to $2133. And, the “bad faith” penalty discount factor now can add a 20-percent penalty if the OSHA compliance officer, for some reason, attributes bad faith or poor faith to the employer.
How to Get Removed from OSHA’s Severe Violator List
OSHA has long-documented how employers with cited fatalities or certain national Emphasis Program amputation hazards or willful citations wind up on its severe violator enforcement program (SVEP) list. Now it’s providing instructions on how to be removed from the list. Companies are eligible for removal 3 years from the date of final disposition of the SVEP inspection citation items, when the designated employer:
• Has abated all SVEP-related hazards affirmed as violations;
• Paid all final penalties;
• Has abided by all settlement provisions; and
• Has not received any additional citations related to the hazards identified in the SVEP inspection at the initial cited workplace establishment or any related establishment.
OSHA states that discretionary removal authority rests with the OSHA regional administrator or his designee. Removal from the list requires an OSHA followup inspection be held at the cited workplace before removal is achieved.
There are potentially two additional removal methods for employers not mentioned in OSHA’s guidance document:
• Appeal and obtain dismissal or vacating of the SVEP citations;• Negotiate list removal status earlier than the 3-year eligibility date, through a settlement agreement. MF
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