While the change should ease confusion in the long term, operators need to note the differences between OSHA and MSHA rules and make the necessary changes.
by Meredith A. Kapushion
The U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) issued a new Program Policy Letter (PPL) effective Aug. 13, 2013 that aligns MSHA’s Hazard Communication (HazCom) standard with the Occupational Safety and Health Administration (OSHA) Hazard Communication standard updated last year. 77 Fed.Reg. 17,574. The PPL clarifies that if a mine operator is compliant with OSHA’s HazCom standard (29 C.F.R. § 1910.1200), then the operator is also in compliance with MSHA’s HazCom standards (30 C.F.R. Part 47).
Operators should be mindful, however, that the two sets of standards are not exactly parallel standards. MSHA’s PPL provides more detailed guidance on exactly which MSHA and OSHA standards align. [See MSHA Program Policy Letter No. P13-IV-1 (8/13/13) available at http://www.msha.gov/regs/complian/PILS/2013/PIL13-IV-01.pdf.] The PPL advises that “some aspects of the hazard classification may not be compatible with other existing MSHA standards, particularly those standards that define and address safety of physical hazards. Mine operators must comply with all existing MSHA standards concerning physical hazards as they are defined in those standards.” In other words, do not assume that an MSHA standard no longer applies simply because it has no OSHA counterpart. To the extent MSHA imposes additional obligations above OSHA’s requirements, operators must comply with the MSHA standards to ensure full compliance.
Under MSHA’s requirements in Part 47, operators must develop, implement, and maintain a written HazCom program. They must identify chemicals, make a hazard determination, ensure that containers of hazardous chemicals have labels, have and make available a Safety Data Sheet (SDS, formerly Material Safety Data Sheet or MSDS) for each hazardous chemical used or produced at the mine. Operators must also instruct miners on the physical and health hazards of the chemicals in the miners’ work area, protective measures, and contents of the HazCom program.
OSHA’s HazCom standard sets a performance standard for communicating chemical hazards and information on labels and SDSs. In updating the standards, OSHA has aligned its HazCom program with the United Nations’ “Globally Harmonized System of Classification and Labeling of Chemicals” (GHS, also known as The Purple Book). The HazCom standard requires chemical manufacturers and importers to evaluate the 
hazards of the chemicals they produce or import, and communicate that information to their downstream consumers. Employers with hazardous chemicals in their workplaces must have appropriate labels and SDSs. The basic framework, scope, and exemptions under the HazCom program remain unchanged. OSHA has retained the requirement to include the International Agency for Research on Cancer (IARC) and the National Toxicology Program (NTP) classifications on SDSs and the requirement to include the American Conference of Government Industrial Hygienists Threshold Limit Values on the SDSs.
The major changes to the OSHA HazCom standards include hazard classification criteria for health and physical hazards, standardization of chemical labels, a specific format for SDSs, and new training requirements for workers. Employers have already been working to adopt the new requirements and meet the first deadline to train employees on the new label and SDS elements by Dec. 1, 2013. Training on label elements must include information on (1) the types of information the employee would expect to see on the new labels, including the product identifier (e.g., chemical name), signal word (“Danger” is used for the more severe hazards, and “Warning” is used for the less severe hazards), pictograms, hazard statements (i.e., the nature/degree of hazard), precautionary statements (i.e., recommended safety measures), and the contact information for the chemical manufacturer, distributor, or importer; (2) how an employee might use the labels in the workplace (e.g., storage, first aid); (3) a general understanding of how the elements work together on a label (e.g., multiple hazards and precautionary statements); (4) the format of the SDS; and (5) how the information on the label is related to the SDS. [See OSHA Fact Sheet available at https://www.osha.gov/Publications/OSHA3642.pdf.]
There has been some initial confusion over some of the new requirements. For example, the standard applies to combustible dust, but there is uncertainty because the rule does not define combustible dust. This is problematic for materials that may not be shipped in a non-airborne state, but may become subsequently airborne upon further processing or use. To provide guidance, OSHA issued an interpretive letter in March that acknowledges that this hazard warning must be included even when the shipped material is not immediately hazardous. OSHA would accept additional language with the hazard statement that clarifies that the hazard may occur with further processing, handling, or by other means. [See Letter from David Michaels, Assistant Secretary of Labor for Occupational Safety and Health (March 25, 2013), available at https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=28607.] OSHA’s Office of Chemical Hazards-Metals in the Directorate of Standards and Guidance also presented a webinar in July that addressed the topic. OSHA clarified that materials that present a combustible dust hazard must be appropriately labeled. The SDS must list the classification of the dust, use the word “warning,” and state that it “may form combustible dust concentrations in air.” However, pictograms and precautionary statements are not required. [See Robert Iafolla, “New Requirements for Safety Data Sheets, Combustible Dust Clarified by OSHA Official,” Occupational Safety and Health Reporter, vol. 43, No. 31, Aug. 1, 2013.]
Under the OSHA HazCom changes, chemical manufacturers, importers, distributors, and employers must be in compliance with the final rule by June 1, 2015, except that distributors are not prohibited from shipping containers without the new labels until Dec. 1, 2015. Employers must also update alternative workplace labeling and hazard communication programs as necessary and provide employee training for newly identified physical or health hazards by June 1, 2016. During the transition period from the old standard to the revised standard, parties may comply with either or both.
Although compliance with the new OSHA HazCom rules will require additional training, new labels, new SDSs, and changes to existing hazard criteria, the long-term impact should mean less confusion and greater compliance with the HazCom standards.
Meredith A. Kapushion is an associate in Jackson Kelly PLLC’s Denver office, where she is in the Occupational Safety and Health Practice Group. She can be reached at 303-390-0520 or via email at makapushion@jacksonkelly.com.