August 2012

International Regulatory Influences

GHS finally arrives in the U.S: Part 3

New Hazards in Hazcom 2012: Pyrophoric Gases, Simple Asphyxiants, Combustible Dust and Hazards Not Otherwise Classified

Although known as the “Globally Harmonized System” (GHS), the U.S. implementation of GHS (known as Hazcom 2012) contains four hazard classes not found in other implementations of GHS, such as the European Union’s CLP. These four hazard classes (along with many other differences) make it impossible to simply import a European Safety Data Sheet (SDS) or label and use it in the U.S. Furthermore, the fourth class, “hazards not otherwise classified” (HNOCs) will require that industry standards be monitored heavily and SDSs be updated frequently to ensure that they contain all relevant HNOCs. Failure to do so increases the risk that firms can face civil liabilities and
class-action lawsuits.

The first three new hazard classes are relatively straight forward. The first, Pyrophoric Gases, is defined as “a chemical in a gaseous state that will ignite spontaneously in air at a temperature of 130°F or below.”

The second, Simple Asphyxiants, are defined as “substances or mixtures that displace oxygen in the ambient atmosphere, and can thus cause oxygen deprivation in those who are exposed, leading to unconsciousness and death.”

Finally, Combustible Dust follows the U.S. Occupational Safety & Health Administration (OSHA)’s earlier Hazard Communication Guidance for Combustible Dusts. Each of the three classes has their own standardized hazard language that needs to appear on both SDSs and industrial labels.

The fourth class, “hazards not otherwise classified” (HNOC) is significantly different than the first three as it is a “catch-all” for a variety of different hazards. Hazcom 2012 defines an HNOC as: “Hazard not otherwise classified (HNOC) means an adverse physical or health effect identified through evaluation of scientific evidence during the classification process that does not meet the specified criteria for the physical or health hazard classes addressed in this section. This does not extend coverage to adverse physical and health effects for which there is a hazard class addressed in this section, but the effect either falls below the cut-off value/concentration limit of the hazard class or is under a GHS hazard category that has not been adopted by OSHA (e.g. acute toxicity Category 5).”

Fortunately there are no requirements to provide information on HNOCs on a product label (though companies are free to do so if they wish). They do, however, need to be clearly identified on Section Two of the SDS. Because there is no standardization of HNOCs, there is no standardized language that is needed when a HNOC is encountered.

The introduction of HNOCs was controversial since it is unclear exactly what companies should be looking for when identifying HNOCs. The Hazcom 2012 guidance document only lists one example of an HNOC—“static accumulators.” The open-endedness of the criteria has been highly criticized, with the Coalition for Workplace Safety calling the category “open-ended, and therefore subject to entirely too broad and discretionary an interpretation, making it unworkable.” OSHA watcher Marc Freedman has also been highly critical of the concept of HNOCs:

“Producers of covered chemicals and users of these chemicals will now have to divine what other hazards OSHA will expect them to cover in their safety data sheets and training that are beyond the specific and objectively identified hazards already included in the regulation. This uncertainty means they will never know when they have satisfied the requirements of this regulation. This new requirement contradicts the precise hazard categories and specific criteria defining these categories around which the regulation is

In Nexreg’s view, this criticism is valid. Companies will now not only be required to follow what is in the Hazcom 2012 rules, but also determine all possible HNOCs and ensure that their products do not meet any common sense definition of those hazards. It is not sufficient to just describe possible hazards within the SDS, an SDS author needs to ensure that those hazards are described and listed in Section Two of the SDS.

At Nexreg, we are taking the following steps to deal with the issue of HNOCs, and are advising our clients and colleagues to do the same:

1. Once a year, survey SDSs from a variety of industries to see what hazards have been commonly accepted by industry as being suitable HNOCs.

2. For each of those HNOCs, develop a set of rules to determine whether the product meets a reasonable definition of that HNOC.

3. For each product authored, classify the product on both explicit hazard classes from Hazcom 2012 as well as our compiled list of HNOCs.

We believe that failure to take these steps could lead to increased liability for firms. It is easy to envision a scenario where a company is taken to court by a user for failure to warn about a potential HNOC when other similar chemical products contained such a warning. This is why we believe it is important to ensure that your company’s list of HNOCs are in-line with industry standards. Part 2 appeared in the July 2012 issue of ST&M.