Retaining old safety sheets for legacy chemicals

January 31, 2013

Mr. Joel Gregier

Lion Technology Inc.

[Recipient address omitted]

Dear Mr. Gregier:

Thank you for your September 19, 2012, letter to the Occupational Safety and Health Administration (OSHA). Your letter was referred to OSHA's Directorate of Enforcement Programs for a response to your specific question regarding the revised Hazard Communication standard (HCS 2012), 29 CFR 1910.1200. This letter constitutes OSHA's interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence. Your paraphrased question and our response are below.

Question 1: The HCS 2012 requires manufacturers, importers, distributors and employers to be in compliance with the revised provisions by June 1, 2015. This includes having Safety Data Sheets (SDSs) instead of Material Safety Data Sheets (MSDSs). Sometimes employers have products from manufacturers or importers who have gone out of business. Do employers need to classify these hazardous chemicals and create an SDS for these products?

Response: The responsibilities of the employer have not changed under the HCS 2012. Under section 1910.1200(g)(1) and (8), employers must have and maintain SDSs and make them available to their employees. Under paragraph (g)(1), chemical manufacturers and importers must develop or obtain SDSs for the products they produce or import. In the scenario you raise where the manufacturer has gone out of business, the employer's responsibility is to maintain the MSDS for that product, not to create a new SDS. OSHA will not cite companies for maintaining MSDSs when these products were received prior to June 1, 2015. However, OSHA still requires employers to maintain the most recently received version of the MSDS or SDS. Therefore, when an SDS is received, it must replace the MSDS for the corresponding hazardous chemical. Also, when more current revisions of the MSDS or SDS are received, the employer must replace the older versions of the MSDS or SDS.

Employers may contact manufacturers or distributors of products they have previously ordered to request new SDSs, and under section 1910.1200(g)(6)(iv), the SDSs must be provided. However, the HCS 2012 does not require employers to contact the manufacturers, importers, or distributors for SDSs for products they have not recently received. An employer that is maintaining an MSDS for a product not recently received would be considered to be compliant with the HCS 2012. Be aware that any product received on or after June 1, 2015, must be shipped with an SDS, and when a new SDS is received, it must be maintained.

Please note that while the employer is under no obligation to create an SDS for a hazardous chemical in situations where the manufacturer or importer has gone out of business, if it chooses to generate a new SDS, the employer will become the responsible party for its content.

Finally, where an employer is maintaining MSDSs in addition to SDSs, the employer's Hazard Communication program, as required by 29 CFR 1910.1200(e)(1), and information and training program, as required by 29 CFR 1910.1200(h)(1), must reflect this. This ensures that employees are aware of potential differences between MSDSs and SDSs and how to utilize both the MSDSs and the SDSs.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the Directorate of Enforcement Programs at (202) 693-2100.

Sincerely,

Thomas Galassi, Director

Directorate of Enforcement Programs