The risks and costs of environmental and health & safety (EHS) regulatory non-compliance are rising as the regulatory environment becomes more challenging. Compliance needs are pervasive and persistent across all geographical jurisdictions and industries. Today’s EHS professional (and those who wear a 2nd or 3rd hat as the person responsible for EHS compliance) face a vast and complex regulatory matrix that includes regulatory authorities focused on workplace safety, the environment, transportation and homeland security, to name just a few. EHS management now often encompasses requirements that extend beyond the immediate boundaries of the company, including upstream and downstream supply chain management.

The last 2 years have given shape to a complex regulatory landscape, with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS); the European Union’s (EU) Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) regulatory framework; and the possible reform of the United States’ Toxic Substance Control Act (TSCA). It is highly likely that 2011/2012 will bring many new compliance challenges.

By reviewing the below representative samples of the regulatory challenges that emerged in 2010, you can better prepare for 2011/2012’s emerging challenges and, therefore, begin to prioritize strategies and tactics that align with these challenges.

United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS)

In 2010, we learned more about the proposed rule to align OSHA’s Hazard Communication Standard with provisions of the GHS, with the final rule expected to be promulgated sometime in the very near future. Some of the new compliance challenges will include the need to re-evaluate how materials and mixtures are classified, creating the need to update written procedures, re-issue material safety data sheets (MSDSs) and labels, and retrain employees.

European Union’s Registration, Evaluation, Authorization and Restriction of Chemicals (REACH)

REACH continued to present significant compliance challenges in late 2010, especially during the last few months of the year. Many companies struggled to meet the November 30, 2010 deadline to register materials classified as high-volume or hazardous, and to revise MSDSs and labels for these materials.

There was also confusion surrounding the requirements related to updating MSDSs, which were suppose to be completed by December 1, 2010. Understanding all of the requirements has been extremely challenging, especially as guidance from the European Chemicals Agency (ECHA) has been delayed and in certain areas, non-existent. It is anticipate that this trend will continue in 2011/2012. We can only hope that this will become clearer before the next registration deadline in 2013 requiring companies to establish and maintain a good and reliable inventory of substances in chemicals that are sold in the European Union.

United States’ Toxic Substance Control Act (TSCA) Reform

In 2010, we saw momentum building for significant reform of TSCA. If promulgated, the proposed Safe Chemicals Act of 2010 (SCA) legislation will dramatically change the current scope of TSCA. Many companies will be affected by these changes, as almost every business involved in the chemical industry is impacted by TSCA in some way. The proposed new legislative requirements include:

  • Minimum data set (MDS) for each chemical produced, with the Environmental Protection Agency (EPA) having the authority to request the additional data required to make a safety determination.
  • EPA prioritization based on MDS, considering exposure and hazard characteristics.
  • EPA quick action on chemicals demonstrating high risk.
  • Restrictions on the data claimed by industry to be confidential.

In addition, raw materials, intermediates and finished goods are regulated by TSCA. Full lifecycle or cradle-to-grave compliance is an essential component of TSCA, and most manufacturing/importing, processing and disposal activities are TSCA regulated.

Other Regulated Materials-Domestic (ORM-D)

ORM-D is a Department of Transportation (DOT) marking for mail and packages shipped in the United States. Packages bearing this mark contain hazardous material in a limited quantity that presents a limited hazard during transportation, due to its form, quantity, and packaging.

For many companies that transport consumer commodities, the ORM-D exception has become the standard way of transporting these hazardous materials. Many companies have built logistics systems and training programs around utilization of the ORM-D exception.

Annually, the Pipeline and Hazardous Materials Safety Administration (PHMSA) publishes a notice of proposed rulemaking used to harmonize the current hazardous materials regulations (including DOT regulations) with United Nations requirements.

The most recent published notice is a potential game changer that dramatically will affect how companies transport hazardous materials in the United States. In the proposal, the DOT would phase out the use of the ORM-D and ORM-D-Air exceptions and conform to international standard for limited quantity shipments as the primary alternative for shipping consumer commodities as anything other than fully regulated shipments. The phase out of these exceptions could be implemented as soon as January, with mandatory compliance starting January 1, 2014.

While elimination of the ORM-D Consumer Commodity exception may be beneficial in the long-term, there may be an immediate impact of companies seeking to re-evaluate their current policies and practices to ensure they are prepared to continue to transport hazardous materials in compliance with these new regulations. Many companies will be challenged to re-evaluate and update aspects of their transportation programs, including employee training, transportation systems, packaging and existing classifications for products that are transported.

Total Environmental & Safety, LLC

Achieving and maintaining EHS regulatory compliance can be a daunting task, especially with the regulatory landscape constantly shifting and changing.

Total Environmental & Safety, LLC has assisted companies in all industries with their EHS regulatory compliance needs. Achieving and maintaining EHS regulatory compliance is what we do.

Our associates include experienced environmental, safety and waste professionals, civil and chemical engineers, geologists, hydro-geologists, ecologists, wildlife biologists, and marine biologists. These professionals allow us to more effectively handle even the most complex projects in a cost effective and timely manner. Our commitment to customer service ensures that we exceed expectations and add maximum value to your businesses. Contact us today, and find out how we can help.