Reprinted in substantially the same form in DRI’s For The Defense (November 2015) and Ohio Association of Civil Trial Attorneys Quarterly Review (Winter 2016)

Meet Jim. He is a devoted father and loving husband. He bowls every Tuesday, takes his kids fishing every Saturday (weather permitting) on Lake Erie, and fixes cars for extra cash on Sundays. He works at BigCorp., a chemical distributor that purchases bulk chemicals from large manufacturers and repackages them into smaller quantities for customers. Each morning, Jim comes to work, picks up the orders he must fill that day, and diligently gets to work. He works with a wide variety of chemicals and gases, carefully transferring the required amounts into BigCorp.-labeled pails, canisters, or drums. He has a suspicion that some of the chemicals with which he works can be hazardous, which is why he always wears personal swimming goggles to keep his eyes safe. BigCorp. didn’t train Jim to wear swimming goggles. In fact, it didn’t train him at all. BigCorp. just secured a large contract from Power Industries to supply 500 gallons of 5 Mol sulfuric acid each week to its 300 battery manufacturing factories across the country. This is a big step for BigCorp., which has been trying to get that business for years. BigCorp. has never purchased bulk sulfuric acid before and Jim has never worked with it. But, knowing a good deal when it sees one, BigCorp. purchases 18 Mol sulfuric acid and will dilute in-house to save money. Jim gets to work. Not knowing that there are warnings on the drums of concentrated acid or Safety Data Sheets available in the storeroom, Jim goes about diluting the product for sale. Unfortunately, he does not know that adding water to sulfuric acid (and not the other way around) can cause sulfuric acid to boil, spit, or splash out of a container. A great quantity of acid splashes onto Jim’s face, arms, and hands. There aren’t any emergency showers on-site. By the time Jim is treated, his situation is critical. He is disfigured and his hands are badly burned. He will never bowl, fish, or turn a wrench again. After the accident, the Occupational Safety & Health Administration (OSHA) cites BigCorp for a number of violations. As for Jim, he is unable to work and suffers greatly from the physical and emotional damage of his accident. Without employment (and with no prospect for any), Jim sues BigCorp in intentional tort. BigCorp calls you. Tragic as it may be, you need to limit BigCorp’s liability while at the same time, if possible, avoid OHSA sanctions. Are there regulations aimed at preventing chemical-related injuries? What is the exposure to your client? We will turn to those questions in a minute. To appreciate where we are, however, a quick look through where we have been is instructive.

A LITTLE BIT OF HISTORY Following the horror of World War I, in which terrible concoctions of weaponized gases and chemicals were mass-produced on a scale previously unknown to humanity, a need was identified to protect workers from a wide variety of health hazards in the manufacturing industry. In the 1930s and 1940s, then, initial worker safety and worker compensation statutes were enacted by the federal government

and some states. 1 By the 1950s, thousands of chemical data sheets were used by chemists throughout the world to relay usage and hazard information. 2 At the same time, industrial states like Ohio enacted more comprehensive worker safety regulations. 3 It was not until 1983, however, that the advent of the Material Safety Data Sheet (MSDS), as a recognizable (and required) document accompanying chemical shipments was promulgated as part of OSHA’s Hazard Communication Standard (HazCom). HazCom’s 1983 “baby steps” were enacted with the eventual goal of being part of a single, unified, and globally harmonized hazard communication system to protect workers and facilitate trade worldwide: “The development of internationally agreed standards would make possible the broadest recognition of the identified hazards while avoiding the creation of technical barriers to trade and reducing the costs of dissemination of hazard information by elimination of duplicative requirements which could otherwise apply to a chemical in commerce.” 4 The fundamental aims of 1983 HazCom were to (1) “reduce the incidence of chemically-related occupational illnesses and injuries . . . ”; (2) “assist employers . . . to devise appropriate protective measures [for employees] . . .”; and (3) give employees the information they need to take steps to protect themselves.” 5 Like today, the 1983 HazCom standard required a “comprehensive hazard communication program” and employee training for chemical hazards they might encounter at work, inplant labeling of chemicals, and written warnings and MSDS for outgoing product to instruct users of hazards. 6 The biggest shortfall of the 1983 HazCom standard was that it only applied to workers in the manufacturing industry, not agriculture, mining, or other at-risk populations who regularly use chemicals. 7 This changed over time with amendments in 1987 and 1994. A fundamental issue for manufacturers, however, remained, namely, the widely divergent chemical regulations across borders, which proved to be an onerous (and expensive) compliance challenge.

WHAT WAS HAPPENING IN THE GLOBAL COMMUNITY? Following a 1992 resolution at the United Nations Conference on Environment and Development, work was started “with the premise that existing systems should be harmonized in order to develop a single, globally harmonized system to address classification of chemicals, labels, and safety data sheets.” 8 This goal accepted that the then-existing hazard communication laws differed “significant[ly] enough to result in different labels . . . for the same chemical in different countries.” 9 So much that “a chemical may be considered flammable in one country, but not another. Or it may be considered to cause cancer in one country, but not another.” The practical result is that “companies wishing to be involved in Walsh-Healey Act, 41 U.S.C. § 35 et. seq. (1936); Pennsylvania Occupational Disease Act of June 21, 1939. Act No. 284, P.L. 566. 2 Kaplan, Samuel A.: “Development of Material Safety Data Sheets”, Presented at the 191st ACS National Meeting, Division of Chemical Health and Safety, 14 April 1986; New York, NY. 3 See e.g. “Specific Safety Requirements of the Industrial Commission of Ohio Relating to All Workshops and Factories (January 1, 1951)”; see also R.C. 4101.11-.12 (1953). 4 Federal Register Vol. 48, No. 228, November 25, 1983, pp. 53280-53348, at preamble. 5 Id. at 53280. 6 Id. at 53336-7. 7 Id. at 53284-5. 8 Globally Harmonized System of Classification and Labelling of Chemicals, 4th Edition 1991, at forward ¶ 2. 9 Id. at § 1.1.1.2. 1

international trade must have large staffs of experts who can follow the changes in these laws and regulations and prepare different labels and [Safety Data Sheets].” 10 How, then, did the UN committee begin its work of synthesizing a standard which was intended to be effective in protecting workers from Columbus to Cape Town? It first acknowledges and conveys the notion of “hazard versus risk”: every hazard classification and communication system “begins coverage with an assessment of the hazards posed by the chemical involved. The degree of its capacity depends on its intrinsic properties…This is based primarily on a review of the scientific studies available.” The approach to risk assessment, then, is “characterized by the simple formula: hazard [times] exposure = risk.” 11 Using criteria such as prior chemical classification, results from animal testing, epidemiological data from humans, “expert judgment” and “weight of evidence”, the UN retinue identified categories of chemical hazards: (1) Explosives, (2) Flammable gases, (3) Aerosols, (4) Oxidizing gases, (5) Gases under pressure, (6) Flammable liquids, (7) Flammable solids, (8) Self-reactive substances and mixtures, (9) Pyrophoric liquids, (10) Pyrophoric solids, (11) Self-heating substances and mixtures, (12) Substances and mixtures, which in contact with water, emit flammable gases, (13) Oxidizing liquids, (14) Oxidizing solids, (15) Oxidizing peroxides, (16) Corrosive to metals, (17) Acute toxicity, (18) Skin corrosion/irritation, (19) Serious eye damage/eye irritation, (20) Respiratory sensitizer, (21) Skin sensitizer, (22) Germ cell mutagenicity, (23) Carcinogenicity, (24) Toxic to reproduction, (25) Effects on or via lactation, (26) Specific target organ toxicity following single exposure, (27) Specific target organ toxicity following repeated exposures, (28) Aspiration hazard, (29) Acute hazards to the aquatic environment, (30) Long-term hazards to the aquatic environment, and (31) Hazard to the ozone layer. Each of these hazard types have levels of severity, ranging from 4 (minor) to 1 (acute), depending on the classification of the hazard and its effects on humans (or the environment). The United Nations Globally Harmonized System of Classification and Labeling of Chemicals – or the Globally Harmonized System, for short – was born.

GLOBAL HARMONY AT LAST? In 2012, OSHA completely overhauled HazCom. Due to the monumental changes, the effective date for compliance (for manufacturers) was not until June 1, 2015. Although it took nearly 30 years to achieve, OSHA fulfilled its original 1983 goal of harmonizing HazCom with internationally recognized standards: OSHA modified its 2012 HazCom system “to be consistent with the provisions of [the Globally Harmonized System]”. 12

Id. Id. at § 1.1.2.6.2. 12 29 CFR § 1910.1200(a). 10 11

WHAT IS EXCLUDED FROM HAZCOM? Before we turn to the mandates of the new system, we should first analyze what products are not covered. There are a number of types of products which, due to the division of regulatory purview, are left to other governmental agencies for regulation. Products which are regulated by the Consumer Products Safety Commission (CPSC), the Food and Drug Administration, Bureau of Alcohol, Tobacco, and Firearms, to name a few, are excluded from the purview of HazCom. 13 This makes sense: other than the obvious “turf war” of agency jurisdiction, designing a warning label to comply with often-inconsistent requirements is difficult at best, and impossible at worst. Stated simply, HazCom applies to products and chemical hazards that people might encounter at work. Even a simple consumer product like bleach must be labeled according to HazCom if, for example, it is being sold for use in process manufacturing, or in bulk quantities for downstream distribution. The HazCom standard expressly forbids any information or labeling that “casts doubt on the validity” of the HazCom warning.14 A recent OSHA interpretation letter sheds light on the challenges posed to manufacturers of both industrial and consumer products. At issue was an attempt to design product packaging with two warning labels to be affixed to the same packaging: one HazCom compliant for industrial customers, and the other CPSC compliant for consumer purchasers. 15 Because OSHA and the CPSC differed on the hazard statement for flammables: “Warning. Flammable liquid and vapor” (OSHA) versus “Warning: Combustible” (CPSC), a two-label package was simply not possible. Thus, manufacturers selling a single product must affix different warning labels to the product depending on its anticipated customer.

EMPLOYEE TRAINING The effective date for compliance with the new 2012 HazCom employee training requirements was December 1, 2013. 16 All employees must be trained before (or at the time) they are assigned to work with a hazardous chemical. 17 The employer’s hazard communication program must be in writing. 18 The intent of the training provision is, obviously, to relay critical exposure information at a time before exposure and adverse health effects are suffered. Training must be robust, not simply giving employees Safety Data Sheets to read. The training must be geared toward an open line of communication between the employer and employee: “a forum for explaining to employees not only the hazards of the chemicals in their work area, but also how to use the information generated in the hazard communication program.” 19 At a “minimum” the training program must relay the: (i)

Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area (such as monitoring conducted by the employer,

29 CFR § 1910.1200(b)(5)-(6). 29 CFR § 1910.1200(f)(2); see also, OSHA 5/12/2014 interpretation letter to Jordan A. LaVine, https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=29327, accessed 11/9/2015. 15 Id. 16 29 CFR § 1910.1200(j)(l). 17 29 CFR § 1910.1200(h). 18 29 CFR § 1910.1200(e). 19 OSHA Frequently Asked Questions, https://www.osha.gov/html/faq-hazcom.html#faq6, accessed 11/9/2015. 13 14

(ii) (iii)

(iv)

continuous monitoring devices, visual appearance or odor of hazardous chemicals when being released, etc.); The physical, health, simple asphyxiation, combustible dust, and pyrophoric gas hazards, as well as hazards not otherwise classified, of the chemicals in the work area; The measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, such as appropriate work practices, emergency procedures, and personal protective equipment to be used; and, The details of the hazard communication program developed by the employer, including an explanation of the labels received on shipped containers and the workplace labeling system used by the employer; the safety data sheet, including the order of information and how employees can obtain and use the appropriate hazard information. 20

OSHA expects employee training to be interactive, using audiovisuals, classroom instruction, or interactive video, and to include an opportunity for employees to ask questions to ensure that they understand the information presented to them.21 There is also a requirement for updated training on new chemicals present in the workplace (such as sulfuric acid in our case). 22

WARNING LABELS The effective date for compliance with the new 2012 HazCom warning label requirements for manufacturers was June 1, 2015. 23 “The chemical manufacturer, importer, or distributor shall ensure that each container of hazardous chemicals leaving the workplace is labeled” with the following information: (i) (ii) (iii) (iv) (v) (vi)

Product identifier; Signal word; Hazard statement(s); Pictogram(s); Precautionary statement(s); and, Name, address, and telephone number of the chemical manufacturer, importer, or other responsible party.

The warning label content naturally depends on the type of chemical. The classifications of various types of hazards (remember the list of the Globally Harmonized System hazards above) depend on a complex system of risk assessment. The various types of pictograms, however, are fairly simple and are designed to quickly apprise the user of the class of hazard, with information on hazard avoidance, prevention (including personal protective equipment), and response. The eight pictograms for all of the hazard classifications are shown below:

29 CFR § 1910.1200(h)(3). OSHA Frequently Asked Questions, https://www.osha.gov/html/faq-hazcom.html#faq6, accessed 11/9/2015. 22 29 CFR § 1910.1200(h)(3)(iii); see also OSHA Frequently Asked Questions. 23 29 CFR § 1910.1200(j)(2). 20 21

24

The pictogram must be enclosed in a diamond, such as this:

25

24 25

Appendix C to 29 CFR § 1910.1200 – Allocation of Label Elements (Mandatory), Fig. C.1. Id. at Fig. C.2.

The warning label must have a signal word, such as “Danger”, or “Warning” which varies by the severity of hazard. 26 The hazard statement language, as well as that of the prevention, response, storage, and disposal sections is highly rigid and cannot be omitted or varied except within narrow safe harbors. OSHA’s model warning label is depicted below:

27

Id. at Appendix C. OSHA Quick Card – Hazard Communication Labels, https://www.osha.gov/Publications/HazComm_QuickCard_Labels.html, accessed 11/9/2015.

26 27

SAFETY DATA SHEETS The effective date for compliance with the new 2012 HazCom Safety Data Sheet requirements for manufacturers was June 1, 2015. 28 Safety Data Sheets, formerly known as Material Safety Data Sheets, received a major facelift in the 2012 HazCom system. Again, this is due to the harmonization with the Globally Harmonized Standard. The required sections of the new Safety Data Sheets are Section 1, Identification; Section 2, Hazard(s) identification; Section 3, Composition/information on ingredients; Section 4, First-aid measures; Section 5, Fire-fighting measures; Section 6, Accidental release measures; Section 7, Handling and storage; Section 8, Exposure controls/personal protection; Section 9, Physical and chemical properties; Section 10, Stability and reactivity; Section 11, Toxicological information; and Section 16, Other information. 29 There are four non-mandatory sections, which fall under the primary purview of other regulatory agencies (EPA, DOT, etc.), Section 12, Ecological information; Section 13, Disposal considerations; Section 14, Transport information; and Section 15, Regulatory information. 30 The former MSDS allowed for greater variability in formatting and content, including a variable number of sections (from 8 to 16). A side-by-side comparison between the 1994 and 2012 standards can be found on the OSHA website 31, but the short version is that the new Safety Data Sheet is globally standardized and the requirements are more stringent on the type of information that must be presented, with an emphasis on hazard classification, avoidance, and response.

ENFORCEMENT Employers such as BigCorp. have already been cited by OSHA for 2012 HazCom violations for failing to maintain a written hazard communication plan, train their employees or provide Safety Data Sheets for hazardous workplace chemicals. 32 There have not been reported citations to a chemical manufacturer for its on-product warnings or Safety Data Sheets at the time of this writing (November 2015). The effective date for manufacturers (June 2015) has only recently passed, however, and there is likely to be enforcement in the years to come. A major indicator of future enforcement came on July 9, 2015, when OSHA issued its “Inspection Procedures for the Hazard Communication Standard (HCS 2012)”. 33 The stated purpose of the Inspection Procedures is to “to provide guidance to compliance safety and health officers on how to enforce the revised Hazard Communication standard during its transition period and when fully implemented.” 34 This over 80 page document (exclusive of appendices) is the “playbook” for OSHA officers. How OSHA chooses to enforce 2012 HazCom for product labeling remains to be seen, but the Inspection Procedures indicate an organized and concerted effort to do so with renewed vigor. 29 CFR § 1910.1200(j)(2). 29 CFR § 1910.1200(g)(2). 30 Id. 31 https://www.osha.gov/dsg/hazcom/side-by-side.html, accessed 11/9/2015. 32 See e.g. Sec. of Labor v. Big Cat, Inc., Occup. Safety and Health Review Comm’n Docket No. 13-1774, 2014 WL 6450624 (Oct. 3, 2014); see also Sec. of Labor v. MB Consultants, Ltd., Occup. Safety and Health Review Comm’n Docket Nos. 12-1165 & 12-1269, 2014 WL 5825311 (Sept. 30, 2014). 33 For a copy please visit: https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-02-079.pdf, accessed 11/9/2015. 34 Id. at abstract-3. 28 29

WHAT ABOUT BIGCORP? BigCorp. was under a duty to provide training to Jim so that he could identify and understand warning labels and Safety Data Sheets for the chemicals with which he was working. 35 It had a duty to ensure Jim was using adequate personal protective equipment so he could handle the concentrated acid safely. 36 It had a duty to provide an emergency shower to guard against this exact situation. 37 To establish a claim for relief under R.C. 2745.01, Jim must establish that BigCorp. acted with deliberate intent to injure him.38 The Ohio Supreme Court has emphatically rejected the notion that liability under R.C. 2745.01 can be based on acts falling short of deliberate intent. Reversing the Cuyahoga County Court of Appeals in Houdek, the Supreme Court explained that: an employer’s “knowingly permitting a hazardous work condition to exist [and] knowingly ordering employees to perform an extremely dangerous job * * * falls short of the kind of actual intention to injure that robs the injury of its accidental character.” In accordance with this authority, absent a deliberate intent to injure another, an employer is not liable for a claim alleging an employer intentional tort, and the injured employee’s exclusive remedy is within the workers’ compensation system. 39 Even an accident leading to an OSHA citation does not establish an intentional tort claim in Ohio. 40 BigCorp. thus has a good shot at avoiding intentional tort liability per R.C. 2745.01 and Houdek. BigCorp. can also probably avoid serious OSHA sanctions, but only by working with OSHA on a complete overhaul of the company’s HazCom program. The overall message here is that to positively effect worker safety, there is a shared responsibility. The employer, employee, government, and manufacturer all have their part to play. Without some accountability and shared responsibility, the system cannot work at its best. After all, isn’t keeping workers safe best for all of us, no matter our client?

29 CFR § 1910.1200(h). 29 CFR § 1910.132; 29 CFR § 1910.1200(h)(3)(iii). 37 29 CFR § 1910.151. 38 Houdek v. ThyssenKrupp Materials NA., Inc., 134 Ohio St.3d 491, 2012-Ohio-5685, ¶ 25. 39 2012-Ohio-5685, ¶¶ 24-25 quoting 6 Larson’s Workers’ Compensation Law, Section 103.03, 103-7 to 103-8 (2001). 40 Meadows v. Air Craft Wheels, L.L.C., 8th Dist. Cuyahoga No. 96782, 2012-Ohio-269, ¶ 18 (calling employer’s behavior “clearly reprehensible” but holding that “[e]ven when an employer is aware of a dangerous condition and fails to take action to correct the situation, such conduct does not meet the statutory requirements without evidence of actual intent to cause injury”); Jefferson v. Benjamin Steel Co., Inc., 5th Dist. Richland Nos. 09 CA 62, 09 CA 75, 2010-Ohio-50, ¶ 112 (employer’s failure to follow proper safety procedure does not establish intent to injure); Fickle v. Conversion Techs. Int'l, Inc., 6th Dist. No. WM-10-016, 2011-Ohio-2960 at ¶ 48 (employer’s failure to provide adequate training and safety devices was not sufficient to establish deliberate intent to injure); Schiemann v. Foti Contracting, L.L.C., 8th Dist. Cuyahoga No. 98662, 2013-Ohio-269, ¶ 24 (“OSHA violations do not factor into the determination of whether [an employer] acted with deliberate intent to harm”). 35 36