OSHA finds non-consumer lithium batteries subject to the 2012 HCS

In what one can only characterize as a remarkable development for American manufacturers and importers, on December 17th the US Department of Labor’s (USDOL) Occupational Safety and Health Administration (OSHA) issued a formal Letter of Interpretation in response to a query regarding their consideration of the status of Lithium batteries as articles (or not).  The query was made by Labelmaster on behalf of several such manufacturers that Labelmaster represents.

In the letter, OSHA categorically states that Lithium Batteries NOT used in consumer applications are in fact NOT articles as defined in and thus are subject to the provisions of the US 29 CFR 1910.1200 Hazard Communication Standard, or HCS.  In 2012 this standard was revised to incorporate the major provisions of the UN Globally Harmonized System, or GHS.  The HCS imposed a June 1st, 2015 deadline on manufacturers and importers to properly label applicable materials under the provisions of the regulation.  A similar December 1st, 2015 deadline was imposed on distributors.

OSHA states (in part—please note that specific references to previous Letters of Interpretation  OSHA cites to justify various findings in the new letter are not reflected in the edited text below–author):

The HCS does not apply to “articles.” See 29 CFR 1910.1200(b)(6)(v). Articles are defined as “a manufactured item other than a fluid or particle: (i) which is formed to a specific shape or design during manufacture; (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which under normal conditions ofuse does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical (as determined under paragraph (d) of this section), and does not pose a physical hazard or health risk to employees.” See 29 CFR 1910.1200(c).

In considering normal conditions of use and foreseeable emergencies, it is important to consider the potential to leak, spill, or break.  Lead acid batteries cannot be considered articles because they have the potential to leak, spill, break, and emit hydrogen, which could result in a fire or explosion upon ignition. Similarly, lithium-ion batteries (or lithium battery-powered devices) on a whole, although sealed, have the potential to leak, spill, or break during normal conditions of use and foreseeable emergencies and expose employees to chemicals which can pose health (e.g., lithium cobalt, graphite) and/or physical (e.g., bums, fire) hazards, and therefore, cannot be considered an article. For examples, a manufacturer may have employees, such as maintenance workers, who access the area where batteries are stored; a freight forwarder or carrier may have workers who need to access a tractor trailer or rail car where rejected or damaged batteries or devices are boxed; or workers may handle or manipulate damaged batteries or devices during electronic recycling (e.g., crushing the products prior to disposal). Therefore a manufacturer or importer of lithium-ion batteries or products which contain lithium-ion batteries that are not consumer products must develop and make available safety data sheets. See 29 CFR 1910.1200(g)(1). In addition, the battery or product must be properly labeled in accordance with HCS 2012.  (author’s highlight)

I think it is fair to state that this finding turns on its head previous conventional wisdom in reference to Lithium Batteries in relation to the OSHA regulations.  To this point, the “best practice” in this industry has been to consider Lithium Batteries generally as articles.  That letter removes that option and will require what can only be described as a massive effort to bring such batteries into what is now expected by OSHA to be full compliance with the HCS.

Further, one has to say that it opens other similarly configured items, i.e. other types of what are currently or were previously considered to be “articles” which may contain some type of hazardous material which could conceivably be released account spillage or breakage, to the possibility of being reinterpreted in similar fashion.  In many respects, it is a watershed finding, the impact of which is far from clear at present but which is likely to be extensive.

Here is a link to the US 29 CFR 1910.1200 2012 HCS.

Labelmaster is a full service provider of goods and services for the Hazardous Materials and Dangerous Goods professional, shippers, transport operators, and EH&S providers. See our full line of solutions at www.labelmaster.com.  For more specific information on the US Hazard Communication Standard, the UN GHS, and products related to it, see www.labelmaster.com/GHS.

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