ILMA Compoundings – March 2019 - 19

are also established at the European community level.
However, neither law places a requirement on an importer
to demonstrate REACH compliance concerning chemical
substances at the time they are imported.
The enforcement arm is not tied to the European
Chemicals Agency (ECHA) and instead is tied to the
member state administration that is designed to inspect
compliance with European REACH. Likewise, "the customs
entry clearance process and enforcement in Europe is
administered by the individual member state authorities, who
currently lack enforcement authority concerning REACH
compliance governed by European law and the European
Commission," Eggenschwiler said. "It is a very complex and
disconnected matrix of enforcement that doesn't tie to the
[ECHA] or the REACH regulation."
As part of the European system, member states task
regulatory inspectors to perform site inspections at
business facilities for any one of a variety of reasons.
As part of that inspection process, the inspector might
request documentation concerning one or more aspect
of REACH compliance.
"It is done after the importation, sometimes long
afterward. Consequently, they're only catching the items in
their possession at that time, and previous inventory items
for which there are adequate records remaining available.
You could have very significant volumes of chemicals placed
on the market and escape inspection just because it wasn't
physically present at the time," Eggenschwiler said. "This is
a significant disconnect between the legal requirements and
enforcement, leaving a considerable gap in confidence in
Europe regarding the eligibility of products that are sold
and consumed."
Canadian Environmental Protection Act (CEPA)
compliance enforcement for chemical imports into Canada is
much like that in Europe. "CEPA establishes the compliance
requirement, but there is no requirement for importers to
provide evidence of that compliance as part of the import
process. Instead, Environment Canada enforcement relies
on site inspection that can occur after importation, if at all,"
Eggenschwiler said.
In Canada, Health Canada sets the rules and regulations
for Safety Data Sheets (SDS). "It is a provincial responsibility
to monitor workplace enforcement," said John Howell,
president of GHS Resources. He added that each of the
provinces has its own provincial agencies that look after
health and safety aspects of the workplace.
Complying Within the U.S.
Jennifer Gibson, vice president of regulatory affairs for the
National Association of Chemical Distributors (NACD), said

the level of enforcement variation depends on the specific
regulation and the agency enforcing the regulation.
"Some agencies seem to have a 'find and fine' approach
to enforcement, while others are more willing to engage in
dialogue and compliance assistance," Gibson said, adding
that she has seen numerous cases where U.S. Environmental
Protection Agency (EPA) inspectors have come to facilities
looking for violations of several rules, including the
Emergency Planning and Community Right to Know Act,
the Risk Management Program, the Resource Conservation
and Recovery Act and the Clean Air Act General Duty
Clause (GDC). "The GDC is particularly onerous, because it
is completely subjective."
On the other hand, Gibson said she has seen the
Department of Homeland Security take a much more
collaborative approach in implementing the Chemical
Facility Anti-Terrorism Standards. "Rather than seeking to
find violations, inspectors work with facilities to make sure
they have appropriate and effective security measures in
place," she said.
Howell said U.S. regulatory staff is spread thin for the kind
of inspections the lubricant industry would typically have.
"What would trigger an Occupational Safety and Health
Administration (OSHA) inspection would be, sadly, an
industrial accident of some type," he said. "You can almost
expect there will be a follow-up visit by [the] local OSHA
inspector to understand what happened."
If that occurred, OSHA would look for information
on company policies, the SDS and signage. "Our ILMA
members need to and almost always do have policies in place
that their employees follow. OSHA would ask to see copies
of if they ever came by for inspection," Howell said.
OSHA also delegates to states that want the authority to
inspect on the agency's behalf. "There are quite a few states
that have their own departments of occupational safety and
health. In those states, there are two levels of anticipated
inspections - the national OSHA and certain state
agencies," Howell said.
Mike Ogburn, corporate program manager for August
Mack Environmental Inc., said the No. 1 question he gets is
what someone should do when an inspector shows up. "Most
people don't have a procedure or policy because they don't
think of it every day," he said, adding that he recommends
companies outline a procedure or policy. "When they come,
escort them to a conference room, look at their credentials
and ask them what they want."
Inspectors are likely going to want to walk through the
facility and ask questions. "Walk through with them. If you
don't know an answer to a question, say, 'I don't know, but

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