1 

UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

1120 20th Street, N.W., Ninth Floor 

 Washington, DC 20036-3457

______________________________________

 ) 

SECRETARY OF LABOR, ) 

) 

Complainant, ) 

 ) 

v. ) OSHRC Docket No. 14-1499 

 ) 

HEXION, INC., formerly known as ) 

MOMENTIVE SPECIALTY ) 

CHEMICALS, INC. ) 

 ) 

Respondent. ) 

______________________________________ ) 

ORDER GRANTING THE SECRETARY’S MOTION TO AMEND THE COMPLAINT 

AND DENYING RESPONDENT’S MOTION TO DISMISS THE COMPLAINT 

Background 

 On March 29, 2012, the Occupational Safety and Health Administration (OSHA) 

amended its Hazard Communication Standard (HCS) to incorporate the United Nations’ 

Globally Harmonized System of Classification and Labeling of Chemicals (GHS). 77 Fed. Reg. 

17,474. The amended HCS (HCS 2012) provided a transition period of more than three years for 

manufacturers, importers, distributors, and employers to transition to the new hazard 

communication requirements. During this period, manufacturers, importers, distributors, and 

employers had the option of complying with the requirements of either the original or amended 

version of the standard. 29 C.F.R. §1910.1200(j)(3). Manufacturers, importers, distributors and 

employers had to be in compliance with HCS 2012 by June 1, 2015. See 29 C.F.R. 

§1910.1200(j)(2). 

On October 3, 2012, OSHA sent a letter to Hexion stating that it had “become aware” of 
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a potential issue with Hexion’s material safety data sheet (MSDS), based on two studies, 

published in 2010 and 2011, indicating that bisphenol A (BPA) constitutes a potential 

reproductive hazard. The letter also stated that the HCS was revised on March 26, 2012 and that 

manufacturers have until June 1, 2015 to comply with the revised standard. (Resp. Ex. A). 

 On December 20, 2012, Respondent replied that the studies cited by OSHA in the 

October 2012 letter had significant flaws and that the studies’ conclusions were inconsistent with 

the “total weight of evidence,” which must be considered under HCS 2012. The letter concluded 

that, in Hexion’s view, the total weight of the evidence, as required by HCS 2012, did not 

indicate that BPA is a potential reproductive hazard. (Resp. Ex. B). 

 OSHA responded on May 14, 2013, disputing Hexion’s analysis of the weight of the 

evidence, informing the company that its current MSDS was not compliant with the standard and 

that it might be subject to a citation. Hexion was also directed to send a corrected MSDS to 

OSHA by April 14, 2013 (a month before the date of the letter).1

(Resp. Ex. C). 

 An OSHA inspection of Hexion’s facility took place on April 8, 2014. On September 10, 

2014 OSHA issued a citation to Hexion alleging violations of the 1994 HCS (HCS 1994). The 

total proposed penalty was $2,975.00. Citation 1, Item 1(a) alleged a serious violation of 29 

C.F.R. §1910.1200(d)(2). The item stated that: 

Chemical manufacturers, importers or employers evaluating chemicals shall 

identify and consider the available scientific evidence concerning such hazards. 

For health hazards, evidence which is statistically significant and which is based 

on at least one positive study conducted in accordance with established scientific 

principles is considered to be sufficient to establish a hazardous effect if the 

results of the study meet the definitions of health hazards in this section. 

Appendix A shall be consulted for the scope of health hazards covered, and 

Appendix B shall be consulted for the criteria to be followed with respect to the 

completeness of the evaluation and the data to be reported. 

 

1

 Obviously, this is an error, since the date precedes the date of the letter by a full month. Given that the Secretary 

told Hexion that it had three months to update its MSDS, it is highly likely that the Secretary meant August 14, 

2013, which was precisely three months after the date of the letter. 
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a. On or about April 8, 2014, Momentive Specialty Chemicals, Inc., 180 Broad 

Street, Columbus, Ohio: The employer did not completely identify and consider 

hazards associated with bisphenol A (BPA). Material safety data sheets did not 

contain reproductive health hazard effects associated with BPA and BPA 

containing products, such as but not limited to bisphenol A-157. 

Item 1(b) alleged a serious violation of 29 C.F.R. §1910.1200(g)(2) and (g)(2)(iv). The 

item stated that: 

29 C.F.R. §1910.1200(g)(2): Each material safety data sheet shall be in English 

(although the employer may maintain copies in other languages as well), and shall 

contain at least the following information: 

29 C.F.R. §1910.1200(g)(2)(iv): The health hazards of the hazardous chemical, 

including signs and symptoms of exposure, and any medical conditions which are 

generally recognized as being aggravated by exposure to the chemical: 

a. On or about April 8, 2014, Momentive Specialty Chemicals, Inc., 180 Broad 

Street, Columbus, Ohio: Material safety data sheets did not contain 

reproductive health hazard effects associated with bisphenol A (BPA) and 

BPA containing products, such as but not limited to bisphenol A-157. 

 The Motions 

1. Respondent’s Motion to Dismiss the Complaint 

On February 11, 2015, Respondent filed a Motion to Dismiss the complaint. Respondent 

seeks dismissal of the complaint on three grounds: 

1. It fails to state a claim upon which relief can be granted, because Hexion was legally 

entitled to comply with either HCS 1994 or HCS 2012 during the current transition period of 

May 25, 2012 through June 1, 2015, but the complaint and the citation only allege that Hexion 

failed to comply with HCS 1994; 

2. The complaint is barred by the six-month statute of limitations under Section 9(c) of 

the Occupational Safety and Health Act of 1970 (the Act), 29 U.S.C. §658(c), because the 

citation was issued more than six months after OSHA became aware of the alleged violations; 

3. The complaint’s claims are moot because they seek to enforce and abate alleged non-
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compliance with HCS 1994 only, which will no longer have any legal effect by the time this 

matter is adjudicated on the merits and therefore there is no live controversy at all stages of the 

proceeding. 

2. The Secretary’s Motion to Amend 

After Respondent filed its Motion to Dismiss the complaint, the Secretary, on March 16, 

2015, filed its Motion to Amend the complaint and citation. 

As amended, the citation would read as follows (amended language in bold type face): 

Citation 1, Item 1(a): 

29 C.F.R. §1910.1200(d)(2)(2011): Chemical manufacturers, importers or 

employers evaluating chemicals shall identify and consider the available scientific 

evidence concerning such hazards. For health hazards, evidence which is 

statistically significant and which is based on at least one positive study 

conducted in accordance with established scientific principles is considered to be 

sufficient to establish a hazardous effect if the results of the study meet the 

definitions of health hazards in this section. Appendix A shall be consulted for 

the scope of health hazards covered, and Appendix B shall be consulted for the 

criteria to be followed with respect to the completeness of the evaluation and the 

data to be reported. 

29 C.F.R. §1910.1200(d)(2): Chemical manufacturers, importers or 

employers classifying chemicals shall identify and consider the full range of 

available scientific literature and other evidence concerning the potential 

hazards. There is no requirement to test the chemical to determine how to 

classify its hazards. Appendix A to §1910.1200 shall be consulted for 

classification of health hazards, and Appendix B to §1910.1200 shall be 

consulted for classification of physical hazards. 

§1910.1200(d)(3)(i). Chemical manufacturers, importers, or employers 

evaluating chemicals shall follow the procedures described in Appendices A 

and B to §1910.1200 to classify the hazards of the chemicals, including 

determinations regarding when mixtures of the classified chemicals are 

covered by this section. 

 

a. On or about April 8, 2014, Hexion, Inc., formerly known as Momentive 

Specialty Chemicals, Inc., 180 Broad Street, Columbus, Ohio: The employer did 
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not completely identify and consider hazards associated with bisphenol A (BPA). 

Material safety data sheets / safety data sheets did not contain reproductive 

health hazard effects associated with BPA and BPA containing products, such as 

but not limited to bisphenol A-157. 

As amended, Item 1(b) would read as follows: 

29 C.F.R. §1910.1200(g)(2)(2011): Each material safety data sheet shall be in 

English (although the employer may maintain copies in other languages as well), 

and shall contain at least the following information: 

29 C.F.R. §1910.1200(g)(2)(iv)(2011): The health hazards of the hazardous 

chemical, including signs and symptoms of exposure, and any medical conditions 

which are generally recognized as being aggravated by exposure to the chemical: 

29 C.F.R. §1910.1200(g)(2): The chemical manufacturer or importer 

preparing the safety data sheet shall ensure that it is in English (although the 

employer may maintain copies in other languages as well), and includes at 

least the following section numbers and headings, and associated information 

under each heading, in the order listed (See Appendix D to §1910.1200-Safety 

Data Sheets, for the specific content of each section of the safety data sheet): 

29 C.F.R. §1910.1200(g)(2)(ii): Section 2, Hazard(s) identification 

29 C.F.R. §1910.1200(g)(2)(xi): Section 11, Toxicological information 

a. On or about April 8, 2014, Hexion, Inc., formerly known as Momentive 

Specialty Chemicals, Inc., 180 Broad Street, Columbus, Ohio: Material safety 

data sheets did not contain reproductive health hazard effects associated with 

bisphenol A (BPA), and BPA containing products, such as but not limited to 

bisphenol A-157. Safety data sheets did not include reproductive toxicity 

effects associated with bisphenol A (BPA) and BPA containing products, 

such as but not limited to bisphenol A-157, in Sections 2 and 11. 

Also, in its Motion to Dismiss, Respondent indicated that it changed its name to Hexion, 

Inc. as of January 15, 2015. In view of Respondent’s assertion, the Secretary moved to amend 

the complaint to name Hexion, Inc. as the Respondent. 

 Discussion 

A. The Secretary’s Motion to Amend 

 

The Federal Rules of Civil Procedure (Fed.R.Civ.P.) apply to Commission proceedings. 
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Section 12(g) of the Act states that “[u]nless the Commission has adopted a different rule, its 

proceedings shall be in accordance with the Federal Rules of Civil Procedures.” 29 U.S.C. 

§661(g). Commission Rule 2(b); 29 C.F.R. §2200.2(b). The Commission has no rule applicable 

to amending a citation after a complaint has been filed. Accordingly, the Federal Rules apply. 

Fed.R.Civ.P. 15(a)(2) states that, before trial “[t]he court should freely give leave [to amend] 

when justice so requires.” 

The decision to amend a pleading is at the sound discretion of the trial court. See Foman 

v. Davis, 371 U.S. 178, 182 (1962). See also Cornell & Co., Inc. v. Occupational Safety & 

Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978). The Commission has held that 

motions to amend pleadings will not be granted if the objecting party would be prejudiced by the 

amendment, or if there was intent to deceive the opposing party. See Kokosing Constr. Co., Inc., 

21 BNA OSHC 1629, 1631 (No. 04-1665, 2006), aff’d, 232 Fed.Appx. 510 (6th Cir. 2007). See 

also ConAgra Flour Milling Co., 15 BNA OSHC 1817, 1821-23 (No. 88-2572, 1992). “[I]t is 

the opposing party's burden to prove that such prejudice will occur.” Kiser v. Gen. Elec. Corp., 

831 F.2d 423, 428 (3d Cir. 1987), citing Sanders v. Clemco Indus., 823 F.2d 214, 217 (8th Cir. 

1987). Judges must also ensure that the objecting party has sufficient time to prepare its case, 

and should grant a continuance where appropriate. Kokosing Constr. Co., 21 BNA OSHC at 

1631, citing Reed Eng’g Group, Inc., 21 BNA OSHC 1290, 1291 (No. 02-0620, 2005) (“’fair 

notice’ must be given to a non-moving party; this may be accomplished through granting a 

continuance”).

Respondent opposes the Secretary’s Motion to Amend on two grounds: 

1. Respondent argues that the amendment would result in undue prejudice. Respondent 

contends that, to allow the amendment under these circumstances, would cause it to file a second 
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Motion to Dismiss the citation and complaint for violation of Section 9(c) of the Act. This 

would cause it to needlessly incur redundant attorney fees and expenses. It notes that in 

Principal Life Ins. Co. v. United States, 75 Fed.Cl. 32, 33 (2007), recons. denied, 76 Fed. Cl. 326 

(2007), the United States Court of Federal Claims denied the government’s motion to amend its 

answer to add recoupment counterclaims based on undue prejudice and delay. In so ruling, the 

court found that the taxpayer was entitled to be notified of the existence of such counterclaims 

before proceeding with the litigation, and held that granting the government’s motion to amend 

would require the expenditure of additional resources and set off a new round of motions. Id. at 

33.

The Commission has held that the Secretary’s prehearing amendment should be 

permitted unless the employer would be prejudiced in the preparation or presentation of its case. 

Bland Constr. Co., 15 BNA OSHC 1031, 1041 (No. 87-992, 1991), citing Anoplate Corp., 12 

BNA OSHC 1678, 1687 (No. 80-4109, 1986). Where an amendment adds new factual issues 

against which an employer is unprepared to defend, a judge may allow the amendment if the 

prejudice can be cured. The question is whether, in the time remaining until the hearing, or 

during a reasonable continuance of the hearing, the employer can prepare its defense. Bland 

Constr. Co., 15 BNA OSHC at 1041-1043. “Extra case preparation and similar inconveniences 

do not amount to legal prejudice.” Genesee Brewing Co., 11 BNA OSHC 1516, 1518 (No. 78-

5178, 1983). See Southern Scarp Materials Co., Inc., 23 BNA OSHC 1596, 1601 (No. 94-3393, 

2011). 

 In Principal Life Ins. Co. v. United States, the case relied upon by Respondent, Principal 

sued the government for a tax refund. After the trial and after the court determined that Principal 

was entitled to a refund, the government sought to amend its answer asserting various offsets. 
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The court noted that amendments are to be freely granted except where the opposing party would 

be “substantially” prejudiced or the requested amendment was “unreasonably delayed.” 75 Fed. 

Cl. at 33. The court noted that the government’s motion “would undoubtedly set off a new wave 

of motions, if not require further discovery and a trial.” Id. This, the court intimated, constituted 

legal prejudice. Moreover, the court noted that, even if the prejudice did not exist, the 

government “provided no explanation whatsoever as to why it waited more than four years - 

until after the trial and an opinion on the merits in this case - to first raise these issues.” Id. at 33-

34.

 In the instant case, while the Secretary made his Motion to Amend after filing the 

complaint, it was made before Respondent’s answer was filed, a hearing scheduled, discovery 

held, or settlement negotiations begun, and early enough in the proceedings to allow Respondent 

an opportunity to prepare a full defense. Outside an additional potential expense for filing an 

additional Motion to Dismiss, Hexion does not suggest that the amendment would interfere with 

its ability to prepare its defense. 

I find that the amendment would not cause Respondent any prejudice. 

Respondent disputes the Secretary’s assertion that the Commission does not have a rule 

to amend a citation after a complaint has been filed. It notes that Commission Rule 34(a)(3); 29 

C.F.R. §2200.34(a)(3) provides that “[w]here the Secretary seeks in his complaint to amend his 

citation or proposed penalty, he shall set forth the reasons for amendment and shall state with 

particularity the change sought.” According to Hexion, the basis for the amended claims was 

known to the Secretary more than a year before the complaint was filed. Yet, the Secretary’s 

Motion fails to offer any explanation or justification as to why he was not able to set forth the 

reasons for the amendment. 
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The Commission rule cited by Respondent applies only when the Secretary seeks to 

amend the citation or proposed penalty in the complaint. It does not apply after the complaint 

has been filed. As noted, the applicable rule is Fed.R.Civ.P. 15(a)(2) which plainly states that 

the “court should freely give leave when justice so requires.” 

2. Respondent also asserts that the Motion to Amend should be denied as futile because 

both the underlying and the amended citation are time barred under the six month statute of 

limitations provision of Section 9(c) of the Act, 29 U.S.C. §658(c). Respondent asserts that the 

Secretary first learned of the alleged deficiency in its MSDS for BPA no later than May 14, 2013 

when OSHA first advised Hexion that its “MSDS(s) is not compliant with the standard” under 

“either a hazard determination (HCS 1994) or a hazard classification (HCS 2012) BPA.” This 

was more than a year before the original citation was issued on September 10, 2014. 

As will be discussed, infra, I find that the citation is not barred by Section 9(c) of the Act. 

Therefore, it does not constitute a basis for denial of the Secretary’s Motion to Amend. 

Finally, Respondent does not object to the Secretary’s Motion to Amend the complaint to 

reflect the name change of Respondent. Respondent alleges no prejudice from the amendment. 

Accordingly, the Motion is granted. See John Hill, d/b/a Leisure Resources Corp., 7 BNA 

OSHC 1485 (No. 78-0047, 1979). 

Finding that the amendment would not be barred by Section 9(c) of the Act, and that 

Respondent has not established that it would be prejudiced by the amendment, the Secretary’s 

Motion to Amend the citation and complaint is GRANTED.

Under Fed.R.Civ.P. 15(c)(1)(B) the amendment relates back to the date of the original 

citation. See Vicon Corp., 10 BNA OSHC 1153, 1157 (No. 78-2923, 1981), aff’d 691 F.2d 503 

(8th Cir. 1982). 
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B. Respondent’s Motion to Dismiss 

Respondent Moves to Dismiss the Complaint and makes three arguments in support of its 

motion. 

1. Respondent first asserts that the citation and complaint fail to state a claim upon which 

relief can be granted. Hexion points out that the time between May 25, 2012 and June 1, 2015 

constituted a transition period during which it was legally entitled to comply with either HCS 

1994 or the revised standard, HCS 2012. The citation and complaint only allege that Hexion 

failed to comply with HCS 1994. Respondent asserts that it is not enough for the Secretary to 

allege that it violated only one of the standards applicable during the transition period, because it 

could fulfill all applicable HCS requirements during this period by complying solely with the 

other standard. Because Respondent was entitled to comply with either HCS 1994 or HCS 2012, 

the Secretary’s failure to allege a violation of HCS 2012 is fatal to the citation. 

As discussed, supra, the Secretary’s Motion to Amend the citation and complaint to 

allege violations of both HCS 1994 and HCS 2012 is granted. Therefore, Respondent’s 

argument that the Secretary failed to state a claim upon which relief can be granted is moot. 

2. Hexion next asserts that the citation and complaint must be dismissed on the grounds 

that the action is barred by the six month statute of limitations provision of Section 9(c) of the 

Act.2 

Respondent argues that Section 9(c) requires that a citation be issued within six months 

of the occurrence of a violation or, for uncorrected violations, within six months of the date the 

Secretary discovered or reasonably should have discovered the violative condition. See Austin 

Indus’l Specialty Servs., LP, 24 BNA OSHC 1994, 2005-06 (No. 11-2555, 2013), aff’d 765 F.3d 

 

2

 Section 9(c) states that: “No citation may be issued under this section after the expiration of six months following 

the occurrence of any violation.” 
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434, 442-43 (5th Cir. 2014). 

Respondent likens the alleged failure to maintain an appropriate MSDS to a recordkeeping violation. It cites to AKM LLC v. Secretary of Labor, 675 F.3d 752, 759 (D.C. Cir. 

2012) where the court rejected the Secretary’s argument that the alleged record-keeping 

violations should be treated as continuing violations. Id. at 756. The court stated that “the ‘mere 

failure to right a wrong ... cannot be a continuing wrong which tolls the statute of limitations,’ 

for if it were, ‘the exception would obliterate the rule.’” Id. at 757, citing Fitzgerald v. Seamans, 

553 F.2d. 220, 230 (D.C. Cir. 1977). Consequently, “the Secretary’s continuing violations 

theory would transform the failure to right a past wrong into a reason not to start the limitations 

clock - a result our precedents plainly proscribe.” Id. at 758. 

I find Hexion’s reliance on AKM to be inapposite. AKM involved a record-keeping 

violation. The failure to maintain an appropriate MSDS is not a record-keeping violation that 

occurs upon failure to enter the record. Rather, the alleged failure to maintain a compliant 

MSDS constitutes a continuing violation that recurs every time an employee is exposed to a 

hazard. In Central of Georgia Railroad Company the Commission discussed the meaning of 

“occurrence:” 

For section 9(c) purposes, a violation of section 5(a)(2) of the Act “occurs” 

whenever an applicable occupational safety and health standard is not complied 

with and an employee has access to the resulting zone of danger. Therefore, it is 

of no moment that a violation first occurred more than six months before the 

issuance of a citation, so long as the instances of noncompliance and employee 

access providing the basis for the contested citation, occurred within six months 

of the citation's issuance. 

5 BNA OSHC 1209, 1211 (No. 11742, 1977) (emphasis in original), aff’d in relevant 

part 576 F.2d 620 (5th Cir. 1978). 

The purpose of the HCS is to “make employees aware of the hazards arising from 

chemicals used in the workplace and ensure that they have access to information regarding 
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means of protecting themselves from such hazards.” Safeway Store No. 914, 16 BNA OSHC 

1504, 1505 (No. 91-373, 1993). 

Assuming, arguendo, that BPA presents reproductive hazards, employees were exposed 

to a hazard every time they worked with BPA, without access to an appropriate MSDS informing 

them of the hazards presented by the chemical. Under such circumstances, the statute of 

limitations would begin to run when either an appropriate MSDS was provided or the chemical 

was removed from the workplace.3

 Neither is alleged to have occurred here more than six 

months prior to issuance of the citation. Respondent’s theory would provide it with a virtual “get 

out of jail” free card to continue to expose employees to BPA without providing employees with 

the information necessary to protect themselves from a potentially hazardous substance. 

Congress could not have intended that Section 9(c) produce such a result. 

3. Finally, Respondent asserts that the citation is moot because they seek to enforce and 

abate alleged non-compliance with HCS 1994 only, which will no longer have any legal effect 

by the time this matter is adjudicated on the merits and therefore there is no live controversy at 

all stages of the proceeding. 

Having granted the Secretary’s Motion to Amend the citation and complaint to include 

the current version of the standard, I find that this argument no longer applies. 

 Accordingly, Respondent’s Motion to Dismiss is DENIED. 

SO ORDERED. 

 

 /s/ Carol A. Baumerich 

Dated: October 2, 2015 Honorable Carol A. Baumerich 

Washington, D.C. Judge, OSHRC 

 

3

 Where the hazards created by the violation of a standard persist, a party may continue to violate the standard until 

its obligation to act pursuant to the standard is satisfied. See AKM, 675 F.3d at 758. See also Id. at 763 (Garland, J., 

concurring).