Summary of OSHA’s GHS Clarifications

2016 marks the year that companies all over the United States are to be in compliance with GHS standards.  Although the deadline for chemical manufacturers to convert all their MSDS to GHS compliant SDS has already passed on June 1, 2015, many chemical companies are still out of compliance.  Part of the problem stems from the confusion that companies experience when attempting to convert their MSDS.

Although it is challenging to convert MSDS into SDS without proper guidance and resources, OSHA has released multiple Letter of Intents to help clarify points that may cause confusion.  Quantum has also embarked on a series of articles to highlight these points and further help chemical companies understand their requirements.

1. Hazards Not Otherwise Classified (HNOC) Under GHS – LOI released March 4, 2014

This LOI defined the definition of a HNOC and when the classification should be applied.  It clarified chemicals classification, directing readers to multiple sections of the OSHA Act. Substances not classified as a HNOC were also disclosed, such as water, which could be potentially hazardous depending on the physical state and temperature.

Key points addressed in this LOI:

Under OSHA’s Hazard Communication Standard, an HNOC is defined as follows:

an adverse physical or health effect identified through evaluation of scientific evidence during the classification process that does not meet the specified criteria for the physical and health hazard classes addressed in this section. This does not extend coverage to adverse physical and health effects for which there is a hazard class addressed in this section, but the effect either falls below the cut-off value/concentration limit of the hazard class or is under a GHS hazard category that has not been adopted by OSHA (e.g., acute toxicity Category 5).

29 C.F.R. § 1910.1200(c).

Classifiers may rely on the following guidance in applying the definition of an HNOC under HCS 2012:

1. 1. 1. An adverse physical or health effect is a material impairment of health or functional capacity, as that phrase is used in section 6(b)(5) of the OSH Act, 29 U.S.C. § 655(b)(5), resulting from workplace exposure to a chemical.
      2. A health effect is determined in accordance with the weight of evidence criteria in A.0.3.
      3. The term physical effect generally refers to a material impairment of health or functional capacity caused by the intrinsic hazard(s) of a particular chemical in normal conditions of use or foreseeable emergencies. Scalds caused by exposure to chemicals at high temperatures, and slips and falls caused by treading on a solid chemical shaped in a rounded form or spilled liquids are not covered physical effects under the HNOC definition. By way of example, water is not classified as an HNOC merely because an employee might be scalded by contact with boiling water or because an employee might contract hypothermia by being immersed in cold water for a long period of time. Similarly, water is not classified as an HNOC by virtue of the fact that an employee might be injured when slipping and falling on a wet surface or when sprayed by water at high pressure. The foregoing examples of adverse physical effects that are outside the scope of HNOCs are designed to assist in better understanding the concept of HNOCs. They are not intended to be exhaustive or limited to chemicals, such as water, which are not hazardous chemicals.

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2. Combustible Dust Under GHS – LOI released March 4, 2014

Combustible dust is defined as any fine material that has the ability to catch fire or explode when mixed with air.  Combustible dusts can be from solid organic materials, many metals, and inorganic materials.

GHS mandates that Safety Data Sheets (SDS) disclose substances containing or potentially containing combustible dust under a variety of scenarios.  SDS, labels on shipped containers and workplace labels are to reflect GHS standard of classification.

Key points addressed in this LOI:

1. Modification of Required Hazard Statement. Under HCS 2012, chemicals that have been classified as combustible dusts must include the following hazard statement on their labels and safety data sheets (SDSs): “May form combustible dust concentrations in air.” You ask whether, for chemicals that pose a combustible dust hazard when processed but not in the current shipped form, the responsible party1 may include additional language with the hazard statement. You propose two alternatives (indicated by italics):

1. 1. 1. If converted to small particles during further processing, handling, or by other means, may form combustible dust concentrations in air.
      2. If small particles are generated during further processing, handling or by other means, may form combustible dust concentrations in air.

OSHA RESPONSE: Paragraph C.3.1 of Appendix C to HCS 2012 states that the responsible party may provide additional information on a label “when it provides further detail and does not contradict or cast doubt on the validity of the standardized hazard information.” OSHA views either of the alternatives you propose as falling within C.3.1 because they provide additional detail and do not contradict or cast doubt on the validity of the required hazard statement where the chemical does not present a combustible dust hazard in the form shipped. Similarly, the required elements listed in Appendix D for SDSs are the minimum information required and OSHA believes that additional information that satisfies C.3.1 may be included in Section 2 of the SDS if the additional information concerns hazard identification. Therefore, it would be acceptable to OSHA if responsible parties included either alternative in conjunction with the required hazard statement on labels and SDSs for such chemicals.

1. Safety Data Sheets.

1. 1. 1. Your first question concerns a chemical that is not a combustible dust in the form shipped, and does not present any other hazard under HCS 2012 in the form shipped, and will not present a combustible dust hazard or any other hazards under HCS 2012 in normal conditions of use or foreseeable emergencies unless they are processed by a downstream user in such a manner which reduces its particle size. You ask whether, for such a chemical, the responsible party may include the following additional language at the beginning of the SDS: This product is not hazardous in the form in which it is shipped by the manufacturer, but may become hazardous through downstream activities (e.g. grinding, pulverizing) that reduce its particle size. Those hazards are described below. OSHA RESPONSE: Yes. These types of additional statements may be added to the SDS so long as they are relevant and do not contradict or cast doubt on the validity of the classification or other information in the SDS.
      2. You ask whether Section 2 of the SDS for a chemical posing a combustible dust hazard may include precautionary statements about the combustible dust hazard although none are specified by Appendix C of HCS 2012. OSHA RESPONSE: Yes. OSHA has no required precautionary statements for combustible dust, and therefore none is required in Section 2 of the SDS. Responsible parties may add their own precautionary statements to Section 2 so long as they are relevant and do not contradict or cast doubt on the validity of the other information in the SDS.
      3. You ask whether Section 2 of the SDS for a chemical posing a combustible dust hazard may include Hazard Management Information System (HMIS) and National Fire Protection Association (NFPA) ratings. OSHA RESPONSE: Yes. Responsible parties may include HMIS and NFPA ratings in Section 2 of the SDS as long as they do not contradict or cast doubt on the HCS 2012 classification.

1. Labels on shipped containers

1. 1. 1. You ask whether it is acceptable for a shipped container containing a chemical that presents a combustible dust hazard to include an HMIS label in addition to the information required by 1910.1200(f)(1) and C.4.30. OSHA RESPONSE: Yes, so long as the ratings in the HMIS label do not contradict or cast doubt on the validity of label information required by HCS 2012 (C.3.1) or impede the user’s ability to identify the information required by HCS 2012 (C.3.2).
      2. Appendix C.4.30, footnote 2, states that where chemicals are not shipped in a dust form but may be processed under normal conditions of use by a downstream user in such a way as to create a combustible dust hazard, the responsible party may provide labels in accordance with Section 1910.1200(f)(4). That provision allows labels to be provided once to downstream users, either with the initial shipment or with the SDS for the chemical. You ask whether, when Section 1910.1200(f)(4) applies, the shipped container may bear a label containing only product identifiers, manufacturer name and address, and an emergency phone number. OSHA RESPONSE: Yes, where Section 1910.1200 (f)(4) applies and the HCS 2012 label has already been provided by other means, it is acceptable to provide only this information on a shipped container. In fact, OSHA encourages responsible parties to provide product identifier and contact information on each shipped product whenever they take advantage of the Section 1910.1200 (f)(4) option. However, any information that appears may not contradict or cast doubt on the validity of the label information required by HCS 2012.
      3. Finally, you ask whether, under footnote 2 to C.4.30, the Section 1910.1200 (f)(4) partial labeling exemption is available for a liquid that under normal conditions of use may (by evaporation or other process) turn into a solid form that presents a combustible dust hazard. OSHA RESPONSE: Yes, assuming the liquid in its shipped form presents no other hazards that would be classified under HCS 2012. If the liquid presents any other hazards, then (f)(4) would not apply. Again, OSHA encourages responsible parties to provide the product identifier and contact information on each such product.

1. Workplace labels. This issue concerns the workplace labeling requirements under Section 1910.1200(f)(6) in situations where a chemical is not a combustible dust in the form shipped, but may become one when processed by a downstream user. Your first question is whether, when the responsible party provides the label in accordance with Section 1910.1200 (f)(4), the downstream user must label any containers containing the chemical in the workplace. Second, you ask that we clarify the labeling obligations of the downstream user once the product is processed in a way to create the combustible dust hazard.

OSHA RESPONSE:

(1) The one-time label rule of Section 1910.1200(f)(4) applies when the product is a solid metal, solid wood, solid plastic or whole grain, and is not limited to chemicals whose only downstream hazard is the combustible dust hazard. In addition, under footnote 2 to C.4.30, the Section 1910.1200 (f)(4) exemption is also available to other products, including liquids, that present only a combustible dust hazard under normal conditions of use and foreseeable emergencies, but not in the form shipped (as discussed in section 3.c of this letter above).

(2) In situations where a chemical is not a combustible dust in the form shipped, but may become one when processed or handled by a downstream user, and the responsible shipper-party provides the one-time container label in accordance with Section 1910.1200(f)(4), the downstream user’s obligation to label any workplace containers of that chemical are determined as follows:

(a) If the chemical will not be processed or handled in a way that creates a combustible dust hazard or any other hazard that would be classified under HCS 2012, there is no Section 1910.1200(f)(6) labeling requirement.

(b) If the chemical will first be placed in a stationary process container (e.g., grinder) where it will be processed in a way that creates a combustible dust hazard, the downstream user would be required to label the stationary process container with the Section 1910.1200(f)(6) label, or may comply with the alternative labeling methods provided by Section 1910.1200(f)(7), and need not label the shipping container.

(c) If the chemical will first be placed in a non-stationary process container where it will be processed in a way that creates a combustible dust hazard, the downstream user would be required to label the non-stationary process container with the Section 1910.1200(f)(6) label, but not the shipping container.

(d) If the chemical will be processed or handled in a way that creates a combustible dust hazard before it is placed in a process container, the chemical would be subject to the Section 1910.1200(f)(6) labeling requirement once the chemical is brought into the work area where it will be processed in a way to create the combustible dust hazard. If the chemical is not in a container when brought into the area where it will be processed, no Section 1910.1200(f)(6) labeling would be required prior to processing.

(e) Finally, the workplace labeling requirements in Section 1910.1200(f)(6) apply only to chemicals that are in containers2 . Thus, individual boards or pipes that might create a combustible dust hazard when cut do not need to be labeled under Section 1910.1200 (f)(6). It is permissible (and OSHA encourages) the use of signs or placards to advise workers of the hazard in such circumstances, but signs and placards are not required.

[View Full Letter of Interpretation]

3. Petroleum Stream Classification Under GHS – LOI released March 4, 2014

According to OSHA, petroleum stream includes crude oil and anything derived from crude oil that is a “well-defined chemical compound defined by a CAS #” as well as substances of unknown or variable composition.  This LOI provides information about creating SDS for petroleum streams as well as specific guidelines for classifying health hazards under GHS.

Key points addressed in this LOI:

For purpose of this letter, a petroleum stream includes crude oil and anything derived from crude oil that is:

• • • a well-defined chemical compound defined by a Chemical Abstracts Service Number, such as butane or propane, aside from impurities and stabilizers; or
    • a Substance of Unknown or Variable composition, Complex reaction products or Biological materials (UVCBs) defined by a Chemical Abstracts Service Number.

Petroleum Stream Classification

The obligation to classify the health hazards of petroleum streams under the Hazard Communication Standard may be satisfied by following the below guidance, in conjunction with the general guidance found in A.0.1-A.0.3, in the application of the classification criteria in Appendix A of the standard.

1. 1. For hazard classes other than carcinogenicity, germ cell mutagenicity, and reproductive toxicity (“CMR”), a petroleum stream shall be classified as follows:

1. 1. 1. 1. Where test data are available for the petroleum stream, the classification of the stream will always be based on those data.
         2. Where test data are not available for the stream itself, the classification may be based on a toxicologically appropriate read across from test results of a substantially similar stream. A substantially similar stream is one that has a similar starting material, production process, and range of physico-chemical properties (e.g., boiling point and carbon number) and similar constituent compositions.
         3. If test data are not available either for the stream itself or a substantially similar stream, then the method(s) described in each chapter of Appendix A for estimating the hazards based on the information known will be applied to classify the stream (i.e., application of cut-off values/concentration limits).

1. 1. For the CMR hazard classes:

1. 1. 1. 1. When reliable and good quality data are available to classify a petroleum stream-based on testing of the stream or the toxicologically appropriate read-across to a substantially similar stream-a weight of evidence analysis supported by that data may be relied upon for classification regardless of whether a CMR constituent is present in the stream. A substantially similar stream is one that has a similar starting material, production process, and range of physico-chemical properties (e.g., boiling point and carbon number) and similar constituent compositions.
         2. To be reliable and good quality test data, the data must be from one or more tests that reflect appropriate study design and performance. The study or studies must appropriately take into account dose and other factors such as duration, observations, and analysis (e.g. statistical analysis, test sensitivity) so as to conclusively exclude the possibility that the lack of effect(s) is due to a poor study design, e.g., insufficient dose or number of subjects. A study (or studies) is conclusive in this sense if, when viewed in conjunction with all relevant information about the chemical, its results are consistent with the relevant information and allow a strong inference that the lack of effects is not due to a poor study design.
         3. Where reliable and good quality data are not available on the stream or a substantially similar stream, then the method(s) described in each chapter of Appendix A for estimating the hazards based on the information known will be applied to classify the stream (i.e., application of cut-off values/concentration limits).

Safety Data Sheet Disclosure

Many petroleum streams are of unknown or variable concentration, and cannot be represented by unique structures, molecular formulas, or fixed concentration percentages. In addition, petroleum industry test data are largely based on the testing of streams rather than the hundreds or thousands of individual constituents of those streams. In light of these facts, application of the disclosure requirements in Section 3 of table D.1 to petroleum streams may be infeasible and/or undermine the usefulness of the SDS. Thus, SDSs for petroleum streams that are in accordance with the following guidance will be considered to be in compliance with the standard for enforcement purposes.

1. 1. When dealing with petroleum streams, it may be more important for the user to know the concentrations of particular groups of constituents that are toxicologically similar. For example, in the classification of a petroleum stream, it may be more relevant to know the total concentration of a class of constituents such as polycyclic aromatic hydrocarbons (PAH) to understand the health hazards of the stream, rather than knowing the concentration of each particular PAH. Further, information about the presence and concentration of particular constituents of the group might not be available, or even if it were, inclusion of every one could lead to the listing of hundreds of constituents. This is likely to undermine the effectiveness of the disclosure requirements in Section 3. Thus, where the classifier can show that it is toxicologically appropriate to treat a particular set of constituents as a group, and all of the toxicologically useful information about the constituents in that group is conveyed by treating them as a group, SDS need only include the name and concentration of that group in Section 3 if present above the cut-off/concentration limit (or if the group presents a health risk below the cut-off/concentration limit). The foregoing example of PAHs is designed to assist in better understanding the concept of this paragraph. It is not intended to limit the application of this approach to any particular type or group of constituents.
   2. Other constituents, such as benzene or n-hexane, that are known to be present in the stream, and that present classified health hazards, must be listed individually in Section 3 along with their concentrations if present above the cut-off/concentration limit (or if the constituent presents a health risk below the cut-off/concentration limit).
   3. Where there is “reliable and good quality” data supporting a weight of evidence determination that a constituent in a petroleum stream poses no health risk (as per A.0.4.3.3) in a downstream use of the stream, it need not be disclosed on the SDS.
   4. Where the classifier does not know the exact concentration of a constituent or group of constituents included in Section 3 of the SDS, it may use a range of concentrations instead. Concentration ranges, if used, must be based on the information available to the classifier, such as analysis results, product specifications, or nature of the process, and the high end of the range reported may not affect the reported hazard classification.

[View Full Letter of Interpretation]

4. Single Target Organ Toxicity (STOT) Classification Under GHS – LOI released March 4, 2014

In this LOI, OSHA clarified the circumstances in which mixtures containing  a Category 1 Single Target Organ Toxicity (STOT) in levels of 1% to less than 10% could be acceptable to be categorized as a Category 2 STOT.  The LOI provides information on the specific mixture percentages required to meet GHS standards.

Key points addressed in this LOI:

In particular, for mixtures containing from 1% to less than 10% of a Category 1 STOT (single exposure (SE) or repeat exposure (RE)), you asked whether there were any circumstances in which OSHA might accept a classification of the mixture as a Category 2 STOT. OSHA agrees that under the following limited circumstances, such a classification would be acceptable.

Mixtures containing from 1% to less than 10% of Category 1 STOT-SE ingredients may be classified as Category 2 STOT-SE under the limited following circumstances. A.8.3.1 allows for the classification of mixtures under the criteria as used for substances. Where the classification of the ingredients is based on animal data only (see A.8.2.1.6), the use of the guidance values in Table A.8.1 is appropriate as a part of the total weight of evidence approach. It may be appropriate, in light of the guidance values, to classify a mixture containing from 1% to less than 10% of Category 1 STOT-SE substances as a Category 2 STOT-SE hazard, where warranted by the weight of evidence. Such a classification must be consistent with all of the criteria in A.8.2.1 (“Substances of Category 1 and Category 2”), including consideration of the severity of the effect observed. However, OSHA would not accept a determination not to classify a mixture based on this approach.

Mixtures containing from 1% to less than 10% of Category 1 STOT-RE ingredients may be classified as Category 2 STOT-RE under the limited following circumstances. A.9.3.1 allows for the classification of mixtures under the criteria as used for substances. Where the classification of the ingredients is based on animal data only (see A.9.2.6) the use of the guidance values in Tables A.9.1 and A.9.2 is appropriate as a part of the total weight of evidence approach. It may be appropriate, in light of the guidance values, to classify a mixture containing from 1% to less than 10% of Category 1 STOT-RE substances as a Category 2 STOT-RE hazard, where warranted by the weight of evidence. Such a classification must be consistent with all of the criteria in A.9.2 (“Classification Criteria for Substances”), including consideration of the severity of the effect observed. However, OSHA would not accept a determination not to classify a mixture based on this approach.

[View Full Letter of Interpretation]

5. Consumer Product Safety Commission (CPSC) Label Elements vs. GHS – LOI released May 12, 2014

This LOI clarifies that when products are within the labeling requirements of the Consumer Product Safety Act (CPSC) and the Federal Hazardous Substance Act, they are exempt from the GHS standard.  However, it adds that manufacturers seeking to add additional safety information on a label may do so, but it may not “contradict or cast doubt” on any OSHA-required hazard information.

A hypothetical scenario where OSHA and the CPSC have different view points on flammables shows a divide between the two regulatory parties.  Contact your local OSHA representative if you are ever in doubt.

Key points addressed in this LOI:

Background: Your client’s chemical is sold as a consumer product in addition to being sold to industrial markets. You believe as such, this product must meet the labeling requirements of both the Consumer Product Safety Commission (CPSC) and OSHA’s HCS 2012. Your client would like to label the product with the CPSC-required information on the front panel (either the front of a fold-back label or the front of the container) and the HCS-required information on the back panel (either the underside of the fold-back label or the back of the container). However, you are concerned because there are differences in the chemical hazard classification criteria which may result in different and possibly conflicting warning information on the same label.

Question 1: Would it be OSHA-compliant to have both the CPSC and HCS 2012 label elements in different locations on the same label?

Response: OSHA does not approve specific product labels, but we can explain the label requirements under OSHA’s HCS 2012. Your questions concerning CPSC label requirements, other than the exceptions stated in HCS 2012, must be addressed to the CPSC. OSHA exempts products from HCS labeling when they are subject to a consumer product safety standard or labeling requirement of the Consumer Product Safety Act and the Federal Hazardous Substances Act, per HCS paragraph 1910.1200(b)(5)(v). However, any chemical that is not subject to this or other labeling exemptions must be labeled in accordance with the HCS requirements specified at paragraph 1910.1200(f), regardless of whether it is also required to conform with the labeling requirements set by another agency.

The HCS requires that the label information on all shipped containers of chemicals contain specific information that is based on the classification of the chemicals in the product. The following information is required on labels as explained in 1910.1200(f)(1), with the label elements defined in 1910.1200(f)(1)(i)-(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.

Manufacturers are permitted to include supplemental information on HCS labels under Appendix C.3, Supplementary Hazard Information. Chapter C.3.1 requires that supplementary information be limited to situations where it would not contradict or cast doubt on the validity of the standardized hazard information. Chapter C.3.2 requires that the placement of the supplemental information must not impede indication of the information required to be on the label under HCS 2012. OSHA may consider the CPSC or any other agency-required information as supplemental information. This letter provides clarification on how manufacturers, importers or distributors can incorporate supplemental information into their labels that provides further detail, does not contradict or cast doubt on the validity of the standardized hazard information, and does not impede the identification of the required HCS information.

For clarification, the following labeling schemes would be considered as casting doubt or impeding the identification of the required HCS 2012 information:

1. 1. Intertwining the supplemental information with HCS 2012 information, so that the worker cannot easily identify the required hazard information.
   2. Displaying the supplemental information more prominently than the HCS 2012 information (e.g., different font sizes).
   3. Placing the supplemental information on the outside of a fold-back label and the required HCS 2012 information on the inside.
   4. Providing the label elements in a foreign language more prominently than the label elements in English or in such a manner that the required label elements in English are not the most prominent items on the label.
   5. The use of symbols other than the required HCS 2012 symbols within the red border (except the environmental symbol) as part of pictograms.
   6. The use of a signal word other than that which is appropriate for the chemical’s hazard.

There may be other labeling schemes where the use of supplemental information does not provide further detail, contradicts or casts doubt on the required information, and/or impedes the identification of the required information. During an OSHA inspection, an OSHA compliance safety and health officer would determine a chemical label’s compliance with the HCS on a case-by-case basis to ensure it contains the information required in 1910.1200(f), as well as meeting the requirements for any supplemental information, if found on the label.

Question 2: Would OSHA consider a label for a Category 3 flammable liquid that includes the OSHA signal word and hazard statement “Warning. Flammable liquid and vapor” in addition to the CPSC label element of “Warning: Combustible” to be in compliance with HCS 2012?

Response: No. The information in your example would cast doubt on the validity of OSHA’s required information in violation of § 1910.1200(f)(2) and Appendix C.3.1. HCS 2012 classifies a chemical as flammable based on its flash point, and in some situations, its initial boiling point. See chapter B.6.2 of Appendix B, Physical Hazard Criteria. The HCS 2012 requirements for Category 3 and Category 4 flammable liquids have different flashpoints than the CPSC’s flammable/combustible cut-off limits. Under HCS 2012, a Category 3 flammable liquid has a required signal word “Warning” and hazard statement “flammable liquid and vapor,” and a Category 4 flammable liquid has the required signal word of “Warning” and hazard statement of “combustible liquid.” Thus, the use of the CPSC “Warning: combustible liquid” casts doubt on the Category 3 flammable liquid classification and may cause an employer or employee to think that the chemical is less hazardous than it is.

[View Full Letter of Interpretation]

6. Laboratory Requirements and Secondary Container Labeling – LOI released Nov. 10, 2014

According to OSHA a “laboratory” is a facility where the “laboratory use of hazardous chemicals” occurs.” OSHA’s definition states that it is a “workplace where relatively small quantities of hazardous chemicals are used on a non-production basis”. In cases of lab use, these labs are covered under the Laboratory Standard (29 CFR 1910. 1450) and not GHS. Labs not covered by the Laboratory Standard will be subject to GHS standards, however, OSHA “does not have a specific labeling requirement for secondary containers of hazardous chemicals in a covered lab.”

Key points addressed in this LOI:

Background: HCS 2012 does not apply to laboratories that are covered under the Laboratory standard, 29 CFR 1910.1450. The HCS covers laboratories whose function is to produce commercial quantities of materials, and all laboratories connected with production processes, including quality control laboratories. The Laboratory standard, on the other hand, covers laboratories meeting the criteria of “laboratory use” and “laboratory scale” and excludes procedures that are part of a production process. 29 CFR 1910.1450(a)(1). The preamble to the Laboratory standard states “most quality control laboratories are not expected to meet the qualification for coverage under the Laboratory Standard. Quality control laboratories are usually adjuncts of production operations…” 55 Fed. Reg. 3300, 3312 (Jan. 31, 1990). Research and academic laboratories meeting the criteria of “laboratory use” and “laboratory scale” are covered by the Laboratory standard, not the HCS.

Other types of laboratories, such as quality control and production laboratories, that are not covered by the Laboratory standard are covered by the HCS. Under 29 CFR 1910.1200(b)(3), laboratories covered under the HCS must:

• • • Ensure that labels on incoming containers of hazardous chemicals are not removed or defaced, (b)(3)(i);
    • Maintain any safety data sheets that are received with incoming shipments of hazardous chemicals, and ensure that they are readily accessible during each workshift to laboratory employees when they are in their work areas, (b)(3)(ii);
    • Ensure that laboratory employees are provided information and training in accordance with paragraph (h) of the HCS, except for the location and availability of the written hazard communication program under paragraph (h)(2)(iii), (b)(3)(iii); and,
    • If the laboratory ships hazardous chemicals, it must meet the label and SDS requirements in (f) and (g) of the HCS.

The series of OSHA publications on Laboratory Safety, including the information sheet you refer to in your letter, Laboratory Safety: Labeling and Transfer of Chemicals Quick Facts, are provided as guidance for employers and employees working in a laboratory-type setting in general. As we transition to full compliance with HCS 2012, the agency will be revising these and other publications to include the HCS 2012 requirements.

Your paraphrased questions and our responses are below.

Question: What is the expectation for labeling portable (secondary) containers in an academic or research laboratory?

Response: Academic and research laboratories that are covered under 1910.1450 are exempt from the HCS 2012. The Laboratory standard requires that labels on incoming containers of hazardous chemicals not be removed or defaced, 1910.1450(h)(1)(i), but does not have a specific labeling requirement for secondary containers of hazardous chemicals in a covered laboratory. The Laboratory standard allows laboratories flexibility in tailoring their written Chemical Hygiene Plan (CHP) and standard operating procedures to be protective of employees in laboratories (29 CFR 1910.1450(b)). In addition, 1910.1450(f)(4), Training, requires the employer to train employees regarding the physical and health hazards of chemicals in the work area, the measures employees can take to protect themselves from these hazards, and the employer’s CHP.

OSHA encourages employers to consult non-mandatory Appendix A of the Laboratory standard, National Research Council Recommendations Concerning Chemical Hygiene in Laboratories, which contains numerous recommendations for labeling chemicals in laboratories. Employers may also wish to consult the most recent edition of the National Resource Council’s Prudent Practices in the Laboratory Handling and Management of Chemical Hazards for further recommendations on safe laboratory practices.1

Question 2: Will employers be required to re-label containers of hazardous materials previously purchased to comply with the HCS provisions?

Response: No, employers need not re-label containers of hazardous chemicals that were shipped prior to June 1, 2015. Manufacturers and importers are required to ship containers of hazardous chemicals with HCS 2012-complaint labels beginning June 1, 2015 (for distributors, the date is December 1, 2015). The employer should ensure that employees understand the differences between the HCS 1994-compliant labels and HCS 2012-compliant labels and that the lack of pictograms, signal words, etc., on HCS 1994-complaint labels does not mean the chemical(s) are less hazardous.

As you aware, the State of New York operates a public sector only occupational safety and health program under a plan approved by the U.S. Department of Labor. This program provides safety and health protections to state and local government employees within the state of New York. State plans are required to implement regulations that are “at least as effective” as the federal standards.

[View Full Letter of Interpretation]

7. Simplifying Hazard Statements – LOI released Nov. 10, 2014

When classifying chemicals according to GHS standards, certain hazard statements associated with hazardous chemicals may be repeated. This LOI clarifies to chemical manufactures and importers that redundant hazard statements may be combined to shorten text, as long as all salient safety information is preserved. For example, the hazard statement “Causes severe skin burns and eye damage” and covers eye damage, so further eye damage statements may be omitted.

Key points addressed in this LOI:

Question: When the hazard statement, “Causes severe skin burns and eye damage,” appears on a label, is it acceptable to omit the hazard statement, “Causes serious eye damage” per Appendix C.2.2.1 of HCS 2012?

Response: Yes. HCS 2012 allows chemical manufacturers and importers to combine hazard statements where the information is related and the combination can shorten the text required on the label. Appendix C.2.2.1 states, “Hazard statements may be combined where appropriate to reduce the information on the label and improve readability, as long as all of the hazards are conveyed as required.” Since the hazard statement, “Causes severe skin burns and eye damage,” includes “eye damage,” it is acceptable to omit the second hazard statement.

[View Full Letter of Interpretation]

8. Visibility of Required GHS Elements on Labels – LOI released Nov. 27, 2014

GHS mandates six required elements on shipping labels – product identifier, hazard statement, signal word, pictogram, precautionary statement, and the manufacturer’s name/address. Out of the six elements, only three are required to be immediately viewable, signal word, hazard statement(s), and pictograms.

Key points addressed in this LOI:

Background: In your letter, you stated that your company is converting your safety data sheets and product labels to comply with the formatting requirements specified in HCS 2012. However, the exact placement of the six required elements for labels on shipping containers is not specified by the HCS 2012 paragraph 1910.1200(f)(1). The only provision that specifies a location is paragraph 1910.1200(f)(3), which requires that the elements provided under paragraphs (f)(1)(ii) signal word, (f)(1)(iii) hazard statement(s), and (f)(1)(iv) pictogram(s) be located “together ” on the label.

You also provided two sample product containers with labels to see if they meet the requirements of HCS 2012. The format used for these labels included the required six elements, with grouping together of the signal word, hazard statement(s), and pictogram(s) on each product label. One sample container was a 12-ounce flattened bottle with a label on its front and a second label with additional information on the back of the bottle. The front label contained general product information, including the (f)(1)(i) product identifier, (f)(1)(ii) signal word, (f)(1)(iii) hazard statement(s), and (f)(1)(iv) pictogram(s), located together. The remainder of the required information for HCS 2012, specifically the (f)(1)(v) precautionary statement(s), and (f)(1)(vi) name, address, and telephone number of the chemical manufacturer, importer, or other responsible party, was printed on the back label.

The other sample container was a 19-ounce cylindrical aerosol can with a single label around its entire circumference. The front view of the can’s label contained general product information, along with a product identifier, signal word, hazard statement(s), and pictogram(s), located together. The remainder of the required information for HCS 2012, specifically the precautionary statement(s), name, address, and telephone number of the chemical manufacturer, importer, or other responsible party, was printed on the remainder of the label and viewed as the can is rotated.

Question: What is the correct grouping/placement of the six required elements for labels on shipping containers (product identifier, signal word, hazard statement, pictogram, precautionary statement, and name/address of the manufacturer), per 1910.1200(f)? Must all six elements appear in the same field of view? Do our sample containers with updated labels comply with HCS 2012?

Response: OSHA’s Hazard Communication standard at paragraph (f)(3) specifies:

“The chemical manufacturer, importer, or distributor shall ensure that the information provided under paragraphs (f)(1)(ii) through (iv) of this section is located together on the label, tag, or mark. “

Thus, HCS 2012 does not require all six elements in the same field of view, just the three elements: signal word, hazard statement(s), and pictograms(s). The sample labels which you provided satisfy the HCS 2012 requirement specified in 1910.1200(f)(3) because each label has the (f)(1)(ii) signal word, (f)(1)(iii) hazard statement(s), and (f)(1)(iv) pictogram(s) grouped together in the same field of view.

For products that are sold in small sizes, the containers may be labeled using fold-back labels, pull-out labels, tags or other methods. Further, we refer you to OSHA’s Letter of Interpretation to Dr. Robert L. Watters, Jr., dated June 4, 2013, which explains practical accommodations for manufacturers unable to use pull-out labels, fold-back labels, or tags containing the full HCS 2012-required information.

[View Full Letter of Interpretation]

9. Blank Pictogram Borders – LOI released Dec. 23, 2014

In instances where employers purchased label stock with pre-printed red diamond borders for pictograms, this LOI states that it is not in compliance with regulation to leave the boarders blank, or print the words “Intentionally Blank” or “No GHS Pictogram” inside. In these instances, the red diamond must be completely filled in, removed, or covered.

Key points addressed in this LOI:

Scenario: Your company has designed and purchased label stock that includes four pre-printed, empty red frames to accommodate the required GHS pictograms. For products where only a portion of the empty red frames are filled with pictograms, the unused frames on the label are currently being completely covered (blacked-out) with large black diamonds, as suggested in OSHA’s December 20, 2012, letter of interpretation to Mr. Gary Valasek. However, you ask to use an alternate method.

Question: Is it acceptable to print “Intentionally Blank,” “No GHS Pictogram,” or other similarly phrased text in black lettering inside of an empty red frame to indicate that no additional hazards are associated with a chemical?

Response: No. The HCS does not allow the use of blank red frames on labels. OSHA also does not permit words, the letter “X,” or other means to indicate that the red frame has been intentionally left blank. In 29 CFR 1910.1200, Appendix C, Allocation of Label Elements (Mandatory), C.2.3.1 states, “A square red frame set at a point without a hazard symbol is not a pictogram and is not permitted on the label.” As OSHA explained in the preamble to the final rule, blank red frames that are marked to indicate that they have been intentionally left blank contribute to clutter on the label and distract from the primary message. 77 Fed. Reg. 17574, 17700 (Mar. 26, 2012).

The blacked-out option that your company is currently using is compliant with the requirements of the HCS 2012. Please be advised that if a blank red frame is not fully covered and filled in, the label would not be in compliance.

[View Full Letter of Interpretation]

10. Clarification of Railroad Hazmat workers vs. GHS HazCom – LOI released Dec. 23, 2014

In this letter, OSHA states that while the Department of Transportation (DOT) usually oversee hazardous materials (hazmat) work in the railroad train industry, “DOT rules on hazmat transportation do not preempt OSHA from enforcing occupational safety and health standards regarding hazmat.” Therefore, it is within OSHA’s jurisdiction to enforce railroad hazmat workers for GHS compliance.

Key points addressed in this LOI:

Background

The Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. § 651 et. seq., provides OSHA with the authority to issue and enforce standards and regulations for workplace safety and health. Pursuant to this authority, OSHA established its occupational safety and health standards which are designed for the purpose of protecting workers in the workplace.

Section 4(b)(1) of the OSH Act (29 U.S.C/ §653(b)(1)), states that:

Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies [. . .] exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Your question is paraphrased below, followed by our response.

Question:   Do the requirements of the Hazard Communication Standard (HCS), 29 C.F.R. § 1910.1200 apply to railroad train crew members when they are engaged in hazmat operations?

Response: The Hazardous Materials Transportation Uniform Safety Act of 1990 (HMTUSA) authorizes the U.S. Department of Transportation (DOT) to regulate the transportation of hazardous materials (hazmat) by various modes of transportation, including rail.  However, the following subsections of section 5107 of the HMTUSA (49 U.S.C. § 5107) state:

(d) Coordination of Training Requirements.—In consultation with…the Secretary of Labor, the [DOT] Secretary shall ensure that the training requirements prescribed under this section do not conflict with or duplicate—

(1)the requirements of regulations the Secretary of Labor prescribes related to hazard communication, and hazardous waste operations, and emergency response that are contained in part 1910 of title 29, Code of Federal Regulations; and

(g)(2) An action of the [DOT] Secretary under subsections (a)–(d) of this section and section 5106 is not an exercise, under section 4(b)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653(b)(1)), of statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health.

Therefore, the DOT rules on hazmat transportation do not preempt OSHA from enforcing occupational safety and health standards regarding hazmat transportation.  Yellow Freight Systems, Inc., 17 BNA OSHC 1699, 1700-1701 (Docket No. 93-3292, 1996). It should be noted that OSHA’s HCS provides at 29 C.F.R. § 1200(f)(5):

(5) Chemical manufacturers, importers, or distributors shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged, or marked in accordance with this section in a manner which does not conflict with the requirements of the Hazardous Materials Transportation Act (49 U.S.C. [5101]… et seq.) and regulations issued under that Act by the Department of Transportation.

[View Full Letter of Interpretation]

11. Clarification on SDS requirements for Concentrated Substances and Multiple chemical packaging – LOI Released Dec. 23. 2014

Concentrated chemical products are intended to be diluted in water before use. This letter states that manufacturers usually only need to include an SDS for the concentrated form of the product. Two instances call for additional SDS to be supplied

1. 1. 1. The future dilution will produce a new hazard, or
      2. The dilution somehow produces a new chemical

This letter also clarifies when several hazardous chemicals are packaged together in “separate inner containers” a SDS is required for each separate hazardous chemical in the shipment.

Key points addressed in this LOI:

Question 1: If the end user company adds water to a concentrate solution prior to use, must the SDS for that product reflect the concentrate form of the chemical? If a company sells both concentrate and ready-to-use products, would each product require a unique SDS or would a single SDS suffice?

Response: Manufacturers or importers are required to obtain or develop a safety data sheet for each hazardous chemical that they produce. See 1910.1200(g)(1). The SDS must reflect the concentrate form of the chemical since the end user is the one that adds the water. Additionally, if the manufacturer should reasonably know that a chemical is going to be used in a particular way (e.g., if the chemical is going to be mixed with water by the downstream user), and if that use creates a new hazard, the manufacturer must disclose the hazards of reaction product in Section 10(c) of the SDS. See 1910.1200(g)(2)(x).

If the concentrate chemical contains different ingredients than the ready-to-use chemical, unique SDSs must be developed for each chemical. Single SDSs are permitted only when mixtures have similar hazards and contents (i.e. the chemical ingredients are essentially the same, but the specific composition varies from mixture to mixture or batch to batch). See 1910.1200, Appendix D.

Question 2: If several hazardous chemicals are packaged in such a manner where each is in a separate inner container (e.g. epoxy syringe) or in a distinct compartment of a single container (e.g. amalgam capsule containing mercury and alloy powder), is an SDS required for each different hazardous chemical?

Response: Yes, a separate SDS is required for each distinct hazardous chemical. Paragraph 1910.1200(g)(1) requires chemical manufacturers or importers to develop an SDS for each hazardous chemical they produce or import. Therefore, an SDS is required for each of the chemicals in the epoxy syringe and each of the chemicals in the amalgam capsule. When a manufacturer or importer intends a chemical to be used with another chemical (e.g., that two chemicals in an epoxy syringe or an amalgam capsule will be mixed together), and that use creates a new hazard, the manufacturer must also disclose the hazards of reaction products in Section 10(c) (Stability and reactivity) of the SDS. OSHA would require information on the safe handling and use of the reaction product in other sections of the SDS, if different than the individual components, such as 4 (First-aid measures), 5 (fire-fighting measures), 6 (accidental release measures), 7 (handling and storage), and 8 (exposure controls/personal protection). See 1910.1200(g)(2). In the examples you provided, if there are new hazards created by the reaction of the chemicals in a syringe or amalgam capsule, this information must be included on the SDSs for each hazardous chemical.

As you may be aware, the State of Iowa is one of 25 states plus Puerto Rico and the Virgin Islands that operates its own occupational safety and health program under a plan approved and monitored by federal OSHA. Employers in the State of Iowa must comply with state occupational safety and health requirements. As a condition of plan approval, state plans are required to adopt and enforce occupational safety and health standards that are at least as effective as those promulgated by federal OSHA. State interpretations of its standards must also be as least as effective as federal OSHA interpretations.

[View Full Letter of Interpretation]

12. Truckers Transporting EPA-Exempt Waste vs. GHS – Released Dec. 23, 2014

Certain waste materials transported by truckers servicing drilling sites are exempt from regulation by the EPA’s Resource Conservation and Recovery Act (RCRA). Trucking companies needed clarification on the materials that were granted this exemption by the EPA and how it pertained to GHS. In this LOI, OSHA responds that it’s true that the EPA’s RCRA exempts certain materials from regulation. However, OSHA also stated that while some waste from drilling sites are exempt, not all waste fall under this exemption and will still be held to GHS standards. OSHA can provide details to which materials are exempt and which are not.       

Key points addressed in this LOI:   

Scenario: You provide occupational medicine consultations to truck drivers employed to haul drilling wastes, flowback water, and produced waters off of unconventional gas extraction well sites.  Wastes from unconventional gas extraction sites, such as those using the hydraulic fracturing process, are well-recognized to contain benzene, toluene, ethylbenzene, xylenes, and radioactive materials found naturally in the underlying formation.  Flowback waters may also contain the same hazardous chemicals, such as silica sand, that were used in the fluids injected for the hydraulic fracturing (or fracking) process.

Questions: Is OSHA’s HCS applicable to waste products that are exempt by RCRA?  Would an employer of the truck drivers hauling wastes and produced waters have some responsibility to know what the potential hazards of exposure are to these waste products, and to appropriately educate their employees?

Response: OSHA’s HCS applies to hazardous chemicals known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency (see 29 CFR 1910.1200(b)(2)).  However, the HCS does not apply to “[a]ny hazardous waste as such term is defined by the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. 6901 et seq.), when subject to regulations issued under that Act by the Environmental Protection Agency” (see 29 CFR 1910.1200(b)(6)(i)).

The RCRA defines “hazardous waste” as “solid waste, or combination of solid wastes, which because of its quantity, concentration, or physical, chemical, or infectious characteristics may – (A) cause, or significantly contribute to an increase in mortality or an increase in serious irreversible, or incapacitating reversible, illness; or (B) pose a substantial present or potential hazard to human health or the environment when improperly treated, stored, transported, or disposed of, or otherwise managed” (42 U.S.C. § 6903(5)).  “Solid waste” is defined under the RCRA as garbage, refuse, sludge, “and other discarded material” (42 U.S.C. § 6903(27)).

EPA’s regulations implementing RCRA provide that certain solid wastes are not hazardous wastes, including “[d]rilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas or geothermal energy”  (40 CFR § 261.4(b)(5)).  EPA also issued guidance in October 2002 explaining that while gas exploration and production (E&P) wastes (e.g., flowback or produced waters) are exempt from RCRA Subtitle C hazardous waste regulations, these waste types may fall under the control of state regulations, RCRA Subtitle D solid waste regulations, and other federal regulations.  See Exemption of Oil and Gas Production Wastes from Federal Hazardous Waste Regulations (EPA 530-K-01-004), available at: http://www.epa.gov/epawaste/nonhaz/industrial/special/oil/oil-gas.pdf*.  This guidance document also includes lists of both exempt and non-exempt waste products.1

When waste does not meet the definition of “hazardous waste” under the RCRA regulations, it is covered by the HCS if it meets the standard’s definition of “hazardous chemical” and if it does not fall under any of the other HCS exemptions.  The HCS defines “hazardous chemical” as “any chemical which is classified as a physical hazard or health hazard, a simple asphyxiant, or combustible dust, pyrophoric gas, or hazard not otherwise classified”  (29 CFR 1910.1200(c)).  The HCS requires employers to provide employees with effective information and training on hazardous chemicals in their work area (see 29 CFR 1910.1200(h)(1)-(3)).  Among the training an employer must provide is training on the physical, health, simple asphyxiation, combustible dust, pyrophoric gas hazards, and hazards not otherwise classified, and the measures employees can take to protect themselves from these hazards (see 29 CFR 1910.1200(h)(3)(ii)-(iii)).

You also mentioned that truck drivers who haul drilling wastes from gas extraction well sites are concerned about potential exposure to radioactive materials.  Ionizing radiation is exempt from the HCS (see 29 CFR 1910.1200(b)(6)(xi)).  However, employers with employees working in a radiation area must comply with OSHA’s Ionizing Radiation standard, 29 CFR 1910.1096, including instructing workers on precautions to minimize exposure (see 1910.1096(i)(2)).

OSHA has developed additional resources regarding the identification and control of other health hazards encountered in the oil and gas production and hydraulic fracturing processes. These resources include: OSHA Hazard Information Bulletin: Potential Health Hazards Associated with Handling Pipe used in Oil and Gas Production (available at: https://www.osha.gov/dts/hib/hib_data/hib19890126.html) and Hydraulic Fracturing and Flowback Hazards Other than Respirable Silica (available at: http://www.osha.gov/Publications/OSHA3763.pdf*). 

[View Full Letter of Interpretation]

13. Classification requirements for Crystalline Silica – LOI Released Feb. 10, 2015

Crystalline silica is categorized as a Group 1 Carcinogen and can be found within drywall, fasteners, metal corner beads and drywall trims. During sanding, dusts containing crystalline silica can be generated and breathed in by workers. This letter clarifies that when classifying a mixture that contains crystalline silica, the classification is based on the total of crystalline silica by weight or volume as opposed to the amount of breathable silica.

Key points addressed in this LOI:

Background: Joint compound and texture products that contain crystalline silica, an International Agency for Research on Cancer (IARC) Group 1 Carcinogen, are applied over wallboard to embed drywall tape, fasteners, metal corner beads, and drywall trims. These products can be sold as a dry powder or ready-to-apply pastes. After many of these products have been applied and allowed to dry the surfaces are typically sanded prior to finishing. During sanding, airborne dusts containing crystalline silica can be generated.

Question 1: What specific testing is necessary to determine that these products do not need to be classified or labeled as a Category 1 or Category 2 carcinogen?

Response: OSHA’s HCS 2012 standard does not require testing to determine a particular chemical’s hazard classification. See Appendix A, Chapter A.0.2.1, of HCS 2012 for further information. Criteria for the classification of carcinogens is found in Chapter A.6, Carcinogenicity, and additional guidance for classifying carcinogens is located in Appendix F (non-mandatory) to HCS 2012.

Question 2: Is the classification of a mixture containing crystalline silica content based on the total silica content or the respirable silica content in the bulk product?

Response: The classification is based on the total crystalline silica by weight or volume in the mixture. As OSHA explained in its 1991 Lapp letter of interpretation (enclosed), this is because a mixture may contain silica particles that are not respirable, but can become respirable during normal conditions of use or foreseeable emergencies (e.g. blasting or grinding). Note that under HCS 2012, a mixture containing at least one ingredient that has been classified as a carcinogen must be classified as a carcinogen when the mixture contains 0.1 percent or more total of the carcinogenic ingredient(s). See Appendix A, A.6.3.1 of HCS 2012. Additionally, if the mixture contains less than 0.1 percent of the carcinogenic ingredient but the classifier has information that the hazard of the ingredient will be evident (e.g. could be emitted at a level above an OSHA permissible exposure limit or action level), the mixture must be classified accordingly. See Appendix A, A.0.4.3.2 of HCS 2012.

Question 3: Is the Industrial Minerals Association – Europe (IMA-EU) Size Weighted Respirable Fraction (SWeRF) (February 2010) fact sheet, which provides a method for evaluating the respirable silica content in bulk materials, representative of an acceptable test?

Response: As explained in the response to Question 1, the HCS does not require testing in order to classify a chemical, but test methods relied upon must be “scientifically validated.” See Appendix A, A.0.2.2. Under A.0.2.3, “scientifically validated” “refers to the process by which the reliability and the relevance of a procedure are established for a particular purpose. Any test that determines hazardous properties, which is conducted according to recognized scientific principles, can be used for the purpose of a hazard determination for health hazards. Test conditions need to be standardized so that the results are reproducible with a given substance, and the standardization test yields “valid” data for defining the hazard class of concern.” The IMA-EU SWeRF fact sheet indicates that the methodology will be submitted to the European Committee for Standardization (CEN) for standardization, but its current status is not specified. It therefore does not appear that the test method has been “scientifically validated.”

Moreover, in classifying chemicals under the HCS, manufacturers must consider the hazards posed by the chemical under normal conditions of use and foreseeable emergencies. 29 CFR 1910.1200(b)(2). It is unclear whether the IMA-EU SWeRF methodology incorporates this concept.

Question 4: Is ready-to-apply paste that does not produce airborne silica classified the same as a dry product that does produce airborne silica?

Response: When classifying a chemical, manufacturers, importers or responsible parties must comply with all the information in Appendices A and B of HCS 2012. Specifically, the classification should start with Chapter A.0, General Classification Considerations, as this chapter provides requirements on the appropriate data to use in determining a chemical’s classification. In A.0.2, Available Data, Test Methods and Test Data Quality, A.0.2.3 defines the term “scientifically validated” as it relates to data used in classification. In addition, A.0.2.5 and A.0.2.6 discuss the type of data used and the use of epidemiological data and experience. In A.0.3, Classification Based on Weight of Evidence, A.0.3.2 discusses evaluating the quality and consistency of the data. Under Appendix A, A.0.4.1 of HCS 2012, the classification sequence is specified for mixtures. For a mixture containing an ingredient that poses a carcinogen hazard, A.6.3.1 provides that the mixture shall be classified as a carcinogen when at least one ingredient has been classified as a Category 1 or Category 2 carcinogen and is present at or above the appropriate cut-off value/concentration limit specified in Table A.6.1. Table A.6.1 sets the cut-off value at greater than or equal to 0.1 percent.

Accordingly, if the ready-to-apply paste and the dry mixture both contain 0.1 percent or more crystalline silica, both of the mixtures would be classified as carcinogens. And, as explained in the response to question 3, a manufacturer must consider an employee’s potential exposure during normal conditions of use and foreseeable emergencies when classifying a chemical. 29 CFR 1910.1200(b)(2).

Question 5: Is a product that is sanded in the course of normal use or expected misuse classified the same as a product that is not sanded?

Response: The requirements of the HCS are triggered where a chemical “is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.” 29 CFR 1910.1200(b)(2). “Exposure” is defined as including “potential (e.g. accidental or possible) exposure.” 29 CFR 1910.1200(c). OSHA has interpreted this language as excluding “substances for which the hazardous chemical is inextricably bound or is not readily available, and, therefore, presents no potential for exposure.” See CPL, 02-08-038, Appendix A.

Accordingly, consistent with OSHA’s longstanding position, whether there is a potential for exposure during sanding (or any other potential exposure during normal conditions of use or a foreseeable emergency) must be considered in classification. See OSHA’s 1989 Polsinelli and 2008 Dingess letters of interpretation (enclosed).

Question 6: Does exposure testing affect classification?

Response: No. As explained in OSHA’s 2004 Keane letter of interpretation (enclosed), exposure testing and exposure calculations assess risk and are not permitted in determining whether a chemical is covered by the HCS.

[View Full Letter of Interpretation]

14. Clarification on Downstream Processing Hazards – LOI Released Feb. 10, 2015

In some cases, a manufacture may produce and ship a non-hazardous chemical product but then becomes hazardous when processed downstream in the supply chain. This letter clarifies that in instances of a non-hazardous product becoming hazardous further down the supply chain, the manufacturer “must consider the hazards of a chemical during normal conditions of use or in a foreseeable emergency” and that hazards related to normal processing must be considered.

Key points addressed in this LOI:

Scenario: Your company has a chemical that is packaged in pre-printed bags, which are made to stock and then shipped around the world. In order to reduce relabeling and repackaging, you would like the chemical label to include the chemical hazard classifications for the United States (U.S.), European Union (E.U.), and China in clearly marked separate boxes.

Question 1: Is it acceptable to have other countries’ hazard classifications in addition to the U.S. HCS 2012 classification, on a chemical product label?

Response: The HCS 2012 requires chemical manufacturers, importers, or distributors to ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with the following information: product identifier; signal word; hazard statement(s); precautionary statement(s); and pictogram(s); and name, address and telephone number of the chemical manufacturer, importer, or other responsible party. 29 CFR 1910.1200(f)(1). The HCS 2012 does not prohibit a manufacturer or importer from adding supplemental information to a label, as long as it does not lead to unnecessarily wide variation or undermine the required label information. Section C.3.1 of Appendix C to HCS 2012 explains that supplementary information may only be added to a label if it provides further detail and does not contradict or cast doubt on the validity of the required information. Therefore, if the other countries have hazard classification information that contradicts or casts doubt on the HCS 2012 information, it is not permitted to be on the label. You may wish to review OSHA’s January 31, 2013, letter of interpretation (enclosed) to Ms. Erin McVeigh on this subject.

Question 2: A metal alloy is not hazardous in its shipped form, but may release a hazardous chemical when processed downstream. In classifying a metal alloy, must the classifier evaluate the hazards related to processing?

Response: Yes. A manufacturer or importer must consider the hazards of a chemical during normal conditions of use or in a foreseeable emergency. 29 CFR 1910.1200(b)(2). The hazards related to normal processing (e.g. welding, grinding) must be considered in conducting the hazard classification. You may wish to review two past letters of interpretation on this subject: OSHA’s March 11, 1986, letter (enclosed) to The Honorable John H. Chafee, and the November 16, 1994, letter (enclosed) to Ms. Sheila Loftus.

[View Full Letter of Interpretation]

15. Clarification on Ink Cartridge Labeling and Usage – LOI Released Mar. 27, 2015

Ink is a commonly used product in all businesses. Under GHS and HazCom 2012, all chemical products are to be accompanied by a SDS, so it makes sense for ink to be regulated by GHS. This letter clarifies the employer’s responsibility in keeping their workplace environment safe while using a common product. Some of the clarifications may be applicable to other similar products.

Key points addressed in this LOI:

Background: Your client manufactures ink cartridges outside of the United States and imports them for use by customers in large-scale commercial printers. The ink cartridge and printer employ design features engineered to prevent worker exposure during most stages of the product life cycle under normal conditions. In your letter dated November 5, you were seeking an interpretation on whether the ink cartridges could be considered an “article.” However, in your second letter dated November 13, you described certain circumstances when maintenance workers may be exposed to ink when repairing printers.

You also stated the ink cartridge products have been classified as Category 3 or Category 4 flammable liquids according to the flash point test1, but they are not classified as flammable liquids under the United Nations’ (U.N.) Recommendations on the Transport of Dangerous Goods. Your client believes that because the ink is 70 percent water and will not sustain combustion, and because of the design of the printer, there is no material risk of ignition of the ink in the cartridge or printer.

In addition, some of these ink cartridges contain ink classified as specific target organ toxicants-repeated exposure (STOT-RE) (route of exposure: oral) at concentrations greater than or equal to 1%. Your client believes that repeated exposure through ingestion is improbable and there is no risk for workers related to STOT-RE.

Question 1: Can an ink cartridge be considered to be an “article” per 1910.1200(c) of HCS 2012?

Response: For ink cartridges to qualify as “articles” they must satisfy the requirements specified in the definition of an article at 1910.1200(c):

“Article” means 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 of use 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.

OSHA does not make hazard classifications for manufacturers, since it is the manufacturer that is most familiar with a product’s composition, the normal conditions of use (e.g., packaging, shipping, cutting, burning, heating, or any other processing), and the potential downstream exposures. In your November 13 letter, however, you indicated that potential exposure to the ink can occur when maintenance workers remove ink from the ink supply tubes and recovery units of printheads. You also stated that some of the ink cartridges are classified as Category 3 or 4 flammable liquids and as STOT-RE. Accordingly, it does not appear that the ink cartridges are articles under the HCS.

Question 2: Must the ink cartridge label(s) and SDSs contain information related to Category 3 or Category 4 flammable liquids, even if they are not classified as flammable liquids under the U.N. Recommendations?

Response: Yes. When a hazardous chemical has been classified as a flammable liquid according to Appendix B.6, Flammable Liquids, the hazard information is required to be on the label and SDS per 1910.1200(f) and (g). Appendix C.4.19, Flammable Liquids, provides the requirements for labeling Category 3 and 4 flammable liquids, and Appendix D, Table D.1, lays out the minimum requirements for SDSs.

That the ink is not considered flammable under the U.N. Recommendations on the Transport of Dangerous Goods does not mean it is not covered under the HCS. The preamble to HCS 2012 states, “…the physical hazard definitions in the Globally Harmonized System of Classification of Chemicals [GHS] are drawn from the United Nations’ Recommendations on the Transport of Dangerous Goods,” and, “[t]he primary differences involve exceptions that make the definitions more applicable to workplace situations (for example, coverage of flammable liquids that are currently defined as combustible under the HCS).” 77 FR 17574, 17697 (March 26, 2012). Therefore, any difference between the U.N. Recommendations and the HCS 2012 with regards to physical hazards was to account for the differences in transportation and the workplace.

Question 3: Must the ink cartridge label(s) and SDS(s) contain health hazard information related to STOT-RE?

Response: Yes. When a hazardous chemical has been classified as a STOT-RE in accordance with Appendix A.9, Specific Target Organ Toxicity- Repeated or Prolonged Exposure, the hazard information is required to be on the label and SDS, per 1910.1200(f) and (g). Appendix C.4.12, STOT-RE, specifies the labeling requirements for chemicals classified as STOT-RE, and as stated above, Appendix D, Table D.1, provides out the minimum requirements for SDSs.

Question 4: Is it acceptable to communicate the hazards of the ink to only the specific (maintenance) workers who are subject to exposure?

Response: Yes. The HCS requires employers to train employees who are exposed or potentially exposed to hazardous chemicals. If maintenance workers are the only employees who are exposed or potentially exposed to ink, the employer need not provide training on the hazards of ink to other employees. Employers are required to provide training when an employee receives his/her initial work assignment and whenever a new physical or health hazard is introduced into the employee’s work area.

Question 5: Is it acceptable to communicate the hazards of the ink in a handbook rather than through labels on the ink cartridges, since cartridges are fitted to the printer and will have to be removed to read the label?

Response: No. In your November 5 letter, and in a conversation with a member of my staff, you indicated that your client manufactures and imports the ink cartridges containing hazardous chemicals, then ships the printers and ink cartridges to downstream customers for use. Paragraph 1910.1200(f)(1) requires manufacturers, importers, or distributors to ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked with the following information: (i) a product identifier; (ii) signal word; (iii) hazard statement(s); (iv) pictogram(s); (v) precautionary statement(s); and (vi) the name, address, and telephone number of the responsible party. Under the HCS, the label must be on the immediate container of the hazardous chemical. See 2012 Valasek letter of interpretation.

[View Full Letter of Interpretation]

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