This document includes the following letters of interpretation, memorandums, and questions and answers:

Transcription

1 Collection of OSHA letters, memos, and Q&As within the date range 03/26/2012 to 03/05/2015 related to the Hazard Communication Standard, 29 CFR This document includes the following letters of interpretation, memorandums, and questions and answers: 02/09/2015 Enforcement guidance for the Hazard Communication Standard's (HCS) June 1, 2015 effective date 06/13/2014 Clarification on effective date of SDSs replacing MSDSs 05/12/2014 CPSC versus HCS 2012 labeling requirements 03/04/2014 Application of OSHA's Amended Hazard Communication Standard (HCS 2012) to Combustible Dust ( ) 03/04/2014 OSHA's Amended Hazard Communication Standard (HCS 2012) about Hazards Not Otherwise Classified 03/04/2014 OSHA's Amended Hazard Communication Standard (HCS 2012) about classification criteria for Single Target Organ Toxicity 03/04/2014 OSHA's Amended Hazard Communication Standard (HCS 2012) regarding Petroleum Streams 12/27/2013 Classification of combustible dusts under the revised hazard communication standard 12/02/2013 Interim Guidance on Enforcement of the revised Hazard Communication Standard 10/19/2013 List in SDS section 3 when the classification is based on mixture data 09/20/2013 Labels on ampoules 5mL or smaller 09/11/2013 Practical accommodation for hazard communication labels on small shipped chemical containers 06/04/2013 NIST labeling of small packages 04/15/2013 Hazard Communication Standard labeling and SDS for laboratory nuclear standards 04/02/2013 Use of split entry concept under OSHA's Hazard Communication Standard (HCS 2012) 03/25/2013 Request for Interpretation of OSHA's Hazard Communication Standard for Combustible Dust 03/22/2013 Manufacturer's name and address on the label of a chemical product under HCS /31/2013 Clarification on labeling and SDS requirements under HCS /31/2013 Employers responsibilities under HCS 2012 to classify hazards and create SDSs for products whose manufacturers are no longer in business 12/20/2012 Pictogram requirements for product labels under the revised Hazard Communication standard 11/21/2012 Clarification of OSHA safety requirements between a temporary staffing agency and its client 08/24/2012 Labeling requirements for diatomaceous earth 07/13/2012 Hazard communication of ammonia gas from new fuel additive in diesel trucks 2012 Modification of the Hazard Communication Standard (HCS) to conform with the United Nations' (UN) Globally Harmonized System of Classification and Labeling of Chemicals (GHS): Questions and answers 1

2 Enforcement guidance for the Hazard Communication Standard's (HCS) June 1, 2015 effective date February 9, 2015 MEMORANDUM FOR: THROUGH: FROM: SUBJECT: REGIONAL ADMINISTRATORS DOROTHY DOUGHERTY Deputy Assistant Secretary THOMAS GALASSI, Director Directorate of Enforcement Programs Enforcement Guidance for the Hazard Communication Standard's (HCS) June 1, 2015 Effective Date The purpose of this memorandum is to provide enforcement guidance on the June 1, 2015 effective date - the date by which chemical manufacturers, importers, distributors and employers must be in compliance with all modified provisions of the HCS, other than the two exceptions for distributors and employers at 29 CFR (j)(2)(i) and (ii). This enforcement guidance applies only to HCS 2012 compliance inspections of chemical manufacturers, importers, and distributors in their classification of hazardous chemicals and development of safety data sheets (SDSs) and labels for chemical mixtures. Overview This memorandum describes the Agency's enforcement position on the HCS June 1, 2015 effective date for manufacturers and importers, including product formulators, that have exercised reasonable diligence and good faith to classify their chemical mixtures according to HCS 2012 and consequently develop HCS 2012-compliant SDSs and labels. However, due to circumstances beyond their control, they have not received classifications and SDS information from upstream suppliers of raw materials. In addition, this enforcement guidance addresses when manufacturers and importers must develop HCS 2012-compliant SDSs and labels after receiving upstream supplier SDSs, as well as how this guidance affects distributors. June 1, 2015 Effective Date The June 1, 2015 effective date applies to manufacturers and importers developing HCS 2012-compliant SDSs and labels. In classifying mixtures, manufacturers and importers are permitted to rely on information provided on each SDS of the individual ingredients or components from the upstream supplier, except where the chemical manufacturer or importer knows, or in the exercise of reasonable diligence should know, that the SDS misstates or omits required information. 29 CFR (d)(3)(ii). For inspections occurring after the June 1, 2015 compliance date that involve a mixture that does not have an HCS 2012-compliant label or SDS, CSHOs shall follow the instructions herein. 1 Where a manufacturer or importer has asserted that it was unable to comply with the June 1, 2015 compliance date, the CSHO must determine if the manufacturer or importer has exercised reasonable diligence and good faith to comply with the terms of the standard. CSHOs shall not cite a manufacturer or importer for failing to meet the June 1, 2015 deadline to have updated labels under 29 CFR (f)(1), or updated SDSs under paragraph (g)(1), if the chemical manufacturer or importer exercised reasonable diligence and good faith in attempting to obtain HCS 2012-compliant SDSs and classification information from its upstream raw material supplier(s). This guidance only applies where the mixture's material safety data sheet (MSDS) and label comply with HCS

3 When necessary, OSHA will exercise its enforcement discretion to allow for a reasonable time period for manufacturers or importers to come into compliance. In contrast, on or after June 2, 2015, upstream raw material suppliers that do not have an HCS 2012-compliant SDS or label available for downstream manufacturers or product formulators of mixtures will not be in compliance. Upstream raw material suppliers must provide HCS 2012-compliant SDSs to downstream manufacturers or importers with the first shipment and after an SDS is updated. 29 CFR (g)(6)(i). If a downstream manufacturer or importer requests an updated SDS prior to receiving a new shipment, the upstream supplier must provide it immediately. 29 CFR (g)(6)(iv). If the Agency is made aware of a manufacturer or importer requesting but not receiving a revised SDS from an upstream raw material supplier, the matter shall be referred for further enforcement action to the appropriate Area Office with jurisdiction over the employer. A citation for a violation of (g)(6)(iv) shall be considered. "Reasonable Diligence" and "Good Faith Efforts" In order to determine if a manufacturer or importer has established "reasonable diligence" and "good faith efforts," the CSHO must review its overall efforts, attention, and action(s) taken to comply with HCS Upon request from a CSHO, a manufacturer or importer must provide documentation of its substantive efforts to: Obtain classification information and SDSs from upstream suppliers; Find hazard information from alternative sources (e.g., chemical registries); and, Classify the data themselves. Establishing reasonable diligence and good faith effort requires that the manufacturer or importer demonstrate attempt(s) to obtain the necessary SDSs through both oral and written communication directly with the upstream supplier. For each mixture shipped by a manufacturer or importer after June 1, 2015 that does not comply with HCS 2012, the CSHO shall consider whether the manufacturer or importer: (a) Developed and documented the process used to gather the necessary classification information from its upstream suppliers and the status of such efforts; (b) Developed and documented efforts to find hazard information from alternative sources (e.g., chemical registries); (c) Provided a written account of continued dialogue with its upstream suppliers, including dated copies of all relevant written communication with its upstream suppliers; (d) Provided a written account of continued dialogue with its distributors, including dated copies of all relevant written communication with its distributors informing them why it has been unable to comply with HCS 2012; and, (e) Developed the course of action it will follow to make the necessary changes to SDSs and labels. Although the CSHO must consider all of the above factors, any combination of these efforts may, depending on the circumstance, be consistent with reasonable diligence and good faith efforts. The CSHO shall always consider whether the manufacturer or importer attempted to obtain the hazard information in a timely manner (i.e., in a manner that would have enabled it to comply with the June 1, 2015 effective date) in determining whether a manufacturer or importer exercised reasonable diligence and made good faith efforts to comply. Reasonable diligence and good faith also requires that the manufacturer or importer provide a clear timeline for when it expects to comply with HCS Time Period to Develop HCS 2012-Compliant SDSs and Labels for Mixtures SDSs - A manufacturer or importer must create HCS 2012-compliant SDSs within six months from the date it receives all of the hazard information for the ingredients in a mixture. OSHA provides this timeframe as an accommodation to the requirement under (g)(5) to update SDSs within three months after receiving new information. The 3

4 manufacturer or importer must then provide the HCS 2012-compliant SDS downstream with the next shipment of the mixture and when requested by a distributor or employer. Where a chemical manufacturer or importer has not developed an HCS 2012-compliant SDS within six months of receiving the necessary hazard information, a citation for a violation of (g)(2) shall be considered. Related violations of (d)(1), (d)(2), and (d)(3)(i) may also be considered. Labels - A manufacturer or importer must create container labels to comply with HCS 2012 within six months from the date that it has developed HCS 2012-compliant SDSs. This accommodation is provided as a reasonable relief to the requirement under (f)(11) that container labels be revised within six months after learning of new hazard information. Containers shipped after the six months period must be labeled with an HCS 2012-compliant label. Where a manufacturer or importer has not developed an HCS 2012-compliant label within six months of the date it developed its HCS 2012-compliant SDS, a citation for violation of (f)(1), (f)(2), and (f)(3) shall be considered. Use of HCS 1994-compliant MSDSs and labels - Manufacturers and importers that have exercised reasonable diligence and made good faith efforts to obtain and integrate the required information but have not received all the necessary classification and SDS information from upstream suppliers to classify the mixture under HCS 2012 shall continue to use MSDSs and labels that conform to HCS No citation will be issued where sufficient documentation is provided to address this situation. Once the manufacturer or importer has developed an HCS 2012-compliant SDS, it must be provided to downstream users with the first shipment after the SDS was created or when requested. Time Period for Distributors The HCS 2012 permits distributors to continue to ship chemicals with HCS 1994 labels until December 1, CFR (j)(2)(i). However, due to the situation described above - where a manufacturer or importer cannot comply with the June 1, 2015 effective date despite its reasonable diligence and good faith efforts - there may be distributors that are consequently unable to comply with the December 1, 2015 compliance date. In that situation, a CSHO will determine, again on a case-by-case basis, whether a distributor exercised reasonable diligence and good faith to comply with the December 1, 2015 effective date. In making such determination, a CSHO shall consider whether the distributor is able to document its communication with the manufacturer or importer about the circumstances for the noncompliance with HCS Distributors must provide HCS 2012-compliant SDSs to downstream users with the first shipment after the SDSs are provided by the manufacturer or importer. If a downstream user requests an HCS 2012-compliant SDS that is available prior to receiving a new shipment, the manufacturer, importer, or distributor must provide it immediately. After having received HCS 2012-compliant SDSs, a distributor's failure to provide the updated SDSs to other distributors or employers along with the first shipment or upon request would be a violation of (g)(7)(i), and a citation should be issued. In the limited situation described in this memorandum, distributors will be allowed to ship chemicals permissibly labeled with HCS 1994-compliant labels until December 1, Duration of Enforcement Guidance The policy provided in this enforcement guidance shall not exceed two years. For further information, we are providing a few questions and answers for CSHOs (attached) to assist in responding to specific inquiries. Please share this guidance and the attached information with the State Plans and On-Site Consultation Projects in your region. If you have any additional questions, please contact the Office of Health Enforcement at Attachment: Questions and Answers for CSHOs Questions and Answers The following questions and answers can assist CSHOs in responding to issues related to this enforcement guidance related to the HCS 2012 effective date of June 1,

5 Question: Has the June 1, 2015 effective date been extended for all manufacturers or importers to produce HCS compliant SDSs and labels? Answer: The June 1, 2015 deadline has not been extended for all manufacturers, importers, or product formulators to produce HCS 2012-compliant SDSs and labels. However, manufacturers and product formulators of mixtures that have made reasonable and good faith efforts to meet the effective date but, due to circumstances outside of their control (i.e., have not received upstream suppliers' classifications and SDSs), have not been able to do so, will be allowed a reasonable time period to come into compliance. Question: I'm a distributor that has pallets of existing stock of individual containers with HCS 1994-compliant labels on them. Do I need to remove the old label from each individual container and replace it with a new HCS 2012-compliant label? Answer: A distributor may maintain HCS 1994-compliant labels on its existing stock until the effective date in (j)(2)(i). After December 1, 2015, distributors shall not ship chemicals without HCS 2012-compliant labels. In the situation where a distributor's supplier has not been able to comply with the June 1, 2015 compliance date despite reasonable diligence and good faith efforts, the distributor may continue to ship HCS 1994-compliant labels. The distributor must be able to document its communication with the supplier to determine the circumstances for the supplier's noncompliance with HCS Question: I'm an employer, and have not received updated SDSs or labels for some of the hazardous chemicals I use in my business. Will OSHA issue a citation to me? Answer: No. Once you receive HCS 2012-compliant SDSs, you must maintain them. 29 CFR (g)(8). Once you receive HCS 2012-compliant labels, you may either maintain them on the chemical containers or follow the workplace labeling requirements contained in (f)(6)-(10). 1 Note, these instructions are in effect as of the date of this memorandum, and may be modified, if needed, when they are incorporated into the pending compliance directive for the HCS, replacing CPL Clarification on effective date of SDSs replacing MSDSs Jun 13, 2014 Mr. Ross Olsby M3V Data Management East 65th Street Indianapolis, Indiana Dear Mr. Olsby: Thank you for your letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Enforcement Programs. You requested guidance on replacing material safety data sheets (MSDSs) with newer safety data sheets (SDSs) under OSHA's revised Hazard Communication Standard, 29 CFR (HCS 2012). This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any questions not delineated within your original correspondence. Your questions have been paraphrased, followed by our response. 5

6 Question: When is an employer required to replace their MSDS collection with revised SDSs in order to be in compliance with HCS 2012? Would OSHA take enforcement action against employers who only have an MSDS available to employees? Response: OSHA's final rule modifying the Hazard Communication Standard (HCS) was issued on March 26, 2012, and it became effective on May 25, 2012 [77 FR ]. Under (j)(2), manufacturers, importers, and distributors must be providing SDSs (instead of MSDSs) for all shipments of hazardous chemicals to employers and downstream customers by June 1, SDSs may be provided before this date; however, for any shipment of chemicals after June 1, 2015, an SDS in the required 16-section format must be provided. All employers, per (g)(1) and (g)(8), must have, maintain, and make available to employees the most recent MSDS or SDS received from a chemical manufacturer, importer, or distributor for each hazardous chemical in the workplace. If the employer is not maintaining the most current MSDS or SDS received, then enforcement action may occur. However, OSHA would not issue citations for maintenance of MSDSs when SDSs have not been received. As OSHA explained in the January 31, 2013, letter to Mr. Joel Gregier employers may, but are not required to, contact manufacturers or distributers of products they have previously ordered to request new SDSs, and under (g)(6)(vi), the SDSs must be provided. Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) Sincerely Thomas Galassi, Director Directorate of Enforcement Programs CPSC versus HCS 2012 labeling requirements May 12, 2014 Mr. Jordan A. LaVine Flaster Greenberg Four Penn Center 1600 John F. Kennedy Boulevard, 2nd Floor Philadelphia, Pennsylvania Dear Mr. LaVine: 6

7 Thank you for your June 20, 2013, letter to the Occupational Safety and Health Administration's (OSHA) Directorate of Standards and Guidance. Your letter was forwarded to the Directorate of Enforcement Programs for a response. This reply follows our interim response, dated November 25, 2013, and we apologize for the delay. Your questions concern the labeling requirements under the revised Hazard Communication standard (HCS 2012), 29 CFR This letter constitutes OSHA's interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence. Your paraphrased questions and our response are below. 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 Your client would like to label the product with the CPSCrequired 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 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 (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 (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 (f)(1), with the label elements defined in (f)(1)(i)-(vi): Product identifier; Signal word; Hazard statement(s); Pictogram(s); Precautionary statement(s); and, 7

8 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 OSHA may consider the CPSC or any other agencyrequired 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. 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 (f), as well as meeting the requirements for any supplemental information, if found on the label. 8

9 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 (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. Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To assure that you are using the correct information and guidance, please consult OSHA's website at If you have further questions, please feel free to contact the Office of Health Enforcement at (202) Sincerely, Thomas Galassi, Director Directorate of Enforcement Programs Application of OSHA's Amended Hazard Communication Standard (HCS 2012) to Combustible Dust ( ) March 4, 2014 Erik C. Baptist Counsel American Petroleum Institute 1220 L Street, NW Washington, DC

10 Re: Request for Interpretation of Application of OSHA's Amended Hazard Communication Standard (HCS 2012) to Combustible Dust Dear Mr. Baptist: This letter is being issued to API to clarify how the March 26, 2012, revisions to OSHA's Hazard Communication Standard (HCS 2012) apply to combustible dust. Below I summarize each of your questions and provide our response to it. 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 party 1 may include additional language with the hazard statement. You propose two alternatives (indicated by italics): a. If converted to small particles during further processing, handling, or by other means, may form combustible dust concentrations in air. b. 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. 2. Safety Data Sheets. a. 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 10

11 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. b. 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 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. c. 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. 3. Labels on shipped containers a. 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 (f)(1) and C 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). b. 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 (f)(4). That provision allows labels to be provided once to downstream users, 11

12 either with the initial shipment or with the SDS for the chemical. You ask whether, when Section (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 (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 (f)(4) option. However, any information that appears may not contradict or cast doubt on the validity of the label information required by HCS c. Finally, you ask whether, under footnote 2 to C.4.30, the Section (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 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. 4. Workplace labels. This issue concerns the workplace labeling requirements under Section (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 (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 (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 (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 (f)(4), the downstream user's obligation 12

13 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 (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 (f)(6) label, or may comply with the alternative labeling methods provided by Section (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 nonstationary process container with the Section (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 (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 (f)(6) labeling would be required prior to processing. (e) Finally, the workplace labeling requirements in Section (f)(6) apply only to chemicals that are in containers 2. Thus, individual boards or pipes that might create a combustible dust hazard when cut do not need to be labeled under Section (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. Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be superseded by changes to OSHA rules, including but not limited to future revisions to the Hazard Communication Standard and the adoption of a standard concerning combustible dust. Sincerely, David Michaels, Ph.D, MPH 13

14 cc: Lawrence P. Halprin, Esq. Keller and Heckman LLP Attorney for API 1 In this letter, the term "responsible party" refers to a person required by HCS 2012 to provide labels and SDSs to downstream users. 2 OSHA provides further guidance on what it considers to be a container under the HCS in its directive entitled Inspection Procedures for the Hazard Communication Standard, CPL D, March 20, OSHA's Amended Hazard Communication Standard (HCS 2012) about Hazards Not Otherwise Classified March 4, 2014 Erik C. Baptist Counsel American Petroleum Institute 1220 L Street, NW Washington, DC Re: Request for Interpretation of OSHA's Amended Hazard Communication Standard (HCS 2012) about Hazards Not Otherwise Classified Dear Mr. Baptist: This letter is being issued to API to provide additional guidance on how to apply the requirements for Hazards Not Otherwise Classified (HNOC) under the March 26, 2012, revisions to OSHA's Hazard Communication Standard (HCS 2012). 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 (c). 14

15 Classifiers may rely on the following guidance in applying the definition of an HNOC under HCS 2012: a. 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. b. A health effect is determined in accordance with the weight of evidence criteria in A.0.3. c. 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. Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Sincerely, David Michaels, Ph.D, MPH cc: Lawrence P. Halprin, Esq. Keller and Heckman LLP Attorney for API OSHA's Amended Hazard Communication Standard (HCS 2012) about classification criteria for Single Target Organ Toxicity March 4,

16 Erik C. Baptist Counsel American Petroleum Institute 1220 L Street, NW Washington, DC Re: Request for Interpretation of OSHA's Amended Hazard Communication Standard (HCS 2012) about classification criteria for Single Target Organ Toxicity Dear Mr. Baptist: This letter is being issued to API to provide additional guidance on how to apply the classification criteria for Single Target Organ Toxicity (STOT) to mixtures under the March 26, 2012, revisions to OSHA's Hazard Communication Standard (HCS 2012). 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 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 ), 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 ("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 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. 16

17 Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Sincerely, David Michaels, Ph.D, MPH cc: Lawrence P. Halprin, Esq. Keller and Heckman LLP Attorney for API OSHA's Amended Hazard Communication Standard (HCS 2012) regarding Petroleum Streams March 4, 2014 Erik C. Baptist Counsel American Petroleum Institute 1220 L Street, NW Washington, DC Re: Request for Interpretation OSHA's Amended Hazard Communication Standard (HCS 2012) regarding Petroleum Streams Dear Mr. Baptist: This letter is being issued to API to provide guidance on how to apply the March 26, 2012, revisions to OSHA's Hazard Communication Standard (HCS 2012). Classifiers may rely on the following guidance in applying the classification and SDS requirements of HCS 2012 to petroleum streams. 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. 17

18 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. For hazard classes other than carcinogenicity, germ cell mutagenicity, and reproductive toxicity ("CMR"), a petroleum stream shall be classified as follows: (a) Where test data are available for the petroleum stream, the classification of the stream will always be based on those data. (b) 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. (c) 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). 2. For the CMR hazard classes: (a) 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. (b) 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. (c) 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 18

19 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. 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 cutoff/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 ) 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 19

20 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. Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Sincerely, David Michaels, Ph.D, MPH cc: Lawrence P. Halprin, Esq. Keller and Heckman LLP Attorney for API Classification of combustible dusts under the revised hazard communication standard. December 27, 2013 Standard Number: (d); MEMORANDUM TO: REGIONAL ADMINISTRATORS THROUGH: Dorothy Dougherty Acting Deputy Assistant Secretary FROM: Thomas Galassi, Director Directorate of Enforcement Programs SUBJECT: Classification of Combustible Dusts under the Revised Hazard Communication Standard This memorandum provides guidance for compliance safety and health officers (CSHOs) to use in determining whether manufacturers or importers have properly classified their products 1 for combustible dust hazards under the revised Hazard Communication Standard (HCS). This guidance shall be used when inspecting 20