Hazard Communication (HazCom); Interim Final Rule [10/03/2000]
Volume 65, Number 192, Page 59047-59104
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Part II
Department of Labor
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Mine Safety and Health Administration
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30 CFR Parts 42, 47, 56, 57 and 77
Hazard Communication (HazCom); Interim Final Rule
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 42, 47, 56, 57, and 77
RIN 1219-AA47
Hazard Communication (HazCom)
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Interim final rule; request for comments.
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SUMMARY: We (MSHA) are establishing this interim final rule entitled
``Hazard Communication (HazCom)'' (30 CFR Part 47) to reduce injuries
and illnesses related to chemicals in the mining industry. The standard
requires mine operators to assess the hazards of chemicals they produce
or use and provide information to miners concerning chemical hazards by
means of a written chemical hazard communication program; labeling
containers of hazardous chemicals; providing access to material safety
data sheets (MSDSs); and training miners. In response to the National
Performance Review and President Clinton's subsequent Executive
Memorandum on Plain Language in Government Writing, dated June 1, 1998,
we wrote this interim final rule in a different style than the one used
in the proposal. Most of the requirements in this interim final rule,
however, are substantially the same as the proposed rule.
This interim final rule reflects comments received on the Notice of
Proposed Rulemaking, public hearings, and the notice published in the
Federal Register on March 30, 1999 (64 FR 15144), requesting comments
on the impact of certain regulatory mandates and related Executive
Orders on the proposed rule. In response to the most recent re-opening
of the record, commenters requested an opportunity to address the
provisions of the whole rule.
Although not legally required, we think the additional opportunity
to comment on the interim final rule is appropriate given the new
``plain English'' format and the passage of time since the close of the
original comment period. For these reasons, we are allowing the public
an additional opportunity to comment. All comments received will become
part of the rulemaking record. We will publish our response to the
comments received during this additional comment period in the Federal
Register.
DATES: Effective date: This interim final rule is effective October 3,
2001.
Comment period: Comments on this interim final rule must be
received by November 17, 2000 to ensure consideration.
ADDRESSES: Comments may be transmitted by electronic mail, fax, or
mail, or dropped off in person at any MSHA office. Comments by
electronic mail must be clearly identified as such and sent to this e-
mail address: comments@MSHA.gov. Comments by fax must be clearly
identified as such and sent to: MSHA, Office of Standards, Regulations,
and Variances, 703-235-5551. Send mail comments to: MSHA, Office of
Standards, Regulations, and Variances, 4015 Wilson Boulevard, Room 631,
Arlington, VA 22203-1984, or to any MSHA district or field office.
Interested persons are encouraged to supplement written comments with
computer files or disks; please contact the Agency with any questions
about format.
FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Director; MSHA Office
of Standards, Regulations, and Variances; 703-235-1910.
SUPPLEMENTARY INFORMATION:
I. Introduction
We identify our hazard communication standard as ``HazCom'' to
abbreviate the term and to help readers distinguish it from the
Occupational Safety and Health Administration's (OSHA) Hazard
Communication Standard (HCS). In this interim final rule, ``you''
refers to production-operators and independent contractors, who have
the primary responsibility for complying with our standards. Where
needed, we use the terms ``operator'' or ``independent contractor'' to
avoid confusion.
HazCom's appearance is different from the 1990 proposed rule, which
we modeled after OSHA's HCS. We have made a few substantive changes in
the interim final rule where comments and information submitted to the
record justified a change. Changes from the proposal are also meant to
clarify intent, reduce burden, and eliminate unnecessary language and
needless repetition. We have tailored provisions to better fit the
mining industry. Despite the change of style, the substance of the
requirements for most provisions remains the same as in the proposal.
We tried to organize the standard in a way that optimized clarity,
logic, and accessibility to the requirements.
When HazCom was originally proposed as part 46 in 1990, a
Congressional budget rider prohibited us from expending appropriated
funds to enforce training requirements at surface nonmetal mines. The
1999 training rider, however, authorized us to expend funds to propose
and promulgate a final training standard for surface nonmetal mines.
We, therefore, promulgated new training standards on September 30,
1999, which address the exempted mining operations. We chose part 46 as
the proper place in the Code of Federal Regulations for publication of
this training rule so that it would be near our other training
standards promulgated under section 115 of the Federal Mine Safety and
Health Act of 1977. After publication of part 46, we determined that
the proper place to publish the HazCom rule would be as a new part 47.
This required us to move the existing part 47, National Mine Health and
Safety Academy, to part 42 with other administrative provisions.
The following is an outline of this HazCom preamble to help you
find information more quickly.
I. Introduction.
A. Overview of Rulemaking.
B. Regulatory History.
II. Paperwork Reduction Act.
III. Discussion of the Interim Final Rule.
A. Subpart A--Purpose and Scope of HazCom.
B. Subpart B--Hazard Determination.
C. Subpart C--HazCom Program.
D. Subpart D--Container Labels and Other Forms of Warning.
E. Subpart E--Material Safety Data Sheet (MSDS).
F. Subpart F--HazCom Training.
G. Subpart G--Making HazCom Information Available.
H. Subpart H--Trade Secrets.
I. Subpart I--Exemptions.
J. Subpart J--Definitions.
K. Appendices.
IV. Legal Authority and Feasibility.
A. Statutory Requirements.
B. Finding of Significant Risk.
C. Finding of Feasibility.
D. Petitions for Modification.
V. The Regulatory Flexibility Act, the Small Business Regulatory
Enforcement Fairness Act, and Executive Order 12866.
A. Alternatives Considered.
B. Consultation with SBA.
C. Compliance Costs.
D. Regulatory Flexibility Certification and Factual Basis.
E. Benefits.
VI. Other Regulatory Considerations.
A. Unfunded Mandates Reform Act of 1995.
B. The National Environmental Policy Act of 1969.
C. Executive Order 12630: Government Actions and Interference
with Constitutionally Protected Property Rights.
D. Executive Order 12988: Civil Justice Reform.
E. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks.
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F. Executive Order 13084: Consultation and Coordination with
Indian Tribal Governments.
G. Executive Order 13132: Federalism.
A. Overview of Rulemaking
MSHA's HazCom standard expresses two safety and health principles:
miners have a right to know about the chemical hazards where they work
and you have a responsibility to know about the chemical hazards at
your mine. HazCom requires you to inform miners about chemical hazards.
Chemically-related injuries and illnesses in the mining industry
indicate that many operators and miners are not as aware of the
presence and nature of hazardous chemicals as they should be. Injury
and illness reports sent to us describe instances where miners--
Were using inadequate or improper personal protective
equipment,
Did not know what they had been exposed to that caused
their symptoms,
Failed to follow instructions because they misunderstood
or were unaware of the consequences, and
Inadvertently misused a chemical from an unlabeled
container.
We expect the HazCom program--by increasing both knowledge and
awareness--to bolster good work procedures, foster safer behavior, and
reduce injuries and illnesses related to chemicals. When put into
effect at a mine, HazCom should encourage better hazard identification
and assessment; more consistent use of personal protective equipment;
more informed process decisions; and greater awareness and care when
working near hazardous chemicals.
HazCom is an information and training standard about chemical
hazards. To be successful in reducing accidents and injuries, your
HazCom program must give miners an understanding of chemical hazards by
informing them about mine processes and job procedures that can lead to
chemical exposures. This can be a difficult technical subject using
unfamiliar terms, scientific symbols, and complex physical laws. For
the training to be credible, it must balance scientific accuracy
against the miner's need to understand.
1. The Need for HazCom
Our existing standards already require you to train miners in
occupational health, hazard recognition, and the safety and health
aspects of tasks, among other subjects. Except at underground coal
mines, you must also label hazardous materials. Other HazCom
provisions, however, are not currently required for mines. For example,
currently you are not required to collect material safety data sheets
(MSDSs), give copies of hazard information to miners, or keep a list of
the hazardous chemicals at your mine. This rule is intended to ensure
that your mine has a program that emphasizes chemical hazards.
OSHA's HCS has evolved to apply to all industries in OSHA
jurisdiction since it was originally promulgated in 1983 and,
consequently, it already impacts some mines. Because of the HCS,
manufacturers began sending labeled chemicals and providing MSDSs with
product shipments to mines. Some mine operators began labeling their
products and sending MSDSs with their products to help customers meet
OSHA's HCS requirements. Many operators have segments of their business
in OSHA jurisdiction and have created company-wide programs that
brought their MSHA properties, as well as their OSHA properties, into
compliance with the HCS. Some operators began complying with OSHA
requirements in anticipation of a similar MSHA standard, using the
unregulated interval as a time to assimilate the requirements into
their mine's standard operating procedures. Although some operators on
their own initiative have established programs that meet HazCom's
provisions and goals, and have integrated OSHA's HCS requirements into
the cultures of their mines, most have not made that effort or fully
met those objectives.
Coal mine example. In a 1997 case investigated by MSHA, an eastern
Kentucky coal miner was periodically assigned to seal permanent
brattices using a highly alkaline mortar. The miner had noticed after
these assignments that his hands felt as if they were burning. He
thought this resulted from the mortar.
Although the operator assigned the miner other jobs for a while,
the burning sensation did not go away and the miner was eventually
returned to brattice work. On the Friday night after the reassignment,
the miner's hands were burning painfully, and the raw, irritated skin
eventually erupted in angry, oozing sores. On Sunday, the miner was
hospitalized and placed on an intravenous antibiotic. He spent 6 days
in the hospital and missed 2 weeks of work.
During his recuperation, his physician referred the miner to a
dermatologist, who asked the miner to get a copy of the mortar's MSDS
in order to evaluate the problem and provide the proper treatment. When
the miner asked the company for a copy of the MSDS, the safety director
at first said he would have to arrange for it and then later refused to
give it to him, saying that the miner had no right to the information.
Metal and nonmetal mine example. In another recent case at a large
Arizona copper mine, a tailings pond was so acidic it was damaging the
system's pumps. The company hired a contractor to place lime in the
pond to neutralize the acid and assigned a miner to the project, a job
he had never done, and one presenting hazards the miner had never been
trained for.
About 4:00 p.m., the miner, trying to get the work done, walked
down the slope of the pond and stepped onto an area of lime that
appeared solid. His right leg sank into the lime up to his hips and he
had to put his other leg into the material before he could get out. No
emergency showers were available at the pond site for washing. Covered
in wet lime, the miner drove himself 2 miles to the front gate while
calling for help into a two-way radio.
Through a series of unfortunate circumstances, the victim was not
admitted to a hospital until 5:25 p.m. After stabilizing him, the
hospital staff moved him the next day to the burn center, where he
spent over a month with second- and third-degree burns over the lower
half of both legs and the upper part of his right leg. He missed more
than 2 months of work at the mine, returning to restricted duty while
receiving a series of skin grafts.
Chemical hazards in mining. Between 1984 and 1989, the National
Institute for Occupational Safety and Health (NIOSH) surveyed almost
500 individual mines covering 70 commodities and about 60,000 miners
for the National Occupational Health Survey of Mining (NOHSM). NOHSM
documented over 10,000 individual hazardous chemicals and mixtures of
hazardous chemicals to which miners could be exposed.
Chemicals in the mining industry pose a range of hazards, from mild
health effects to death. Some chemicals cause or contribute to chronic
health problems, such as heart or kidney disease or cancer. The
relationship between these injuries and illnesses and exposure to a
chemical can be obscured by years of latency between the exposure and
the onset of symptoms. Other chemicals cause acute injuries or
illnesses such as dermatitis, burns, and poisonings. Some chemicals
pose hazards by contributing to fires and explosions.
In considering a HazCom standard, we reviewed reports of
chemically-related injuries and illnesses reported to MSHA. From
January 1990 through December 1999, the mining industry
[[Page 59050]]
reported over 2500 chemical burns. More than 1,200 of these burns were
lost work time cases, involving over 50 commodities, more than 60 job
classifications, and exposures to chemicals at all sizes and types of
mines. Bituminous coal mines reported the most chemical burns, and
crushed and broken limestone mines reported the most in the metal and
nonmetal industry. This same accident and injury data indicated more
than 400 poisonings. This data takes into account only some of the
acute effects reported as a result of chemical exposures and does not
include the chronic effects that we know also occur.
Some operators have a comprehensive HazCom program in place; others
have some elements of a HazCom program; and some have none. We intend
the HazCom standard to ensure that all operators give all miners the
information, training, and access needed to protect themselves from
chemically-related injuries and illnesses. HazCom unifies, focuses, and
clarifies existing requirements and fills voids in miner protection.
2. The Major Provisions of HazCom
Hazard determination. You must identify the chemicals at your mine
and determine if they can present a physical or health hazard to
miners. If you produce a chemical, such as gold, molybdenum sulfide,
calcium oxide (lime), sand, and phosphates, among others, you must
review available scientific evidence to determine if the material is
hazardous. Some of the chemicals you produce that result from a
chemical reaction, such as nitrogen oxides from blasting, may already
be addressed on the MSDS for the original chemical. In this example,
the original chemical is the explosive. For a chemical or mixture
brought to your mine, such as diesel fuel, lubricants, solvents, and
paints, you can rely on the evaluation performed by the chemical's
manufacturer or supplier.
HazCom program. You must develop, implement, and maintain a written
comprehensive plan to formalize a HazCom program. The program must
include provisions for container labeling, collection and availability
of MSDSs, and training of miners. It also must contain a list of the
hazardous chemicals known to be present at the mine; how you will
inform miners of the hazards of non-routine tasks and of chemicals in
unlabeled pipes. If your mine has more than one operator or has an
independent contractor onsite, it must also describe how you will
inform them about the chemical hazards and protective measures needed.
Container labeling. A label is an immediate warning about a
chemical's most serious hazards. You must ensure that containers of
hazardous chemicals are marked, tagged, or labeled with the identity of
the hazardous chemical and appropriate hazard warnings. The label must
be in English and prominently displayed. We are not requiring you to
label mine products that go off mine property though you must provide
the information if a customer asks for it.
Material safety data sheet (MSDS). A chemical's MSDS provides
comprehensive technical and emergency information. It serves as a
reference document for operators, exposed miners, health professionals
providing services to those miners, and firefighters or other public
safety workers. You must have an MSDS for each hazardous chemical at
your mine. The MSDS must be accessible in the work area where the
chemical is present or in a central location readily accessible to
miners in an emergency.
HazCom training. You must establish a training program to ensure
that miners understand the hazards of each chemical in their work area,
the information on MSDSs and labels, how to access this information
when needed, and what measures they can take to protect themselves from
harmful exposure. You may already cover some of this information in
your current training program. If so, you do not have to re-train
miners in topics they have already been trained in.
Making HazCom information available. You must provide miners, their
designated representatives, MSHA, and NIOSH with access to the
materials that are part of the HazCom program. These include the HazCom
program, the list of hazardous chemicals, labeling information, MSDSs,
training materials, and any other material associated with the HazCom
program. You do not have to disclose the identity of a trade secret
chemical except when there is a compelling medical need.
3. The Basis for the HazCom Interim Final Rule
In addition to the requirements in the Federal Mine Safety and
Health Act of 1977 (Mine Act) and other applicable legislation, we
based our interim final rule primarily on comments received in response
to the Advance Notice of Proposed Rulemaking (ANPRM), the Notice of
Proposed Rulemaking, and the public hearings. We also considered--
The comments received in response to our recent Notice in
the Federal Register;
Our experience in the mining industry; and
The related standards of other Federal agencies.
To the extent practical, the substance of our HazCom requirements
is the same as that in OSHA's HCS. We developed some provisions to be
consistent with other MSHA standards, such as the retention period for
training records. Two areas where our standard significantly differs
from OSHA's are in the inclusion of hazardous waste among the chemicals
of concern and the omission of a requirement to label products going
off mine property. OSHA's HCS exempts certain hazardous wastes because
there are employee protections in other rules which address these
hazards, such as 29 CFR 1910.120, Hazardous Waste Operations and
Emergency Response (Hazwoper) and EPA's regulations under the Resource
Conservation and Recovery Act of 1976 (RCRA). Because we do not have
standards that address miners' exposure to hazardous waste, we needed
supplemental requirements to ensure that miners working with hazardous
waste understand the associated hazards and take precautions.
HazCom does not require you to label products that go off mine
property. When the product leaves mine property, however, you must
comply with the OSHA HCS which requires hazardous chemicals to be
labeled.
With few exceptions, if your HazCom program complies with OSHA's
HCS, it also will comply with this interim final rule. We will publish
a Compliance Guide to help you understand the application of this rule.
It will contain numerous examples, suggestions, and explanations of how
we interpret the interim final rule.
B. Regulatory History
Petition for Rulemaking. On November 2, 1987, the United Mine
Workers of America (UMWA) and the United Steelworkers of America (USWA)
jointly petitioned us to adapt OSHA's HCS in both coal and metal and
nonmetal mines and to propose it for the mining industry. They based
their petition on the need for miners to be better informed about
chemical hazards.
In their petition, the UMWA and USWA argued that miners deserve
protection equal to that of other workers. To support their position,
the petition cited an incident in which miners at an iron ore mine were
experiencing adverse health effects. These miners asked the operator
for MSDSs for the flotation chemicals used at the mine to determine the
identity of the chemical causing the symptoms. Although the State in
which the mine was located had a right-to-know law,
[[Page 59051]]
this law did not cover mines. Because we did not have a standard to
require the operator to provide MSDSs to miners, the operator refused
several times to provide the requested MSDSs. The operator finally
provided the MSDSs after lengthy negotiations. The local union used the
information provided in the MSDSs to discuss safeguards with the
company.
The petition also specifically noted that work at both surface and
underground coal and metal and nonmetal mines exposes miners to a
variety of hazardous chemicals. For example, the petition stated that
explosives contain organic nitrates that produce nitrogen oxides and
ammonia when detonated; roof bolting systems contain plastic resins and
reactants; solvents used in equipment maintenance are both toxic and
flammable; and mill reagents can release hydrogen sulfide, cyanide, or
other dangerous chemicals.
Preliminary rulemaking. In response to this petition, we issued an
advance notice of proposed rulemaking (ANPRM) on hazard communication
on March 30, 1988 (53 FR 10256). In the ANPRM, we indicated that we
would use the OSHA HCS as a basis for our standard and requested
specific comments on a number of related issues. We published a notice
of proposed rulemaking on hazard communication for the mining industry
on November 2, 1990 (55 FR 46400). We also held three public hearings
in October 1991--one each in Washington, DC; Atlanta, GA; and Denver,
CO. The record closed on January 31, 1992.
Public response. We received a wide variety of comments on our
ANPRM and proposed rule. Commenters included both small and large
mining companies; a variety of trade associations, including those
representing specific minerals; State mining associations; chemical and
equipment manufacturers; national and local labor unions; a member of
Congress; and two Federal Agencies. There were a combined total of 121
written comments submitted in response to the ANPRM (50), the proposed
rule (63), and the re-opening of the record (8), as well as oral
testimony presented at public hearings.
Limited reopening of the record. While we were working to finalize
this rulemaking, Congress passed several laws which affected our
rulemaking procedures. These statutory mandates and related Executive
Orders require us to evaluate the impact of a regulatory action on
small mines; \1\ State, local, and tribal governments; \2\ and the
health and safety of children.\3\
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\1\ The Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA) Amendments to the Regulatory Flexibility Act of 1980,
Pub. L. No. 96-354, 94 Stat. 864 (1980) (codified as amended at 5
U.S.C. 601-612).
\2\ The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et
seq.); and Executive Order 13084, Consultation and Coordination with
Tribal Governments.
\3\ Executive Order 13045, Protection of Children from
Environmental Health Risks and Safety Risks.
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In addition, we requested comments on the information collection
and paperwork requirements of certain provisions of the proposal, now
considered as an information collection burden under the expanded
definition of ``information'' under the Paperwork Reduction Act of
1995.\4\
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\4\ Pub. L. No. 104-13, 109 Stat. 163 (1995) (codified as
amended at 4 U.S.C. 3501-3520). When we published the HazCom
proposal, the information collection and paperwork requirements were
not an information collection burden under the 1980 Paperwork
Reduction Act because they were third-party disclosures. Under the
Paperwork Reduction Act of 1995, agency rules that require
businesses or individuals to maintain information for the benefit of
a third-party or the public, rather than the government, are covered
by the Act under the definition of ``information.''
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Most MSHA regulations do not require an evaluation of their impact
on the environment. Health standards do, however. This was brought to
our attention and we took this opportunity to remedy the oversight. We
requested comments on the effect of the proposed rule on the
environment because the proposal had not.\5\
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\5\ The National Environmental Policy Act (NEPA) of 1969 (42
U.S.C. 4321 et seq.).
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We reopened the rulemaking record on March 30, 1999 (64 FR 15144)
to receive comments on the impact of the proposed rule in accordance
with these regulatory mandates and Executive Orders. The record closed
on June 1, 1999.
Public response to limited reopening. We received seven comments,
mostly from trade associations and labor organizations, on this limited
reopening of the rulemaking record. The National Mining Association
(NMA) urged us to reopen the rulemaking record in its entirety because
the information in the record is outdated since the proposal was
published on November 2, 1990. The NMA indicated this action would
improve the effectiveness and quality of the HazCom standard because
sectors of the mining industry that have incorporated OSHA's HCS can
provide us with their experience under such program. Consol, Inc., a
large mining company, stated that we need to address in the HazCom
standard recent changes in the OSHA HCS regarding electronic access to
MSDSs and microfiche maintenance of these documents. The National Stone
Association (NSA) commented on the need to promulgate a HazCom standard
in light of our new miner training regulations applicable to surface
aggregate mines. Finally, the United Mine Workers of America (UMWA),
and Jim Weeks, a consultant to the UMWA, objected to the delay in
promulgating a final standard.
We disagreed with commenters on the need to reopen the rulemaking
record in its entirety. Unlike general industry, the mining industry is
narrowly composed of two sectors, coal and metal and nonmetal. Because
of our frequent presence on mine properties, we have determined that
there are no substantial changes in the mining industry which would
require changes in the provisions of this final standard. Changes
experienced by the mining industry since the publication of the HazCom
proposal in 1990 do not rise to a level of change in ``core''
circumstances so material in nature as to entail a modification of the
final standard. Substantive rulemaking issues and regulatory
alternatives have not changed since the record closed in 1992 and,
consequently, the evidence in the rulemaking record is current.
We understand commenter's desire to provide more information
regarding their experience under the OSHA HCS standard. Our rulemaking
record, however, contains numerous comments concerning the mining
industry's experience with OSHA's HCS. We have considered all these
comments, and the final standard reflects the public's recommendations
where they do not undermine the ultimate issue of protecting the safety
and health of miners. For example, some commenters indicated their
experience regarding OSHA's MSDS requirements and suggested that we
include a provision on electronic access to MSDSs; simplify the
proposal regarding the content of MSDSs; use terms that are consistent
with the Mine Act instead of the OSH Act; simplify the requirements
regarding inclusion of MSDSs with initial shipment of product; and
require retention of MSDSs for a period of less than 30 years.
In response to these comments, the HazCom final standard provides
for electronic access to MSDSs; uses terms such as ``miner'' and ``mine
operator'' instead of ``employee'' and ``employer'' to be more
consistent with the language of the Mine Act; streamlines and clarifies
the provisions on the format and content of MSDSs; and requires the
operator to keep the MSDS at the mine for as long as the chemical is
known to be present at the mine, instead of 30 years as OSHA requires.
While MSHA's HazCom standard is generally consistent
[[Page 59052]]
with OSHA's HCS, we made changes to the final standard from the
proposal in recognition of comments received from the mining industry
concerning their experience under OSHA's HCS. These changes also
recognize that the affected regulated community is smaller and more
homogeneous than the industries regulated by OSHA.
On the applicability of the new part 46 training standard, we
concluded that hazard communication can best be accomplished by
establishing miner training requirements separate from part 46. The new
part 46 training regulations are broad, covering many different
training needs. Part 46 does not cover all of the specific aspects of
training required under this final standard. For example, part 46 does
not require training about how to read an MSDS. We developed the
training aspects of HazCom to be fully compatible with existing
standards.
HazCom does not require you to revise your part 46 training program
or plan in order for it to be credited toward complying with the more
specific hazard communication training requirements in this interim
final rule. The training required under HazCom is directly applicable
to the training in 30 CFR part 46 that involves hazard recognition and
avoidance, mandatory health and safety standards, and warning labels.
Hours spent on HazCom training can be credited to part 46, as well as
part 48, training as appropriate.
II. Paperwork Reduction Act
When we published the HazCom proposal in 1990, its information
collection and paperwork requirements were not an information
collection burden under the 1980 Paperwork Reduction Act because they
were third-party disclosures. In August 1995, the Office of Management
and Budget (OMB) published its final rule (60 FR 44978) implementing
the new Paperwork Reduction Act of 1995 (PRA 95). These OMB rules
expanded the definition of ``information'' to clarify that PRA 95 also
covered Agency rules that required businesses or individuals to
maintain information for the benefit of a third-party or the public,
rather than the government. The requirements for information collection
and dissemination in HazCom are now an information collection burden
because of this expanded definition. Almost all HazCom provisions fit
this definition: Secs. 47.11, 47.21, 47.22, 47.31, 47.32, 47.33, 47.41,
47.42, 47.43, 47.44, 47.45, 47.51, 47.52, 47.53, 47.61, 47.62, 47.63,
47.71, 47.72, 47.73, 47.74, 47.75, 47.76, and 47.77. The interim final
rule also removes the labeling requirements from existing
Secs. 56.16004, 57.16004, and 77.208. We have submitted the interim
final rule to OMB for its review and approval under Sec. 3507 of PRA
95.
Request for public comments. Send your comments on the information
collection requirements in this interim final rule to the Office of
Information and Regulatory Affairs, OMB, Attention: Desk Officer for
MSHA, 725 17th Street NW., Room 10235, Washington, DC 20503 by December
4, 2000.
Description of requirements. HazCom is primarily an information
collection and dissemination rule. The annual information collection
burden includes the time to inventory chemicals, determine the hazards
of chemicals present, develop a HazCom program, develop or obtain
labels or MSDS's as necessary, prepare training materials and train
miners, and provide copies of HazCom materials. The information
collection and paperwork burden encompasses each section of this part,
as summarized in Table 1.
Table 1.--Description of Information Collection Provisions
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Provision Information collection burden
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Written HazCom Program....... Prepare, administer, and review annually;
determine hazards of chemicals; list
hazardous chemicals at the mine.
Labels or other warnings..... Prepare for hazardous chemicals produced;
maintain legibility and accuracy.
Material Safety Data Sheets.. Develop for hazardous chemicals produced;
obtain for other hazardous chemicals;
maintain availability and accuracy.
Training Program............. Develop or obtain training courses and
materials; conduct initial training for
miners; train miners about changing
hazards; administer program.
Copies of HazCom information. Distribute written HazCom program
information to miners, miners'
representatives, and customers when
requested; distribute to other
operators.
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All written information can be either paper or electronic format
provided that you meet access requirements.
Description of respondents. The respondents are operators,
including independent contractors. The interim final HazCom rule will
be applicable to all 21,166 operations under MSHA jurisdiction: 2,459
surface and underground coal mines; 3,801 coal contracting firms;
11,337 surface and underground metal and nonmetal (M/NM) mines; and
3,569 M/NM contracting firms.
We estimate that 33% of small mines and 43% of large mines (15% of
coal and 19% of M/NM mines employing 20 miners, 17% of coal and 33% of
M/NM mines employing 20 to 500 miners, and 100% of coal and M/NM mines
employing >500 miners) have an existing hazard communication program
that complies with all or part of the provisions of HazCom. The
percentage of mines complying with a specific HazCom requirement varies
depending on the type of mine and the specific provision. For example,
some mines label containers and keep MSDSs, but do not have a written
program or provide HazCom information to miners. As a matter of
corporate policy or to comply with State hazard communication or right-
to-know laws, most existing HazCom programs are modeled on OSHA's HCS.
For these reasons, we believe that you can adjust your existing program
to comply fully with HazCom with little effort and few resources.
We assumed that most independent contractors conduct some work at
locations under OSHA jurisdiction and would have an existing hazard
communication program. The contractor's program, however, may need
modification for a particular mine. The magnitude of the burden for any
individual mine operator or independent contractor, therefore, will
vary greatly by the size, type, and location of the operation. For the
purpose of estimating burden, we assumed that there are existing hazard
communication programs at 65% of small (20 miners) coal contractors,
75% of large (20 miners) coal contractors, 70% of small (20
miners) M/NM contractors, 74% of large (20-500 miners) M/NM
contractors, and 100% of M/NM contractors employing >500 miners.
[[Page 59053]]
Information Collection Burden. The greater portion of HazCom's
burden accrues when you are developing and implementing the program. We
annualized this initial burden. We summarize the total first-year,
start-up information collection burden for HazCom in Table 2. We
summarize the total annually recurring information collection burden in
Table 3.
Table 2.--First-Year Information Collection Burden*
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of Responses/ Hours/ Associated
Provision respondents responses respondent response Total hours costs**
--------------------------------------------------------------------------------------------------------------------------------------------------------
Develop Program......................................... 14,239 14,239 1 12.2 173,366 $446,826
Review Existing Program................................. 7,620 7,620 1 6.3 48,144 125,416
Develop MSDS............................................ 3,544 3,894 1.1 2.9 10,222 26,074
Develop Training Program................................ 13,007 13,007 1 6.9 89,196 229,257
Prepare Initial Training................................ 13,007 13,007 1 2.0 26,014 83,632
Total............................................... .............. 51,767 .............. 6.7 346,942 911,205
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Discrepancies due to rounding.
** Adjusted first-year costs annualized (See Regulatory Economic Analysis, Chapter VII.)
Table 3.--Annual Information Collection Burden \*\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Number of Responses/ Hours/ Associated
Provision respondents responses respondent response Total hours costs**
------------------------------------------------------------------------------------------------------------------------------------------
Update Program............................ 14,239 14,239 1 1.7 24,767 $911,890
New Operators Develop Program............. 889 889 1 13.2 11,772 437,982
Label Containers.......................... 1,717 6,712 3.9 0.20 1,343 62,309
Update MSDS............................... 3,544 974 0.27 1.5 1,460 53,211
Maintain MSDS............................. 14,239 637,720 44.8 0.05 31,886 568,744
New Operators Develop MSDS................ 889 1,019 1.1 3 3,057 113,578
Manage Training Program................... 13,007 13,007 1 1.7 22,299 818,776
New Operators Prepare Training............ 889 889 1 8.6 7,664 301,063
Training Records.......................... 13,007 187,149 14.4 0.05 9,365 167,518
Provide Info to Miners.................... 14,239 21,961 1.5 0.20 4,395 78,817
Providing Info to Customers........... 14,239 233,860 16.4 0.20 46,772 832,582
-------------------------------------------------------------------------------------------------------------
Total................................. .............. 1,118,419 .............. 0.15 164,780 4,346,470
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Discrepancies due to rounding.
** Adjusted first-year costs annualized (See Regulatory Economic Analysis, Chapter VII.)
III. Discussion of the Interim Final Rule
In preparing this interim final rule, we attempted to address the
concerns of all commenters, while ensuring that miners and operators
have the information necessary to work in a safe and healthful
environment.
Commenters supported widely different ideas about a HazCom rule for
the mining industry. Some said we do not need one because existing
standards require hazard training and labeling; others said it is vital
to allow miners to exercise their right-to-know. Some said the rule
would be a great burden; others said that they already have such a
program. Some said they want a rule just like OSHA's; others said we
should resist the temptation to duplicate OSHA's HCS. Some wanted a
separate standard for the coal mining industry; others recommended that
we establish separate standards for mine operators and independent
contractors; others wanted a single Federal standard. Some urged us to
include specific language to ensure that individual States do not
promulgate or enforce any requirements related to hazard communication
that conflict with the Federal standard. Commenters recommended that
the final rule be practical, strike a balance between providing too
much information and too little, and allow for global harmonization
with international standards.
In response to the different needs for hazard communication in the
mining industry, and the broad range of comments, the provisions of the
interim final rule are performance-oriented and flexible enough that
operators, including contractors, can comply using a single program to
meet OSHA's HCS and our HazCom standard. We considered adopting the
OSHA HCS in its entirety, but some requirements of OSHA's HCS are not
relevant to mining. OSHA's HCS is supplemented by other OSHA standards
for which we have no parallel. OSHA, for example, has comprehensive
standards specifically covering hazardous waste operations,
laboratories, and medical records. To the extent practical, the
substance of our interim final rule is the same as that in OSHA's HCS.
We added provisions where needed, however, to give miners the same
protection as employees in general industry.
A. Subpart A--Purpose and Scope of HazCom
The proposed rule included a ``scope and application'' section
stating where HazCom applied and listing exemptions from coverage. In
the interim final rule, we renamed this section ``operators and
chemicals covered.'' We moved the exemptions, which were a part of the
scope in the proposal, to the end of the HazCom interim final rule so
that the substantive requirements would be up front where they are more
accessible. (See Sec. 47.81 and Sec. 47.82, Exemptions.) We will
discuss exemptions later in the preamble, consistent with their
placement in the interim final rule.
1. Sec. 47.1 Purpose of a HazCom Standard
A few commenters suggested that we include a ``purpose and intent''
section in our HazCom interim final rule, in addition to the ``scope
and application'' section. In response, the interim final rule adds
language to clarify our intent. The purpose of HazCom is to reduce
chemically-related injuries and illnesses by ensuring that you--
[[Page 59054]]
Know what chemicals are at your mine;
Determine which are hazardous and the nature of their
hazards;
Establish a HazCom program; and
Inform each miner who can be exposed, and other on-site
operators whose miners can be affected, about those hazards and
appropriate protective measures.
2. Sec. 47.2 Operators and Chemicals Covered
The proposal would have applied ``to all operators who produce or
use hazardous chemicals in their workplaces'' and to ``any chemical
which is known to be present in the workplace in such a manner that
employees are exposed * * *.'' The interim final rule applies ``to any
operator producing or using a hazardous chemical to which a miner can
be exposed * * *.'' By modifying the language in the interim final
rule, we clarify our intent that you must find out what hazardous
chemicals are present at your mine and evaluate whether it is possible
for miners to be exposed under normal conditions of use or in a
foreseeable emergency. You do not have to determine that miners are
exposed or the level of their exposure. The interim final rule is
consistent with the purpose of HazCom and OSHA's HCS. Although the
proposed rule seemed to apply only where there was an actual exposure,
the proposal defined ``exposed'' as ``subjected, or potentially
subjected, to a hazardous chemical * * *.'' The preamble to the
proposal further explained that this definition included ``current and
potential (accidental and possible) exposures.''
The potential for exposure to a hazardous chemical, such as diesel
fuel, motor or hydraulic oils, lubricants, paints, and solvents, occurs
at virtually every mining operation although exceptions do exist. While
considering HazCom, we reviewed data and documents from inspections and
investigations, chemical inventories, technical reports, accident and
injury data, and sampling data confirming that exposure to chemicals
occurs in all types and sizes of mines.
If you have already implemented a HazCom program at the mine, and
that program complies with the requirements of OSHA's HCS, it should
also comply with our HazCom interim final rule. You will still have to
check your existing HazCom program to make sure it complies with the
interim final rule.
Potential exposure. The interim final rule retains the proposal's
intention concerning the potential for exposure. Although we interpret
the term ``foreseeable'' broadly in the context of this rule, we also
intend HazCom to be practical.
NIOSH commented on our HazCom proposal and stated that the scope
should not limit coverage of HazCom only to hazardous chemicals ``under
normal conditions of use or in a foreseeable emergency.'' NIOSH stated
that HazCom should cover all hazardous chemicals present on mine
property, regardless of intended or expected exposures. Specifically,
NIOSH stated that:
All workers should be informed about the nature of the risks
associated with the hazardous materials found in their workplace.
``When working in the presence of a hazardous material, hazards are
always present even under work situations most carefully designed to
eliminate risk'' (NIOSH 1974a). The informed worker is prepared to
minimize the impact of a hazardous materials incident. The
uninformed worker is at risk of causing a hazardous materials
incident or contributing to adverse health effects.
We partly agree with NIOSH's comment. But we also agree with those
commenters who expressed concern that by addressing remote or trivial
hazards, the purpose of HazCom would be defeated and its effectiveness
diluted. If miners are flooded with warnings about all chemical
hazards, including those they perceive as remotely possible, they may
be more likely to ignore warnings for the more probable hazards. We
also believe that it would be unnecessarily burdensome to require you
to address every conceivable chemical hazard, regardless of how
unlikely that hazard is to materialize.
For example, suppose a chemical liquor, or caustic, is only present
in a certain area of your bauxite mill and you have miners in this area
working near pipes carrying the caustic. You have other miners who work
in the farthest area of your operation who never go near the mill or
the caustic. Although you could conceive of circumstances where the
miner who does not work near the pipes can be exposed, it would not be
reasonably foreseeable. On the other hand, you can conceive of
circumstances where the miner who works daily near the pipes can be
exposed. The caustic can eat through a pipe; a truck can back into a
pipe; pressure can cause joints to leak. Exposure is foreseeable under
these circumstances: strong caustics can eat through pipes; trucks have
run into pipes before; and pressure often causes leaks.
Almost all miners are exposed to crystalline silica, but the
potential for illness is related to their exposure to the respirable
fraction of dust. For example, your miners work on a concrete floor and
there is silica in the concrete. If no cutting, grinding, or other
activities happen to the floor that would release the respirable
fraction, the potential for exposure to respirable crystalline silica
is remote, and the miners are not potentially exposed to a hazard. If
you must remove the floor through grinding, cutting, or crushing, the
potential for exposure is foreseeable and the concrete would become a
hazardous chemical subject to HazCom. Base your decision to include a
chemical in your HazCom program on its hazards and the potential for
miner exposure, not the risk. A chemical's hazard is in its inherent
characteristics. Risk is the likelihood of expression of that hazard in
a given situation.
The interim final rule sets boundaries on the chemicals and
operators covered by HazCom. It is our judgment that these boundaries
provide miners the protections intended by the Mine Act without causing
you to expend resources on remote possibilities.
Significance of exposures. One of the most frequent suggestions
received on the HazCom proposal was that it should apply only where
significant exposure to a chemical occurs. These commenters asserted
that a significant exposure involved a likelihood of material
impairment of health to a miner, such as when a miner was overexposed
to a hazardous chemical. HazCom's most misunderstood concept was its
relationship to risk and significant exposure. Miners are frequently
and seriously harmed by chemicals in their work area, but HazCom is not
a risk-based health standard for measuring exposures, requiring
controls, or providing personal protective equipment. Other standards
address the problems of significant risk and the methods of controlling
it. HazCom is an information and training standard intended to diminish
risk by ensuring that operators provide miners with a level of
knowledge that allows them to reduce their exposures by recognizing
potential hazards and by following safe work practices.
HazCom is based on the premise that chemicals can have inherent
characteristics that pose hazards and miners have a right to know what
those hazards are and what their employer is doing to protect them.
Many chemicals are considered to be hazardous because evidence
indicates that they can threaten a miner's physical well-being or harm
the miner. Determining that a chemical is hazardous is not the same as
determining that there is a significant risk of any specific physical
or health
[[Page 59055]]
effect occurring from its use under a particular set of circumstances
at the mine.
HazCom is being promulgated to anticipate the possibility of harm
or loss from chemical exposures and provide information on ways to
avoid them. It is not to regulate chemical use. It does not prohibit or
limit the use of chemicals in the mining industry or prescribe controls
to reduce exposures. HazCom's effectiveness is dependent on the
operator's and miner's knowledge and awareness of hazards. Like any
training or information standard, it is through hazard identification
and awareness that HazCom addresses hazardous chemical exposure and
prevents injuries and illnesses.
B. Subpart B--Hazard Determination
A hazardous chemical is any chemical whose properties can pose a
physical or health hazard. It can be a pure substance (an element or
chemical compound), a mixture, or an ingredient in a mixture. A
hazardous chemical can be in any physical form: Solid, liquid, or gas.
The likelihood of harm may be greater under some circumstances than
others, but the potential to do harm is inherent in the chemical's
properties. We discussed exposure and its significance under ``purpose
and scope'' in this preamble.
HazCom's definition of hazardous chemical is consistent with the
proposal and OSHA's HCS. We arranged the criteria for determining
whether a chemical is hazardous in Table 47.11 and re-stated the
proposal's language in a simpler way.
1. Sec. 47.11 Identifying Hazardous Chemicals
HazCom is most effective when the criteria for determining the
hazards of a chemical are applied consistently. Most physical hazards
of elements and compounds are well-known and can be verified in a
laboratory through testing. Physical hazards of mixtures can be
determined the same way. Health hazards, however, are generally more
complex, requiring studies of living systems, and can take much longer.
Most health hazards of chemicals are determined through animal studies
by extrapolating data from the effects on animals to predict the
effects on humans.
We consider a chemical to be a physical hazard when there is
scientifically valid evidence that it is combustible; a compressed gas
or liquid; an explosive; a flammable aerosol, gas, liquid, or solid; an
organic peroxide; an oxidizer; a pyrophoric (capable of spontaneously
igniting); unstable and reactive; or water-reactive. Scientifically
valid evidence means that a study was conducted or data obtained in a
highly reliable manner that takes into consideration the margin of
accuracy and consistency.
We consider a chemical to be a health hazard when there is
statistically significant evidence that it can cause acute or chronic
health effects. Statistically significant evidence supports a
conclusion with a high level of confidence, typically 90% to 95%. This
means that there is only a 5% to 10% probability that the observed
results are due to chance. Health hazards include chemicals that cause
cancer; irritate or corrode tissues; or cause a sensitization reaction.
It also includes chemicals that damage the reproductive system, the
liver, the kidneys, the nervous system (including psychological or
behavioral problems), the blood or lymphatic systems, the digestive
system, or the lungs, skin, eyes, or mucous membranes.
Hazard determination methods. The final HazCom rule, like the
proposal, includes two basic ways for determining whether or not a
chemical is hazardous: One for chemicals brought to the mine and the
other for chemicals produced at the mine. In every instance we
reviewed, operators producing chemicals also brought chemicals to their
mines. We intend that the hazard determination provisions of HazCom
apply to all hazardous chemicals produced at the mine or brought onto
mine property, even if they are not covered under other MSHA standards.
A number of commenters wanted the hazard determination requirement
in the proposal changed to read: ``Operators who ship chemicals shall
determine the chemicals' hazards under conditions of intended use based
on our standards in 30 CFR parts 56, 57, 71, and 75.'' A number of
commenters wanted operators who received chemicals to determine their
hazards based solely on whether the chemical is regulated by us and
whether it presents a physical or health hazard under conditions of
intended use.
The interim final rule does not use the word ``ship'' instead of
``produce''; does not add the phrase ``under conditions of intended
use''; and does not limit the chemicals covered to those listed in our
existing standards. We enforce exposure limits for chemicals listed by
the American Conference of Governmental Industrial Hygienists (ACGIH)
in their list of Threshold Limit Values (TLV). This list does not
address all chemicals known to be present on mine property. These
suggestions would have significantly changed the intent and scope of
HazCom. It would emphasize the hazards associated with the manner or
process in which chemicals are used by persons off mine property,
instead of emphasizing the hazards to miners.
2. Chemicals Brought to the Mine
The interim final rule is substantively the same as the proposal in
its requirements for a chemical brought to a mine. Under the interim
final rule, you must review the chemical's label for any hazard warning
and its MSDS for more detailed information. If the label or MSDS
indicates a hazard, consider it hazardous. You must then include the
chemical on the list of hazardous chemicals at the mine; keep a copy of
the MSDS accessible to miners; and train miners about the hazards, what
you are doing to control these hazards, how to prevent or reduce the
exposure, and how to protect themselves from injury or illness. If you
do not want to rely on the chemical manufacturer or supplier, you may
evaluate the chemical yourself. If you do, we will require you to
demonstrate that you have conducted a thorough evaluation of the
available evidence.
The number and types of different hazardous chemicals brought to
the mine depends on the size and type of the operation. These chemicals
can range from bulk raw materials, such as ammonium nitrate for use in
blasting agents, to small quantities of highly hazardous chemicals used
in quality control laboratories. Diesel fuel, antifreeze, motor or
hydraulic oil, brake fluid, lubricants, adhesives, paints, and solvents
are a few of the materials commonly brought to mining operations that
would require you to ask the question: Is this a hazardous chemical?
The interim final rule requires you to make a hazard determination
for each chemical at your mine to which miners can be exposed
regardless of how the chemical is used. Based on your experience, we
expect you to anticipate any likely misuse of the chemical, as well as
accidents. This intention is further emphasized in the written HazCom
program, which requires you to document how you determined the hazards
of the chemicals at your mine and to make a list of those found to be
hazardous. For a chemical brought to the mine, you need to review its
label and MSDS. If, however, you intend to use the chemical in a manner
not intended by the manufacturer or supplier, you must determine if
your conditions of use create any different hazards.
3. Hazardous Waste
Hazardous waste can be either brought to the mine or produced at
the
[[Page 59056]]
mine. Hazardous waste regulated by the Environmental Protection Agency
(EPA) under the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, was exempt from the labeling and MSDS
requirements under the proposal. If a hazardous waste is brought to the
mine without an MSDS, however, and you could not obtain one, the
proposal would have required you to determine its hazards using the
same methods as if it had been produced at the mine: You would either
have had to test it or have had to use any valid, available, scientific
information. We expect that, in most cases, the shipping manifest or
EPA permit accompanying the waste will say what it is. Even if the
ingredients are listed generically, you should request that the
supplier provide you with hazard information. We did not propose to
exempt EPA-regulated hazardous waste from the training and other
requirements of HazCom.
Because the proposal would have required you to have information on
the hazards of this waste, and because there is no specific format for
the MSDS, it follows that a compilation of such information could be
considered an MSDS. You can use this information to develop a label.
For this reason, we did not specifically exempt EPA-regulated hazardous
waste from the labeling and MSDS requirements in the interim final
rule. Rather, we address such waste separately in Sec. 47.43, MSDS for
hazardous waste. You must make sure that miners have the best
information you can find about the waste's chemical hazards. We suggest
for the sake of consistency that you put the hazard information in the
same MSDS format as you use for other chemicals.
4. Chemicals Produced at the Mine
The interim final rule, as in the proposal, defines a chemical as
any element, chemical compound, or mixture of these and requires you to
identify what chemicals you produce at your mine. Chemicals produced at
your mine include--
Those that you mine or process to sell, such as coal or
crushed stone;
The mixtures you create, such as flotation reagents or
blasting agents;
The by-products of mining and milling, such as diesel
exhaust, hydrogen sulfide, or gases from combustion or blasting; and
The materials discarded from mining operations, such as
tailings.
Every mine product is a chemical, but not all are hazardous for the
purposes of HazCom. You must determine if the chemical has any harmful
properties that could pose a physical or health hazard. You must
determine what the hazards and protective measures are so that you can
prepare an appropriate label and MSDS. Again, HazCom does not require
you to take additional protective action, as might be required by a
risk-based rule. HazCom requires you to inform miners about
scientifically valid evidence concerning a chemical's hazards, from
either your own testing or the published results of other testing or
studies.
For example, if your product is sand and gravel or crushed
limestone, crystalline silica is likely to be the only hazardous
component, and you are already training your miners about its hazards.
Because respirable silica is so prevalent in mine products, we will be
producing a generic MSDS for you to use if you do not want to prepare
one yourself. You will have to ensure that your label identifies the
product as containing crystalline silica, which is a human carcinogen.
It is only respirable crystalline silica, however, that is a human
carcinogen.
Sources for identifying hazardous chemicals. The interim final rule
requires that, if you produce a chemical, you must determine its
physical hazards based on available evidence or testing. You must
determine its health hazards based at least on the findings of the
following four recognized authorities or sources:
Title 30 Code of Federal Regulations (30 CFR) chapter 1.
American Conference of Governmental Industrial Hygienists
(ACGIH) Threshold Limit Values (TLV's) and Biological Exposure Indices
(latest edition).
National Toxicology Program (NTP) Annual Report On
Carcinogens (latest edition).
International Agency for Research on Cancer (IARC)
Monographs or Supplements.
These sources are basically identical to those listed in the
proposal and the OSHA HCS, with the exception that MSHA standards
regulating exposure to and use of hazardous substances are referenced
instead of OSHA standards. The proposed rule intended that you would
not have to look beyond these sources to determine if a chemical was a
health hazard. In addition, you must consider a chemical a suspected or
confirmed carcinogen if it has been evaluated and listed as such by
ACGIH, NTP, or IARC. HazCom does not require you to determine whether
the concentration of the chemical in the mine environment exceeds a
limit recommended by one or more of these four sources. If there is a
potential for harm and a potential for exposure, the chemical is
hazardous for the purposes of HazCom. You must tell your miners about
the hazards that are known and give them information relevant to the
safe performance of their tasks.
Some commenters recommended that we rewrite this provision to
require that ``operators who produce chemicals must determine the
chemicals' hazards'' and not specify the basis for the determination.
These commenters felt that this language would make the requirement
more performance oriented, would avoid incorporation by reference, and
would allow operators to choose the best methods for this assessment
based on the best available sources at the time of the assessment.
Although the hazard determination criteria rely on the findings of
respected and authoritative scientific organizations, these are minimal
requirements. The interim final rule allows and encourages you to use
the best methods and sources available.
Using ACGIH, NTP, and IARC to determine if a chemical is hazardous.
Many commenters strongly opposed including ACGIH, NTP, or IARC in the
hazard determination section of the interim final rule. These
commenters also objected to our use of IARC and NTP publications as
authoritative sources for identifying certain chemicals as carcinogens.
Some of these commenters felt that these organizations may identify a
substance as a possible human carcinogen based upon the results of a
single animal study and that animal studies alone should not be relied
on to identify human carcinogens. Others felt that these organizations
only considered positive studies (those showing an adverse health
effect) and not negative studies (those that were inconclusive or did
not show a health effect) when determining that a chemical is a
carcinogen or a suspected carcinogen.
Commenters opposed our reliance on an automatic trigger, such as a
hazard determination made by one of these organizations, to deem a
chemical as hazardous without considering the risk posed in a given
situation. One commenter stated that any reference to ACGIH, NTP, or
IARC in the rule is inappropriate because these institutions make
determinations based on ``strength of evidence analysis'' and defer
``weight of evidence determinations'' to regulatory authorities. This
commenter felt that, as in our proposed air quality rule, we should
adhere to the guidelines of the Office of Science and Technology Policy
(OSTP) because HazCom ultimately would reference our final air quality
standard. OSTP guidelines address the use of ``strength of evidence''
and ``weight of evidence'' analysis in quantitative risk assessment.
[[Page 59057]]
Most commenters on our use of these publications opposed such use,
stating that including references to these would be an incorporation-
by-reference without following the proper rulemaking procedures. They
stated that ACGIH's, NTP's, and IARC's decision-making processes are
deficient because they restrict public or peer input. They further
stated that the absence of public comment and external peer review
raises significant questions regarding the quality of any science-based
decision-making process. These commenters added that our rulemaking,
because it goes through an established process, provides the only basis
for establishing valid references for hazard determination purposes.
Some commenters also strongly objected to referencing either the
latest edition or subsequent monographs or supplements of these sources
because such references fail to advise the regulated community of the
standard of conduct to which they are expected to conform. They
commented further that we may only incorporate-by-reference materials
in existence at the time we promulgate a final rule.
In response to these comments, we wish to re-emphasize that HazCom
is not a risk-based rule. A risk-based rule requires us to limit a
miner's exposure to a toxic substance or harmful physical agent. This
is an information-providing standard to ensure that operators are aware
of potential hazards so that they can take appropriate actions to train
miners and provide them with information about ways the operator,
miners, and others can protect themselves from these hazards. We
believe that miners have a fundamental right to know about the hazards
in their work area and that operators have a fundamental duty to
provide this information. For example, warnings concerning the presence
of a radiation source or high-voltage electricity are commonplace,
whether or not a person is likely to be exposed or injured. We address
risk assessment and risk management in other standards.
Referring to IARC, ACGIH, and NTP documents, in one sense, does
incorporate them by reference. We refer to these sources because they
contain lists of known hazardous chemicals. Using these lists as a
screening tool reduces the resources you would otherwise have to devote
to determining if a chemical is hazardous and poses no increased
compliance obligations on you.
The use of these references was supported by some commenters
because the sources are renowned scientific authorities. Using the
latest editions of the referenced sources of information to establish
that a chemical is hazardous is appropriate because it contains the
most recent information. We also believe it will be easier for you than
requiring a continual, exhaustive literature search, conducting your
own chemical testing, or trying to locate a document that is outdated
or out-of-print.
If the commenters objecting to the use of these references meant to
address whether or not the chemicals are known to be hazardous, the
chemicals are listed in the four sources because scientific studies
have indicated that they are hazardous. We expect most hazardous
chemicals produced at mines to be listed. Other sources not cited in
the proposal or interim final rule also can provide valuable
information. You can check other reputable sources of scientific
information, such as the NIOSH ``Registry of Toxic Effects of Chemical
Substances,'' the NIOSH ``Pocket Guide to Chemical Hazards,'' OSHA
standards, or chemical databases on the internet.
The alternative to using these four sources as a screening tool
would be for you to conduct a thorough search of available literature
to determine if the chemical is hazardous in addition to finding any
statistically significant, scientifically valid studies that report the
chemical's hazards. By using these sources as a screening tool, we
intend to minimize the number of literature searches and, thus, the
burden.
Using ACGIH, NTP, and IARC to determine a chemical's hazards. If
the commenters objecting to the use of the references meant to address
the nature of the harm, the circumstances under which the chemical can
cause harm, or the level of exposure at which harm becomes likely, we
recognize that there may be conflicting information in the scientific
literature. We agree that relying solely on the information from these
four sources may not be sufficient to determine the health hazards of a
chemical. Except for identifying certain chemicals as either
carcinogens or suspected carcinogens, these sources contain little
specific information on the types of health hazards posed.
Some commenters stated that it would be a great burden on the
mining community to find out if recent scientific studies show their
product to be a carcinogen or other type of chemical hazard. Although
determining the hazards of a chemical you produce could be more time
consuming, we do not believe that it is overly burdensome, infeasible,
or impractical. An entire segment of the publishing industry exists to
inform the mining industry about new production equipment, legislative
and regulatory affairs, commodity pricing, changes in construction
specifications, bid proposals, and scientific studies that can affect
the commercial value of mining products. We expect that the media,
trade associations, or unions will also provide the mining industry
with any significant new information concerning the hazards of their
products.
Proposed Table 1. To simplify your access to the information from
these sources, we compiled a table of all the chemicals listed in them
and included this table in the proposal. The table indicated which of
the four sources would give you more information about a chemical's
health hazards and carcinogenicity. Operators could use the proposed
table to determine quickly if the chemical they produced was a health
hazard rather than having to refer to the four sources. We thought this
would save resources if the chemical was not hazardous. We intended to
spare operators from the need to look beyond this table to determine
whether a chemical posed a health hazard. We had intended to update
this table as needed.
Several commenters agreed that we should allow operators to use
proposed Table 1 to determine if the chemicals they produce are
hazardous. One of these commenters felt that we should publish this
table as an appendix to the rule and that it should state explicitly
that operators may use this table to determine whether a chemical is a
health hazard rather than having to refer to the four sources. Another
of these commenters suggested that we include Chemical Abstract Service
(CAS) registry numbers in the table to help operators identify the
chemical.
Some commenters asked that we not include the table in the final
rule. One commenter felt that the average person would find this list
of hazardous chemicals difficult and impractical to use. Others
expressed concern that the list may not indicate all the potentially
hazardous materials produced or used at the mine and favored the OSHA
HCS's one-study approach.
One commenter objected to the proposal's reference to a table in
the proposed air quality standard before we published the air quality
standards as a final rule. Some commenters supported our intention to
reference the final air quality standards in the hazard determination
provision. That support, however, was contingent upon our establishing
permissible exposure limits (PELs) at levels that prevent material
impairment of health or functional
[[Page 59058]]
capacity. These commenters further stated:
PEL's and carcinogens validated through the rulemaking process
will enable operators who ship chemicals to evaluate whether those
chemicals present a health hazard under conditions of intended use.
When proposed 30 CFR Parts 58 and 72 are validly promulgated, MSHA
should amend proposed 30 CFR Part 46.3(a) to incorporate those
provisions.
Although the interim final rule continues to reference NTP, IARC,
and ACGIH, it does not include a table of hazardous chemicals. Upon
further consideration, we concluded that the list will quickly become
outdated as new hazardous chemicals come on the market or new
information becomes available, and we could not readily update it. The
constant need to update the table would reduce the effectiveness of
HazCom because the update would require rulemaking. Instead, we will
put a list of chemicals known to be hazardous in the Toolbox that
supplements the Compliance Guide for this interim final rule. We intend
to place both of these references on our website and provide links to
other websites, such as university collections of MSDSs. Access to
internet news services, libraries, and databases will allow you to
obtain the most recent and reliable information soon after it becomes
available.
5. Mixtures Produced at the Mine
The best way to determine the hazards of a mixture is to test the
mixture as a whole. You would then use the results of that testing to
make a determination as to whether or not the mixture poses a hazard
and the nature of the hazard. We recognize that most operators do not
have the facilities and equipment to conduct this testing.
For mixtures not tested as a whole, the interim final rule
establishes the same criteria as the OSHA HCS (and as proposed) for
determining the hazards of the mixture based on its ingredients. You
must use available scientifically valid evidence to determine the
mixture's physical hazards and rely on available health hazard
information for the mixture's ingredients to determine its health
hazards.
You must conclude that the mixture is a health hazard if
at least 1% of the mixture is a chemical that is a health hazard.
You must conclude that the mixture is a carcinogenic
hazard if at least 0.1% of the mixture is a chemical that is a known or
suspected carcinogenic hazard.
Determining the hazards of mixtures. A number of commenters wanted
the final rule to allow you to determine the hazards of mixtures of
chemicals in the same way you would determine the hazards of individual
chemical compounds or elements, i.e., under conditions of intended use.
They believed that mixtures should not be treated differently from
other chemicals, although they may present additional health or
physical hazards. These commenters stated that you should--
(1) test the mixture as a whole;
(2) if not tested as a whole, determine whether a component of the
mixture presents a health hazard under conditions of intended use and
if it constitutes a physical hazard; or
(3) assume that a component presents a health hazard under
conditions of intended use and that the mixture presents the same
hazard, and use whatever scientifically valid evidence is available on
the components of the mixture to determine the mixture's physical
hazards.
Several commenters objected to the requirement that if a mixture
has not been tested as a whole, you must assume that it will pose the
same health hazards and carcinogenic hazards as each of its components.
Other commenters recommended that the health hazards of mixtures be
based on either experimental evidence or weight of experience and, if
known, dosage and exposure. Others argued that the concentration levels
of 1.0% for hazardous components of a mixture, and 0.1% for
carcinogenic components, had been chosen arbitrarily and that there are
no studies showing relevance to these levels with regard to health
hazards.
Although we did not choose these levels arbitrarily, we agree that
they are not based on specific scientific studies. The interim final
rule sets concentration levels of 1.0% for hazardous components of a
mixture and 0.1% for carcinogenic components, to be consistent with
OSHA's HCS. By being consistent, HazCom reduces your burden by allowing
you to use the label and MSDS for hazardous chemicals brought to the
mine.
Trace ingredients. The proposal stated that, if you have evidence
indicating that a component of the mixture could be released in
concentrations that would exceed an established MSHA PEL or ACGIH TLV,
or could present a health risk to miners, you must assume that the
mixture presents the same hazard. A number of commenters opposed the
proposal's reference to the ACGIH TLVs and suggested that the final
rule reference only MSHA health standards. Commenters expressed concern
that the resources spent on determining the potential release of a
hazardous trace component of a mixture dilutes the resources available
to address real hazards. We contend, however, that if a trace
ingredient can be released from the mixture at concentrations that can
pose a health risk to miners, such as concentrations exceeding its PEL
or TLV, this trace component is considered a hazard.
Another commenter recommended that the final rule be more
performance oriented and suggested that we reword this section to
state:
If the operator has reason to believe that lesser amounts than
listed in item (2) could reasonably present a health risk they will
be assumed to present the same hazard.
In response to comments, we used more performance-oriented language
in the interim final rule. It requires you to assume that a mixture
presents the same hazard as a component if you have evidence that the
component could be released from the mixture in a concentration that
could present a health risk to miners.
For example, the MSDS may indicate that a particular trace
component reacts with other components, diffuses into the packaging, or
evaporates over time. In this example, if the trace component is
hazardous, you must inform miners about this information and its
implications for them, and comply with the applicable HazCom
provisions.
We do not intend that you conduct research for chemicals brought to
the mine; however, you must obtain an MSDS for them to determine
whether or not a trace component can be released from the mixture in a
hazardous concentration. Our intent is that, if you determine the trace
ingredient to present a hazard, then you must include this information
in your HazCom training. However, you must determine potential hazards
from trace ingredients in hazardous chemicals you produce, including
mixtures and by-products of mining activities. This is consistent with
MSHA's HazCom proposal and OSHA's HCS.
The interim final rule eliminates unnecessary language but retains
generally the same requirement as the proposal. This provision
recognizes that even trace components of a mixture could cause harm if
a sufficient quantity is released from the mixture.
Crystalline silica. A number of commenters expressed concern that
IARC has designated respirable crystalline silica as a probable human
carcinogen. Several commenters were concerned that the requirements for
determining the hazards of mixtures that had not been tested as a whole
did
[[Page 59059]]
not take into account that a chemical is hazardous only when it is
encountered in a specific physical state or form. Specifically, they
felt that the proposed rule would have required you to determine that
any untested mixture that contains 0.1% or greater of crystalline
silica is carcinogenic, even when the concentration of respirable
crystalline silica in the mixture is less than 0.1%. They pointed out
that IARC's Monograph No. 42 and Supplement 7 and NTP's proposal to add
this substance to its list in its 6th Edition address only the
respirable crystalline form of silica as a human carcinogen and not
other forms of crystalline silica.
We agree that it is the respirable form of crystalline silica that
is designated as a human carcinogen in the sources listed in the
interim final rule. Therefore, if the mixture contains 0.1% or greater
of crystalline silica, you must determine the percentage that is
respirable or capable of being liberated. Any required label and MSDS
for products containing concentrations of 0.1% or more of respirable
crystalline silica must indicate this potential health hazard. This is
consistent with OSHA's HCS. HazCom also requires you to inform miners
about the carcinogenic hazard from exposure to respirable crystalline
silica.
Physical hazards. Comments on the proposal indicated that you may
find it difficult to categorize the physical hazards of some mixtures
because of the stratification or deterioration that may occur in these
mixtures during storage and handling. To ensure that all hazards of a
mixture are properly addressed, this commenter felt that we should
require you to use persons who are qualified by education, experience,
and training to determine the hazards of a mixture with respect to its
use in mines. We expect that most of the information necessary to
determine the hazards of a mixture are available in MSDSs or other
publications. Because you are the person responsible for making this
determination, and often the most qualified, we expect that you will
make the determination yourself or select a competent person to do it.
The proposed rule stated that if a chemical is not tested as a
whole, you must use ``whatever'' scientifically valid evidence is
available to determine the mixture's physical hazard. The word
``whatever'' was removed from the interim final rule at the request of
commenters.
6. Hazardous Chemical
One commenter felt that ``chemical'' may be interpreted
restrictively to mean that only the chemicals you produce require a
hazard determination. This commenter felt that we should state clearly
that all mining products, including minerals, ore, and miscellaneous
materials, require a hazard determination. Another commenter
recommended that we use the term ``hazardous material'' rather than
``hazardous chemical'' because operators and miners are more likely to
associate that term with minerals, ores, and other materials that occur
naturally.
We use the term ``hazardous chemical'' in HazCom to be consistent
with its use in OSHA's HCS. It is used by a wide variety of industries
and has been the subject of much clarification in the 15 years since
OSHA promulgated its HCS. We believe that the definition of
``chemical'' in the proposed and interim final rules is more widely
applicable and less open to misinterpretation than the alternatives
suggested.
C. Subpart C--HazCom Program
All mines must have a written HazCom program, even if it only
documents that you looked at each chemical at the mine, made a hazard
determination, and found none to be hazardous. The written program does
not have to be lengthy or complicated, and some operators may be able
to rely on existing HazCom programs to comply with the requirements of
the interim final rule. As mining processes change and as new chemicals
are brought onto mine property, you must update your written program to
reflect these changes.
1. Sec. 47.21 Requirement for a HazCom Program
This section of the interim final HazCom rule is substantively the
same as the proposal and consistent with OSHA's HCS. It requires you to
develop, establish, and maintain a written HazCom program. You must
ensure that you have an effective method to communicate hazards to
miners and other operators at the mine if their miners can be exposed
to your hazardous chemicals. You must also retain the written program
for as long as a hazardous chemical is known to be at the mine and
exposure is possible.
The scope of HazCom, Sec. 47.2, clearly states that the interim
final rule applies to all operators with miners who can be exposed to a
hazardous chemical ``under normal conditions of use or in a foreseeable
emergency.'' The scope applies to all sections of HazCom and all
operators at a mine, including contractors. Therefore, we did not need
to repeat the language of the scope in the requirements for the
contents of the written program.
You must make the written program available to miners, their
designated representatives, and MSHA and Department of Health and Human
Services (HHS) personnel. In the interim final rule, the provisions on
access and copies are in a new, separate subpart on making HazCom
information available.
Generic programs. Some commenters stated that development of the
written HazCom program was beyond the capabilities of most operators
and would impose a technological and financial burden. Other commenters
suggested that we develop a generic written HazCom program for use as
an example.
You are responsible for developing a HazCom program for the
chemicals that you produce or bring to the mine. Your written program
must include all the information that you need--
To implement the HazCom program;
To provide hazard information to miners so that they will
know what is expected and can participate in supporting the protective
measures in place; and
To ensure that other operators at the mine receive the
HazCom information they need.
Although the development and implementation of a HazCom program may
pose a technological and financial burden on some small operators, we
determined that the interim final rule is feasible. We discuss the
issue of technological and economic feasibility in the Regulatory
Economic Analysis (REA) for this rule. This preamble includes a summary
of the REA as Section IV. Of this preamble. The REA is posted on our
website (www.msha.gov). You can download it or request a hard copy from
the MSHA Office of Standards, Regulations, and Variances at the address
in the front of this preamble.
To relieve the burden for small operators, we have planned an
extensive outreach effort, developed a wide variety of compliance aids,
and delayed the effective date of the rule for 1 year. As part of these
efforts, we will provide several examples of a written HazCom program
in the HazCom Toolbox for this rule. You can adapt the programs
developed to meet OSHA's HCS because the two standards are similar. You
also may obtain assistance from organizations that have developed
generic guides to meet OSHA's HCS. The availability of generic programs
reduces your technical and financial burden.
[[Page 59060]]
2. Sec. 47.22 HazCom Program Contents
Under the interim final rule, like the proposal, your HazCom
program has to describe how you meet the HazCom standard for hazard
determination, labels and other forms of warning, MSDSs, and training.
It also must include a list of the hazardous chemicals that you produce
or bring to the mine and use the same identity for the chemical on this
list, the label, and the MSDS.
Exchanging HazCom information. Where more than one operator works
at a mine, your HazCom program also has to describe--
How you inform these other operators about the chemical's
hazards and any protective measures for both normal work and
foreseeable emergencies;
How you provide other operators with access to your
written HazCom materials, especially MSDSs; and
How you identify hazards on labels and other warnings (the
system or symbols you use).
Several commenters expressed concern about how information would be
exchanged between operators. One commenter wanted the final rule to
give the primary operator at the mine the latitude to determine how to
exchange information. Another commenter wanted us to prescribe how
operators exchange information.
The interim final rule deliberately uses performance-oriented
language to give you the flexibility to establish how to exchange
information with other operators and tailor your written program. At
many mines, contractors, service personnel, and production miners are
exposed to hazards of chemicals from many sources. For example, when
independent contractors bring hazardous chemicals onto mine property,
it is their responsibility to provide the primary operator and other
operators (such as other independent contractors at the same site) with
a written plan containing information about those chemicals. Likewise,
it is the responsibility of the primary operator to inform these
independent contractors about the chemical hazards at the mine. A
systematic and orderly transfer of information ensures that all miners
are informed. Specific, detailed requirements could reduce flexibility
and become unnecessarily burdensome.
Hazard determination procedures. One commenter wanted the final
rule to require you to describe, in writing, the procedures you use to
determine the hazards of the chemicals you evaluate and to maintain
these written procedures. This commenter stated that these detailed
written procedures would be a valuable source of information for
workers, their representatives, and the government. This commenter also
stated that such a record is the means to determine if you are
following procedures to assess the hazards associated with a chemical's
inherent properties and not how you use it. Another commenter said that
we do not need to know the basis of your hazard determination.
The interim final rule requires that your HazCom program include
how you are putting the provision for hazard determination into
practice at your mine. This requirement is performance oriented; it
does not specify format or criteria. Although we agree with commenters
that detailed procedures are valuable, HazCom does not require them. We
expect your description of your hazard determination procedures to be
sufficient to allow others to understand how you made the
determination.
Hazardous chemical list. The interim final rule requires you to
compile a list of hazardous chemicals and maintain it for as long as a
hazardous chemical is at the mine. You are responsible for listing only
the hazardous chemicals that you produce or bring to your work areas.
The list, or inventory, of hazardous chemicals is a quick reference so
that you, miners, other operators working at your mine, and MSHA and
HHS personnel can see what hazardous chemicals are present. It also
must use a chemical identity that permits cross-referencing between the
list, a chemical's label, and its MSDS. For example, if a chemical is
identified by a trade name on the MSDS or the label, the list must be
indexed and the chemical identified using the same trade name.
You can compile the list for the mine as a whole or you can compile
lists for individual work areas. For example, if few chemicals are used
in one work area, such as a mine's quarry, and many are used in another
work area, such as its shop, lists for the individual work areas would
avoid confusing the miners in the quarry who would have no exposure to
most of the chemicals that would be on a comprehensive list. You are in
the best position to judge the most effective and efficient way to
maintain this list. In maintaining this list, you must keep it up-to-
date, whether for the whole mine or a specific work area.
D. Subpart D--Container Labels and Other Forms of Warning
Labeling containers of hazardous chemicals is a major provision of
HazCom. A label is an immediate source of information about a hazardous
chemical in the work area, providing the identity of the chemical and a
brief summary of the chemical's most serious hazards. The labeling
requirements in the interim final rule are substantively the same as in
the proposal and consistent with OSHA's HCS. Labels that comply with
OSHA's HCS will meet HazCom's requirements.
The proposed rule contained the labeling exemptions under the
``Scope and Application'' and again under ``Labels and Other Forms Of
Warning.'' In response to comments, we eliminated this repetition. We
also put the labeling exemptions in a table, so that they are visually
more accessible, and restated the proposal's provisions using clearer
language. We moved the table to a separate Exemptions subpart near the
end of the rule rather than placing them in the ``Scope'' section at
the front of the rule. Except for ``raw materials being mined or
processed while on mine property,'' the chemicals listed are exempt
from labeling under HazCom because they are covered by the labeling
requirements of other Federal agencies. These exempt chemicals,
therefore, are already labeled when you receive them at the mine. We
will discuss these exemptions in detail later in the section called
``Exemptions from Labeling'' (Sec. 47.82).
The proposal contained provisions addressing a miner's and
designated representative's right to examine the labeling information
and have a copy without cost. In response to comments, we consolidated
HazCom's provisions on access and cost for copies in a new, separate
subpart, Making HazCom Information Available (Sec. 47.61 through
Sec. 47.63).
The interim final rule does not include proposed Sec. 46.5(d),
which would have required you to ensure that the label for a hazardous
chemical complies with the labeling requirements in an MSHA substance-
specific standard, rather than the labeling requirements in HazCom. We
do not currently have a substance-specific standard that requires
labeling. Upon consideration of the comments, we determined that this
provision was premature. If we promulgate such a standard, we will
reconcile any differences from those in HazCom.
1. Labeling Requirement in General
Among those commenters supporting a HazCom labeling requirement,
many urged us to be consistent with OSHA's HCS. Several of these
commenters, especially those with operations in both mining and general
industry, said that it would be extremely burdensome if they
[[Page 59061]]
had to comply with two significantly different requirements. For
example, they said that it would be a great burden if you had to re-
label incoming containers of hazardous chemicals to meet unique MSHA
requirements. The interim final rule is consistent with the proposal,
as well as OSHA's HCS. Labels that comply with OSHA's HCS will meet our
labeling requirements because HazCom requires the same information on a
label as OSHA's HCS. Likewise, we expect that labels meeting MSHA's
HazCom criteria will meet OSHA's requirements for labels under its HCS.
Among those commenters generally opposed to labeling requirements
under HazCom, many stated that our existing labeling standards are
adequate and HazCom is redundant. Other commenters stated that they
already are providing labeling information and MSDSs consistent with
OSHA's standard because their customers are asking for them. By
unifying labeling requirements for hazardous chemicals in HazCom, we
intend to clarify requirements for all mines and to help you understand
your compliance responsibilities.
2. Sec. 47.31 Requirement for Container Labels
The interim final rule, consistent with the proposal, requires that
each container of a hazardous chemical be labeled, tagged, or marked
with the identity of the hazardous chemical and appropriate hazard
warnings. You should only have to deal with three categories of labels:
labels on containers of hazardous chemicals brought to the mine; labels
on mixing, storage, or transport containers on mine property; and
labels on the containers that you use to ship a hazardous chemical that
you produce.
Existing container labels. MSHA believes that hazardous chemicals
brought to the mine will arrive with labels or labeling information. We
expect that the label on the original container of a hazardous chemical
provides adequate information about its hazards. The Environmental
Protection Agency (EPA), the Consumer Product Safety Commission (CPSC),
OSHA, and other Federal agencies have rules addressing the labeling of
hazardous chemicals. For this reason products or chemicals subject to
their standards are exempt from labeling under HazCom.
Commenters' suggestions about label content and format indicated
that they perceived the proposed rule as requiring much more operator
labeling than we intended. Some seemed to think that we required
operators to evaluate and label containers of hazardous chemicals
brought to the mine. One commenter pointed out that manufacturers may
not identify new information on the label and MSDS they provide and
stressed that operators should not have to update existing labels.
The interim final rule also contains exemptions from labeling. The
interim final rule does not require you to re-label containers of
hazardous materials that are labeled in accordance with other Federal
standards or are otherwise marked or tagged with the required
information. You are not responsible for inaccurate information on a
label prepared by the chemical's manufacturer or supplier, which you
accept in good faith. We do not expect, and HazCom does not require,
you to update the hazard warnings on labels you did not prepare. We do
expect, however, that as you replace your inventory, you will do so
with containers already labeled by the manufacturer with the new
information. If the manufacturer sends you a new label with
instructions to replace the existing label, you must do so.
Labels on mine products. Commenters expressed concern that some
operators might be unable to prepare the label for their mine's
products because they lack the technical knowledge to do so. You should
already know the hazard information for the chemicals produced at your
mine because our existing standards require you to label hazardous
materials and train miners about the safety and health aspects of their
job. While underground coal mines are not required to label hazardous
materials, they do conduct miner training. In the HazCom Toolbox, we
will provide language that you can copy for labels for hazardous
chemicals commonly produced at mines, such as respirable crystalline
silica and ammonium nitrate-fuel oil (ANFO) mixed on mine property.
A commenter asked that we clarify whether the requirement to update
the label with significant new hazard information within 3 months
applied to small quantities of hazardous chemicals in transfer
containers. The availability of significant new hazard information on a
hazardous chemical is a relatively infrequent occurrence. Most new
information confirms, clarifies, or expands knowledge about the hazards
already known. If you have to label the container of a hazardous
material, it is our intent that you ensure that the label is accurate
and update the label when you become aware of significant new hazard
information.
Maintenance. Some commenters stated that labels would be difficult
to maintain in a mining environment or that they would be difficult for
miners to read and understand. Although it may be difficult to maintain
labels in some areas of the mining environment, these labeling
requirements are realistic and achievable. OSHA's HCS provisions are
successfully met at heavy and highway construction sites as well as at
tunneling operations, situations that are comparable to mining sites.
Many of the containers coming onto mine property will have permanent
labels affixed, suitable for use in the mining environment, and
effective training will help miners to understand the labeling
information.
HazCom requires you to check the label on a chemical brought to the
mine to determine if it is hazardous so you will know whether you need
to obtain and keep an MSDS, list the chemical on the list of hazardous
chemicals, and train miners about the chemical. You also must ensure
that the labels and other forms of hazard warning are legible. You do
not have to re-label these containers unless there is no label or it is
unreadable. Likewise, you must not remove or deface the labels on
hazardous chemicals brought to the mine unless you immediately mark the
container with the chemical's identity and its hazards. You must also
ensure that the container remains labeled as long as you use it to
contain a hazardous chemical.
3. Sec. 47.32 Label Contents
HazCom requires that you label containers of the hazardous
chemicals you produce. Although the hazard warnings on the labels
should be concise and easy to see, they also must convey the chemical's
identity and its physical and health hazards. The label, tag, or other
marking that you prepare must communicate enough information to users
of your product and other employers so that they can recognize the
hazards and make correct decisions about safe procedures and protective
equipment. We do not intend the label to be the only or most complete
source of information on the hazardous chemical.
We recognize that it may not be feasible to include every hazard on
the chemical's label that is listed in the MSDS. We expect, however,
that you will address all hazards in the training program. The
selection of hazards to be highlighted on the label will involve some
assessment of the weight of the evidence regarding each hazard. This
does not mean, however, that only acute hazards are to be covered on
the label or that well-substantiated hazards can be omitted from the
label because they
[[Page 59062]]
appear on the MSDS. As one commenter stated:
We urge you to consider the possible effects of a world in which
every conceivable threat is labeled, stickered, highlighted until
the senses are saturated and the desired effect of the entire
message is lost. We are rapidly creating such a world, and we
caution you against needlessly furthering this unnerving trend.
For those chemicals posing multiple hazards, we expect you to
prioritize the hazards and use that as the basis for the warnings. At a
minimum, you must specify all serious hazards on the label. For
example, if chromium (VI) in a welding fume is carcinogenic, causes
liver and kidney damage, and blood abnormalities, as well as
respiratory irritation, perforation of the nasal septum, damage to the
eyes, sensitization dermatitis, and skin ulcers, the label could say:
``Causes cancer, liver and kidney damage, blood abnormalities, and
irritation of the skin, eyes, and mucous membranes.'' The warning about
it causing sensitization dermatitis, respiratory irritation, skin
ulcers, perforation of the nasal septum, or conjunctivitis could be
covered by the less specific phrase, ``irritation of the skin, eyes,
and mucous membranes.''
You may have to reconcile inconsistent information in different
sources by evaluating the evidence used in making the hazard
classification. For example, if the chemical causes severe burns upon
contact with skin, eyes, or mucous membranes, you would not also have
to say that some evidence reported it to be a skin irritant. You also
may need to distinguish between acute and chronic hazards. For example,
some chemicals present a hazard only from prolonged exposure to high
concentrations. When you determine what hazard information to include
on a label, you should make an assessment of the information you report
on the MSDS and coordinate the two documents.
Hazard warning. The definition of ``hazard warning'' states that
the warning must convey the specific hazard of the chemical. Consistent
with the proposal, the hazard warning can be any type of message,
words, picture, or symbol that provides at least general information
regarding the hazards of the chemical in the container such as
``flammable'' or ``suspected human carcinogen''. If applicable, the
warning must include the organs affected. For example, if the chemical
causes lung damage when inhaled, then ``causes lung damage'' is the
appropriate warning. ``Lung damage'' would be the hazard and ``do not
inhale'' would be the protective measure. Phrases such as ``caution,''
``danger,'' or ``harmful if inhaled'' are precautionary statements.
Some commenters suggested that the labels would need to state the
container's contents and provide a general hazard warning, using words
like ``combustible,'' ``flammable,'' or ``poison.'' A general
statement, however, would not convey enough information to enable
miners to adequately protect themselves. Other commenters believed that
only a precautionary statement, such as ``Danger!'' would be needed.
Some suggested that we require operators to include precautionary
statements on the label, in addition to the other information. A few
commenters stated that warning labels should summarize acute and
chronic health effects and safety hazards and should provide advice and
a phone number in case of emergency. Others recommended that labels
include the target organ(s) affected by the chemical.
We intend that the label include the target organ effects, if such
information is available. There are some situations where the specific
target organ effect is not known. When this is the case, you can use a
more general warning statement. For example, if the only information
available is an LC50 test result, ``harmful if inhaled'' is
appropriate. (An LC50, or the lethal concentration by
inhalation for 50% of the animals tested, is the exposure concentration
at which half of the animal test subjects died.)
Our existing standards (Secs. 56/57.16004; Secs. 56/57.20012;
Sec. 77.208) require you to label hazardous materials appropriately. In
addition to the required information, we encourage you to include other
helpful information on the label. For example, the symbols on the label
representing precautionary measures or safe work practices, such as
``chemical goggles,'' ``respiratory protection,'' or ``use only in a
well-ventilated area,'' serve as reminders about the hazard and
increase the likelihood that miners will use these measures.
Label format. Many commenters suggested various format criteria and
coding schemes for labels, affirming the benefits of uniformity.
Consistent with the proposal, we recognize that there are a variety of
different labeling systems to warn persons of chemicals and their
hazards. Some systems rely on numeric codes and specific colors to
convey the hazards of chemicals. These systems, however, usually convey
the degree of risk that a chemical poses and not specific hazard
information. You can use these types of systems for labels used at the
mine if you communicate the specific physical and health hazards of the
chemicals through other parts of the HazCom program, such as MSDSs and
training. These systems are appropriate for labels to downstream users
if you also provide them the other labeling information and the way to
understand your labeling system.
Recognizing that a specific system is not necessary to communicate
the chemical's identity and its hazards, and that some mine operators
already have a labeling system, HazCom's labeling requirements are
performance oriented. The interim final rule is deliberately flexible
to allow for the adoption of an international system for classifying
and displaying hazard information, when it becomes available. Although
the interim final rule does not require a specific labeling system, we
encourage you to adopt a label format that is in accordance with an
established standard. In its comments on the proposal, the Chemical
Manufacturers Association (CMA) suggested that operators use the
``American National Standard for Industrial Chemicals--Precautionary
Labeling'' (ANSI Z129.1-1988) for their labeling system. Uniformity in
the format, content, and terminology of MSDSs and labels aids
understanding and simplifies their development. It also allows miners
and others to find critical information quickly. Consistent domestic
labeling requirements between MSHA and OSHA will make communication
among industries more effective and will make it easier for them to
adopt global hazard communication standards.
Other languages. The interim final rule, consistent with OSHA's HCS
and the proposal, requires that the label be in English. If a
significant number of your miners do not read English, or if their
English is poor, you should provide the labeling information in another
language in addition to English or add symbols to communicate the
chemical's hazards. For example, if your workforce speaks Spanish, you
should add a label in Spanish that gives the chemical's identity and
hazard information or provide a translation of the labeling information
to the affected miners. If your workforce speaks several different
languages, or there are other literacy issues, you should add symbols
to the label to communicate the chemical's hazards. You must ensure
that the workforce understands the meaning of the symbols.
Carcinogen labeling. As discussed under ``Identifying Hazardous
Chemicals,'' the HazCom proposal, interim final rule, and OSHA's HCS
all require that the employer consider a chemical to be hazardous if it
is listed
[[Page 59063]]
in the specified ACGIH, NTP, or IARC publications or regulated under
agency standards. You must include a carcinogenic warning on the label
if one of these sources classifies the hazardous chemical as a
potential or confirmed carcinogen.
Many commenters suggested that we allow operators to determine what
should be listed on the label based on an assessment of the weight of
the evidence. Several pointed out that both IARC and NTP acknowledge
that their classification evaluations are not complete hazard
assessments. IARC and NTP use a strength-of-evidence approach that does
not take into consideration negative studies for evaluating a
chemical's carcinogenic hazard. In regard to the use of ACGIH, one
commenter stated:
ACGIH lists chemicals identified as carcinogens from ``other
sources'' without identifying these sources. The ACGIH documentation
of TLV's and BEI's lists five sources of information on carcinogens
(IARC, MAK, NTP, NIOSH, and TLV). Since these sources often use each
other as their reference point rather than come to independent
conclusions, we believe that the ``carcinogen'' tag can be
inappropriate unless there is conclusive evidence of
carcinogenicity. While fuller explanations may be given on an MSDS,
we believe that automatic triggers should not be used to determine
warnings on labels.
Although some commenters specifically objected to using IARC, NTP,
or ACGIH as a trigger for cancer labeling, others supported carcinogen
labeling based on the judgment of these organizations, but only for
those chemicals identified as known human carcinogens. Another
commenter objected to carcinogen labeling for those chemicals listed in
IARC Group 2A. Group 2A carcinogens (probably carcinogenic) are known
to induce cancer in animals, but the evidence of human carcinogenicity
is limited. These commenters believed that requiring carcinogen
labeling for potential or probable carcinogens would result in ``over-
labeling'' and detract from the focus that should be given to more
serious hazards. In addition, one pointed out that ``over-labeling''
could have the adverse marketplace consequence of encouraging shifts to
unlabeled products, typically without an assessment of whether the
unlabeled product is, or is not, safer than the labeled product.
Several commenters supported including IARC, NTP, and ACGIH's
carcinogenicity findings on the MSDS, but not on the label. A few
commenters, however, recommended that we require labeling for all
carcinogens, including those listed as potential or probable.
In considering the comments, we find that IARC, NTP, and ACGIH base
their cancer classifications on valid scientific evidence. This
evidence warrants informing miners of the cancer hazard associated with
any chemical on these lists. Miners have a right to know about this
hazard information. If one or more of these organizations has
associated a potential, probable, or confirmed carcinogenic hazard with
a chemical at the mine, you must inform the miners who can be exposed.
A fuller discussion about the use of these organizations as sources is
in the Hazard Determination section of this preamble.
Silica labeling. IARC is one of the authoritative sources listed in
HazCom for establishing whether a chemical is a carcinogen. In 1997,
IARC classified inhaled (respirable) crystalline silica as Group 1, a
confirmed human carcinogen.
A number of commenters expressed concern that the proposal would
have required the labeling of silica as a carcinogen. Several argued
that labeling silica as a carcinogen was both impractical and
unnecessary. One of these commenters stated:
Silica is, as MSHA recognizes, a natural substance occurring in
the great majority of the earth's crust and labeling over one
billion tons annually of naturally occurring stone produced by
American quarries would clearly be impractical and unnecessary by
the standards of good science.
Some commenters stressed that the labeling requirement should apply
to respirable silica because the size of the silica particle determines
whether or not it is a health hazard. One commenter stated:
OSHA has taken the position in interpreting its HCS that it
applies only to crystalline silica available for respiration. * * *
Mr. Gerald F. Scannel, Assistant Secretary of Labor for OSHA, stated
that kaolin dust products containing less than 0.1% respirable
crystalline silica would be exempt from coverage under the provision
of paragraph (d) of the [OSHA's] HCS, ``Hazard Determination.''
In addition, this commenter cited a statement by Dr. David Rall of
the NTP that, ``Only crystalline silica in respirable form will be
added to the list of substances in the [NTP] 6th annual report.''
The interim final rule does not address the labeling of containers
of hazardous chemicals off mine property. You will have to label
containers of any product containing 0.1% or more of respirable
crystalline silica as a carcinogen to meet OSHA's HCS labeling
requirements for your customers. The HazCom interim final rule exempts
the raw material being mined or processed from labeling while on mine
property. For example, if you operate a silica flour mill, you do not
have to label containers of the raw material, such as crushers, bins,
or hoppers.
Under HazCom's hazard determination criteria, you must consider
crystalline silica to be a human carcinogen when it is in respirable
form and capable of being released in the work area or when an
activity, such as crushing, would create respirable dust. Although you
do not have to label it for purposes of HazCom, you must train miners
about silica's carcinogenicity.
Providing copies. The proposal would have required you to provide a
copy of the labeling information with the initial shipment of a
hazardous chemical to an employer. You could include this labeling
information with the chemical's shipping papers rather than attach it
to each container. If you became aware of any significant new
information concerning the hazards of the chemical, you had to
incorporate this new information, as appropriate, into a new label
within 3 months and provide it with the next shipment of the chemical
to the employer. In addition to the identity of the hazardous chemical
and appropriate hazard warnings, the proposal also would have required
you to provide the employer with your name and address or the name and
address of a responsible party who could provide additional information
about the hazardous chemical. The proposal did not specifically address
customers who were not employers.
Some commenters said that HazCom should require this labeling
information on all containers shipped from the mine. They stated that
it would be easier to label each shipment to avoid the extra
recordkeeping associated with tracking which shipments to employers
must contain labeling information. Several commenters stated that 3
months is too long and that you should inform miners immediately of
significant new hazard information. These commenters suggested 5 days,
30 days, and 45 days as adequate time for you to incorporate the new
information into a new label.
Several commenters wanted us to cover hazardous chemicals shipped
from a mine in a way that was consistent with the OSHA HCS. Some
questioned our authority to require you to provide labels on products
leaving mine property.
The interim final rule requires you to make label information
available upon request. Our experience indicates that
[[Page 59064]]
mine products are already labeled and MSDSs are sent in a manner
consistent with OSHA's HCS. We believe that market forces and the
requirements of other agencies will serve to ensure that you label your
product appropriately for downstream users. Although you are
responsible for the accuracy of the information on any label you
prepare, you are not responsible for the accuracy of labels a
manufacturer prepared for a hazardous chemical brought to your mine. We
agree with those commenters who felt that you should inform miners
immediately of any significant new information about the hazards of the
chemicals in their work area, whether or not you have to update the
label.
4. Sec. 47.33 Label Alternatives
HazCom requires that the hazardous chemical's label warn miners
about the presence, chemical identity, and specific health and physical
hazards of the chemical. Neither the proposal nor the interim final
rule includes specific criteria for the format of the label. The
interim final rule requires that the label be prominently displayed,
legible, accurate, and in English; display appropriate hazard warnings;
and use a chemical identity that permits cross-referencing between the
list of hazardous chemicals, a chemical's label, and its MSDS. In the
case of a trade secret, you must comply with the requirements of
Secs. 47.71 through 47.77 (trade secrets).
Commenters supplied a wide variety of suggestions for a label
format. Several recommended that we require a standardized label
format. Some commenters suggested that a coding or rating system might
be helpful. Some requested that we permit flexibility in our labeling
requirements and allow batch labeling, color coding, standardized
containers, or stenciling a generic name on the container. Others did
not support the use of a coding or rating system on labels because they
thought that miners would find such a system confusing. Some commenters
suggested that we require labels to have large bold print with
pictorial or color warnings. Another suggested that operators could
label containers using markers or paint.
The label requirements in the interim final rule are performance-
oriented, flexible, and consistent with the proposal and OSHA's HCS.
Labels made with markers or paint are acceptable as long as they
identify the hazardous chemical and its hazards and are maintained in
legible condition. Any name may be used to identify the chemical
contents of a container as long as it can be cross-referenced with the
MSDS and the hazardous chemical list. You may substitute various types
of standard operating procedures, process sheets, batch tickets, blend
tickets, and similar written materials for container labels on
stationary process equipment. The alternative, however, must identify
the container to which it applies, communicate the same information as
required on the label, and be readily accessible throughout each work
shift to miners in the work area. You can post signs or placards that
convey the hazard information if there are a number of stationary
containers within a work area that have similar contents and hazards.
5. Sec. 47.34 Temporary, Portable Containers
The interim final rule, consistent with the proposal and OSHA's
HCS, does not require you to label a portable container into which a
hazardous chemical is transferred from a labeled container, if the
portable container is for the immediate use of the miner who performs
the transfer. To clarify compliance responsibilities, we replaced the
word ``immediately'' with the phrase ``during the same work shift'' in
the interim final rule.
Most commenters supported the proposed portable container
exemption, but some claimed that it was too restrictive. These
commenters recommended that we not require labeling of portable
containers if they are subject to operating procedures that provide a
means of alerting miners to their contents. Other commenters
recommended that we expand this exemption to include any designee of
the miner who performs the transfer. One of these commenters stated
that adding the word designee would allow those individuals working
with the miner who transferred the hazardous chemical, also to use that
chemical. Otherwise, each miner working on the job would need his or
her own portable container, perhaps creating a bigger hazard. Another
commenter opposed expanding the portable container exemption to include
the miner's designee because of concern that the miners would not
communicate the hazard information to each other.
Other commenters opposed our proposal to exempt portable
containers, believing that it was too lenient and could create a
serious hazard. Commenters expressed concern--
That unattended, misplaced, or forgotten unlabeled
portable containers could present a high risk of exposure to hazardous
materials due to inappropriate handling or disposal by other workers;
That unlabeled portable containers could be potentially
dangerous because of the residues left in them;
That if the chemical in the portable container was not
completely used by the end of the shift, we should require that the
unused portion be returned to a labeled container;
That all containers of hazardous chemicals be labeled
under this law or other applicable laws; and
That this section should be clarified because it seems to
imply that you have no responsibility to maintain labeling information
if a product is repackaged or transferred to another container at the
mine site.
After considering the comments and observing the use of portable
containers in mining, we determined that allowing the miner who
performs the transfer to use a hazardous chemical from an unlabeled
container will not reduce that miner's protection. One common use of
temporary, portable containers is when a miner transfers a lubricant
from a 55-gallon drum into a small plastic or galvanized container in
order to safely access and properly service machinery. We recognize
that it would be impractical, or at least inconvenient in some
instances, to access many pieces of equipment without the use of these
containers.
In response to commenters concerns and contrary to the proposal and
OSHA's HCS, we expanded this exemption in the interim final rule. Under
HazCom, you can allow other miners to use a hazardous chemical from an
unlabeled, temporary, portable container provided you ensure that they
know the chemical's identity, its hazards, and the protective measures
needed; and that the container is left empty at the end of the shift.
You can leave the chemical in the portable container for the next shift
if you label the container. For example, if a container is emptied by
one miner and refilled by another miner, you do not have to label the
container before the second miner uses it. On the other hand, if you
leave the hazardous chemical in the temporary, portable container,
expecting to use it the next day, the container would have to be
labeled.
We expect that you already have labeled many of your portable
containers because our existing standards require you to label
containers of hazardous materials. Such labeling also is a safe work
procedure to keep miners from placing a chemical in a container you had
previously used for an incompatible chemical.
[[Page 59065]]
E. Subpart E--Material Safety Data Sheet (MSDS)
The MSDS is a detailed information bulletin that serves as the
principal source of important information about hazardous chemicals
used or produced at the mine. This interim final rule requires you to
have an MSDS for each hazardous chemical to which a miner can be
exposed under normal conditions of use or in a foreseeable emergency.
Although we revised the format and language of HazCom's MSDS
requirements to reduce redundancy and use plain language, the interim
final rule is substantively the same as the proposal and OSHA's HCS. An
MSDS that complies with OSHA's HCS will meet our MSDS requirements
because HazCom requires the same information on the MSDS as OSHA's HCS.
Likewise, we expect that MSDSs meeting MSHA's criteria will meet OSHA's
criteria for MSDSs under its HCS.
In the proposed rule, provisions for determining hazards of single
substances and mixtures were repeated under both ``hazard
determination'' and ``MSDS.'' To eliminate this duplication, the
interim final rule includes these provisions in the hazard
determination section only. Also, in response to comments, we
consolidated HazCom's provisions on access and cost for copies of MSDSs
in a new, separate section on ``Making HazCom Information Available''
(Secs. 47.61 through 47.63).
1. Sec. 47.41 Requirement for an MSDS
The interim final rule requires you to have an MSDS for each
hazardous chemical at the mine. If you do not have an MSDS for a
chemical brought to the mine and its label indicates that it is
hazardous, the interim final rule requires that you obtain one from the
manufacturer or supplier before using the chemical. You must prepare an
MSDS for any hazardous chemical produced at the mine.
Chemicals brought to the mine. The proposed rule would have allowed
you to request, but not require you to obtain, an MSDS prior to using a
hazardous chemical. Several commenters stated that requesting an MSDS
was not sufficient and that you should have to obtain the MSDS before
using the chemical on mine property. As indicated in the proposal,
commenters on the ANPRM urged us to adopt MSDS requirements identical
to OSHA's. Consequently, MSHA's provisions [in the proposal] on MSDS's
are substantially similar to those in OSHA's standard. In response to
comments and to make HazCom consistent with OSHA's HCS, we changed the
word ``request'' to ``obtain'' in the interim final rule. You must have
an MSDS available to miners in their work area for each hazardous
chemical to which they may be exposed.
Another commenter suggested that we allow you the flexibility to
have either an MSDS or appropriate information about the chemical's
hazards, safe work procedures, means of control, and first aid and
emergency procedures immediately available. Substituting the
information suggested by the commenter for the MSDS would not be
sufficient because the MSDS contains much more information. OSHA
requires MSDSs for hazardous chemicals produced at non-mining
operations. For this reason, we expect that most, if not all, MSDSs
prepared by chemical manufacturers or suppliers are readily available
by fax or from the internet. If you have a document available to miners
that contains all the information required in Sec. 47.42 (MSDS
contents), we would consider that to be an MSDS. HazCom does not
require a specific MSDS format, but the MSDS must contain all the
information required to the extent that it is available.
Several commenters stated that we should require MSDSs to be
accurate. You are responsible for the accuracy of MSDSs that you
prepare for a hazardous chemical produced at your mine. HazCom does not
require you to be responsible for the accuracy of an MSDS that you
receive with a shipment of a hazardous chemical and accept in good
faith. Because OSHA requires that information contained in MSDSs
accurately reflect the scientific evidence that formed the basis for
determining that the chemical is hazardous, we believe that chemical
manufacturers and suppliers develop MSDSs correctly. On the other hand,
considering that you are responsible for communicating accurate health
and safety information about the mine and the job to the miner, the
MSDS that you maintain must include any new information the
manufacturer sends you.
Commenters stated that manufacturers do not indicate what
information is new on the MSDS and it is impractical and overly
burdensome to require operators to update MSDSs they do not prepare. We
do not see this as a problem. The MSDS will show the date it was
prepared or last changed. If you receive an MSDS that has a later date
than the one you have on file, you should keep the one with the most
recent date and discard the older. If you receive an MSDS that is
obviously inaccurate or which you suspect is inaccurate, or if a
category of information is missing, you should bring this to the
attention of the party responsible for preparing the MSDS. There should
be an address and telephone number on the MSDS.
Some commenters stated that requiring MSDSs as part of HazCom would
be burdensome to operators and of no real value to miners because of
the complexity of information required to be provided on the MSDS.
Another commenter stated that to keep track of which materials may or
may not require MSDSs places an overwhelming burden on operators.
MSDSs are essential in supplying information to the miner, as well
as to the mine operator and independent contractor. Information, such
as the chemical's properties, for example, may not be found on labels.
The MSDS contains the information that we require you to communicate to
miners about the hazardous chemicals to which they may be exposed.
Although it may be an administrative burden to keep track of MSDSs,
obtaining the MSDS from the manufacturer or supplier of the hazardous
chemical relieves you of conducting independent searches for the
required information. We expect that MSDSs will be an important
resource for you in writing the HazCom program and modifying or
developing training courses.
As a result of the OSHA HCS, MSDSs have become widespread in
general industry and many operators voluntarily obtain and use them. We
suggest that you check the list of all the hazardous chemicals at your
mine against the MSDSs that you have collected to discover if there are
any MSDSs missing. If the list indicates that you use a hazardous
chemical at the mine, but do not have an MSDS for it, you must contact
the manufacturer or supplier to obtain the missing MSDS.
Chemicals produced at the mine. The interim final rule requires you
to prepare an MSDS for each hazardous chemical produced at the mine and
update this MSDS with significant new information within 3 months of
becoming aware of it. This provision is the same as the proposal and
OSHA's HCS. A few commenters requested that the final rule remove the
reference to ``significant'' and ``new'' information and add the phrase
``scientifically valid'' to prevent the incorporation of questionable
information into the MSDS. We intend that the MSDSs you prepare
accurately reflect the available scientific evidence that formed the
basis for your determination that the chemical is hazardous (Sec. 47.11
contains criteria for determining a chemical's hazards). If the
chemical presents more than one
[[Page 59066]]
hazard, you have to address each of them on the MSDS.
One commenter indicated that his operation updates the MSDS every 3
months. This time period is consistent with provisions in the interim
final rule, the proposal, and OSHA's HCS for including significant new
information on the MSDS and label and in the miner's training. In
addition, some States have HazCom programs that are identical to OSHA's
and require the use and distribution of MSDSs. Many mine operators are
supplying MSDSs with their product as a good business practice, in
response to requests from their customers, or to comply with State or
local laws. We encourage you to check regularly for new information on
the hazardous chemicals you produce.
MSDSs for common minerals. In the proposal, we requested comments
on the usefulness of requiring operators to develop or provide MSDSs
for common minerals such as sand and gravel, crushed stone, or coal.
These minerals are the hazardous chemicals produced by over 90% of the
mines. We also requested comments on whether we should develop MSDSs
for common minerals and provide them upon request to all interested
parties. A few commenters agreed that we should develop MSDSs for
common minerals. Two commenters said that we should not develop them.
One of these stated that generic MSDSs would not be useful and that we
should not require MSDSs for these common minerals.
If you determine that a common mineral is hazardous using the
criteria in Sec. 47.11, hazard determination, you must comply with the
provisions of HazCom to the extent applicable.
2. Sec. 47.42 MSDS Contents
In the interim final rule, as in the proposal, we require that
MSDSs be in English, but do not otherwise include a requirement for the
format. Although the proposal did not specifically require that the
MSDS be legible and accurate, we added these terms in the interim final
rule to clarify your compliance responsibilities.
Some commenters suggested that we require MSDSs to be made
available in alternative languages. Although the MSDS must be in
English, you also may provide it in other languages. Just as you have
to communicate job duties and work procedures to those miners who may
not read or understand English, you must communicate the required
information about a hazardous chemical to them. MSDSs for hazardous
chemicals brought to the mine are probably available in Spanish or
other languages from the manufacturer or supplier or other sources,
such as trade associations and websites. If available, you must provide
the MSDS in a language the miner can understand. If you employ miners
who do not read English but read another language, having an MSDS in
the language the miner can read makes it easier for you to communicate
the chemical's hazards. At those mines where multiple languages are
spoken, we suggest you use symbols to help communicate the nature of
the hazard and protective measures, and reinforce the miner's
understanding of this information.
Similarly, some commenters claimed that miners would be unable to
understand the MSDS because the language is too technical. As stated
earlier, you must balance technical accuracy against miner
understanding. For example, you can use simple, clear language when
preparing the MSDS: you could use ``lungs'' as a route of entry rather
than ``inhalation'' or ``causes nerve damage'' rather than
``neurotoxin.''
Information required in MSDS. HazCom requires that each MSDS
include the following information about the chemical:
1. Identity. The chemical and common names of the hazardous
chemical if it is a single substance and of the hazardous ingredients
if it is a mixture. The identity used must permit cross-referencing
between the list of hazardous chemicals at the mine (Sec. 47.22), a
chemical's label (Sec. 47.32), and its MSDS.
2. Properties. The chemical's physical and chemical properties as
appropriate, such as boiling point, melting point, vapor pressure,
evaporation rate, solubility in water, appearance and odor, flash
point, and flammability limits.
3. Physical hazards. The hazardous chemical's potential for fire,
explosion, and reactivity.
4. Health hazards. The hazardous chemical's potential to cause an
illness or injury, such as its acute and chronic health effects, signs
and symptoms of exposure, any medical conditions that are generally
recognized as being aggravated by exposure to the chemical, the primary
routes of entry (for example, the lungs, the stomach, the skin or
eyes).
5. Carcinogenicity. The hazardous chemical's carcinogenic
classification, if any, such as whether the chemical is listed as a
potential, probable, or human carcinogen in the sources specified in
Sec. 47.11 (identifying hazardous chemicals).
6. Exposure limits. The MSHA limit and any other exposure limit
used or recommended by the preparer of the MSDS, where available, such
as its ACGIH TLV, OSHA PEL, or NIOSH recommended exposure limit.
7. Safe use. Any generally applicable precautions for safe handling
and use that are known to you or the responsible party preparing the
MSDS, such as appropriate hygienic practices, protective measures
during repair and maintenance of contaminated equipment, procedures for
clean-up of spills and leaks, and special disposal requirements.
8. Control measures. Generally applicable control measures, such as
ventilation, process controls, restricted access, protective clothing,
respirators, and goggles.
9. Emergency information. Emergency procedures, such as special
instructions for firefighters; first-aid procedures; and your name,
address, and telephone number, or that of a responsible party who can
provide additional information about the hazardous chemical and
appropriate emergency procedures.
10. Date prepared. The date of preparation of the MSDS or the last
change to it.
This information is substantively the same as the proposal and
OSHA's HCS. One difference is that HazCom requires you to list the MSHA
exposure limit for the chemical, if there is one.
Numerous commenters asked that additional information be required
on the MSDS, such as Department of Transportation (DOT) requirements,
IARC and NTP conclusions, CAS numbers, NIOSH Recommended Exposure
Limits, Hazardous Material Information System (HMIS) hazard code
information, upper and lower explosive levels, and how products are
covered by other agencies' programs, such as EPA requirements under the
Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA), Resource Conservation and Recovery Act of 1976 (RCRA), and
Superfund Amendments and Reauthorization Act of 1986 (SARA).
We did not include additional requirements for the content of the
MSDS in the interim final rule. The interim final rule requires MSDS
contents that are consistent with the proposal and OSHA's HCS. The
requirements are well-known, and adding to the contents could obscure
crucial information needed for miner protection. To aid understanding,
we included additional important examples (solubility in water,
appearance and odor, flammability limits, and explosive limits). We
encourage you to include additional helpful information, such as the
DOT labeling requirements, the HMIS hazard codes, special instructions
[[Page 59067]]
for firefighters, or special disposal requirements.
Standardized format. Neither the interim final rule nor the
proposal prescribe a specific format for the MSDS. Both HazCom and
OSHA's HCS allow the preparer to determine the format, provided that it
addresses all the required categories.
Numerous commenters requested that we require a standardized format
for MSDSs. Several of these commenters stated that they wanted us to
adopt OSHA's MSDS form (OSHA-174), and others recommended ANSI Z400-1
``Guide for Preparing Material Safety Data Sheets.'' Another commenter
recommended that we require operators who prepare MSDSs to present the
same information in the same manner for the same hazardous chemical.
One commenter was concerned that you would have to prepare duplicate
MSDSs: one for OSHA and one for us.
There are numerous sources for MSDSs in addition to the
manufacturer or supplier: university databases, chemical information
services, trade association or union collections. We established
minimum requirements for information that must be on the MSDS. Each
MSDS must contain the same minimum categories of information.
If you cannot find the appropriate information to complete a
specified category or if the category is not applicable to the chemical
involved, you must indicate on the MSDS that no applicable information
was found. For example, if the chemical does not have an exposure limit
or is not classified as a carcinogen, mark these spaces ``not
applicable.'' The MSDS must not contain blanks, even if you choose to
use a form with categories beyond those required, because blanks may be
interpreted. This requirement is the same as in the proposal and OSHA's
HCS. HazCom allows you the flexibility to develop an MSDS in any format
you wish, as long as it contains all required information. We encourage
you to use a standardized format and suggest OSHA's non-mandatory MSDS
form (OSHA-174) as a guide.
Alternatives. In HazCom, as in the proposal, we allow you to use a
single MSDS for a class or family of mixtures with similar hazards and
contents, such as one in which the ingredients are the same, but their
percentages vary from mixture to mixture, for example, organic solvents
or lubricants. The few commenters on this provision agreed with the
proposal.
Also, as in the proposal, HazCom allows you to use a single MSDS to
address the hazards of a process rather than individual hazardous
chemicals when it is more appropriate. For example, the chemical
composition of a flotation reagent changes as it evolves through the
processing of a mineral. A few commenters objected to this option, but
we decided to allow it for several reasons:
We saw this option as relating to format, not scope.
It is an option, not a requirement, intended to maximize
flexibility and to acknowledge the practical limitations of dealing
with chemicals.
For the purposes of HazCom, ``hazards of a process'' refer
to the physical and health hazards of chemicals in the process. If you
choose to prepare an MSDS for a process, you have to include all the
chemical hazards created during the process and any likely to be
created if there is a malfunction or accident, even if the hazardous
chemical is a short-lived intermediate.
3. Sec. 47.43 MSDS for Hazardous Waste
A number of mine operators have EPA permits to burn hazardous waste
in their kilns or to dispose of hazardous waste in tailings. If you
have hazardous waste at your mine, the interim final rule requires you
to provide exposed miners and designated representatives with ready
access to any materials you have that can help them know about the
hazardous waste. Suppliers typically send a manifest and MSDS with
hazardous waste. If no MSDS is available, however, you must give the
miner access to any information about hazardous waste which--
Indicates its identity or that of its components;
Describes its physical and health hazards; or
Specifies the appropriate protective measures.
Our proposal would have exempted EPA-regulated hazardous waste from
HazCom's labeling and MSDS requirements. It still would have required
you to determine the nature of the waste's hazards and instruct miners
about them. Proposed Sec. 46.3 (hazard determination) stated:
(b) Operators who receive chemicals shall determine their
hazards based on the chemicals' material safety data sheets and
container labels, except that the procedures in paragraph (a) of
this section shall be followed for hazardous waste received by
operators when a material safety data sheet cannot be obtained.
Paragraph (a) contained the criteria for determining the hazards of
chemicals produced at the mine.
OSHA's HCS includes an exemption for hazardous waste regulated by
EPA under the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 (RCRA), as amended (42 U.S.C.
6901 et seq.). Although OSHA's HCS excludes coverage of hazardous waste
regulated by EPA, OSHA has other specific standards directed to
hazardous waste operations (29 CFR 1910.120). OSHA was required to
issue these standards by Sec. 162, Title 1 of the Superfund Amendments
and Reauthorization Act of 1986 (SARA), as amended (29 U.S.C. 655
note). We do not have similar statutory requirements or standards
regarding hazardous waste operations.
EPA standards require training of personnel at a hazardous waste
facility, but this training appears to be directed primarily at
limiting environmental impact. EPA standards also require an analysis
of the hazardous waste as part of the process for obtaining a permit to
burn or dispose of it. EPA does not require that this analysis specify
the chemicals' hazards to workers or that the employer make this
analysis available to employees.
Some commenters expressed concern that exempting EPA-regulated
hazardous waste from HazCom would omit a segment of the mining
population that is exposed to hazardous waste on a routine basis. These
commenters believed that MSDSs should be available to miners exposed to
hazardous waste, including miners working at facilities where hazardous
waste is processed or used as a fuel.
As with other hazards exempt from HazCom, such as radiation, you
have the responsibility to provide adequate hazard information and
training to miners potentially exposed to EPA regulated hazardous waste
in their work area. Our existing training standards require health and
safety training and hazard training. To clarify that you must inform
miners about the hazards associated with hazardous waste, even when the
waste is exempt from labeling and MSDSs, we included a requirement to
that effect in the interim final rule.
Operations disposing of hazardous wastes receive a manifest with
each shipment. This manifest contains much of the information found on
an MSDS, often in greater detail. Similarly, if you collect waste
chemicals from your mining operation, you should know what these wastes
contain and the hazards of the ingredients. The interim final rule
requires that, if you are unable to obtain or prepare an MSDS for
hazardous waste, you must ensure that you provide each potentially
exposed miner with any information you have that--
1. Indicates the identity of the waste or its components,
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2. Describes its physical or health hazards, or
3. Specifies the appropriate protective measures.
4. Sec. 47.44 Ready Access to an MSDS
The interim final rule requires that you provide miners with access
to MSDSs while they are in their work area. You can keep MSDSs at a
central location if you ensure that they are readily accessible to
miners in an emergency. The proposal had allowed you to keep MSDSs at a
central location when it was not practical to maintain the MSDSs in the
work area, if the miners had access to them at some time during their
work shift, and if you ensured that miners could obtain the required
information in an emergency.
Numerous commenters requested that the MSDSs be kept in a central
location when mining conditions were not favorable for keeping these
documents in the work area. A few commenters said that we should not
specify how MSDSs are to be made available to miners, only that they
should be available. Several commenters asked that access to MSDSs be
available through electronic means, such as computers.
The purpose of requiring MSDSs in the work area where the chemical
is stored, handled, or used is so that miners have quick access to
critical information in emergency situations. The interim final rule
provides flexibility for you to determine the best way to meet this
requirement. We recognize that independent contractors especially need
this flexibility because they work at different types of mines,
typically multiple employer sites. Independent contractors, therefore,
must coordinate the accessibility of MSDSs to other operators and
miners, as well as their own.
The interim final rule allows you to maintain paper copies of the
MSDSs, keep copies on a computer or on microfiche, use fax or other
data transmission means, or any other method for providing access. You
may keep MSDSs wherever you think appropriate and accessible as long as
any miners who can be exposed can readily obtain a copy in an
emergency. If you keep MSDSs in the mine office, you must tell the
miners where they are and how to access them. Access means that the
office must remain open while miners are working or you must make
provisions for them to immediately unlock the office if needed. If the
MSDS information is kept on a computer, it may be necessary to train
the miner to access the information from the computer or make provision
for backup electrical power in the event of an emergency.
5. Sec. 47.45 Retaining an MSDS
The interim final rule requires that you keep the MSDS for as long
as the chemical is at the mine. The proposal would have required that
you notify miners at least 3 months prior to disposing of the MSDS. The
proposal did not specify how you were to notify the miner about the
intent to dispose of these MSDSs. You would have had the flexibility to
use any method that notified each miner who may have been exposed.
Several commenters suggested that the proposed 3-month retention
period was not sufficient because the chronic effect of a hazardous
chemical may take years to manifest itself. Some commenters recommended
that we be consistent with OSHA and require a 30-year retention period.
One commenter suggested a retention period of 20 years. A few
commenters agreed with the proposed 3-month retention period and others
felt that there should be no retention requirement at all. One
commenter suggested that these notices be posted.
The intent of the proposal's requirement to notify miners prior to
disposing of an MSDS was to ensure a miner had the opportunity to
request a copy. The miner could then retain this information for future
reference and you would not have had to maintain the MSDS for an
extended period of time.
We considered a 30-year retention period to be consistent with OSHA
requirements. The OSHA retention period for MSDSs derives from that
agency's generic rule on recordkeeping, (29 CFR 1904), which was not
developed specifically for hazard communication purposes. As an
alternative to retaining the MSDS for 30 years, OSHA's recordkeeping
rule allowed employers to keep a record of the identity of the
chemical, where it was used, and when it was used.
Because of the nature of the mining industry, mines open and close
frequently and there is a large turnover in miners each year. The
records from closed mines would be impractical, if not impossible, to
retain if the mine operator does not continue in business and there is
no succeeding operator. Also, it would be impractical, if not
impossible, to find the miners who may have been exposed to the
chemical if the miner were no longer employed at the mine.
A requirement to retain MSDSs for a lengthy period of time could
result in the accumulation of a great number of MSDSs. Manufacturers
may change the formulation of some chemicals as processes or new
technologies improve, requiring a revision to their MSDS. We expect
operators to keep the current MSDS for the chemicals they use.
Maintaining many MSDSs for a single brand name that has changed
composition a number of times could lead to confusion and potentially
cause greater harm than not having the old MSDSs available in case a
miner develops a disease 10, 20, or 30 years after exposure. Some mines
use a large number and variety of chemicals briefly, depending on which
product is cheapest or which the distributor is carrying at a specific
time.
For the above reasons, we believe the 30-year retention period
would be excessively burdensome for the mining industry. We also
believe, however, that it would not be a great burden for you to notify
miners 3 months before disposing of an MSDS.
The interim final rule requires that you maintain the MSDS at the
work area or a central location as long as the hazardous chemical is at
the mine, and notify miners at least 3 months before you dispose of an
MSDS. We require you to provide copies of MSDSs to miners because they
have a right to specific information about their chemical exposures. We
determined that this access provision is adequate to ensure that a
miner could obtain a copy of the MSDS if the miner wanted one.
We believe miners request copies of MSDSs because they are
concerned about a chemical's effect on their health. If a miner has a
health concern, he or she usually requests a copy immediately rather
than later. The effects of some chemicals, however, have a long latency
period between the exposure and the onset of a disease. Miners can get
a copy at any time the chemical is at the mine, but may not think to
get a copy until you notify them that you intend to dispose of it. You
may use any effective method to notify the miners, such as a verbal
announcement in a safety meeting, a personal written notice, an all-
employee newsletter, or a notice posted on the mine bulletin board.
F. Subpart F-HazCom Training
Training is the foundation of the HazCom standard, the principal
means of conveying HazCom information to the miners. A premise of this
interim final rule is that miners will make safer and more healthful
decisions about their work when they know more about the chemicals in
their work area. When you provide effective training, miners will know
how to read and understand labels and MSDSs, how to get chemical
information, and how to use it. They
[[Page 59069]]
will understand the risks of exposure to chemicals in their work areas,
as well as the means of prevention and protection. You must develop and
administer a training program that ensures that miners receive and
understand this vital information about chemical hazards.
1. General Comments and Responses
The principal training standards that apply at your mine are found
in parts 46 or 48, depending on the commodity you produce and the type
of mine that you have. We proposed HazCom in 1990 as part 46.
Subsequently, we promulgated training standards for some segments of
surface mining as part 46. The fundamental goals and the statutory
basis for our training standards in parts 46 and 48 are the same.
Although commenters could not have anticipated this new part 46, we
considered their comments on part 48 as applicable to part 46.
The burden of HazCom training. Under parts 46 or 48, you must
provide miners initial training, annual refresher training and,
whenever a new task is assigned, task and hazard training. The existing
training standards provide an outline of subjects to be addressed for a
successful safety and health training program: occupational health,
hazard recognition, the safety and health aspects of the task, and
safety and health standards, among others.
Several commenters felt that the proposal would be a heavy burden
given the existence of these other training requirements. Some
anticipated difficult administrative problems both in conducting and
documenting the training. Some suggested that we not promulgate
training requirements under HazCom, asking us to amend part 48 (and 46)
to specify HazCom contents instead. Some suggested that language be
included that ``operators are permitted to satisfy the training
provisions of [HazCom] by incorporating those requirements into
provisions of Part 48--Training and Retraining of Miners.'' One
commenter explained that by permitting--
* * * operators to choose incorporation of the training aspects
of [HazCom] into Part 48, each operator can retain the flexibility
to evaluate the practicality and appropriateness of using the Part
48 training scheme as the training administrative vehicle. Some
elements which may be important to this evaluation are: the volume
and variety of hazardous chemicals requiring hazard communication;
the extent to which training required by [HazCom] is currently
accomplished through Part 48; and the need to establish a separate
training scheme with accompanying recordkeeping systems.
We intend HazCom to emphasize chemical hazards and to dovetail with
parts 46 and 48. You are in the best position to know the training
needs of your miners and we have tried to grant you as much discretion
as possible under HazCom to tailor your training program to fit these
requirements. We expect this flexibility to improve training and, as a
result, the ability of your miners to protect themselves. Although we
expect most operators to integrate HazCom training into parts 46 or 48,
you have the flexibility to conduct HazCom training independent of
those requirements. We urge you to combine HazCom training requirements
with existing requirements to unify your program, equipping better
focused and informed miners to work safely with chemical hazards.
We disagree with the recommendation that all HazCom training
requirements should be incorporated under parts 46 and 48 and that the
training should not be addressed independently. The number of
chemically-related injuries and illnesses indicates to us that,
industry-wide, training on chemical hazards may be inadequate. HazCom
provides a new emphasis in miner training--hazardous chemicals--that
can be incorporated into your existing program, but can stand alone as
well. Training is one of several interdependent aspects of a HazCom
program. If we were to promulgate HazCom without training provisions,
it would lose an integral part of the program and reduce its overall
effectiveness. In response to comments, however, we added language
specifically to clarify that you could credit relevant training
conducted to comply with parts 46 and 48 and OSHA's HCS to meet HazCom
requirements.
Your training and your approved training plan may have to be
modified to add this new focus. The new HazCom training requirements
are not automatically interchangeable with parts 46 and 48. In most
instances, however, you should not have to revise your training plan to
conduct HazCom training. We developed the training aspects of HazCom to
be fully compatible with existing standards. If you train miners to
recognize a chemical hazard, this is Hazard Recognition training. If
you train miners about the HazCom standard, this is Mandatory Health
and Safety Standards training. You must consider the hazardous
chemicals at your mine, the conditions under which they are used, and
what your approved plan says. We expect, however, that this interim
final rule will have minimal impact on the mining industry with regard
to increased training and administrative burdens.
Instructor qualifications. Some commenters recommended that we
require you to conduct HazCom training using only qualified or
certified trainers. One of these commenters stated that we should
require OSHA qualification for HazCom instructors in mining and that we
should require you to have hazard coordinators who maintain their
qualifications by attending formal education or training courses. A
commenter expressed concern that unqualified mine supervisors may be
conducting HazCom training. Another commenter objected to the burden
created by having to hire trainers and personnel to perform chemical
identifications.
Under existing standards, we require every mine to have an MSHA-
approved instructor for part 48 and a competent person designated by
the operator for part 46. These trainers teach diverse and complex
mine-specific courses. Although HazCom does not specifically require
you to use qualified instructors, we expect that you will use the
trainers on your staff to train miners about chemical hazards. MSDSs
and labels are supposed to come with every container of a hazardous
chemical brought to your mine. They will provide information for hazard
identification and you should not have to hire or train additional
persons. If you produce chemicals at your mine, we expect you to know
which are hazardous and to train your miners on them. We recognize that
training in chemical hazards will present challenges and you may have
to obtain special HazCom training for your trainer.
Simplified HazCom training. In the proposal, we specifically asked
for comments on additional ways to simplify HazCom training, especially
for small operators and independent contractors, while retaining or
improving the effectiveness of it. Several commenters recommended that
we develop training materials, including sample MSDSs, plans, videos,
and modules on chemicals. Some of these commenters suggested that we
produce generic written HazCom and training programs for you to adapt
to your needs. Another commenter suggested that we expand and use the
State Grants Program to assist you in developing HazCom programs.
In response to these comments, we intend to develop a number of
aids for the mining industry to use in implementing a successful HazCom
program. Many of these aids are available now and the remainder will be
available soon. You can contact the National Mine Health and Safety
Academy at 304-256-3257 or visit our
[[Page 59070]]
website at www.msha.gov to find out what is available. Also, OSHA has
developed training materials for its industries. Some are available
from OSHA's website at www.osha.gov and can be adapted for use at
mining operations.
Hazardous waste. The interim final rule does not exempt hazardous
waste from training. Miners handling this type of hazardous material
need all the information available to protect themselves from chemical
hazards and from inadvertent exposure.
There are a number of sites under MSHA jurisdiction, particularly
cement operations, which EPA licenses to burn hazardous waste. These
operations typically use the waste as a supplemental fuel for their
kilns. We specifically requested comments on the appropriateness of
requiring HazCom training for miners who are exposed to EPA-regulated
hazardous wastes.
One commenter supported our proposed hazardous waste training
requirements. Another stated that we should use RCRA information for
training purposes and copy OSHA's HCS. One commenter recommended that
we not require HazCom training unless a miner is exposed to the
hazardous waste. Another commenter stated that HazCom training in
addition to EPA training may be redundant.
Uniformity in training. Some commenters recommended that we
administer training for you because it would result in a higher level
of consistency and quality in the training. Other commenters
recommended the adoption of uniform training to help you and to provide
consistency.
Over the past 15 years, various organizations have developed
informational materials, training aids, and model training programs to
assist industry in complying with OSHA's HCS. Due to the similarity
between the OSHA HCS and HazCom, you should be able to use much of this
material to assist you in developing and conducting miner training.
Also, our State Grants Program may be a source of miner training and
informational materials. Although we do not intend to conduct this
training for you, we will provide information and assistance to
trainers through our Mine Health and Safety Academy, Educational Field
Services, the MSHA district offices, and State grantees.
2. Sec. 47.51 Requirement for HazCom Training
The interim final rule requires you to instruct each miner about
the hazardous chemicals in his or her work area; we proposed that you
provide exposed employees with training on hazardous chemicals in their
work area. As with numerous other parts of the interim final rule, we
believe that the scope and purpose clarifies how and to whom the
provisions of HazCom apply and that the resulting change in language is
not a change in meaning. Except for clear expression, we intend no
difference between a requirement to ``instruct,'' for example, and a
requirement to ``provide training.'' You must train a miner about the
hazards of those chemicals to which he or she can be exposed.
Before first assignment to an area. The interim final rule requires
you to provide HazCom training to miners before you assign them to work
in an area that has a hazardous chemical. A number of commenters
interpreted the proposal to mean that a miner had to complete HazCom
training before an initial assignment to an area. Commenters expressed
the view that the best way to impart knowledge and understanding is on-
site while the miner is learning and doing the work.
The compatibility of HazCom with our principal training
requirements includes the three forms of instruction to address
different training needs: initial, refresher, and task. You must
conduct initial training before a person is assigned to work; you must
conduct refresher training within a year after the initial training.
You must conduct task training both on-site before work is started and
continue after a miner begins the assignment. We agree with commenters
that valuable training can occur at the site at the time of assignment
or after assignment. The requirement that you train miners before their
first assignment to an area refers to general training appropriate to
HazCom and may in fact supplement fuller on-site training. What
comprises on-site training and how you allocate the time for each
subject depends on the chemical hazards, the workforce, the processes
at your mine, and the problems you foresee. It will vary depending on
the mine.
We want to stress again, however, that HazCom is meant to work
through the anticipation of risk. To reduce chemically-related injuries
and illnesses, a miner must know about the hazards of the job and how
to safely perform it before being left to work alone. The safety and
health purpose of HazCom cannot be met if you delay the proper training
until after an exposure has occurred.
New chemical hazards. The interim final rule requires you to train
miners whenever you introduce a new chemically-related hazard into
their work area. Introducing a new hazard, however, is not the same as
introducing a new hazardous chemical. For example, you have trained
your mechanics in the hazards of a solvent they use at the mine. If you
replace the solvent with a new solvent that presents the same hazards
as the old and is going to be used in the same way and at the same
locations, you are not required to conduct new training. You must,
however, put the new solvent on your list of hazardous chemicals and
keep a copy of the MSDS available. HazCom specifically states that you
do not have to repeat training previously provided. If the new solvent
poses a new hazard, you must train your mechanics about the new hazard.
If you use the new solvent in a different way from the way you used
your old solvent, you must train miners about any hazards that
different use implies. If you will use the new solvent in a different
location or process within their work area, you must inform them about
this change and any hazards this new use implies.
HazCom training and exposure. Some commenters suggested that miners
should have the information and training only for exposures that are
planned or that would result from a foreseeable emergency or a mine
disaster. Others recommended that HazCom training focus on chemicals
known to be hazardous when miners are handling them, and where
exposures are likely. Some commenters suggested that we base training
on hazard recognition and avoidance at the work site where there is a
potential for injury. Another commenter recommended that we base
training on a risk assessment method applied to the hazards at the
mine.
The interim final rule requires training for miners who work where
there is a potential for exposure to a hazardous chemical. We are
promulgating HazCom to anticipate the possibility of harm or loss from
chemical exposures, not to regulate the risk of chemical use. Like any
training or information standard, it is through this anticipation of
risk that we mean for HazCom to address hazardous chemical exposure and
prevent injuries and illnesses. We discuss the issue of potential
exposure more fully under ``Sec. 47.2 operators and chemicals covered''
in this preamble.
Significant new information. Some commenters stated that the
proposal was not clear in requiring operators to train miners about
significant new information. In response to comments, we added language
to the interim final rule to clarify that you must train your miners
about significant new information about a chemical's hazards whenever
you become aware of the new
[[Page 59071]]
information. You can give examples of this information at formal
classroom training, informal safety meetings, or by a supervisor on the
job. It can be written or verbal. We had intended in the proposal that
you would update this information. The interim final rule, however,
gave us an opportunity to make our intention clearer to you.
Significant new information about a chemical is rare. The physical
properties of chemicals have been known for a long time and they almost
never change. Most acute health effects are also known. Latent effects
are more difficult to attribute to a chemical because of the time,
environment, and other factors that obscure the relationship between
the exposure and the disease. When new effects are found, they are
generally significant. A recent example is IARC's reclassification of
respirable crystalline silica as a probable human carcinogen. When
these latent or other effects become scientifically accepted, you have
a duty to tell your miners about them.
Credit for other training. To allow for the effective use of
resources, as discussed above, the interim final rule includes language
to clarify that you can credit relevant training conducted for
compliance with OSHA's HCS or other parts of this chapter to meet
HazCom's training requirements.
3. Sec. 47.52 HazCom Training Contents
The interim final rule's requirements for the contents of HazCom
training is the same as the proposal, but was restated in clearer
language. One commenter suggested that groupings of substances by types
of health effects would aid you in developing a training program.
Another commenter requested that you be allowed to train miners on
chemical groups or on individual chemicals. This commenter stated that
product substitution does not necessarily mean that a new hazard has
been introduced.
We intend HazCom to allow you to determine the best way to instruct
your miners on how to identify and protect themselves from hazards
associated with chemicals in their work area. If miners are exposed to
a small number of hazardous chemicals, you could conduct their training
specifically on each chemical. If miners are exposed to a large number
of hazardous chemicals, you could conduct the training by categories of
hazards and by referring miners to the substance-specific information
on the labels and MSDSs and the locations or operations within their
work areas where such chemicals are used. HazCom does not restrict
training to the hazards of a specific chemical or the hazards of a
group of chemicals.
Several commenters supported the requirement that you train miners
on the location and availability of the written HazCom program, written
labeling information, and MSDSs. A commenter recommended that you
periodically review the written program with all miners. Another stated
that you should conduct HazCom training annually. The interim final
rule requires HazCom training to address the HazCom standard, how you
apply it at the mine, and how you make HazCom materials available.
Several commenters supported the required use of MSDSs in miner
training and several objected to requiring the use of MSDSs in
connection with miner training. A commenter recommended that we require
hands-on practice with MSDSs. The interim final rule does not require
you to include the actual MSDS when conducting the training. MSDSs are
designed to be an excellent, concise source of information about a
chemical and its hazards. We believe that MSDSs will often provide the
most specific and reliable information about a hazardous chemical and
you will find them a particular help when developing your training
program. The interim final rule requires HazCom training to contain an
explanation of the MSDS and its location and availability, but does not
require hands-on practice. The interim final rule gives you the
flexibility to provide additional training, including hands-on
practice.
Some commenters suggested that miner training include the right to
access MSDSs and that miners be advised of the retention time for
MSDSs. As in the proposal, the final HazCom standard requires you to
train miners about the requirements of HazCom, including the provisions
addressing the miner's right to access the written HazCom program,
written labeling information, and MSDSs.
Another commenter stated that you should keep MSDSs with training
records to help prove that the chemical was present at the time of
training. The interim final rule does not include this requirement
because MSDSs may be kept in the work area where the hazardous chemical
is present. Also, requiring you to maintain duplicate MSDSs with the
training record could prove burdensome.
4. Sec. 47.53 HazCom Training Records
MSHA and many commenters have a common concern about paperwork
requirements and the recordkeeping burden this places on them. Congress
requires us to reduce the amount of paperwork you must keep or submit
to us. That requirement is balanced against our need to function
effectively in meeting the goals of the Agency. Aside from that,
however, we wanted all MSHA training requirements, including records,
to be as consistent and interchangeable as possible to keep the rule
simple, reduce the burden, and eliminate any potential confusion for
you. In view of those factors, we made a substantive change to the
requirements for making and retaining training records. The proposal
would have required the person responsible for conducting the training
to certify the date and type of training given to each miner. You then
had to keep this record for as long as the miner was exposed to a
hazardous chemical.
The interim final rule is more performance-based in its
recordkeeping requirements than the proposal in that it does not
specify any format or require specific data for these records. We also
reduced the record retention time significantly. Under the interim
final rule, you must keep a copy of the HazCom training record for 2
years which makes this requirement the same as those in 30 CFR parts 46
and 48. We believe this considerable relief from your paperwork burden
is justified because we verify records during mine inspections, twice
or four times per year. Besides fitting in with the retention period
for parts 46 and 48, we determined that 2 years was a reasonable amount
of time for miners to access their training records.
MSHA Form 5000-23. For part 48 training, you must use our training
certificate, MSHA Form 5000-23, or an approved equivalent, as a record
of your training. Part 46 also requires documentation of training, but
does not prescribe a specific form. If you incorporate HazCom training
into parts 46 or 48 training, you can use Form 5000-23 or an approved
equivalent to document the training. For purposes of HazCom, however,
you may use any documentation that will convey adequate information for
an inspector, miner, or miner's representative about who was trained,
when, and what was covered. A copy of Form 5000-23 is available from
our website.
Availability of records. The proposal also would have required you
to make the certified training record available to miners, designated
representatives, and MSHA. A commenter stated that the maintenance of
certified training records should conform to the OSHA rule. We
recognize that training and certification of training may be of
particular concern to independent
[[Page 59072]]
contractors working at locations regulated by MSHA, as well as other
locations regulated by OSHA. To alleviate their concern, if a miner is
exposed to the same chemical hazards at both an OSHA and MSHA site, we
will credit relevant training given the employee at the OSHA site as
meeting our requirements. The employee's training record, however, must
be clear that the subject of the training was relevant to both HazCom's
requirements and the circumstances on mine property. We modified the
proposal's provision for maintaining the certified record to indicate
that a record, not a certification, must be available, and we moved
this provision to subpart G, Making HazCom Information Available.
We intend that HazCom training cast light on chemical hazards. You
should anticipate, therefore, that this training focus may cause miners
to voice new concerns. You should prepare to respond to these questions
with the best information you can gather: MSDSs, health sampling
results for your mine, and data from whatever reliable sources are
available to you.
G. Subpart G--Making HazCom Information Available
The proposal defined ``access'' as the right to examine and copy
records. The interim final rule uses this same language. In providing
access, the proposal required you to make written HazCom information
available, but the requirements were repeated under each major
provision. In response to comments, we consolidated these requirements
in a single place in the interim final rule. We included language in
the labeling and MSDS sections to emphasize the need to have this
critical information readily available.
Hazard determination and awareness, labels and MSDSs, and training
provide miners with essential information about hazardous chemicals.
Each of these components of the HazCom program complements the others.
They, along with the requirements for a written program and access to
the HazCom materials, are necessary for the effective communication of
chemical hazard information to miners and operators.
Chemical information can be complex and lead to confusion. When you
give miners access to your written HazCom materials, you will have
taken an important step toward eliminating the mystery, clarifying any
misinformation and erroneous concepts, and defusing worker concerns
about these chemicals. If miners are not given access to the
information, they can grow suspicious about what you tell them and may
disregard the information entirely, thus reducing the effectiveness of
the HazCom program. If you give miners access--to examine the material,
copy it, and review it when they have time--they are more likely to
share in the goals of the program, follow safe and healthful work
procedures, and seek early medical help in case of exposure.
1. Sec. 47.61 Access to HazCom Materials
The proposal required you to give miners and their designated
representatives access to written HazCom materials: the written HazCom
program, the list of hazardous chemicals, labeling information, MSDSs,
and training records. The proposal also explicitly required that you
give representatives of the Secretaries of Labor and Health and Human
Services access to HazCom materials.
Some commenters asked that we not require operators to copy records
for miners, citing an administrative burden. Others suggested miners
put their requests for access in writing to ``verify and effectively
communicate actual requests for copies.'' Commenters also pointed out
that Sec. 103(a) of the Mine Act already gives representatives of the
Secretaries of Labor and Health and Human Services access to HazCom
materials.
This provision in the interim final rule is the same as the
comparable provisions in the proposal, and is consistent with OSHA's
HCS. Providing access means that if the miner requests a copy of any of
the material associated with the HazCom program, you must give the
miner a copy, as well as a copy of all updates. If you prefer, you can
give the miner the records and the use of a copy machine so that he or
she can make a copy. If you have an internet website, you could put the
MSDSs on the website for access by your miners and customers, thus
reducing the number of requests for paper copies.
As in the proposed standard, the final access provisions require
operators to provide a copy of the records, in a relatively short
period of time, for the miner to examine or to retain a copy. In the
interest of flexibility, the interim final rule does not specify the
time period in which you have to provide copies. Because you are
required to keep all these HazCom materials available at the mine,
including those available by computer, you should be able to provide
them to miners, designated representatives, and Federal officials on
the same day or, at most, within 24 hours of receiving the request.
While we agree that a written request would ``verify'' and
``effectively communicate * * * an actual request'', there are numerous
ways to achieve this goal other than having the miner put the request
in writing. Requiring a written request is unnecessary because better
alternatives are available. For example, you can have miners sign a
receipt for the copies or initial a log. Requiring written requests
could delay miners' access to essential HazCom materials. Therefore,
the interim final rule does not require requests for copies of HazCom
materials to be in writing.
Although it is not stated, you must provide access to
representatives of the Secretaries of Labor (e.g., MSHA inspectors) and
Health and Human Services (e.g., NIOSH investigators). In response to
comments, the interim final rule does not explicitly include this
provision because it is mandated under the Mine Act.
2. Sec. 47.62 Cost for Copies
The interim final rule, as in the proposal, requires you to provide
one copy of any written HazCom material without cost to the miner. This
includes a single copy of any revisions or updates. Some commenters
were concerned that operators would have to provide copies at no cost
to the miner. They stated that this was not reasonable and recommended
that we require you to provide one copy, but not additional copies of
the same document, at no cost. For this reason, if the miner or
designated representative requests another copy of material you have
already given them, the interim final rule allows you to charge for
subsequent copies of the same material. These administrative fees must
be reasonable and they must be the same for everyone. You may not
refuse to provide these additional copies. These provisions will ensure
that miners have access to information about hazardous chemicals
without placing an undue burden on you.
3. Sec. 47.63 Providing Labels and MSDSs to Customers
If you produce a hazardous chemical, HazCom requires you to provide
the labeling information and the MSDS to customers when they request
them. If you have an internet website, you could put the labeling
information and MSDSs on the website for access by your miners and
customers, thus reducing the number of requests for paper copies. You
also have the option of sending copies by e-mail or facsimile (fax).
We had proposed that you send labeling information with the first
shipment of the product to a downstream user and updated information
with the next shipment.
[[Page 59073]]
The proposal would have required you to send an MSDS upon request.
After further consideration of the comments, we concluded that a
requirement to automatically send labeling information to customers is
unnecessary. Our experience indicates that many operators currently
include hazard information on their product's label in response to
market forces generated by the labeling requirements of other Federal
agencies, primarily OSHA's HCS.
H. Subpart H--Trade Secrets
The Trade Secrets subpart balances two important interests: the
miner's interest in obtaining information on hazardous chemicals to
prevent or treat adverse effects, and your proprietary interest in
protecting your business. In general, we believe miner safety and
health is best served by full disclosure of a chemical's identity. We
recognize, however, the need to protect trade secrets. Once a trade
secret is disclosed, its value may be lost. Under the Trade Secrets
subpart:
You may always protect information about trade secret
processes and percentages of mixture.
You may protect trade secret chemical identities except in
emergency and specified non-emergency situations.
You must always disclose the properties, the safe use, and
the safety and health effects of trade secret chemicals.
Our proposal was, in essence, a restatement of the existing OSHA
trade secret provision. The OSHA rule has worked for other industries
for years, has withstood the test of experience, and can ensure that
legitimate trade secrets will not be disclosed beyond what is necessary
to protect miners. The comments we received on this subpart were
generally supportive. The interim final rule, while revised
stylistically, retains the substance of the proposal and the OSHA rule.
We understand that most operators are probably not concerned with
trade secrets. One commenter said that the Trade Secrets subpart had
limited utility for the coal industry. Another commenter said the
provision was unnecessary for crushed stone. Both of these commenters
wanted us to delete the trade secret provisions.
We disagree with those commenters. To the operators who create
unique processing compounds, trade secret protection may be vitally
important. One commenter thought that we were downplaying that
importance by anticipating limited interest in the provision. On the
contrary, we recognize the value of trade secrets where they exist.
Although the subpart may appear elaborate, it provides a proven
framework to accommodate both the interests of protecting trade secrets
and miners' health and safety. We have considered all comments
submitted and determined that the Trade Secrets subpart will
effectively provide for the investigation and settlement of disputes.
1. Sec. 47.71 Provisions for Withholding Trade Secrets
Once a particular chemical has been classified as a trade secret,
HazCom allows you to withhold the chemical name and other specific
identification of the hazardous chemical from the written HazCom
program, label, and MSDS, provided that--
You identify the trade secret chemical in a way that it
can be referenced without disclosing the secret;
You disclose the properties and effects of the chemical in
the MSDS;
You indicate in the MSDS that the chemical's identity is
being withheld as a trade secret; and
You make the chemical's identity available to MSHA, health
professionals, miners, and designated representatives following other
provisions in this subpart.
HazCom does not require you to disclose process or percentage of
mixture information. The interim final rule incorporates the language
of the proposal with a few editorial changes.
2. Sec. 47.72 Disclosure of Trade Secret Information to MSHA
This section requires you to disclose to us any information
required by this subpart. If you are going to make a trade secret
claim, it must be made no later than when you provide the information
to us so that we can determine the validity of the claim and provide
the necessary protection. We moved this provision for disclosing
information to MSHA in order to keep all the disclosure sections
together in the interim final rule. There were no comments on giving
trade secret information to MSHA.
3. Sec. 47.73 Disclosure in a Medical Emergency
You must immediately disclose the identity of a trade secret
chemical to a health professional in a medical emergency. You are
required to make this disclosure when the professional is treating the
miner and determines that--
A medical emergency exists, and
The specific chemical identity is necessary to provide
adequate treatment.
The proposal required you to identify the trade secret chemical to
a treating ``physician or nurse'' in the event of an emergency. One
commenter suggested that we revise the provision to read ``physicians''
assistants and other health-care professionals who provide treatment''
instead of ``physician or nurse'' so that HazCom includes other health-
care professionals involved in treatment and patient care. This subject
is also addressed in the Definitions subpart of this preamble under
health professional.
You must provide the chemical's identity to the treating health
professional immediately in an emergency. After the emergency, however,
HazCom allows you to require that the health professional provide you
with a written statement of need, as well as enter into a
confidentiality agreement to protect against the unauthorized
disclosure of trade secret information. In general, the statement of
need verifies that the health professional will be using the trade
secret information only for the needs permitted by HazCom. The
confidentiality agreement ensures that the health professional will not
make any unauthorized disclosures of the trade secret.
Under Sec. 47.74, non-emergency disclosure, we state that you may
be subject to a citation. One commenter recommended that similar
language be added for unwarrantable failures if disclosure is denied in
an emergency. We did not adopt this recommendation in the interim final
rule. The Sec. 47.74 citation provision is part of a procedure for
reviewing denials of disclosures and balancing interests, which applies
only to non-emergency situations. In any event, a violation of the
emergency disclosure standard would, like other violations of mandatory
standards, be subject to Mine Act enforcement.
4. Sec. 47.74 Non-emergency Disclosure
Commenters agreed with the proposed provisions for non-emergency
disclosure of trade secret chemical identity and we included these
provisions in the interim final rule. In a non-emergency situation, you
must disclose the trade secret information to a health professional
providing medical or other occupational health services to a miner if
they give you a written statement of need requesting the information.
Under this section, miners and designated representatives also have the
same access. The statement of need must address the reasons specified
in the rule, and explain why other available information will not
suffice. In addition, the requester has to enter into a confidentiality
agreement.
[[Page 59074]]
5. Sec. 47.75 Confidentiality Agreement and Remedies
The confidentiality agreement may restrict the use of the trade
secret chemical identity to the health purposes indicated in the
statement of need, and may provide for legal remedies in the event of a
breach of confidentiality. You may not require a penalty bond in the
confidentiality agreement; however, you may pursue other non-
contractual remedies to the extent permitted by law.
You must allow the health professional, miner, or designated
representative to disclose the trade secret chemical identity to MSHA
if they decide there is a need. You may also provide in the agreement,
however, that they must let you know before or at the time they make
the disclosure. We proposed this last item as a mandatory requirement.
It is not mandatory in the interim final rule because we determined
that we could not enforce it. Accordingly, we are leaving it to the
parties entering the confidentiality agreement to determine if it is
needed. This provision only applies to disclosure of the trade secret
chemical identity. In any event, miners and miners' representatives
have the right under the Mine Act to confidentially report an imminent
danger or health and safety violation to MSHA and explain how a trade
secret chemical may be involved.
6. Sec. 47.76 Denial of a Written Request for Disclosure
You may deny a written request for disclosure of trade secret
information in non-emergency situations. Your denial must--
Be in writing, which includes e-mail and facsimile (fax)
communication;
Be given to the person requesting the information within
30 days of the request;
Include evidence that the chemical's identity is a trade
secret;
State why the request is being denied; and
Explain how alternative information will satisfy the
medical or occupational health need identified in the request.
Commenters agreed with the proposed provisions for denying a
request for non-emergency disclosure of trade secret information and we
included these provisions in the interim final rule.
7. Sec. 47.77 Review of Denial
If you deny a request for trade secret information, the person or
organization making the request can refer the denial to us for review.
In order for the request to be reviewed, it must include a copy of the
request for disclosure, the confidentiality agreement, and your written
denial. We will consider the appropriateness of the denial based on the
evidence you submit to support your claim that the chemical's identity
is a trade secret, the medical or occupational health need for the
information, and the proposed means to protect confidentiality.
If we determine that you wrongfully denied the request for
disclosure, you will be subject to a citation. If you can demonstrate
to us that the execution of a confidentiality agreement would not
protect you against the potential harm of an unauthorized disclosure of
the trade secret information, we may set conditions to ensure that
medical services are provided without undue risk of harm to you.
Finally, if you contest a citation for failure to disclose trade
secret information, the Mine Safety and Health Review Commission will
review the citation.
Commenters agreed with the proposed provisions for reviewing a
denial and we included these provisions in the interim final rule.
I. Subpart I--Exemptions
The proposal included both the exemptions from the rule and the
exemptions from labeling in the section on ``scope.'' It then repeated
the labeling exemptions under ``labeling.'' Commenters remarked that
this repetition was unnecessary. In the interim final rule, we placed
each set of exemptions in a table in a separate Exemptions subpart near
the end of the rule. This change in format brings the compliance
requirements closer together at the beginning of the rule while, at the
same time, eliminating repetition and making the exemptions more
noticeable.
1. Sec. 47.81 Exemptions from the HazCom Standard
The interim final rule exempts the following materials from the
full scope of the standard. These exemptions are substantively the same
as proposed.
Articles. We proposed to exempt articles from the full scope of
HazCom. This proposed exemption, however, merely listed ``articles''
and contained no description or criteria under the ``scope and
application'' section of the rule. The definition for ``article''
contained both the description and criteria for exempting an article,
the same as in OSHA's HCS. The proposed definition described
``article'' as a manufactured item, other than a fluid or particle,
that is formed to a specific shape or design during manufacture and has
end-use functions dependent upon its shape or design. For example, even
though polyaromatic hydrocarbons are hazardous chemicals, their
presence in a plastic bucket or seat cushions or ventilation curtains
is exempt from HazCom because the bucket, seat cushions, and
ventilation curtains are articles. Polyaromatic hydrocarbons in diesel
exhaust or adhesives, however, are covered by HazCom. Even though
chromium is a hazardous chemical capable of causing poisoning, chromium
in a steel bar or chisel would be exempt from HazCom, regardless of its
percent composition, because the bar and the tool are articles.
The definition also included paragraph (c), which stated that an
article is exempt if, under normal conditions of use, it releases no
more than trace amounts of a hazardous chemical and presents no
physical or health hazard. For example, chromium in a welding rod is
not exempt. Even though the welding rod is formed to a specific shape
or design during manufacture and has end-use functions dependent upon
its shape or design, the rod releases more than trace amounts of the
hazardous chemical under normal conditions of use.
Commenters generally agreed with the exemption of ``articles'' and
with its definition in the HazCom proposal. Some commenters suggested
that we eliminate the criteria in paragraph (c) of the definition
because they are unnecessary and contrary to the thrust of the
exemption for articles. Other commenters suggested, however, that the
definition must address risk for this exemption to be effective. To
determine when an article is a hazardous chemical, some commenters
suggested that the definition include a de minimis provision
establishing a low threshold concentration below which the rule would
not apply. Other commenters wanted a significant risk provision.
Several commenters recommended that we link this provision to the Mine
Act by stating that an article is exempt if it ``does not release a
quantity of a hazardous chemical that poses a risk of material
impairment of health or functional capacity to miners.'' Another
commenter suggested that HazCom clearly state our intent to exempt
trivial risks. This commenter cited a court decision on OSHA's HCS
which interpreted this exemption to mean that ``any amount of release
that could conceivably cause damage eliminates exemption as an
`article'.''
Commenters also questioned what we meant by the terms ``minute'' or
``trace'' as applied to releases of chemicals from
[[Page 59075]]
an article and by the phrase ``normal conditions of use.''
These commenters stated that we must clarify this provision for the
HazCom interim final rule to be effective. One commenter stated that--
* * * If exposures are negligible, labeling products as
hazardous causes needless concern to workers. If warnings are
provided for all measurable releases of chemicals, regardless of
risk, workers will be unable to distinguish between meaningful/
significant and trivial risks and the standard will be severely
diluted.
We agree with commenters' concerns that paragraph (c) of the
proposed definition of article is unclear about how much of a hazardous
chemical released from a manufactured item under normal conditions of
use would constitute either very small, minute, trace, or de minimis
quantities. In many cases, it may be both time consuming and difficult
to accurately determine whether an item is an article or a hazardous
chemical. For example, one commenter stated that ``[u]sing present day
analytical chemical technology, extremely low levels of chemicals can
be detected everywhere.''
To clarify our intent, we separated the criteria for exemption from
the definition for article. We also used the term ``insignificant
amount'' instead of ``very small quantity'' and ``minute or trace
amounts.'' By using these terms, we intend to shift the emphasis from
the quantity of a hazardous chemical release to the significance of the
release as it relates to risk. We believe that these language changes
do not change the substantive intent of this exemption. Although we do
not intend to regulate trivial risks, we recognize that the meaning of
``trivial'' is subjective.
Biological hazards. We proposed to exclude biological hazards from
the HazCom standard, consistent with OSHA's HCS. We received a few
comments supporting this exemption. Some commenters objected to our
exemption of biological hazards because there are dangers at the mine
associated with these substances, and information concerning their
hazards should be communicated to miners.
Although fungus, molds, and poison ivy have caused problems, there
is little evidence to indicate that biological substances on mine
property present any significant physical or health hazards. These
biological hazards are not occupationally-related so much as they are
ubiquitous. If there is a hazardous chemical present in addition to the
biological hazard, it would be subject to the requirements of HazCom.
For example, a bottle containing a biological sample in a hazardous
solvent would have to be labeled for the hazardous solvent. This
specific exemption is included in the final HazCom. This is consistent
with our proposal and OSHA's HCS.
Consumer products. We proposed to exempt consumer products and
hazardous substances from the full scope of HazCom when operators or
miners use them at the mine in the same manner as an ordinary consumer
(normal consumer use). The proposal would have exempted consumer
products as defined in the Consumer Product Safety Act (15 U.S.C. 2051)
and hazardous substances as defined in the Federal Hazardous Substance
Act (15 U.S.C. 1261), when they are subject to consumer product safety
standards or labeling requirements issued under these Acts. The Federal
Hazardous Substances Act (FHSA), administered by the Consumer Products
Safety Commission (CPSC), regulates hazardous substances in interstate
commerce. The CPSC specifically exempts pesticides subject to the
Federal Insecticide, Fungicide, and Rodenticide Act, and foods, drugs,
and cosmetics subject to the Federal Food, Drug, and Cosmetic Act, from
the term ``hazardous substance'' under FHSA. In the proposal, we also
specifically requested comments on the need to exclude from coverage
any consumer product excluded by Congress from the definition of
hazardous chemical under Sec. 311(e)(3) of the Superfund Amendments and
Reauthorization Act (SARA) of 1986, Pub. L. 99-499.
Commenters suggested that we define the term ``consumer product''
using a working definition for exempt materials rather that referencing
statutes that mean nothing to most operators. One commenter stated that
the EPA's consumer product exemption under SARA represents a more
reasonable approach than that in the proposal and urged us to
incorporate SARA's definition of consumer products. SARA defines a
consumer product as--
* * * any substance to the extent it is used for personal,
family or household purposes, or is present in the same form and
concentration as a product packaged for distribution and use by the
general public.
This commenter reasoned that keying the consumer product exemption
to consumer packaging and concentration would achieve the same result
as the proposed exemption, but without requiring you to demonstrate
that your miners use the consumer product as an ordinary consumer.
Another commenter indicated that many mining uses of consumer
products may result in exposure that was not contemplated by the
manufacturer packaging the product for consumer use. Some commenters
questioned how individuals using consumer products in an unintended
manner would affect our exemption of consumer products from HazCom.
Another recommended that we delete the requirement that you must
demonstrate that the consumer product is being used in the same manner
as in normal consumer use. The commenter further stated that there is
no evidence to demonstrate that significant risks are present where
such materials are used in a manner or amount not consistent with
normal consumer use.
Commenters objected to the term ``normal consumer use'' in the
proposal and recommended that we delete it from the interim final rule.
Another commenter stated that requiring an additional determination, as
to whether the product is used at the mine in the same manner as in
normal consumer use, places an exceptional burden on you and
recommended that we exempt all consumer products from HazCom. One
commenter stated that consumer products should be included in the final
rule because workplaces use the materials more frequently and in larger
quantities than do private homes. Another stated that comparing the use
of a consumer product by a miner with its use by a normal consumer is
neither practical nor possible, because the duration and frequency of
use are highly variable.
There appears to be a misconception that by virtue of being
marketable to consumers, consumer products are inherently safe and
their use does not require you to provide additional information to
miners using them at the mine. Consumer products, however, are not
inherently safe. We recognize that there are situations where a miner's
exposure is significantly greater than that of an ordinary consumer and
that, under these circumstances, consumer products or hazardous
substances which are safe for contemplated consumer use may pose unique
hazards at the mine. For this reason, we limit the exemption in such
cases to labeling. You must comply with the other requirements of
HazCom, such as those concerning an MSDS and training, to inform miners
about the hazardous chemical. This is consistent with OSHA's HCS.
The interim final rule exempts consumer products from HazCom when
you use them as an ordinary consumer. If you use the consumer product
longer or in greater quantities or concentrations than an ordinary
consumer, it is still exempt from labeling when it is already labeled
under CPSC. If you want to
[[Page 59076]]
apply this exemption to a consumer product used at your mine, you must
be able to show that miners use it in their work areas in the same
manner as in normal consumer use and that the use results in a duration
and frequency of exposure which is not greater than exposures
experienced by ordinary consumers.
Many mines buy consumer products to use in their daily operations.
The consumer products exemption is not dependent on whether you
purchase it wholesale or retail. For example, a 5-gallon container of
paint from a retailer may not have an MSDS. If you purchased this paint
from an industrial supplier, it would be labeled to comply with HazCom
and the supplier would probably provide an MSDS.
If you use a consumer product the way the manufacturer intended and
the miner is not exposed to the chemical more often or for longer than
an ordinary consumer, it is exempt from HazCom. The hazardous nature of
a chemical and the potential for exposure are the factors that
determine whether a chemical is covered. If the chemical is not
hazardous, or if there is no potential for exposure, HazCom does not
include it. For example, if you assign a miner to paint a hazard
warning on an explosives magazine using a can of spray paint, that use
would be one time and of short duration, just as it would be if an
ordinary consumer used the product. If the miner's job is painting,
requiring the use of spray paint frequently throughout the work shift
or daily, this use does not qualify as ``normal consumer use'' and the
hazardous chemicals in the paint would be included in the rule.
We expect you to know whether the use of a consumer product on mine
property is unusual, of longer duration, or more frequent than home
use. Although a complete exemption may be easier to comply with and
enforce than a partial one, the issue of concern to us is whether
miners have sufficient information to use the hazardous chemical
safely.
In response to comments that we define ``consumer products,'' we
decided to incorporate CPSC's definition, rather than SARA's, because
both HazCom and OSHA's HCS reference CPSC's definition. The CPSC's
definition clarifies the exemption, is compatible with HazCom and
OSHA's use of the term, and provides the necessary protections for
miners.
Items for personal consumption. We proposed to exempt foods,
drinks, drugs, cosmetics, and tobacco or tobacco products from HazCom
when they were intended for personal consumption or use by miners while
on mine property. Commenters generally supported these exemptions. One
commenter recommended that HazCom exempt distilled spirits, consistent
with OSHA's exemption. Other commenters recommended that this exemption
also include the condition that the product be packaged for retail sale
and for use by the general public. A few commenters recommended that we
not exempt any hazardous chemical.
The proposal did not specifically exempt alcoholic beverages sold,
used, or prepared in a retail establishment, because we thought these
exemptions did not apply to mining. Our existing standards for metal
and nonmetal mines (Secs. 56.20001 and 57.20001) prohibit intoxicating
beverages in and around mines. Because we do not have standards for
coal mines which specifically address intoxicating beverages, we have
included an exemption for alcoholic beverages in the interim final rule
to be consistent in both mining sectors and to avoid confusion.
The interim final rule exempts foods, drinks, including alcoholic
beverages, drugs, cosmetics, tobacco, and tobacco products intended for
personal consumption or use by miners while on mine property. For
example, HazCom does not cover items such as aspirin in a first aid kit
or food served at a mine cafeteria or vending machine.
Nuisance particulates. We proposed to exempt nuisance particulates
that do not pose a covered health or physical hazard from the full
scope of HazCom. Many commenters supported the exemption of nuisance
particulates and nonspecific mine dust. Commenters stated that nuisance
particulates do not present any known irreversible health effects and
that there are no standards in existence to use as a baseline. Several
commenters stated that inclusion of nuisance particulates in HazCom
could reduce the effectiveness of a HazCom program by transmitting too
much information to employees and diluting the focus on more serious or
less recognized chemical hazards.
A number of commenters objected to the exclusion of nuisance
particulates and nonspecific mine dust from HazCom. These commenters
stated that many particles thought to be nuisances are found later to
be important health problems and that if the hazard exists at the mine,
regardless of the amount, it should be subject to the provisions of
HazCom. One commenter stated that nuisance particulates are not
excluded by OSHA and we should not exclude them. This commenter stated
further that it would be useful to have MSDSs for nuisance particulates
to provide miners with reliable information. Another commenter
recommended that we omit the nuisance particulate exemption from the
standard because there is no proper classification of these substances.
We did not include an exemption for nuisance particulates from the
provisions of HazCom because they can pose a covered health or physical
hazard when the dose is high enough. For this reason, the proposal was
misleading. Operators who produce low hazard chemicals, such as
limestone or salt, could have wrongly concluded that their product was
not covered by HazCom. There is evidence that exposure to an excessive
amount of respirable dust, even dust that does not cause health effects
at lower exposure concentrations, can produce reversible health
effects. Also, in a mine environment, nuisance particulates are often
contaminated with other hazardous chemicals.
ACGIH considers the term ``nuisance particulates'' as obsolete. In
the past, the ACGIH defined and listed examples of nuisance
particulates to provide guidance to industry for the purpose of
controlling inhalation exposures to those dusts. Based on the 1973
ACGIH Threshold Limit Values, we currently enforce an exposure limit
for nuisance dusts of 10 milligrams per cubic meter (mg/m3)
as a time-weighted average (TWA). The current edition of the ACGIH
TLV's does not list substances as nuisance particulates. In addition,
our proposed air quality standard (54 FR 35760), published August 29,
1989, would have established a 5 mg/m3 respirable mine dust
limit applicable to all nonspecific dusts, including those currently
regulated as nuisance particulates. These current and proposed rules
demonstrate that MSHA has considered nuisance particulates as a health
hazard for at least 20 years. Because the HazCom proposal would have
covered dusts that posed a covered safety or health hazard, even if the
dust had previously been categorized as a nuisance particulate, we
consider the HazCom interim final rule to be consistent with our
proposal and OSHA's HCS.
Radiation hazards. We proposed to exclude ionizing or non-ionizing
radiation hazards from HazCom, consistent with OSHA's HCS. We have also
incorporated this exemption in the interim final rule.
Some commenters suggested that we not exempt radiation from HazCom
because, if radiation is a potential hazard in the work area, this
should be communicated to miners. Another commenter suggested an
exemption for
[[Page 59077]]
non-product-specific physical hazards, such as noise, vibration, and
hot environments, associated with the mining environment.
Radiation hazards are covered under other Federal requirements and
we have standards for metal and nonmetal mines that require hazard
notification for radiation hazards, including the posting of hazard
warning signs. A chemical with radioactive properties that also
presents other types of health and physical hazards is not exempt from
HazCom. We do not consider non-chemical-specific physical hazards (such
as heat stress, ergonomic hazards, or hearing loss) relevant to this
rulemaking because HazCom is meant to address chemical hazards.
Wood and wood products. We proposed to exempt from HazCom wood or
wood products which do not release or otherwise result in exposure to a
hazardous chemical under normal conditions of use. We did not receive
comments regarding this exemption.
Wood products, such as lumber, plywood, and paper, are easily
recognizable in the work area and pose a risk of fire that is obvious
and well known to the miners working with them. Wood dust is not
generally a wood ``product'' but is created as a byproduct during
sawing, sanding, and shaping of wood. We believe that it is necessary
for you to inform miners about the hazards of wood dust and chemically-
treated wood and precautionary measures to minimize or prevent
exposure.
The interim final rule contains specific language clarifying that
wood dust and wood treated with a hazardous chemical, such as wood
preservatives or pesticides, are not exempt from HazCom. This exemption
is consistent with OSHA's HCS on the coverage of wood and wood
products. In response to comments, we exempted wood and wood products
from the labeling requirements.
2. Hazardous Waste
We had proposed an exemption for hazardous waste from both the
labeling and MSDS requirements when the waste is covered by the
Environmental Protection Agency (EPA) under the Solid Waste Disposal
Act, as amended by RCRA. Under EPA standards, a waste analysis is
required as part of the permit to burn or dispose of hazardous waste.
However, EPA does not require the waste analysis to specify the
chemicals' hazards or provide that it be made available to employees.
MSHA indicated in the preamble to the proposal, that OSHA also excluded
hazardous waste regulated by EPA from coverage under its rule. MSHA
requested comments on the appropriateness of exempting other hazardous
waste not regulated by EPA from the labeling and MSDS requirements of
the proposal. A number of mine operators have EPA permits to burn
hazardous waste in their kilns as a supplemental fuel source or dispose
of hazardous waste in their tailings.
We received numerous comments on this exemption. Some commenters
supported the proposed hazardous waste exemption in general, agreeing
with our rationale. Commenters suggested the following specific
revisions to our proposed hazardous waste exemption:
That we exempt wastes not regulated by EPA, particularly
those reused on-site or sent off-site for recycling, such as waste oil,
antifreeze, and solvents.
That we exempt process-related waste, such as tailings,
mine waste, and other hazardous waste generated by the mine, because
they are already regulated by us and EPA and the inclusion of these
materials in HazCom labeling and training requirements could lead to
serious conflicts with other standards.
That we define hazardous waste to include garbage, refuse,
sludge, and other discarded materials including solid, liquid,
semisolid, or contained gaseous material resulting from mining because
you should inform potentially exposed miners about the hazards
associated with scrap and discarded material at the mine.
That we extend our exemption to include hazardous waste
regulated under State programs pursuant to the requirements of RCRA.
Several commenters suggested that we treat hazardous waste
exposures as OSHA does, by not requiring HazCom training for those
miners who are exposed to EPA regulated hazardous waste. One commenter
specifically suggested that we follow OSHA's requirements for hazardous
waste operations in 29 CFR 1910.120(e) by requiring training only for
specific hazardous waste operations and not for all types of hazardous
waste handling.
Since our proposal was published, an increasing number of mining
operations have obtained permits to burn hazardous wastes in their
kilns. Some bury waste in a landfill or dispose of their own wastes
from the mining process. There are 55 mining operations burning
hazardous waste and waste products with an average of 16 miners per
site. Wastes burned include biological wastes, pesticides, herbicides,
waste oil, heavy metals, and tires. Some, but not all, of these
hazardous wastes are regulated by EPA. A few operations have EPA issued
permits that allow them to burn hundreds of kinds of hazardous wastes,
up to 260 different kinds. Many are burning thousands of gallons of
waste products a year in their kilns. Two operations handle more than
15 million gallons per year and 12 operations handle more than 1
million gallons per year. Most handle either liquid or solid wastes;
some can accommodate both. Some of these wastes would meet HazCom's
definition of a health or physical hazard or both.
NIOSH stated that hazardous waste not regulated by the EPA or other
existing statutes should not be exempt from HazCom because to do so
would be contrary to the intent of HazCom. The rulemaking record
indicates the need for miners working with hazardous waste to be
informed of its hazards either as a mixture or its individual
components. We have determined that, for HazCom to be effective, it
must include all hazardous chemicals to which miners may be exposed
and, therefore, the interim final rule does not exempt hazardous waste
regulated by the EPA. Other waste chemicals are subject to the same
requirements as every hazardous chemical on site.
After a careful review of all comments received on this issue, we
have determined that it is necessary to cover hazardous waste under our
standard. Although OSHA excludes coverage of hazardous waste regulated
by EPA, OSHA has other specific standards directed to hazardous waste
operations. (29 CFR 1910.120). OSHA was required to issue these
standards by Sec. 162, title 1 of the Superfund Amendments and
Reauthorization Act of 1986 (SARA). We do not have similar statutory
requirements or standards regarding hazardous waste operations and
believe that we would be denying protection to miners handling
hazardous waste if we were to exempt it from coverage. Labels are an
important component of an effective hazard communication system.
Requiring all hazardous waste to be labeled will eliminate any
confusion as to whether the waste is covered by the EPA. Accordingly,
the interim final rule does not exempt hazardous waste from coverage.
Under the interim final rule, you must provide each potentially
exposed miner with MSDS information about the hazardous waste to the
extent that it is available. You must make any information available to
the miner or designated representative which identifies its hazardous
chemical components, describes its physical or health hazards, or
specifies appropriate protective measures. If the chemical is
[[Page 59078]]
a hazardous waste and an MSDS is unavailable, the chemical is hazardous
if any of the sources in the Identifying Hazardous Chemicals, Table
47.11, indicates it is a physical or health hazard. We believe that
this change in the interim final rule does not impose an additional
burden on you because existing labels on containers of hazardous waste
brought onto mine property that meet the comparable requirements of
other Federal or State regulations will fulfill the labeling
requirements of this interim final rule.
HazCom requires you to provide the information needed for labels
and MSDSs, through any available information and training, to miners
who work with hazardous waste. Some of this information is available
from the EPA permit, your analysis of the waste, or the supplier of the
waste material. If the supplier of the hazardous waste prepares any
document for compliance with EPA or OSHA standards that contains the
same types of information as required for the label and MSDS, we expect
you to obtain a copy of these documents and to provide miners with
access to them.
3. Sec. 47.82 Exemptions From Labeling
We proposed to exempt from HazCom's labeling requirements those
hazardous substances regulated and labeled under the authority and
standards of other Federal agencies. Commenters objected to the
proposal's referencing the laws and standards of other organizations
and agencies, considering their inclusion to amount to ``incorporation-
by-reference.'' They stated that the rule does not include these
documents, that they are not useful in understanding HazCom, and that
our rules will become dependent on out-of-date material or require
rulemaking to keep them current. The proposal had referenced the
Consumer Product Safety Act; the Federal Hazardous Substances Act; the
Federal Food, Drug, and Cosmetic Act; the Federal Insecticide,
Fungicide, and Rodenticide Act; the Solid Waste Disposal Act; and the
Resource Conservation and Recovery Act. Commenters suggested that we
replace these references with simple operational definitions that would
be understood by the miner.
The interim final rule includes these references to clarify which
toxic materials, hazardous substances, and consumer products are exempt
from HazCom labeling. We consider these references as informational
because they inform you of the limits of your responsibility rather
than imposing an obligation. To the extent practical, the interim final
rule simplifies the references by not including legal citations. Use of
these references to specify exemptions from HazCom means that another
Federal agency requires labeling of the hazardous chemical. A simple
operational definition would be that you do not have to further label a
hazardous chemical brought onto mine property if it already has a label
indicating its identity and appropriate hazard warnings.
We expect that most hazardous chemicals regulated by another
Federal agency are labeled by the manufacturer with information about
their identity, hazards, precautions for normal use and emergencies,
and phone numbers for additional information. To avoid duplicate
Federal standards, we will accept pre-existing hazard labels that
comply with the labeling requirements of another Federal statute or
standard for compliance with HazCom. For example, if a hazardous
substance or waste is produced at the mine, and it is covered by the
standards of another Federal agency, you must label it first in
accordance with those standards. Consistent with the purpose of HazCom,
if the hazardous chemical is not labeled in accordance with another
Federal statute or standard, you must label it in accordance with the
requirements in Sec. 47.32 (label contents) of HazCom.
Raw material. We proposed to exempt the raw material mined or
milled from the labeling requirements of HazCom while on mine property.
Many commenters strongly supported the proposed raw material exemption.
Some of these commenters recognized the impracticality of affixing and
maintaining labels on every ore car or on each bin or hopper containing
the mined material and believed that such labels would be of little
benefit. One commenter stated that they currently labeled bins of their
raw material but found that the labels were difficult to read due to
the dust covering them. Other commenters believed that, generally,
operators inform miners about the hazards of the raw material being
mined and this information could be considered common knowledge.
Another commenter stated that while they did not disagree with a
labeling exemption for the raw material mined--
* * * the final rule should re-state the operator's duty to
train and inform miners about the hazards inherent in the mineral
being mined and by-products of the mining process such as
crystalline silica, radon progeny, etc.
This commenter stated further that you should at least make an MSDS
on these substances available and warn miners in a variety of ways.
Among those commenters supporting the raw material exemption, one
recommended that we clarify that a container of a raw material that has
undergone a chemical reaction with other constituents, and thus is not
a mixture, would not have to be labeled even if a hazardous chemical
may have been added to it during processing at the mine. This commenter
further stated that--
[w]hile the process container where the hazardous chemical is
added may need to be labeled (at least where the process does not
result in an instantaneous chemical reaction), the container
subsequently holding the commodity produced for sale by the operator
would not constitute a ``mixture'' and should not be labeled.
A few commenters disagreed with our proposed raw material exemption
and requested that HazCom require labeling of all containers of
hazardous raw material. One of these commenters expressed concern about
the legibility and adhesion of labels, yet was confident that you could
develop workable solutions. Other commenters stated that unlabeled
containers of hazardous chemicals must be labeled under our existing
labeling standards.
The interim final rule exempts containers of raw materials from
labeling while they are on mine property. For any raw material that is
determined to be a hazardous chemical, you must supply labeling
information when requested to downstream users, to maintain MSDSs, and
to train miners about its physical and health hazards. We expect that
miners are familiar with the hazards of the material being mined
because they must receive training on the health and safety hazards of
their job under 30 CFR parts 46 or 48. If you add a hazardous chemical
to a container of raw material, however, you must label the container
for the hazardous chemical added if the mixture or the newly created
compound meets the criteria in the hazard determination section of
HazCom (Sec. 47.11).
Pesticides, food, and consumer products. The proposal included
exemptions from labeling for pesticides; food, food additives, and
color additives; and consumer products which are required to be labeled
under standards issued by other Federal agencies. The interim final
rule is generally consistent with the proposal and with OSHA's HCS. The
applicable definitions of the substances addressed in these exemptions
are those provided by the governing statutes and standards.
[[Page 59079]]
Although there were some commenters who addressed these exemptions,
few had specific comments. Among those who did comment, many supported
our exemption of consumer products. Several suggested that we not
require coal mine operators to include consumer products in HazCom
programs because this would result in meaningless storage of countless
MSDSs. Another believed that we should clarify that you have a
responsibility to maintain the labels that come on these hazardous
materials.
Commenters agreed with our intent to have a similar provision with
OSHA's HCS, stating that separate rules for consumer products would be
redundant and serve no purpose. Another commenter suggested that we
also exempt, as per OSHA's standard, drugs, cosmetics, medical or
veterinary devices, and materials intended for use as ingredients in
such products (e.g., flavors and fragrances). In regard to our proposed
consumer product exemption, one commenter stated:
* * * consumer products already possess adequate labels with
hazard identification and safe use instructions. Since no one knows
the hazards of a product better than its manufacturer, the safest
possible use of the product is in accordance with the manufacturer's
recommendations * * *. Using products according to manufacturer's
recommendations would result in exposures that are very small (this
is minute or trace amounts) and would not pose a physical or health
risk to miners.
We received a few comments objecting to the exemption of consumer
products from HazCom's labeling requirements. A few commenters
suggested that consumer product labels provided by manufacturers may
not provide adequate warning, given the use of these products at the
mine. One of these commenters stated:
* * * consumer products with warnings on adequate ventilation or
that require the use of personal protective equipment cannot be
presumed safe for use in the underground mining environment.
Further, many mining uses of consumer products may result in
exposures that were not contemplated by the manufacturer packaging
the product for consumer use. * * * Many consumer products are
potential fuel sources for fires (e.g., aerosol solvents or paints).
Further, exposure to these volatile solvents may adversely affect
the seals and insulators on permissible equipment or adversely alter
the explosive characteristics of the atmosphere in underground coal
mines.
In response to the concerns expressed by commenters, the interim
final rule states specifically that consumer products are exempt from
labeling when they are labeled under the standards of another Federal
agency, such as the Consumer Product Safety Commission. Consumer
products are exempt from HazCom where you can demonstrate that they are
used at the mine in the same manner as in normal consumer use. Because
consumer products are labeled under the authority of another Federal
agency, and these labels generally provide for the listings of chemical
identities and hazard warnings, there is no need for additional
labeling standards.
One commenter suggested that we provide operators with a list of
exempt products commonly found on mine property. We have determined
that a list of exempt products commonly found on mine property is
neither simple nor appropriate. These products are only exempt when
used in the same way as they would normally be used by a consumer. A
list could lead you to believe these were exempt under all
circumstances. Some exempt items could be overlooked and some that are
exempt from labeling may not be exempt from other provisions of HazCom.
Even for exempt products, for example, you may not deface or remove
labels from containers of hazardous chemicals brought onto mine
property. If they are repackaged or transferred at the mine, you must
communicate such labeling information to the miner and, if necessary,
label the new container.
The interim final rule also includes an exemption from HazCom's
labeling requirements for pesticides labeled under standards issued by
other Federal agencies. As long as the pesticide is kept in the
original container with its label intact and legible, it is exempt from
the labeling provisions of this rule. We believe that this partial
exemption informs and protects the miner and does not place an undue
burden on you. We intend that all pesticides be labeled with their
identity, hazards, and precautions for safe use. We believe that
existing labels on containers of pesticides brought onto mine property
that meet the labeling requirements of other Federal or State standards
will fulfill the labeling requirements of HazCom.
The purpose of pesticide labeling is mainly the protection of
workers exposed to the pesticide either while handling it or through
inadvertent contact with something that has been treated with it. In
the case of the other substances, the purpose of the labels is more
general consumer protection. The interim final rule does not include a
specific labeling exemption for foods, food additives, and color
additives used for personal consumption because they are exempt from
the full scope of HazCom. A full discussion of this issue is in the
Exemption section of the preamble.
Other suggested exemptions. Many commenters specifically
recommended that we exempt de minimis exposures to, or de minimis
amounts or concentrations of, hazardous chemicals from the labeling
requirements. Most of the commenters believed that labeling should
focus on serious risks rather than on those that are trivial. Some
commenters suggested that we use 5% silica in the mined ore as a de
minimis threshold below which labeling would not be required. One
commenter recommended 1% silica, rather than 5%, for a de minimis
threshold. Another commenter recommended basing a de minimis threshold
on a chemical's TLV or PEL. This commenter suggested that employers
would simply need to assess whether a hazardous chemical is present in
the work area at a level meeting or exceeding its PEL or TLV. Further,
this commenter stated that if the chemical did not have a PEL or TLV,
no de minimis threshold would apply.
We determined that a de minimis threshold for silica is
inappropriate because respirable crystalline silica is a human
carcinogen and the potential for exposure is too great. We discuss this
issue more fully in the next section of this preamble (4. Other
exemptions discussed in proposal).
Commenters also recommended that we exempt treated wood products
from any labeling requirements because labeling every timber in a mine
would create an excessive burden on operators with no increase in
protection to the miner.
In response to comments, we are exempting from labeling
requirements wood and wood products that have been treated with a
hazardous chemical and wood which may be sawed or cut, generating dust.
Wood and wood products, including lumber, that do not present a health
or physical hazard are exempt from the full scope of HazCom as an
``article.''
4. Other Exemptions Discussed in Proposal
In the preamble to the proposed rule, we requested comments on a
variety of options for the scope of the HazCom standard. These
alternatives covered exemptions for the size of the mine, the commodity
extracted, the work area, or the amount of hazardous substance. For the
most part, the interim final rule does not adopt these exemptions for
the reasons discussed in the following paragraphs.
Small mines. The rulemaking record contains a number of comments
suggesting that we exempt small mines
[[Page 59080]]
from HazCom. Commenters stated that HazCom would create additional
expenses and recommended that we modify the interim final rule to
exempt small operations, especially those with a workforce of 10 or
fewer.
We do not exempt small mines from overall compliance with HazCom
because chemical hazards are present at all mines, regardless of size,
and miners at small operations have the right to know if they are
exposed to hazardous chemicals. To address the needs of small mines,
however, as well as the variability in the mining industry, the interim
final rule allows you to design the HazCom program for the conditions
at your mine. To further assist you, and especially small mine
operators, we will prepare generic HazCom programs and MSDSs. Many of
these aids are available now and the remainder will be available soon.
You can contact the National Mine Health and Safety Academy at 304-256-
3257 or visit our website at www.msha.gov to find out what is
available. Also, OSHA has developed training materials for its
industries, such as a generic MSDS form, a model hazard communication
program, and the HCS Compliance Guide. Many are available from OSHA's
website at www.osha.gov and can be adapted for use at mining
operations. You can use these as models for your own program.
Depending on the size of the mine and the number of hazardous
chemicals at the mine, you may have little to add to the generic
program. We anticipate that, with minimal effort, the majority of small
mines will be able to prepare the written program, MSDSs, and labels,
and integrate HazCom training into their established training programs.
Common minerals. We considered an exemption from HazCom for certain
common minerals (such as coal, sand and gravel aggregates, crushed
stone aggregates, and clay) and those minerals containing less than 5%
silica and no other hazardous chemicals. In the preamble to the HazCom
proposal, we requested comments on--
The appropriateness of exempting certain minerals;
The appropriate criteria for making a determination for
exemption;
The degree to which miners are aware of the hazards of
these minerals;
The level of silica in such minerals necessary before the
mineral would be considered hazardous;
How these minerals are used and handled by downstream
employers; and
How we could best publicize and provide hazard information
on these substances to you and miners.
A number of commenters addressed the scope of the common minerals
exemption. Some expressed support for the exemption and stated that
natural rocks and minerals should not be classified as chemicals for
the purpose of an MSDS or other HazCom requirements. Others stated that
the exemption for minerals containing less than 5% silica is warranted
because these minerals do not constitute a hazard, and the exemption
would preclude duplicate regulatory requirements and unnecessary
expenditures. One commenter stated that such an exemption is especially
appropriate for minerals designated as carcinogenic merely because they
contain greater than 0.1% silica. Another commenter stated that
labeling common minerals is unnecessary because 30 CFR part 48 (and
part 46) requires miners to be trained to recognize the hazards of the
product being mined.
Commenters also suggested that we exempt specific minerals from
HazCom. For example, one commenter stated that we should exempt coal
and limestone. In addition, with regard to exempting coal, other
commenters stated that the hazards of respirable coal mine dust are
strictly controlled through extensive sampling and monitoring programs.
Other commenters recommended that we modify the standard to exempt
dimension stone quarries and iron ore pellets. One commenter urged us
to specify which minerals are of concern to us and suggested an
exemption for silica flour or certain industrial sands based upon their
purity and particle size.
Several commenters objected to our proposed exemption of common
minerals. One stated that most mining products are used by OSHA-
regulated facilities and, as such, OSHA already requires that these
facilities keep MSDS forms up-to-date for customers, label containers,
and fill out the appropriate transport forms. Another commenter
expressed concern that, if operators are responsible for preparing the
MSDSs and labels, the common minerals exemption could lead to
violations of the OSHA HCS for downstream general industry customers.
Others objected to the common minerals exemption because it would send
conflicting signals to miners; it is inconsistent with OSHA triggers
and MSDS requirements; and it fails to provide health protection for
miners in the sand and gravel, stone, clay, and shell dredging
operations. One commenter stated that these minerals still present
sufficient hazards to require MSDSs and training and HazCom should
cover them, even though they are common or silica is present in small
proportion to the total material.
Some commenters suggested that we exempt or provide limited
coverage to mining industry sectors with a low degree of risk. One
suggested specifically that we exempt the brick industry from HazCom
because the risk posed to miners in the brick industry is lower than
that experienced in other mining operations due to the way the industry
handles the clay and shale. According to this commenter, there is no
reason to regulate clay and shale, the brick industry's principal raw
materials, because HazCom relates to free silica and most clay and
shale have 5% free silica. In addition, this commenter
indicated that MSDSs are unnecessary because exposure to silica is a
primary part of the training programs administered by brick
manufacturers.
We do not agree that the overall degree of risk encountered by
miners in a given industry segment is a viable argument for totally
exempting an entire mine or commodity from coverage under HazCom. A
major concern is that miners are exposed to chemicals without knowing
their hazards and, thus, they may not follow the proper procedures for
handling or using these chemicals. The extent of risk is not a
determining factor in deciding whether or not you have to communicate
information on hazardous chemicals. Miners have the right to know that
they are being exposed to a potential hazard. As long as the potential
for exposure exists in the work area and the chemical is hazardous,
HazCom applies.
For these reasons, the interim final rule does not exempt minerals
containing 5% silica or less or other hazardous chemicals or certain
common minerals, such as coal, clay, and dimension stone. The
promulgation of such an exemption would imply that these minerals could
not pose a health hazard to exposed miners. On the contrary, depending
on the airborne concentration of the dust and other circumstances
regarding exposure, respirable crystalline silica in these minerals or
respirable coal mine dust may cause pneumoconiosis or cancer. The
interim final rule is consistent on this point with OSHA's HCS.
Nonfuel mining. One commenter recommended that we exempt the
nonfuel mining industry from HazCom. This commenter questioned whether
we have demonstrated that such a broad-based standard is necessary for
the nonfuel mining industry, given that HazCom would duplicate our
existing training and labeling standards.
Based on the findings of the NIOSH National Occupational Health
Survey of Mining (NOHSM) and our experience in the mining industry, we
concluded that
[[Page 59081]]
a HazCom rule applicable to coal, metal, and nonmetal mines is
appropriate because all mines use hazardous chemicals, and there are a
number of hazardous chemicals common to all types of mines, including
non-fuel mines. Fuel oil, solvents, and paint are just three examples
of hazardous chemicals used at non-fuel mines. Non-fuel mines report
the most chemical burn injuries to MSHA. HazCom is broadly written and
performance oriented in recognition of the diversity among mining
operations and independent contractors. Our intent is that all miners,
including those working in the nonfuel mining industry, have access to
information about the chemical hazards to which they are exposed at the
mine. This decision is consistent with the mandate of the Mine Act to
protect all miners to the extent feasible.
De minimis requirements. In the HazCom proposed rule, we solicited
comments on whether we should establish de minimis criteria for
hazardous chemical exposure in general. De minimis or trivial risks are
those below the threshold of regulatory concern.
A few commenters stated that, for HazCom to be effective, the final
rule must contain an exemption for de minimis chemical exposures. These
commenters urged us to specify minimum quantities for the substances
covered by the standard. Commenters suggested that we exclude exposures
that are less than one-half of any applicable PEL or ACGIH TLV, or
where the health risk is not significant. Some felt that HazCom should
address only those chemicals that exceed a PEL or ACGIH TLV. One
commenter stated that a meaningful de minimis provision could be
provided--
By clarifying the definition of article similar to that
found in the mixture definition;
By defining a significant health risk; and
By stating a reasonable and consistent interpretation of
the terms ``minute'' or ``trace.''
A few commenters recommended that we exclude trivial exposures to
avoid unnecessary and misleading labeling and the creation of the
functional equivalent of a ``Delaney Clause.''
[Note: The Delaney Clause is an amendment to the Food, Drug, and
Cosmetic Act (21 U.S.C. 348). It requires the Food and Drug
Administration to prohibit the use of any food additive that is
carcinogenic without regard to the quantitative level of risk.]
Commenters wanted us to set a de minimis concentration below which
you would not have to consider whether a substance is hazardous. There
are highly toxic substances, however, which can cause adverse health
effects from the absorption or inhalation of tiny amounts. HazCom is
intended to address all hazardous chemicals at mines. The range of
hazards and concentrations are too diverse to address through a single
measurement. A de minimis exemption, therefore, would not provide
sufficient protection to miners and would not address the true issue of
concern, informing miners of potential hazards.
Likewise, requiring information disclosure only in situations where
exposure might exceed a PEL or ACGIH TLV is not consistent with the
purpose of the rule. Exposure limits address a limited number of the
hazardous chemicals encountered at the mine. Also, PELs are used to
control inhalation exposures. Because the definition of exposure in
HazCom includes absorption through the stomach or skin, in addition to
the lungs, the exposure limits might be unrelated to the total exposure
experienced by a miner. In certain circumstances, the most significant
route of exposure may be through the stomach or skin. We have received
reports of injuries and illnesses among miners as a result of skin
contact with cyanide solutions, cement and trona dusts, and mercury,
and as a result of ingesting lead litharge.
Laboratories. The proposal requested comments on whether
laboratories should be exempt from HazCom, primarily because OSHA's HCS
[29 CFR 1910.1200(b)(3)] partially exempted laboratories. OSHA,
however, regulates laboratories under both its HCS (29 CFR 1910.1200)
and its laboratory standard (29 CFR 1910.1450). The laboratory standard
supplements the HCS.
The OSHA HCS requires labels, MSDSs, training, and access. The
heart of the OSHA laboratory standard is the Chemical Hygiene Plan. The
Plan, which contains elements similar to HazCom's written program, must
be reviewed annually. It also requires detailed descriptions of
personal protective equipment, standard operating procedures, and
engineering controls. Whatever OSHA does not cover under its HCS, it
covers in its laboratory standard. The OSHA laboratory standard
requires training; access to the plan and ``all known reference
material * * * including, but not limited to, Material Safety Data
Sheets * * *; labels and MSDSs; hazard determination for chemicals
produced, including by-products; hazard determination, labels, and
MSDSs for chemicals produced for users outside the lab itself; and
records of exposure monitoring and medical exams.
Unlike OSHA, we do not have specific standards addressing hazardous
chemicals in laboratories. At this time, we do not plan to develop a
separate standard to address laboratory hazards.
Several commenters urged us to exempt laboratories. One commenter
stated that small laboratories are exempt from OSHA's standards.
Another commenter stated that both OSHA's HCS and EPA's SARA exempt
laboratories of any size when under the direct supervision of a
technically qualified individual. Some commenters supported the
application of training requirements to laboratories on mining property
unless the lab has trained chemists. Others recommended that we exempt
laboratory use of chemicals from HazCom because such use is unique and
our training standards already cover laboratory hazards.
Most commenters, however, supported our coverage of laboratories
within HazCom. Some commenters found our approach reasonable because
covering mine laboratories would preclude the need for us to develop a
separate standard to address laboratory hazards, as was done by OSHA.
We agree that laboratories in mining should be subject to the full
scope of the standard, including training, with no specific exemptions.
Laboratories found in the mining industry differ in several respects
from those common to general industry, such as research facilities.
Although there may be a few large-scale laboratories in the mining
industry supervised by trained chemists, our experience indicates that
most mine laboratories are small-scale operations devoted to quality
control or process control, with relatively few trained chemists.
Compared to research facilities or laboratories in the chemical
manufacturing industry, quality control laboratories in the mining
industry use relatively few chemicals and analytical methods. Most of
these mine laboratory workers receive on-the-job training. This
training can be inadequate in addressing the hazards of the chemicals
to which the laboratory workers are exposed. MSHA data, reported under
the requirements of 30 CFR part 50, cite illnesses or injuries in
laboratories caused by improper mixing of chemicals, mercury spills,
use of inadequate or inappropriate personal protective equipment, use
of improper procedures, and improper use of controls or inadequate
ventilation.
The interim final rule does not exempt laboratories on mine
property,
[[Page 59082]]
but gives you the latitude to create a training program based upon the
hazards identified. We recognize that these programs may differ from
work area to work area because of the different chemicals used. We
expect your training program to vary depending on the miners' training
needs. To exclude miners working in laboratories from HazCom would not
be in keeping with our mandate to prevent mine-related occupational
injuries and illnesses. After reviewing the comments and the rulemaking
record, and based on the presence of hazardous chemicals in the
laboratories, we have concluded that it is necessary to include mine
laboratories under the scope of the interim final rule.
J. Subpart J--Definitions
HazCom is an information and training standard focused on chemical
hazards. Table 47.91 defines the terms needed for understanding the
concepts and requirements in the standard. We defined some terms to
have a special meaning for this standard, but tried to stay consistent
with the ordinary meaning of the terms.
1. Using MSHA and OSHA Terms
We used employee in the proposed rule to identify the working
person who may be exposed to a hazardous chemical. The proposal
included a sentence to clarify that the standard did not apply to
individuals, such as office workers, who encounter hazardous chemicals
in non-routine instances.
Commenters recommended that we use the term miner instead of
employee. Many commenters pointed out that miner is defined in the Mine
Act, and that using this term would be consistent with our statute.
Because the term miner, as defined in the Mine Act, means any
individual working in a coal or other mine, including office workers,
some suggested that we could add an exemption for office workers in a
separate section.
In response to comments, we replaced the term employee with the
term miner throughout the interim final rule, where we thought it was
appropriate. The term miner does include office workers. We do not
intend to exempt office workers from HazCom. The proposal had attempted
to clarify that HazCom does not apply to individuals exposed to a
hazardous chemical in extraordinary, non-routine situations. We
intended this statement in the proposal to complement the scope and
emphasize that individuals exposed to a hazardous chemical under normal
conditions of use or in a foreseeable emergency, regardless of their
job category, are covered by HazCom. For example, you must ensure that
hazardous chemicals normally used in or around an office, such as toner
for the copy machine, are labeled appropriately; obtain an MSDS for
them, and instruct the exposed office workers about their hazards and
safe work procedures. Other Federal agencies regulate hazardous
chemicals used in or around an office and, therefore, they should
already be labeled and have an MSDS available from the supplier.
We defined employer in the proposal as a person engaged in a
business where chemicals are either used, distributed, or are produced
for use or distribution, including a contractor or subcontractor. We
intended the term to describe independent contractors on-site, as well
as downstream or OSHA jurisdiction customers. In response to the
general comment that we should rely on mining terms, in the interim
final rule we use the more familiar designation operator to mean both
the mine operator and independent contractor as defined in the Mine
Act. In the preamble, we often use the term ``you'' instead of
``operator.'' We use the separate terms mine operator and independent
contractor when we want to differentiate between the mine operator
responsible for the whole operation and the contractors and
subcontractors who have the responsibilities of an operator for
specific aspects of the mining operation. We determined that a
definition was not necessary for customer because we use the term as it
is commonly understood to mean the downstream users who purchase your
products.
We defined workplace in the proposal to mean a mine, establishment,
job site, or project at one geographical location containing one or
more work areas. The term mine is defined by the Mine Act and, like
miner, is more familiar to the mining industry. Mine means the same
thing as workplace for purposes of HazCom. Accordingly, we have
substituted the term mine for workplace throughout the interim final
rule.
Some commenters suggested that we add definitions for terms not
proposed. Several commenters requested that coal mine be defined. The
definition for mine in the Mine Act includes coal mines and coal
preparation facilities. A number of commenters wanted independent
contractor defined. This term is defined and commonly used in other
MSHA standards and is well-understood by the mining industry. Separate
definitions for these terms are unnecessary.
2. Material Impairment and Significant Risk.
Commenters suggested revising definitions for exposed, hazardous
chemical, and health hazard, among others, so the terms would include
the concepts of material impairment and significant risk. They
suggested deleting the phrase ``or potentially subjected'' from the
definition of exposed. (The definition would then read: ``Being
subjected to a hazardous chemical in the course of employment * * *.'')
Commenters also objected to the proposal's definition of hazardous
chemical because it addressed ``any chemical, in any quantity, at any
time.'' A health hazard, according to a commenter, should be a health
hazard only under conditions of intended use.
If these changes were made in HazCom, the interim final rule would
have taken a significant departure from its intended purpose. A fuller
discussion of material impairment and significant risk is found under
Purpose and Scope in this preamble. We did not change the definitions
for exposed, hazardous chemical, and health hazard in HazCom to include
the concepts of material impairment or significant risk.
3. Sec. 47.91 Definitions of Terms used in this Part
A number of the terms defined in HazCom are commonly used by
chemists, physicists, and health and safety professionals to identify
and describe specific types of physical hazards or physical properties
of chemicals. In keeping with the plain language initiative, we have
defined terms in the clearest way we could, sometimes balancing
technical precision with general clarity. We believe this subpart
provides you with the information you need to understand what HazCom
requires and to comply with it.
Access. The interim final rule, like the proposal, defines access
as the right to examine and copy records. One commenter wanted this
definition to specify that you must provide access without cost to the
miner. Another commenter did not want the definition to include the
right to copy records. Other commenters suggested that we consolidate
the access provisions in a single subpart rather than repeat them for
each subpart.
HazCom contains the term access principally in the subpart Making
HazCom Information Available where, in response to comments and for
clarity and ease of use, we consolidate access requirements from
several sections of the proposal. Because of the potentially
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large amount of detailed, technical HazCom material, particularly
MSDSs, we believe that the intent to provide information to miners is
best served if miners have the right to a copy of the material. The
HazCom material may be too voluminous to understand without an
opportunity to review it all thoroughly. The cost for providing free
copies is a condition for providing access and not appropriate in a
definition.
Article. Article was defined in the proposal to clarify that many
manufactured products commonly found on mine property are exempt from
HazCom. Under the proposal, we defined article to mean a manufactured
item other than a fluid or a particle that--
(a) Is formed to a specific shape or design during manufacture;
(b) Has end-use functions dependent upon its shape or design; and
(c) Under normal conditions of use, releases no more than very
small quantities (that is, minute or trace amounts) of a hazardous
chemical, such as the off-gassing of plastic pipes, and does not pose a
physical or health risk to employees.
Numerous commenters agreed with the definition in the proposed
rule, except for paragraph (c). Commenters claimed that paragraph (c)
was unclear about how much of a hazardous chemical released from a
manufactured item under normal conditions of use would constitute
either very small, minute, trace, or de minimis quantities. Commenters
also asked that we clarify that article means conveyor belts, repair
steel, and other equipment and supplies commonly found at mines. To
determine when an article is a hazardous chemical, some commenters
suggested that the definition include a de minimis provision, while
other commenters wanted a significant risk provision. One commenter
wanted the term ``under normal conditions of use'' deleted from the
definition because it limits the scope of the standard.
Another commenter expressed concern that iron ore pellets would be
considered a hazardous chemical under HazCom. Iron ore pellets, like
bricks, are manufactured articles. Before they are pellets, however,
the iron ore is a raw material which contains respirable crystalline
silica. Both the respirable dusts of iron ore and silica are inhalation
hazards because they can cause lung damage. When they can pose a hazard
to exposed workers, these raw materials are covered by HazCom. As raw
material, iron ore is exempt from labeling under HazCom while on mine
property. The pellets are exempt from HazCom when they are formed into
articles, provided that they do not release more than insignificant or
trace amounts of a hazardous chemical and do not pose a physical or
health hazard.
We agree with commenters that the definition created confusion. We
believe that the confusion arose because the defined term also included
the criteria for exemption, which was contrary to the ordinary
understanding of the word. An article is first of all a class of
material things. An item manufactured to a shape or design that
determines its end-use functions will be an article, in the ordinary
sense of the word, whether it gives off trace amounts of a hazardous
chemical or larger amounts. The exemption of an article, however, is
dependent on how the article is used.
To clarify the standard's intent, we moved proposed paragraph (c)
from Definitions to Exemptions to indicate that only articles that give
off no more than insignificant or trace amounts of a hazardous
chemical, and are neither a physical nor a health hazard, are exempt.
The definition in the interim final rule describes manufactured goods,
other than a fluid or particle, without regard to the chemical hazard
produced. The Exemptions subpart now addresses the distinction between
exempt and non-exempt articles. We believe that this change is non-
substantive, and clarifies the interim final rule. The interim final
rule uses the same language as the proposal except for the movement of
the last provision to Exemptions.
To illustrate the intent of the change, suppose you purchase a tire
and use it on a haul truck. While on the truck, the tire may give off a
trace amount of a hazardous chemical. Under this use, the tire is an
article exempt from HazCom. When the tire is worn out and can no longer
be safely used on the truck, you may send it to a mine that uses tires
to supplement the fuel for a kiln. While burning, the tire gives off
significant amounts of hazardous chemicals. The tire is still an
article, but no longer exempt from HazCom. The miners working at the
other mine's kiln must be trained about the chemical hazards associated
with the burning tire.
Chemical. The interim final rule, like the proposal, defines
chemical as any element, chemical compound, or mixture of these. One
commenter assumed that, for the purposes of HazCom, the definition of
chemical could be interpreted broadly to include the byproducts of
chemical reactions. Byproducts of chemical reactions are separate
chemicals. We intend that you address any byproducts as you address
other chemicals you produce. You can either include the byproducts on
the MSDS and label or, if appropriate, develop a separate MSDS and
label.
Chemical name. The proposal defined chemical name as the scientific
designation of a chemical in accordance with the nomenclature system
developed by the International Union of Pure and Applied Chemistry
(IUPAC) or the Chemical Abstracts Service (CAS) rule of nomenclature,
or a name that will clearly identify the chemical for the purpose of
conducting a hazard evaluation. A commenter recommended that the
definition specify Registry of Toxic Effects of Chemical Substances
(RTECS) numbers, as well as CAS numbers. Although RTECS numbers are not
as widely accepted as CAS numbers as a means of identifying a specific
chemical, they are unique and precise and may be used, as well as IUPAC
numbers. HazCom retains the proposed definition for chemical name.
Common name. In the proposal, we defined common name as any
designation or identification, such as a code name, code number, trade
name, brand name, or generic name, used to identify a chemical other
than by its chemical name. Commenters generally supported the proposed
definition for the term common name, which remains the same in the
interim final rule. This definition is consistent with the OSHA HCS.
Consumer product; food; food additive; color additive. We used the
terms color additive, food additive, consumer product, and food in the
proposed rule and commenters requested that we define them. One
commenter suggested that ``EPA's consumer products definition is more
practical than MSHA's and achieves the result MSHA intended.'' The
interim final rule includes a definition for consumer product which is
essentially the same as the one in the Consumer Product Safety Act (15
U.S.C. 2051 et seq.). We do not define food, food additive, or color
additive in the interim final rule. They are common terms and we use
them in the sense in which they are normally understood.
Container. As proposed, the interim final rule defines container as
any bag, barrel, bottle, box, can, cylinder, drum, reaction vessel,
storage tank, or the like that contains a hazardous chemical. The
definition further states that pipes or piping systems; conveyors; and
engines, fuel tanks, or other operating systems or parts on a motor
vehicle (such as tires) are not considered to be containers.
One commenter wanted pipes that contain hazardous chemicals to be
considered containers. We consider it impractical to label pipes and
piping
[[Page 59084]]
systems containing hazardous chemicals. In numerous cases, these
systems are used for different chemicals at different times, depending
upon the needs of the operation. Our training standards require you to
train miners about the hazardous chemicals to which they may be exposed
in their work area. These are the same chemicals that would be
transported in pipes and piping systems. In addition, the training
requirements in this interim final rule specifically cover the hazards
of chemicals contained in pipes or piping systems in the miners' work
areas.
Designated representative. The interim final rule, like the
proposal, defines designated representative as any individual or
organization to whom a miner gives written authority to exercise that
miner's right of access to records. A miner's representative, to
contrast the two terms, is any individual or organization representing
two or more miners.
Many commenters wanted to limit the miner's choice of a designated
representative to the duly-selected collective bargaining
representative and, if none, a member of a safety and health committee
who has been chosen by the miners or an individual miner who has been
selected as the walkaround representative by the miners at the same
mine. We feel that, by adopting these suggestions, we would restrict a
miner's options and that each miner should be allowed to select his or
her own designated representative.
The definition of designated representative in the interim final
rule does not limit miners to their collective bargaining or miners'
representatives. We anticipate that in most instances, the designated
representative will be one of those, but it could also be a miner's
personal physician, attorney, or other person or organization of the
miner's choosing. The interim final rule revises the proposed
definition to allow the miner to choose anyone as the designated
representative, including a representative of miners under 30 CFR part
40.
Employee; employer. The proposal defined employee as any individual
working in a mine who may be exposed to a hazardous chemical.
Individuals such as office workers who encounter hazardous chemicals in
non-routine instances were not covered. We use the term miner rather
than employee in the interim final rule. HazCom, therefore, does not
include a definition for employee.
The proposal defined employer as a person engaged in a business
where chemicals are either used, distributed, or are produced for use
or distribution, including a contractor or subcontractor. We use the
term operator rather than employer in the interim final rule. HazCom,
therefore, does not include a definition for employer.
Exposed. The proposed rule defined exposed as being subjected, or
potentially subjected, to a hazardous chemical in the course of
employment through any route of entry, such as inhalation, ingestion,
or skin absorption, during normal operating conditions or in a
foreseeable emergency.
A number of commenters wanted the phrase ``or potentially
subjected'' deleted from the definition of exposed because it is vague
and open to interpretation. Other commenters wanted to modify the
definition to read ``reasonably foreseeable emergency,'' and several
commenters wanted to delete the entire phrase. Another commenter wanted
the term exposed to be defined as being subjected, or potentially
subjected, to exposure equal to or above the MSHA limit for a hazardous
chemical.
Excluding potential exposure to a hazardous chemical, when the
chemical does not have an MSHA limit or when the exposure may be below
the limit, would circumvent the intent of HazCom. In addition, other
MSHA standards address and regulate the miner's exposure to hazardous
chemicals. The interim final rule does not incorporate these suggested
changes, nor does it retain the phrase ``during normal operating
conditions or in a foreseeable emergency'' in the definition of
exposed. As with the changes in the definition of article, this phrase
addressed a condition of use and confused the normal understanding of
the term ``exposed.'' The phrase ``potentially subjected'' covers those
situations where the threat of exposure to hazardous chemicals exists.
We use the phrase ``during normal operating conditions or in a
foreseeable emergency'' with the term exposed in Sec. 47.2 to describe
when HazCom applies.
Foreseeable emergency. The proposed rule defined foreseeable
emergency as any potential occurrence for which you would normally
plan, such as equipment failure, rupture or spill of containers, or
failure of control equipment, that could result in an uncontrolled
release of a hazardous chemical into the work area. Many commenters
stated that the phrase ``for which operators would normally plan'' is
vague and open to interpretation and abuse and should be removed from
the definition. Several commenters wanted to substitute ``reasonably
plan'' for ``normally plan.''
The interim final rule retains the definition of foreseeable
emergency as proposed. We consider an emergency to be foreseeable if we
can reasonably expect you to know that it could occur due to the nature
of the mining operation. You are already required to prepare for
emergencies through a number of our standards (e.g., fire, ventilation,
mine rescue, and training, among others). We believe the term emergency
is well understood in the mining industry. We expect you to make
preparations to address the foreseeable emergencies that can be related
to chemicals, should they occur.
Hazard warning. The proposed rule defined hazard warning as any
word, picture, or symbol appearing on a label or other appropriate form
of warning that conveys the specific physical and health hazards of the
chemical in the container, including target organ effects. (See the
definitions for physical hazard and health hazard for examples of the
hazards that must be communicated.)
One commenter suggested that appropriate protective measures should
be required as part of hazard warnings. Although giving information
about protective measures is a vital part of HazCom, we address this
information in the provisions for MSDSs and training. The purpose of
the hazard warning in labeling is to convey critical information
immediately. We believe that the most critical information for labeling
is the name of the chemical and its hazards.
The interim final rule defines hazard warning as any words,
pictures, symbols, or other forms of warning that convey the specific
hazards of the chemical. We removed the text specifically referencing
target organ effects or containers from the definition for hazard
warning in the interim final rule because it was redundant. Labeling
requirements in subpart D of HazCom address containers, and the
definitions of health hazard and physical hazard address the effects of
hazardous chemicals, including target organs.
Hazardous chemical. In the proposed rule, we defined hazardous
chemical as any chemical that is a physical hazard or a health hazard.
We also defined physical hazard and health hazard.
One commenter suggested that the definition of hazardous chemical
convey the concept that a chemical be considered hazardous based on
whether it exists in a quantity or is used in a manner that could
present a reasonable risk of overexposure to a miner. Several other
commenters suggested that the definition exempt coal and related raw
materials and consumer products. Another commenter wanted hazardous
material to be substituted for hazardous
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chemical, stating that it would be more readily understood. As an
example, this commenter stated that asbestos and gasoline are highly
hazardous, yet they are not commonly referred to as chemicals.
If we based the application of HazCom on the quantity of a chemical
present, it would allow you to ignore chemicals with known hazards if
they are in small quantities. Some hazardous chemicals are not evenly
dispersed in a mixture of dusts, liquids, or gases, and pockets of high
concentration can pose a hazard even if the quantity is low. For
example, if a hazardous chemical settles in layers near the ground, a
measurement of it near the breathing zone of the miner may lead to a
faulty conclusion that the chemical does not present a reasonable risk
of overexposure. We believe that it is far more protective, and
necessary to prevent illness, to train miners about the presence of the
chemical, signs and symptoms of exposure, safe work practices,
precautionary measures, and the need to keep engineering controls in
proper working order, rather than argue about what level of risk is
reasonable or significant and then wait until there is a reasonable or
significant risk to inform the miners about it.
Exemptions of coal, raw materials, and consumer products from the
definition of hazardous chemical would, in effect, exempt these
substances from HazCom. In conjunction with the definition of chemical
in this interim final rule, the definition of hazardous chemical
adequately addresses our intent that common hazardous substances, such
as gasoline, are to be considered hazardous chemicals.
To be consistent with changes in the definitions of health hazard
and physical hazard, we changed the definition of hazardous chemical in
the interim final rule to mean any chemical that can present a physical
hazard or a health hazard. We included the criteria for determining
whether a chemical is hazardous in Sec. 47.11, Identifying hazardous
chemicals.
Hazardous substance. The proposal did not define the term hazardous
substance, but used it in the provisions for exemptions. A number of
commenters felt that hazardous substance should be defined because it
is used in the rule. We use the term in this standard specifically to
exempt hazardous substances regulated by EPA as defined in the
Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) (42 U.S.C. 9601 et seq.) and the Federal Hazardous Substance
Act (15 U.S.C. 1261 et seq.). We do not define hazardous substance in
the interim final rule; however, its meaning and use is the same as in
the proposal and consistent with OSHA's HCS.
Hazardous waste. Hazardous waste was defined in the proposed rule
as any chemical regulated by the Environmental Protection Agency (EPA)
as a 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.). Many commenters wanted
hazardous waste re-defined to include only those chemical wastes which,
because of their quantity, concentration, or physical, chemical, or
infectious characteristics, may result in death or serious illness or
pose a substantial hazard to human health or the environment when
improperly treated, stored, transported, disposed of, or otherwise
managed. One commenter requested that HazCom include an operational
definition for hazardous waste.
We believe that an operational definition of hazardous waste
specifically for mining operations would cause confusion for you in
complying with other Federal and State standards. Other wastes from the
mining operation or brought to the mine that are not regulated by EPA
also can contain hazardous chemicals. The primary difference between
the hazardous waste regulated by EPA from those unregulated by EPA is
the amount of information that you can expect from the supplier.
Although HazCom exempts EPA-regulated hazardous wastes from labels and
MSDSs, you must instruct miners who can be exposed about their hazards.
We are especially concerned that you obtain enough information to
instruct miners about those wastes that are brought to mine property,
the content and hazards of which may be unknown to you.
The interim final rule uses the same definition of hazardous waste
as proposed. We intend that our use of the term hazardous waste be
consistent with both OSHA's and EPA's use of this term.
Health hazard. The term health hazard is used in the proposal and
the interim final rule to describe those chemicals that can present a
risk of disease or other harmful health effects to an exposed miner.
The proposed rule defined health hazard as ``[a] chemical for which
acute or chronic health effects may occur in exposed employees.'' The
proposal then listed the types of illness or injury that we consider to
be health hazards.
A few commenters wanted health hazard defined (as in OSHA's HCS) as
a chemical for which there is statistically significant evidence of
significant risk based on at least one valid study. One commenter
stated that much of the information in the definition was overwhelming
and that the inclusion of Appendix A and Appendix B as part of the
definition was inappropriate and confusing. Some commenters suggested
that the final rule reference 30 CFR parts 56, 57, 70, 71, and 75
instead of Appendices A and B.
We agree with the commenters and drafted the definition to be
clearer. We also deleted the appendices to eliminate that potential
source of confusion. We added for the sake of clarity that there must
be statistically significant evidence that the chemical can do harm and
described the types of illness and injury in plain language. We believe
that the interim final rule clarifies the intent, meaning, and use of
the proposed definition.
Health professional. We use the term health professional in the
subpart on Trade Secrets in addressing two situations: an emergency
situation when the trade secret information may be needed to save a
life, and a non-emergency situation when the information may be needed,
but not immediately. The term in the proposed rule referred to a
treating physician or nurse. We received comments that others, such as
emergency medical technicians, may need access to this information in
an emergency. One commenter essentially asked that ``occupational'' not
be used restrictively to limit health professional. Another commenter
asked that health professionals be licensed individuals. This would
eliminate industrial hygienists, for example, who may be board
certified, as well as some otherwise qualified nurses and technicians.
Some commenters asked that we include ``safety professionals''
among those who must be given trade secret information that may
otherwise be withheld. They stated that it is necessary to add safety
professionals to the definition of health professional because many
mines do not have industrial hygienists; their safety professionals
monitor, review, and make corrective recommendations.
In response to comments, we have defined a new term, health
professional, in the interim final rule to include a physician, nurse,
physician's assistant, emergency medical technician, industrial
hygienist, toxicologist, epidemiologist, or other person qualified to
provide the medical or occupational health services based on education,
training, and experience. This definition is deliberately flexible to
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allow you to make decisions that focus on the needs of the miner. The
interim final rule does not require that the health professional be
licensed. We believe that the definition in the interim final rule is
restrictive enough to protect trade secret information about the
chemical composition of a material, but broad enough to give access to
those who need it.
We expect that trade secret chemical information may be needed when
a miner is being treated as a result of a chemically-related injury or
illness. Only persons involved in treatment, researchers looking into
the causes of injuries or illnesses, or the exposed miners or their
designated representatives must have access to this critical
information when it is necessary. Information appropriate to a safety
professional would be available on the MSDS. In any event, a safety
professional charged by you with a responsibility for chemical hazard
communication should already have access to the chemical information.
Identity; specific chemical identity. The interim final rule
retains the proposed definition of identity as a chemical's common or
chemical name, which must permit cross-references among the required
list of hazardous chemicals, the label, and the MSDS. The proposed rule
defined specific chemical identity as the chemical name, CAS number, or
any other designation that precisely identifies the chemical. One
commenter suggested that the definition of specific chemical identity
duplicate that of identity.
For purposes of HazCom, we determined that specific chemical
identity was an unnecessary term because the interim final rule, as did
the proposal, defines the terms identity, chemical name, and common
name which duplicate its definition. The proposed rule had defined
chemical name to include CAS numbers, common name to include other
designations, and identity to include the chemical name and common
name. We do not use or define the term specific chemical identity in
the interim final rule.
Immediate use. The term immediate use in the proposal clarified
under what conditions it would be appropriate to use an unlabeled,
temporary, portable container. In the proposal, immediate use meant
that the miner who transferred the substance from a labeled container
into a temporary, portable, unlabeled container must use it during the
same work shift. We removed this term from the Definitions subpart in
the interim final rule and, instead, incorporated the proposed
definition in the standard.
Label. The proposal defined label as ``any written, printed, or
graphic material, displayed on or affixed to containers of hazardous
chemicals.'' We define label in the interim final rule in essentially
the same way. For the final HazCom rule, however, we added the phrase
``to identify its contents and convey other relevant information'' and
deleted the phrase ``of hazardous chemicals'' in an effort to make this
definition consistent with the common understanding of this term. A
label on a container usually identifies its contents, whether or not it
contains a hazardous chemical.
Material safety data sheet (MSDS). We defined material safety data
sheet (MSDS) in the proposal as written or printed material that an
operator prepares in accordance with HazCom's requirements, or which
the manufacturer or supplier prepares under OSHA's HCS for hazardous
chemicals brought to the mine. One commenter urged us to include an
operational definition for MSDS rather than reference HazCom's
requirements or OSHA's HCS. An operational definition, without
reference to the standards, misses the fact that we intend the MSDS to
be an information fact sheet that conforms to the cited regulatory
requirements. Although HazCom does not require a specific format, we do
encourage you to use an established format for consistency within the
mining industry and to be in accord with other industries, your
customers. In the interim final rule, we revised the definition of MSDS
without changing its requirements by expanding the reference to OSHA
standards and by referencing Table 47.42, which contains the
requirements for the contents of an MSDS.
Mixture. The interim final rule retains the proposed definition of
mixture as ``any combination of two or more chemicals which is not the
result of a chemical reaction.'' We intend that the definition of
mixture be applied broadly to include both solutions of chemicals and
combinations of chemical solids. A characteristic of any mixture is
that its individual components could be separated by mechanical or
physical methods.
One commenter felt that this definition would include those
chemical byproducts or impurities in trace amounts that are contained
in otherwise pure chemicals and that we should clarify the definition.
We intend that you treat pure compounds or elements as individual
chemicals, rather than as mixtures, even when they contain small
amounts of other chemicals as impurities. This treatment is similar to
our treatment of trace releases from articles and is consistent with
OSHA's HCS.
Operator; miner. As discussed above, HazCom uses the mining terms
operator and miner as defined in the Mine Act instead of employer and
employee. The Mine Act defines operator as ``any owner, lessee, or
other person who operates, controls, or supervises a coal or other mine
or any independent contractor performing services or construction at
such mine,'' and miner as ``any individual working in a coal or other
mine.'' Because they are defined in the Mine Act, we do not define
these mining terms in HazCom.
We removed the definitions for employer andemployee from the
interim final rule. Although not included in the definitions, we use
these terms in the context of their ordinary meaning.
Ordinary consumer use. In response to comments, we are defining the
phrase ordinary consumer use. For the purpose of HazCom, ordinary
consumer use means:
(1) The product or article is packaged and sold by the manufacturer
or retailer for use in or around a residence, a family, or a school; in
recreation; or elsewhere for personal use or enjoyment, as opposed to
business use.
(2) The miner's exposure is the same as it would be for an ordinary
consumer using the product as the manufacturer intended.
To be considered ordinary consumer use, the miner could not be
exposed to the product at more than the same concentration, frequency,
and duration of time than an ordinary consumer would. For example,
using an organic solvent that is an ingredient in a hand soap in a
washroom would be considered normal consumer use. Using that same
solvent as a detergent in a flotation reagent is not.
Pesticide. The term pesticide appears in the interim final rule to
clarify that pesticides are regulated by another Federal agency and are
exempt from HazCom. We do not define this term.
Physical hazard. The term physical hazard is used in the proposal
and the interim final rule to describe those chemicals with properties
that can present a risk of injury to a miner. The proposal listed
examples of chemical reactions, such as flammability, that are physical
hazards. The interim final rule lists the chemical reactions and then
further defines each of them: a combustible liquid, a compressed gas,
an explosive, a flammable, an organic peroxide, an oxidizer, a
pyrophoric, an unstable (reactive), or a water reactive material. As
normally used, physical hazard means the actual physical effect
[[Page 59087]]
that a chemical can cause, rather than the chemical itself. The
proposed definition differed from this common meaning. To eliminate
possible confusion or ambiguity, the interim final rule defines
physical hazard consistent with its common meaning by listing examples
of the types of chemical reactions that can cause physical harm to
miners.
(1) Combustible liquid. We defined combustible liquid in the
proposal as a liquid with a flashpoint at or above 100 deg.F (100
degrees Fahrenheit) which is 37.8 deg.C (37.8 degrees centigrade). The
proposal listed the following three classes of combustible liquids:
(a) Class II liquids--those having flashpoints at or above
100 deg.F (37.8 deg.C) and below 140 deg.F (60 deg.C).
(b) Class III A liquids--those having flashpoints at or above
140 deg.F (60 deg.C) and below 200 deg.F (93.4 deg.C).
(c) Class III B liquids--those having flashpoints at or above
200 deg.F (93.4 deg.C).
OSHA's HCS had defined a combustible liquid as a liquid having a
flashpoint at or above 100 deg.F but below 200 deg.F, except any
mixture having components with flashpoints of 200 deg.F or higher, the
total volume of which make up 99% or more of the total volume of the
mixture. Commenters stated that it would be preferable to have our
definition of combustible liquid coincide with OSHA's definition,
because many facilities are covered by both rules.
We believe that the proposed definition of combustible liquid is
compatible with OSHA's definition. We had proposed to list the various
classes of combustible liquids to match the definition in other MSHA
standards. In response to comments, however, the interim final rule
does not list these classes of combustible liquids. The interim final
rule defines combustible liquid as a liquid having a flashpoint at or
above 100 deg.F (37.8 deg.C) and below 200 deg.F (93.3 deg.C) or a
liquid mixture having components with flashpoints of 200 deg.F
(93.3 deg.C) or higher, the total volume of which make up 99% or more
of the mixture. The definition in HazCom is the same as in OSHA's HCS.
(2) Compressed gas. We defined compressed gas to mean a contained
gas or mixture of gases with an absolute pressure exceeding 40 psi
(pounds per square inch) [276 kPa (kiloPascals)] at 70 deg.F
(21.1 deg.C) or 104 psi (276 kPa) at 130 deg.F (54.4 deg.C) regardless
of pressure at 70 deg.F. In addition, we consider a liquid to be a
compressed gas when its vapor pressure exceeds 40 psi (276 kPa) at
100 deg.F (37.8 deg.C), as determined by ASTM D-323-72. This definition
is consistent with OSHA's HCS and is unchanged in the interim final
rule.
One commenter stated that the definition of compressed gas includes
compressed air in motor vehicle tires and air compressors. Although
compressed air meets the definition in HazCom for a compressed gas, an
inflated tire is an article and exempt from HazCom. Also, an inflated
tire is part of a motor vehicle and, thus, is not a container under
HazCom. Neither do we consider compressed air in a tire or compressor
to be a hazardous chemical under HazCom. A shop compressor contains
compressed, ambient air and, unlike compressed gas cylinders, it is
equipped with a safety valve to release excess pressure. We recognize
that serious hazards exist when working with inflated tires and
compressed air receivers, but we address these hazards in our safety
standards. We do not require an MSDS or a label for compressors or
compressed air.
(3) Explosive. We defined explosive in the proposed rule in the
same way as it is defined in OSHA's HCS and added a reference to
Department of Transportation requirements. There were a number of
comments that objected to the use of an incorporation by reference. In
response to comments, we eliminated this reference in the interim final
rule and rely on the more familiar definition of explosive as a
chemical that undergoes a rapid chemical change causing a sudden,
almost instantaneous release of pressure, gas, and heat when subjected
to sudden shock, pressure, or high temperature. We intend this
definition to cover the same substances that were covered in the
proposal, and we believe the term will be better understood by the
mining industry.
(4) Flammable. We defined flammable in the proposed rule as a
chemical that is an aerosol, a gas, a Class I liquid, or a solid that
would meet specific criteria relating to its capability to ignite, to
burn, and to sustain a flame. The proposal referenced testing methods
in 16 CFR and classifications of explosives in 49 CFR, but did not
include a specific publication date. A commenter requested that we
include the dates of publication for references in the definition of
flammable. This commenter also stated that unless--
* * * operational definitions are included in the rule, it is
difficult to understand, and becomes a deterrent to compliance. The
mine supervisor should be able to look at the definition and
determine if an item such as a conveyor belt is flammable.
As with the term explosive, we recognize that the proposed
definition was highly technical and that a simpler, more generally
understood definition would better serve the industry. Accordingly, and
in response to comments, the interim final rule defines a flammable
chemical as one that will readily ignite and, when ignited, will burn
persistently at ambient temperature and pressure in the normal
concentration of oxygen in the air. We intend that this definition
include the same chemicals as would have been included under the
proposed definition and under OSHA's HCS. We will include the more
technical definition in the Compliance Guide for this rule.
We did not define flashpoint in the interim final rule. We believe
that qualified persons who already know the meaning of the term will be
determining a chemical's flashpoint.
(5) Organic peroxide. The proposal defined organic peroxide as an
explosive, shock sensitive compound or an oxide that contains a high
proportion of oxygen-superoxide. We received no specific comments on
this definition. It is unchanged in the interim final rule except for
the addition of the word ``organic'' to the description of the
chemical. We intend the definition in HazCom to be essentially the same
as in OSHA's HCS. OSHA defined organic peroxide as--
* * * an organic compound that contains the bivalent -O-O-
structure and which may be considered to be a structural derivative
of hydrogen peroxide where one or both of the hydrogen atoms has
been replaced by an organic radical.
(6) Oxidizer. The proposal defined oxidizer as a chemical other
than a blasting agent or explosive as classified in 49 CFR 173.53,
173.88, 173.100 or 173.114(a) that initiates or promotes combustion in
other materials, thereby causing fire by itself or through the release
of oxygen or other gases. This definition is consistent with the
definition for oxidizer in OSHA's HCS. A commenter objected to our
referencing 49 CFR in our definition of this term. In response to
comments, we eliminated the reference from the interim final rule. We
will include these further explanatory details in the Compliance Guide
for HazCom.
(7) Pyrophoric. The interim final rule retains the proposed
definition of pyrophoric with minor editorial changes. This definition
is consistent with that in OSHA's HCS.
(8) Unstable (reactive). We defined unstable (reactive) in the
proposal and interim final rule as a chemical which in the pure state,
or as produced or transported, will vigorously polymerize, decompose,
condense, or become self-
[[Page 59088]]
reactive under conditions of shock, pressure, or temperature. This
definition is consistent with OSHA's HCS.
(9) We defined water-reactive in the proposal and interim final
rule as a chemical that reacts with water to release a gas that is
either flammable or a health hazard. This definition is consistent with
that in OSHA's HCS.
Produce. We defined produce in the proposal as to ``manufacture,
process, formulate, or repackage.'' This definition, together with the
definition for use, is intentionally broad to include any situation
where a hazardous chemical is present in such a way that a miner may be
exposed.
We received a few comments supporting the proposed definition and
no comments specifically opposing it. Other comments, however, are
applicable to this issue. For example, one commenter suggested that we
exempt certain mine emissions, such as diesel exhaust and welding
fumes, from the MSDS requirements of HazCom. This commenter stated that
the composition of these produced chemicals can vary so much that not
even ``* * * generic MSDSs, created by MSHA as assistance to mine
operators, will be very useful.'' Another commenter on the definition
of chemical also assumed that it includes the byproducts of mining
activities, such as diesel exhausts. This commenter stated that
``constituent ingredients in diesel exhaust--nitrogen, carbon, and
sulfur oxides, organic vapor, diesel particular matter--would have to
be subject of this standard also.''
The interim final rule defines produce as to ``manufacture,
process, formulate, generate, or repackage.'' By adding the term
``generate'' to the proposed definition, we clarify our intent that
HazCom apply to byproducts of mining activities. For example, HazCom
would apply to diesel emissions, the inadvertent generation of cyanide
in a storage tank, or welding fumes from construction or repair of
machinery. As explained under the definition for chemical, the
byproducts of mining activities may be covered in the MSDS for the
initial chemical or separately for the hazardous chemical byproduct
itself. Also, you may develop an MSDS for a process if that is more
relevant to the chemical hazard. For the most part, solid waste sites
and tailings ponds are covered by other MSHA, Federal, or State
standards. You already must train miners about these hazards and
appropriate safe work practices and protective measures.
Raw material. In the proposal, we defined raw material as a
mineral, or combination of minerals, that is extracted from natural
deposits by mining or is upgraded through milling. The proposed
definition added that the term applied to the ore and valuable minerals
extracted, as well as to the worthless material, gangue, or overburden
removed during the mining or milling process. One commenter agreed that
this definition correctly includes the tailings from crushed stone, and
sand and gravel operations. Another commenter wanted to substitute the
word ``material'' for ``mineral'' in the definition of raw material,
stating that--
The term ``mineral'' has different uses in different areas of
mining and geology that imply different definitions. The term
``material'' should be substituted in this definition as a more
generic and less restrictive term for ``mineral.''
The interim final rule does not incorporate this suggestion, but
retains the proposed definition of raw material with minor editorial
changes. Our intent is that raw material be limited to minerals.
Trade secret. Like the proposal, the interim final rule defines
trade secret as any confidential formula, pattern, process, device,
information, or compilation of information that is used by the operator
to give him or her an opportunity to obtain an advantage over
competitors who do not know or use it. This definition is taken from
the Restatement of Torts Sec. 757, comment b (1939). HazCom allows you
to withhold the identity of the chemical declared a trade secret under
certain conditions. It requires that you provide the miners with all
other pertinent HazCom information, though not process or percentage of
mixture information.
One commenter was concerned that trade secret, as defined in the
proposal, would allow you to arbitrarily restrict access. This
commenter also recommended that the final rule include Appendix D from
OSHA's HCS, which would reprint the entire Restatement of Torts
comment, to guide you in applying the trade secret definition. Another
commenter saw extremely limited utility and could find no reason to
include this appendix.
We do not believe that this appendix is necessary. As stated in the
preamble to the proposal, the Restatement of Torts indicates that there
are at least six well-accepted factors in establishing a trade secret
claim. Those six factors are--
(1) The extent to which the information is known outside of the
business;
(2) The extent to which information is known by employees and
others involved in the business;
(3) The extent of measures taken by the business to guard the
secrecy of the information;
(4) The value of the information to the business and its
competitors;
(5) The amount of effort and money expended in developing the
information; and
(6) The ease or difficulty with which the information could be
properly acquired or duplicated by others.
We believe these principles provide sufficient guidance in
determining the legitimacy of a trade secret claim without publishing
an appendix. We considered including several of the proposed appendices
in the interim final rule. We determined, however, that the overall
effect of these additions was to obscure rather than clarify the
requirements. Instead, we intend to publish a Compliance Guide, a
Toolbox, and other information apart from HazCom to assist the industry
in complying.
Use. We defined use in the proposal as ``to package, handle, react,
or transfer.'' OSHA has defined use as ``to package, handle, react,
emit, extract, generate as a byproduct, or transfer.'' We did not
include the terms ``extract, emit, or generate as a byproduct'' because
we believe they are already covered under the definition for produce.
The interim final rule is the same as the proposal in this respect. We
intend this definition to be broad enough to include any situation
where a hazardous chemical is present in such a way that a miner may be
exposed.
Work area. We defined work area in the proposal as a room or
defined space in a workplace (now a mine) where hazardous chemicals are
produced or used and where employees (now miners) are present. The
interim final rule changes the definition of work area to mean any
place in or about a mine where a miner works or a chemical is used or
produced to make HazCom's definition more consistent with common
understanding and retain its application to the presence of chemicals.
The definition is consistent with the intent of the proposal, but
clarifies the conditions that must be present for a work area. We were
going to use the more familiar term ``working place,'' but it has
different meanings for different segments of the mining industry.
Workplace. The proposal defined workplace as a mine, establishment,
job site, or project at one geographical location containing one or
more work areas. HazCom uses the term mine instead of workplace.
Because the interim final rule does not include the
[[Page 59089]]
term workplace, we removed its definition.
K. Appendices
The proposal contained three appendices. Appendix A, Health Hazard
Definition, a mandatory section providing additional details for the
proposal's definitions. Appendix B, Information Sources, was a
comprehensive advisory list of sources to evaluate the physical hazards
of chemicals and their specific health effects. Appendix C, Guidelines
for Operator Compliance, provided additional advisory guidance for
complying with the HazCom standard. The interim final rule does not
include these appendices. We also included a table of Hazard
Communication Chemicals, identified in the proposal as Table 1, which
was intended to help determine if a chemical was hazardous by listing
chemicals from MSHA's health standards, the ACGIH, the NTP, and IARC.
Table 1 has been deleted from the interim final rule. Much of this
information will be included in a HazCom Toolbox to be published
separately from the interim final rule.
IV. Legal Authority and Feasibility
The primary purpose of the Federal Mine Safety and Health Act of
1977 (Mine Act) is to ensure safe and healthful working conditions for
the Nation's miners. One means established by Congress to achieve this
goal is the authority vested in the Secretary of Labor (Secretary) to
set mandatory safety and health standards. The HazCom interim final
rule is being promulgated as a mandatory safety and health training and
information standard under Sec. 101 and Sec. 115 of the Mine Act.
A. Statutory Requirements
Section 101(a)(6)(A) of the Mine Act applies to all mandatory
standards involving toxic materials or harmful physical agents. It
requires us to set standards to ensure that a miner will not suffer a
material impairment of health or functional capacity as a result of
exposure to the hazard, even if the miner is exposed for his or her
working life. We must also consider the latest scientific data in the
field, feasibility of the standard, and experience gained under this
and other health and safety laws.
Material impairment. Section 101(a)(6)(A) of the Mine Act and
Sec. 6(b)(5) of the Occupational Safety and Health Act (OSH Act)
contain similar statutory language. Both statutory sections contain
provisions indicating that mandatory standards must be designed to
prevent ``material impairment of health or functional capacity * * *''
The Supreme Court has indicated, in discussing significant risk of
material impairment of health in the context of litigation under
Sec. 6(b)(5) of the OSH Act, that the significant risk determination
constitutes a finding that, absent the change in practices mandated by
the standard, the workplaces in question would be ``unsafe'' in the
sense that workers would be threatened with a significant risk of harm.
[Industrial Union Dept. v. American Petroleum Institute, 448 U.S. 607,
642 (1980) (Benzene)]. This finding, however, does not require
mathematical precision or anything approaching scientific certainty if
the ``best available evidence'' does not warrant that degree of proof.
[Id. at 655-656]. Rather, the agency may base its findings largely on
policy considerations and has considerable leeway with the kinds of
assumptions it applies in interpreting the supporting data. [Id. at
656].
Feasibility. The Mine Act and the OSH Act also have similar
statutory requirements regarding ``feasibility.'' While Sec. 6(b)(5) of
the OSH Act requires that standards assure, ``to the extent feasible, *
* * that no employee will suffer material impairment of health or
functional capacity,'' Sec. 101(a)(6)(A) of the Mine Act requires us to
consider ``the feasibility of the standard * * *.'' In addition, the
legislative history of the Mine Act specifically cites feasibility
cases decided under the OSH Act and strongly suggests that
``feasibility'' principles applicable to OSHA standards are also
applicable to MSHA standards. [S. Rep. No. 95-181, 95th Cong., 1st
Sess. 21 (1977)]. The legislative history of the Mine Act also states
that:
In adopting the language of [this section], the Committee wishes
to emphasize that it rejects the view that cost benefit ratios alone
may be the basis for depriving miners of the health protection which
the law was intended to insure. Id.
Though the Mine Act and its legislative history are not specific in
defining feasibility, the Supreme Court clarified its meaning in
American Textile Manufacturers' Institute v. Donovan [452 U.S. 490,
508-509 (1981) (Cotton Dust)]. In that case, the Court defines the word
``feasible'' as ``capable of being done, executed, or affected.'' The
Court stated, however, that a standard would not be considered
economically feasible if it threatened an entire industry's competitive
structure. In promulgating standards, agencies do not have to rely on
hard and precise predictions regarding feasibility. We need only base
our projections on reasonable inferences drawn from existing facts.
Thus, to establish the economic and technological feasibility of a new
rule, we must assess the likely range of costs that it will impose on
mines, and show that a reasonable probability exists that a typical
mine will be able to meet the standard.
Also, the 11th Circuit, in National Mining Association v. Secretary
of Labor [153 F.3d 1264 (1998) (single sample)], has stated that we are
required to comply not only with the procedural provisions of Sec. 101
of the Mine Act when developing, promulgating, and modifying mandatory
safety and health standards, but with all provisions of that section,
including showings of feasibility, best available evidence, latest
available scientific data, and experience. Accordingly, when
developing, promulgating, and modifying mandatory standards, we must
enact the most protective standard possible to eliminate a significant
risk of material health impairment, subject to the constraints of
technological and economic feasibility.
Also, Sec. 101(a)(7) requires that any health or safety standard
promulgated under the authority of Sec. 101(a) of the Mine Act must--
* * * prescribe the use of labels or other appropriate forms of
warning as are necessary to insure that miners are apprised [sic] of
all hazards to which they are exposed, relevant symptoms and
appropriate emergency treatment, and proper conditions and
precautions of safe use or exposure.
These requirements provide basic protections for workers in the absence
of specific permissible exposure limits.
B. Finding of Significant Risk
We have determined that hazardous chemicals are found in all mining
environments and that many operators and miners are not sufficiently
aware of the presence of these hazardous chemicals nor the nature of
the hazards. Also, we have determined that this lack of knowledge
increases a miner's risk of suffering a chemically-related occupational
illness or injury, because precautions and appropriate protective
measures are used only when the presence of a chemical hazard is known.
Communicating this information to miners is intended to reduce the
incidence of chemically-related occupational illnesses and injuries in
the mining industry by changing the workplace behavior of miners and
mine operators to reduce the risk of harmful exposures.
The provisions of this interim final rule--hazard evaluations,
written
[[Page 59090]]
HazCom programs, labels and other forms of warning, MSDSs, and miner
training--are directed not only at the identification of hazardous
chemicals at the mine, but more significantly at the mitigation of
their hazards. The probability of harm will decrease largely as a
result of operators' and miners' increased awareness of the hazardous
nature of the chemicals and the protective measures to avoid harmful
exposures. Increased care and use of protective measures when working
around hazardous chemicals will reduce the incidence of chemically-
related illnesses and injuries at mines.
The information provided under this interim final rule also will
enable health and safety professionals to provide better services to
exposed miners. The ready availability of health and safety
information, such as signs and symptoms of exposure, will aid medical
surveillance and the early detection and treatment of problems. It also
will help you make better decisions regarding exposure monitoring,
process or exposure controls, and appropriate personal protective
equipment. Because our rulemaking record clearly indicates that
inadequate communication about serious chemical hazards endangers
miners, and that the requirements of this standard are necessary and
appropriate for the elimination or mitigation of these hazards, we are
able to make the threshold ``significant risk'' determination.
Several commenters indirectly suggested that we needed to find
significant risk for each chemical covered and for each exposure
situation. We address these comments in more detail in our discussion
of Sec. 47.2, Operators and chemicals covered. It is clear from
relevant court decisions involving OSHA's HCS, however, that a specific
finding of significant risk is not required for a standard such as
this, where the significant risk being regulated is that of inadequate
knowledge.
In Associated Builders & Contractors v. Brock [862 F.2d 63 (1988)],
industry confronted the 3rd Circuit Court with a similar argument
involving the OSHA HCS and OSHA's general finding of significant risk.
Industry argued that the standard was invalid because OSHA had
promulgated it without a significant risk determination. Industry also
claimed that OSHA needed to find significant risk for each chemical
covered and for each industry covered. The court disagreed with
industry and ruled that the general significant risk finding for the
original 1983 rule was appropriate for the entire manufacturing sector,
and that it was also applicable to each of the 20 major Standard
Industrial Classification (SIC) Code manufacturing subdivisions [Id. at
67].
The court also stated that OSHA was not required to determine
significant risk for each chemical covered under the rule because the
rule was not a substance based rule, but an information disclosure
standard. The court concluded that--
* * * there is no more obvious need for industry specific
significant risk determinations for the (non-manufacturing)
industries than for subdivisions of the manufacturing sector. [Id.
at 67-68]
Specifically, the court held that:
* * * for this performance-oriented information disclosure
standard covering thousands of chemical substances used in numerous
industries, the significant risk requirement must of necessity be
satisfied by a general finding concerning all potentially covered
industries. A requirement that the Secretary assess risk to workers
and the need for disclosure with respect to each substance in each
industry would effectively cripple OSHA's performance of the duty
imposed on it by 29 U.S.C. 655(b)(5); a duty to protect all
employees, to the maximum extent feasible. [Id. at 68]
OSHA was not required to assess individually the significant risk
that would be alleviated by the HCS's application to each of the
seventy major business classifications, much less for each of the
hazardous substances used in those industries. In addition, OSHA's
application of the 1983 general finding of significant risk to the
construction and grain processing and storage industries was upheld by
the 5th Circuit in National Grain and Feed Association v. OSHA [866
F.2d 717 (1989)(petition for review of OSHA's modified HCS as it
applied to the construction and grain processing and storage
industries)].
Because our HazCom rule was modeled on OSHA's HCS, and the Mine Act
and OSH Act are similar with respect to the regulatory requirements for
the promulgation of mandatory safety and health standards, we believe
that we have satisfied our statutory threshold of significant risk with
our general finding of risk presented in this section. We conclude that
neither the record evidence nor policy considerations support the
argument that we should apply HazCom only where chemical exposures pose
known significant risks. We find that the risk of harm to miners will
increase if operators allow a condition or situation to develop that
poses a significant risk of harm to miners before providing the
potentially exposed miners with chemical hazard information.
In addition, in light of Sec. 101(a)(7) of the Mine Act which
requires us to ``insure that miners are apprised [sic] of all hazards
to which they are exposed,'' you must inform miners about all hazards
before the miner could be exposed to them. Linking the application of
HazCom to a risk level is contrary to the standard's purpose--to change
operator and miner behavior before an illness or injury occurs by
preventing exposure.
Likewise, requiring information disclosure only in situations where
exposure might exceed a PEL or ACGIH TLV is not consistent with the
purpose of the rule. HazCom is intended to address all hazardous
chemicals at mines. The range of hazards and concentrations are too
diverse to address through a single measurement. Also, some chemicals
are highly hazardous even in small amounts or low concentrations. A de
minimis exemption, therefore, would not provide sufficient protection
to miners and would not address the true issue of concern--informing
miners of potential hazards. Exposure limits address a limited number
of the hazardous chemicals encountered at the mine. Also, PELs are used
to control inhalation exposures. Because the definition of exposure in
HazCom includes absorption through the stomach or skin, in addition to
the lungs, the exposure limits might be unrelated to the total exposure
experienced by a miner. In certain circumstances, the most significant
route of exposure may be through the stomach or skin.
These HazCom requirements are both necessary and appropriate to
protect miners, even when we have not determined that the level of risk
from a particular chemical exposure warrants a substance-specific
standard that would require more complex and costly types of controls.
We conclude that operators must obtain information for all hazardous
chemicals to which miners can be exposed and provide it to miners,
regardless of any judgments about possible levels of risk.
C. Finding of Feasibility
Only one commenter claimed that a provision was infeasible, stating
that those working in isolated workplaces could not have immediate
access to MSDSs. The interim final rule allows MSDSs to be kept in a
central location, as well as electronic access.
The record contains substantial evidence of feasibility. We
conclude that these administrative requirements can be merged
economically into present practices. The performance-oriented,
informational provisions of HazCom are capable of being done and
[[Page 59091]]
will not threaten the viability or long-term profitability of the
mining industry.
This standard does not relate to activities on the frontiers of
scientific knowledge. The informational requirements contained in this
interim final rule are not the sorts of obligations that approach the
limits of feasibility. There are no technological barriers preventing
implementation of the HazCom requirements because most of these
requirements are accepted, common business practices that are
administrative in nature.
As estimated in our Regulatory Economic Analysis (REA) supporting
this HazCom interim final rule, the mining industry will incur costs of
about $5.7 million annually to comply with the interim final rule.
These compliance costs represent much less than 1% (about 0.01%) of
mining industry annual revenues of $59.7 billion and provide convincing
evidence that the interim final rule is economically feasible.
1. Compliance Burden
We intend a number of factors to reduce the compliance burden
associated with MSHA's HazCom interim final rule. The rule is closely
modeled on OSHA's HCS and informational materials, training aids, and
model training programs, developed and made widely available by both
OSHA and commercial sources, will help mine operators comply. We are
developing a HazCom Toolbox, designed particularly for small mine
operators, that will provide MSDSs, labels, and formal programs for
ease-of-use and ready adaptability. We will focus state grants on
including HazCom training and informational materials, and will have
trainers and videos available. Although we do not intend to conduct
HazCom training for the mining industry, we will provide information
and assistance to trainers through our Mine Health and Safety Academy,
Educational Field Services, and the MSHA district offices.
Finally, we have simplified the language of the rule to make it
easier to understand and, thus, easier to comply with.
2. Flexibility of Program
We wrote or revised the major provisions of the HazCom rule to
provide the most flexibility possible that also ensured an enforceable
interim final rule.
List of chemicals. Mine operators can compile the list for the mine
or individual work areas. We did not specify a format or chemical
identification system, which will allow operators great latitude in how
they identify their chemicals.
Hazard determination. We did not specify the format and criteria
for establishing hazard determination procedures. Operators have
considerable discretion in how they conduct the determination, so long
as others can understand how they made their determinations.
Exchanging information. We used performance language rather than
specification language in requiring operators to establish a way to
exchange information with other operators on-site.
Labels. The label requirements in the interim final rule are
performance-oriented, flexible, and consistent with the proposal and
OSHA's HCS. Therefore, labels that comply with OSHA's HCS will comply
with HazCom. The interim final rule does not require operators to label
for downstream users; re-label containers of hazardous materials that
are labeled in accordance with other Federal standards; update labels
that they did not prepare; nor label chemicals in a particular format.
They may substitute various types of standard operating procedures,
process sheets, batch tickets, blend tickets, and similar written
materials for container labels on stationary process equipment. The
interim final rule is deliberately flexible to allow for the adoption
of an international system for classifying and displaying hazard
information, when it becomes available. We are not requiring that
operators label raw materials at a mine.
Training. Relevant training that meets OSHA's HCS will comply with
HazCom. Operators can combine HazCom training with pre-existing
requirements under parts 46 and 48. We delayed the HazCom rule's
effective date until 1 year from its date of publication in the Federal
Register to allow operators the flexibility to include HazCom training
in their annual refresher training under parts 46 and 48. Operators can
use instructors already on staff qualified under parts 46 and 48.
MSDS. We did not require that MSDSs be in a particular format, only
requiring certain basic information. Operators must only provide an
MSDS for a mine product upon request. We are also allowing the MSDS to
be in an electronic medium.
Hazardous waste. Operators are not required to have an MSDS for
hazardous waste although they must make any relevant information
available to the miner.
D. Petitions for Modification
Our classification of HazCom as both a safety and a health standard
impacts whether operators or representative of miners can petition us
for a modification. Under Sec. 101(c) of the Mine Act, operators or
representatives of miners may petition us to modify the application of
a mandatory safety standard, but not a health standard. Because the
HazCom standard is being promulgated as both a health and safety
standard, operators may not petition us for a modification. To allow as
much compliance flexibility as possible, the final HazCom requirements
are performance oriented. We cannot envision any equally protective
alternatives that HazCom does not already allow.
V. The Regulatory Flexibility Act, the Small Business Regulatory
Enforcement Fairness Act, and Executive Order 12866
The Regulatory Flexibility Act (RFA) requires a regulatory agency
to evaluate each proposed and final rule and to consider alternatives
so as to minimize the rule's impact on small entities (businesses and
local governments). Under the RFA, we must use the Small Business
Administration's (SBA) definition of a small entity in determining a
rule's economic impact unless, after consultation with SBA, we
establish a different definition.
In the preamble to our HazCom proposal, we certified that this rule
would not have a significant economic impact on a substantial number of
small mining operations. The preamble also included a full discussion
of the regulatory alternatives that we were considering and invited the
public to comment.
In 1996, Congress enacted the Small Business Regulatory Enforcement
Fairness Act (SBREFA) amending the RFA. SBREFA requires a regulatory
agency to include in the preamble to a rule the factual basis for that
agency's certification that the rule has no significant impact on a
substantial number of small entities. The agency then must publish the
factual basis in the Federal Register, followed by an opportunity for
public comment. Although SBREFA did not exist when we published the
HazCom proposal, we published a notice reopening the record in March
1999, to give you an opportunity to comment on the factual basis for
our previous certification that the HazCom proposal would pose ``no
significant impact.''
This rule has been drafted and reviewed in accordance with
Executive
[[Page 59092]]
Order (E.O.) 12866, Sec. 1(b), Principles of Regulation. E.O. 12866
requires a regulatory agency to assess both the costs and benefits of
proposed and final rules and to complete a Regulatory Economic Analysis
(REA) for any rule having major economic consequences for the national
economy, an individual industry, a geographic region, or a level of
government. We prepared a REA and Regulatory Flexibility Certification
Statement to fulfill the requirements of the RFA and E.O. 12866. Based
on our REA, we determined that this interim final rule is not an
economically significant regulatory action pursuant to Sec. 3(f)(1) of
E.O. 12866. Because it affects all mining operations, almost all of
which are small businesses using SBA's definition of a small business,
we determined that this interim final rule is significant under
Sec. 3(f)(4) of E.O. 12866. This section defines a significant
regulatory action as one that may--
* * * Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
this Executive Order.
The REA is available on request from MSHA, Office of Standards,
Regulations, and Variances, 4015 Wilson Boulevard, Arlington, VA 22203
or from our Internet Home Page at www.msha.gov.
A. Alternatives Considered
In accordance with Sec. 604 of the RFA, we are including a
discussion of the regulatory alternatives considered in developing this
interim final rule. We used OSHA's HCS as a model for the proposed
rule. For the interim final rule, we also considered suggestions from
commenters to the proposal. In part, the limited impact of the interim
final rule on small mines reflects our decision not to require more
costly alternatives. Most of the alternatives addressed the scope of
the standard--what would be covered and what would be exempt. The
interim final rule did not adopt any alternatives that were not
discussed in the proposal. In response to comments, we did adopt
several provisions that differ from the proposal or OSHA's HCS.
1. The proposal would have exempted hazardous waste regulated by
EPA under the Resource Conservation and Recovery Act from both the
labeling and MSDS provisions of HazCom. The interim final rule does not
exempt hazardous waste regulated by EPA from labeling and MSDSs. We
determined that such an exemption would put miners at risk of a
potential injury or illness.
2. As proposed, the interim final rule exempts the raw material
being mined or milled from labeling while on mine property.
3. The proposed rule exempted from HazCom's labeling requirements
certain hazardous substances regulated and labeled under the authority
and standards of other Federal agencies. These hazardous substances
include cosmetics, drugs, tobacco products, foods, food additives, and
color additives which are labeled in accordance with the requirements
of the Food and Drug Administration or the Department of Agriculture.
The interim final rule extends these exemptions to the full scope of
the rule rather than to labeling only.
4. To be consistent with OSHA's HCS, we included exemptions from
labeling for hazardous substances that EPA or other Federal agencies
require to be labeled for hazards.
5. The proposal would have allowed you to not label temporary,
portable containers of a hazardous chemical that was to be used only by
the miner who transferred it from its labeled container. The interim
final rule allows other miners to use the hazardous chemical from the
unlabeled container if you ensure that all miners know the chemical's
identity, its hazards, and protective measures; and that you ensure the
container is left empty at the end of the shift.
6. In the proposal, we would have required you to label containers
of your hazardous product or provide a copy of the labeling information
with the first shipment to an employer. The interim final rule does not
require you to label your hazardous product for sale to customers who
are employers. Rather, we require you to provide the label or labeling
information and an MSDS when requested.
7. The interim final rule allows you to credit relevant training
provided for compliance with other MSHA standards or OSHA's HCS to meet
HazCom's training requirements and we require training records.
B. Consultation With SBA
The RFA requires regulatory agencies to consult with SBA's Chief
Counsel for Advocacy about regulations that have an impact on small
entities. The RFA also requires us to use SBA's definition of a small
entity in determining a rule's economic impact. To comply with this
law, we consulted with SBA about this rule and our certification of no
significant economic impact on small mines. For the mining industry,
SBA defines ``small'' as a business with 500 or fewer employees (13 CFR
121.201). Almost all of the coal and M/NM mines fall into this
category. To establish an alternative definition for the mining
industry, after consultation with SBA, we must publish that definition
in the Federal Register providing an opportunity for public notice and
comment.
Traditionally, for regulatory purposes over the past 20 years, we
have considered a mine ``small'' if it employs fewer than 20 miners and
``large'' if it employs 20 or more. These small mines differ from
larger mines not only in the number of employees, but also, among other
things, in economies of scale in material produced, in the type and
amount of production equipment, and in supply inventory. Their costs of
complying with the interim final rule and the impact of the interim
final rule on them will also differ. It is for this reason that ``small
mines,'' as traditionally defined by the mining community, are of
special concern to us.
For purposes of the REA and to comply with the RFA, we analyzed the
impact of the interim final rule on mines using SBA's definition of
``small,'' as well as our traditional definition.
C. Compliance Costs
We estimate that the total net yearly cost of the final HazCom rule
(30 CFR part 47) will be about $5.7 million. Table 4 summarizes our
estimate of the yearly costs by mine size and by major provision. These
costs reflect first year (one-time, start-up) costs of $15 million and
annually recurring costs of $4.7 million. HazCom will affect all coal
and M/NM mines; some only insignificantly.
[[Page 59093]]
Table 4.--Yearly Costs for HazCom Interim Final Rule by Provision, Commodity, and Mine Size \*\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Provision
--------------------------------------------------------------------------------
Mine size Written HazCom Total
program Labels MSDSs training Access
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coal Mines and Independent Contractors
--------------------------------------------------------------------------------------------------------------------------------------------------------
20...................................................... $375,300 $15,700 $134,400 $284,300 $137,500 $947,300
20........................................... 258,500 6,231 84,900 261,000 132,200 742,800
--------------------------------------------------------------------------------------------------------------------------------------------------------
M/NM Mines and Independent Contractors (M/NM)
--------------------------------------------------------------------------------------------------------------------------------------------------------
20...................................................... 1,062,900 31,800 450,700 963,000 486,100 2,994,400
20........................................... 244,300 9,200 94,700 352,900 309,100 1,010,100
-----------------------------------------------------------------------------------------------
All Mining.......................................... 1,941,000 63,000 764,600 1,861,100 1,064,900 5,694,600
--------------------------------------------------------------------------------------------------------------------------------------------------------
\*\ Values are rounded.
D. Regulatory Flexibility Certification and Factual Basis
Based on our analysis of costs and benefits in the REA, we certify
that this HazCom interim final rule will not have a significant
economic impact on a substantial number of small mining entities using
either SBA's or our traditional definition of ``small.''
1. Derivation of Costs and Revenues
In this interim final rule, both coal and M/NM mines must absorb
compliance costs. We examined the relationship between costs and
revenues for the coal and M/NM mine sectors as two independent
entities, rather than combining them into one category. All cost
estimates in this chapter are presented in 1998 dollars.
For this interim final rule, we estimated the one-time costs,
annualized costs (one-time costs amortized over a specific number of
years), and annual costs. One-time costs are those that are incurred
once and do not recur. For example, the cost to develop a written
procedural program occurs only once. For the purpose of this REA, we
amortized one-time costs over an infinite life resulting in an
annualized cost equal to 7% of the one-time cost. Converting one-time
costs to annualized costs allows us to add them to annual costs in
order to compute a combined yearly cost for the rule. Annual costs are
those that normally recur annually. Three examples of annual costs are
maintenance costs, operating expenses, and recordkeeping costs.
Commenters to the recent request for information on the economic
impact of HazCom on small mines expressed their belief that we
underestimated the costs. Commenters stated that costs for gathering
MSDSs and keeping them updated could cost thousands of dollars per
year; that we had not included a cost for lost production; that
operators could not train miners or label containers for the $10 per
miner that we estimated as the cost of the rule; and that the wage
rates were two to three times too low because consultants, not mine
employees, would be conducting the hazard evaluation.
We believe that the cost estimates in the final REA, $5.7 million
affecting about 193,000 miners or about $30 per miner, represent a
reasonable approximation of the burden on operators for the following
reasons.
First, we have existing standards for training. We did not
calculate a cost for miners to attend training or for lost production
because the HazCom training can be accomplished during annual refresher
training or task training, both of which require operators to cover
health and safety hazards. Our recent final training rules, both the
new part 46 and the modified part 48, give operators more flexibility
in developing training courses to meet the changing needs of the miners
and the changing hazards of the mine environment. For example, these
training standards allow the operator to adjust the amount of time
spent on each topic. This, in turn, allows the operator to spend more
of the training time on mine-specific, task-specific, or new
information, tailored to their assessment of the miners' training
needs. Operators can credit relevant training already provided to
comply with HazCom training requirements. In addition, we delayed the
effective date of the rule for one year to give operators the time
needed to incorporate the HazCom training into their mines' training
cycles. Training costs for HazCom include the time to develop a HazCom
training course, time for the instructor to prepare the lesson, the
cost for training materials, and the time for making a record of the
training.
Second, we have existing standards for labeling. We calculated only
a small cost for labels because most hazardous chemicals are already
labeled by the manufacturer or supplier before they are brought to the
mine, our existing standards require hazardous materials to be labeled,
and HazCom exempts the raw materials being mined or milled from
labeling. The small cost is for labeling storage tanks of bulk
hazardous materials and portable transport containers, as necessary,
and for replacing damaged or missing labels.
Third, OSHA's HCS has had widespread impact on State right-to-know
regulations and, indirectly, on the mining industry. All operators
already comply with some of the provisions of this interim final rule
(at least labeling and training). Some comply with most or all of the
provisions because of existing Federal, State, or local regulations;
voluntarily because of corporate policy; or because they work in
industries under OSHA jurisdiction, as well as in the mining industry.
Finally, we are developing compliance aids to reduce the burden on
operators, especially small operators. These include generic HazCom
programs, MSDSs for common minerals and common hazardous chemicals at
mines, generic training programs, training materials, and videos (some
to help the operator develop a HazCom program and some to use in
training the miner). We will also provide training and compliance
assistance through state grants, MSHA health specialists, and our
Educational Field Services so that you can understand the rule and
comply yourself. The benefit we see is that if you develop your program
yourself to meet the unique needs of your operation, you will be better
prepared to maintain it. HazCom's effective date is one year after the
publication of the rule. During this period, we will make
[[Page 59094]]
every effort to help the industry gain compliance before HazCom goes
into effect.
Because of our commitment to help the mining industry, especially
small operators, implement a HazCom program with minimum burden, we do
not anticipate a need for them to hire consultants. We anticipate that
the vast majority of hazard determinations will be made by reading the
MSDS and label and acting accordingly. We assumed in our calculation of
wage rates that mine employees will conduct the hazard determination
rather than consultants and this is appropriate for the industry.
In determining revenues for coal mines, we multiplied mine
production data (in tons) by the estimated price per ton of the
commodity ($17.58 per ton in 1998). We obtained production data from
our CM441 reports \6\ and the price estimates from the Department of
Energy.\7\ Because we do not collect data on M/NM mine production, we
took the total revenue generated by the M/NM industry ($40 billion) \8\
and divided it by the total number of employee hours to arrive at the
average revenue per hour of employee production ($104.86). We then took
the $104.86 and multiplied it by the employee hours in specific size
categories to arrive at the estimated revenues for the size category.
---------------------------------------------------------------------------
\6\ MSHA's 1998 CM441 Report, cycle 1998/198.
\7\ U.S. Department of Energy, Energy Information
Administration, Annual Energy Review 1998, July 1999, p. 203.
\8\ U.S. Department of the Interior, U.S. Geological Survey,
January 1999, pp. 3 and 6.
---------------------------------------------------------------------------
2. Factual Basis for Certification
Whether or not compliance costs impose a ``significant'' impact on
small entities depends on their effect on the profits, market share,
and financial viability of small mines. To address these issues, we had
to determine whether compliance with HazCom will place small mines at a
significant competitive disadvantage relative to large mines or impose
a significant cost burden on small mines.
The first step in this determination is to establish whether the
compliance costs impose a significant burden on small mines in absolute
terms. For this purpose, we began with a ``screening'' analysis of
compliance costs relative to revenues for small mines. When estimated
compliance costs are less than 1% of estimated revenues, we conclude
that there is no significant impact on a substantial number of small
entities. When estimated compliance costs approach or exceed 1% of
revenue, we conclude that further analysis is needed.
The second step in this determination is to establish whether
compliance with HazCom will impose substantial capital or first-year,
start-up costs on small mines. Because financing is typically more
difficult or more expensive to obtain for small mines than for large
mines, initial costs may impose a greater burden on small mines than on
large mines. HazCom, however, does not require engineering controls or
other items requiring a substantial initial capital expenditure. The
initial costs associated with HazCom are those necessary to develop and
implement a HazCom program. Because this cost is well below 1% of
revenues, we do not consider it to be significant.
The third step in this determination is to establish whether there
are significant economies of scale in compliance that place small mines
at a competitive disadvantage relative to large mines. We investigated
economies of scale by calculating whether compliance costs are
proportional to mine employment. Although the annual compliance cost
per miner is greater for small operations than for large, this
difference is unlikely to provide strategic leverage because small
mines generate over 95% of the revenues in their respective markets.
Furthermore, total compliance costs will be greater, on average, for a
large mine than for a small mine.
3. Results of Screening Analysis
In all cases, the cost of complying with the interim final rule is
well below 1% of revenues.
For coal mines with fewer than 20 miners, the estimated
average yearly cost of HazCom is $190 per operation, which is about
0.14% of the average annual revenue per operation.
For coal mines with 500 or fewer miners, the estimated
average yearly cost is $270 per operation, which is about 0.01% of the
average annual revenue per operation.
For M/NM mines with fewer than 20 miners, the estimated
average yearly cost of HazCom is $230 per operation, which is about
0.02% of the average annual revenue per operation.
For M/NM mines with 500 or fewer miners, the estimated
average yearly cost is $270 per operation, which is less than 0.01% of
the average annual revenue per operation. As shown in Table 5,
compliance costs represent only about 0.01% of the value of mine
production.
Table 5.--Compliance Costs Compared to Revenue *
----------------------------------------------------------------------------------------------------------------
Total yearly
Small mines (1-500) Average cost cost Total revenue Cost as % of
per mine (millions) (millions) revenue
----------------------------------------------------------------------------------------------------------------
Coal............................................ $270 $1.69 $18,252 0.009
M/NM............................................ 269 4.00 35,137 0.011
----------------------------------------------------------------------------------------------------------------
* Includes independent contractors and their employees.
Because the cost of HazCom as a percentage of revenue is
considerably less than 1%, we believe that this result, in conjunction
with the previous analysis, provides a reasonable basis for the
certification of ``no significant impact'' in this case.
E. Benefits
In considering a HazCom standard, we reviewed chemically-related
injuries and illnesses reported to MSHA between January 1983 and June
1999. During this period, the mining industry reported almost 4,700
chemical burns crossing 57 commodities and 70 job classifications and
involving exposures to chemicals at all sizes and types of mines. This
same accident and injury data indicated more than 800 poisonings, 2,600
eye injuries, and 2,100 cases of dermatitis or skin injury as a result
of chemical exposures. These data only account for the acute effects of
chemical hazards, not the chronic effects which we know exist.
We conclude that miners face a significant risk from exposure to
hazardous chemicals. We further conclude that compliance with this rule
will prevent a substantial number of acute illnesses, injuries, and
fatalities, as well as long term cancer cases.
HazCom is an important means of ensuring that both operators and
miners are aware of the chemical hazards to
[[Page 59095]]
which they may be exposed at the mine. We anticipate that our HazCom
standard will enhance both operator and miner awareness of the safety
and health hazards associated with hazardous chemical substances in
such a way that both parties will take positive steps to lower
exposures, resulting in lower incidence of chemically-related injuries
and illnesses. Also, if the miner and operator know the potential
health effects from exposure to a chemical, they can forewarn their
doctor to watch for signs and symptoms of exposure and further reduce
the risk of injury by obtaining early diagnosis and treatment.
Based on our review and analysis of the available data, we estimate
that compliance with this rule will prevent one fatality every four
years, beginning when the rule takes effect, as well as an annual
average of 57 chemically-related acute injuries and illnesses (15 in
coal mines and 42 in M/NM mines). Of these 57 injuries and illnesses,
32 will result in 386 lost workdays and 25 will not require lost
workdays.
In addition, we expect that HazCom will prevent 76 cancer deaths
(51 in coal and 25 in M/NM) from year 11 through year 20 after
promulgation and 13.8 cancer deaths every year thereafter.
VI. Other Regulatory Considerations
We recognize that the mining industry has changed since 1990 when
we developed the Preliminary Regulatory Impact Analysis (PRIA) and
published the HazCom proposal. Most of the changes, however, decreased
the impact of HazCom on the mining industry. For example, the number of
mines and miners has decreased while the number of independent
contractors has increased. Independent contractors are more likely than
mines to have an existing hazard communication program because they are
more likely to work in operations under OSHA jurisdiction, as well as
in mines under MSHA jurisdiction. Similarly, more mines have a hazard
communication program now than in 1990 because the parent company also
has operations in industries subject to OSHA's HCS, or the mine is
located in a State with a State right-to-know law that covers mining.
We believe that these existing programs decrease the economic impact of
HazCom on the mining industry.
Another change that affects the hazard communication environment is
increased public awareness due to the length of time that the OSHA HCS
has been in effect. There is an abundance of hazard communication
information, supplies, training, and training aids readily available to
the public off-the-shelf or through the Internet.
On March 30, 1999, we reopened the rulemaking record (64 FR 15144)
for the limited purpose of receiving comments on several regulatory
mandates, some of which were not in existence when the Agency published
the hazard communication proposal in 1990. These statutory mandates and
Executive Orders require the Agency to evaluate the impact of a
regulatory action on small mines; on State, local, and tribal
governments; on the environment; on constitutionally protected property
rights; on the Federal court system; on children; on Indian tribal
governments; and on Federalism.
A. The National Environmental Policy Act of 1969
The National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et
seq.) requires each Federal agency to consider the environmental
effects of its actions. NEPA also requires an agency to prepare an
Environmental Impact Statement for major actions significantly
affecting the quality of the environment. We have reviewed HazCom in
accordance with the requirements of NEPA, the regulations of the
Council on Environmental Quality (40 CFR 1500), and the Department of
Labor's NEPA regulations (29 CFR 11). As a result of this review, we
determined that this interim final rule has no significant
environmental impact.
B. Unfunded Mandates Reform Act of 1995
For purposes of the Unfunded Mandates Reform Act of 1995, this rule
does not include any Federal mandate that may result in increased
expenditures by State, local, and tribal governments in the aggregate
of more than $100 million, or increased expenditures by the private
sector of more than $100 million.
C. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
HazCom is not subject to E.O. 12630 because it does not involve
implementation of a policy with takings implications.
D. Executive Order 12988: Civil Justice Reform
We have reviewed E.O. 12988 and determined that the HazCom interim
final rule will not unduly burden the Federal court system. We wrote
HazCom to provide a clear legal standard for affected conduct and have
reviewed it carefully to eliminate drafting errors and ambiguities.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
We have evaluated the environmental safety and health effects of
the rule on children and have determined that the interim final rule
will have no disproportionate effect on children.
HazCom is a health and safety information and training rule. It
does not set exposure limits or require controls. It can, however,
benefit children indirectly. One commenter to the reopened record
supported the interim final rule stating that--
Parents exposed to a genotoxic material could have their
reproductive genes damaged which, in turn, could result in miscarriages
or congenital or developmental impairments in their children;
Parents could bring home hazardous chemicals on their
clothing or their person which could result in children being injured
by contact with the parent; and
If parents knew that a chemical could adversely affect
their children, they would take more precautions to prevent their own
and their children's exposure.
F. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
We certify that the interim final rule does not impose substantial
direct compliance costs on Indian tribal governments.
Further, MSHA provided the public, including Indian tribal
governments which operated mines, the opportunity to comment during the
proposed rule's comment period. No Indian tribal government applied for
a waiver or commented on the proposal.
G. Executive Order 13132: Federalism
We have reviewed this rule in accordance with E.O. 13132 regarding
federalism, and have determined that it does not have ``federalism
implications.'' The rule does not ``have substantial direct effects on
the States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
List of Subjects
30 CFR Part 42
Education, Intergovernmental relations, Mine safety and health.
30 CFR Part 47
Chemicals, Hazard communication, Hazardous substances, Labeling,
[[Page 59096]]
Material safety data sheets, Mine safety and health, Reporting and
recordkeeping requirements, Right-to-know, Training.
30 CFR Part 56
Chemicals, Electric power, Explosives, Fire prevention, Hazardous
substances, Metals, Mine safety and health, Noise control, Reporting
and recordkeeping requirements.
30 CFR Part 57
Chemicals, Electric power, Explosives, Fire prevention, Gases,
Hazardous substances, Metals, Mine safety and health, Noise control,
Radiation protection, Reporting and recordkeeping requirements.
30 CFR Part 77
Communications equipment, Electric power, Emergency medical
services, Explosives, Fire prevention, Mine safety and health,
Reporting and recordkeeping requirements.
Dated: September 22, 2000.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
For the reasons set out in the preamble, and under the authority of
the Federal Mine Safety and Health Act of 1977, we are amending chapter
I of title 30 of the Code of Federal Regulations as follows.
PART 47--[REDESIGNATED AS PART 42]
1. The authority for part 47 continues to read as follows:
Authority: 30 U.S.C. 957.
2. Part 47--National Mine Health and Safety Academy is transferred
to subchapter G--Filing and other administrative requirements, and
redesignated as part 42.
PART 56--[AMENDED]
3. The authority citation for part 56 continues to read as follows:
Authority: 30 U.S.C. 811.
4. Section 56.16004 is revised to read as follows:
Sec. 56.16004 Containers for hazardous materials.
Containers holding hazardous materials must be of a type approved
for such use by recognized agencies.
Sec. 56.20012 [Removed]
5. Section 56.20012 is removed.
PART 57--[AMENDED]
6. The authority citation for part 57 continues to read as follows:
Authority: 30 U.S.C. 811.
7. Section 57.16004 is revised to read as follows:
Sec. 57.16004 Containers for hazardous materials.
Containers holding hazardous materials must be of a type approved
for such use by recognized agencies.
Sec. 57.20012 [Removed]
8. Section 57.20012 is removed.
PART 77--[AMENDED]
9. The authority citation for part 77 continues to read as follows:
Authority: 30 U.S.C. 811.
10. Paragraph (c) of Sec. 77.208 is revised to read as follows:
Sec. 77.208 Storage of materials.
* * * * *
(c) Containers holding hazardous materials must be of a type
approved for such use by recognized agencies.
* * * * *
PART 47--HAZARD COMMUNICATION (HAZCOM)
11. Add a new part 47 to subchapter H in chapter I, title 30 of the
Code of Federal Regulations to read as follows:
PART 47--HAZARD COMMUNICATION (HAZCOM)
Subpart A--Purpose and Scope of HazCom
Sec.
47.1 Purpose of a HaZCoM standard.
47.2 Operators and chemicals covered.
Subpart B--Hazard Determination
47.11 Identifying hazardous chemicals.
Subpart C--HaZCoM Program
47.21 Requirement for a HazCom program.
47.22 HazCom program contents.
Subpart D--Container Labels and Other Forms of Warning
47.31 Requirement for container labels.
47.32 Label contents.
47.33 Label alternatives.
47.34 Temporary, portable containers.
Subpart E--Material Safety Data Sheet (MSDS)
47.41 Requirement for an MSDS.
47.42 MSDS contents.
47.43 MSDS for hazardous waste.
47.44 Access to an MSDS.
47.45 Retaining an MSDS.
Subpart F--HazCom Training
47.51 Requirement for HazCom training.
47.52 HazCom training contents.
47.53 HazCom training records.
Subpart G--Making HazCom Information Available
47.61 Access to HazCom materials.
47.62 Cost for copies.
47.63 Providing labels and MSDSs to customers.
Subpart H--Trade Secret Hazardous Chemical
47.71 Provisions for withholding trade secrets.
47.72 Disclosure of trade secret information to MSHA.
47.73 Disclosure in a medical emergency.
47.74 Non-emergency disclosure.
47.75 Confidentiality agreement and remedies.
47.76 Denial of a written request for disclosure.
47.77 Review of denial.
Subpart I--Exemptions
47.81 Exemptions from the HazCom standard.
47.82 Exemptions from labeling.
Subpart J--Definitions
47.91 Definitions of terms used in this part.
Authority: 30 U.S.C. 811, 825.
Subpart A--Purpose and Scope of HazCom
Sec. 47.1 Purpose of a HazCom standard.
The purpose of this part is to reduce injuries and illnesses by
ensuring that each operator--
(a) Identifies the chemicals at the mine,
(b) Determines which chemicals are hazardous,
(c) Establishes a HazCom program, and
(d) Informs each miner who can be exposed, and other on-site
operators whose miners can be exposed, about those hazards and
appropriate protective measures.
Sec. 47.2 Operators and chemicals covered.
This part applies to any operator producing or using a hazardous
chemical to which a miner can be exposed under normal conditions of use
or in a foreseeable emergency. (Subpart I lists exemptions from
coverage.)
Subpart B--Hazard Determination
Sec. 47.11 Identifying hazardous chemicals.
A hazardous chemical is any chemical that is a physical or health
hazard. The operator must evaluate each chemical brought onto mine
property and each chemical produced on mine property to determine if it
is hazardous as specified in Table 47.11 as follows:
[[Page 59097]]
Table 47.11.--Identifying Hazardous Chemicals
------------------------------------------------------------------------
Basis for determining if a
Category chemical is hazardous
------------------------------------------------------------------------
(a) Chemical brought to the mine....... (1) The chemical is hazardous
when its MSDS or container
label indicates it is a
physical or health hazard; or
the operator may choose to
evaluate the chemical using
the criteria in paragraph (b)
or (c) of this table.
(2) If the chemical is a
hazardous waste and an MSDS is
unavailable, the chemical is
hazardous if any of the
sources in paragraph (b) of
this table indicates it is a
physical or health hazard.
------------------------------------------------------------------------
(b) Chemical produced at the mine...... The chemical is hazardous if
any one of the following
indicates that it is a hazard:
(1) Available evidence
concerning its physical
hazards.
(2) MSHA standards in 30 CFR
chapter 1.
(3) American Conference of
Governmental Industrial
Hygienists (ACGIH),
``Threshold Limit Values and
Biological Exposure Indices''
(latest edition).
(4) National Toxicology Program
(NTP), ``Annual Report on
Carcinogens'' (latest
edition).
(5) International Agency for
Research on Cancer (IARC),
Supplement 7 ``Overall
Evaluations of
Carcinogenicity: An Updating
of IARC Monographs Volumes 1
to 42,'' or any subsequent
IARC ``Monographs'' or
``Supplements''.
------------------------------------------------------------------------
(c) Mixture produced at the time....... (1) If a mixture has been
tested as a whole to determine
its hazards, use the results
of that testing.
(2) If a mixture has not been
tested as a whole to determine
its hazards--
(i) Use whatever scientifically
valid evidence is available to
determine its physical
hazards;
(ii) Assume that it presents
the same health hazard as a
component that makes up 1% or
more (by weight or volume) of
the mixture; and
(iii) Assume that it presents a
carcinogenic hazard if a
component considered
carcinogenic by ACGIH, NTP, or
IARC makes up 0.1% or more (by
weight or volume) of the
mixture.
(3) If evidence indicates that
a component could be released
from a mixture in a
concentration that could
present a health risk to
miners, assume that the
mixture presents the same
hazard.
------------------------------------------------------------------------
Subpart C--HazCom Program
Sec. 47.21 Requirement for a HazCom program.
Each operator must--
(a) Develop and implement a written HazCom program;
(b) Maintain it for as long as a hazardous chemical is known to be
at the mine; and
(c) Share relevant HazCom information with other operators whose
miners can be affected.
Sec. 47.22 HazCom program contents.
The HazCom program must include the following:
(a) How this part is put into practice at the mine through the use
of--
(1) Hazard determination,
(2) Labels and other forms of warning,
(3) Material safety data sheets (MSDSs), and
(4) Miner training.
(b) A list or other record of the identity of all hazardous
chemicals known to be at the mine. The list must--
(1) Use a chemical identity that permits cross-referencing between
the list, a chemical's label, and its MSDS; and
(2) Be compiled for the whole mine or by individual work areas.
(c) At mines with more than one operator, the methods for--
(1) Providing other operators with access to MSDSs, and
(2) Informing other operators about--
(i) Hazardous chemicals to which their employees can be exposed,
(ii) The labeling system on the containers of these chemicals, and
(iii) Appropriate protective measures.
Subpart D--Container Labels and Other Forms of Warning
Sec. 47.31 Requirement for container labels.
(a) The operator must ensure that each container of a hazardous
chemical has a label. If a container is tagged or marked with the
appropriate information, it is labeled.
(1) The operator must replace a container label immediately if it
is missing or if the hazard information on the label is unreadable.
(2) The operator must not remove or deface existing labels on
containers of hazardous chemicals.
(b) For each hazardous chemical produced at the mine, the operator
must prepare a container label and update this label with any
significant new information about the chemical's hazards within 3
months of becoming aware of this information.
(c) For each hazardous chemical brought to the mine, the operator
must replace an outdated label when a revised label is received from
the chemical's manufacturer or supplier.
(d) The operator is not responsible for an inaccurate label
obtained from the chemical's manufacturer or supplier.
Sec. 47.32 Label contents.
If an operator must make a label, the label must--
(a) Be prominently displayed, legible, accurate, and in English;
(b) Display appropriate hazard warnings; and
(c) Use a chemical identity that permits cross-referencing between
the
[[Page 59098]]
list of hazardous chemicals, a chemical's label, and its MSDS.
Sec. 47.33 Label alternatives.
The operator may use signs, placards, process sheets, batch
tickets, operating procedures, or other label alternatives for
individual, stationary process containers, provided that the
alternative--
(a) Identifies the container to which it applies,
(b) Communicates the same information as required on the label, and
(c) Is readily accessible throughout each work shift to miners in
the work area.
Sec. 47.34 Temporary, portable containers.
The operator does not have to label a temporary, portable container
into which a hazardous chemical is transferred from a labeled container
provided that--
(a) The operator ensures that the miner using the portable
container knows the identity of the chemical, its hazards, and any
protective measures needed; and
(b) The portable container is left empty at the end of the shift.
Subpart E--Material Safety Data Sheets (MSDS)
Sec. 47.41 Requirement for an MSDS.
(a) The operator must have an MSDS for each hazardous chemical
before using it. The MSDS may be in any medium, such as paper or
electronic, that does not restrict access.
(b) For each hazardous chemical produced at the mine, the operator
must prepare an MSDS and update this MSDS with significant new
information about the chemical's hazards or protective measures within
3 months of becoming aware of this information.
(c) For each hazardous chemical brought to the mine, the operator
must replace an outdated MSDS when a revised MSDS is received from the
chemical's manufacturer or supplier.
(d) Operators may choose to rely on the MSDS received from the
chemical manufacturer or supplier. Alternatively, operators may develop
their own MSDS or they may obtain one from another source. The operator
is not responsible for an inaccurate MSDS obtained from the chemical's
manufacturer or supplier.
Sec. 47.42 MSDS contents.
If an operator must prepare an MSDS, the MSDS must--
(a) Be legible, accurate, and in English;
(b) Use a chemical identity that permits cross-referencing between
the list of hazardous chemicals, the chemical's label, and its MSDS;
and
(c) Contain information, or indicate if no information is
available, for the categories listed in Table 47.42 as follows:
Table 47.42.--Contents of MSDS
------------------------------------------------------------------------
Requirements, descriptions, and
Category exceptions
------------------------------------------------------------------------
(1) Identity........................... The identity of the chemical
or, if the chemical is a
mixture, the identities of all
hazardous ingredients. See
Sec. 47.11 (identifying
hazardous chemicals).
------------------------------------------------------------------------
(2) Properties......................... The physical and chemical
characteristics of the
chemical such as vapor
pressure and solubility in
water.
------------------------------------------------------------------------
(3) Physical hazards................... The physical hazards of the
chemical including the
potential for fire, explosion,
and reactivity.
------------------------------------------------------------------------
(4) Health hazarads.................... The health hazards of the
chemical including--
(i) Signs and symptoms of
exposure;
(ii) Any medical conditions
which are generally recognized
as being aggravated by
exposure to the chemical; and
(iii) The primary routes of
entry for the chemical, such
as lungs, stomach, or skin.
------------------------------------------------------------------------
(5) Exposure limits.................... For the chemical, or for the
ingredients of the mixture--
(i) The MSHA permissible limit,
if there is one, and
(ii) Any other exposure limit
recommended by the preparer of
the MSDS.
------------------------------------------------------------------------
(6) Carcinogenicity.................... Whether the chemical or an
ingredient in the mixture is a
carcinogen or potential
carcinogen. See the sources
specified in Sec. 47.11
(identifying hazardous
chemicals).
------------------------------------------------------------------------
(7) Safe use........................... Precautions for safe handling
and use including--
(i) Appropriate hygienic
practices,
(ii) Protective measures during
repair and maintenance of
contaminated equipment, and
(iii) Procedures for clean-up
of spills and leaks.
------------------------------------------------------------------------
(8) Control measures................... Generally applicable control
measures such as engineering
controls, work practices, and
personal protective equipment.
------------------------------------------------------------------------
(9) Emergency information.............. (i) Emergency medical and first-
aid procedures, and
(ii) The name and telephone
number of a person who can
provide additional information
on the hazardous chemical and
appropriate emergency
procedures.
------------------------------------------------------------------------
(10) Date prepared..................... The date the MSDS was prepared
or last changed.
------------------------------------------------------------------------
------------------------------------------------------------------------
[[Page 59099]]
Sec. 47.43 MSDS for hazardous waste.
(a) If an MSDS is not available for hazardous waste and the
operator is unable to obtain or develop one, the operator must provide
each potentially exposed miner with the information specified in Table
47.42 for the hazardous waste to the extent that it is available.
(b) If the mine produces or uses hazardous waste, the operator must
provide each exposed miner and designated representative with access to
any HazCom material which--
(1) Identifies its hazardous chemical components,
(2) Describes its physical or health hazards, or
(3) Specifies appropriate protective measures.
Sec. 47.44 Access to an MSDS.
The operator must provide miners with access during each work shift
to the MSDS for each hazardous chemical to which they may be exposed
either--
(a) At each work area where the hazardous chemical is produced or
used, or
(b) At a central location, provided that a miner can readily access
it in an emergency.
Sec. 47.45 Retaining an MSDS.
The operator must--
(a) Retain its MSDS for as long as the hazardous chemical is known
to be at the mine, and
(b) Notify miners at least 3 months before disposing of the MSDS.
Subpart F--HazCom Training
Sec. 47.51 Requirement for HazCom Training.
(a) The operator must instruct each miner about the hazardous
chemicals in his or her work area--
(1) Before the miner's first assignment to that work area;
(2) Whenever the operator introduces a new hazardous chemical into
the miner's work area, unless the operator has previously trained the
miner about the hazard; and
(3) Whenever the operator becomes aware of new and significant
information about a chemical's hazards.
(b) Relevant training conducted in compliance with other parts of
this chapter or with OSHA's Hazard Communication Standard can be used
to meet the requirements of this part. Relevant training conducted in
compliance with this part can be used to meet the requirements of other
parts of this chapter.
Sec. 47.52 HazCom training contents.
HazCom training must include instruction on the following:
(a) The physical and health hazards of chemicals in the work area.
(b) The requirements of this part.
(c) The mine's HazCom program, including an explanation of the
labeling system and MSDSs and how miners can obtain and use this hazard
information.
(d) The location and availability of the written HazCom program,
the list of hazardous chemicals, labeling information, and MSDSs.
(e) The operations or locations where hazardous chemicals are
present in the miner's work area, such as unlabeled pipes, stockpiles,
conveyors, rod or ball mills, containers of raw materials, and non-
routine tasks, such as the cleaning of a storage tank that had
contained a hazardous chemical.
(f) The methods and observations that can be used to detect the
presence or release of a hazardous chemical in the work area.
(g) The measures that a miner can take to protect himself or
herself from these hazards.
(h) The specific procedures, such as work practices, engineering
controls, emergency procedures, and use of personal protective
equipment, in place at the mine to protect miners from hazardous
chemical exposure.
Sec. 47.53 HazCom training records.
The operator must make a record of each miner's HazCom training and
keep the record for 2 years.
Subpart G--Making HazCom Information Available
Sec. 47.61 Access to HazCom materials.
Upon request, the operator must provide access to all HazCom
materials required by this part to miners and designated
representatives, except as provided in Sec. 47.71 through Sec. 47.77
(provisions for trade secrets).
Sec. 47.62 Cost for copies.
(a) The operator must provide the first copy and each revision of
the HazCom material without cost.
(b) Fees for a subsequent copy of the HazCom material must be non-
discriminatory and reasonable.
Sec. 47.63 Providing labels and MSDSs to customers.
(a) For a hazardous chemical produced at the mine, the operator
must provide customers, upon request, with the chemical's label, or a
copy of the label information, and the chemical's MSDS.
(b) The label or label information must include the name and
address of a responsible party who can provide additional information
about the hazardous chemical.
Subpart H--Trade Secret Hazardous Chemical
Sec. 47.71 Provisions for withholding trade secrets.
(a) Operators may withhold the identity of a trade secret chemical,
including the name and other specific identification, from the written
list of hazardous chemicals, the label, and the MSDS, provided that the
operator--
(1) Can support the claim that the chemical's identity is a trade
secret,
(2) Identifies the chemical in a way that it can be referred to
without disclosing the secret,
(3) Indicates in the MSDS that the chemical's identity is withheld
as a trade secret, and
(4) Discloses in the MSDS information on the properties and effects
of the hazardous chemical.
(b) The operator must make the chemical's identity available to
miners, designated representatives, and health professionals in
accordance with the provisions of this subpart H.
(c) This subpart H does not require the operator to disclose
process or percentage of mixture information, which is a trade secret,
under any circumstances.
Sec. 47.72 Disclosure of information to MSHA.
(a) Even if the operator has a trade secret claim, the operator
must disclose to MSHA, upon request, any information which this subpart
H requires the operator to make available.
(b) The operator must make a trade secret claim, no later than at
the time the information is provided to MSHA, so that MSHA can
determine the trade secret status and implement the necessary
protection.
Sec. 47.73 Disclosure in a medical emergency.
(a) Upon request and regardless of the existence of a written
statement of need or a confidentiality agreement, the operator must
immediately disclose the identity of a trade secret chemical to the
treating health professional when that person determines that--
(1) A medical emergency exists, and
(2) The identity of the hazardous chemical is necessary for
emergency or first-aid treatment.
(b) The operator may require a written statement of need and
confidentiality agreement in accordance with the provisions of
Sec. 47.74 and Sec. 47.75 as soon as circumstances permit.
Sec. 47.74 Non-emergency disclosure.
Upon request, the operator must disclose the identity of a trade
secret chemical in a non-emergency situation
[[Page 59100]]
to an exposed miner, the miner's designated representative, or a health
professional providing services to the miner, if the following
conditions are met.
(a) The request is in writing.
(b) The request describes in reasonable detail an occupational
health need for the information, as follows:
(1) To assess the chemical hazards to which the miner will be
exposed.
(2) To conduct or assess health sampling to determine the miner's
exposure levels.
(3) To conduct reassignment or periodic medical surveillance of the
exposed miner.
(4) To provide medical treatment to the exposed miner.
(5) To select or assess appropriate personal protective equipment
for the exposed miner.
(6) To design or assess engineering controls or other protective
measures for the exposed miner.
(7) To conduct studies to determine the health effects of exposure.
(c) The request explains in detail why the disclosure of the
following information would not satisfy the purpose described in
paragraph (b) of this section:
(1) The properties and effects of the chemical.
(2) Measures for controlling the miner's exposure to the chemical.
(3) Methods of monitoring and analyzing the miner's exposure to the
chemical.
(4) Methods of diagnosing and treating harmful exposures to the
chemical.
(d) The request describes the procedures to be used to maintain the
confidentiality of the disclosed information.
(e) The requester enters a written confidentiality agreement that
he or she will not use the information for any purpose other than the
health needs asserted and agrees not to release the information under
any circumstances, except as authorized by Sec. 47.75, by the terms of
the agreement, or by the operator.
Sec. 47.75 Confidentiality agreement and remedies.
(a) The confidentiality agreement authorized by Sec. 47.74--
(1) May restrict the use of the trade secret chemical identity to
the health purposes indicated in the written statement of need;
(2) May provide for appropriate legal remedies in the event of a
breach of the agreement, including stipulation of a reasonable pre-
estimate of likely damages;
(3) Must allow the exposed miner, the miner's designated
representative, or the health professional to disclose the trade secret
chemical identity to MSHA.
(4) May provide that the exposed miner, the miner's designated
representative, or the health professional inform the operator who
provided the trade secret chemical identity prior to or at the same
time as its disclosure to MSHA; and
(5) May not include requirements for the posting of a penalty bond.
(b) Nothing in this subpart precludes the parties from pursuing
non-contractual remedies to the extent permitted by law.
Sec. 47.76 Denial of a written request for disclosure.
To deny a written request for disclosure of the identity of a trade
secret chemical, the operator must--
(a) Put the denial in writing, and
(1) Include evidence to substantiate the claim that the chemical's
identity is a trade secret,
(2) State the specific reasons why the request is being denied, and
(3) Explain how alternative information will satisfy the specific
medical or occupational health need without revealing the chemical's
identity.
(b) Provide the denial to the health professional, miner, or
designated representative within 30 days of the request.
Sec. 47.77 Review of denial.
(a) The health professional, miner, or designated representative
may refer the written denial to MSHA for review. The request for review
must include a copy of--
(1) The request for disclosure of the identity of the trade secret
chemical,
(2) The confidentiality agreement, and
(3) The operator's written denial,
(b) If MSHA determines that the identity of the trade secret
chemical should have been disclosed, the operator shall be subject to
citation by MSHA.
(c) If MSHA determines that the confidentiality agreement would not
sufficiently protect against unauthorized disclosure of the trade
secret, MSHA may impose additional conditions to ensure that the
occupational health services are provided without an undue risk of harm
to the operator.
(d) If the operator contests a citation for a failure to release
the identity of a trade secret chemical, the matter will be adjudicated
by the Mine Safety and Health Review Commission. The Administrative Law
Judge may review the citation and supporting documentation in camera or
issue appropriate orders to protect the trade secret.
Subpart I--Exemptions
Sec. 47.81 Exemptions from the HazCom standard.
A hazardous chemical is exempt from this part 47 under the
conditions described in Table 47.81 as follows:
Table 47.81.--Chemicals and Products Exempt From this HazCom Standard
------------------------------------------------------------------------
Exemption Conditions for exemption
------------------------------------------------------------------------
Article................................ If, under normal conditions of
use, it--
(1) Releases no more than
insignificant amounts of a
hazardous chemical, and
(2) Poses no physical or health
risk to exposed miners.
------------------------------------------------------------------------
Biological hazards..................... All biological hazards, such as
poisonous plants, insects, and
micro-organisms.
------------------------------------------------------------------------
Consumer product....................... As defined in the Consumer
Product Safety Act, if the
operator can show that--
(1) The miner uses it for the
purpose the manufacturer
intended; and
(2) Such use does not expose
the miner more often and for
longer than ordinary consumer
use.
------------------------------------------------------------------------
[[Page 59101]]
Cosmetics, drugs, food, food additive, When labeled in accordance with
color additive drinks, alcoholic the Federal Food, Drug, and
beverages, tobacco and tobacco Cosmetic Act or the Virus-
products, or medical or veterinary Serum-Toxin Act or regulations
device or product, including materials issued under those Acts, if
intended for use as ingredients in they are packaged for retail
such products (such as flavors and sale and color intended for
fragrances). personal consumption or use by
additive, miners while on mine
property.
------------------------------------------------------------------------
Hazardous substance.................... As defined in the Federal
Hazardous Substances Act, if
the operator can show that--
(1) The miner uses it for the
purpose the manufacturer
intended; and
(2) Such use does not expose
the miner more often and for
longer than ordinary consumer
use.
------------------------------------------------------------------------
Radiation.............................. All ionizing or non-ionizing
radiation, such as alpha or
gamma, microwaves, or x-rays.
------------------------------------------------------------------------
Wood or wood products, including lumber If they do not release or
otherwise result in exposure
to a hazardous chemical under
normal conditions of use. For
example, wood is not exempt if
it is treated with a hazardous
chemical or if it will be
subsequently cut or sanded.
------------------------------------------------------------------------
Sec. 47.82 Exemptions from labeling.
A hazardous chemical is exempt from subpart D of this part 47 under
the conditions described in Table 47.82 as follows:
Table 47.82.--Hazardous Chemicals Exempt From Labeling
------------------------------------------------------------------------
Exemption Conditions for exemption
------------------------------------------------------------------------
Chemical substance or mixture regulated When labeled in accordance with
by EPA. the Toxic Substances Control
Act or regulations issued
under that Act.
------------------------------------------------------------------------
Consumer product or hazardous substance When subject to a consumer
not exempt under Sec. 47.81. product safety standard or a
labeling requirement of the
Consumer Product Safety Act
and Federal Hazardous
Substances Act respectively,
or regulations issued under
those Acts.
------------------------------------------------------------------------
Hazardous substances................... When the subject of remedial or
removal action under the
Comprehensive Environmental
Response, Compensation and
Liability Act (CERCLA) in
accordance with EPA
regulations.
------------------------------------------------------------------------
Pesticide regulated by EPA or the When labeled in accordance with
Department of Agriculture. the Federal Insecticide,
Fungicide, and Rodenticide Act
or the Federal Seed Act or
regulations issued under those
Acts.
------------------------------------------------------------------------
Raw material being mined or processed.. While on mine property, except
when the container holds a
mixture of the raw material
and another hazardous chemical
and the mixture is determined
to be hazardous under Sec.
47.11 (identifying hazardous
chemicals) of this part.
------------------------------------------------------------------------
Wood or wood products, including If it releases more than
lumber, not exempt under Sec. 47.81. insignificant amounts of a
hazardous chemical or will be
subsequently cut or sanded.
------------------------------------------------------------------------
Subpart J--Definitions
Sec. 47.91 Definitions of terms used in this part.
The definitions in Table 47.91 apply in this part 47 as follows:
Table 47.91.--Definitions
------------------------------------------------------------------------
Definition for purposes of
Term HazCom
------------------------------------------------------------------------
Access................................. The right to examine and copy
records.
------------------------------------------------------------------------
[[Page 59102]]
Article................................ A manufactured item, other than
a fluid or particle, that--
(1) Is formed to a specific
shape or design during
manufacture, and
(2) Has end-use functions
dependent upon its shape or
design.
------------------------------------------------------------------------
Chemical............................... Any element, chemical compound,
or mixture of these.
------------------------------------------------------------------------
Chemical name.......................... (1) The scientific designation
of a chemical in accordance
with the nomenclature system
of either the International
Union of Pure and Applied
Chemistry (IUPAC) or the
Chemical Abstracts Service
(CAS), or
(2) A name that will clearly
identify the chemical for the
purpose of conducting a hazard
evaluation.
------------------------------------------------------------------------
Common name............................ Any designation or
identification (such as a code
name, code number, trade name,
brand name, or generic name)
used to identify a chemical
other than by its chemical
name.
------------------------------------------------------------------------
Consumer product....................... Any article or component that
is--
(1) Produced or distributed for
sale to a consumer;
(2) Normally used for personal,
family, household, school, or
recreation purposes; and
(3) Labeled in accordance with
the Consumer Product Safety
Act or regulations issued
under that Act.
------------------------------------------------------------------------
Container.............................. (1) Any bag, barrel, bottle,
box, can, cylinder, drum,
reaction vessel, storage tank,
or the like.
(2) The following are not
considered to be containers
for the purpose of compliance
with this part:
(i) Pipes or piping systems;
(ii) Conveyors; and
(iii) Engines, fuel tanks, or
other operating systems or
parts in a vehicle.
------------------------------------------------------------------------
Cosmetics and drugs.................... (1) Cosmetics are any article
applied to the human body for
cleansing, beautifying,
promoting attractiveness or
altering appearance.
(2) Drugs are any article used
to affect the structure or any
function of the body of humans
or other animals.
------------------------------------------------------------------------
Designated representative.............. (1) Any individual or
organization to whom a miner
gives written authorization to
exercise the miner's rights
under this part, or
(2) A representative of miners
under part 40 of this chapter.
------------------------------------------------------------------------
EPA.................................... The U.S. Environmental
Protection Agency.
------------------------------------------------------------------------
Exposed................................ Subjected, or potentially
subjected, to a physical or
health hazard in the course of
employment. ``Subjected,'' in
terms of health hazards,
includes any route of entry,
such as through the lungs
(inhalation), the stomach
(ingestion), or the skin (skin
absorption).
------------------------------------------------------------------------
Foreseeable emergency.................. Any potential occurrence that
could result in an
uncontrolled release of a
hazardous chemical into the
mine and for which an operator
normally would plan, such as
equipment failure, breaks or
spills of containers, or
failure of control equipment.
------------------------------------------------------------------------
Hazard warning......................... Any words, pictures, or
symbols, appearing on a label
or other form of warning, that
convey the specific physical
and health hazards of the
chemical. (See the definitions
for physical hazard and health
hazard for examples of the
hazards that the warning must
convey.)
------------------------------------------------------------------------
Hazardous chemical..................... Any chemical that presents a
physical or health hazard.
------------------------------------------------------------------------
Hazardous waste........................ Chemicals regulated by EPA
under the Solid Waste Disposal
Act as amended by the Resource
Conservation and Recovery Act.
------------------------------------------------------------------------
[[Page 59103]]
Health hazard.......................... A chemical for which there is
statistically significant
evidence that it can cause
acute or chronic health
effects in exposed persons.
Health hazard includes
chemicals which--
(1) Cause cancer;
(2) Damage the reproductive
system or cause birth defects;
(3) Irritate or corrode
tissues;
(4) Cause a sensitization
reaction;
(5) Damage the liver;
(6) Damage the kidneys;
(7) Damage the nervous system,
including psychological or
behavioral problems;
(8) Damage the blood or
lymphatic systems;
(9) Damage the stomach or
intestines; and
(10) Damage the lungs, skin,
eyes, or mucous membranes.
------------------------------------------------------------------------
Health professional.................... A physician, nurse, physician's
assistant, emergency medical
technician, industrial
hygienist, toxicologist,
epidemiologist, or other
person qualified to provide
medical or occupational health
services.
------------------------------------------------------------------------
Identity............................... A chemical's common name or
chemical name.
------------------------------------------------------------------------
Label.................................. Any written, printed, or
graphic material displayed on
or affixed to a container to
identify its contents and
convey other relevant
information.
------------------------------------------------------------------------
Material safety data sheet (MSDS)...... Written or printed material
concerning a hazardous
chemical which--
(1) An operator prepares in
accordance with Table 47.42
(MSDS requirements) of this
part, or
(2) An employer prepares in
accordance with 29 CFR
1910.1200, 1915.1200, 1917.28,
1918.90, 1926.59, or 1928.21
(OSHA Hazard Communication
regulations).
------------------------------------------------------------------------
Mixture................................ Any combination of two or more
chemicals which is not the
result of a chemical reaction.
------------------------------------------------------------------------
Ordinary consumer use.................. A product or article packaged
by the manufacturer or
retailer for ordinary
household, family, school,
recreation, or other personal
use or enjoyment, as opposed
to business use, and the
miner's exposure is not more
than it would be for an
ordinary consumer using the
product as the manufacturer
intended.
------------------------------------------------------------------------
OSHA................................... The Occupational Safety and
Health Administration, U.S.
Department of Labor.
------------------------------------------------------------------------
[[Page 59104]]
Physical hazard........................ A chemical for which there is
scientifically valid evidence
that it is--
(1) A combustible liquid, i.e.
(i) A liquid having a flash
point at or above 100 deg.F
(37.8 deg.C) and below 200
deg.F (93.3 deg.C); or
(ii) A liquid mixture having
components with flashpoints of
200 deg.F (93.3 deg.C) or
higher, the total volume of
which make up 99% or more of
the mixture.
(2) A compressed gas, i.e.
(i) A contained gas or mixture
of gases with an absolute
pressure exceeding:
(A) 40 psi (276 kPa) at 70
deg.F (21.1 deg.C); or
(B) 104 psi (717 kPa) at 130
deg.F (54.4 deg.C) regardless
of pressure at 70 deg.F.
(ii) A liquid having a vapor
pressure exceeding 40 psi (276
kPa) at 100 deg.F (37.8
deg.C) as determined by ASTM D-
323-72.
(3) An explosive, i.e., a
chemical that undergoes a
rapid chemical change causing
a sudden, almost instantaneous
release of pressure, gas, and
heat when subjected to sudden
shock, pressure, or high
temperature;
(4) A flammable, i.e., a
chemical that will readily
ignite and, when ignited, will
burn persistently at ambient
temperature and pressure in
the normal concentration of
oxygen in the air;
(5) An organic peroxide, i.e.,
an explosive, shock sensitive,
organic compound or an oxide
that contains a high
proportion of oxygen-
superoxide;
(6) An oxidizer, i.e., a
chemical, other than an
explosive, that initiates or
promotes combustion in other
materials, thereby causing
fire either of itself or
through the release of oxygen
or other gases;
(7) A pyrophoric, i.e., capable
of igniting spontaneously in
air at a temperature of 130
deg.F (54.4 deg.C) or below.
(8) Unstable (reactive), i.e.,
a chemical which in the pure
state, or as produced or
transported, will vigorously
polymerize, decompose,
condense, or become self-
reactive under conditions of
shock, pressure, or
temperature; or
(9) Water-reactive, i.e., a
chemical that reacts with
water to release a gas that is
either flammable or a health
hazard.
------------------------------------------------------------------------
Produce................................ To manufacture, process,
formulate, generate, or
repackage.
------------------------------------------------------------------------
Raw material........................... Ore, valuable minerals,
worthless material or gangue,
overburden, or a combination
of these, that is removed from
natural deposits by mining or
is upgraded through milling.
------------------------------------------------------------------------
Trade secret........................... Any confidential formula,
pattern, process, device,
information, or compilation of
information that is used by
the operator and that gives
the operator an opportunity to
obtain an advantage over
competitors who do not know or
use it.
------------------------------------------------------------------------
Use.................................... To package, handle, react, or
transfer.
------------------------------------------------------------------------
Work area.............................. Any place in or about a mine
where a miner works.
------------------------------------------------------------------------
[FR Doc. 00-24803 Filed 9-27-00; 8:45 am]
BILLING CODE 4510-43-P
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