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Legal Preemption - (a)(2)


Documentation and communication of chemical hazards through MSDSs

29 CFR 1910.1200(a)

The purpose of the HAZCOM standard is to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees. Under the HAZCOM standard, the manufacturer or importer of a chemical is required to develop a material safety data sheet (MSDS) for documenting [a] chemical's hazardous properties. The information on the hazards of a chemical is transmitted to the employer and employees through the use of MSDSs. Under this standard, the employer is required to maintain the MSDSs in the workplace and provide upon request, by an employee, MSDSs of chemicals that an employee may be exposed to in the workplace.

letter: MWright 01-31-95

Purpose of the HCS and its MSDS requirements

29 CFR 1910.1200(a)

The purpose of the HCS is to ensure that employers and employees have ready access to information regarding the hazards of chemicals used in their workplaces. The HCS only applies to hazardous chemicals. The rule is a "performance oriented" standard that gives employers the flexibility to adapt the rule to the needs of the workplace situation, instead of having to follow specific, rigid requirements.

For each hazardous chemical in the workplace, [an employer] is required by the HCS (29 CFR 1910.1200(g)) to maintain a copy of the MSDS. As stated above, the role is performance oriented, establishing what information must be included on the document, but not the specific format in which it must be presented. The MSDS contains valuable information on the hazards of a product, particularly regarding safe handling, clean-up, and first aid procedures.

Evidence presented during our rulemaking proceeding indicates that availability of hazard information benefits both employers and employees. Employers are required to provide a safe and healthful workplace for employees, and will be able to do a better job when they have information about the potential hazards. Employees will be better able to take steps to protect themselves when they know what the hazards are and how to avoid exposure. The result will be a reduction in chemically-related occupational illness and injuries.

letter: BGoodlatte 09-21-94

"Downstream flow" of hazard information from hazardous chemical producers to employees of hazardous chemical users

29 CFR 1910.1200(a)

OSHA's Hazard Communication Standard (29 CFR 1910.1200) is designed to ensure that employees are adequately informed of hazards associated with exposure to hazardous chemicals used in the workplace. This standard requires chemical manufacturers and importers to evaluate the hazard potential of chemical products that they manufacture or import, and to disseminate hazard information to downstream distributors and users of those products. Hazard information must be transmitted on Material Safe Data Sheets (MSDSs) that must be distributed to the customer at the time of first shipment of the product. The Hazard Communication Standard also requires that MSDSs be updated by the chemical manufacturer or importer within three months of learning of "new or significant information" regarding the chemical's hazard potential. Therefore, chemical manufacturers and importers have a positive requirement to keep informed of developing hazard information relative to the products that they produce, and to transmit new information with the next shipment of a product made after the MSDS has been updated. The standard also contains specific criteria for defining hazards and for making the hazard determination.

The Hazard Communication Standard requires all employers (including those in the health care industry) to develop a written hazard communication program that ensures that employees are formally trained in the hazards associated with exposure to chemical agents, and in the methods and procedures designed to protect them from those hazards. It is the employer's obligation under the standard to incorporate any new hazard information transmitted on MSDSs into the hazard communication program.

Thus, the standard requires a "downstream flow of information," which means that producers of chemicals such as glutaraldehyde have the primary responsibility for generating and disseminating hazard information, while users of the chemicals must obtain the information and transmit it to their own employees. When complied with, OSHA believes that the Hazard Communication Standard ensures that employees will be appropriately informed of all chemical hazards present in their workplaces.

letter: PMcHale 06-25-94



Performance-based regulation of health care industry

29 CFR 1910.1200(a) and 29 CFR 1910.1030

You raised several concerns regarding issues specifically addressed by ... OSHA's Hazard Communication Standard, 29 CFR 1910.1200(HCS). To begin, you should understand that OSHA's most recent standards have been written as performance rules. That is to say, they state a general objective to be achieved without stating precise requirements for accomplishing that goal.

To explain, in OSHA's early years, the Agency prescribed exactly what type of fire extinguisher would be required under what circumstances. Most employers objected vigorously to such an approach, with the result that in later years we simply state, in the same example, that employers are to provide fire extinguishers suitable for the types of fire hazards in their workplaces in locations that are readily accessible.

Admittedly, this performance approach requires judgment on the part of employers as to which employees are exposed, how extensively they are exposed and what protection is necessary.

OSHA's HCS was promulgated to ensure that employers and employees know about chemical hazards in their workplaces and how to protect themselves; this should help to reduce the incidence of chemical source illness and injuries. The HCS establishes uniform requirements to make sure that the hazards of all chemicals imported into, produced, or used in all U.S. workplaces are evaluated, and that this hazard information is transmitted to affected employers and exposed employees, via labels on containers, material safety data sheets and employee training on the hazards present. All covered employers must have a hazard communication program which describes how this information will be transmitted and made available to their employees.

The performance approach is one OSHA has used for many years with employers in industrial settings. It is perhaps unfortunate that the health care industry's first major experience with OSHA should come with standards as comprehensive and important as the hazard communication and the bloodborne standards. We are confident, however, that as your constituents and other health care employers work with these standards and put their own specific requirements in place, most of these requirements will be seen to be simply good common sense.

letter: DSchulze 05-19-92

Benefits associated with implementing the HCS

29 CFR 1910.1200(a)

The Hazard Communication Standard (HCS) provides workers exposed to hazardous chemicals with the right-to-know the identities and hazards of those materials, as well as appropriate protective measures. When workers have such information, they are able to take steps to protect themselves from experiencing adverse effects from exposure. In addition, providing such information to employers helps them to design better protective programs for exposed employees.

There are significant benefits associated with the implementation of the HCS in the workplace. Employers have used the information provided to select personal protective equipment, design engineering controls, and substitute less hazardous chemicals. All of these actions will improve protection of workers. In addition, the written information can be used to train workers to properly handle the chemicals.

letter: JKerrey 09-30-91 Congress

No list of covered chemicals

29 CFR 1910.1200(a)

The Hazard Communication Standard (HCS) establishes uniform requirements to ensure that the hazards of all chemicals imported into, produced or used in the U.S. workplaces are evaluated and that this hazard information is transmitted to all affected employers and exposed employees via labels and material safety data sheets (MSDSs) for those products. All employers are required to provide information to their employees about the hazardous chemicals to which they are exposed at their workplaces. The HCS, however, does not include a list of chemicals.

[Originally written for the veterinary medicine industry]

letter: LSmith 06-14-90 Congress

Cooperation needed to meet the intent of the HCS

29 CFR 1910.1200(a)

The intent of the Hazard Communication Standard (HCS), to provide information to employees about the hazards of the chemicals they may be exposed to while working, is met when chemical manufacturers and employers work cooperatively to transmit hazard information to all affected employees facing downstream exposure potentials. To that end, the cooperation of all chemical manufacturers and employers who are responsible for unimpeded hazard information transmittal is of paramount importance.

[Originally written about crushed stone and crystalline silicate]

letter: RBartlett 05-16-90

The intent of the HCS as a performance-oriented standard

29 CFR 1910.1200(a)

The ultimate goal of all OSHA policies and any resultant enforcement actions is to ensure safe and healthful workplaces by the most efficient means known. ... this is the Agency's intent behind any and all enforcement actions taken by OSHA personnel at the workplaces we inspect. The Hazard Communication Standard (HCS), being a "performance-oriented" standard, gives employers the flexibility to adapt the rule to the needs of the workplace situation, instead of having to follow specific, rigid requirements. Employers will, therefore, have to exercise more judgement in implementing an appropriate and effective program in order to meet the intent of the standard.

[Originally written for the HVAC industry, 29 CFR 1926.59 (a)]

letter: KKrauska 05-16-90

Employees' rights under HCS

29 CFR 1910.1200(a)

The Hazard Communication Standard (HCS) provides workers exposed to chemicals with the right to know the chemicals' hazards and associated protective measures. This is accomplished through implementation of a hazard communication program in each workplace where employees are exposed to hazardous chemicals. Employers are required to maintain container labels that include hazard warnings; maintain material safety data sheets (MSDSs) (information sheets which contain more detailed data about the chemicals and precautions for safe handling and use), and make them readily accessible to exposed workers; and train employees to understand the hazards, know how to protect themselves, and be able to use the available labels and MSDSs. The labels and MSDSs are developed by the chemical manufacturer or importer of the product, and provided to downstream employers ... when they obtain the hazardous chemical for use in the workplace....

When employees have adequate information regarding chemical hazards, they are able to take steps to protect themselves from the adverse effects of chemical exposures. When employers have such information, they are better able to establish appropriate protective programs to help prevent the occurrence of such effects. The result will be a reduction in chemical source illnesses and injuries in the workplace.

letter: PSmith 05-03-90 Congress

Other OSHA standards may be applicable

29 CFR 1910.1200(a)

Other OSHA health standards may apply to workplace situations where the product is used. Depending on the ingredients contained in the [product] and its manner of use, employee protection may be required, including ventilation controls, personal protective equipment, clothing or gloves, or other applicable precautions. This assessment should be made by the employer, again, based on the unique conditions of use of the product at that establishment.

[Originally written for the chemical manufacturing industry]

letter: GVanderJagt 01-29-90 Congress

Requirements of the hazard communication standard (HCS)

29 CFR 1910.1200(a)

... the standard requires that employers develop and implement a written hazard communication program and communicate hazard information to their employees through formal training programs. The HCS incorporates a "downstream flow of information" which means that producers of chemicals have the primary responsibility for generating and disseminating information, while users of chemicals must obtain the information and transmit it to their own employees.

OSHA's Hazard Communication Standard was promulgated to ensure that all employers receive the information they need to inform and train their employees properly on the hazardous substances they work with and to help design and put in place employee protection programs. It also provides necessary hazard information to employees, so they can participate in and support the protective measures in place at their workplaces.

[Originally written for communication industry]

[Originally written about solder flux]

letter: CSeymour 07-11-89

Intent is information transmittal about broad array of hazards

29 CFR 1910.1200(a)

The definitions of the hazards covered under the rule are intentionally broad to ensure that employees and downstream employers receive all relevant information about the chemical involved. OSHA has determined that lack of information regarding a chemical's hazards and appropriate protective measures constitutes a significant risk to exposed workers.

Unlike OSHA's substance-specific standards, the rule does not establish permissible exposures for the chemicals involved, nor does it require implementation of specific control measures other than the transmittal of information. It is expected that provision of such information will nevertheless result in reduced exposures because employers will have better information to use when designing protective programs for their exposed employees. And those employees will be better able to take steps to protect themselves.

letter: TGarrett 09-20-88

Performance orientation: compliance and enforcement challenges and resources

29 CFR 1910.1200(a)

It is precisely this performance orientation, which necessarily results in a relatively heavy responsibility being placed on chemical producers and employers to make difficult evaluations and judgments, that permits the HCS to be a flexible, dynamic standard, capable of keeping up with the ever-changing chemical work environment. It is also this performance quality that raises difficult compliance issues for employers and makes consistent enforcement particularly challenging for the agency.

In keeping with the performance nature of the standard, the standard's preamble stresses that a large amount of professional judgment must be employed in compliance activities relating to the Hazard Communication Standard. This position has also been emphasized by the agency in its guidelines issued since promulgation, and in OSHA training efforts.

The Material Safety Data Sheets prepared by one source referred to in your letter are only one tool that OSHA professionals can draw upon when evaluating an employer's compliance with the provisions of the Hazard Communication Standard. In addition, the Agency relies heavily on several computerized bibliographic data bases including on-line Material Safety Data Sheet Systems and Area Office, Regional and National Office library holdings. Through these systems, OSHA accesses the same literature and research data as that available to employers and the public.

letter: LThomas 10-15-86

Legal Preemption - (a)(2)

Nature and content of warning statements on labels

29 CFR 1910.1200(a)(2)

It should also be noted that workplace use of some common chemicals frequently results in a different type of exposure, often in greater quantities and for longer durations than use of the same material by consumers. This can create a different and greater risk for workers that must be properly addressed. However, OSHA is also aware that some products do use warning statements that are more restrictive than is warranted by the information available on the risks involved. Products indicate that this is due to concerns about product liability, rather than resulting from regulatory requirements. The information provided must be accurate and scientifically defensible to be considered in compliance with OSHA requirements.

[Originally written for the medical industry]

letters: MSegal 02-24-92, DDeConcini 09-10-92 Congress

OSHA approved state plans

29 CFR 1910.1200(a)(2)

OSHA's position is that State standards can be enforced only under the auspices of an OSHA-approved State plan. States without State plans are preempted from addressing the issue of Hazard Communication. Community right-to-know standards are outside the jurisdiction of OSHA and are not affected by this position. Inquiries regarding preemption that require in depth knowledge of this subject shall be referred through the Directorate of Compliance Programs to the Office of State programs for response.

The agency's position regarding State standards has been described in OSHA Instruction STP 2-1.117. This should be consulted when answering questions regarding such State standards.

CPL 2-2.38C: A-1 10-22-90

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