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MSHA Imposes New Hazcom Rule

Fall 2002

Co-Authors: Tim Means and Bridget Littlefield.

HazCom is Gonna Getcha

A poem we've always loved by the "Hoosier Poet" James Whitcomb Riley has a wonderful, though haunting, line that (more or less) goes like this: "The goblins are gonna getcha, if you don't watch out." Goblins may not be too much to worry about these days, but MSHA's new Hazard Communication ("HazCom") rules are. That's the bad news. The worse news is that the rules are "gonna getcha," no matter what you do. Just as the OSHA-regulated world has found its very similar scheme to be the most frequently cited OSHA regulation, America's mines are about to discover a new source of citations that will likely outpace other perennial MSHA favorites (for example, guarding for surface mines, accumulations for underground coal).

You can't hope to avoid all liability, but you can - and you'd better - take the time and trouble to reduce it. Toward that end, we offer a plain language summary of the highlights (and lowlights) of the rule and what it requires your company to do. In addition to reviewing this summary of the rule, we encourage you to consult the MSHA compliance and training guides discussed in the pages below, and readily available on the Internet, to make sure that you have met and are prepared to meet all the numerous obligations imposed by this new program that has just taken effect.

Introduction

After one of the most difficult and protracted rulemakings in Mine Safety Act history, on June 21, 2002, over a decade after initiating this rulemaking, MSHA published its final HazCom rule in the Federal Register. MSHA established the HazCom rule to further two safety and health principles: (1) that miners have a right to information about chemical hazards in their work area; and (2) that operators have a responsibility to know about chemical hazards at their mines. The HazCom rule thus requires mine operators to evaluate the hazards of chemicals produced and used at their mines and to provide information about these hazards to miners through the implementation of a written hazard communication program, labeling, access to material safety data sheets ("MSDSs"), and initial miner training. HazCom took effect on September 23, 2002 at mines employing more than five miners, and will take effect on March 21, 2003 at mines employing five or fewer miners.

The rule applies to all mining sectors, to all miners, including office workers and independent contractors, and to all operators who produce or use "a hazardous chemical to which a miner can be exposed under normal conditions of use or in a foreseeable emergency." 30 C.F.R. § 47.2(a). MSHA intends the terms "exposed" and "foreseeable" in § 47.2(a) to be construed broadly. Thus, "exposed" means subjected to or potentially subjected to a chemical hazard. Moreover, MSHA instructs that a potential exposure to a hazardous chemical is "foreseeable" if a miner works in the same area as the chemical, and spills or leaks are commonplace. MSHA does not, however, intend the term "foreseeable" to include "highly remote or speculative" situations, such as exposure of miners who work in an area of the mine far removed from the location of a hazardous chemical.

The six major provisions of the HazCom rule require: (1) hazard determination; (2) the development of a HazCom program; (3) container labeling; (4) material safety data sheets; (5) HazCom training; and (6) access to HazCom information. These provisions, as well as exemptions under the rule, are summarized below.

1. Hazard Determination

HazCom requires operators and independent contractors with primary responsibility for compliance with the rule to identify each chemical produced at the mine or brought onto mine property and determine whether the chemical is hazardous - i.e., whether it can present a physical or health hazard to miners. A health hazard is defined as a "chemical for which there is statistically significant evidence that it can cause acute or chronic health effects in exposed persons." § 47.11. Under this definition, chemicals are health hazards if they cause cancer, reproductive system damage or birth defects, damage to the liver, kidneys, nervous system, blood or lymphatic systems, damage to the stomach or intestines, lungs, skin, eyes or mucous membranes, or if they are irritants, corrosives or sensitizers, or toxic/highly toxic agents. A physical hazard is a chemical that is a combustible liquid, a compressed gas, an organic peroxide, an oxidizer, or a pyrophoric, or that is unstable and reactive or water-reactive, explosive, or flammable.

To make a hazard determination for a chemical brought to a mine, the operator can either (1) review the existing label for a hazard warning and the product's existing MSDS, or (2) conduct an independent evaluation of the chemical (and choose not to rely on the label and MSDS of the supplier/manufacturer). Should an operator chose to conduct an independent evaluation of a chemical brought to a mine, the rule requires a showing that the operator conducted a thorough evaluation of the available evidence. This showing must be included in the HazCom written program, explained below in section 2. Examples of chemicals commonly brought to a mine that would require a hazard determination are diesel fuel, antifreeze, motor or hydraulic oil, brake fluid, lubricants, adhesives, paints, and solvents.

An operator must also conduct a hazard determination for chemicals produced at the mine. For example, a hazardous component of sand and gravel and crushed limestone is respirable crystalline silica, a human carcinogen. In addition, chemical mixtures created at the mine, such as flotation reagents or blasting agents, and certain by-products of mining, such as diesel exhaust, hydrogen sulfide, or gases from combustion or blasting, may contain hazardous chemicals and thus must be evaluated by the mine operator. Operators producing chemicals must determine their physical hazards based on available evidence or testing. Furthermore, a chemical listed in the following sources must be considered a health hazard: 29 C.F.R. part 1910, subpart Z; 30 C.F.R. chapter 1; American Conference of Governmental Industrial Hygienists' 2001 Threshold Limit Values and Biological Exposure Indices; National Toxicology Program ("NTP"), Ninth Annual Report on Carcinogens (January 2001) (http://www.acgih.org/store/); and the International Agency for Research on Cancer ("IARC"), Monographs and Related Supplements, Volumes 1 through 77.

Mixtures produced at a mine are hazardous if, when tested as a whole, they pose a health or physical hazard. As most operators do not have the facilities or equipment to test mixtures as a whole, however, operators must use available scientifically valid evidence to determine the mixture's physical hazards, and rely on available health hazard information for the ingredients of the mixture to determine the existence of a health hazard. The HazCom rule requires that an operator identify a mixture as a health hazard if at least 1% of the mixture is a chemical that is a non-carcinogenic health hazard or if at least .1% of the mixture is a chemical that is a known or suspected carcinogen according to NTP or IARC. Thus, a product containing a concentration of .1% or more of respirable silica, a carcinogen, is subject to HazCom.

2. Written HazCom Program

HazCom requires that all mines have a written HazCom Program which sets forth how HazCom will be implemented at the mine. Operators must make the written program available to miners, their designated representatives, and MSHA and Health and Human Services ("HHS") personnel, and must retain the written program as long as a hazardous chemical is known to be present at the mine. The HazCom written program must describe the operator's procedure for complying with the requirements for hazard determination. In addition, the program must describe labels and other warnings, MSDSs, and initial miner training, and must include a list of hazardous chemicals produced at, or brought to, the mine. At mines where there is more than one operator, the written program must also explain how other operators are informed about hazardous chemicals and related protective measures, how they can access MSDSs, and how hazards are identified on labels and other warnings. The identity of hazardous chemicals should be consistently described in the written HazCom program, and on the labels and MSDSs to allow for cross-referencing; thus, if the trade name is used on the label, the chemical should be listed by its trade name in the written program, and on the MSDS.

According to MSHA, there is no required format for the HazCom written program - it need not be "lengthy or complicated." Furthermore, the list of hazardous chemicals can be maintained for the mine as a whole or can be organized by specific work areas to avoid confusing miners who would have no exposure to most of the chemicals on a mine's comprehensive list. The list of hazardous chemicals must be updated as new chemicals are brought onto the mine property. MSHA declined suggestions to impose a one-month time requirement for updating lists, but did state that the list must be kept current.

Even operators who are certain that no hazardous chemicals are present at their mine must review their processes and inventory at least one time to verify that no hazardous chemicals exist. But, watch out: if, in the process of conducting this inventory, you unexpectedly discover a hazardous chemical, your first reaction may be simply to get rid of it and thereby avoid the requirements of the HazCom rule. This is inadvisable as most hazardous chemicals become hazardous waste upon disposal and are thus subject to Environmental Protection Agency ("EPA") standards under the Resource Conservation and Recovery Act ("RCRA"). It is therefore important to proceed carefully before disposing of a chemical covered by HazCom to ensure compliance with the strict regulations of RCRA. Penalties under RCRA for illegal disposal of hazardous waste can be severe.

3. Container Labels and Other Forms of Warning

HazCom requires that operators label, tag, or mark each container of a hazardous chemical with the identity of the hazardous chemical and appropriate hazard warnings. Pipes or piping systems, conveyors, engines, fuel tanks, or other operating systems or parts in a vehicle are not containers and do not require a label. Labels will most likely fall within three categories: labels on containers of hazardous chemicals brought to the mine; labels on mixing, storage, or transport containers on mine property; and labels on containers used to ship hazardous chemicals produced at the mine. A label that complies with OSHA's Hazard Communication Standard ("HCS") will satisfy HazCom's labeling requirements.

Hazardous chemicals produced at the mine must have a label specifying the chemical's identity, warnings related to physical and health hazards, and the name and address of either the operator or another responsible party who can provide additional information about the hazardous chemical. Labels - defined as any written, printed, or graphic material displayed on a container to identify its contents and convey relevant information - must be prominently displayed, legible, accurate, and in English. Although the rule does not specifically state that operators must provide labels in multiple languages, MSHA requires operators to communicate information about hazardous chemicals to miners who do not speak or understand English. MSHA suggests using symbols or providing labels in alternative languages to address language barriers.

MSHA recognizes that for certain chemicals, it may not be feasible to list every hazard on the label. MSHA therefore suggests that operators prioritize hazards and, at a minimum, include all serious hazards on the label. Operators should also distinguish between acute and chronic hazards when determining the content of the label. The hazard warning can be any message, word, picture, or symbol that provides general information regarding the hazards of the chemical. Examples include: "flammable" or "human carcinogen." Using a general term such as "danger," however, does not satisfy the rule. If a particular organ is known to be affected, the warning should so state - e.g., "lung damage." Furthermore, a carcinogenic warning is required if NTP or IARC classifies the chemical as a probable or known carcinogen. Thus, for example, if a product contains .1% or more of respirable crystalline silica, it must be labeled as a human carcinogen, unless it is in the form of a raw material being mined or processed, as raw materials are exempt from HazCom's labeling requirements while on mine property. In addition, while not required, MSHA encourages operators to include information regarding precautionary measures or safe work practices on the labels, such as "use only in well ventilated area."

Containers of hazardous products brought onto the mine are normally already labeled. Operators do not need to re-label these containers unless there is no label, the label is illegible, or the manufacturer sends a revised label. Moreover, operators are not responsible for inaccurate information on a label prepared by the chemical manufacturer or supplier; however, MSHA states that operators should notify the supplier of any problems with the existing label and request the supplier to remedy it. Existing labels must not be removed or defaced, unless the container is immediately marked with the chemical's identity and its hazards.

Products and chemicals subject to labeling standards of other agencies such as EPA, the Consumer Product Safety Commission ("CPSC"), or OSHA are exempt from further labeling under HazCom. This exemption covers hazardous chemicals brought onto the mine property and hazardous substances or wastes produced at the mine. Other exemptions from the labeling requirement are discussed below.

For large-scale operations with individual, stationary process containers such as retaining ponds, silos, stockpiles, or tanks, ordinary labels may be inappropriate. HazCom thus allows "label alternatives" such as signs, placards, process sheets, batch tickets, and operating procedures provided that the alternative identifies the container to which it applies, communicates the same information as the label, and is readily available throughout the shift to miners in the work area.

MSHA also provides an exception to labeling requirements for temporary, portable containers. Miners commonly use temporary, portable containers while servicing machinery to hold small amounts of fluid normally stored in large drums. The rule does not require labeling of these portable containers if the operator ensures that the miners using the containers know the identity of the chemical, its hazards, and appropriate protective measures. Also, to be exempt from HazCom labeling requirements, the portable container must either be left empty at the end of the shift or, if not, be labeled with at least the common name of its contents.

4. Material Safety Data Sheets

The final HazCom rule requires that operators have an MSDS or a substantive equivalent for each hazardous chemical at the mine. An MSDS is an information sheet detailing facts about the hazardous chemical. Thus, if an MSDS does not accompany a hazardous chemical brought to the mine, an operator must either obtain one from the manufacturer, supplier, or another source, or develop an MSDS himself. An operator must also develop an MSDS for any hazardous chemical originating at the mine.

An operator is responsible for the accuracy of an MSDS prepared at the mine, but may rely on the accuracy of an MSDS obtained from a chemical supplier or manufacturer. An MSDS that complies with OSHA's HCS will meet the requirements of the HazCom rule. An operator must update an MSDS for chemicals produced at the mine within three months of becoming aware of any significant new information. Significant information is that which is likely to have a major effect on safety and health. A change in the percentage or composition of an inert ingredient is not significant. Discovering that a chemical causes cancer, on the other hand, is significant and would require revision of an MSDS within three months.

The HazCom rule requires that each MSDS contain extensive information about the chemical, its hazards, exposure limits, precautions for safe use and handling, control measures, and emergency information, among other things. There is no standard format for the MSDS; however, MSHA encourages operators to use OSHA's non-mandatory MSDS form (OSHA-174) or ANSI Z400-1 as a guide.

Operators must make MSDSs of hazardous chemicals to which miners may be exposed available and accessible to miners during each work shift either in the work area where the chemical is used/produced or at an alternative location, provided the MSDS is readily available in an emergency. MSDSs may thus be accessible from the internet, a commercial database of chemicals, or from a fax, as long as the miners know how to retrieve the MSDSs electronically or someone is made available on every shift to access the information. MSHA cautions that access must be provided during every shift, even during shifts when the office is normally closed. Operators providing MSDSs electronically should anticipate electrical failures and make provisions for back-up power and should use a reliable internet provider to ensure continued access to MSDSs. Operators may discard an outdated MSDS after replacing it with a revised version without notifying miners; however, if the use of production of a hazardous chemical is discontinued at the mine, operators must notify miners at least three months in advance of disposing of the MSDS, so they have a final opportunity to access the information. MSHA suggests you inform miners via a verbal announcement at a safety meeting, a personal written notice, an all-employee newsletter, or a bulletin board posting, although no particular format is required.

Where appropriate, the HazCom rule permits operators to use a single MSDS for a class or family of chemicals with similar hazards, for mixtures with similar hazards and contents, or for a chemical process. For example, a single MSDS may be used for mixtures such as organic solvents, lubricants, paints, and fuels that contain the same ingredients but in varied percentages. Similarly, an operator may use a single MSDS for a flotation reagent even though its chemical composition changes as it processes a mineral. A single MSDS for a chemical process must include all the chemical hazards created during the process and any likely to be created due to a malfunction or accident.

5. Training

Initial training of currently employed miners is governed by Part 47. Initial training of currently employed miners must include instruction about the physical and health hazards of chemicals in the miner's work area, including operations and locations where hazardous chemicals are present, protective measures a miner can take, and the contents of the mine's HazCom program. Training on the protective measures a miner can take must include instruction on how a miner can detect the presence or release of a hazardous chemical in the area, as well as the specific procedures in place at the mine to protect against hazardous chemical exposure. Training on the content of the HazCom program must include information about the mine's hazard determination procedures, the location and availability of the written program, labeling, MSDSs, miner training, and the mine's list of hazardous chemicals.

All other HazCom training will be governed by the amendments to the existing training standards of Parts 46 and 48. Pursuant to Parts 46 and 48, operators must factor HazCom elements into virtually all other training they are required to give, including new miner training, training for newly hired experienced miners, annual refresher training, and task training.

6. Access to HazCom Information

The HazCom rule requires operators to provide miners and their designated representatives with access to written HazCom materials, including the written HazCom program, the list of hazardous chemicals, labeling information, MSDSs, and training records. MSHA inspectors and NIOSH investigators are also entitled to these materials. The rule does not require operators to provide copies of training materials, such as videotapes and booklets, but does require operators to allow miners to examine these materials. Each miner is entitled to one copy of all other written HazCom materials without cost. Miners are not required to put their requests for access to materials in writing, and operators should comply with requests within 24 hours of receiving them.

For hazardous chemicals produced at the mine, the HazCom rule requires operators to provide the labeling information and MSDS to customers upon request. This information can be posted on an internet website or sent by fax or email to customers. The rule does not require operators to label containers shipped from the mine or to send an MSDS with each shipment of the product because other agency rules cover labeling of products for commerce.

Trade Secrets

The HazCom provision addressing trade secret protection is substantially the same as the OSHA trade secret provision. Essentially, the HazCom trade secret subpart allows operators to protect information about trade secret processes and percentages of mixture under all circumstances, and to protect trade secret chemical identities except in emergency and specified non-emergency situations. Operators must, however, disclose the properties, safe use, and safety and health effects of trade secret chemicals.

Exemptions

There are two categories of exemptions under the HazCom standard - complete exemptions from the HazCom standard and exemption from labeling requirements only.

Complete Exemptions. "Articles" are exempt from HazCom under normal conditions of use if they release no more than insignificant amounts of a hazardous chemical and pose no physical or health risk to miners. An "article" is defined in HazCom 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. Thus, even though polyaromatic hydrocarbons are present in plastic buckets, seat cushions, and ventilation curtains, these items are exempt from HazCom standards because they are articles - i.e., they release no more than insignificant amounts of a hazardous chemical. On the other hand, diesel exhaust or adhesives containing polyaromatic hydrocarbons are not exempt because they release more than an insignificant amount of a hazardous chemical and thus pose a health risk, inter alia. For the same reasons, chromium in a welding rod is not exempt from HazCom. To further illustrate, a tire on a truck would be exempt under HazCom, but a tire used to fuel a kiln would not be exempt because (1) this alternative use is not a "normal condition of use" and (2) this use would cause the release of more than an insignificant amount of a hazardous chemical.

Biological hazards such as poisonous plants, insects, and microorganisms are also exempt from HazCom, as are consumer products if used for the purpose intended by the manufacturer, and if the use does not expose the miner more often or for longer periods of time than would ordinary consumer use. For example, brake cleaner is exempt if it is used by a miner to change brakes on equipment 2-3 times per year. Brake cleaner is not exempt, however, if used by a mechanic at the mine whose job responsibilities would require more than normal consumer use of the cleaner.

Exemptions from Labeling Requirements. Chemical substances, hazardous substances, consumer products, and pesticides are exempt from HazCom's labeling requirements when they remain in the manufacturer's or supplier's original packaging and are packaged in compliance with other federal labeling requirements. Containers of raw materials are also exempt from labeling requirements while they are on mine property because miners should be familiar with hazards associated with the material they mine. If a container holds a mixture of a raw material and another hazardous chemical, however, and the mixture is hazardous, the container must be labeled. Furthermore, wood and wood products, including chemically treated wood and dust, are exempt from labeling requirements, as are hazardous substances that are the subject of removal or remedial actions under CERCLA and hazardous waste regulated under RCRA.

Sources Available to Assist Operators in Implementing HazCom

MSHA has emphasized its willingness and commitment to provide compliance assistance to all operators, regardless of the size of their operation. Available HazCom aids include: an MSHA instruction guide, power point presentations, videos, model HazCom programs, a brochure, and generic MSDSs. Even a new interactive training module is now available on-line from MSHA. OSHA training materials such as a generic MSDS form, a model hazardous communication program, and a compliance guide are also available as a guide for operators implementing HazCom and can be adapted for use at mining operations. Many of these materials are available on OSHA's website at http://www.osha.gov.

Conclusion

HazCom is now the law, whether the mining industry likes it or not. Despite the rule's good intentions, it will give you fits. While there are going to be many violations cited, your diligent, conscientious efforts to comply, if well documented, may at least reduce the severity of the sanctions and size of the penalties. Good luck.

Thomas (Tim) C. Means
Retired Partner – Washington, D.C.
Email: tmeans@crowellretiredpartners.com