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|Title: 07/17/2008 - Chemical manufacturer's responsibility with regard to inorganic arsenic under OSHA's Hazard Communication Standard.
|Record Type: Interpretation
|Standard Number: 1910.1018, 1910.1018(a), 1910.1018(b), 1910.1018(p)(3), 1910.1200, 1910.1200(b)(2), 1910.1200(c)
|This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any situation not delineated within the original correspondence.
July 17, 2008
Mr. Robert N. Dingess, President
Mercer Strategic Alliance, Inc.
209 Pennsylvania Avenue, SE
Washington, DC 20003
Dear Mr. Dingess:
Thank you for your January 3, 2008, letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). In your letter you requested clarification of OSHA's Inorganic Arsenic Standard 29 CFR 1010.1018. In addition, you inquired about a chemical manufacturer's responsibility with regard to inorganic arsenic under OSHA's Hazard Communication Standard (HCS), 29 CFR 1910.1200, when it is bound in glass beads. Your paraphrased statement and questions are presented below, followed by our response.
Statement: It has been alleged that some recycled glass beads used in pavement marking applications contain in excess of 1,300 parts per million (ppm) inorganic arsenic. Glass beads are utilized by blending them with paint or dropping them onto freshly-laid paint or thermoplastic. After the life of the product is exhausted, the material is removed from the roadway through water blasting or grinding operations. It is our understanding that the process of vitrification inextricably binds any heavy metals in glass, rendering it inert. Our tests have shown that even when glass beads are ground to dust, heavy metals are not released. We have not been able to uncover any evidence that heavy metal contained in glass beads poses a health threat to workers or the environment.
Likewise, the requirements of the HCS are triggered only where a chemical is "known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use." (29 CFR 1910.1200(b)(2). "Exposure" is defined as including "potential (e.g., accidental or possible) exposure." 29 CFR 1910.1200(c). OSHA has interpreted this language as excluding "substances for which the hazardous chemical is inextricably bound or in not readily available, and, therefore, presents no potential for exposure." (Inspection Procedures for the Hazard Communication Standard, CPL 02-08-038, Appendix A.)
It is the duty of the employer (under the inorganic arsenic standard) and the manufacturer/importer (under the hazard communication standard) to make these determinations. While it might be possible that the inorganic arsenic in the glass beads you reference may not be available for exposure under these standards, OSHA does not have the necessary information to determine whether these standards apply in the circumstances you describe.
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However, if the glass beads meet the definition of an "article," you would not have to list these chemicals on the MSDS. The Hazard Communication Standard (HCS) at 29 CFR 1910.1200 defines an article as "a manufactured item: (i) which is formed to a specific shape or design during manufacture; (ii) which has end use function (s) dependent in whole or in part upon its shape or design during end use; and (iii) does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical...and does not pose a physical hazard or health risk to employees." Again, the hazard determination of the product is up to the manufacturer to conduct and whether or not the hazardous chemical is available for exposure to employees under the normal conditions of use of the product. You stated that your studies have shown only trace amounts of employee exposure to heavy metals fused in glass beads. It is possible that blasting and/or grinding of glass beads could lead to greater exposures. If these actions are a normal condition of use of the product, employee exposures resulting from any of these types of use of the product would have to be considered. It is manufacturers' responsibility to determine whether these trace amounts pose a health risk to employees under normal conditions of use; OSHA does not have such data available.
When a hazard determination is conducted by the manufacturer, the resulting information is normally provided on the MSDS for the product. This hazard information is then transmitted to the downstream user on the data sheet shipped by the producing manufacturer. The information on the MSDS reflects those physical and health hazards that are expected to exist, based on the end use of the product (during normal operations or in a foreseeable emergency). For example, as the manufacturer, you are obligated to supply the downstream user of your product (road surface painters) with an MSDS that adequately reflects the hazards associated with the application of your surfacing product. Likewise, if the manufacturer foresees that under normal conditions of use, the paint will be removed by blasting or grinding, the hazards associated with that process should be reflected in the MSDS. (Letter to Allison Keane, "Application of the hazard communication standard to latex paints containing less than 6% silica" 2/11/2004).)
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To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the OSHA Office of Health Enforcement at (202) 693-2190.
Richard E. Fairfax, Director
Directorate of Enforcement Programs
The official, public domain, OSHA version of this document is available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=27166&p_text_version=FALSE