Previously, we discussed what hazardous means, clarifying that each agency involved has its own term. And while the criteria for the classification of such terms – hazardous chemical (OSHA), hazardous material (PHMSA), and hazardous substance (EPA) – may overlap, they do also differ, and these agencies and others reference these three terms differ depending on the circumstances. Further, even when clarifying what is hazardous, another aspect of compliance that creates confusion comes from determining who is responsible.
This article in the series intends to provide some clarification as to who is – and who is not – responsible for complying with each of the hazard terms and their applicable regulations and will address who is responsible for compliance with hazardous waste (EPA) regulations.
When faced with the need to review a product’s characteristics, the first step is almost always to look at the safety data sheet (SDS), an OSHA document that provides vital information about chemical materials.
OSHA, EPA, or PHMSA
OSHA recently adopted much of the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS), with the idea being that ‘harmonized’ would imply a more universal means of classifying and labeling chemicals to streamline international trade. OSHA states that the manufacturer, importer or distributor must communicate all hazardous characteristics of the chemical product as defined by OSHA – in essence, whoever formulates, imports or owns the brand.
The problem is that several sections of the SDS provide information that is not under the jurisdiction of OSHA. The current solution to this is somewhat contradictory in that OSHA requires an SDS in the proper format with all applicable data, but doesn’t claim jurisdiction over information that isn’t mandatory and will therefore not enforce those sections.
The sections identified as non-mandatory are:
12. Ecological – EPA
This section provides information to evaluate the environmental impact of the chemical(s) if it were released to the environment.
- Data from toxicity tests performed on aquatic and/or terrestrial organisms, where available (e.g., acute or chronic aquatic toxicity data for fish, algae, crustaceans, and other plants; toxicity data on birds, bees, plants).
- Whether there is a potential for the chemical to persist and degrade in the environment either through biodegradation or other processes, such as oxidation or hydrolysis.
- Results of tests of bioaccumulation potential, making reference to the octanol-water partition coefficient (Kow) and the bioconcentration factor (BCF), where available.
- The potential for a substance to move from the soil to the groundwater (indicate results from adsorption studies or leaching studies).
- Other adverse effects (e.g., environmental fate, ozone layer depletion potential, photochemical ozone creation potential, endocrine disrupting potential, and/or global warming potential).
13. Disposal – EPA
This section provides guidance on proper disposal practices, recycling or reclamation of the chemical(s) or its container, and safe handling practices. To minimize exposure, this section should also refer the reader to Section 8 (Exposure Controls/Personal Protection) of the SDS.
- Description of appropriate disposal containers to use.
- Recommendations of appropriate disposal methods to employ.
- Description of physical and chemical properties that may affect disposal
- Language discouraging sewage disposal.
- Any special precautions for landfills or incineration activities.
14. Transportation- PHMSA (DOT)
This section provides guidance on classification information for shipping and transporting of hazardous chemical(s) by road, air, rail, or sea.
- UN number (i.e., four-figure identification number of the substance).
- UN proper shipping name.
- Transport hazard class(es).
- Packing group number, if applicable, based on the degree of hazard.
- Environmental hazards (e.g., identify if it is a marine pollutant according to the International Maritime Dangerous Goods Code (IMDG Code)).
- Guidance on transport in bulk (according to Annex II of MARPOL 73/78 and the International Code for the Construction and Equipment of Ships Carrying Dangerous Chemicals in Bulk (International Bulk Chemical Code (IBC Code)).
- Any special precautions which an employee should be aware of or needs to comply with, in connection with transport or conveyance either within or outside their premises (indicate when information is not available).
15. Regulatory – Multiple
This section identifies the safety, health, and environmental regulations specific for the product that is not indicated anywhere else on the SDS such as any national and/or regional regulatory information of the chemical or mixtures (including any OSHA, Department of Transportation, Environmental Protection Agency, or Consumer Product Safety Commission regulations)
It’s not a coincidence that these sections correlate to hazardous classification and data under the jurisdiction of other agencies such as the EPA (sections 12 and 13), PHMSA and international agencies (section 14), and other U.S. or foreign agencies (section 15).
Even OSHA cites itself among other agencies regarding information not specific to hazard communication requirements. What further complicates matters is that the GHS standards, published by the United Nations, have been adopted by many other countries so where OSHA stipulated the data as non-mandatory and will not enforce, it is likely to be mandatory and enforced elsewhere.
So the question remains: Who (domestically) is responsible for the information identified in these sections?
It depends on the information in question. The EPA holds the manufacturer responsible for providing environmental information, but places the responsibilities associated with disposal on the waste generator, which can vary depending on when and where the waste is generated. However, PHMSA’s Hazardous Materials Regulations outlines in the that each offeror (shipper) is responsible to ensure that each shipment offered for transport complies with Federal hazardous materials law.
The next installment in this series will expand on who is responsible for ensuring compliance with hazardous materials and hazardous waste regulations. Get in touch or sign up for our newsletter to learn more.