Labels and data sheets for bulk scrap-metal shipments

June 6, 1986
Mr. David M. Wassum
Director of Safety
Institute of Scrap and Steel, Inc.
[Recipient address omitted]
Dear Mr. Wassum:
I regret the confusion caused by the series of meetings and letters referred to in your recent letters (April 22, addressed to me, and April 24, addressed to former Acting Assistant Secretary Patrick R. Tyson) relating to the labeling requirements of the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS).
The HCS is written principally in performance language; requirements can often be satisfied through varying means. In the case of labels, 29 CFR 1910.1200(f), the requirements are very specific as they relate to conveyance or transmittal of outgoing hazardous chemicals. Paragraph (f)(2) of the standard reads:

"Chemical manufacturers, importers, or distributors shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked in accordance with this section in a manner which does not conflict with the requirements of the Hazardous Materials Transportation Act (18 U.S.C. 1801 et seq.) and regulations issued under that Act by the Department of Transportation."

The standard requires that each label contain the identity of the hazardous chemical(s), appropriate hazard warnings, and the name and address of the manufacturer, importer or other responsible party (see 29 CFR 1910.1200(f)(1)). The standard, therefore, clearly requires an appropriate hazard warning label on every hazardous chemical container leaving a chemical manufacturer's or importer's workplace.
The Agency recognizes, however, that the standard's language permits two alternative methods of complying with the labeling provision when labeling bulk shipments of hazardous chemicals. Label information must either be attached to, or posted on the tank truck, tank car or similar vehicle, or place with the shipping papers in the vehicle; see my letter to you dated April 10. An employer may choose either method as long as the appropriate label accompanies the shipment.
You argue that both of these alternatives place an inappropriate burden on purchasers, requiring them to exert an active effort in ensuring that their employees are provided with labeling information. It has been suggested that OSHA permit labels to be separately mailed to purchasers at the time of each bulk shipment, or to send or mail labels at the time of the first shipment and, thereafter, only if the label is altered.
Neither of these suggestions are permitted under the present HCS, nor do they seem appropriate for incorporation. HCS labels serve purposes other than merely informing a downstream employer of a chemical's identity and potential hazards so that he might, in turn, inform his employees. For example, labels accompanying shipments warn employees receiving the shipment of the cargo's chemical hazards. The label quickly confirms the shipment's identity and the hazard it poses. Mailing a label separately would not serve employees that handle the incoming shipment. In addition, although the HCS's primary purpose was to protect manufacturing employees from chemical hazards, labels are expressly required on all containers of hazardous chemicals shipped by chemical manufacturers, importers and distributors regardless of their destination, so that all workers, manufacturing and non-manufacturing, will be alerted to the presence of hazardous chemicals and the availability of more detailed hazard information elsewhere. Mailing labels to purchasers will bypass those employees involved in transporting the hazardous chemical or goods.
Transmittal of labels with each and every shipment adds emphasis to the standard's requirements, further ensuring that employers and employees will remain cognizant of the importance of providing necessary chemical hazard information. With regard to manufacturing purchasers, they are required to have in-plant labeling programs under the HCS (see 29 CFR 1910.1200(f)(4)). They must ensure that appropriate labels are placed on containers within the workplace that hold hazardous chemicals even if those chemicals were received in a bulk shipment. If a manufacturer needs to duplicate labels from incoming hazardous chemical shipments it is his responsibility to obtain or develop the additional labels.
This HCS material safety data sheet transmittal requirements for distributors are specifically limited in the standard. Pursuant to paragraphs 1910.1200(b)(1) and 1910.1200(g)(7), distributors are only required to pass along a material safety data sheet to manufacturing purchasers or to other distributors who supply manufacturers. The standard does not require distributors to create such information. ~~On March 26, a guidance memorandum relating to this issue, was mailed to OSHA Regional Administrators (copy enclosed)~~.
[Correction 12/1/2004. The March 26, 1986 memo is no longer available. The information was incorporated into OSHA Instruction CPL 02-02-038 (formerly CPL 2-2.38) upon revision.]
This guidance memorandum should answer many of the questions raised in your letter. In an effort to ensure that the issues you raised are clarified, each of your questions (page 3 of your letter) is answered below. Also enclosed for your review is a letter I sent to Edward Merrigan, Counsel for the National Association of Recycling Industries (NARI) discussing many of these same issues.

1. Scrap dealers need only supply material safety data sheets to their customers when the goods being transmitted were received from a chemical manufacturer, as defined by the standard, and the goods are destined for a covered employer (establishment in Standard Industrial Classification (SIC) Codes 20-39). Where a distributor receives a product from an importer, the same material safety data sheet transmittal requirements must be applied. The importer must create, or obtain, a material safety data sheet or the hazardous chemicals it imports.
2. The answer is the reverse of answer one. Scrap dealers do not have to transmit material safety data sheets unless the conditions described above are met.
3. The standard's labeling and material safety data sheet requirements are generally concurrent requirements. However, although material safety data sheet need only be forwarded to manufacturing purchasers of hazardous chemicals, labels must remain on every hazardous chemical container received from a manufacturer, importer or other distributor, regardless of its destination. In addition, there are several specific labeling exemptions in the standard that you would be aware of. Generally, these HCS labeling exemptions are for hazardous chemicals subject to other Federal agency labeling regulations; see 1910.1200(b)(4). OSHA's requirements for the labeling of bulk shipments have been discussed earlier in this reply.
4. Generally, when the scrap is received from a non-manufacturer and is not accompanied by a hazard warning label, a scrap dealer would not have to create a label. If scrap from a non-manufacturer and a manufacturer are mixed or baled together, the chemical hazard information received from the manufacturer's label must be conveyed to scrap purchasers. In such circumstances, the scrap dealer may modify the label received from the manufacturers if the dealer believes such modifications would better describe the sources, constituents or hazards posed by the scrap during recycling.
5. An intermediate distributor need only provide required material safety data sheet when the goods being transmitted by the selling distributor were received from a chemical manufacturer, and the goods are destined for a covered manufacturing employer. The number of distributors in the chain has no effect on the responsibility to pass along required information.
6. If the second distributor does not sell the scrap to an employer covered by the standard (SIC Codes 20-39), then a material safety data sheet does not have to be provided. In addition, if the original scrap was not purchased from a chemical manufacturer (SIC Codes 20-39) or the scrap was originally an "article," as defined by the standard, manufactured by an establishment other than the one scrapping the item, then a material safety data sheet also would have to be provided.
7. In this question you establish a case where the "distributor" bales the scrap "articles" into a new form and ask whether the "distributor" would have to send a material safety data sheet. From your description it appears that such a distributor would be performing customary operations, those normally associated with employers classified under SIC 5093. Accordingly the HCS does not include any provision that would require this employer to create a material safety data sheet if one had not been received with the original scraps. OSHA however, wants to encourage scrap processors to create a material safety data sheet in this situation if they possess information regarding the metals present and the hazards they pose when handled or recycled. OSHA's main interest is in ensuring that employees are provided with the most accurate and complete information available.
   In some cases the distributor may be in a better position to create a material safety data sheet than the manufacturing user who receives the scrap. In most cases the manufacturing user will be a secondary smelter or foundry operator who is likely to have more knowledge and capabilities concerning the characteristics of metals. These industries are considered chemical manufacturers under the HCS and as such are required to comply with the standard's requirements for chemical hazard determination and creation of material safety data sheets.
8. As indicated in answers provided above, scrap dealers are "distributors" and are not required to create material safety data sheets. We can only assume that they generally know what they are buying and therefore if so desired could with reasonable assurance use one material safety data sheet to represent a mixed or merged load of the same type scrap of. OSHA does not have the expertise to begin to advise your association regarding methods of sorting scrap and processing the related paperwork flow. These procedures most certainly must be individualized to suit the needs of a specific business and take into consideration existing systems and procedures.

I hope the information provided will assist your members with implementation of the HCS, and I regret that I cannot provide a resolution that will remedy the technical problems you are encountering in your labeling programs.
Sincerely,
John B. Miles, Jr., Director
[Directorate of Enforcement Programs]
Enclosures
[Corrected 12/1/2004]

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[The OSHA page also reproduces the requester's correspondence and separate OSHA replies dated April 10 and January 14, 1986; those enclosures are omitted here. The June 6 letter above clarifies the earlier replies.]