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OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.
February 25, 2016
Mr. Chris Jahn
The Fertilizer Institute
425 Third Street, S.W.
Washington, DC 20024
Dear Mr. Jahn:
Thank you for your letter to the Occupational Safety and Health Administration's (OSHA), Directorate of Enforcement Programs, and the subsequent meeting held with members of my staff. The Fertilizer Institute (TFI), the Agricultural Retailers Association (ARA) and the Responsible Industry for a Sound Environment (RISE) requested guidance under the Hazard Communication Standard 2012 (HCS 2012) for the requirement to develop safety data sheets (SDSs) for operations involving custom blending of fertilizer. You also submitted a follow-up email, raising a concern about a potential conflict between HCS 2012 labels and DOT placards. Below is a brief summary of the background you provided, followed by your paraphrased questions and our responses.
Background: Agricultural retailers that resell fertilizers to farmers do not consider themselves manufacturers. In most cases, retailers provide their farmers with "custom blends," comprised of multiple nutrients that bridge the gap between soil nutrients levels and nutritional requirements of specific crops. The custom fertilizer blends prepared by agricultural retailers are either dry bulk blends or blends of nutrients in aqueous solutions. No chemical reaction takes place when a blend is prepared. Most fertilizer blends have the same hazard characteristics, for example, eye or skin irritant.
In most cases farmers will call in their "custom blend" order the same day they pick it up, which can be in as little as 30 minutes from the time they place the order. These "just in time" blends are loaded directly in a truck trailer, and then taken directly to the farm, where they are loaded in the applicator and applied to the field for which it was prescribed.
It is our understanding that because blending is considered production, the HCS requirements for preparing an individual SDS and label are triggered and as such, would be required for each custom blend. We were informed that OSHA would be willing to accept a "generic" SDS to cover custom blended fertilizers with a broad range of component parts, provided the hazards had not changed as a result of the blend.
Question 1: Is custom blending of fertilizer (i.e., where no chemical reaction occurs and no new hazards are created ), where the blend is immediately loaded for transportation to the end user (i.e., the farmer), considered "chemical manufacturing," or "producing," triggering the HCS requirements for labeling and generating SDSs?
Response: Yes. Paragraph (c) defines "chemical manufacturer" as "an employer with a workplace where chemical(s) are produced for use or distribution," and defines "produce" as "to manufacture, process, formulate, blend, extract, generate, emit, or repackage." Accordingly, blending fertilizer is "producing" a chemical under the HCS, with all attendant classifying, labeling, and SDS requirements. See 29 CFR 1910.1200(b)(1), (f)(1), (g)(1).
Question 2: If agricultural retailers are required to prepare new SDSs for their custom fertilizer blends, may they rely on the language at 29 CFR 1910.1200(g)(4) to prepare a single generic SDS to cover multiple blends? If this is the case, how similar do blends need to be to be covered under the same SDS? Specifically, what range of concentrations of components in blends are acceptable, especially where the underlying hazards are not changed as a result of the variation in the concentration of each component, and the hazard categorization is based on the "worst case"? Would the example "generic" SDS attached to our letter meet the HCS 2012 requirements?
Response: A chemical manufacturer is allowed to prepare a single SDS where complex mixtures have similar hazards and contents (i.e. the chemical ingredients are essentially the same, but the specific composition varies from mixture to mixture). 29 CFR 1910.1200(g)(4). Where a single SDS is used for similar mixtures or in cases of a batch-to-batch variability, concentration ranges of ingredients may be used. A chemical manufacturer or importer may have a line of products that are very similar, but can be varied slightly in composition to meet the needs of customers (i.e., farmer). For example, as in your situation, dry bulk fertilizer may be changed by varying the amount of the individual dry fertilizer ingredients needed. If the composition differences are small, and the hazard(s) remain the same, concentration ranges may be used for multiple, similar products.
The example "generic" SDS provided with your letter would meet, in principle, the intent of the HCS 2012 requirements as an acceptable single SDS exceptfor the information provided under Section 3, Composition/information on ingredients. Section 3 of the SDS requires disclosure of, among other things, the chemical name and concentration (exact percentage) or concentration ranges of all ingredients in a mixture that are classified as health hazards and are present above their cut-off/concentration limit or present a health risk below the cut-off/concentration limit. 29 CFR 1910.1200, Appendix D. OSHA permits use of a concentration range of an ingredient in Section 3 of the SDS when a trade secret claim is made, when there is batch-to-batch variability in the production of a mixture, or for a group of substantially similar mixtures with similar chemical composition. The example generic SDS you provided included the disclosure of several ingredients with concentration ranges of 0.1% - 95% or 98%. These concentration ranges are too large to be acceptable. The expectation for the use of a single SDS where there is variability in concentrations is a more narrow concentration range difference that would meet the intent to disclose the actual concentration range, provided that the range is an accurate representation of the variation. Concentration ranges, if used, must be based on the information available to the classifier, such as analysis results, product specifications, or nature of the process, and the high end of the range used may not change the reported hazard classification.
When a range is disclosed, SDSs must be in compliance with the requirements in Section 2, Hazard classification, of the HCS 2012. The maximum concentration must be used for the purposes of establishing whether the mixture is classified in a category or subcategory of a health hazard class. The information provided on the safety data sheet must be based on data available that correspond to the most hazardous concentration of each ingredient in the mixture, whether those data pertain to an ingredient or the mixture as a whole. Thus, the hazard classification and the health and safety information provided on the SDS must reflect the highest degree of hazard that the mixture could present.
The remaining information in the other sections of the example "generic" SDS provided appears to be appropriate, but OSHA cannot provide a blanket approval as the agency does not approve or endorse SDSs.
Question 3: If OSHA does not view the generation of generic SDSs, as discussed above, as HCS 2012 compliant, what could OSHA recommend as guidance to accommodate the small entity agricultural custom blending operations?
Response: See response to question 2 above.
In a subsequent meeting held on August 20, 2015, (followed up by email on 8/21/15), TFI, ARA and RISE raised additional concerns related to guidance information provided in OSHA Instruction CPL 02-02-079, Inspection Procedures for the Hazard Communication Standard (HCS 2012). Specifically, these additional concerns relate to the guidance outlined on pages 48 & 49 for labeling of tanker and rail cars, and you requested the information be revised. You also stated that you were concerned that including an HCS pictogram on a tanker or rail car could be in conflict with DOT's regulations at 49 CFR 172.502(a)(2) because it might be confused with a DOT placard.
The guidance provided in CPL 02-02-079 on the labeling of tanker and rail cars remains consistent with the guidance provided since 1994. Paragraph (f)(5) of HCS 2012 requires containers to be labeled in a manner that does not conflict with DOT regulations; additionally, DOT's regulations at 172.401(c)(5) explicitly permits the transportation of containers labeled in accordance with the Globally Harmonized System of Classification of Labelling of Chemicals (GHS). Accordingly, OSHA does not believe that there is any conflict between DOT's placarding and labeling requirements and the labeling requirements in HCS 2012. Therefore, HCS 2012 labeling where a tank truck, rail car, or similar vehicle comprise the container for the hazardous chemical, the labeling information may either be posted on the outside of the vehicle or attached to the accompanying shipping papers or bill-of-lading. Thus, there is no need for OSHA to revise the guidance information provided in CPL 02-02-079.
Thank you for your interest in occupational safety and health. We appreciate the ACA bringing this industry concern to our attention, and hope you find this information helpful. OSHA's requirements are set by statute, standards, and regulations. Our letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA's interpretation of the requirements discussed. From time to time, letters are affected when the Agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To ensure that you are using the correct information and guidance, please consult OSHA's website at https://www.osha.gov.
If you have further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.
Thomas Galassi, Director
Directorate of Enforcement Programs