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.

December 14, 2015

Mr. Lee Coogan
Executive Director
Sorptive Minerals Institute
1155 15th St., NW, Suite 500
Washington, DC 20005

Dear Mr. Coogan:

Thank you for your March 9, 2015, letter to the Occupational Safety and Health Administration’s (OSHA) Directorate of Enforcement Programs regarding OSHA’s revised Hazard Communication Standard (HCS 2012), 29 CFR 1910.1200. You requested an interpretation regarding the labeling requirements for absorbent clay products. This letter constitutes OSHA’s interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. After a background summary, your questions are paraphrased below, followed by our response.

Background: Absorbent clay products are used in a variety of applications including oil and grease absorbents, oil and gas exploration, soil amendments, filtration aids, and cat litter. These clays may contain small amounts of crystalline silica, which has been classified by the International Agency for Research on Cancer (IARC) as a Class 1A carcinogen. Manufacturers of absorbent clay products package them in various configurations, including individual containers such as bags and jugs, or in bulk as loose clay in railcars or truck trailers. In addition, individual containers are typically packaged for shipment in cases, bales, or shrink-wrapped on pallets.

Question: Because of the crystalline silica content of absorbent clay products, what are OSHA’s requirements for labeling or placarding the product containers, including when packaged in various configurations for shipment?

Response: As an initial matter, before determining what label elements (e.g., pictograms, hazard statements) are required by HCS 2012 for product labels, manufacturers must first classify their chemicals, as required by paragraph 29 CFR 1910.1200(d). Only chemicals that are classified as hazardous under the HCS require HCS labeling. Since absorbent clays are chemical mixtures and possibly include a carcinogenic component, when classifying these mixtures manufacturers and importers must specifically consult subparagraphs 1910.1200(d)(3)(i), (d)(3)(ii), and Appendix A paragraphs A.6.3, Classification Criteria for Mixtures, and A.6.4, Classification of Carcinogenicity.

If classified as a hazardous chemical, then when a clay product is packaged for individual sale (e.g., in bulk sacks or jugs) to downstream users, each individual package must be labeled to meet the requirements of either HCS 2012 or the Consumer Product Safety Commission (CPSC). When a product meets the definition of a consumer product, as defined at paragraph 1910.1200(b)(5)(v), it is exempt from the HCS labeling requirements. Products that do not meet the consumer product exemption require an HCS label on the outside of the immediate product container. The specific information required on labels is explained in paragraphs 1910.1200(f)(1)(i)-(vi). For more guidance, please consult OSHA’s informational brief on labels and pictograms at www.osha.gov/Publications/OSHA3636.pdf*.

When individual containers are packaged for shipment inside a larger container, the outer container does not require an HCS label. Only the immediate container holding the chemical product requires a HCS label.For further explanation of this point, please see the two enclosed OSHA letters of interpretation, dated December 20, 2012, to Mr. Gary Valasek, and November 9, 1990, to Mr. John Boyan.

Please note that, if applicable, manufacturers, importers, and distributors must also follow the U.S. Department of Transportation’s (DOT) Hazardous Materials Regulations (49 CFR Parts 171 through 180), for marking, labeling or placarding their shipments of products for transport. When a tank truck or rail car is the container holding the hazardous chemical, DOT labeling information may either be posted on the outside ofthe vehicle or attached to the accompanying shipping papers or bill-of-lading. Labels may not be shipped separately. Further guidance on DOT labeling requirements for bulk railcars and truck trailers may be found at http://www.dot.gov/ or by phoning the DOT Customer Service Center at 202-366-4000.

It is important to note that the HCS 2012 pictograms do not replace the DOT’s diamond-shaped labels for the transport of hazardous chemicals. If a label has a DOT transport pictogram, Appendix C to § 1910.1200, Allocation of Label Elements (Mandatory), paragraph C.2.3.3 states that the corresponding HCS pictogram shall not appear. However, DOT does not view the HCS pictogram as a conflict, and for some international trade both DOT and HCS pictograms may need to be present on the label. OSHA intends to revise paragraph C.2.3.3 to allow both labels to appear. Until OSHA does so, it will not enforce this requirement of HCS 2012 and will allow both DOT and HCS pictograms for the same hazard on a label.

While the DOT diamond label is required for all hazardous materials on the outside shipping containers, chemicals in smaller containers inside the larger shipped container do not require the DOT diamond. But they do require an HCS label, as explained above.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA’s requirements are set by statute, standards, and regulations. Our interpretation letters 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 http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at 202-693-2190.

Sincerely,

Thomas Galassi, Director
Directorate of Enforcement Programs

Enclosures

* Accessibility Assistance: Contact the OSHA Directorate of Enforcement Programs at (202) 693-2129 for assistance accessing PDF, DOC and ZIP materials.