June 6, 1986

Mr. David M. Wassum
Director of Safety
Institute of Scrap and Steel, Inc.
1627 K Street, N.W.
Washington, DC 20006

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]

April 24, 1986

Mr. Patrick Tyson
Assistant Secretary for Occupational Safety and Health
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, DC 20210

Dear Mr. Tyson:

We are writing in an attempt to ascertain exactly what compliance posture the Agency has adopted toward enforcement of the Hazard Communication Standard (HCS) insofar as it may apply to the metallic scrap processing industry.

Nearly two years ago, in the summer of 1984, we met with Ms. Jennifer Silk of your staff to identify this industry's compliance obligations under the HCS. At that time, we expressed some uncertainty over the meaning of the terms "distributor" and "article" as defined in the Standard, and sought direction from the Agency on exactly what requirements would be imposed on scrap processors when the Standard took effect in 1985. Ms. Silk responded unequivocally that scrap processors are "distributors" under the Standard. Additionally, Ms. Silk stated that metallic scrap would not be considered an "article" because under normal conditions of use (i.e., recycling through re-melting), the material could be expected to release a "hazardous chemical" in the form of metallic fumes or dusts.

The question we then posed to Ms. Silk was: would scrap processors be required to "ensure that material safety data sheets ... are provided" to purchasers of metallic scrap [in compliance with 29 CFR 1910.1200(g)(7)] even if MSDS's were not provided by the "manufacturers" of the material (i.e., the industrial generators), and/or other "distributors" (i.e., scrap collectors) from whom scrap processors obtain metallic scrap? In other words, would scrap processors be required to develop their own metallic scrap MSDS's if such documents were not separately provided by the sources of the metallic scrap? Ms. Silk answered unequivocally in the affirmative. While scrap processors might be unable to obtain MSDS's from the "manufacturers" or other sources of metallic scrap, they would be required to provide MSDS's to the purchasers of that same metallic scrap, even if this requirement meant that the processors, as "distributors," would have to develop their own MSDS's.

With this clear statement of Agency intent, we began a comprehensive program to provide information to our member companies and to draft the necessary materials (i.e., metallic scrap MSDS's) which they would need for compliance. As a result of the expenditure of hundreds of man-hours of staff time, and many thousands of dollars in material costs, we finalized a compliance program for our members well in advance of the Standard's compliance deadline. Material Safety Data Sheets were provided for distribution to purchasers, and detailed compliance instructions were issued to members. The scrap processing industry, at least that portion which is represented by this Institute, was capable of compliance with the Standard by November 25, 1985.

In the course of this effort, we again sought guidance from the Agency, this time concerning an interpretation of the labeling requirement under 29 CFR 1910.1200(f)(1). We initially assumed that "container" included tank trucks and the like (OSHA Instruction CPL 2-2.38). We inquired whether this interpretation also applied to trucks, rail cars, and similar vehicles used to transport metallic scrap in bulk. Field Operations personnel responded that the Agency intended to enforce the Standard's labeling requirement to include precisely admittedly unusual circumstances involving vehicles, the Agency proposed to modify the Standard by interpretation: such bulk "containers" used to transport metallic scrap or other so-called "hazardous chemicals" would not have to be directly labeled; instead, a label would have to attached to the "shipping papers" for such material.

Severe procedural difficulties arose in complying with the new directive. As a result, we again contacted Field Operations and attempted to reach a compromise which would meet the objective of the standard's labeling provision, but permit a reasonable alternative approach to compliance. After extended discussion, a Field Operating representative agreed verbally with our suggested approach. We sought written confirmation of the Agency's concurrence in a letter to Mr. John Miles dated December 5, 1985 (copy enclosed). In this letter, we summarized our understanding of the Standard's requirements, and requested a modification in the Agency's labeling requirement for bulk shipments of metallic scrap. The requested modification, for bulk shipments of metallic scrap. The requested modification, for bulk shipments only, would have permitted labels to be provided in the same way MSDS's are provided: at the time of initial shipment, and subsequently only upon request or upon modification of the label's contents. The Agency agreed with our suggested approach (see enclosed copy of Mr. Miles' letter dated January 14, 1986), and we accordingly advised our members.

Thereafter, we were contacted by a Field Operations representative who expressed misgivings about our suggested approach. We were informed that the Agency really did not intend to permit a change in the labeling procedure, and that in fact such a change would involve a modification of the Standard which was clearly impermissible (conveniently ignoring the fact that the Agency had already modified the same labeling requirements by its own interpretation concerning "shipping papers"). The Agency's backtracking on this issue led to a second letter from Mr. Miles dated April 10, 1986 (copy enclosed), in which he gratuitously alleges that we "misinterpreted" the intent of his earlier "guidance." Our response to Mr. Miles dated April 22, 1986, is also enclosed.

The results of all this interchange between the Institute and the Agency can be summarized as follows:

1. Metallic scrap is not an "article" as defined in the HCS. Instead, it is a "hazardous chemical" because it may release a potential health hazard under normal conditions of use (i.e., recycling).
2. Scrap processors are "distributors" under the HCS. As such, the Standard requires that they "ensure that material safety data sheets ... are provided to other distributors and manufacturing purchasers."
3. As a practical matter, the requirement to "provide" means that scrap processors must develop MSDS's in situations where they are not specifically provided by the "manufacturer" or other source of the metallic scrap.
4. All metallic scrap, whether containerized or in bulk, must be labeled with appropriate hazard warnings.

To date, this Institute and the companies represented by this Institute have made a good faith effort to comply with all these requirements, regardless of their logic or potential effectiveness.

We now learn of a March 26 memorandum to Regional Administrators from Mr. Miles under which the Agency apparently asserts it will not enforce a requirement that MSDS's be provided by scrap processors, unless the MSDS's are originally provided by the "manufacturer" of the metallic scrap.

We seem to have some full circle. For nearly two years, Agency personnel have consistently stated that MSDS's must be provided by scrap processors, even if it means preparing the documents on their own. Just five days after Mr. Miles' memorandum apparently was issued, the Institute conferred with Field Operations concerning unrealistic labeling requirements. Despite an exchange of letters and a face-to-face meeting with Mr. Miles and his staff, and despite their inability to find any fault with our proposed labeling alternative (except to say the proposal does not comform with the letter of the Standard), we are told that scrap processors must label all their metallic scrap shipments. In light of the recent memorandum, does this mean that an MSDS is not required from a distributor unless he has been provided one, but a label is always required?

The two means of communication are inextricably related in the HCS. The same sequence of logic must be followed to comply with each of these requirements. If the Agency has now decided that MSDS's are not required to be developed by scrap processors, exactly how does the Agency propose that scrap processors are to determine whether labels are required? Specifically, in the absence of an MSDS, how will it be established whether the material being shipped is in fact a "hazardous chemical," thus requiring a label? Without an MSDS, how will appropriate warning language for the label be established (i.e., potential hazards, necessary precautions, etc.)? Likewise, if the "identity" on the label must be the same as that on the MSDS (as specified in OSHA Instruction CPL 2-2.38), how can a label be prepared in the absence of an MSDS?

At this point, we would appreciate a clear statement of Agency policy on this matter. Since our members must attempt to comply with the regulations, they deserve an answer to these questions:

1. Under what specific conditions must a processor provide a Material Safety Data Sheet to a purchaser of metallic scrap?
    
2. Under what specific conditions does a scrap processor not have to provide a Material Safety Data Sheet to a purchaser of metallic scrap?
    
3. Under what specific conditions must a scrap processor label shipments of metallic scrap leaving the workplace?
    
4. Under what specific conditions does a scrap processor not have to label shipments of metallic scrap leaving the workplace?
    
5. Under what specific conditions must a "distributor" (e.g., auto wrecker, obsolete scrap collector) provide an MSDS to another "distributor" (i.e., scrap processor) who purchases metallic scrap from him?
    
6. Under what specific conditions does a "distributor" (e.g., auto wrecker, obsolete scrap collector) not have to provide an MSDS to another "distributor" (i.e., scrap processor) who purchases metallic scrap from him?
    
7. In many situations, material entering a scrap processing operation arguably will consist of "articles" (e.g., auto hulks, obsolete appliances, etc.). After processing, this same material (now totally changed in form to be acceptable for remelting into new metallic products) presumably will be classified under the HCS as a "hazardous chemical" (i.e., it will consist of prepared grades of metallic scrap, some of which might be expected to release potentially hazardous fumes under normal conditions of recycling by remelting). Does the outbound material in this situation require an MSDS and labels? If so, who is responsible for preparing them?
    
8. Scrap processors typically receive multiple in-bound shipments of material from numerous sources. Some in-bound material may consist of "articles" other material may be considered a "hazardous chemical." Some of these in-bound shipments may be accompanied by MSDS's others may not. During processing of the material, any individual identity is lost. MSDS's pertaining to particular segments of the material before processing may not necessarily describe the material after processing. Does the outbound material in this situation require MSDS's and labels? If so, how will the scrap processor determine which documents must be provided? How will downstream purchasers of the processed metallic scrap obtain information about the potential hazards of material for which the scrap processor did not receive an MSDS?

We look forward to your prompt reply.

Sincerely,

David M. Wassum
Director of Safety

Enclosures

April 22, 1986

Mr. John B. Miles, Jr., Director
[Directorate of Enforcement Programs]
Occupational Safety and Health
Administration
U.S. Department of Labor
200 Constitution Ave., NW
Washington, DC 20210

Dear Mr. Miles:

We have received your letter dated April 10, 1986 concerning labeling requirements under the Hazard Communication Standard. As you will recall, when we met with you and your staff on March 31, we discussed in detail the impracticality of the Standard's labeling requirements as applied to bulk shipments of metallic scrap. At that time, you indicated that a decision had not yet been made concerning OSHA's position on this issue. We specifically requested the opportunity to meet with you and Acting Assistant Secretary Tyson, if necessary, to again explain our position on this issue before another official interpretation was issued, which would alter the conclusion of the prior OSHA letter on the subject. Since your letter was sent without our being granted the meeting with Mr. Tyson which your staff assured us would be an available option, and since you have neglected to return our subsequent telephone calls, we are forced to respond to your latest action in writing.

On December 5, 1985, we submitted a request to OSHA for written confirmation of a Field Operations staff member's interpretation concerning labeling requirements. Specifically, we requested confirmation of your staffer's verbal approval "that our proposed procedure (i.e., providing labels for bulk shipments in the same manner that Material Safety Data Sheets are provided) would be an acceptable method of fulfilling" the labeling requirement. We further described in detail the procedure which we intended to convey to member companies:

"For ... bulk shipments of metallic scrap, an appropriate label must be sent to each purchaser prior to or at the time of initial shipment. In addition, an explanatory letter must be sent with the label, describing how the label should be used on the manufacturing purchaser's premises. Additional labels must be provided upon request, and the purchaser must be informed of this availability." (Emphasis added.)

You responded by letter on January 14, 1986, noting:

"It would be acceptable to send an appropriate label to each purchaser prior to or at the time of initial shipment along with the explanatory letter you propose."

Nowhere in your letter was it suggested or implied that additional labels would have to be sent with each subsequent shipment.

In your latest letter, you suggest that we "misinterpreted the intent" of your earlier "guidance." We unambiguously described a prudent approach to labeling bulk shipments (see attached copy of letter), and you unambiguously pronounced the procedure "acceptable" (see attached copy of your response). Obviously, we have no way of ascertaining the Agency's "intent." However, to imply that we somehow misinterpreted your words is simply wrong.

Despite our attempts to explain the impracticality of the OSHA labeling program when applied to metallic scrap shipped in bulk, you have totally failed to address the problem. We explained that providing labels with "shipping papers" was impractical, since many bulk shipments are transported without any paper documentation. In your most recent letter, you attached an excerpt from Department of Transportation regulations, purporting to demonstrate that "shipping papers" must accompany every shipment of hazardous material. You apparently fail to realize that metallic scrap, in almost all cases, is not a "hazardous material" under DOT regulations. The issue remains: how do you attach a label to shipping papers (or incorporate label language into such documents), if no "shipping papers" exist?

Aside from that practical shortcoming, serious conceptual problems are present in OSHA's suggested procedure which demonstrate a lack of understanding of how many businesses operate. The purpose of a label, obviously, is to provide hazard information to employees in the workplace who may be exposed to certain hazards. A label on a container of material which is present in the work area may accomplish this objective.

For bulk shipments, however, you suggest that the "label" must be attached to or incorporated in some ill-defined "shipping document." Even when such documents exist, their ultimate destination will certainly be someplace other than the work area where the shipped material will be used, or where employees exposure may occur. The "shipping paper" (whether a manifest, an invoice, or some other document) will be directed to the purchasing, accounting, or similar administrative office -- not to the work area where the material will be used. Indeed, the document's destination may well be in a different location or even a different state than that in which the workplace is located. There is no basis to assume that any workplace benefit will automatically accrue because some warning language is included in, for example, an invoice. Indeed, during our last meeting in your office, you agreed that to merely generate paper was not the purpose of the program. You also agreed that it was more important to get the message to the workplace than to perfectly prepare labels that would most likely end up in places other than the workplace, in many cases the trash receptacle.

For hazard information to be present in the actual workplace, the purchaser must first create a sign, placard, or other device using the label language provided by the shipper, and then place this device in the appropriate location in the workplace. These measures require the active effort of the purchaser, not simply passive acceptance of a labeled container. Once the device has been appropriately placed in the workplace, there is no need for additional "labels" with each subsequent shipment. Indeed, during the March 31 meeting, you recognized the lack of significance of 1000 labels per day attached to shipping documents versus the propriety of one label leading to the proper placarding of the workplace. The OSHA-prescribed procedure will simply generate massive amounts of useless paperwork, with no beneficial effect on employee safety or health.

We explained these problems in great detail to you and your staff on March 31. No one disputed the logic of our position. We therefore assumed that the Agency would re-affirm our procedure, since it would achieve the worthy informational objectives of the Standard's labeling requirement, at the same time avoiding the clear practical shortcomings of the original OSHA interpretation on the subject. Instead, the Agency appears intent on enforcing a poorly conceived procedure which will not accomplish the Standard's objective, but will impose massive paperwork requirements on industry.

Despite the lack of understanding and the refusal to consider substantive issues, we remain hopeful that a reasonable resolution of this matter can be achieved. Accordingly, we look forward to your prompt response.

Sincerely,

David M. Wassum
Director of Safety

April 10, 1986

Mr. David M. Wassum
Director of Safety
Institute of Scrap Iron and Steel, Inc.
1627 K Street, N. W.
Washington, DC 20006

Dear Mr. Wassum:

On January 14, 1986, I wrote you in response to your request for interpretation on certain requirements of Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS). Subsequently, I have learned that your organization has misinterpreted the intent of our guidance on the labeling requirements of the HCS.

The issue concerned the physical infeasibility and practical difficulties involved with placing labels on scrap and scrap shipments. Similar infeasibility problems also apply to the bulk transfer of chemicals by tank or hopper trucks and rail cars. OSHA recognizes these difficulties and permits an alternative.

Where it is infeasible to affix labels to bulk containers such as rail cars or trucks carrying bulk shipments, labels must be attached to the shipping papers accompanying the product. Label information meeting the requirements of paragraph (f) of 29 CFR 1910.1200 may be incorporated into shipping documents, in lieu of attaching separate labels, as long as such information is clearly identified. In other words, shipping paperwork may be modified to include a new block of information identified as OSHA labeling requirements.

Chemical manufacturers, importers and distributors that select the above described labeling alternatives must inform their customers of the location of the label or label information. This can be accomplished as part of the purchasing arrangements. This is essential so that manufacturing purchasers can train their employees who receive goods to locate label information and make proper use of them.

This does not and was not intended to negate the duty to provide label information with each and every shipment.

The transmission requirements for material safety data sheets and labels are different under the HCS. Material safety data sheets do not have to be sent with every shipment. Paragraph (g)(6) of the HCS reads "chemical manufacturers or importers shall ensure that distributors and manufacturing purchasers of hazardous chemicals are provided an appropriate material safety data sheet with their initial shipment and with the first shipment after a material safety data sheet is updated."

With respect to labels, paragraph (f)(1) of the HCS reads "the chemical manufacturer, importer, or distributor shall ensure that each container of hazardous chemicals leaving the workplace is labeled, tagged or marked..."

To summarize, the interpretation that label information may accompany each shipment in lieu of being affixed is already an accommodation under the HCS. The misinterpretation that only one transmission is required would not be in compliance with the standard.

I hope that this clarifies our interpretation. Please feel free to contact us again if further assistance is needed.

Sincerely,


John B. Miles, Jr., Director
[Directorate of Enforcement Programs]

January 14, 1986

Mr. David M. Wassum
Director of Safety
Institute of Scrap Iron and Steel, Inc.
1627 K Street, N. W.
Washington, DC 20006

Dear Mr. Wassum:

This is in response to your letter requesting guidance concerning the labeling requirements of the Hazard Communication Standard, 29 CFR 1910.1200, as applied to scrap metal. Please accept my apology for the delay in response.

The warning language which you propose for use on the labels would not be satisfactory in all situations since you are referencing only the aspects of fume generation during melting. The dusts generated by some metals, such as lead oxide dust which is easily dissociated from the metal in the reclaiming of lead cable, can also be hazardous. For example, airborne over-exposures to lead can result from the handling of reclaimed lead cable. The warning language you propose for the label would be acceptable only for those metals which would not create an airborne dust exposure during handling of the reclaimed metal. The wording would need to be modified to warn against potential dust exposures when appropriate.

We have reviewed your proposed advice to your member companies concerning the provision for labeling shipments of metallic scrap. It would be acceptable to send an appropriate label to each purchaser prior to or at the time of initial shipment along with the explanatory letter you propose. This method of supplying a label separately would be appropriate only for bulk shipments of scrap metals.

Please do not hesitate to contact us again if you need further assistance.

Sincerely,


John B. Miles, Jr., Director
[Directorate of Enforcement Programs]

December 5, 1985

Mr. Patrick Tyson
Assistant Secretary for Occupational Safety and Health
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Avenue N.W.
Washington, D.C. 20210

Dear Mr. Tyson:

On behalf of the Institute of Scrap Iron and Steel and its member companies, we are seeking an official interpretation of Certain requirements of the Hazard Communication Standard (29 CFR 1910.1200). Specifically, we are concerned with the labeling requirements of 29 CFR 1910.1200(f)(1), and the definition of "container" at 29 CFR 1910.1200(c).

The institute of Scrap Iron and Steel represents over 1200 companies primarily engaged in processing of metallic scrap for recycling (SIC 5093). It is our understanding, based on prior conversations with OSHA officials, that metallic scrap processors are subject to certain Hazard Communication Standard requirements for two reasons: scrap processors are included within the definition of "distributor" specified in 29 CFR 1910.1200(c); and metallic scrap is not exempted as an "article" because its expected end use is in recycling by re-melting, and under those conditions it could release potentially hazardous fumes. As the standard is currently written, we understand that the following obligations apply to scrap processors effective November 25, 1985:

1. Provide Material Safety Data Sheets (MSDS) to "other distributors and manufacturing purchasers" of metallic scrap. [29 CFR 1910.1200(g)(7)]
    
2. Appropriately label containers of metallic scrap leaving the workplace. [29 CFR 1910.1200(f)(1)]
    

Our questions concern two aspects of the labeling requirements which apply to shipments of metallic scrap. We discussed this situation with Mr. John Healy of the Field Operations staff on October 22 and October 25, 1985. Initially, we sought guidance on "appropriate hazard warnings" [29 CFR 1910.1200(f)(1)(ii)] to be used in conjunction with any required labels.

The problem of determining appropriate warning language for metallic scrap labels is particularly difficult. Under ordinary shipping, storage, and handling circumstances, metallic scrap obviously presents no appreciable hazard. Indeed, for most metallic scrap, the requirements of the Hazard Communication Standard would not even apply under these circumstances. The potential hazards arise, and the standard's requirements are triggered, because metallic scrap ultimately will be melted. When this process occurs, potentially harmful fumes may be released. Unfortunately, the exact chemical composition of a particular metallic scrap shipment is not ordinarily known. The only feasible approach for identifying composition, and the method we used in developing metallic scrap Material Safety Data Sheets, is to list the potential ranges of each element which reasonably can be expected to be present in a particular type of scrap metal (e.g., aluminum scrap, carbon steel scrap, etc.). The difficulty with this approach is that specific potential hazards cannot be identified with certainty, since the potential hazards depend on the presence and the actual concentration of particular chemical elements within the scrap. The complexity and range of potential hazards can reasonably be addressed on a document such as a Material Safety Data Sheet. They cannot be adequately addressed in the abbreviated format of a label. Therefore, out of necessity, metallic scrap labels must include only a general warning, with specific information provided by the relevant Material Safety Data Sheet. These problems were discussed in some detail with Mr. Healy, and he concurred that the following warning language would be sufficient for use on labels pertaining to metallic scrap:

"During melting, may release fumes which could be harmful if inhaled. Consult MSDS for details."

The other labeling problem confronting scrap processors concerns the definition of "container." There are two primary means by which metallic scrap is shipped: in drums, and similar structures; and in bulk, via rail cars, trucks, and the like. Clearly, the former method (drums, boxes, etc.) involves the use of "containers," each of which must be labeled in accordance with the standard. In contrast, bulk shipments are not typically thought to involve "containers," and reasonable doubt exists whether such shipments would require labels.

Mr. Healy stated OSHA's position that bulk transportation vehicles are in fact "containers" under the Hazard Communication Standard, and therefore technically would require labels. However, in consideration of the somewhat unusual circumstances involved, he indicated that modified labeling procedures should be followed in such cases. Specifically, the OSHA interpretation enunciated by Mr. Healy required that an appropriate label should be sent with shipping documents pertaining to each bulk shipment of metallic scrap, in lieu of labeling the vehicle(s). In addition to the label, Mr. Healy suggested that the scrap processor include an explanatory letter, describing the suggested use of the label on the purchaser's premises.

This requirement, at least insofar as it applies to the scrap processing industry, is impractical, overly burdensome, and ineffective. Several significant problems exist. First, the standard imposes no obligation on transporters to preserve or deliver the labels which are attached to the shipping papers by the shipper. Therefore, there is no assurance that the labels will reach the intended recipient, the manufacturing purchaser. Secondly, in many cases (particularly for rail and intermodal shipments), no "shipping papers" actually accompany the shipment to destination. Transportation is arranged entirely by telephone or electronic communication, eliminating the paper documentation which formerly existed, or the documents move from the shipper to the carrier, not the receiver. In such cases, there is no paperwork to which a label could be affixed, even if required, or if there is a shipping document, it does not go to the receiver's workplace.

In addition to the interpretation's procedural shortcomings, a significant practical difficulty exists in complying with the labeling requirement as interpreted. Much of the metallic scrap sold for recycling is brokered through one or more intermediate companies. These brokerage firms and intermediates usually perform no material processing. Instead, they typically combine loads of scrap from multiple sources, and functions may be performed by intermediate without actually taking physical possession of the material, but simply by managing the transportation of the material from source to ultimate purchaser. Under OSHA's interpretation of the labeling requirement, these intermediates will be responsible for collecting labels from multiple suppliers and forwarding appropriate labels to manufacturing purchasers. Completion of this task will be physically impossible in many cases, since there often goes to a particular destination. In addition, distribution of identical labels with each shipment will only compound the paperwork burden, while adding nothing to the protection of manufacturing purchasers' employees.

The purpose of the labeling requirement obviously is to insure that hazard information is available to employees in the workplace. Provision of a label on each "container" (as the term is customarily understood) might be considered a simple and effective method for accomplishing this objective. A label is attached to a drum, box, etc. before it leaves the workplace, and must remain on that container until the material is consumed at the purchaser's place of employment. Thus, hazard information is accessible to exposed employees throughout the use cycle. The objective is not so simply accomplished when the definition of "container" is strained to encompass transportation vehicles, as in OSHA's recently issued enforcement guideline (OSHA Instruction CPL 1-1.38). In this case, despite the best efforts of a shipper in providing a label with the shipping documents, the presence of hazard information in the workplace requires an active effort of the purchasing employer, rather than passive acceptance of an already labeled container. Since bulk shipments of metallic scrap are by definition "uncontained," the purchasing employer must post the provided label or otherwise mark the area where hazards may be present. Once this posting is accomplished, the purchaser has no likely need for additional labels with each new shipment of identical material.

It is readily apparent that OSHA's labeling requirement, as originally interpreted, presents some severe procedural and practical problems for shipments of bulk scrap metal. The practical solution to these problems is to require the separate provision of a label, by mail or otherwise, directly to the purchaser at the time of initial shipment. The same procedure used to provide Material Safety Data Sheets to purchaser would be adequate for insuring that labels are also provided to a purchaser for use in protecting employees in the purchaser's workplace.

Because of the difficulties posed by OSHA's labeling interpretation, we attempted to discuss this situation again with Mr. John Miles on December 3, 1985, and were directed to Mr. Joe Hopkins of the Field Operations staff. During a telephone discussion on December 3, 1985, Mr. Hopkins concurred that the purpose of the standard's labeling requirement is to get information into the workplace, not to label vehicles in transit. He also agreed that our proposed procedure (i.e., providing labels for bulk shipments in the same manner that Material Safety Data Sheets are provided) would be an acceptable method of fulfilling this requirement.

Accordingly, in response to verbal instructions from your Field Operations staff, we intend to advise our member companies of these specific requirements for labeling shipments of metallic scrap:

1. Labels must be provided to each purchaser of metallic scrap. Each drum, box, and similar container of metallic scrap leaving the workplace must be individually labeled.
   
   Transportation vehicles used to haul bulk shipments of metallic scrap do not have to be labeled.
   
   For such bulk shipments of metallic scrap, an appropriate label must be sent to each purchaser prior to or at the time of initial shipment. In addition, an explanatory letter must be sent with the label, describing how the label should be used on the manufacturing purchaser's premises. Additional labels must be informed of this availability.
    
2. Each label must include: the name of the material (keyed to the appropriate Material Safety Data Sheet); the name and address of the scrap processor or other responsible party; and the following warning text:

   "During melting, may release fumes which could be harmful if inhaled. Consult MSDS for details."

3. Intermediate processors or brokers will be responsible for distributing appropriate labels to manufacturing purchasers. This requirement can be fulfilled either by forwarding the appropriate suppliers' labels to the purchaser, or by providing a label in the name of the intermediate company. The intermediate company will also be responsible for filling requests for additional labels from any purchaser.

Clearly, we believe that this procedure will provide conditions which are actually more protective of employee health, but at least as safe and healthful as those provided under OSHA's interpretation of the labeling requirement. The scrap processor or intermediate will have the responsibility for providing appropriate labels to each purchaser. (Under OSHA's interpretation, the scrap processor must only provide a label to the transporter. The purchasing employer will have the responsibility for using the provided label to placard or otherwise mark the work area(s) where the hazards may be present. (The purchaser has the identical responsibility now under OSHA's labeling interpretation.) Thus, this suggested procedure will provide equal (or greater) protection to employees, and reduce the burden on all parties.

We therefore request a written confirmation from your office that these actions comply with requirements of the Hazard Communication Standard. We look forward to your prompt confirming response.

Sincerely,

David M. Wassum
Director of Safety