June 23, 2021

Mr. Hans Craen
Secretary General
European Portable Battery Association
Avenue de Tervueren 188 A, Postbox 4,
B-1150 Brussels,
Belgium

Dear Secretary General Craen:

Thank you for the letter to the U.S. Department of Labor, Occupational Safety and Health Administration’s (OSHA) Directorate of Enforcement Programs, from you and other international battery producers, associations, and special interest groups that raised concerns on OSHA’s application of its Hazard Communication standard (HCS), 29 CFR § 1910.1200, to “lithium-ion” batteries. This letter constitutes OSHA’s interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence. Please excuse the delay in our response.

Background: The European Portable Battery Association and representatives of several other international battery producers and special interest groups (i.e., the Latin American Battery Association, the Battery Association of Japan, EUROBAT, Electro-Federation Canada, and RECHARGE) have been made aware that OSHA does not consider lithium-ion batteries to be “articles” under its HCS.¹ You expressed concern that this will have a significant impact on the industry since it would require compliance with the HCS by supplying safety data sheets (SDSs), labelling products, and training employees. You and the other representatives urged OSHA to carry out a complete risk assessment and take into account the three pillars of sustainable development (social, economic, and environment), and give consideration to practical opportunities available for the management of identified risks.

Your collective concerns have been paraphrased below, followed by our responses. Our responses refer to lithium-ion (Li-ion) batteries and battery packs and Li-metal cells.

Question 1: Will OSHA conduct a risk assessment on Li-ion batteries to determine their applicability to the HCS?

Response:  The HCS places the primary responsibility for chemical hazard classification on the manufacturer or importer of the material or substance.  See 29 CFR §§ 1910.1200(b)(1), (d)(1).  The original manufacturer is in the best position to develop and disseminate this information, not only because it ordinarily has the greater scientific expertise with respect to the chemicals it produces or uses in its product, but also because it often is the only one who knows the identity of the chemicals.  See 48 Federal Register 53322.  Similarly, importers are in the best position to either develop the chemical hazard information or obtain it from the foreign manufacturer or supplier.

When conducting the hazard classification, the manufacturer or importer must bear in mind that the HCS classification is based on the intrinsic hazards posed by a chemical/product, not the risk. Risk refers to the probability that an adverse effect will occur with specific exposure conditions. The hazard classification must take into consideration the hazards of the product in its shipped form as well as under the product’s normal conditions of use (e.g., downstream use, processing, hazardous by-products) and foreseeable emergencies. See 29 CFR § 1910.1200(d). For example, publically-available evidence exists that in certain workplace operations, such as repair or recycling operations, where workers routinely handle or are exposed to scrapped, damaged, or defective/rejected Li-ion batteries and battery packs and Li-metal cells (e.g., laptop batteries), these type of products have resulted in worker exposures to fire (physical) and/or chemical (health) hazards. While a “risk assessment” may consider a lithium cell or battery’s makeup (its chemistry, form factors, etc.), as well as how the chemical is contained or handled, under the HCS, manufacturers or importers are responsible for determining if their chemical or product presents a physical hazard and/or health hazard to workers.

When the Li-ion battery or cell does not meet the HCS exemptions as an “article,” a lithium-ion cell/battery manufacturer or importer is required to develop an SDS and HCS-compliant label for their product(s), and employers are required to provide training to exposed workers on the hazards of the chemical / product. Some Li-ion batteries, battery packs, and cells (e.g., button and laptop batteries) may be exempt from the HCS label requirements if they meet the definition of a consumer product.² The manufacturer or importer is also required to provide the SDS to downstream employers if it is known workers may be exposed to a Li-ion battery’s physical or health hazard. Please note that these batteries are regulated under U.S. Department of Transportation’s (USDOT) Hazardous Materials Regulations, 49 CFR Parts 171-180.

Question 2: What scientific justification did OSHA use in its decision that a Li-ion battery cannot be considered an article under HCS?

Response: The HCS definition of an “article” has been in effect for nearly thirty years. Although OSHA has not conducted a hazard classification on Li-ion batteries, the agency has reviewed publically-available information from U.S. government agencies and industry consensus standards such as the U.S. Consumer Product Safety Commission (CPSC), USDOT/Pipeline and Hazardous Material Safety Administration (USDOT/PHMSA), and the National Fire Protection Association (NFPA).³ The information shows that while lithium cell or battery technology is complex, potential cell or battery failure during use and handling can present a fire (physical) hazard, which has caused or could cause workers to be exposed to burns. Additionally, the information shows that toxic air contaminants (e.g., lithium, cobalt) can be released due to chemical leakage or venting when the battery is damaged or catches fire, potentially exposing workers to a health hazard.

OSHA appreciates the concerns of the battery producer representatives and their associated industry.  Thank you for your interest in occupational safety and health.  I hope you find this information helpful.  OSHA’s requirements are set by statute, standards, and regulations.  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 www.osha.gov.  If you have further questions, please feel free to contact OSHA’s Office of Health Enforcement at 1-202-693-2190.

Sincerely,

Patrick J. Kapust, Acting Director
Directorate of Enforcement Programs

¹ “Articles” are excluded from coverage under the HCS. See 29 CFR § 1910.1200(b)(6)(v). Articles are defined as “a manufactured item other than a fluid or particle: (i) which is formed to a specific shape or design during manufacture; (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which under normal conditions of use does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical (as determined under paragraph (d) of this section), and does not pose a physical hazard or health risk to employees.” 29 CFR § 1910.1200(c).
² The HCS exempts any consumer product or hazardous substance as those terms are defined in the Consumer Product Safety Act (15 U.S.C. 2051 et seq.) and Federal Hazardous Substances Act (15 U.S.C. 1261 et seq.) respectively, when subject to a consumer product safety standard or labeling requirement of those Acts, or regulations issued under those Acts by the Consumer Product Safety Commission. See 29 CFR § 1910.1200(b)(5)(v).
³ For example, see CPSC report, Updated Status Report on High Energy Density Batteries Project, March 31, 2020.