According to OSHA, the term “hazardous chemical” means any chemical which is classified as a physical hazard or a health hazard, a simple asphyxiant, combustible dust, or hazard not otherwise classified. Under the OSHA Hazard Communication Standard (HCS), employers must maintain a safety data sheet (SDS) or material safety data sheet (MSDS) for any hazardous chemical stored or used in the workplace if the hazardous chemical is not exempted by the regulation. Among other things, these data sheets describe the properties and health effects of the hazardous chemicals.
Section 311 of the Emergency Planning and Community Right-to-Know Act (EPCRA) and EPA regulation 40 CFR 370 require facilities that are required to keep SDSs/MSDSs to submit copies of these data sheets or a list of these chemicals to state and local officials and local fire departments under certain conditions. This information helps states and communities develop a broad perspective of chemical hazards for the entire community, as well as individual facilities. It also helps local fire departments better understand what is needed to fight a fire or chemical release at a covered facility.
Scope
The facility owner or operator must comply with the reporting requirements of 40 CFR 370 if OSHA’s HCS at 29 CFR 1910.1200 requires the facility to prepare or have available an SDS or MSDS for a hazardous chemical AND if either of the following conditions is met:
- A hazardous chemical that is an extremely hazardous substance (EHS) is present at the facility at any one time in an amount equal to or greater than 500 pounds (227 kg — approximately 55 gallons) or the threshold planning quantity (TPQ), whichever is lower.
- A hazardous chemical that is not an EHS is present at the facility at any one time in an amount equal to or greater than the threshold level for that hazardous chemical. Threshold levels for such hazardous chemicals are:
- For any hazardous chemical that does not meet the criteria in (2) or (3) below, the threshold level is 10,000 pounds (or 4,540 kg).
- For gasoline at a retail gas station, the threshold level is 75,000 gallons (approximately 283,900 liters) (all grades combined), but only under conditions listed at 40 CFR 370.12(a)(2)(ii).
- For diesel fuel at a retail gas station, the threshold level is 100,000 gallons (approximately 378,500 liters) (all grades combined), but only under conditions listed at 40 CFR 370.12(a)(2)(iii).
However, the threshold level is zero if the local emergency planning committee (LEPC) requests that the owner or operator of the facility submit an SDS or MSDS for a hazardous chemical for which the facility has not submitted an SDS or MSDS to the LEPC.
Regulatory citations
- 40 CFR 355 Appendix A — The list of extremely hazardous substances and their threshold planning quantities (alphabetical order)
- 40 CFR 355 Appendix B — The list of extremely hazardous substances and their threshold planning quantities (CAS number order)
- 40 CFR 370 — Hazardous chemical reporting: Community right-to-know
- 42 U.S.C. 11021 — Material safety data sheets
Key definitions
- EPCRA: The Emergency Planning and Community Right-To-Know Act of 1986.
- Extremely hazardous substance (EHS): A substance listed in Appendices A and B of 40 CFR Part 355.
- Facility: All buildings, equipment, structures, and other stationary items that are located on a single site or on contiguous or adjacent sites and that are owned or operated by the same person (or by any person that controls, is controlled by, or under common control with, such person). Facility includes manmade structures, as well as all natural structures in which chemicals are purposefully placed or removed through human means such that it functions as a containment structure for human use.
- Hazard category: Divided into two categories, health and physical hazards. (1) Health hazard means a chemical which poses one of the following hazardous effects: Carcinogenicity; acute toxicity (any route of exposure); aspiration hazard; reproductive toxicity; germ cell mutagenicity; skin corrosion or irritation; respiratory or skin sensitization; serious eye damage or eye irritation; specific target organ toxicity (single or repeated exposure); simple asphyxiant; and hazard not otherwise classified (HNOC). (2) Physical hazard means a chemical which poses one of the following hazardous effects: Flammable (gases, aerosols, liquids or solids); gas under pressure; explosive; self-heating; pyrophoric (liquid or solid); pyrophoric gas; oxidizer (liquid, solid or gas); organic peroxide; self-reactive; in contact with water emits flammable gas; combustible dust; corrosive to metal; and hazard not otherwise classified (HNOC).
- Hazardous chemical: Any hazardous chemical as defined under 29 CFR 1910.1200(c), except that such term does not include: (1) Any food, food additive, color additive, drug, or cosmetic regulated by the Food and Drug Administration. (2) Any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use. (3) Any substance to the extent it is used: (i) For personal, family, or household purposes, or is present in the same form and concentration as a product packaged for distribution and use by the general public. Present in the same form and concentration as a product packaged for distribution and use by the general public means a substance packaged in a similar manner and present in the same concentration as the substance when packaged for use by the general public, whether or not it is intended for distribution to the general public or used for the same purpose as when it is packaged for use by the general public; (ii) In a research laboratory or a hospital or other medical facility under the direct supervision of a technically qualified individual; or (iii) In routine agricultural operations or is a fertilizer held for sale by a retailer to the ultimate customer.
- Inventory form: The uniform Tier I and Tier II emergency and hazardous chemical inventory forms published by EPA. These forms can be used for reporting inventory information, as described in 40 CFR 370.40 through 370.45.
- LEPC: The Local Emergency Planning Committee appointed by the State Emergency Response Commission.
- Material Safety Data Sheet (MSDS): The sheet required to be developed under 29 CFR 1910.1200(g).
- Mixture: Mixture as defined under the Occupational Safety and Health Administration’s Hazard Communication Standard in 29 CFR 1910.1200(c).
- OSHA: The U.S. Occupational Safety and Health Administration.
- Person: Any individual, trust, firm, joint stock company, corporation (including a government corporation), partnership, association, State, municipality, commission, political subdivision of a State, or interstate body.
- Retail gas station: A retail facility engaged in selling gasoline and/or diesel fuel principally to the public, for motor vehicle use on land.
- Safety Data Sheet (SDS): The sheet required to be developed under 29 CFR 1910.1200(g). This term means the same as the term “material safety data sheet or MSDS” defined in this section.
- SERC: The State Emergency Response Commission for the State in which the facility is located except when the facility is located in Indian Country, in which case, SERC means the Emergency Response Commission for the Tribe under whose jurisdiction the facility is located. In the absence of a SERC for a State or an Indian Tribe, the Governor or the chief executive officer of the tribe, respectively, shall be the SERC. Where there is a cooperative agreement between a State and a Tribe, the SERC shall be the entity identified in the agreement.
- State: Any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Northern Mariana Islands, any other territory or possession over which the United States has jurisdiction and Indian Country.
- Threshold planning quantity (TPQ): For a substance listed in Appendices A and B of 40 CFR Part 355, the quantity listed in the column “threshold planning quantity” for that substance.
Summary of requirements
- Determine if your facility is required to keep an SDS or MSDS for hazardous chemicals under OSHA 1910.1200. Note that a facility is not required to keep an SDS or MSDS for a hazardous chemical exempted under 1910.1200(b)(6).
- Understand that:
- EHSs and their TPQs are listed at Appendices A and B of 40 CFR Part 355.
- There is no list of non-EHS hazardous chemicals, but rather EPA covers any OSHA hazardous chemical, by definition, that falls under the OSHA SDS/MSDS requirements.
- The requirements for determining whether a mixture containing an EHS or non-EHS hazardous chemical meets or exceeds the threshold level are found at 370.14.
- Section 370.13 lists several types of substances exempted from EPA’s SDS and MSDS reporting requirements.
- Determine if your facility has any covered hazardous chemicals that are considered EHSs that meet or exceed at any one time an amount equal to or greater than 500 pounds (227 kg — approximately 55 gallons) or the TPQ, whichever is lower.
- Determine if your facility is a retail gas station, by definition. If so:
- Determine if all gasoline is in tank(s) entirely underground and was in compliance at all times during the preceding calendar year with all applicable underground storage tank (UST) requirements at 40 CFR Part 280 or a state UST program approved under 40 CFR 281. If so, determine if the gasoline meets or exceeds the threshold level of 75,000 gallons (approximately 283,900 liters) (all grades combined).
- Determine if all diesel fuel is in tank(s) entirely underground and was in compliance at all times during the preceding calendar year with all applicable UST requirements at 40 CFR 280 or a state UST program approved under 40 CFR 281. If so, determine if the diesel fuel meets or exceeds a threshold level of 100,000 gallons (approximately 378,500 liters) (all grades combined).
- Determine for any other covered hazardous chemical (non-EHS) (that does not fall under the retail gas station criteria) whether the chemical meets or exceeds the threshold level of 10,000 pounds (or 4,540 kg).
- If you determine that the applicable threshold level for EHSs or hazardous chemicals are met or exceeded, then:
- Within three months of becoming subject to the reporting requirements, submit one of the following to the SERC, LEPC, and fire department:
- An SDS or MSDS for each covered hazardous chemical that meets or exceeds its applicable threshold level, or
- A list of all hazardous chemicals that meet or exceed their applicable threshold levels. Include the chemical or common name of each hazardous chemical and group the list by hazard.
- Within three months of obtaining a new hazardous chemical (EHS or non-EHS) subject to reporting, submit the SDS or MSDS or submit a revised list of hazardous chemicals that meet or exceed their applicable threshold levels.
- Within three months of discovering significant new information about a hazardous chemical (EHS or non-EHS), if you submitted an SDS or MSDS, then submit a revised SDS or MSDS.
- Within 30 days of the request, submit an SDS or MSDS for any hazardous chemical (EHS or non-EHS) requested by the LEPC.
