Hazard Communication (HazCom)

DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 42, 46, 47, 48, 56, 57, and 77

RIN 1219-AA47

Hazard Communication (HazCom)

AGENCY:

Mine Safety and Health Administration (MSHA), Labor.

ACTION:

Final rule and withdrawal of interim final rule.

SUMMARY:

We (MSHA) are establishing this final rule on “Hazard Communication (HazCom)” to reduce injuries and illnesses related to chemicals in the mining industry. HazCom requires mine operators to evaluate the hazards of chemicals they produce or use and provide information to miners concerning chemical hazards by means of a written hazard communication program; labeling containers of hazardous chemicals; providing access to material safety data sheets (MSDSs); and initial miner training. While most of the requirements in this final rule are substantially the same as in the proposed and interim final rules, portions have been revised in response to public comments. The most significant revision involves the HazCom training requirements. Initial HazCom training for current miners will be conducted under the HazCom final rule. Conforming amendments with requirements for subsequent HazCom training have been added to existing training standards. With the publication of this final rule, the mining industry joins other industry groups in requiring that chemical hazard information be offered to employees.

DATES:

This rule is effective on September 23, 2002. This rule is applicable at mines that employ five or fewer miners on March 21, 2003. The interim final rule published on October 3, 2000 (65 FR 59048) and delayed on August 28, 2001 (66 FR 45167) is withdrawn as of June 21, 2002.

FOR FURTHER INFORMATION CONTACT:

Marvin W. Nichols, Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, Arlington, Virginia 22209-3939. Mr. Nichols can be reached at

nichols-marvin@msha.gov

(internet e-mail), 202-693-9440 (voice), or 202-693-9441 (fax). You may obtain copies of the final rule in alternative formats by calling this number. The alternative formats available are either a large print version of the final rule or the final rule in an electronic file on computer disk. The final rule also is available on the Internet at

http://www.msha.gov/hazcom.

SUPPLEMENTARY INFORMATION:

The following is an outline of this HazCom preamble to help you find information more quickly.

I. Introduction

A. Overview of Rulemaking

B. Need for HazCom

C. OSHA's HCS and MSHA's HazCom Final Rule

D. Reasons for Not Exempting Aggregate Producers

E. Reasons for Staggering the Compliance Dates

F. Regulatory History

II. Discussion of the Final Rule

A. Subpart A—Purpose, Scope, Applicability, and Initial Miner Training

B. Subpart B—Definitions

C. Subpart C—Hazard Determination

D. Subpart D—HazCom Program

E. Subpart E—Container Labels and Other Forms of Warning

F. Subpart F—Material Safety Data Sheet (MSDS)

G. Conforming Amendments: HazCom Training Requirements under 30 CFR Parts 46 and 48

H. Subpart H—Making HazCom Information Available

I. Subpart I—Trade Secrets

J. Subpart J—Exemptions

K. Appendices

III. Legal Authority and Feasibility

A. HazCom as a § 101(a)(6)(A) standard

B. Finding of Significant Risk

C. Finding of Feasibility

D. Petitions for Modification

IV. The Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, and Executive Order 12866

A. Alternatives Considered

B. Consultation with SBA

C. Compliance Costs

D. Regulatory Flexibility Certification and Factual Basis

E. Benefits

V. Paperwork Reduction Act

VI. Other Regulatory Considerations

A. The National Environmental Policy Act of 1969

B. Unfunded Mandates Reform Act of 1995

C. Executive Order 12630: Government Actions and Interference with Constitutionally Protected Property Rights

D. Executive Order 12988: Civil Justice Reform

E. Executive Order 13045: Protection of Children from Environmental Health Risks and Safety Risks

F. Executive Order 13084: Consultation and Coordination with Indian Tribal Governments

G. Executive Order 13132: Federalism

H. Executive Order 13211: Energy

VII. Addendum: Health Effects of Physical and Chemical Substances Normally Used by Miners

I. Introduction

We refer to our hazard communication standard as “HazCom” to help distinguish it from the Occupational Safety and Health Administration's (OSHA's) Hazard Communication Standard (HCS). In this final rule, “you” refers to production operators and independent contractors, who have the primary responsibility for complying with our standards. Where needed, we use the terms “operator” or “independent contractor” to avoid confusion. “We” and “us” refers to MSHA.

Also, for the purpose of simplicity, we continue to use the term “written” or “writing” in the regulatory language to include electronic transmission of information. Operators are expected to exercise reasonable judgment. A label can be a sign, placard, process sheet, batch ticket, operating procedure, or other alternative. A label must be in a form that can be clearly and quickly associated with the hazardous chemical. A label in a computer, for example, will be inadequate as a way of labeling a truckload of lime. The purpose of an MSDS, on the other hand, can be readily achieved through an electronic access to the information.

Some of HazCom's provisions differ from the proposed and interim final rules in response to commenters' concerns and suggestions. These changes clarify the rule's intent, reduce the operator's burden to comply without reducing protections afforded by the interim final rule, and eliminate unnecessary language and needless repetition. We have tailored provisions to fit the mining industry. Despite these changes, the substance of most requirements remains the same as in the proposed and interim final rules. We have organized the rule to optimize the reader's ability to understand the rule's requirements.

This final rule reflects comments received during the entire rulemaking process including the advance notice of proposed rulemaking, the proposed rule, the limited re-opening of the record in 1999, the interim final rule comment periods, and the public hearings. All comments and testimony became part of the rulemaking record.

A. Overview of Rulemaking

HazCom is based on two safety and health principles: miners have a right to know about the chemical hazards where they work; and you have a responsibility to know about the chemical hazards at your mine.

Chemically related injuries and illnesses in the mining industry indicate that many operators and miners are not as aware of the presence and nature of hazardous chemicals as they should be.

Injury and illness reports sent to us describe instances where miners—

• Were using inadequate or improper personal protective equipment,

• Did not know what they had been exposed to that caused their symptoms,

• Failed to follow instructions because they misunderstood or were unaware of the consequences, and

• Inadvertently misused a chemical from an unlabeled container.

Our existing standards already require you to train miners in occupational health, hazard recognition, and the safety and health aspects of tasks, among other subjects. Except at underground coal mines, you are also currently required to label hazardous materials. The intent of HazCom is to ensure that your mine has a program emphasizing chemical hazards by requiring you to take certain actions. Current regulations do not require you to collect material safety data sheets (MSDSs), give copies of hazard information to miners, or keep a list of the hazardous chemicals at the mine.

HazCom requires you to inform miners about chemical hazards. This information is important because miners are at risk of harm in the absence of such knowledge. We expect HazCom, by increasing both knowledge and awareness, to bolster good work procedures and safer behavior, thus reducing injuries and illnesses related to chemicals. When put into effect at a mine, HazCom should result in better hazard identification and assessment; more consistent use of personal protective equipment; and greater awareness and care when working near hazardous chemicals.

Communicating the hazards of chemicals can be difficult because it requires using unfamiliar technical terms, scientific symbols, and complex physical laws. For the training to be effective, it must balance scientific precision with the practical needs of miners to understand chemical hazards and protect themselves in their daily work. When miners understand the chemical hazards of mine processes and recognize the job elements that can lead to chemical exposures, they will be more successful in reducing accidents and injuries.

The final rule requires operators of mines initially to instruct each miner with information about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program. Subsequent HazCom training must be conducted in accordance with 30 CFR parts 46 and 48. This modification of the HazCom training requirements is a result of comments received during the last reopening of the rulemaking record, as well as testimony presented at the public hearings. Accordingly, the HazCom final rule modifies the interim final rule by removing Subpart F—HazCom Training and adding conforming amendments to the training requirements of 30 CFR parts 46 and 48 to include instruction about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program. The conforming amendments to parts 46 and 48 apply to new miner training, new experienced miner training, task training, and annual refresher training.

The major provisions of HazCom are as follows:

Hazard determination.

You must identify the chemicals at your mine and determine if they can present a physical or health hazard to miners. If you produce a chemical, such as gold, molybdenum sulfide, calcium oxide (lime), sand, and phosphates, among others, you must review available scientific evidence to determine if it is hazardous. Some of the chemicals you produce that result from a chemical reaction, such as nitrogen oxides from blasting or an intermediate chemical formed during mineral processing, may already be addressed on the MSDS for the original chemical. For a chemical or mixture brought to your mine, such as diesel fuel, lubricants, solvents, and paints, you can rely on the evaluation performed by the chemical's manufacturer or supplier. Although you do not need to modify the MSDS or label that comes from the chemical's manufacturer or supplier, you must review the label and MSDS to learn what hazards the chemical can present to your miners.

HazCom program.

You must develop, implement, and maintain a written comprehensive plan to formalize a HazCom program. The program must include provisions for container labeling, collection and availability of MSDSs, and training of miners, among other requirements. It also must contain a list of the hazardous chemicals known to be at the mine. If a mine has more than one operator on site, such as an independent contractor and a primary operator, each HazCom program must describe how you will inform the other operator(s) about the chemical hazards you produce or bring to the mine and the protective measures needed.

Container labeling.

A label is an immediate warning about a chemical's most serious hazards. You must ensure that containers of hazardous chemicals are marked, tagged, or labeled with the identity of the hazardous chemical and appropriate hazard warnings. The label must be in English and prominently displayed. We are not requiring you to label mine products that go off mine property, though you must provide the hazard information if a customer asks for it.

Material safety data sheet (MSDS).

A chemical's MSDS provides comprehensive technical and emergency information. It serves as a reference document for operators, exposed miners, health professionals providing services to exposed miners, and firefighters or other public safety workers. You must have an MSDS for each hazardous chemical at your mine. The MSDS must be accessible in the work area where the chemical is present or in an alternate location readily available to miners in an emergency.

Initial HazCom training.

You must initially instruct each miner about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against those hazards, and the contents of the mine's HazCom program by the effective date of this final HazCom rule. Subsequent HazCom training must be conducted in accordance with 30 CFR parts 46 and 48.

Making HazCom information available.

You must provide miners, their designated representatives, MSHA, and NIOSH with access to the materials that are part of the HazCom program. These include the HazCom program, the list of hazardous chemicals, labeling information, MSDSs, some training materials, and any other material associated with the HazCom program. You do not have to disclose the identity of a trade secret chemical except when there is a compelling medical need or as specified in this rule.

B. Need for HazCom

Chemicals in the mining industry pose a range of hazards, from mild health effects, such as irritation, to death. Some chemicals cause or contribute to chronic diseases, such as heart disease, kidney disease, sterility, or cancer. The relationship between these injuries and illnesses and exposure to a chemical can be obscured by years of latency between the exposure and the onset of symptoms. Many chemicals cause acute injuries or illnesses such as dermatitis, burns, and poisonings. Some chemicals pose hazards by contributing to fires and explosions.

Even relatively harmless substances can pose a hazard under certain

conditions. If mixed or heated, for example, some chemicals give off toxic fumes. Calcium chloride is generally considered a relatively harmless chemical, however, the MSDS for the compound lists its toxic decomposition products as chlorine fumes or hydrogen chloride. An ammonia based window cleaner mixed with common household bleach can produce deadly fumes. Miners must be made aware of these potential, life-threatening hazards.

Also pre-existing conditions, such as respiratory or central nervous system diseases, can be aggravated by exposure to some chemicals. For example, open wounds, skin disorders, and chronic respiratory disease can be aggravated by exposure to unleaded gasoline. Miners with existing health conditions need to be aware of the potential additional hazard that exposure to chemicals presents.

1. Chemical Injuries and Illnesses

In considering a HazCom standard, we reviewed reports of chemically related injuries and illnesses reported to MSHA. From January 1990 through December 1999, the mining industry reported over 2,500 chemical burns. More than 1,200 of these burns were lost work time cases, involving over 50 commodities, more than 60 job classifications, and exposures to chemicals at all sizes and types of mines. Bituminous coal mines reported the most chemical burns for that industry. Crushed and broken limestone mines reported the most chemical burns in the metal and nonmetal industry. This same accident and injury data indicated more than 400 poisonings. This data takes into account only some of the acute effects reported as a result of chemical exposures and does not include the chronic effects that we know also occur. MSHA believes that injuries, illnesses, and accidents reported to us understate the extent of the health and safety problems caused by chemicals in the workplace.

Reporting injuries and illnesses.

Lack of knowledge about chronic health effects associated with chemical exposures contributes to the under-reporting of occupational illnesses. Employers, such as mine operators, and doctors often lack information to link occupational illnesses with exposures to chemical hazards.

1

Symptoms of chemically related, chronic, occupational illnesses are often treated without realizing that the cause is an occupational exposure. The Bureau of Labor Statistics (BLS) made note of this reporting disparity in one of their annual reports.

2

1

Rosenstock, L., “Occupational Medicine: Too Long Neglected”,

Annals of Internal Medicine,

Vol. 95, No. 6, December 1981, pp. 774-776.

American Lung Assn., “Diagnosis and Treatment, Taking the Occupational History”,

Annals of Internal Medicine,

Vol. 99, No. 5, November 1983, pp. 641-651.

2

U.S. Department of Labor, Bureau of Labor Statistics,

Occupational Injuries and Illneses: Counts, Rates, and Characteristics, 1994,

Bulletin 2485 (April 1997), page 7.

* * * Some conditions (

e.g.,

long-term latent illnesses caused by exposure to carcinogens) are often difficult to link to the workplace and, therefore, may not be recognized and reported. Because of this, these long-term latent illnesses are believed to be understated in the survey's illness measures. * * *

Worker turnover also increases the likelihood that the link between a workplace chemical exposure and subsequent illness will be overlooked and will not be reported. MSHA's experience under part 50 reveals that occupational illnesses are frequently unreported because the miner has retired or taken a job in another industry. This is particularly true for long-term health effects which develop over time or after repeated exposures. Many chronic diseases are characterized by latency periods of 20-30 years or longer.

In addition, health effects of some chemicals may contribute to the occurrence of injuries that are reported but are not causatively linked to chemical exposures. Part of the purpose of the hazard communication standard is to increase awareness regarding these potential effects.

Although MSHA's frequent presence at mines tends to minimize under-reporting, we believe the reporting is still incomplete. Our experience indicates that reporting of injuries and illnesses increases when we systematically audit operator reporting. For example, a nationwide audit of operator accident and injury reporting in the late 1970's produced a 13% increase in reported injuries. During MSHA's “part 50 grace period” for chronic illnesses in the late 1990's, industry reported an additional 3900 cases of silicosis, pneumoconiosis, hearing loss, and chronic musculoskeletal injuries. This increase strongly suggests that there is under-reporting. We expect improved reporting of occupational illnesses and injuries caused by chemical exposures to be one of the positive effects of this standard.

Hazards to miners working with chemicals.

Between 1984 and 1989, the National Institute for Occupational Safety and Health (NIOSH) surveyed almost 500 individual mines covering 70 commodities and about 60,000 miners for the National Occupational Health Survey of Mining (NOHSM). NOHSM documented over 10,000 individual hazardous chemicals and mixtures of hazardous chemicals to which miners could be exposed.

Comments to the proposed and interim final rules suggested that HazCom apply only to those chemicals posing a risk to miners. We decided against limiting the application of HazCom to the chemicals NIOSH identified as most commonly posing a risk to miners because—

• New hazardous chemicals would not be covered,

• There are likely to be some hazardous chemicals used or produced at mines that are not on NIOSH's list, and

• NIOSH did not survey all mines.

In September of 1996, NIOSH published

Results from the National Occupational Health Survey of Mining (NOHSM)

[DHHS(NIOSH) Publication No. 96-136]. NOHSM's Appendix O listed “100 Chemical Substances with the Highest Projected Number of Workers Potentially Exposed.” This appendix projected only potential exposure to chemical substances purchased and used at mines. The NOHSM report is in the rulemaking record. The addendum to this preamble (VII. Addendum: Physical and Health Effects of Chemical Substances Normally Used by Miners) lists the health effects of chemicals for which NIOSH projects more than 1000 miners to be potentially exposed.

We listed the health effects for these substances to illustrate the acute and chronic effects of exposures to substances common in mining. It is apparent that many of these chemicals have serious acute health effects, as well as life-shortening chronic health effects. Diesel fuel and kerosene are examples of such chemicals. We found the listed health effects for most of these substances on material safety data sheets (MSDSs) available free on the internet. The

NIOSH Pocket Guide to Chemical Hazards,

a copy of which is in the rulemaking record, also lists health effects.

Current hazard communication programs in mining.

Some operators began complying with OSHA's HCS requirements in 1983 when it was first promulgated. Others began complying when the scope of OSHA's HCS was extended to cover general industry. In anticipation of a similar MSHA standard, some began complying after MSHA published its proposed HazCom rule, using the unregulated interval as a time to assimilate the requirements into

their mines' standard operating procedures. Although some operators on their own initiative have established programs that meet HazCom's provisions and goals, and have integrated OSHA's HCS requirements into the cultures of their mines, many have not made that effort or fully met those objectives.

Some operators have a comprehensive HazCom program in place, while others have some elements of a HazCom program. This HazCom rule requires that operators give all miners the information, initial training, and access needed to protect themselves from chemically related injuries and illnesses. HazCom unifies, focuses, and clarifies existing requirements.

2. Existing Parts 46 and 48 Training

The principal training standards that apply at your mine are found in parts 46 or 48, depending on the commodity you produce and the type of mine you have. Under existing parts 46 and 48, you must provide new miner training, newly hired or experienced miner training, new task training, and annual refresher training and, for those less exposed, hazard awareness training.

An issue throughout this rulemaking has been whether the training under parts 46 and 48 negates the need for the HazCom standard. Several commenters to the interim final rule said that the existing training requirements under parts 46 and 48 already cover hazard recognition and prevention. The HazCom standard would be, in their view, needlessly duplicative and burdensome. As a few commenters pointed out, parts 56 and 57 already have standards for labeling toxic substances. Others said that, in their part 48 training, they endeavor to fully encompass the health and safety aspects of working with hazardous chemicals at their operations. Still others said that part 46, effective only recently, has not been given a chance to show that it can work for purposes of hazard communication.

By contrast, several commenters stressed the need for the HazCom standard. They said that the important job of educating people within the mining industry on the dangers of chemicals in the workplace was not being done. Misuse of chemicals at the mines was a significant concern to them. Not only are miners left uninformed about hazardous chemicals, but according to many of these commenters, the operators, who are expected to know about these hazards, often need help themselves and provide little guidance to miners, even about elementary precautions to take when working around hazardous chemicals. Some operators may not be familiar with basic sources of information such as MSDSs. These commenters maintained that a more effective means of getting the information out and increasing the awareness of chemical hazards is vital so people can avoid misuse and make intelligent decisions to safeguard their health.

In the interim final rule we stated that although we have standards for labeling toxic substances under parts 56 and 57, these standards do not contain any training requirements on hazardous chemicals. With regard to the existing training under parts 46 and 48, we stated that these training regulations were insufficient for purposes of HazCom training because they do not specify the training content. They basically require instruction in hazard recognition and the health and safety aspects of new work tasks.

After carefully reviewing all comments, and testimony presented at all the HazCom hearings, however, we have determined that subsequent HazCom training requirements, after initial training, can be eliminated from the HazCom rule, but effectively provided under existing parts 46 and 48 by adding language to the training subjects of these parts. Accordingly, the HazCom final rule requires operators of mines initially to instruct each miner with information about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program. While initial training is required under § 47.2(b) of the final HazCom rule, subsequent HazCom training must be conducted in accordance with the conforming amendments added under 30 CFR parts 46 and 48. We believe that this modification of the training requirements of the HazCom standard and parts 46 and 48 is responsive to commenters' concerns regarding training and, at the same time, ensures that parts 46 and 48 training requirements concerning hazard recognition specifically includes instruction on the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program.

C. OSHA's HCS and MSHA's HazCom Final Rule

In addition to the requirements in the Mine Act and our experience in the mining industry, we based our final rule on—

• The comments received in response to the advance notice of proposed rulemaking (ANPRM), the notice of proposed rulemaking, the limited re-opening, and the interim final rule;

• The testimony presented at the public hearings on the proposed and interim final rules; and

• The related standards of other federal agencies, such as OSHA and EPA.

To the extent practical, the substance of MSHA's HazCom requirements is the same as that in OSHA's HCS. Also, we have expressly stated that if a HazCom program meets OSHA's HCS requirements, it will satisfy MSHA's requirements except for the coverage of EPA-regulated hazardous waste (OSHA has a separate standard for hazardous waste operations). We will publish a Compliance Guide to help you understand the application of this rule.

Hazardous waste.

The treatment of hazardous waste in MSHA's HazCom standard differs from OSHA's HCS. OSHA exempts hazardous waste because its Hazardous Waste Operations and Emergency Response rule (Hazwoper, 29 CFR 1910.120) addresses these hazards. Because we do not have similar standards that address miners' exposures to hazardous waste, we needed supplemental requirements to ensure that miners understand the hazards and take precautions.

HazCom fills an important gap in protecting the health and safety of miners who may be exposed to hazardous waste. HazCom does

not

require you to determine the components of the hazardous waste, research the components' health and safety effects, or prepare an MSDS. HazCom requires you to—

• Label the hazardous waste, if it is not already labeled;

• Inform miners about hazardous waste in their work areas, its hazards, and safe work procedures; and

• Provide miners access to any information about the hazardous waste that addresses its components or their health and safety effects.

We addressed the subject of hazardous waste at all stages of the rulemaking process. MSHA is confident that the coverage of hazardous waste in HazCom provides essential protection for miners and avoids unnecessary burden on mine operators.

Temporary, portable containers.

Labeling of temporary, portable containers is another area where MSHA and OSHA standards differ. In response to comments, HazCom allows more flexibility and compliance options than OSHA's HCS with respect to labeling temporary, portable containers. OSHA's

HCS does not require the employer to label a temporary, portable container into which a hazardous chemical is transferred from a labeled container for the immediate use of the employee who performs the transfer. MSHA's HazCom provides the following choice of compliance methods:

• You do not have to label the container if your miners know the identity, hazards, and protective measures for the chemical in the container, and leave the container empty at the end of the shift; or

• You must label the container, at least with the common name of its contents.

Although OSHA's requirements for portable containers are sufficiently protective, HazCom's differences from HCS are deliberate and appropriate to mining conditions. The HazCom provision provides a flexible and practical alternative for mining operations.

Labels for customers.

HazCom does not specifically require you to label hazardous chemical products that go off mine property. Your customers, however, may have to comply with the OSHA HCS which requires hazardous chemicals to be labeled. For this reason, HazCom requires you to provide the label information (and MSDS) if a customer asks for one.

D. Reasons for Not Exempting Aggregate Producers

An aggregates industry commenter to the interim final rule argued that his industry should be exempt from HazCom. The commenter stated that—

* * * an overwhelming number of entries [injuries and illnesses associated with chemical exposures] would most likely not have been prevented if HazCom were in place. * * * In nearly all cases, regulations already in place apply and would have prevented the incidents from occurring in the first place.

The commenter asserted that other existing standards would provide the safety and health protection afforded by HazCom. The commenter also downplayed the number of injuries and illnesses reported to MSHA.

The existing MSHA safety and health regulations cannot be equated with or replace the HazCom standard. The HazCom rules are not duplicative of existing standards and, in fact, encompass a broader scope of activities than the other regulations. For example, the requirements for a chemical inventory and current, accessible MSDSs are not included in other existing regulations, but are integral parts of HazCom. Under HazCom, operators are responsible for disseminating accurate safety and health information to miners, and in a timely manner to best accomplish the goal of accident, injury, and illness “prevention.” Miners, in turn, have a right to know the identity of chemicals with which they are working, the hazards of these chemicals, and how to properly protect themselves. This right has been afforded for years to other workers in the United States, and to many workers in other countries.

HazCom is not dependent on a risk analysis. We conducted a general finding of risk to help operators appreciate the need for the standard. This general finding of risk determined that—

• Hazardous chemicals are at all sizes and types of mines,

• Miners are exposed to these hazardous chemicals, and

• Miners get injuries and illnesses from exposure to hazardous chemicals at the mine.

MSHA examined 14,505 incidents of injuries or illnesses reported to the Agency between 1983 and 2000. Commenters' review of the MSHA data indicated that there was an average of 50 chemical burns in the aggregates industry per year that would be addressed by HazCom. The preponderance of these chemical burns are the result of acids (

e.g.

, in batteries) and alkalis (

e.g.

, lime) present in the aggregates industry. The commenter also estimates that

3/4

of the HazCom-covered chemical burns are related to eyes. We agree with the commenter that these are valuable findings about eye injuries and that some corrective action is needed to prevent such injuries. The continuing reports of chemical burns, particularly involving the eyes, represent a serious problem and the possible loss of a miner's sight requires the immediate attention of mine operators.

After separating the eye injuries from the data and excluding cases for which the commenter had concerns (e.g., applicability of HazCom, verification), the commenter concluded that there were an average of 20 cases (injuries and illnesses) per year in the aggregates industry over the 17-year period. The commenter then went on to say, “ * * * this figure hardly seems to us to justify imposition of a multi-million dollar regulation.” The commenter presumably was referring to the entire metal and nonmetal and coal mining industry. MSHA disagrees with this statement. Given the benefits of this rule to the mining industry as a whole and miners in particular, MSHA believes that the cost of this rule is reasonable.

The data presented by the commenter, that was also analyzed by MSHA, emphasize the need for the HazCom rule and for better compliance with existing regulations. On the basis of these numerous and continuing chemically related burns alone, it appears that there is a need for more specific information and training given to miners. In addition, we estimated that the long-term health effects of the HazCom rule include a reduction of 11.4 cancer deaths every year. Some of these health benefits would surely accrue to miners in the aggregates industry, in which carcinogens, such as benzene, respirable crystalline silica, and diesel fuel, as well as various solvents are used or produced. We cannot justify the exclusion of a group of miners from the requirements for hazard communication, when all other miners and workers in other industries will be given this protection from chemical injuries and illnesses.

MSHA believes that there is a significant risk of numerous adverse health outcomes for miners who work with hazardous materials (chemicals); these outcomes may be manifested over a long period of time. The commenter has attempted to refute the risk by pointing to the absolute number of chemical burns and poisonings over the past 17 years, using a database with known concerns for under-reporting. The commenter has neglected to consider the number and potency of chemicals used in mines; the possible interactions between chemicals; the duration, number, and frequency of exposures; the large gamut of adverse outcomes and their severity; and the role of the miner himself. These factors indicate that miners, including miners who work in the aggregates industry, are at risk of uncertain and undesirable outcomes when working with hazardous chemicals. HazCom, through implementation of and compliance with its various components, will serve to reduce the factors that contribute to injury and illness.

A miner's risk of injury or illness will be reduced by providing the miner with information and initial training regarding exposures and potential adverse effects related to hazardous chemicals. It is possible to anticipate, recognize, evaluate, and control the exposures once the presence of a hazardous chemical is known. For example, if miners understand that they will be working with batteries containing sulfuric acid, then they may anticipate exposure to this acid. Information may be provided regarding chemical burns and the emergency procedures to be followed if an

inhalation, eye, or skin exposure should occur. As a second example, if miners know that they will be welding with rods made of cadmium or zinc oxide, they can anticipate the generation of toxic welding fumes. These fumes are invisible and provide no warning of their presence (

i.e.

, no burning of the eyes, nose, throat). If miners know this, they may take appropriate precautions and protective measures, such as the use of personal protective equipment or a welding booth with proper ventilation, to keep the fumes out of their breathing zone.

We did not analyze our accident and injury data to determine whether or not an injured miner had been trained. Such analysis would not have been helpful because, even if the miner was trained, there is no record as to whether that training included the health and safety hazards and safe work procedures for working with the hazardous chemical.

With a better understanding of chemical hazards from the HazCom program at a mine, an operator may limit the array of chemicals kept at the mine and may establish criteria to decide which chemicals will be brought onto the property.

OSHA initially estimated that its HCS would reduce chemically related injuries and illnesses by 20%. As noted by the commenters, this was an educated guess at the time OSHA developed HCS. In the GAO report submitted to members of the United States Senate and House of Representatives (1992), a summary of employers' experiences in complying with OSHA's HCS was presented. Seventeen percent (17%) of surveyed employers reported fewer work-related injuries and 16% of these employers reported fewer work-related illnesses. Because of HCS, 29% of these employers stated that they use a less hazardous chemical in the workplace. OSHA's experience and findings indicate that there also should be reductions in injuries and illnesses at mining operations once HazCom is implemented.

In conclusion, there is no reason to exempt a large subset of mines from the HazCom rule. The under-reporting of our accident and injury data and the broader scope of the HazCom standard, when considered in connection with the potency of chemicals used in mining, the duration and frequency of exposure, and the possibility of long term health effects being manifested over time, provide reasons why the aggregates industry should not be exempt from the rule.

E. Reasons for Staggering the Compliance Dates

The final HazCom rule becomes effective 3 months from the date of publication in the

Federal Register

. At mines that employ five or fewer miners, it will become applicable 9 months from the date of publication in the

Federal Register

.

The data in our rulemaking record indicates that approximately 50% of all coal and M/NM mining operations consist of five or fewer employees. The record also indicates that exposure to chemical hazards occurs in every type of mine, including small mines, with miners typically experiencing multiple exposures to different chemical hazards at one point of time, or over a long period of employment.

We have determined that small mines will be able to comply with the HazCom final rule. However, we recognize that mine operations with five or fewer employees, because of their size, have special needs that justify providing them with more time to become familiar with the requirements of the HazCom rule. For example, it is our experience that many of these small mines—

• Are unfamiliar with OSHA's HCS, the basis of HazCom, and may need more time to comply;

• Do not have personnel knowledgeable about chemical hazards, the use of computers to access MSDSs, or the resources to implement the final rule within 3 months;

• Are family-owned, employing only family members; and

• Operate intermittently.

Additionally, MSHA needs time to provide extensive outreach to help the industry comply, particularly these small operations.

By contrast, certain segments of the mining industry have had extensive experience with the OSHA HCS, and therefore, will be able to comply with our standard with minimal effort. For example, some independent contractors who work in both mining and general industry are already familiar with the OSHA HCS requirements, and may be able to comply with both OSHA's HCS and our HazCom standard using a single HazCom program.

While we cannot exempt these small operations from the HazCom standard for reasons stated elsewhere in this preamble, we can delay its application to provide them with more time to prepare for compliance. Accordingly, the final rule's compliance date for operations with five or fewer employees will be 9 months after publication in the

Federal Register

. For operations with six or more employees, the compliance date is 3 months after publication in the

Federal Register

, which is the same as the effective date of the final rule.

MSHA wants to emphasize that we are committed to providing compliance assistance to

all

mine operations, regardless of size. In fact, there are many HazCom aids already available. MSHA has developed an instruction guide, PowerPoint presentations, videos, model HazCom programs, a brochure, and generic MSDSs, and plans extensive compliance assistance. Also, OSHA has developed training materials for its industries, such as a generic MSDS form, a model hazard communication program, and the HCS Compliance Guide. Many are available from OSHA's Web site at

http://www.osha.gov

and can be adapted for use at mining operations. You can use these as models for your own program.

F. Regulatory History

Since it was originally promulgated in 1983, OSHA's HCS has evolved to apply to all industries under OSHA's jurisdiction. Mining was the only industry segment not required to provide employees with access to MSDSs and other information about hazardous chemicals in their work areas.

1. Program Information Bulletin 86-2-M

Several commenters to the interim final rule stated that a final standard addressing hazard communication is unnecessary. To support their position, these commenters referenced MSHA's Program Information Bulletin No. 86-2M (April 7, 1986) (PIB). These commenters claimed that, in the PIB, MSHA stated that a standard addressing hazard communication was not necessary for mining because existing standards addressed the labeling and storage of toxic materials, and warning signs.

The 1986 PIB on hazard communication was issued only to metal and nonmetal MSHA inspectors in response to a jurisdictional issue with OSHA. The purpose of the PIB was to clarify that mining operations under our jurisdiction do not have to comply with the OSHA HCS. In establishing the fact that OSHA lacked jurisdiction under § 4(b)(1) of the Occupational Safety and Health Act (OSH Act) to apply their HCS at mining operations, MSHA personnel were requested by OSHA and the mining industry to attach to the PIB a list of MSHA standards addressing some of the same hazards which the OSHA HCS was intended to address. In developing the PIB, we were not seeking to establish that our existing standards offered the same protection as the

OSHA HCS, but that there was the requisite minimum MSHA coverage necessary to justify continuing MSHA jurisdiction. HazCom supplements existing MSHA safety and health standards by specifically addressing chemical hazards from a different perspective using different methods.

2. Petition for Rulemaking

On November 2, 1987, the United Mine Workers of America (UMWA) and the United Steelworkers of America (USWA) jointly petitioned us to adapt OSHA's HCS in both coal and metal and nonmetal mines and to propose it for the mining industry. They based their petition on the need for miners to be better informed about chemical hazards.

In their petition, the UMWA and USWA argued that miners deserve protection equal to that of other workers. To support their position, the petition cited an incident in which miners at an iron ore mine were experiencing adverse health effects. These miners asked the operator for MSDSs for the flotation chemicals used at the mine to determine the identity of the chemical causing their symptoms. Although the state in which the mine was located had a right-to-know law, this law did not cover mines. Because we did not have a standard to require the operator to provide MSDSs to miners, the operator refused several times to provide the requested MSDSs. The operator finally provided the MSDSs after lengthy negotiations. The local union used the information provided in the MSDSs to discuss safety procedures with the company.

The petition also specifically noted that work at both surface and underground coal and metal and nonmetal mines exposes miners to a variety of hazardous chemicals. For example, the petition stated that explosives contain organic nitrates that produce nitrogen oxides and ammonia when detonated; roof bolting systems contain plastic resins and reactants; solvents used in equipment maintenance are both toxic and flammable; and mill reagents can release hydrogen sulfide, cyanide, or other dangerous chemicals.

3. Preliminary Rulemaking

In response to this petition, we issued an advance notice of proposed rulemaking (ANPRM) on hazard communication on March 30, 1988 (53 FR 10256). In the ANPRM, we indicated that we would use the OSHA HCS as a basis for our standard and requested specific comments on a number of related issues. A number of written comments and testimony at public hearings in response to the ANPRM defined industry and labor concerns. We published a notice of proposed rulemaking on hazard communication for the mining industry on November 2, 1990 (55 FR 46400), held three public hearings in October 1991, and closed the record on January 31, 1992.

Public response to preliminary rulemaking.

We received a wide variety of comments on our ANPRM and proposed rule. Commenters included both small and large mining companies; a variety of trade associations, including those representing specific minerals; state mining associations; chemical and equipment manufacturers; national and local labor unions; a member of Congress; and two federal agencies.

4. 1999 Limited Re-opening of the Record

While HazCom was being developed, Congress passed several laws and the President issued several Executive Orders which affected our rulemaking procedures. These statutory mandates and related Executive Orders had required us to evaluate the impact of a regulatory action on small mines;

3

the expenditures of state, local, and tribal governments (Unfunded Mandates);

4

and the health and safety of children.

5

In addition, we requested comments on the information collection and paperwork requirements of certain provisions of the proposed rule, now considered as an information collection burden under the expanded definition of

information

under the Paperwork Reduction Act of 1995.

6

We re-opened the rulemaking record on March 30, 1999 (64 FR 15144) to receive comments on the impact of the proposed rule in accordance with these regulatory mandates and Executive Orders. The record closed on June 1, 1999.

3

The Small Business Regulation Enforcement Fairness Act of 1996 (SBREFA) Amendments to the Regulatory Flexibility Act of 1980, Pub. L. No. 96-354, 94 Stat. 864 (1980) (codified as amended at 5 U.S.C. 601-612.

4

The unfunded Mandates from Act of 1995 (2 U.S.C. 1501

et seq.

); and Executive Order 13084, Consultation and Coordination with Tribal Governments.

5

Executive Order 13045, Protection and Children from Environmental Health Risks and Safety Risks.

6

Pub. L. No. 104-13, 109 Stat. 163 (1995) (codified as amended at 4 U.S.C. §§ 3501-3520). When we published the HazCom proposed rule, the information collection and paperwork requirements were not an information collection burden under the 1980 Paperwork Reduction Act because they were third-party disclosures. Under the Paperwork Reduction Act of 1995, agency rules that require businesses or individuals to maintain information for the benefit of a third-party or the public, rather than the government, are covered by the Act under the definition of “information.”

Most MSHA regulations do not require an evaluation of their impact on the environment. Health standards do, however. This was brought to our attention and we took this opportunity to remedy the oversight. We requested comments on the effect of the proposed rule on the environment because the proposed rule had not.

7

7

The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321

et seq.

).

Public Response to Limited Re-opening.

We received seven comments, mostly from trade associations and labor organizations, on this limited re-opening of the rulemaking record. Some commenters urged us to re-open the rulemaking record in its entirety because they asserted that the information in the record was outdated. They claimed this action would improve the effectiveness and quality of the HazCom standard because sectors of the mining industry that have incorporated OSHA's HCS can provide us with their experience under that program. A large mining company stated that we need to address in the HazCom standard recent changes in the OSHA HCS regarding electronic access to MSDSs and microfiche maintenance of these documents. Some commenters disputed the need to promulgate a HazCom standard in light of our new miner training regulations applicable to surface aggregate mines. Finally, a major labor organization objected to the delay in promulgating a final standard.

We disagreed with commenters on the need to re-open the rulemaking record in its entirety. Unlike general industry, the mining industry is narrowly composed of two sectors, coal and metal and nonmetal. Through our frequent presence on mine properties, we determined that there are no substantial changes in the mining industry which would require changes in the provisions of the standard. Changes experienced by the mining industry since the publication of the HazCom proposed rule in 1990 did not rise to a level of change in “core” circumstances so material in nature as to entail a modification of the standard. Substantive rulemaking issues and regulatory alternatives have not changed since the record closed in 1992 and, consequently, the evidence in the rulemaking record at that time continues to be applicable now.

We understood commenters' desire to provide more information regarding their experience under the OSHA HCS standard. Our rulemaking record, however, contains numerous comments concerning the mining industry's experience with OSHA's HCS. The record also contains numerous background documents, such as the

report of the hazard communication workgroup of the National Advisory Committee on Occupational Safety and Health, expressing OSHA's experience with its HCS. We have considered the comments and background information, and the final standard reflects the public's recommendations where they do not undermine HazCom's purpose in protecting the safety and health of miners. For example, some commenters indicated their experience regarding OSHA's MSDS requirements and suggested that we include a provision on electronic access to MSDSs; simplify the proposed rule regarding the content of MSDSs; use terms that are consistent with the Mine Act instead of the OSH Act; simplify the requirements regarding inclusion of MSDSs with initial shipment of product; and require retention of MSDSs for a period of less than 30 years.

In response to these comments, the interim final rule provided for electronic access to MSDSs; used terms such as “miner” and “mine operator” instead of “employee” and “employer” to be more consistent with the language of the Federal Mine Safety and Health Act of 1977 (Mine Act); streamlined and clarified the provisions on the format and content of MSDSs; and required the operator to keep the MSDS at the mine for as long as the chemical is known to be present at the mine, instead of 30 years as OSHA requires. While MSHA's HazCom standard is generally consistent with OSHA's HCS, we made changes to the interim final rule from the proposed rule in recognition of comments received from the mining industry concerning its experience under OSHA's HCS. These changes also recognize that the affected regulated community is smaller and more homogeneous than the industries regulated by OSHA.

5. Interim Final Rule

Although we disagreed with commenters on the need to re-open the rulemaking record in its entirety, in an effort to be further responsive to the public, we decided to publish an interim final rule to provide an additional opportunity for comment. The interim final rule was published on October 3, 2000, and gave commenters until November 17, 2000, to submit comments on the entire rule, on their experience under the OSHA HCS, and on the new “plain language” format of the rule. We were particularly interested in receiving comments addressing any new developments in the mining industry since the proposed rule that we were unaware of. In response to requests from commenters, we also held a public hearing in Washington, DC, on December 14, 2000. The record closed on December 19, 2000.

Public response to interim final rule.

We received 22 comments on the interim final rule, and six persons spoke at the December 2000 public hearing. None of the comments received or testimony presented raised new substantive issues. In fact, most of the issues raised by commenters were already addressed in the preambles to the proposed rule and interim final rule.

Several commenters at the public hearing objected to our short comment period and our short notice of the public hearing. These commenters stated that they were denied sufficient time to fully analyze the interim final rule and provide meaningful comment because the public hearing took place 3 days after the notice of the hearing was published in the

Federal Register

on December 11, 2000 (65 FR 77292).

MSHA acknowledges that notice was short, but contends that notice was adequate. At the end of the comment period, we had received two requests for a public hearing. We made arrangements for a public hearing, prepared a notice of the hearing for publication in the

Federal Register

, personally notified all commenters and other interested persons on December 7, 2000, and put our hearing notice on our website on Friday, December 8, 2000.

Several parties (FMC Corporation, General Chemical Group, Inc., OCI of Wyoming, Solvay Minerals, and NAA-NSA) have challenged the interim final rule in the U.S. Circuit Court for the District of Columbia Circuit. The United Mine Workers and the National Mining Association are interveners in the lawsuit. The petitioners have indicated that they will argue that affected parties were not provided an adequate opportunity to participate in the rulemaking, and that the HazCom rule is arbitrary, capricious, and contrary to law because of the following, among other things:

• HazCom will not significantly reduce a risk to miners.

• HazCom is unnecessary because it duplicates other MSHA rules, including the parts 46 and 48 training rules.

• HazCom unlawfully delegates the Secretary's rulemaking responsibilities to ACGIH, alleging it violates the Federal Advisory Committee Act.

• HazCom unlawfully incorporates by reference future actions of non-government entities, such as ACGIH, without prior notice and opportunity for comment.

The matter is in abeyance awaiting issuance of the final rule.

6. 2001 Re-opening of the record

As stated previously, commenters to the interim final rule objected to what they perceived as MSHA's failure to provide adequate notice and opportunity to comment. Over the following months, industry trade associations sent MSHA several letters asserting they had new information and reiterating their request to re-open the record. In response, MSHA re-opened the HazCom record for public comment on August 28, 2001 (66 FR 45167); delayed the effective date of the interim final rule until June 30, 2002; and announced seven public hearings to be held across the country from September 25 through October 10, 2001. The record closed on October 17, 2001.

Public response to 2001 re-opening.

In this most recent re-opening of the HazCom record, MSHA received 30 written comments. In addition, 52 individuals presented testimony at the public hearings. All commenters agreed with the principle of informing miners about chemical hazards, but there was wide disagreement on the need for a HazCom rule, the effectiveness of some of the rule's requirements, and the magnitude of the burden on mine operators. The substance of the comments, especially those relating operators' experiences with their own hazard communication programs, convinced us that some additional changes to the interim final rule were needed.

In sum, we are confident that we have considered all comments in the rulemaking record in the development of this final standard. While it conforms to the primary purpose of protecting the safety and health of miners, the final standard reflects the public's recommendations to the extent practical, is performance oriented, and minimizes the compliance burden on operators.

II. Discussion of the Final Rule

In preparing this final rule, we considered the concerns and suggestions of all commenters, while balancing the need of miners to have the information necessary to work in a safe and healthful environment.

Commenters to both the proposed and interim final rules supported widely different ideas about a HazCom rule for the mining industry. Some said we do not need one because existing standards require hazard training and labeling; others said it is vital to allow miners to exercise their right-to-know. Some said the rule would be a great burden; others said that they already have such a program. Some said they want a rule

just like OSHA's; others said we should resist the temptation to duplicate OSHA's HCS. Some wanted a separate standard for the coal mining industry; others recommended that we establish separate standards for mine operators and independent contractors; others wanted a single federal standard. Some urged us to include specific language to ensure that individual states do not promulgate or enforce any requirements related to hazard communication that conflict with the federal standard. Commenters recommended that the final rule be practical, strike a balance between providing too much information and too little, and allow for global harmonization with international standards.

In response to the different needs for hazard communication in the mining industry, and the broad range of comments, the provisions of the final rule are performance oriented and flexible enough that operators, including contractors, can comply using a single program to meet OSHA's HCS and our HazCom standard. We considered adopting the OSHA HCS in its entirety, but some requirements of OSHA's HCS are not relevant to mining. As another consideration, OSHA's HCS is supplemented by other OSHA standards for which we have no parallel. OSHA, for example, has comprehensive standards specifically covering hazardous waste operations, laboratories, and medical records. To the extent practical, the substance of our final rule is the same as that in OSHA's HCS. We added provisions where needed, however, to give miners the same protection as employees in general industry.

A. Subpart A—Purpose, Scope, Applicability, and Initial Miner Training

The proposed rule included a “scope and application” section stating where HazCom applied and listing exemptions from coverage. In the interim final rule, we renamed this section “operators and chemicals covered.” We moved the exemptions, which were a part of the scope in the proposed rule, to the end of the HazCom interim final rule so that the substantive requirements would be up front where they are more accessible. This placement is unchanged in the final rule. (

See

§§ 47.91 and 47.92.) We will discuss exemptions later in the preamble, consistent with their placement in the final rule.

1. Section 47.1 Purpose of a HazCom Standard; Applicability

A few commenters to the proposed rule suggested that we include a “purpose and intent” section in our HazCom final rule, in addition to the “scope and application” section. In response, the final rule adds language to specify that the purpose of HazCom is to reduce chemically related injuries and illnesses by ensuring that you—

• Know what chemicals are at your mine;

• Determine which are hazardous and the nature of their hazards;

• Establish a HazCom program; and

• Provide each miner with initial HazCom training.

This section of the final rule also includes the compliance dates for application of the rule. For mines employing five or fewer miners, the rule is applicable 9 months from its date of publication in the

Federal Register

. For mines employing six or more miners, the rule is applicable 3 months from its date of publication.

2. Section 47.2 Operators and Chemicals Covered; Initial Training

Operators and chemicals covered.

The scope of the final rule remains unchanged from that of the interim final rule. Paragraph (a) of § 47.2 of the final rule states that the standard “applies to any operator producing or using a hazardous chemical to which a miner can be exposed under normal conditions of use or in a foreseeable emergency.” This language is consistent with the purpose of HazCom and OSHA's HCS.

The proposed rule specified that the rule would apply “to all operators who produce or use hazardous chemicals in their workplace” and to “any chemical which is known to be present in the workplace in such a manner that employees are exposed * * *.” Although the proposed rule seemed to apply only where there was an actual exposure, the proposed rule defined

exposed

as “subjected, or potentially subjected, to a hazardous chemical * * *.” The preamble to the proposed rule further explained that this definition included “current and potential (accidental and possible) exposures.”

In the interim final rule we clarified the language of the proposal by stating that HazCom applies “to any operator producing or using a hazardous chemical to which a miner can be exposed * * *.” By modifying the language in the interim final rule, we clarified our intent that you must know what hazardous chemicals are present at your mine and evaluate whether it is possible for miners to be exposed under normal conditions of use or in a foreseeable emergency.

The potential for exposure to a hazardous chemical, such as diesel fuel, motor or hydraulic oils, lubricants, paints, or solvents, occurs at every known mining operation. While considering HazCom, we reviewed data and documents from inspections and investigations, chemical inventories, technical reports, accident and injury data, and sampling data confirming that exposure to chemicals occurs in all types and sizes of mines.

Potential exposure.

The final rule retains the same concept of the term “exposed” as in the proposed and interim final rules. In HazCom, “exposed” means subjected or potentially subjected to a chemical hazard. In the context of potential exposure, we intend that you interpret the term “foreseeable” broadly as “anticipated” or “expected” eventually. A potential exposure to a hazardous chemical is foreseeable if the miner is in the same work area as the chemical; spills and leaks are commonplace. However, we also intend HazCom to be practical. We do not intend that you interpret “foreseeable” to include situations that are highly remote or speculative.

NIOSH commented on our HazCom proposed rule and interim final rule stating that the scope should not limit coverage of HazCom only to hazardous chemicals “under normal conditions of use or in a foreseeable emergency.” NIOSH stated that HazCom should cover all hazardous chemicals present on mine property, regardless of intended or expected exposures. Specifically, NIOSH stated in comments to the proposed rule that:

All workers should be informed about the nature of the risks associated with the hazardous materials found in their workplace. “When working in the presence of a hazardous material, hazards are always present even under work situations most carefully designed to eliminate risk” (NIOSH 1974a). The informed worker is prepared to minimize the impact of a hazardous materials incident. The uninformed worker is at risk of causing a hazardous materials incident or contributing to adverse health effects.

In response to the interim final rule, NIOSH wrote:

Hazard communication programs should include all workers at the worksite for all possible exposures including unplanned catastrophic occurrences that often involve hazardous materials and may result in exposure to any persons at the worksite.

We partly agree with NIOSH's comments. But we also agree with those commenters who expressed concern that by addressing remote or trivial hazards, the purpose of HazCom would be defeated and its effectiveness diluted. If miners are flooded with warnings about all chemical hazards, including

those they perceive as remotely possible, they may be more likely to ignore warnings for the more probable hazards. We also believe that it would be unnecessarily burdensome to require you to address every conceivable chemical hazard, regardless of how unlikely that hazard is to materialize.

For example, suppose a caustic chemical is only present in a certain area of your bauxite mill and you have miners in this area working near pipes carrying the caustic. You have other miners who work in a remote area of your operation who never go near the mill or the caustic. Although you could conceive of circumstances where the miner who does not work near the pipes can be exposed, it would not be reasonably foreseeable. On the other hand, you can conceive of circumstances where the miner who works daily near the pipes can be exposed. The caustic can eat through a pipe; a truck can back into a pipe; pressure can cause joints to leak. Exposure is foreseeable under these circumstances.

Almost all miners are exposed to crystalline silica, but the potential for illness is related to their exposure to the respirable fraction of dust. For example, suppose your miners work on a concrete floor and there is silica in the concrete. If no cutting, grinding, or other activities occur on the floor that would release the respirable fraction, the potential for exposure to respirable crystalline silica is remote, and the miners are not potentially exposed to a hazard. If you must remove the floor through grinding, cutting, or crushing, the potential for exposure is foreseeable and the concrete would become a hazardous chemical subject to HazCom. Base your decision to include a chemical in your HazCom program on its hazards and the potential for miner exposure.

The final rule sets boundaries on the chemicals and operators covered by HazCom. It is our judgment that these boundaries provide miners the protections intended by the Mine Act without causing you to expend resources on remote possibilities.

Significance of exposures.

One of the most frequent suggestions received on both the proposed and interim final rules was that the rule should apply only where significant exposure to a chemical occurs. These commenters asserted that a significant exposure involved a likelihood of material impairment of health to a miner, such as when a miner was overexposed to a hazardous chemical. Miners are frequently and seriously harmed by chemicals in their work area, but HazCom is not a risk-based health standard for measuring exposures, requiring controls, or providing personal protective equipment. Other standards address the problems of significant risk and the methods of controlling it. HazCom is an information standard intended to diminish risk by ensuring that operators provide miners with a level of knowledge and awareness that allows them to reduce their exposures and prevent harm by recognizing potential hazards and by following safe work practices.

HazCom is based on the premise that chemicals can have inherent characteristics that pose hazards and miners have a right to know what those hazards are and what their employer is doing to protect them. Many chemicals are considered to be hazardous because evidence indicates that they can threaten a person's physical well-being. Determining that a chemical is hazardous is not the same as determining that there is a significant risk of any specific physical or health effect occurring from its use under a particular set of circumstances at the mine.

HazCom is being promulgated to

anticipate

the possibility of harm from chemical exposures and provide information on ways to avoid it. It is not intended to regulate chemical use. It does not prohibit or limit the use of chemicals in the mining industry or prescribe controls to reduce exposures. HazCom's effectiveness is dependent on the operator's and miner's knowledge and awareness of hazards. Like any information standard, it is through hazard identification and awareness that HazCom addresses hazardous chemical exposure and prevents injuries and illnesses.

Initial HazCom training.

Paragraph (b) of § 47.2 of the final rule is a new paragraph. It requires operators of mines to initially instruct each current miner about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program within certain time periods.

Subpart F of the HazCom interim final rule contained all of the requirements for miner training which were, for the most part, the same as the proposed rule. The interim final rule required operators to train each miner about the hazardous chemicals in his work area before the miner's first assignment to that area, when the operator introduced a new hazardous chemical into the miner's work area, and when the operator became aware of significant, new information about a chemical's hazards. Although the interim final rule did not specify a format for this training, it stated that the HazCom training must include instruction on the physical and health hazards of chemicals in the work area; the requirements of HazCom; the mine's HazCom program; the location and availability of the written HazCom program; the operations or locations where hazardous chemicals are present in the miner's work area; the methods and observations that can be used to detect the presence or release of a hazardous chemical in the work area; the measures that a miner can take to protect himself or herself from these hazards; and specific procedures in place at the mine to protect miners from hazardous chemical exposure.

The training requirements of both the proposed HazCom standard and the interim final rule have been an issue throughout this rulemaking. A number of commenters to the proposed and interim final rules anticipated administrative problems both in conducting and documenting the training. Some urged us to fully integrate HazCom training with existing requirements. Some suggested that language be included to permit operators to satisfy the HazCom training provisions by incorporating HazCom training requirements into parts 46 and 48. Some suggested that we not promulgate training requirements under HazCom, asking us to amend parts 46 and 48 to specify HazCom contents instead. Other commenters felt that HazCom training duplicated EPA training and requested that we avoid needless duplication. Some commenters recommended that we require qualified or certified trainers to conduct the training. A commenter objected to the burden created by having to hire trainers and personnel to perform chemical identifications.

In the interim final rule we stated that although we have standards for labeling toxic substances under parts 56 and 57, these standards do not contain any training requirements on hazardous chemicals. With regard to the existing training under parts 46 and 48, we stated that these training regulations were insufficient for purposes of HazCom training because they do not specify the training content. Parts 46 and 48 basically require instruction in hazard recognition and the health and safety aspects of new work tasks.

After carefully reviewing all comments, and testimony presented at the HazCom hearings, we have decided to create a unified training approach for hazardous chemicals by eliminating all but the initial training requirements from the final rule and adding

conforming amendments to parts 46 and 48 for subsequent HazCom training.

Accordingly, this final rule eliminates the training requirements enumerated under Subpart F of the interim final rule. We believe that the conforming amendments to 30 CFR parts 46 and 48 will maintain the level of safety presented by the interim final rule. The final rule initially requires mine operators to instruct each miner about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program, under new paragraph (b) of § 47.2. We have also added amendments to the training subjects of existing 30 CFR parts 46 and 48 to address the subject of hazardous chemicals. This means that subsequent training on HazCom topics after the initial HazCom training required under § 47.2(b) will be conducted under parts 46 and 48. We believe that these conforming amendments to parts 46 and 48 are necessary to ensure that training on hazardous chemicals is provided under these parts.

Hazardous waste.

The final rule, consistent with the interim final rule, does not exempt EPA-regulated hazardous waste from training. Miners that have this type of hazardous material in their work area need all the information available to protect themselves from chemical hazards and from inadvertent exposure that could cause or contribute to an injury or illness.

There are a number of cement operations under MSHA jurisdiction which EPA licenses to burn hazardous waste. These operations typically use the waste as a supplemental fuel for their kilns. In addition, EPA regulates a number of mining operations that dispose of hazardous solid or liquid wastes on mine property. In the proposed rule, we specifically requested comments on the appropriateness of requiring HazCom training for miners who are exposed to EPA-regulated hazardous wastes.

One commenter supported our proposed hazardous waste training requirements. Another stated that we should use Resource Conservation and Recovery Act (RCRA) information for training purposes and copy OSHA's HCS. One commenter recommended that we not require HazCom training unless a miner is exposed to the hazardous waste. Another commenter stated that HazCom training in addition to EPA training may be redundant.

We believe that HazCom's provisions for hazardous waste will not result in duplication because MSHA standards do not fully address hazardous waste operations. OSHA can exempt hazardous waste from its HCS because they have a separate standard that covers hazardous waste operations. HazCom fills an important gap in protecting the health and safety of miners who may be exposed to hazardous waste. HazCom requires operators to label hazardous waste, if it is not already labeled, and provide miners access to any information about the hazardous waste that addresses its components, their health and safety effects, or how to prevent exposure.

As discussed earlier in this preamble, we addressed the issue of how to handle EPA-regulated hazardous waste at all stages of the rulemaking process. We are confident that the coverage of EPA-regulated hazardous waste in the HazCom rule eliminates potential duplicate training and minimizes burden on mine operators while providing protection for miners. EPA reviewed MSHA's HazCom interim final rule and saw no errors or omissions or other issues of concern to them.

Administration of training and compliance assistance.

Some commenters to the proposed and interim final rules recommended that MSHA administer the HazCom training because it could result in a higher level of consistency and quality in the training. One commenter to the interim final rule suggested that MSHA cite ANSI Z490.1

Criteria for Best Practices in Safety, Health, and Environmental Training,

in the final rule for you to follow.

Although we do not intend to conduct the initial HazCom training for you, we will provide information and assistance to trainers through our Mine Safety and Health Academy, Educational Field Services, and the MSHA district offices, and state grantees. We have developed a number of aids for the mining industry to use in implementing a successful HazCom program. You can visit our Web site at

http://www.msha.gov

to find out what is available. We intend to publish a Compliance Guide, a Toolbox, and other information as warranted, apart from HazCom, to assist the industry in complying with the standard. We encourage you to use the ANSI document as a guide for your initial HazCom training or subsequent HazCom training under 30 CFR parts 46 and 48.

Like MSHA, OSHA has developed training materials for its industries, some of which may be helpful to you in developing your initial HazCom training or subsequent training. The training materials are available from OSHA's Web site at

http://www.osha.gov.

Additionally, over the past 15 years, various organizations have developed informational materials, training aids, and model training programs to assist industry in complying with OSHA's HCS. You should be able to use some of this material in developing and conducting HazCom training.

Content of initial miner training.

As explained above, § 47.2(b) of the final rule requires operators to initially instruct each miner about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program. Consistent with the proposed and interim final rules, this new provision does not specify the format for this training. The rule allows you to determine the best way to instruct your miners about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program. If miners are exposed to a large number of hazardous chemicals, you could conduct the initial HazCom training by categories of hazards and by referring miners to the substance specific information on the labels and MSDSs and the locations or operations within their work areas where such chemicals are used. If miners are exposed to a small number of hazardous chemicals, you could conduct their initial HazCom training specifically on each hazardous chemical.

The interim final rule specified the content of the HazCom training by stating that the HazCom training must include instruction on the physical and health hazards of chemicals in the work area; the requirements of HazCom; the mine's HazCom program; the location and availability of the written HazCom program; the operations or locations where hazardous chemicals are present in the miner's work area; the methods and observations that can be used to detect the presence or release of a hazardous chemical in the work area; the measures that a miner can take to protect himself or herself from these hazards; and specific procedures in place at the mine to protect miners from hazardous chemical exposure. Final § 47.2(b), along with the conforming amendments to existing parts 46 and 48, contains equivalent protection to the interim final rule. We believe that this modification of the HazCom training requirements does not represent a reduction in safety to miners because the specific training elements of the interim final rule are already integrated in other sections of the final rule, final

§ 47.2(b) and the conforming amendments to parts 46 and 48.

Accordingly, consistent with § 47.52(a), (c) and (g) of the interim final rule, final § 47.2(b) requires mine operators initially to instruct each miner about the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program. Additionally, subsequent HazCom training under parts 46 and 48 will include instruction on the physical and health hazards of chemicals in the miner's work area, the protective measures a miner can take against these hazards, and the contents of the mine's HazCom program.

For example, miners will continue to have information regarding the requirements of the HazCom standard under paragraph (a) of § 47.32 and § 47.71 of the final rule. Paragraph (a) of § 47.32,

HazCom program contents,

requires mine operators to specify in the written HazCom program how the requirements of the HazCom standard are put into practice at the mine. Section 47.2 requires operators to instruct each miner about the HazCom program. Section 47.71,

Access to HazCom materials,

requires mine operators to provide all miners, upon request, with access to all HazCom materials required by the rule. Consequently, both §§ 47.32 and 47.71 will ensure that information about the HazCom standard is provided to each miner.

With regards to the interim final rule's requirement to train miners on the location and availability of the written HazCom program, the operations and locations where hazardous chemicals are present in the miner's work area, and the specific procedures in place at the mine to protect miners from hazardous chemical exposure, we believe that the final rule, as well as the conforming amendments to parts 46 and 48, include these. Final § 47.2(b),

Operators and chemicals covered; initial training,

requires mine operators to train miners on the protective measures they can take against the physical and health hazards of chemical's in their work area. It also requires mine operators to train miners on the contents of the mine's HazCom program. Section 47.32 of the final rule,

HazCom program content,

requires mine operators to include in the written HazCom program, among other things, a list of hazardous chemicals known to be at the mine. As with the interim final rule, this list may be compiled by individual areas of the mine or the mine as a whole. Access to all HazCom materials, including the HazCom final rule, is provided under § 47.71.

When you train miners on the physical and health hazards of chemicals in the miners' work areas, the training must include the operations and locations where hazardous chemicals are present. In addition, as part of the information provided to each miner regarding protective measures and the content of the HazCom program, you must inform miners about the location and availability of the written HazCom program, as well as the specific procedures in place at the mine to protect them from hazardous chemical exposure. Final §§ 47.2(b), 47.32, and 47.71, together, will ensure that miners are provided with the appropriate information that will provide protection against chemical hazards at the mine.

Instructor qualifications.

Some commenters to the proposed and interim final rules recommended that we require you to conduct HazCom training using only qualified or certified trainers. One of these commenters stated that we should require OSHA qualification for HazCom instructors in mining and that we should require your hazard coordinators to maintain their qualifications by attending formal education or training courses. A commenter expressed concern that unqualified mine supervisors may be conducting HazCom training. Another commenter objected to the burden created by having to hire trainers and personnel to perform chemical identifications.

Consistent with the proposed and interim final rules, the final HazCom standard does not specifically require you to use qualified instructors to conduct the initial HazCom training. We expect, however, that you will use the trainers on your staff to train miners about chemical hazards. The hazardous chemicals brought to your mine will have MSDSs and labels. These will provide information for hazard identification and you should not have to hire or train additional persons to conduct the initial HazCom training.

Mine operators must be aware that, even though final § 47.2(b) does not require the use of a qualified instructor for the initial HazCom training, the final HazCom standard amends existing parts 46 and 48 so that subsequent HazCom training is conducted under those training regulations. All subsequent HazCom training, therefore, must be provided in accordance with the applicable training requirements of parts 46 and 48. Existing part 46 requires that the training be conducted by a competent person designated by the mine operator. Existing part 48 requires the use of an MSHA-approved instructor for the administration of part 48 training.

HazCom training records.

MSHA and many commenters have a common concern about paperwork requirements and the recordkeeping burden this places on them. Congress requires us to reduce the amount of paperwork you must keep or submit to us. That requirement is balanced against our need to function effectively in meeting the goals of the Agency.

In view of those factors, and to alleviate mine operator's recordkeeping burden, this final rule does not require mine operators to maintain a record of the initial HazCom training required under § 47.2(b). We believe that this modification provides mine operators with relief from their paperwork burden. We also believe that this change does not represent a reduction of miner safety because we will be able to determine through our compliance assistance and inspection activities whether miners received their initial HazCom training.

MSHA inspectors will be providing compliance assistance at every mine. At the times that inspectors visit the mines, the inspectors can easily determine whether or not the miners have been initially trained in accordance with § 47.2. Discovering whether or not such initial training has occurred should be a focus of the compliance assistance which inspectors will be offering. This determination can be easily made by asking the miners if they have received the training outlined in the rule. Miners will be aware of their rights through the outreach programs planned by MSHA. Mine operators will be aware of their responsibilities based on the information which will be provided by MSHA inspectors and MSHA education and training personnel.

Mine operators are reminded that, even though the HazCom final rule does not contain a recordkeeping requirement for initial training, existing training regulations under parts 46 and 48 contain recordkeeping requirements. Subsequent HazCom training conducted under existing parts 46 and 48 must comply with the recordkeeping requirements of those training regulations.

B. Subpart B—Definitions

HazCom is an information standard focused on developing awareness of chemical hazards. Table 47.11 defines the terms needed for understanding the concepts and requirements in the standard. We defined some terms to have a special meaning for this

standard, but tried to stay consistent with the ordinary meaning of the terms.

1. Using MSHA and OSHA terms

The Mine Act defines the terms

miner

and

mine operator

to identify employees and employers on mine properties and we use those terms in the final rule as they were defined in the statute.

Miners/workers/employees.

We used the term

employee

in the proposed rule to identify a person “working in a mine who may be exposed to a hazardous chemical.” The proposed rule included a sentence to clarify that the standard did not apply to individuals, such as office workers, who encounter hazardous chemicals only in non-routine instances.

Commenters to the proposed rule recommended that we use the term

miner

instead of

employee.

Many commenters pointed out that

miner

is defined in the Mine Act, and that using this term would be consistent with our statute. Because the term

miner,

as defined in the Mine Act, means any individual working in a coal or other mine, including office workers, some suggested that we could add an exemption for office workers in a separate section.

The example of office workers in the proposed rule was an attempt to clarify that HazCom does not apply to individuals exposed to a hazardous chemical in extraordinary, non-routine situations. We intended this statement in the proposed rule to complement the scope and emphasize that individuals exposed to a hazardous chemical under normal conditions of use or in a foreseeable emergency, regardless of their job category, are covered by HazCom.

You must ensure that hazardous chemicals normally used in or around an office are labeled appropriately and that you have an MSDS for them. You also must inform exposed office workers about the physical and health hazards of chemicals in their work area, the protective measures they can take against these hazards, and the contents of the mine's HazCom program.

For example, some toner cartridges for copying machines come labeled and have MSDSs with them because they contain a hazardous chemical. The label and MSDS will comply with OSHA's HCS. Under HazCom, you must make potentially exposed workers aware of the hazards.

In response to comments, we replaced the term

employee

with the term

miner

in the interim final rule. There were a few instances where

employee

was more appropriate because it made the meaning clearer. There were no comments to those revisions and they were unchanged in the final rule.

Operator/independent contractor/employer.

We defined

employer

in the proposed rule as a person engaged in a business where chemicals are either used, distributed, or are produced for use or distribution, including a contractor or subcontractor. We intended the term to describe independent contractors on-site, as well as downstream or OSHA jurisdiction customers. In response to the general comment that we should rely on definitions familiar to the mining community, we replaced the term

employer

with the term

operator

in the interim final rule. We retained a few instances where

employer

was more appropriate because it made the meaning clearer. There were no comments to those revisions and they are unchanged in the final rule.

In the final rule, consistent with the interim final rule, we use

operator

to mean both the mine operator and independent contractor as defined in the Mine Act. In the preamble, we often use the term

you

instead of

operator.

We use the separate terms

mine operator

and

independent contractor

when we want to differentiate between the mine operator responsible for the whole operation and the contractors and subcontractors who have the responsibilities of an operator for specific aspects of the mining operation.

Customer.

We determined that a definition was not necessary for

customer

because we use the term as it is commonly understood to mean the downstream users who purchase your products.

Mine/workplace.

We defined

workplace

in the proposed rule to mean a mine, establishment, job site, or project at one geographical location containing one or more work areas. The term

mine

is defined by the Mine Act and, like

miner,

is more familiar to the mining industry.

Mine

means the same thing as

workplace

for purposes of HazCom. Accordingly, we substituted the term

mine

for

workplace

throughout the interim final rule. There were no comments to those revisions and they are unchanged in the final rule.

Other terms.

Some commenters to the proposed rule suggested that we add definitions for terms not proposed. Several commenters requested that coal mine be defined. The definition for

mine

in the Mine Act includes coal mines and coal preparation facilities. A number of commenters wanted independent contractor defined. We believe this term is well understood by the mining industry. It is used in § 3 of the Mine Act in the definition of

operator;

30 CFR part 45-Independent Contractors defines this term and it is used in other MSHA standards; and it has been clarified in case law. Separate definitions for these terms are unnecessary. No additional comments were made to the interim final rule and the meanings are unchanged in the final rule.

2. Material Impairment and Significant Risk

Commenters to the proposed rule suggested revising definitions for

exposed,

hazardous chemical,

and

health hazard,

among others, so the terms would include the concepts of material impairment and significant risk. They suggested deleting the phrase “or potentially subjected” from the definition of

exposed.

(The definition would then read: “Being subjected to a hazardous chemical in the course of employment * * *.”) Commenters also objected to the proposed rule's definition of

hazardous chemical

because it addressed “any chemical, in any quantity, at any time.” A health hazard, according to a commenter, should be a health hazard only under conditions of intended use.

We did not change the definitions for

exposed, hazardous chemical,

and

health hazard

in the interim final or final rules to include the concepts of material impairment or significant risk. If these changes were made in HazCom, the final rule would have taken a significant departure from its intended purpose. A fuller discussion of material impairment and significant risk is found under Purpose and Scope in this preamble.

3. Section 47.11 Definitions of Terms Used in This Part

A number of the terms defined in HazCom are commonly used by chemists, physicists, and health and safety professionals to identify and describe specific types of physical and health hazards or physical properties of chemicals. We have defined these terms in the clearest way we could, sometimes balancing technical precision with general clarity. For clarity and ease of reference, the final rule also includes the meanings of the abbreviations CPSC, EPA, and OSHA in the table of definitions. We believe this subpart provides you with the information you need to understand what HazCom requires and how to comply with it.

Access.

The final rule, like the proposed and interim final rules, defines

access

as the right to examine and copy records. One commenter to the proposed rule wanted this definition to

specify that you must provide access without cost to the miner. Another commenter to the proposal did not want the definition to include the right to copy records. Other commenters to the proposal suggested that we consolidate the access provisions in a single subpart rather than repeat them for each subpart.

HazCom's final rule is organized consistent with the interim final rule and uses the term

access

principally in the subpart “Making HazCom Information Available”. We believed the creation of this would make the requirements clearer and easier to use as well as respond to those commenters who asked us to consolidate provisions from several sections of the proposed rule. Because of the amount of detailed, technical HazCom material, particularly MSDSs, we believe that the intent to provide information to miners is best served if miners have the right to a copy of the material. The cost for providing free copies is a condition for providing access and not appropriate in a definition.

Article.

The proposed rule defined

article

to mean a manufactured item other than a fluid or a particle that—

(a) Is formed to a specific shape or design during manufacture;

(b) Has end-use functions dependent upon its shape or design; and

(c) Under normal conditions of use, releases no more than small quantities (that is, minute or trace amounts) of a hazardous chemical, such as the off-gassing of plastic pipes, and does not pose a physical or health risk to employees.

Numerous commenters to the proposed rule agreed with the definition in the proposed rule, except for paragraph (c). They claimed that paragraph (c) was unclear about how much of a hazardous chemical released from a manufactured item under normal conditions of use would constitute either small, minute, trace, or

de minimis

quantities. They also asked that we clarify that

article

means conveyor belts, repair steel, and other equipment and supplies commonly found at mines. To determine when an article is a hazardous chemical, some commenters suggested that the definition include a

de minimis

provision, while other commenters wanted a significant risk provision. One commenter to the proposed rule wanted the term “under normal conditions of use” deleted from the definition because it would limit the scope of the standard.

Another commenter expressed concern that iron ore pellets would be considered a hazardous chemical under HazCom. Iron ore pellets, like bricks, are manufactured articles. Before they are pellets, however, the iron ore is a raw material which contains respirable crystalline silica. Both the respirable dusts of iron ore and silica are inhalation hazards because they can cause lung damage. When they can pose a hazard to exposed workers, these raw materials are covered by HazCom. As raw material, iron ore is exempt from labeling under HazCom while on mine property. The pellets are exempt from HazCom when they are formed into articles, provided that they do not release more than insignificant or trace amounts of a hazardous chemical and do not pose a physical or health hazard.

We agreed with those commenters to the proposal that the definition created confusion. We believe that the confusion arose because the defined term also included the criteria for exemption, which was contrary to the ordinary understanding of the word. An article is first of all a class of material things. An item manufactured to a shape or design that determines its end-use functions will be an article, in the ordinary sense of the word, whether it gives off trace amounts of a hazardous chemical or larger amounts. The exemption of an article, however, is dependent on how the article is used.

To clarify the standard's intent, we moved proposed paragraph (c) from Definitions to Exemptions to indicate that only articles that give off no more than insignificant or trace amounts of a hazardous chemical, and are neither a physical nor a health hazard, are exempt. The definition in the final rule describes manufactured goods, other than a fluid or particle, without regard to the chemical hazard produced. The Exemptions subpart now addresses the distinction between exempt and non-exempt articles. We believe that this change is non-substantive, and clarifies the final rule. The final rule, like the interim final rule, uses the same language as the proposed rule except for the movement of the last provision to Exemptions.

To illustrate the intent of the change, suppose you purchase a tire and use it on a haul truck. While on the truck, the tire may give off a trace amount of a hazardous chemical. Under this use, the tire is an article exempt from HazCom. When the tire is worn out and can no longer be safely used on the truck, you may send it to a mine that uses tires to supplement the fuel for a kiln. While burning, the tire gives off significant amounts of hazardous chemicals. The tire is still an article, but no longer exempt from HazCom. If they are exposed, the miners working at the kiln must be trained about the chemical hazards associated with the burning tire.

Chemical.

The final rule, like the proposed and interim final rules, defines

chemical

as any element, chemical compound, or mixture of these. One commenter to the proposed rule assumed that, for the purposes of HazCom, the definition of

chemical

could be interpreted broadly to include the by-products of chemical reactions. We agree. A by-product of chemical reactions is a separate chemical and may have different hazards than the chemicals used to produce it. We intend that you address any by-products as you address other chemicals you produce.

Chemical name.

The proposed rule defined

chemical name

as the scientific designation of a chemical in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry (IUPAC) or the Chemical Abstracts Service (CAS) rule of nomenclature, or a name that will clearly identify the chemical for the purpose of conducting a hazard evaluation. A commenter to the proposed rule recommended that the definition specify Registry of Toxic Effects of Chemical Substances (RTECS) numbers, as well as CAS numbers. Although RTECS numbers are not as widely accepted as CAS numbers as a means of identifying a specific chemical, they are unique and precise and may be used, as well as IUPAC numbers. HazCom's interim final and final rules retain the proposed rules definition for

chemical name.

There were no subsequent comments received concerning the definitions or this discussion in the interim final or final rules.

Common name.

In the proposed rule, we defined

common name

as any designation or identification, such as a code name, code number, trade name, brand name, or generic name, used to identify a chemical other than by its chemical name. Commenters generally supported the proposed definition for the term

common name,

which remains the same in the final rule. This definition is consistent with the OSHA HCS.

Consumer product; food; food additive; color additive.

We exempted

consumer products, foods, food additives,

and

color additives

in the proposed rule, but we did not define them. The exemptions, however, referred to the definitions of these terms in the Consumer Product Safety Act (CPSA) and the Federal Food, Drug, and Cosmetic Act. Commenters to the proposed rule asked us to clarify the meaning of these terms, although the

concerns appeared to center on consumer products.

We did not define

food, food additive,

or

color additive

in the interim final or final rules because we use these terms as they are commonly understood and we believe the public knows what they mean. We received no comments about the use of these terms in response to the interim final rule.

We defined

consumer product

in the interim final rule, in part, by developing it from the exemption in the proposed rule and referring to the CPSA. The proposed rule would have exempted consumer products as defined in the Consumer Product Safety Act (15 U.S.C. 2051) when they are subject to consumer product safety standards or labeling requirements issued under this Act. The interim final rule required you to consider “the manufacturer's intent,” “the level and duration of exposure,” and its labeling under the CPSA. Commenters to the interim final rule asked that we provide a definition for

consumer product

that would serve as a practical guide, rather than refer to CPSA. One commenter suggested that “EPA's consumer products definition [in SARA] is more practical than MSHA's and achieves the result MSHA intended.”

In response to comments, we revised the definition for

consumer product

in the final rule to be easier to understand by keying it to packaging, labeling, and distribution rather than referencing another federal statute. We decided to use the Consumer Products Safety Commission's (CPSC's) concept of consumer product, rather than SARA's, because both HazCom and OSHA's HCS refer to CPSC's definition. The CPSC's definition clarifies the exemption, is compatible with HazCom and OSHA's use of the term, and provides the necessary protections for miners. Even so, we intend that the definition and exemption cover the same chemical products and uses as the proposed and interim final rules and OSHA's HCS. We believe that by defining

consumer product

as being packaged, labeled, and distributed in the same form and concentration as it is sold for use by the general public, the definition is simpler and easier to understand. A full discussion of consumer products can be found in Subpart J, Exemptions, later in this preamble.

Container.

As in the proposed and interim final rules, the final rule defines

container

as any bag, barrel, bottle, box, can, cylinder, drum, reaction vessel, storage tank, or the like that contains a hazardous chemical. The definition further states that pipes or piping systems; conveyors; and engines, fuel tanks, or other operating systems or parts on a motor vehicle (such as tires) are not considered to be containers.

One commenter to the proposed rule wanted pipes that contain hazardous chemicals to be considered containers. We consider it impractical to label pipes and piping systems containing hazardous chemicals. In numerous cases, these systems are used for different chemicals at different times, depending upon the needs of the operation. Our existing training standards require you to train miners about the hazardous chemicals to which they may be exposed in their work area. These are the same chemicals that would be transported in pipes and piping systems. In addition, the initial HazCom training requirements of this final rule cover the hazards of chemicals contained in pipes or piping systems in the miners' work areas.

Designated representative.

The final rule, like the proposed and interim final rules, defines

designated representative

as any individual or organization to whom a miner gives written authority to exercise that miner's right of access to records. A miner's representative, to contrast the two terms, is any individual or organization representing two or more miners.

Many commenters to the proposed rule wanted to limit the miner's choice of a designated representative to the duly selected collective bargaining representative, a member of a safety and health committee chosen by the miners, or an individual miner selected as the walkaround representative by the miners at the same mine. We feel that if we had adopted any of these suggestions, we would have restricted a miner's options.

Consistent with the proposed and interim final rules, the definition of

designated representative

in the final rule allows the miner to choose anyone as his or her designated representative, including the collective bargaining or miners' representative. We anticipate that in most instances, the designated representative will be one of those, but it could also be a miner's personal physician, attorney, or other person or organization of the miner's choosing.

Employee; employer.

The proposed rule defined

employee

as any individual working in a mine who may be exposed to a hazardous chemical. Individuals such as office workers who encounter hazardous chemicals in non-routine instances were not covered. Consistent with the interim final rule, we use the term

miner

in the final rule rather than

employee

and HazCom, therefore, does not include a definition for

employee.

The proposed rule defined

employer

as a person engaged in a business where chemicals are either used, distributed, or are produced for use or distribution, including a contractor or subcontractor. We use the term

operator

in the final rule rather than

employer

and HazCom, therefore, does not include a definition for

employer.

A fuller discussion of OSHA and MSHA terms is found in the preamble just before this section on Definitions.

Exposed.

The proposed rule defined

exposed

as being subjected, or potentially subjected, to a hazardous chemical in the course of employment through any route of entry, such as inhalation, ingestion, or skin absorption, during normal operating conditions or in a foreseeable emergency.

A number of commenters to the proposed rule wanted the phrase “or potentially subjected” deleted from the definition of

exposed

because it is vague and open to interpretation. Other commenters wanted to modify the definition to read “reasonably foreseeable emergency,” and several commenters wanted to delete the entire phrase. Another commenter to the proposed rule wanted the term

exposed

to be defined as being subjected, or potentially subjected, to exposure equal to or above the MSHA limit for a hazardous chemical.

Excluding potential exposure to a hazardous chemical, when the chemical does not have an MSHA limit or when the exposure may be below the limit, would circumvent the intent of HazCom to have miners aware of potential problems and take action to avoid them. In addition, other MSHA standards set requirements for controlling the miner's exposure to hazardous chemicals. The final rule, consistent with the interim final rule, does not incorporate these suggested changes, nor does it retain the phrase “during normal operating conditions or in a foreseeable emergency” in the definition of

exposed.

As with the changes in the definition of

article,

this phrase addressed a condition of use and confused the normal understanding of the term

exposed.

The phrase “potentially subjected” covers those situations where the threat of exposure to hazardous chemicals exists. We employ the phrase “during normal operating conditions or in a foreseeable emergency” with the term

exposed

in § 47.2 to describe when HazCom applies. We intend this definition to cover the same mine conditions as the proposed rule and, therefore, this revision has no reduction in protections for miners.

Foreseeable emergency.

The proposed rule defined

foreseeable emergency

as any potential occurrence for which you would normally plan, such as equipment failure, rupture or spill of containers, or failure of control equipment, that could result in an uncontrolled release of a hazardous chemical into the work area. Many commenters to the proposed rule stated that the phrase “for which operators would normally plan” is vague and open to interpretation and abuse and should be removed from the definition. Several of these commenters wanted to substitute “reasonably plan” for “normally plan.”

The phrase, “for which you would normally plan,” was intended to clarify the scope of “foreseeable” emergencies to provide some guidance that HazCom does not apply to remotely possible and speculative emergencies. In response to the commenters, the final rule, unlike the proposed and interim final rules, does not include the phrase “for which you would normally plan,” in its definition of

foreseeable emergency.

We believe operators know about normal planning for emergencies because of the mining industry's history of planning to prevent disasters, particularly explosions and cave-ins. We will consider an emergency to be foreseeable if we can reasonably expect you to know that it could occur due to the nature of the mining operation.

Hazard warning.

The proposed rule defined

hazard warning

as any word, picture, or symbol appearing on a label or other appropriate form of warning that conveys the specific physical and health hazards of the chemical in the container, including target organ effects. (See the definitions for

physical hazard

and

health hazard

for examples of the hazards that must be communicated.)

One commenter to the proposed rule suggested that appropriate protective measures should be required as part of hazard warnings. Although giving information about protective measures is a vital part of HazCom, we already address this information in the provisions for MSDSs, and initial HazCom training. Additionally, we are also including this subject as a training subject under parts 46 and 48. The purpose of the hazard warning in labeling is to convey critical information immediately. We believe that the most critical information for labeling is the name of the chemical and its hazards.

Consistent with the interim final rule, the final rule defines

hazard warning

as any words, pictures, symbols, or other forms of warning that convey the specific hazards of the chemical. We removed the text specifically referencing target organ effects or containers from the definition for

hazard warning

in the final rule because it was redundant. Labeling requirements in subpart D of HazCom address containers, and the definitions of

health hazard

and

physical hazard

address the effects of hazardous chemicals, including target organs.

Hazardous chemical.

To be consistent with changes in the definitions of

health hazard

and

physical hazard,

we changed the definition of

hazardous chemical

in the final rule to mean any chemical that can present a physical hazard or a health hazard. We included the criteria for determining whether a chemical is hazardous in § 47.11, Identifying hazardous chemicals. In the proposed rule, we had defined

hazardous chemical

as any chemical that is a physical hazard or a health hazard.

One commenter to the proposed rule suggested that the definition of

hazardous chemical

convey the concept that a chemical be considered hazardous based on whether it exists in a quantity or is used in a manner that could present a reasonable risk of overexposure to a miner. Several other commenters to the proposed rule suggested that the definition exempt coal and related raw materials and consumer products. Another wanted

hazardous material

to be substituted for

hazardous chemical,

stating that it would be more readily understood. As an example, this commenter stated that asbestos and gasoline are highly hazardous, yet they are not commonly referred to as chemicals.

If we based the application of HazCom on the quantity of a chemical present, it would allow you to ignore chemicals with known hazards if they are in small quantities. Some hazardous chemicals are not evenly dispersed in a mixture of dusts, liquids, or gases, and pockets of high concentration can pose a hazard even if the quantity is low. We believe that it is far more protective, and necessary to prevent injury or illness, to train miners about the presence of the chemical, signs and symptoms of exposure, safe work practices, precautionary measures, and the need to keep engineering controls in proper working order, rather than argue about what level of risk is reasonable or significant and then wait until there is a risk to inform the miners about it.

Exemptions of coal, raw materials, and consumer products from the definition of

hazardous chemical

would, in effect, exempt these substances from HazCom. In conjunction with the definition of

chemical

in this final rule, the definition of

hazardous chemical

adequately addresses our intent that common hazardous substances, such as gasoline, are to be considered hazardous chemicals.

Hazardous substance.

Both EPA and CPSC regulate hazardous substances. We borrowed the term

hazardous substance

from those agencies to identify chemicals regulated by them and exempt from HazCom or its labeling provisions. We define the term

hazardous substance

in this final rule specifically to clarify which hazardous substances are exempt from HazCom or HazCom labeling because they are regulated by CPSC under the Federal Hazardous Substance Act (15 U.S.C. 1261

et seq.

) and which are exempt from labeling because they are regulated by EPA as defined in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601

et seq.

).

The proposed rule did not define the term

hazardous substance,

but used it in the provisions for exemptions. A number of commenters to the proposed rule felt that

hazardous substance

should be defined because it is used in the rule. We did not define

hazardous substance

in the interim final rule; however, its meaning and use was the same as in the proposed rule and consistent with OSHA's HCS.

Hazardous waste.

The final rule uses the same definition of

hazardous waste

as in the proposed and interim final rules. We intend that our use of the term

hazardous waste

be consistent with both OSHA's and EPA's use of this term. HazCom defines

hazardous waste

as any chemical regulated by the Environmental Protection Agency (EPA) as a hazardous waste, as such term is defined by the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. 6901

et seq.

).

Many commenters to the proposed rule wanted

hazardous waste

re-defined to include only those chemical wastes which, because of their quantity, concentration, or physical, chemical, or infectious characteristics, may result in death or serious illness or pose a substantial hazard to human health or the environment when improperly treated, stored, transported, disposed of, or otherwise managed. One commenter to the proposed rule requested that HazCom include an operational definition for

hazardous waste.

We believe that an operational definition of

hazardous waste

specifically for mining operations would cause confusion for you in complying with other federal and state standards. Other wastes from the mining

operation or brought to the mine that are not regulated by EPA also can contain hazardous chemicals. The primary difference between the hazardous waste regulated by EPA from those unregulated by EPA is the amount of information that you can expect from the supplier. Although HazCom exempts EPA-regulated hazardous wastes from labels and MSDSs, the final rule, consistent with the interim final rule, requires you to instruct miners who can be exposed about their hazards. We are especially concerned that you obtain enough information to instruct miners about those wastes that are brought to mine property, the content and hazards of which may be unknown to you.

Health hazard.

The term health hazard in the final rule is substantively the same as the proposed and interim final rules. It describes those chemicals that can present a risk of disease or other harmful health effect to an exposed miner. The proposed rule defined

health hazard

as “[a] chemical for which acute or chronic health effects may occur in exposed employees.” The proposed rule then listed the types of illness or injury that we consider to be health hazards and also included Appendices A and B to provide more detailed explanations of these hazards.

A few commenters to the proposed rule wanted

health hazard

defined (as in OSHA's HCS) as a chemical for which there is statistically significant evidence of significant risk based on at least one valid study. Another of the proposed rule's commenters stated that much of the information in the definition was overwhelming and that the inclusion of Appendix A and Appendix B as part of the definition was inappropriate and confusing. Some suggested that the final rule reference 30 CFR parts 56, 57, 70, 71, and 75 instead of Appendices A and B.

We agreed with the commenters that the terms were somewhat obscure and drafted the definition in the interim final rule to be clearer. We also deleted the appendices to eliminate that potential source of confusion. In response to comments and for the sake of clarity, we added that there must be statistically significant evidence that the chemical can do harm and described the types of illness and injury in plain language.

In response to comments to the interim final rule, we clarified the definition in two additional ways. First, we deleted the phrase “psychological and behavioral problems” from the listing for nervous system disorders. Commenters to the interim final rule had objected to its inclusion, pointing out that operators may be unable to distinguish between psychological disorders and abnormal behavior caused by occupational exposure to a chemical. By deleting those terms, however, we do not mean to suggest that some abnormal behaviors may not be linked to chemical exposures. A number of chemical exposures can result in the appearance of a psychological or behavioral disorder. For this reason, miners need to know when they are working with a chemical that can cause them to act in an apparently abnormal manner and what those symptoms might be. If the MSDS or label lists behavioral or mood changes as a result of exposure to the hazardous chemical, it needs to be addressed in your HazCom program. We deleted this phrase from the rule, but not from the preamble because psychological and behavioral problems, such as mood swings or abnormal behavior, can be a manifestation of central nervous system damage or poisoning.

Our second change adds a category for toxic and highly toxic agents, clarifying that HazCom covers hazardous chemicals that can cause harm not specifically listed in the definition. “Toxic” and “highly toxic” are technical terms used to describe two levels of danger (virulence).

We believe that the final rule clarifies the intent, meaning, and use of the proposed and interim final rule definitions of

health hazard,

making them more consistent with OSHA's HCS while not reducing protections for miners.

Health professional.

We use the term

health professional

in the subpart on Trade Secrets in addressing two situations: an emergency situation when the trade secret information may be needed to save a life, and a non-emergency situation when the information may be needed, but not immediately. The term was undefined in the proposed rule, but, consistent with OSHA, cited examples, referring to a treating physician or nurse. We received comments to the proposal that others, such as emergency medical technicians, may need access to this information in an emergency and should be included.

In the interim final rule, we defined

health professional

as a “physician, nurse physician's assistant, emergency medical technician, industrial hygienist, toxicologist, epidemiologist, or other person qualified to provide medical or occupational health services.”

One commenter to the interim final rule asked that “occupational” not be used restrictively to limit the term

health professional.

Another commenter to the interim final rule asked that health professionals be licensed individuals. This would eliminate industrial hygienists, for example, who may be board certified, as well as some otherwise qualified nurses and technicians.

Some commenters to the proposed and interim final rules asked that we include “safety professionals” among those who must be given trade secret information that may otherwise be withheld. They stated that it is necessary to add safety professionals to the definition of

health professional

because many mines do not have industrial hygienists; their safety professionals monitor, review, and make corrective recommendations about the health hazards present at the mine.

In response to comments to the interim final rule, we re-defined

health professional

in the final rule to include a physician, nurse, physician's assistant, emergency medical technician, or other person qualified to provide medical or occupational health services. Rather than listing many professionals which could be misinterpreted as exhaustive, we edited the definition, leaving the “other person qualified” to include other individuals, such as those who are qualified by their position or training. Thus, all persons qualified to provide occupational health service are covered. We also discuss this issue under Subpart I, Trade Secrets.

This definition is intentionally flexible to allow you to make decisions that focus first on the needs of the miner. The phrase “or other person qualified” allows industrial hygienists, toxicologists, epidemiologists, and safety professionals to obtain trade secret information under the trade secret provisions of this final rule if needed to provide medical or occupational health services to miners.

HazCom does not require that the health professional be licensed. We believe that the definition in the final rule is restrictive enough to protect trade secret information about the chemical composition of a material, but broad enough to give access to those who need it.

We expect that trade secret chemical information may be needed when a miner is being treated as a result of a chemically related injury or illness. Only persons involved in treatment, researchers looking into the causes of injuries or illnesses, or the exposed miners or their designated representatives must be given access to this critical information when it is needed.

Identity; specific chemical identity.

The final rule, as did the interim final

rule, retains the proposed definition of

identity

as a chemical's common or chemical name, which must permit cross-references among the required list of hazardous chemicals, the label, and the MSDS. The proposed rule defined

specific chemical identity

as the chemical name, CAS number, or any other designation that precisely identifies the chemical. One commenter suggested that the definition of

specific chemical identity

duplicate that of

identity.

For purposes of HazCom, we determined that

specific chemical identity

was an unnecessary term because the final rule, consistent with both the proposed and interim final rules, defines the terms

identity, chemical name,

and

common name

which duplicate its definition. The proposed rule had defined

chemical name

to include CAS numbers,

common name

to include other designations, and

identity

to include the chemical name and common name. We do not use or define the term

specific chemical identity

in the final rule because the character of the chemical identity will already be known throughout other definitions and, therefore, there is no reduction of protections for miners.

Immediate use.

The term

immediate use

in the proposed rule clarified under what conditions it would be appropriate to use an unlabeled, temporary, portable container. In the proposed rule,

immediate use

meant that the miner who transferred the substance from a labeled container into a temporary, portable, unlabeled container must use it during the same work shift. We removed this term from the Definitions subpart in the interim final rule and, instead, incorporated the proposed definition in the standard. The final rule, the same as the interim final rule, does not include a definition for this term.

Label.

The proposed rule defined

label

as “any written, printed, or graphic material, displayed on or affixed to containers of hazardous chemicals.” We define

label

in the final rule in essentially the same way. For the final HazCom rule, consistent with the interim final rule, however, we added the phrase “to identify its contents and convey other relevant information” and deleted the phrase “of hazardous chemicals” in an effort to make this definition consistent with the common understanding of this term. A label on a container usually identifies its contents, whether or not it contains a hazardous chemical.

Material safety data sheet (MSDS).

We defined

material safety data sheet (MSDS)

in the proposed rule as written or printed material that an operator prepares in accordance with HazCom's requirements, or which the manufacturer or supplier prepares under OSHA's HCS for hazardous chemicals brought to the mine. One commenter to the proposed rule urged us to include an operational definition for MSDS rather than reference HazCom's requirements or OSHA's HCS. An operational definition, without reference to the standards, misses the purpose we intend for an MSDS, that is, to be an information fact sheet that conforms to the cited regulatory requirements.

A commenter to the interim final rule suggested we allow other data sheets, or allow the operator to use any source so long as that data sheet conveyed comparable information to what was required.

Although HazCom does not require a specific format, we do encourage you to use an established format for consistency within the mining industry and to be in accord with other industries, your customers. Consistent with the interim final rule, in the final rule, we revised the definition of MSDS without changing its requirements. We also expanded the reference beyond OSHA standards to include other reliable, authoritative sources of chemical information, such as a workplace hazardous material information sheet (WHMIS) and an international chemical safety card (ICSC), and by referencing Table 47.52 describing the contents.

Mixture.

The final rule, as did the interim final rule, retains the proposed definition of

mixture

as “any combination of two or more chemicals which is not the result of a chemical reaction.” We intend that the definition of mixture be applied broadly to include both solutions of chemicals and combinations of chemical solids. A characteristic of any mixture is that its individual components could be separated by mechanical or physical methods.

One commenter felt that this definition would include those chemical by-products or impurities in trace amounts that are contained in otherwise pure chemicals and that we should clarify the definition. We intend that you treat pure compounds or elements as individual chemicals, rather than as mixtures, even when they contain small amounts of other chemicals as impurities. This treatment is similar to our treatment of trace releases from articles and is consistent with OSHA's HCS.

Operator; miner.

As discussed above, and in response to commenters to the proposed rule, the final rule uses the mining terms

operator

and

miner,

as defined in the Mine Act, instead of

employer

and

employee,

as we did in the interim final rule. Section 3 of the Mine Act defines

operator

as—

* * * any owner, lessee, or other person who operates, controls, or supervises a coal or other mine or any independent contractor performing services or construction at such mine * * *

and

miner

as “any individual working in a coal or other mine.”

Ordinary consumer use.

The final rule defines

ordinary consumer use

as “[h]ousehold, family, school, recreation, or other personal use or enjoyment, as opposed to business use.” The interim final rule had defined the term as “a product or article packaged by the manufacturer or retailer for ordinary household, family school, recreation, or other personal use or enjoyment, as opposed to business use, and the miner's exposure is not more than it would be for an ordinary consumer using the product as the manufacturer intended. The proposed rule did not define the term, but the underlying idea was used to explain the

consumer product

exemption. A consumer product was exempt when “used in the workplace in the same manner as in normal consumer use and the use results in a duration and frequency of exposure which is not greater than exposures experienced by consumers.”

In response to comments to the proposed and interim final rules, the definition for

ordinary consumer use

in the final rule differs from the interim final rule. Commenters suggested that the definition in the interim final rule was vague and too subjective. For the purpose of HazCom and to make the definition easier to understand, we define the phrase

ordinary consumer use

in the final rule to mean “household, family, school, or other personal use or enjoyment, as opposed to business use.”

To be considered

ordinary consumer use,

the miner cannot be exposed to the product at more than the same concentration, frequency, and duration of time than an ordinary consumer would. For example, using an organic solvent that is an ingredient in a hand soap in a washroom would be considered ordinary consumer use. Using that same solvent as a detergent in a flotation reagent is not.

Pesticide.

The term

pesticide

appears in the final rule, as it did in the interim final rule, to clarify that pesticides are regulated by another federal agency and are exempt from HazCom. We do not define this term.

Physical hazard.

The term

physical hazard

is used to describe those chemicals with properties that can present a risk of injury to a miner. The proposal defined

physical hazard

as a “chemical which is a combustible liquid, a compressed gas, an explosive, flammable, an organic peroxide, an oxidizer, a pyrophoric, unstable (reactive) or water-reactive.” Each component comprising the definition of

physical hazard

was then defined as a separate term under the definitions. The interim final and final rules define

physical hazard

in the same terms, but include the definition for each component within the definition of

physical hazard.

The significant comments to the definition in the proposed, interim final, and final rules are discussed below in the sections for each component.

(1)

Combustible liquid.

We defined

combustible liquid

in the proposed rule as a liquid with a flashpoint at or above 100°F (100 degrees Fahrenheit) which is 37.8°C (37.8 degrees centigrade). The proposed rule listed the following three classes of combustible liquids:

(a) Class II liquids—those having flashpoints at or above 100°F (37.8°C) and below 140°F (60°C).

(b) Class III A liquids—those having flashpoints at or above 140°F (60°C) and below 200°F (93.4°C).

(c) Class III B liquids—those having flashpoints at or above 200°F (93.4°C).

OSHA's HCS had defined a

combustible liquid

as a liquid having a flashpoint at or above 100°F but below 200°F, except any mixture having components with flashpoints of 200°F or higher, the total volume of which make up 99% or more of the total volume of the mixture. Commenters to the proposed rule stated that it would be preferable to have our definition of

combustible liquid

coincide with OSHA's definition, because many facilities are covered by both rules.

We believe that the proposed definition of

combustible liquid

is compatible with OSHA's definition. We had proposed the list of the various classes of combustible liquids to match the definition in other MSHA standards. In response to proposed rule commenters, however, the interim final rule did not list these classes of combustible liquids. The interim final and the final rules, consistent with OSHA's HCS, define

combustible liquid

as a liquid having a flashpoint at or above 100°F (37.8°C) and below 200°F (93.3°C) or a liquid mixture having components with flashpoints of 200°F (93.3°C) or higher, the total volume of which make up 99% or more of the mixture.

(2)

Compressed gas.

We defined

compressed gas

to mean a contained gas or mixture of gases with an absolute pressure exceeding 40 psi (pounds per square inch) [276 kPa (kiloPascals)] at 70°F (21.1°C) or 104 psi (717 kPa) at 130°F (54.4°C) regardless of pressure at 70°F (21.1°C). In the final rule, we consider a liquid to be a compressed gas when its vapor pressure exceeds 40 psi (276 kPa) at 100°F (37.8°C), as determined by ASTM D-323-82.

The proposed and interim final rules had incorrectly referenced ASTM D-323-72, as did the OSHA HCS. We found that this was in error; ASTM D-323-72 does not exist. OSHA's docket for its HCS contains the ASTM D-323-82 standard. Although we corrected the designation for the ASTM standard to D-323-82 in our final rule, the substance of this definition is consistent with OSHA's HCS and the intent of the proposed and interim final rules.

One commenter to the proposed rule stated that the definition of

compressed gas

includes compressed air in motor vehicle tires and air compressors. Although compressed air meets the definition in HazCom for a compressed gas, an inflated tire is an article and exempt from HazCom. Also, an inflated tire is part of a motor vehicle and, thus, is not a container under HazCom. Neither do we consider compressed air in a tire or compressor to be a hazardous chemical under HazCom. A shop compressor contains compressed, ambient air and, unlike compressed gas cylinders, it is equipped with a safety valve to release excess pressure. We recognize that serious hazards exist when working with inflated tires and compressed air receivers, but we address these hazards in our safety standards. We do not require an MSDS or a label for compressors or compressed air.

(3)

Explosive.

We defined

explosive

in the proposed rule in the same way as it is defined in OSHA's HCS and added a reference to Department of Transportation (DOT) requirements. There were a number of comments that objected to the reference to DOT in the standard. In response to proposed rule commenters, we eliminated this reference in the interim final rule, and because we received no significant comments, left the definition unchanged in the final rule. We rely on the more common definition of

explosive

as a substance that undergoes a rapid chemical change causing a sudden, almost instantaneous release of pressure, gas, and heat when subjected to sudden shock, pressure, or high temperature. Consistent with the interim final rule, we intend this definition to cover the same substances in the final rule that were covered in the proposed rule and, therefore, there will be no reduction of protections to miners. We believe the term will be better understood by the mining industry.

(4)

Flammable.

We defined

flammable

in the proposed rule as a chemical that is an aerosol, a gas, a Class I liquid, or a solid that would meet specific criteria relating to its capability to ignite, to burn, and to sustain a flame. The proposed rule referenced testing methods in 16 CFR and classifications of explosives in 49 CFR, but did not include a specific publication date. A proposed rule commenter requested that we include the dates of publication for references in the definition of

flammable.

This commenter also stated that unless—

* * * operational definitions are included in the rule, it is difficult to understand, and becomes a deterrent to compliance. The mine supervisor should be able to look at the definition and determine if an item such as a conveyor belt is flammable.

As with the term explosive, we recognize that the proposed definition was highly technical and that a simpler, more generally understood definition would better serve the industry. Accordingly, and in response to comments, the final rule, like the interim final rule, defines a

flammable

chemical as one that will readily ignite and, when ignited, will burn persistently at ambient temperature and pressure in the normal concentration of oxygen in the air. We intend that this definition include the same chemicals as would have been included under the proposed definition and under OSHA's HCS.

We did not define

flashpoint

in the interim final and the final rules. We believe that qualified persons who already know the meaning of the term will be determining a chemical's flashpoint.

(5)

Organic peroxide.

The proposed and interim final rules defined

organic peroxide

as an “explosive, shock sensitive compound or an oxide that contains a high proportion of oxygen-superoxide.” We received no specific comments on this definition. It is unchanged in the final rule except for the addition of the word “organic” to clarify the description of the chemical to read “An explosive, shock sensitive, organic compound or an oxide that contains a high proportion of oxygen-superoxide”. Because it is a clarification, this will not reduce protection for miners. We intend the definition in HazCom to be essentially

the same as in OSHA's HCS. OSHA defined organic peroxide as—

* * * an organic compound that contains the bivalent—O|O structure and which may be considered to be a structural derivative of hydrogen peroxide where one or both of the hydrogen atoms has been replaced by an organic radical.

(6)

Oxidizer.

The proposed rule defined

oxidizer

as a chemical other than a blasting agent or explosive as classified in 49 CFR 173.53, 173.88, 173.100 or 173.114(a) that initiates or promotes combustion in other materials, thereby causing fire by itself or through the release of oxygen or other gases. This definition is consistent with the definition for

oxidizer

in OSHA's HCS. A commenter to the proposed rule objected to our referencing 49 CFR in our definition of this term. We simplified the definition to make it more understandable, eliminating the reference from the interim final and final rules. This change is not a substantive one and, therefore, does not reduce miner safety and health protections.

(7)

Pyrophoric.

The final rule, as did the interim final rule, retains the proposed definition of

pyrophoric.

We made minor editorial changes for clarity. This definition is consistent with that in OSHA's HCS.

(8)

Unstable (reactive).

The final rule incorporates the language of the proposed and interim final rules. It defines the term as a chemical which in the pure state, or as produced or transported, will vigorously polymerize, decompose, condense, or become self-reactive under conditions of shock, pressure, or temperature. No comments were received concerning the definition of this term. This definition is consistent with OSHA's HCS.

(9)

Water-reactive.

We defined

water-reactive

in the proposed and interim final rules as a chemical that reacts with water to release a gas that is either flammable or a health hazard. The final rule uses this same language. No comments were received concerning the definition of this term. This definition is consistent with OSHA's HCS.

Produce.

We defined

produce

in the proposed rule to mean “manufacture, process, formulate, or repackage.” This definition, together with the definition for

use,

is intentionally broad to include any situation where a hazardous chemical is present in such a way that a miner may be exposed.

We received a few comments supporting the proposed definition and no comments specifically opposing it. Other comments, however, are applicable to this issue. For example, one commenter to the proposed rule suggested that we exempt certain mine emissions, such as diesel exhaust and welding fumes, from the MSDS requirements of HazCom. This commenter stated that the composition of these produced chemicals can vary so much that not even “* * * generic MSDSs, created by MSHA as assistance to mine operators, will be very useful.” Another commenter to the proposed rule writing about the definition of

chemical

also assumed that it included the by-products of mining activities, such as diesel exhausts. This commenter stated that “constituent ingredients in diesel exhaust—nitrogen, carbon, and sulfur oxides, organic vapor, diesel particulate matter—would have to be the subject of this standard also.”

The final rule, consistent with the interim final rule, defines

produce

to mean “manufacture, process, formulate, generate, or repackage.” We added the term “generate” to the definition of

produce

in the interim final rule to clarify our intent that HazCom apply to by-products of mining activities. For example, HazCom would apply to diesel emissions, the inadvertent generation of cyanide in a storage tank, welding fumes from construction or repair of machinery, or waste discarded in a tailings pond or solid waste site. As explained under the definition for

chemical,

the by-products of mining activities may be covered in the MSDS for the initial chemical or separately for the hazardous chemical by-product itself. Also, you may develop an MSDS for a process if that is more relevant to the chemical hazard.

For the most part, solid waste sites and tailings ponds are covered by other MSHA, federal, or state standards. These standards address the health and safety hazards to the environment and nearby inhabitants and structures. We know of no other standards that specifically require you to train miners about the physical and health hazards from exposure to these mixtures and protective measures to take.

Raw material.

In the proposed rule, we defined

raw material

as a mineral, or combination of minerals, that is extracted from natural deposits by mining or is upgraded through milling. The proposed definition added that the term applied to the ore and valuable minerals extracted, as well as to the worthless material, gangue, or overburden removed during the mining or milling process. One commenter to the proposal agreed that this definition correctly includes the tailings from crushed stone, and sand and gravel operations. Another commenter to the proposal wanted to substitute the word “material” for “mineral” in the definition of

raw material,

stating that—

The term “mineral” has different uses in different areas of mining and geology that imply different definitions. The term “material” should be substituted in this definition as a more generic and less restrictive term for “mineral.”

The final rule, as did the interim final rule, does not incorporate this suggestion, but retains the proposed definition of

raw material

with minor editorial changes. Our intent is that

raw material

be limited to minerals.

Trade secret.

Like the proposed and interim final rules, the final rule defines

trade secret

as any confidential formula, pattern, process, device, information, or compilation of information that is used by the operator to give him or her an opportunity to obtain an advantage over competitors who do not know or use it. This definition is taken from the Restatement of Torts § 757, comment b (1939). HazCom allows you to withhold the

identity

of the chemical declared a trade secret under certain conditions. It requires that you provide the miners with all other pertinent HazCom information, though not process or percentage of mixture information.

One commenter was concerned that

trade secret,

as defined in the proposed rule, would allow you to arbitrarily restrict access. This commenter also recommended that the final rule include Appendix D from OSHA's HCS, which would reprint the entire Restatement of Torts comment, to guide you in applying the trade secret definition. Another commenter to the proposal saw extremely limited utility and could find no reason to include this appendix.

We do not believe that this appendix is necessary. As stated in the preamble to the proposed rule, the Restatement of Torts indicates that there are at least six well accepted factors in establishing a trade secret claim. Those six factors are—

(1) The extent to which the information is known outside of the business;

(2) The extent to which information is known by employees and others involved in the business;

(3) The extent of measures taken by the business to guard the secrecy of the information;

(4) The value of the information to the business and its competitors;

(5) The amount of effort and money expended in developing the information; and

(6) The ease or difficulty with which the information could be properly acquired or duplicated by others.

We believe these principles provide sufficient guidance in determining the legitimacy of a trade secret claim without publishing an appendix. We intend to publish a Compliance Guide, a Toolbox, and other information as warranted, apart from HazCom, to assist the industry with compliance.

Use.

We defined

use

in the proposed rule as “to package, handle, react, or transfer.” OSHA has defined

use

as “to package, handle, react, emit, extract, generate as a by-product, or transfer.” We did not include the terms “extract, emit, or generate as a by-product” because we believe they are already covered under the definition for

produce.

The final rule is the same as the proposed and interim final rules in this respect. We intend this definition to be broad enough to include any situation where a hazardous chemical is present in such a way that a miner may be exposed. We received no comments on our definition of

use.

Work area.

We defined

work area

in the proposed rule as a room or defined space in a workplace (now a

mine

) where hazardous chemicals are produced or used and where employees (now

miners

) are present. To make HazCom's definition more consistent with ordinary usage and retain its application to the presence of chemicals, the interim final rule changed the definition of

work area

to mean any place in or about a mine where a miner works and eliminated the language from the proposed rule “* * * where hazardous chemicals are used or produced.” The definition is consistent with the intent of the proposed rule, but clarifies the conditions that must be present for a work area and coincides with more common usage of the term. The final rule retains this definition.

Workplace.

The proposed rule defined

workplace

as a mine, establishment, job site, or project at one geographical location containing one or more work areas. The term was deleted in the interim final rule of HazCom to use the term

mine

instead of

workplace.

The final rule also did not use the term.

C. Subpart C—Hazard Determination

A hazardous chemical is any chemical whose properties can pose a physical or health hazard. It can be a pure substance (an element or chemical compound), a mixture, or an ingredient in a mixture. A hazardous chemical can be in any physical form: solid, liquid, or gas. The likelihood of harm may be greater under some circumstances than others, but the potential to do harm is inherent in the chemical's properties.

Some commenters to the interim final rule were concerned about what we meant by the availability of the harmful element. An example of how a hazard can be made available is concrete at mines sites. Concrete, a common construction material at mine sites, is made by mixing gravel or crushed stone with sand, cement, and water. The sand and gravel and stone contain silica. When mixing the concrete for a floor, it is a hazardous chemical: dust from the aggregate contains respirable silica; cement can burn abraded skin. When placing the wet mixture, it is a hazardous chemical: the wet cement will burn unprotected skin; the sand and crushed stone are not hazardous components because the silica is unlikely to become respirable when it is wet. The concrete floor, once set, is not a hazardous chemical. Years later, however, when breaking or cutting the floor into small pieces so it can be removed, it is a hazardous chemical again because the silica can once more become respirable. We discuss exposure and its significance under “purpose and scope” in this preamble.

HazCom's definition of hazardous chemical in the final rule is consistent with the proposed rule, the interim final rule, and OSHA's HCS. We arranged the criteria for determining whether a chemical is hazardous in Table 47.21 and re-stated the proposed rule's language in a simpler way.

1. Section 47.21 Identifying Hazardous Chemicals

To clarify our intent in the final rule, we made several editorial changes to § 47.21.

• We deleted the sentence “A hazardous chemical is any chemical that is a physical or health hazard” from the introduction to Table 47.21.

• We added “or health” to the first criteria for determining the hazards of chemicals produced at the mine so it would read “available evidence concerning its physical or health hazards.”

• We also deleted reference to hazardous waste under “(a) Chemicals brought to the mine” in Table 47.21.

Generally, we consider a chemical to be a physical hazard when there is scientifically valid evidence that it is combustible; a compressed gas or liquid; an explosive; a flammable aerosol, gas, liquid, or solid; an organic peroxide; an oxidizer; a pyrophoric (capable of spontaneously igniting); unstable and reactive; or water-reactive. Scientifically valid evidence means that a study was conducted or data obtained in a highly reliable manner that takes into consideration the margin of accuracy and consistency.

We consider a chemical to be a health hazard when there is statistically significant evidence that it can cause acute or chronic health effects. Statistically significant evidence supports a conclusion with a high level of confidence, typically 90% to 95%. This means that there is only a 5% to 10% probability that the observed results are due to chance. Health hazards include chemicals that cause cancer or are irritants, corrosives, or sensitizers. The term also includes chemicals that damage the reproductive system, the liver, the kidneys, the nervous system, the blood or lymphatic system, the digestive system, or the lungs, skin, eyes, or mucous membranes, or are toxic or highly toxic agents.

Most physical hazards of elements and compounds are well known and can be verified in a laboratory through testing. Physical hazards of mixtures can be determined the same way. Health hazards, however, are generally more complex, requiring studies of living systems, and can take much longer. Most health hazards of chemicals are determined through animal studies by extrapolating data from the effects on animals to predict the effects on humans. Even so, many chemicals are identified as hazardous based on the relationship between exposure and known illnesses and injuries. A chemical can be a physical hazard, a health hazard, both, or neither. For example, many organic solvents are both toxic and flammable.

In response to comments to the interim final rule, we modified the definition of

health hazard

in the final rule to clarify our intent. The interim final rule used the phrase “including psychological or behavioral problems” to explain nervous system damages. We deleted this phrase from the final HazCom standard after commenters pointed out the difficulty of attributing these conditions to hazardous chemicals. The interim final rule also used the term

irritate

to describe the action of irritants and

corrode

to describe corrosives. We modified these terms in the final rule to make them consistent with OSHA's HCS.

Hazard determination methods.

The final HazCom rule, like the proposed and interim final rules, includes two basic ways for determining whether or not a chemical is hazardous: one for chemicals brought to the mine and the other for chemicals produced at the mine. In every instance we reviewed, operators producing chemicals also brought chemicals to their mines. We intend that the hazard determination provisions of HazCom apply to all

hazardous chemicals produced at the mine or brought onto mine property, whether or not they are covered under other MSHA standards.

A number of commenters to the proposed rule wanted the hazard determination requirement in the proposed rule changed to read—

Operators who ship chemicals shall determine the chemicals' hazards under conditions of intended use based on our standards in 30 CFR parts 56, 57, 71, and 75.

A number of commenters to the proposal wanted operators who received chemicals to determine their hazards based solely on whether the chemical is regulated by us and whether it presents a physical or health hazard under conditions of intended use.

The final rule, like the interim final rule, does not use the word “ship” instead of “produce”; does not add the phrase “under conditions of intended use”; and does not limit the chemicals covered to those listed in our existing standards. We enforce exposure limits for chemicals listed by the American Conference of Governmental Industrial Hygienists (ACGIH) in its 1972 list of Threshold Limit Values (TLV®) for coal mines and its 1973 list for metal and nonmetal mines. These lists do not address all chemicals known to be present on mine property. The commenters' suggested language to the proposed rule would have significantly changed the intent and scope of HazCom by emphasizing the hazards associated with the manner or process in which chemicals are used by persons off mine property, instead of emphasizing the hazards to miners.

2. Chemicals Brought to the Mine

The final rule is substantively the same as the proposed and interim final rules in its requirements for a chemical brought to a mine. Under the final rule, you must review the chemical's label for any hazard warning and its MSDS for more detailed information. If the label or MSDS indicates a hazard, consider it hazardous. You must then include the chemical on the list of hazardous chemicals at the mine; keep a copy of the MSDS accessible to miners; and train miners about the physical and health hazards, the protective measures they can take against these hazards, and the content of the HazCom program. If you do not want to rely on the chemical manufacturer or supplier, you may evaluate the chemical yourself. If you do, we will require you to demonstrate that you have conducted a thorough evaluation of the available evidence.

The number and types of different hazardous chemicals brought to the mine depends on the size and type of the operation. These chemicals can range from bulk raw materials, such as ammonium nitrate for use in blasting agents, to small quantities of highly hazardous chemicals used in quality control laboratories. Diesel fuel, antifreeze, motor or hydraulic oil, brake fluid, lubricants, adhesives, paints, and solvents are a few of the materials commonly brought to mining operations that would require you to ask the question: Is this a hazardous chemical?

The written HazCom program requires you to document how you determined the hazards of the chemicals at your mine and to make a list of those found to be hazardous. For a chemical brought to the mine, you need to review its label and MSDS. The final rule, consistent with the interim final rule, requires you to make a hazard determination for each chemical at your mine to which miners can be exposed regardless of how the chemical is used.

3. Chemicals Produced at the Mine

The final rule, as in the proposed rule and interim final rule, defines a

chemical

as any element, chemical compound, or mixture of these and requires you to identify what chemicals you produce at your mine. Chemicals produced at your mine include—

• Those that you mine or process to sell, such as coal or crushed stone;

• The mixtures you create, such as flotation reagents or blasting agents;

• The by-products of mining and milling, such as diesel exhaust, hydrogen sulfide, or gases from combustion or blasting; and

• The materials discarded from mining operations, such as tailings.

Every mine product is a chemical, but not all are hazardous for the purposes of HazCom. You must determine if the chemical has any harmful properties that could pose a physical or health hazard. You must determine what the hazards and protective measures are so that you can prepare an appropriate label and MSDS. Again, HazCom does not require you to take additional protective action, as might be required by a risk-based rule. HazCom requires you to inform miners about a chemical's hazards that are based on scientifically valid evidence from either your own testing or the published results of other testing or

This text is long and has been trimmed here. Open the source document for the complete record.