March 3, 1992

MEMORANDUM FOR: REGIONAL ADMINISTRATORS
THROUGH: LEO CAREY, DIRECTOR OFFICE OF FIELD PROGRAMS
FROM: PATRICIA K. CLARK, DIRECTOR DIRECTORATE OF COMPLIANCE PROGRAMS
SUBJECT: Hazard Communication and Mining Operations

We were recently contacted by Mine Safety and Health Administration (MSHA) officials regarding the application of OSHA's Hazard Communication Standard (HCS) on mining property within MSHA jurisdiction. According to the attached materials, MSHA reported that last November, OSHA cited a sand and gravel operation for not labeling and providing MSDS(s) for silica sand in accordance with the requirements of OSHA's HCS.

This memorandum is to remind you that the requirements of OSHA's HCS to develop and transmit MSDSs to downstream employers cannot be applied to mine operations under MSHA jurisdiction. Please review the attached materials, including the MSHA "Program Information Bulletin" on this issue, and insure that compliance personnel are aware of its contents. We have informed MSHA that the Program Information Bulletin is now out of date since OSHA expanded the HCS in 1987 to cover all workplaces (within OSHA jurisdiction), and that MSHA itself has proposed a hazard communication rule (Federal Register, November 2, 1990, Vol. 55, No. 213, pages 46400 through 46441) which will, when finalized, be applicable to mining operations under their jurisdiction.

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Enclosures

cc:MSHA

MAR 3 1992

Mr. Kenneth T. Howard
Acting Administrator
for Metal and Nonmetal
Mine Safety and Health Administration
4015 Wilson Boulevard
Arlington, Virginia 22203

Dear Mr. Howard:

Thank you for your letter of January 16, to Mr. Roy E. Clason, Director of the Occupational Safety and Health Administration's (OSHA) Directorate of Policy. Mr. Clason forwarded your letter to OSHA's Directorate of Compliance Programs for response.

You wrote regarding the application of OSHA's Hazard Communication Standard (HCS), 29 CFR 1910.1200, to mining concerns within MSHA's jurisdiction. Your letter referred to an incident which occurred in November, 1991, in which OSHA cited a sand and gravel operation for various violations of the HCS, including material safety data sheet (MSDS) requirements. The OSHA inspection of the sand and gravel site was apparently conducted as a follow-up to an inspection of a construction site where a container of silica sand, originating at the sand and gravel operation, was labeled inconsistently with the OSHA HCS requirements.

Your letter requested that we take steps to insure that OSHA field personnel are reminded of the fact that our HCS "does not apply to mines under MSHA jurisdiction and that mine operators are not required to comply with the OSHA requirement to send MSDSs to downstream users." Accordingly, we have developed the enclosed memorandum for all OSHA Regional Administrators (copy enclosed).

Your letter also transmitted a copy of MSHA's April 7, 1986, Program Information Bulletin No. 86-2M, entitled "Hazard Communication." We have reviewed this document and would like to remind you that this document is now out of date. It states that OSHA's HCS is only applicable to SIC codes 20 through 39, and that we have "proposed to extend coverage...to general industry." OSHA revised its HCS to cover all employers with employees exposed to hazardous chemicals on August 24, 1987 (Federal Register, Vol. 52, No. 163, pages 31852-31886), and MSHA itself has proposed a Hazard Communication Standard applicable to mine operators (FR, Vol 55, 213, November 2, 1990, pages 46400-46439). These facts should be included in any future revisions of your Program Information Bulletin on this topic. Sincerely, Dorothy L. Strunk Acting Assistant Secretary

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Enclosure

January 16, 1992

Mr. Roy E. Clason Director,
OSHA-Directorate of Policy
200 Constitution Avenue, N.W.
Room N3641
Washington, D.C. 20032

Dear Mr. Clason:

We are concerned about the application of OSHA's hazard communication standard on mining property within MSHA jurisdiction. In November 1991, an OSHA compliance officer cited John S. Lane & Son Inc., a small sand and gravel operation in Westfield, Massachusetts, with five violations for failure to comply with the OSHA hazard communication standard concerning material safety data sheets. Reportedly, OSHA compliance officers were following up an inspection of a construction site where a container of silica sand originating at the sand and gravel operation was labeled inconsistent with the OSHA requirements. While this particular incident was resolved by OSHA and Mine Safety and Health Administration (MSHA) officials, MSHA is concerned that OSHA inspection personnel may not be aware that OSHA's hazard communication rule does not apply to mines under MSHA jurisdiction and that mine operators are not required to comply with the OSHA requirement to send material safety data sheets to downstream users. This jurisdictional policy was adopted by MSHA and OSHA during MSHA's development of its April 7, 1986 Program Information Bulletin No. 86-2M dealing with hazard communication (copy enclosed). The Office of the Solicitor concurred in the policy. We understand that OSHA field personnel may not be aware of the policy decision. Therefore, in order to avoid dual jurisdiction of MSHA and OSHA over hazard communication, we request that OSHA consider whether some additional communication of this policy with field personnel is necessary.

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Sincerely,

Kenneth T. Howard
Acting Administrator for
Metal and Nonmetal

Enclosure

U.S. Department of Labor
Mine Safety and Health Administration
4015 Wilson Boulevard
Arlington, Virginia 22203

April 07, 1986

MSHA PROGRAM INFORMATION BULLETIN NO.86-2M

SUBJ: Hazard Communication

This document provides guidance concerning the impact of the OSHA hazard communication standard, 29 CFR 1910.1200 (48 FR 53340, November 25, 1983) and various State right-to-know laws on the mining industry. It may also be used as the basis for responding to public inquiries on the subject. For the reasons discussed below, operators should be advised that the OSHA hazard communication rule is not applicable to mining activities within MSHA's jurisdiction.

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The OSHA standard requires chemical manufacturers listed within SIC Codes 20 through 39 (Division D, Standard Industrial Classification Manual) and importers to determine if chemicals produced in their workplaces or imported by them are hazardous, and label each hazardous chemical leaving their workplace.(1) Chemical manufacturers and importers must develop material safety data sheets for each hazardous chemical they produce or import. In addition, covered employers(2) must develop a written hazard communication program and provide training for their employees. INQUIRIES: Marvin Nichols, Chief, Division of Health, Metal and Nonmetal Mine Safety and Health, on (703) 235-8307

DISTRIBUTION:
All Mine Operators
District Managers for Metal and Nonmetal
Mine Safety and Health
Principal Officials, Headquarters
Superintendent, National Academy

___________

(1) OSHA has proposed to extend coverage of the hazard communication rule to general industry (See 50 FR 48794, November 27, 1985).

(2) (Defined as "Persons engaged in a business within SIC Codes 20 through 39 where chemicals are either used, or are produced for use or distribution.")

The OSHA standard specifically exempts the coal mining industry. While a few metal and nonmetal operations appear to fall within the designated SIC Codes, the OSHA rule is silent as its applicability to the mining industry as a whole.

The Federal Mine Safety and Health Act of 1977, 30 U.S.C. §802 (1982), (Mine Act) defines a "coal or other mine" in extremely broad terms and court cases have sustained the full scope of this jurisdiction. Additionally, section 3(h)(1) of the Mine Act directs the Secretary of Labor, in determining what constitutes mineral milling, to give due consideration to the convenience of administration resulting from the delegation to one Assistant Secretary of all authority with respect to the health and safety of miners employed at one physical establishment.

The legislative history of the Mine Act explains MSHA's authority by stating that the term "mine" was to be given the "broadest possible interpretation and that [jurisdictional] doubts were to be resolved in favor of inclusion of a facility within the coverage of the [Mine] Act." Congress specifically distinguished the mining industry from manufacturing and intended that one agency, MSHA, enforce uniform safety and health standards and provisions ensuring miners' rights.

Relevant to determining the respective coverage of MSHA and OSHA standards are the guidelines contained in the Interagency Agreement, 44 FR 22827, April 17, 1979. This agreement states the general principle that MSHA will exercise jurisdiction over unsafe and unhealthful working conditions on mine sites and milling operations. Accordingly, MSHA has promulgated standards requiring miners to be trained in hazard recognition and avoidance including the hazards of handling chemical products. Moreover, warning and labeling requirements for metal and nonmetal mines specifically require that hazardous areas be posted in order to warn miners and that toxic substances be labeled, both in a manner which identifies the hazard involved. In advising operators, applicable MSHA standards are attached for your information.

Regarding the effect of State "right-to-know" laws at mining operations, section 506 of the Mine Act permits application of State laws that do not conflict with its provisions or regulations. State laws that are more stringent than MSHA standards, or cover health and safety in mines where MSHA has no such standards, are still applicable to mines. In general, State right-to-know" laws address the threat to public health caused by workplace hazardous substances in the environment and they may require employers to label hazardous chemicals in their workplaces and inform community residents of the potential hazards and associated exposure. Education and training of employees may also be required under State laws.

Roy L. Bernard Administrator for Metal and Nonmetal

Attachment

30 CFR 56/57.16004 Containers for hazardous materials.

30 CFR 56/57.20011 Barricades and warning signs.

30 CFR 56/57.20012 Labeling of toxic materials.

30 CFR 48.5 Training of new miners; minimum course of instruction; hours of instruction.

30 CFR 48.6 Training of newly employed experienced miners; minimum courses of instruction.

30 CFR 48.7 Training of miners assigned to a task in which they have no previous experience; minimum courses of instruction.

30 CFR 48.8 Annual refresher training of miners; minimum courses of instruction; hours of instruction.

30 CFR 48.25 Training of new miners; minimum courses of instruction; hours of instruction.*

30 CFR 48.26 Training of newly employed experienced miners minimum courses of instruction.*

30 CFR 48.27 Training of miners assigned to a task in which they have no previous experience; minimum courses of instruction.*

30 CFR 48.28 Annual refresher training of miners; minimum courses of instruction; hours of instruction.*

*Note: See Department of Labor, Health and Human Services, and Education and Related Agencies Appropriation Act, 1986, Pub. L. No. 99-178, 99 Stat. 1107 (1985), providing funding for fiscal year ending September 30, 1986, which restricts funding for enforcement of any training requirement pursuant to sections 115 and 104(g)(1) of the Mine Act with respect to shell dredging, or with respect to any sand, gravel, surface stone, surface clay, colloidal phosphate, or surface limestone mine.

GPO 922-661