February 16, 1996

Laurence R. Durio, CIH
Durio Consulting Services
8762 Quarters Lake Road
Baton Rouge, Louisiana 70809

Dear Mr. Durio:

Thank you for your letter of October 6, 1995, addressed to Mr. John B. Miles, Jr., Director of Compliance Programs for the Occupational Safety and Health Administration (OSHA), concerning the coverage of the Hazard Communication Standard (HCS) to crude oil, natural gas, and natural gas condensate. Your question was related to OSHA's position on application of the HCS for oil and gas producers as manufacturers and employers. You cited two previous OSHA letters of interpretation from 1989 (enclosed) that you believed contradicted the standard. Oil and gas producers are covered by the HCS and are considered chemical manufacturers. Paragraph (d)(1) of the standard states that "Chemical manufacturers and importers shall evaluate chemicals produced in their workplace or imported by them to determine if they are hazardous." The standard defines "produce" to mean "manufacture, process, formulate, blend, extract, generate, emit, or repackage." Further, OSHA has stated in the current HCS compliance directive (CPL 2-2.38C, October 22, 1990) that "Oil and gas producers are chemical manufacturers for the purposes of the HCS because they produce hazardous chemicals for use or distribution." As a consequence, crude oil, natural gas and natural gas condensate producers referenced in your letter are required to meet the standards requirements including hazard determination and therefore, development of a MSDS.

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Please disregard the statement in the letter of January 11, 1989 to Mr. Donald P. Schnacke (enclosed) which states "...OSHA does not consider oil and gas producers to be chemical manufacturers of the crude oil or natural gas." This is an erroneous statement, and we regret any confusion it may have caused. As stated above, they are considered chemical manufacturers under the standard. They can continue to use "generic MSDS" as described in the third paragraph of the letter to Mr. Schnacke.

We hope this letter has met your concerns. Should you have further questions, please contact Tom Galassi of my staff at (202) 219-8036.

Sincerely,

Ruth McCully, Director
Office of Health Compliance Assistance

Enclosures

October 06, 1995

Mr. John Miles
Director of Compliance Programs
U.S. Department of Labor
Occupational Safety and Health Administration
F-P Building, Room N3467
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Mr. Miles:

During a recent conversation with Mr. Richard E. Fairfax of your staff on another topic, I outlined a recent request from a client to him and asked what support there was for two 1989 Standard Interpretation Letters in light of apparently contradictory wording of the standard in question and the letters. He was unaware of any, but suggested that if I wanted a definitive resolution I should submit a written request to you, hence this letter.

The situation is that a client in the oil and gas production industry asked me about the applicability of the Hazard Communication Standard (29 CFR 1910.1200) requirements as a manufacturer for hazard determinations per 29 CFR 1910.1200(d), labeling and warning per 29 CFR 1910.1200(f), and generation and provision of material safety data sheets per 29 CFR 1910.1200(g); and requirements as an employer for having and maintaining copies of material safety data sheets per 29 CFR 1910.1200(g)(1) and (8), hazard communication programs per 29 CFR 1910.1200(e), and employee information and training per 29 CFR 1910.1200(h). The inquiry pertained strictly to crude oil, natural gas and natural gas condensate produced by my client.

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My initial response was that none of the requirements identified above apply to my client. They do not apply to my client as a producer of crude oil, natural gas, or natural gas condensate because the products are not manufactured. They do not apply to my client as an employer because, per 29 CFR 1910.1200(d)(1), employers are not required to perform initial evaluations of chemicals, so there is no determination under the standard that the products in question are "hazardous chemicals" as defined in the standard. My initial response was at least partially based on the requirements of the Hazard Communication Standard at issue being explicitly and implicitly keyed to MSDSes. Since my client is exempt from the evaluation/generation/provision requirements of the standard imposed on manufacturers, there is no determination that the products in question are hazardous chemicals. Accordingly, there are no MSDSes to be provided to my client as an employer. Without MSDSes provided, and since my client as an employer is not required to evaluate the products and generate MSDSes if appropriate, my client can properly conclude that, within the context of the standard as it applies to them as an employer, crude oil, natural gas and natural gas condensate are not hazardous chemicals. Obviously, since there are no MSDSes, there are none to have or maintain a copy of; and with no MSDSes or other determinations of hazard, there is nothing to require or base a hazard communication program or information and training upon. Nonetheless, I told my client I would investigate the issue further before providing a definitive response.

A careful reading of the standard confirmed my initial response. Two relevant Standard Interpretation Letters (copies attached) issued in 1989 confirmed my initial response regarding my client as a manufacturer, but stated otherwise regarding my client as an employer, at least pertaining to having and maintaining MSDSes. Neither the Baton Rouge Area Office nor I could find additional interpretations supporting either position. Mr. Fairfax was aware of the agency's position as stated in the letters, but could provide no support for it.

My professional opinion is that crude oil, natural gas and natural gas condensate are hazardous and employees should be so informed; and I agree with the contention in the Standard Interpretation Letters that they would "meet the health hazards to exposed individuals" [sic] as stated in the January 11, 1989 letter, or "meet the standard's definition of hazardous chemicals" as stated in the more literate May 3, 1989 letter if they were evaluated. Nonetheless, as I understand the standard, those criteria do not trigger the requirements in question. The trigger criterion is that materials are determined to be "hazardous chemicals" via the evaluation procedure specified in the standard. That determination has properly not been made in this case. It appears that the letters convey what the standard was intended to require rather than what it actually requires in this isolated and rather unique case.

Please clarify whether or not any of the requirements in the second paragraph of this letter apply to my client as an employer. If it is OSHA's position that any do, please identify the sections of the standard which support OSHA's position and interpret them as may be necessary to explain that position with clarity. Please contact me if you have questions or need additional information.

Very truly yours,

Laurence R. Durio
Certified Industrial Hygienist

Attachments

May 3, 1989

The Honorable David L. Boren
United States Senate
Washington, D.C. 20510

Dear Senator Boren:

This is in further response to your letter of March 6, addressed to former Assistant Secretary John A. Pendergrass, on behalf of your constituent, Mr. Tom M. Oly, Eagle Resources, Inc., regarding the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS), 29 CFR 1910.1200.

As employers covered by the expanded standard, which took effect for employers on August 1, 1987, oil and gas producers are required to maintain copies of materials safety data sheets for each hazardous chemical in the workplace and shall ensure that they are readily accessible during each work shift to employees when they are in their work area(s). Crude oil and natural gas meet the standard's definition of hazardous chemicals posing physical and health hazards to exposed individuals. Therefore, oil and gas producers are required to have a material safety data sheet for these substances, as well as for all other hazardous chemicals at your constituent's job sites.

Under the current rule, a "generic" material safety data sheet may address a group of complex mixtures, such as crude oil, which have similar hazards and characteristics because their chemical ingredients are essentially the same, even though the specific composition varies from mixture to mixture. Evidence presented during our rulemaking proceeding indicates that availability of hazard information benefits both employers and employees. Employers are required to provide a safe and healthful workplace for employees, and will be able to do a better job when they have information about the potential hazards. Employees will be better able to take steps to protect themselves when they know what the hazards are and how to avoid exposure. The result will be a reduction in chemically-related occupational illnesses and injuries. It is important to note that OSHA is undergoing further rulemaking to gather additional public comment and information regarding the Hazard Communication Standard's application to the non-manufacturing sector. Among many others, your constituent's national trade association, the Independent Petroleum Association of America, participated in the process and, on December 14, 1987, testified on this issue at public hearings provided by OSHA. A final determination on whether to modify the current rule on this or other issues as a result of the rulemaking record is presently expected in July 1989. Therefore, your constituent's obligations may be affected if changes are made to the standard.

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OSHA has developed a number of resources to assist employers in complying with the HCS. A kit produced to OSHA is available that provides step-by-step guidance on complying with the requirements of the standard and serves equally well the needs of all employers, regardless of the industry in which they operate. The kit may be purchased through the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C., 20402-9325 at a cost of $18.00. It has a GPO Order No. 929-022-00000-9 and is OSHA 3104, Hazard Communication Kit. It may be ordered by telephone from GPO by calling (202) 783-3238 and using a credit card.

In addition, a booklet entitled, "Chemical Hazard Communication" (copy enclosed) provides employers with an easy-to-read explanation of the responsibilities of employers under the HCS. The booklet also contains a directory of all OSHA Regional and Area Offices. Employers may contact a Regional or Area Office for additional information or assistance.

We hope this information is helpful to you. If we can be of further assistance, please feel free to contact us.

Sincerely,

Alan C. McMillan
Acting Assistant Secretary

Enclosure

January 11, 1989

Mr. Donald P. Schnacke
Kansas Independent Oil and Gas Association
105 South Broadway, Suite 500
Wichita, Kansas 67202

Dear Mr. Schnacke:

This is in response to your letter of June 15, 1987, to Roger A. Clark, Regional Administrator, regarding the Occupational Safety and Health Administration's (OSHA) Hazard Communication Standard (HCS), 29 CFR 1910.1200, and its requirements that material safety data sheets (MSDS) be available for all hazardous chemicals. I apologize for the delay in our response. OSHA agrees with your assertion that raw oil and gas extracted from the ground represent naturally occurring substances. In enforcing the current rule, OSHA does not consider oil and gas producers to be "chemical manufacturers" of the crude oil or natural gas. They are, therefore, not required to develop MSDS for these substances.

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As employers covered by the expanded standard, which took effect for employers on August 1, 1987, oil and gas producers are, however, required to maintain copies of MSDS for each hazardous accessible during each work shift to employees when they are in their work area(s). Crude oil and natural gas meet the health hazards to exposed individuals. Therefore, oil and gas producers are required to have a material safety data sheet for these substances, as well as for all other hazardous chemicals at your job site. Under the current rule, a "generic" MSDS may address a group of complex mixtures, such as crude oil or natural gas, which have similar hazards and characteristics because their chemical ingredients are essentially the same, even though the specific crude oil which you submitted with your letter seems to adequately address the MSDS requirements for crude oil, including its physical and health hazards. In addition, other MSDS may be obtained from the refineries that your members sell their products to.

It is important to note that OSHA is undergoing rulemaking procedures to gather additional public comment and information regarding the Hazard Communication Standard's application to the association, the Independent Petroleum Association of America, participated in the process and, on December 14, 1987, testified determination on whether to modify the current rule on this or other issues as a result of the rulemaking record is presently expected in May 1989. Therefore, your members' obligations may be affected if changes are made to the standard.

I hope your concerns have been answered. If I can be of further assistance, please feel free to contact me.

Sincerely,

Thomas J. Shepich, Director
Directorate of Compliance Programs