June 20, 1997

Mr. Joseph H. Thomas, Coordinator
Hazard Communication Branch
Texas Department of Public Health
1100 West 49th Street
Austin, Texas 78756-3199

Dear Mr. Thomas:

Thank you for your letter requesting clarification of provisions of the Hazard Communication Standard (HCS). Your questions had primarily to do with the definition of an article. Below, I have summarized your concerns and provided answers.

1. Are refrigeration units containing ammonia as a refrigerant considered "articles" under the HCS? (Under "normal conditions of use," a refrigeration unit does not result in employee exposures to a hazardous chemical. These units often go years without needing to be recharged).
   
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   A refrigeration unit, which is "formed to a specific shape or design during manufacture" and "has end use function(s) dependent in whole or in part upon its shape or design during end use" would appear to be an article.

   The determination of whether an item is an "article" under the HCS is made by the manufacturer. The article exemption applies to the end use of the product only--if intermediate use results in exposures, these exposures are covered by the HCS. Therefore, employees who recharge the coils or may otherwise be exposed to the refrigerant during the course of their employment are entitled to hazard information. The employer has the responsibility for conveying hazards and must address this as part of the hazard communication program.

2. Desks, which are specifically discussed as articles in the preamble to the original HCS rule, give off toxic gases during fires. Since fires are foreseeable emergencies and the HCS covers foreseeable emergencies, are manufacturers of desks required to provide downstream users with hazard information?
   According to OSHA's Directive, CPL 2-2.38C, a foreseeable emergency does not include the condition of accidental fire, but does include equipment failure, rupture of containers, or failure of control equipment which could result in an uncontrolled release.

3. Since lead/acid batteries produce hydrogen gas in only very small, i.e., minute quantities, during normal conditions of use, it would appear that they would be exempted as articles under the HCS. Why are lead acid batteries covered by the HCS?
   Lead/acid batteries have the potential to leak, spill or break during normal conditions of use and in foreseeable emergencies and may expose employees to the acid contained therein. In addition to this, lead/acid batteries have the potential to emit hydrogen gas, which may result in a fire or explosion upon ignition. Employees who handle these batteries are entitled to information regarding the hazards of exposure.

   Regarding the operation of a battery in a vehicle, the preamble to the 1987 Final Rule for HCS states that a vehicle does not have to "bear labels regarding hazardous chemicals used to operate them. This does not, however, exempt such chemicals from coverage by the rule--it simply eliminates the need to label once they are placed into the vehicle" (FR Vol. 59, No. 27, 31863).

4. Does the exposure history for employees at a specific facility have to be reviewed before it can be determined if a particular piece of equipment at that site is exempted as an article?
   

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   The HCS does not apply to equipment, it applies to chemicals. The term "chemical" is broadly defined in the HCS as, "any element, chemical compound, or mixture of elements and/or compounds." This definition can result in an item which would not normally be thought of as a "chemical" classified as such. For instance, bricks which are used in construction are considered hazardous chemicals since, under normal conditions of use, bricks are cut or sawed, resulting in exposure to crystalline silica.

   The scope and application of the HCS applies anytime a "chemical" is known to be present in the workplace and requires "all employers to provide information to their employees about the hazardous chemicals to which they are exposed" (29 CFR 1910.1200(b)(1)). The HCS is not necessarily triggered by the mere presence of a chemical, the chemical must be available for exposure.

   Since the employer is in a position to be aware of the chemical hazards in their workplace, it is the responsibility of the employer to evaluate the employees' potential exposures and to provide information and training as required under the HCS. If an item presents a potential exposure, then that item could be classified as a "hazardous chemical." For instance, a certain percentage of glass mercury switches are expected to break during installation in a piece of equipment. During the installation process, the switches are considered a hazardous chemical as they present a potential exposure. Hazard information is required for employees involved in the installation. Once installed, these items would be articles and thus exempted.

5. Please provide an explanation of the term, "under normal conditions of use," as found in the definition of an article, and the requirement to evaluate foreseeable emergencies under the HCS.
   The application of foreseeable emergencies does not apply [to] items [that] are articles.

Sincerely,

Steve Mallinger, Acting Director
Office of Health Compliance Assistance