A facility purchases sheets of metal in order to manufacture its final product. A MSDS is received with this order. Must this be reported under Sections 311 or 312?
OSHA's Hazard Communication Standard (HCS) exempts from the definition of "hazardous chemical" those substances such as "articles". OSHA HCS define "article" as which are manufactured items other than fluid or particle: (i) which is formed to a specific shape or design during manufacture; (ii) which has end use function(s) dependent in whole or in part upon its shape or design during end use; and (iii) which under normal conditions of use does not release more than very small quantities, e.g., minute or trace amounts of a hazardous chemical (as determined under paragraph (d) of this section), and does not pose a physical hazard or health risk to employees. (see 29 CFR 1910.1200(c)). However, if the sheet metal's use has the potential to expose downstream employees in a different facility to a hazardous chemical, the manufacturer must prepare or have available an MSDS for that item, even if the manufacturer's own use of the item in its own facility does not have the potential to expose it's own employees to hazardous chemicals.
Although OSHA HCS may require facility to prepare or have available an MSDS for these sheets of metal, section 311(e)(2) exempts, "any substance present as a solid in any manufactured item to the extent exposure to the substance does not occur under normal conditions of use." EPA interprets this exemption for solids to be broader than OSHA's exemption for "articles." The purposes of Sections 311 and 312 reporting are to inform the local community of the presence of chemicals that could potentially cause a release and thus, merit public concern. Considering this, EPA does not believe that Congress intended local communities to be notified of the presence of hazardous chemicals that raise no potential for release as they are used in that particular community. Therefore, if the facilities use of the sheet metal does not cause a release of, or otherwise result in exposure to, a hazardous chemical within the sheet metal, it is not reportable under sections 311 and 312. If facilities process sheet metal, such as cutting, welding, etc. then the sheet metal would not be exempt from Sections 311 and 312 reporting requirements. The sheet metal that undergoes these processes, may have the potential to release a hazardous chemical. This potential for exposure renders the sheet metal used at these facilities ineligible for Section 311(e)(2)'s exemption from Sections 311 and 312 reporting requirements.