HAZARDOUS SUBSTANCES
WHMIS & the Law of MSDS Management

MSDS (short for material safety data sheet) management might be the part of the job that safety coordinators hate the most. It’s easy to see why. There are literally dozens—if not hundreds—of “controlled products” in most workplaces. Each one of them must have an MSDS, a document that lists technical information about the product, including its dangerous properties and how to handle, use and store it safely. And each MSDS must be accurate, thorough and up to date. MSDS management isn’t simply a question of administration. Whatever management arrangements you make must meet specific requirements set out in the Workplace Hazardous Materials Information System (WHMIS) laws. Failure to keep your MSDS management system within the boundaries of the WHMIS requirements can lead to liability under both WHMIS as well as OHS laws. More importantly, it can result in chemical spills, workplace injuries and illnesses and other incidents.

The Insider will help you effectively and legally manage your MSDS responsibilities by explaining the law of MSDS management and tell you what not to do. We also have a chart showing the rules in each province and territory on computerized access to MSDSs.

Clarifying Our Terms
The WHMIS regulations use the term “controlled product” when speaking of a hazardous or dangerous substance that requires an MSDS. A “controlled product” can be a product on its own or an ingredient in another product. So to avoid confusion, throughout this article, we’ll use the term “hazardous substance” to refer to any item that requires an MSDS under the WHMIS regulations.

What’s At Stake
If you need a reminder of why MSDS management is so important, look at what happened in 2001, at a steel mill in Chesterton, Indiana. Like their Canadian counterparts, U.S. employers are required to maintain an MSDS for each hazardous substance at their site. The mill had done a pretty good job of complying with this requirement. But there was a problem with the MSDS for the coke oven condensate, a hazardous substance consisting mostly of water, that’s used in steel ovens. The MSDS for the condensate lacked a piece of crucial information: the fact that coke oven condensate is flammable, especially at lower temperatures.

This omission turned out to be fatal. Steel workers at the mill were removing a leaky pipe containing coke oven condensate. It was February so the outdoor temperatures had been frigid, causing the water in the condensate to freeze. But because the flammable part of the condensate has a lower freezing point, it was still liquid and able to travel through the pipes. This substance leaked out of the pipe that the workers were fixing. When the workers started to remove the pipe, the flammable liquid sprayed the two of them. It also sprayed all over a space heater and heat lamp, causing the fluid to ignite. As the flames reached the valve of the pipe the workers were trying to remove, there was an explosion and more flammable liquid sprayed everywhere. Two of the workers were killed.

The U.S. Chemical Safety and Hazardous Investigation Board, an independent federal agency, investigated the incident and concluded that the lack of crucial information in the MSDS was one of the causes. If the MSDS had described coke oven condensate’s flammability at low temperatures, the incident might never have happened.

What the Law Requires
WHMIS is part of the provinces’ OHS statutes and regulations. So in most companies, the responsibility for ensuring compliance with the WHMIS laws falls on the safety coordinator. (However, in some companies, this responsibility falls on the individual who manages the environmental compliance program.) Although there are some provincial differences, WHMIS is largely a national system with rules that are consistent across all of Canada.

WHMIS is designed to ensure that workers are made aware of the dangerous substances they work with (or near), why they’re dangerous and what they should do to minimize risks to themselves and co-workers. The burden of providing this information falls on the companies that manufacture, supply and ultimately furnish the substance at the workplace, including the employer. The MSDS is the principal vehicle by which crucial information about a hazardous substance is delivered to the worker.

Let’s concentrate not on what the law says but on what it requires you to do. The WHMIS regulations are long and complex. And about half of them address MSDSs. But when you break it all down, there are really three basic MSDS requirements for employers:

• Get an MSDS from the supplier for each controlled product that’s used, stored or produced in the workplace;
• Verify that the MSDS of each controlled product is up to date, complete and accurate; and
• Make all MSDSs “readily available” to workers.

7 Common MSDS Traps
Of course, as it is with most regulations, the devil is in the details. How do you ensure that your company complies with each of these requirements? Compliance with the MSDS rules can best be explained by pointing out the common mistakes and misunderstandings that other companies have encountered. In other words, one of the most effective ways to come to grips with what you should do about MSDS management is by identifying what you should not do. So, with that in mind, let’s look at seven common MSDS traps.

Trap #1: Not Having MSDSs for ‘Consumer Products’
Trap. Thinking that a hazardous substance doesn’t need an MSDS because it’s a product used by consumers.

Explanation. WHMIS requirements, including the need for an MSDS, kick in if the substance is or contains a hazardous substance. This term conjures up images of industrial chemicals in steel barrels. But it also includes products you commonly find around an office or household, such as white-out correction fluid, printer toner and cleaning chemicals. There are some exceptions to MSDS requirements for consumer products. But the consumer product exception isn’t a blanket one. An MSDS isn’t required if:

• The product is one of the 40 classes of products that are listed as “Restricted Products” under Schedule 1 of a federal law called the Hazardous Product Act; or
• The product is actually packaged as a consumer product and sold on a retail basis (either in a store or through door-to-door sales) and is clearly intended for personal or household use.

Thus, products sold on a non-retail basis to an employer for use in a workplace must have an MSDS even if the product is a consumer product. However, under most provincial WHMIS regulations, the consumer product exception still applies if the amount of the product the employer buys is a quantity normally used by the public. So if a plant manager buys one container of toilet cleaner to be used in the plant’s bathrooms, an MSDS isn’t required. But if he orders a case of toilet cleaner through a wholesale cleaning supplier, an MSDS would be required. Also, if the employer uses the product in a way that it’s not normally used by public consumers, the exception no longer applies and an MSDS is required.

Trap #2: Locking Up the MSDS Binder
Trap. Keeping the binder containing the MSDSs in the locked office of the safety coordinator or some other individual at your company.

Explanation. WHMIS requires employers to make MSDSs readily available to any worker who may be exposed to the hazardous substance. Ontario guidelines are typical of how the term “readily available” is interpreted across Canada. They say that, “As a rule, readily available means located close to the workers, in a physical copy form (i.e., printed on paper) and accessible to workers during each shift.” Keeping an MSDS binder in an individual’s office is problematic because:

• MSDSs must be near the workers and an individual’s office may be far from the plant floor or even off the premises;
• The MSDS must be accessible at all times and an individual’s office is likely to be kept locked during part or all of certain shifts; and
• Workers shouldn’t have to ask for permission or make an appointment to see an MSDS as may be the case if the MSDS binder is stored in a manager’s office.

Trap #3: Only Providing Electronic MSDSs
Trap. Throwing away your paper MSDS binders and replacing them with an electronic MSDS system.

Explanation. According to government guidelines, it’s okay for employers to provide access to MSDSs via computer as long as they follow certain requirements, which we’ll discuss in Trap #4. However, employers are also required to make hard copies of an MSDS available to any worker who requests one. (Federally-regulated employers and those in NS must also provide hard copies of MSDSs upon the request of the JHSC.) Thus, your company can’t go completely paperless.

Trap #4: Limiting Access to Electronic MSDSs
Trap. Setting up an electronic MSDS system without giving all workers full access to it.

Explanation. You can establish an electronic MSDS system if you ensure that the system satisfies the “readily available” requirement. Computerized MSDSs are okay, according to government guidelines, as long as:

• All workers who work with or near hazardous substances have access to a computer;
• Computers are kept in working order at all times; and
• Workers and members of the JHSC know how to use the computers and other related equipment, such as CD-ROMs, to access the MSDSs.

Trap #5: Assuming a Supplier-Furnished MSDS Is Adequate
Trap. Inserting a new MSDS into the binder without verifying its adequacy.

Explanation. An MSDS must be updated every three years or when new information comes to light that needs to be reflected in the MSDS. In most cases, the supplier sends the updated version of the MSDS to the employer to whom it originally sold the hazardous substance. It’s then up to the employer to substitute the new version for the old one. Filing updated MSDSs into the binder tends to get pretty routine, especially if you have a lot of hazardous substances at your workplace. But be careful. Suppliers don’t always send the right version of the MSDS. Or they send an MSDS that’s missing information or is for the wrong product. “It’s a common mistake for employers to ‘update’ their MSDS binders with an out-of-date or inappropriate MSDS,” warns an Ontario WHMIS consultant.

Bottom line: “Don’t take it on faith that the MSDSs you receive from your suppliers meet WHMIS requirements,” the consultant advises. “You must pay careful attention to each MSDS you receive from your suppliers,” he says. Look them over carefully and get back to the supplier if you have questions or concerns. See box on the left for a checklist of the information an MSDS must include.

Trap #6: Not Providing the PPE the MSDS Recommends
Trap. Failing to provide the PPE that the MSDS calls for when handling the product.

Explanation. OHS laws require employers to provide workers with appropriate PPE. The laws don’t say which PPE should be used with which product but the MSDS for a hazardous substance does. If a worker is injured handling the product, one of the first things government inspectors will check is whether the victim was using the PPE recommended in the MSDS. If he wasn’t, the employer could be in for big trouble—especially if the right PPE would have prevented the injury.

Example: A worker for an Ontario manufacturer was getting ready to clean a corn cooking tank with an acidic foaming cleanser when the hose trigger accidentally went off and sprayed foam into his face. The worker didn’t have on goggles even though the MSDS for the cleanser required wearing them. Consequently, he suffered severe chemical burns to his eyes. The company pleaded guilty to an OHS violation and was fined $75,000 [R. v. Pepes Mexican Food Inc.].

Trap #7: Substituting a U.S. MSDS for a Canadian MSDS
Trap. Assuming that if an MSDS meets U.S. OSHA requirements, it will also meet Canadian WHMIS requirements.

Explanation. U.S. and Canadian laws both require employers to maintain MSDSs for hazardous substances. But the content requirements differ slightly. WHMIS regulations are stricter on format and presentation. For example, a Canadian MSDS must contain nine separate sections. OSHA doesn’t go into this level of detail regarding presentation. Thus, because WHMIS regulations are more restrictive, an MSDS that complies with OSHA standards doesn’t necessarily satisfy WHMIS requirements.

Conclusion
What makes MSDS management so tricky isn’t simply the complex scientific and chemical information listed on the MSDS itself. It’s also the picky requirements set out in the WHMIS regulations governing how you’re supposed to maintain and make that information accessible to your company’s workers. Although you need to be familiar with the government guidance on MSDSs available on the Internet, it’s dry, abstract and hard to read. What it doesn’t provide is what safety coordinators most need: practical guidance about what you should and shouldn’t do to manage your MSDS system. Hopefully, this article will help fill the void and make it easier to ensure compliance and, more importantly, prevent chemical incidents at your workplace.

SHOW YOUR LAWYER
R. v. Pepes Mexican Food Inc., Govt. News Release, Ont. Ct. of Justice, April 5, 2004