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Oregon Bulletin

February 1, 2014

Department of Oregon State Police, Office of State Fire Marshal, Chapter 837

Rule Caption: Rule being amended to align with changes to U.S. EPA 40 CFR Part 370.

Adm. Order No.: OSFM 1-2014

Filed with Sec. of State: 1-9-2014

Certified to be Effective: 1-9-14

Notice Publication Date: 12-1-2013

Rules Amended: 837-085-0040, 837-085-0090, 837-085-0280

Subject: This rule is being amended to align with changes to U.S. Environmental Protection Agency 40 CFR Part 370.

Rules Coordinator: Valerie Abrahamson—(503) 934-8211

837-085-0040

Definitions

(1) “Act” means the Community Right-to-Know and Protection Act, ORS 453.307 to 453.414.

(2) “Appeal” means the written request for a contested case in order to contest the required submission of Hazardous Substance Information Survey information or to contest a “Notice of Noncompliance and Proposed/Final Penalty Assessment” order, or a response to a request for exemption.

(3) “Approved Form” means a form provided by or authorized by the Office of State Fire Marshal.

(4) “Audit” means the evaluation of covered employers, owners or operators to determine their level of compliance with the Oregon Community Right-to-Know and Protection Act.

(5) “Average Daily Amount” means the average amount of a hazardous substance present at a facility during the twelve-month survey period.

(6) “Chemical” means any element, chemical compound, or mixture of elements or compounds.

(7) “Chemical Name” means the scientific designation of a chemical in accordance with the nomenclature system developed by the International Union of Pure and Applied Chemistry (IUPAC) or the Chemical Abstracts Service’s (CAS) rules of nomenclature.

(8) “Compliance Auditor” means a designated employee of the Office of State Fire Marshal whose responsibility is to conduct audits, identify noncompliance issues, propose penalties, establish correction dates and assist employers, owners, and operators in voluntarily complying with ORS 453.307 to 453.414.

(9) “Compliance or Due Date” means the date set for submitting a Hazardous Substance Information Survey, substantive change or other information requested by the Office of State Fire Marshal.

(10) “Compressed Gas” means:

(a) A gas or mixture of gases, in a container, having an absolute pressure exceeding 40 psi at 70° F (21.1° C); or

(b) A gas or mixture of gases, in a container, having an absolute pressure exceeding 104 psi at 130° F (54.4° C) regardless of the pressure at 70° F (21.1° C); or

(c) A liquid having a vapor pressure exceeding 40 psi at 100° F (37.8°C) as determined by ASTM D-323-72, Test Method of Vapor Pressure of Petroleum Products (Reid Method).

(11) “Confidential” means information submitted to a public body in confidence (ORS 192.502(3)).

(12) “Confidentiality Agreement” means a written agreement between a covered employer, owner or operator and an entity authorized under ORS 453.337 and OAR chapter 837, division 85 to request and receive trade secret information.

(13) “Correction Order” means a written order that directs an employer, owner or operator to submit Hazardous Substance Information Survey information.

(14) “Covered Employer, Owner or Operator” means:

(a) Any person operating a facility possessing reportable quantities of hazardous substances as defined by the Office of State Fire Marshal in OAR 837-085-0070.

(b) Any person operating a facility that the Office of State Fire Marshal believes has the potential to store, generate, use, or otherwise possess hazardous substances in reportable quantities.

(15) “Division” means OAR chapter 837, division 85 of the Office of State Fire Marshal.

(16) “Emergency” means any human caused or natural event or circumstance causing or threatening loss of life, injury to person or property, human suffering or financial loss which includes, but is not limited to, fire, explosion, flood, severe weather, drought, earthquake, volcanic activity, spills of oil or other substances, contamination, utility or transportation accidents, disease, blight, infestation, civil disturbance, riot, sabotage/war.

(17) “Emergency Services” means those activities provided by state or local government agencies with emergency operational responsibilities to prepare for or carry out any activity to prevent, minimize, respond to or recover from an emergency. Without limitation, these activities include coordination, preplanning, training, interagency liaison, firefighting, hazardous substance management, law enforcement, medical, health or sanitation services, engineering or public works, search and rescue activities, public information, damage assessment, administration and fiscal management.

(18) “Emergency Service Agency” means an organization, which performs essential services for the public’s benefit prior to, during, or following an emergency. This includes, but is not limited to, organizational units within local governments, such as emergency medical technicians, health, medical or sanitation services, public works or engineering, public information or communications.

(19) “Entity” means any individual trust, firm, association, corporation, partnership, joint stock company, joint venture, public or municipal corporation, commission, political subdivision, the state or any agency or commission thereof, interstate body, or the federal government or any agency thereof.

(20) “Exempted Substance” means a substance that is not required to be reported.

(21) “Exemption” means the written authority given to a person by the Office of State Fire Marshal, granting an exemption from the requirements of a rule or law.

(22) “Explosive” means a hazardous substance classified as an explosive by the U.S. Department of Transportation.

(23) “Extension” means the written authorization of the Office of State Fire Marshal to extend a compliance or due date.

(24) “Facility” means all buildings, equipment structures or other stationary items that are located on a single site or on contiguous or adjacent sites that are owned or operated by a covered employer, owner or operator.

(25) “Facility Representative” means any individual designated by an employer, owner or operator to serve as spokesperson or, in the absence of a designated spokesperson, the person in charge of a facility being audited.

(26) “Filed” means the receipt of a document by the Office of State Fire Marshal, except that an appeal will be considered filed upon receipt at any regional office of the Office of State Fire Marshal.

(27) “Fire District” means any agency having responsibility for providing fire protection services.

(28) “Fixed Facility” means a facility having permanent or non-mobile operations.

(29) “Hazard Classification” means the U.S. Department of Transportation hazard classes and divisions as defined in 49 CFR 173.2. However, when the definitions in 49 CFR 173.2 refer to transportation or hazards associated with transportation, they shall be deemed to refer to storage or other regulated activities under OAR chapter 837, division 085.

(30) “Hazardous Substance” means:

(a) Any substance designated as hazardous by the Director of the Department of Consumer and Business Services or by the Office of State Fire Marshal; or

(b) Any substance required to have a Material Safety Data Sheet (MSDS) pursuant to Oregon Occupational Safety and Health Division’s OAR 437, division 2 (29 CFR 1910.1200), subdivision Z, and which appears on the list of Threshold Limit Values for Chemical Substances and Physical Agents in the Work Environment by the American Conference of Governmental Industrial Hygienist (ACGIH); or

(c) Any substance required to have an MSDS pursuant to Oregon Occupational Safety and Health Division’s OAR 437, division 2 (29 CFR 1910.1200), subdivision Z, except:

(A) Substances exempted by designation of the Office of State Fire Marshal; or

(B) Substances which are solids and do not react or dissolve and are stored in unprotected areas; or

(C) Substances exempted by the rules of OAR chapter 837, division 085; or

(D) Gases intended and used for human or animal ingestion or inhalation either directly or added to a product, if the gas is present at the site where ingestion or inhalation occurs; and the gas is not being used in a manufacturing process; and the gas is not a cryogenic; and the gas is not being stored at the site in a quantity that exceeds 1,000 cubic feet.

(d) Any substance for which a manufacturer is required to develop an MSDS, that presents a physical or health hazard to emergency response personnel or the public under normal conditions of use or during an emergency situation; or

(e) Any waste substance that presents a physical or health hazard to emergency response personnel or the public under normal conditions of use or during an emergency situation; or

(f) Any radioactive waste or radioactive material as defined in ORS 469.300(19) and radioactive substance as defined in 453.005.

(31) “Hazardous Substance Information Survey” means a hazardous substance report that covered employers, owners or operators are required to submit, on an approved form, to the Office of State Fire Marshal.

(32)”Health Professional” means a physician as defined in ORS 677.010, registered nurse, industrial hygienist, toxicologist, epidemiologist or emergency medical technician.

(33) “Highly Toxic Material” means a material which produces a lethal dose or lethal concentration which falls within any of the following categories:

(a) A chemical that has a median lethal dose (LD50) of 50 milligrams or less per kilogram of body weight when administered orally to albino rats weighing between 200 and 300 grams each;

(b) A chemical that has a median lethal dose (LD50) of 200 milligrams or less per kilogram of body weight when administered by continuous contact for 24 hours (or less if death occurs within 24 hours) with the bare skin of albino rabbits weighing between two and three kilograms each;

(c) A chemical that has a median lethal concentration (LC50) in air of 200 parts per million by volume or less of gas or vapor, or two milligrams per liter or less of mist, fume or dust, when administered by continuous inhalation for one hour (or less if death occurs within one hour) to albino rats weighing between 200 and 300 grams each;

(d) Mixture of these materials with ordinary materials, such as water, may not warrant a classification of highly toxic. While this system is basically simple in application, any hazard evaluation which is required for the precise categorization of this type of material shall be performed by experienced, technically competent persons.

(34) “Identity” means any chemical or common name that is indicated:

(a) On a Material Safety Data Sheet (MSDS) as required under OAR 437, division 2 (CFR 1910.1200), subdivision Z; or

(b) On shipping documents as required under 49 CFR 171-177 under the Transportation Safety Act of 1974 (49 U.S.C. 1801 et seq.); or

(c) On hazardous waste manifests as required by OAR chapter 340, division 102 as adopted by the Department of Environmental Quality; or

(d) On packaging or container labels as required under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. 136 et seq.) and labeling regulations issued under the Act by the Environmental Protection Agency; or

(e) On a radioactive material license as issued under OAR chapter 333, divisions 100 through 113 as adopted by the Radiation Control Section of the Health Division of the Oregon Department of Human Resources.

(35) “Incident” means the threatened or actual injury or damage to a human, wildlife, domestic animal or the environment, or any property loss resulting from a hazardous substance release.

(36) “Law Enforcement Agency” means county sheriffs, municipal police departments, state police, other police officers of this or other states or law enforcement agencies of the federal government.

(37) “Liquefied Gas” means a gas that is received and stored as a liquid through the use of pressure or temperature.

(38) “Material Safety Data Sheet (MSDS)” means written, printed or electronic material concerning a hazardous chemical which is prepared in accordance with OAR 437, division 2 (29 CFR 1910.1200), subdivision Z, Hazard Communication rules of the Occupational Safety and Health Division of the Department of Consumer and Business Services.

(39) “Maximum Amount” means the largest amount of a hazardous substance located at a facility at any one time during the 12-month survey period.

(40) “North American Industry Classification System” means a system developed by the Office of Management and Budget for the purpose of classifying establishments by the type of activity they engage in. The number assigned to each group classified is called the NAICS code.

(41) “No Longer Reportable” means a previously reported substance was not on site in a reportable quantity during the current survey period.

(42) “Noncompliance” means failure of a covered employer, owner or operator to comply with the Community Right-to-Know and Protection Act or its administrative rules.

(43) “Noncompliance Classification” means the category assigned to issues of noncompliance for the purposes of assessing a penalty.

(44) “Notice of Noncompliance and Proposed/Final Penalty Assessment Order” means a written document issued to covered employers, owners or operators that states they were not complying with the Community Right-to-Know and Protection Act, establishes correction dates and notifies them of penalty assessments.

(45) “Person” means any entity including, but not limited to, an individual, trust, firm, joint stock company, corporation, partnership, association, municipal corporation, political subdivision, interstate body, the state or any agency or commission thereof, or the federal government or any agency thereof.

(46) “Product Name” means any designation or identification such as code name, code number, trade name, brand name, or generic name as provided on the Material Safety Data Sheet used to identify a substance.

(47) “Record” means any recorded information.

(48) “Repeat Noncompliance” means a covered employer, owner and or operator has failed to comply with the same rule of OAR 837-085 two or more times within a five year period of time.

(49) “Reportable Hazardous Substance” is a hazardous substance that is manufactured, generated, used, stored, possessed, or disposed of at a fixed site location by covered employers, owners, or operators at or above the reportable quantities at any time during the survey period.

(50) “Reportable Quantity” means the amount of hazardous substance that must be present at a facility before reporting is required.

(51) “Reporting Range” means a range of quantities assigned by the Office of State Fire Marshal for reporting hazardous substances.

(52) “Retail Gasoline Station” means a retail facility engaged in selling gasoline and/or diesel fuel principally to the public, for motor vehicle use on land.

(53) “Single Combined Survey” means a survey that has multiple substations reported on it.

(54) “Source Generation Sites” means facilities generating that which is relayed, pumped or stored by substations.

(55) “State Fire Marshal” means the State Fire Marshal or designee.

(56) “Substantive Change” means a change in hazardous substance reporting information that requires notification to the Office of State Fire Marshal.

(57) “Substation” means facilities that function only as electrical transmission relays, telephone transmission relays, pager transmission relays, cable TV transmission relays, cellular phone transmission relays, radar transmission relays, water storage reservoir, water pump or chlorinating stations, sewerage/storm water pump stations, natural gas pump stations or road sand storage.

(58) “Survey Period” means the 12 months preceding the date the Hazardous Substance Information Survey is mailed to, or completed by, the covered employer, owner or operator.

(59) “Temporary Worksite” means a single site location where activities, such as construction or logging, will occur for less than 24 months.

(60) “Trade Name” means the brand name or trademark given to a hazardous substance by a manufacturer or distributor.

(61) “Trade Secret” means, but is not limited to, any formula, plan, pattern, process, tool, mechanism, compound, procedure, production data, or compilation of information which is not patented; which is known only to certain individuals within a commercial concern who are using it to fabricate, produce, or compound an article of trade or a service or to locate minerals or other substances having commercial value; and which gives its user an opportunity to obtain a business advantage over competitors who do not know or use it.

(62) “Total Amount Transported from the facility” means the total amount of a hazardous substance that has been transported from the facility site during the 12-month survey period.

(63) “Total Amount Transported to the facility” means the total amount of a hazardous substance that has been transported on to the facility site during the 12-month survey period.

(64) “Waste Hazardous Substance” means any substance, which meets the Department of Environmental Quality’s definition of “hazardous waste”.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 453.367

Stats. Implemented: ORS 453.357

Hist.: FM 1-1994, f. & cert. ef. 1-14-94; OSFM 1-1999, f. 2-2-99 & cert. ef. 2-3-99; OSFM 9-2002, f. 11-14-02, cert. ef. 11-17-02; OSFM 5-2005, f. 3-31-05, cert. ef. 4-1-05; OSFM 1-2010, f. 1-27-10, cert. ef. 2-1-10; OSFM 1-2013, f. 1-24-13, cert. ef. 2-1-13; OSFM 5-2013, f. & cert. ef. 6-26-13; OSFM 1-2014, f. & cert. ef. 1-9-14

837-085-0090

Hazardous Substance Information Survey — Reporting Requirements

(1) Covered employers, owners, and operators must report hazardous substance information as required by these rules on the survey form provided or approved by the Office of State Fire Marshal.

(2) Covered employers, owners, and operators who receive the Hazardous Substance Information Survey must complete and return it to the Office of State Fire Marshal by the due date indicated on the survey in accordance with OAR 837-085-0050(3) through (8) of these rules.

(3) Covered employers, owners, and operators receiving a survey for one or more of their facilities must submit a separate survey for each of their facilities that are subject to the reporting requirements.

(4) Covered employers, owners, and operators who operate substations that are of the same type may report all their substations on a single combined survey instead of reporting each location separately.

(a) Source generation sites must be reported separately.

(b) Substations that have no hazardous substances are exempt from reporting.

(c) Each substation reported on a single combined survey must have identification posted at it that identifies the site by a company unique number or name and the Facility ID number issued by the Office of State Fire Marshal.

(A) The identification must be readable from a distance of 50 feet.

(B) Substations that are completely underground and can only be accessed through a manhole or excavation are exempt from this posting requirement.

(5) Within 30 days of receiving a survey, covered employers, owners, and operators must request a survey from the Office of State Fire Marshal for each of their subject facilities not receiving a survey.

(6) Covered employers, owners, and operators receiving the survey must provide the following information:

(a) The facility’s reporting status, including:

(A) Whether or not hazardous substances were present at the site in reportable quantities;

(B) Whether or not Extremely Hazardous Substances were present that met or exceeded the threshold planning quantity of 40 CFR 355, Appendix A and B. If the facility has Extremely Hazardous Substances present that exceed the threshold planning quantity, provide the name, email address, phone number, and 24-hour phone number of the facility emergency coordinator as required under EPCRA section 303(d)(1);

(C) Whether or not the facility is subject to the reporting requirements of Section 112(r) of the Clean Air Act. If the facility is subject to the chemical accident prevention provisions codified in 40 CFR part 68, also known as the Risk Management Program (RMP), provide the RMP facility identification number assigned by EPA;

(D) If your facility is subject to the Toxic Release Inventory (TRI) program under section 313 of EPCRA, provide the identification number assigned by EPA;

(E) Whether or not the facility is subject to the Process Safety Management (PSM) requirements of the Occupational Safety and Health Administration (OSHA);

(b) Demographic information including:

(A) The primary and, if applicable, secondary North American Industry Classification System code for the facility;

(B) A description of the type of business conducted at the site;

(C) The Dun and Bradstreet Number, if applicable;

(D) The owner’s or operator’s full name and email address;

(E) The business name which the entity operates under;

(F) The department or division, if applicable;

(G) The physical site address including the street, city, county, and zip code; or a grid location acceptable to the responding fire department if no address exists;

(H) The latitude and longitude of the facility;

(I) The facility phone number for the site;

(J) The email address of the business or contact person, if available;

(K) The mailing address, if different from the site address;

(L) The number of occupants at the site;

(M) The name, day and night phone number and email address of the person that can act as a referral if emergency responders need assistance in responding to a chemical accident at the facility;

(N) The name of the responding fire department by local jurisdiction;

(O) A brief summary of any procedures established by the covered employer, owner or operator for the control of hazardous substances in the event of an emergency; and

(P) Whether the hazardous substance storage location for each reportable hazardous substance is placarded according to National Fire Protection Association (NFPA) Standard 704.

(Q) Whether the facility is occupied or unoccupied.

(c) The name and signature of the person completing the survey and the date the survey was completed.

(d) Information about each reportable hazardous substance meeting the reportable quantity thresholds including, but not limited to:

(A) The chemical, mixture, or product name;

(B) The chemical name of the hazardous ingredient present in the highest concentration;

(C) Whether or not the substance reported contains an extremely hazardous substance as listed in 40 CFR 355;

(D) Whether or not the substance meets the threshold planning quantity as defined by 40 CFR 355;

(E) If the chemical contains an Extremely Hazardous Substances, enter the name and CAS number of the Extremely Hazardous Substances in the mixture;

(F) Whether or not the substance reported contains a Clean Air Act, Section 112(r) listed chemical;

(G) Whether or not the substance reported contains a Process Safety Management listed chemical;

(H) Information regarding whether the substance is pure or a mixture;

(I) The physical state of the hazardous substance as it is released into the environment at Standard Temperature and Pressure (STP) relating whether it is a solid, liquid or a gas;

(J) The unit of measure used to report the quantity range of the hazardous substance, relating whether it is reported in pounds, gallons, cubic feet or millicuries;

(K) The average amount;

(L) The maximum amount;

(M) The maximum amount of each reported hazardous substance for each location reported;

(N) The total amount transported to the facility;

(O) The total amount transported from the facility;

(P) The total estimated number of days the hazardous substance was on-site;

(Q) The type of container the substance is stored in;

(R) The pressure and temperature at which the substance is stored;

(S) The primary and secondary hazard classification for each reportable hazardous substance;

(T) The Chemical Abstract Service (CAS) number, if known;

(U) The four-digit United Nations (UN) or North American (NA) number, if known;

(V) The EPA Pesticide Registration number if applicable; and

(W) The storage location;

(e) Upon request of the Office of State Fire Marshal, covered employers, owners, and operators must provide Material Safety Data Sheets (MSDS);

(f) Other information that may be requested by the Office of State Fire Marshal in order to meet the intent of The Community Right-to-Know and Protection Act.

[Publications: Publications referenced are available from the agency.]

Stat. Auth.: ORS 453.367

Stats. Implemented: ORS 453.317(1) & 453.317(2)

Hist.: FM 1-1994, f. & cert. ef. 1-14-94; FM 4-1994, f. 12-14-94, cert. ef. 12-15-94; OSFM 1-1999, f. 2-2-99, cert. ef. 2-3-99; OSFM 9-2002, f. 11-14-02, cert. ef. 11-17-02; OSFM 5-2005, f. 3-31-05, cert. ef. 4-1-05; OSFM 1-2010, f. 1-27-10, cert. ef. 2-1-10; OSFM 1-2014, f. & cert. ef. 1-9-14

837-085-0280

Noncompliance Classes

For the purpose of determining the penalties that may be assessed for noncompliance, the following Noncompliance Classes are established:

(1) Class I Noncompliance. Covered employers, owners, and operators who fail to notify the Office of State Fire Marshal they have reportable quantities of hazardous substances, or fail to submit their Hazardous Substance Information Survey or substantive changes when required, shall be considered in Class I Noncompliance.

(2) Class II Noncompliance. Covered employers, owners, and operators who fail to maintain records in accordance with OAR 837-085-0110; or when requested by the Office of State Fire Marshal, fail to provide an MSDS or other hazardous substance information not elsewhere classified, shall be considered in Class II Noncompliance.

(3) Class III Noncompliance. Covered employers, owners, and operators who report all their hazardous substances but fail to submit the information required by OAR 837-085-0090 or who report the information incorrectly shall be considered in Class III Noncompliance. Exceptions: Failing to submit or submitting incorrect information on the following will not be considered Class III Noncompliance or any other class of noncompliance:

(a) North American Industry Classification System;

(b) Dun and Bradstreet Number;

(c) Send to Attention of;

(d) Department or Division;

(e) Special Fire Department Information including, but not limited to:

(A) Written Emergency Plan and, if so, the location;

(B) Automatic Fire Suppression System;

(C) NFPA 704 Placarding;

(D) Other Types of Placarding.

(f) UN or NA Numbers

(4) Class IV Noncompliance. Covered employers, owners, and operators who, when submitting their Hazardous Substance Information Survey, substantive changes or survey corrections, fail to report all reportable hazardous substances or fail to report the correct maximum daily quantity shall be considered in Class IV Noncompliance.

(5) Class V Noncompliance. Covered employers, owners, and operators who intentionally misreport on their Hazardous Substance Information Survey, substantive changes, survey corrections or records of hazardous substances or fail to provide health professionals with any pertinent hazardous substance information, in accordance with OAR 837-085-0170, shall be considered in Class V Noncompliance.

Stat. Auth.: ORS 453.367

Stats. Implemented: ORS 435.357

Hist.: FM 1-1994, f. & cert. ef. 1-14-94; OSFM 1-1999, f. 2-2-99, cert. ef. 2-3-99; OSFM 9-2002, f. 11-14-02, cert. ef. 11-17-02; OSFM 5-2005, f. 3-31-05, cert. ef. 4-1-05; OSFM 1-2010, f. 1-27-10, cert. ef. 2-1-10; OSFM 1-2014, f. & cert. ef. 1-9-14

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2013.

2.) Copyright Oregon Secretary of State: Terms and Conditions of Use

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