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Oregon Bulletin

March 1, 2013

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

Rule Caption: Modify reporting requirements for compliance with Oregon’s Community Right to Know Program

Adm. Order No.: OSFM 1-2013

Filed with Sec. of State: 1-24-2013

Certified to be Effective: 2-1-13

Notice Publication Date: 1-1-2013

Rules Amended: 837-085-0040, 837-085-0070, 837-085-0080

Subject: This rule is being modified to raise the minimum reporting requirements for the majority of hazardous substances (generally and minimally hazardous), and to raise the minimum reporting requirements of gasoline and diesel at retail gas stations.

Rules Coordinator: Connie Dalke—(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) “Common Name” means any designation or identification such as code name, code number, trade name, brand name or generic name, used to identify a chemical other than by its chemical name.

(9) “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.

(10) “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.

(11) “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).

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

(13) “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 085 to request and receive trade secret information.

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

(15) “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.

(16) “Division” means OAR chapter 837, division 085 of the Office of State Fire Marshal.

(17) “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.

(18) “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, fire fighting, 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.

(19) “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.

(20) “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.

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

(22) “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.

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

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

(25) “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.

(26) “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.

(27) “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.

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

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

(30) “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.

(31) “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 ORS 453.005.

(32) “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.

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

(34) “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.

(35) “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.

(36) “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.

(37) “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.

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

(39) “Material Safety Data Sheet (MSDS)” means written, printed or electronic material concerning a hazardous chemical which is prepared in accordance 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.

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

(41) “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.

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

(43) “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.

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

(45) “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.

(46) “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.

(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

837-085-0070

Hazardous Substance Information Survey — Reportable Quantities

(1) If at any time during the survey period, a covered employer, owner or operator has manufactured, generated, used, stored, possessed, or disposed of a hazardous substance in an amount at or above the reportable quantities, they must report the hazardous substance.

(2) The hazardous substance reportable quantities shall be as follows:

(a) Any quantity of radioactive substance including radioactive wastes, except: sealed source radioactive materials, as defined by OAR 333-100-0005(123) contained in smoke detectors, survey equipment and small laboratory testing equipment.

(b) Any highly toxic material or explosive in quantities equal to, or greater than, ten pounds, five gallons or 20 cubic feet;

(c) Any Extremely Hazardous Substance that meets or exceeds the Threshold Planning Quantities as defined by 40 CFR 355.

(d) For gasoline (all grades combined) at a retail gas station, in quantities equal to, or greater than, 75,000 gallons if the tank(s) was stored entirely underground and the tank(s) was in compliance at all times during the preceding reporting year with all applicable Underground Storage Tank regulations.

(e) For diesel fuel (all grades combined) at a retail gas station, in quantities equal to, or greater than, 100,000 gallons if the tank(s) was stored entirely underground and the tank(s) was in compliance at all times during the preceding reporting year with all applicable Underground Storage Tank regulations.

(f) Any other hazardous substance in quantities equal to, or greater than, 500 gallons, cubic feet, or pounds.

Stat. Auth.: ORS 453.367
Stats. Implemented: ORS 453.317
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 1-2013, f. 1-24-13, cert. ef. 2-1-13

837-085-0080

Hazardous Substance Information Survey — Required Survey Information

(1) Covered employers, owners, and operators must calculate the following for each hazardous substance manufactured, generated, used, stored, possessed or disposed of during the survey period:

(a) Average daily amount;

(b) Maximum amount onsite at one time;

(c) Maximum amount at each storage location reported;

(d) Total amount transported to the facility;

(e) Total amount transported from the facility.

(2) The amounts of hazardous substances shall be measured in the physical state assumed at “Standard Temperature and Pressure” (STP) or when released into the environment.

NOTE: Although liquefied gases are reported in gallons, their reportability is determined by measuring them in cubic feet.

(3) The amounts of hazardous substances must be reported in the following units:

(a) Solids must be reported in units of pounds;

(b) Liquids must be reported in units of gallons;

(c) Liquefied gases must be reported in units of gallons;

(d) Compressed gases that are not liquefied must be reported in units of cubic feet;

(e) Radioactive materials must be reported in units of millicuries.

(4) For a mixture, the total amount of the substance is reported regardless of the concentration of the hazardous substance in the mixture.

(5) The amounts of a hazardous substance with the same chemical composition in separate containers at one facility shall be added together for reporting purposes.

(6) Like substances which are exempted from the Hazardous Substance Possession Fee shall be grouped and reported together. Examples of these groups include, but are not limited to: Gasoline, motor oils, asphalt emulsion, and diesels.

(7) Water-based paints with the same major components shall be grouped and reported together. Solvent-based paints with the same major components shall be grouped and reported together.

Stat. Auth.: ORS 453.367
Stats. Implemented: ORS 453.317
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

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, 2012.

2.) Copyright 2013 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

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