MSDS requirements for mixtures made on-site and not distributed into commerce

A facility owner/operator brings on-site two components that he blends into a mixture for on-site use. Since the mixture is not distributed to commerce, the facility owner/operator claims that Occupational Safety and Health Administration (OSHA) does not require him to develop a new Material Safety Data Sheet (MSDS) for the mixture.  Rather he simply uses the MSDSs for the two components.  When the facility owner/operator submitted his list under Section 311 of the Emergency Planning and Community Right-to-Know Act (EPCRA), he reported on the mixture rather than on the components. 

If his Local or Tribal Emergency Planning Committee (LEPC or TEPC) requests a copy of the MSDS for the mixture reported on his list, is the facility owner/operator required to develop a MSDS for the mixture?  Or, can he submit the copies of the MSDSs for the components, since no new MSDS is required under OSHA's Hazard Communication Standard (HCS)?

In satisfying the reporting obligations of Sections 311 and 312 and 40 CFR 370.30 (material safety data sheet (MSDS) reporting) and Section 370.40 (inventory form reporting), the statute and the regulations allow an owner or operator the option of reporting on the hazardous components in the mixture or on the mixture as a whole (see Section 311(a)(3) and 40 CFR 370.14).  The statute and regulations require, however, that when an owner or operator reports on the mixture as a whole, that he or she have available an MSDS for that mixture.

For example, under Section 311(c), the statute requires that when an owner or operator of a facility submits a list of chemicals to satisfy the reporting requirement of Section 311, he or she submit the material safety data sheet for the chemicals or the list upon the request of the local emergency planning committee.  In addition, under Section 312(d)(2)(A), a Tier II inventory form must provide "the chemical name or the common name of the chemical as provided on the material safety data sheet."  Thus EPA interprets the statutory and regulatory provisions to allow reporting on mixtures for which owner or operator has available a material safety data sheet.

The Agency recognizes that OSHA does not require the preparation or availability of MSDS for all mixtures an owner or operator may wish to report as a mixture under EPCRA.  Nevertheless, because of the statutory and regulatory requirements of EPCRA, the Agency is limiting the reporting of mixtures, as a whole, to only those mixtures for which the owner or operator has available a MSDS, regardless of whether the preparation of such an MSDS is required by OSHA.

If no material safety data sheet exists for a given mixture, the owner or operator should report the hazardous components of the mixture under Section 311 (40 CFR 370.30) so that he or she is able to respond to a LEPC request for the MSDS of the mixture under Section 311(c).