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Is creosote-treated wood exempt under the consumer product exemption?

Until recently, OSHA exempted wood and wood products from the Hazard Communication Standard (HCS) program.  On February 9, 1994, OSHA amended its HCS to no longer exempt certain wood and wood products (59 FR 6126).  The revised exemption found at 29 CFR 1910.1200(b)(6)(iv) applies only to wood and wood products for which the hazard potential is limited to its flammability or combustibility.  Wood that has been chemically treated is now subject to the HCS and thus requires a facility to maintain a material safety data sheet (MSDS) for the wood product.  In addition, the wood product is potentially subject to EPCRA 311 and 312.

A manufacturer of creosote-treated wood stores various sizes of treated lumber, which it sells to retailers and wholesalers.  The facility never stores more than 10,000 pounds of creosote prior to being incorporated into the wood.  Would the consumer product exemption found at 40 CFR 370.13 apply to the creosote-treated wood?  If the treated wood in storage is subject to EPCRA 311 and 312, does the facility apply the total weight of the wood products towards the 10,000 pound threshold, or just the weight of creosote contained in the wood?

EPCRA  311 and 312 apply to any facility that is required to prepare or have available a MSDS and has a hazardous chemical, as defined by OSHA, present in excess of 10,000 pounds, or has an extremely hazardous substance in excess of 500 pounds or the threshold planning quantity (TPQ), whichever is lower (40 CFR 370.10(a)(1)).  Despite the new applicability of OSHA's HCS to chemically treated wood, the wood may not be subject to EPCRA 311 and 312 if certain exemptions apply.

A manufacturer of creosote-treated wood would not have to count the wood products in storage towards the 10,000- pound threshold if the treated wood is in the same form and concentration as a product distributed to the general public (40 CFR 370.13).  If, however, the wood products are treated with levels of creosote not typically used in consumer products, then the wood products in storage must be counted in the threshold determination.  Likewise, any wood products in sizes not typically available to the general public must be counted towards threshold calculations.

A facility subject to the requirements of EPCRA 311 and 312 has two options for reporting mixtures.  An owner or operator may meet the requirements by either providing the required information on each component of a mixture or by providing the information on the mixture itself (40 CFR 370.14).  If the manufacturer of creosote-treated wood knows the concentration of the creosote in the wood, the manufacturer can apply the weight of creosote contained in the wood along with any other creosote on site towards the 10,000-pound threshold.  The owner or operator may prefer, however, to simply apply the total weight of the wood products towards the threshold.  The owner/operator may choose which reporting option to use, but the option chosen must be consistently applied for purposes of reporting under  EPCRA  311 and 312 (40 CFR 370.14(b)).