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Rhode Island Hazardous Substances Notification Laws

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Date: Mon, 12 Mar 2012 Time: 8:57 PM

In this instance it is important to distinguish hazardous substances from hazardous wastes. A hazardous substance may also be a hazardous waste but also includes various products which are used in business, which are not waste products. They may be used for cleaning, as part of a manufacturing process or otherwise used as part of a business activity. These statutes thus deal with hazardous substances which are produced, used, stored, emitted, discharged or transported within the State of Rhode Island.

First, Rhode Island General Laws, Section 23-28.4-6.1, requires that every state and municipal agency, every asbestos abatement contractor and every certified or licensed commercial applicator (of pesticides) notify the local fire fighting authority of any asbestos abatement activity or any pesticide fumigation. The notification must be in writing and identify the address where the asbestos abatement or pesticide application (by fumigation) is to take place, along with the date(s) and time(s) when the work will take place. Any materials which will be used in performing the work must also be disclosed.

The application of certain pesticides also requires the clear display of a danger sign or a sign with the skull and crossbones at the building to warn the public of the hazard. These gaseous pesticides include methyl bromides, phosphine or sulfuryl florides. Any violation of the notice requirement will be dealt with as a violation of the Rhode Island Department of Health rules and regulations regarding asbestos abatement or, if related to pesticide fumigation, as a violation of the Rhode Island Department of Environmental Management rules and regulations, with the related penalties, fines and proceedings.

A second easily missed statute is the Rhode Island Hazardous Substances Community Right-to-know Act (Section 23-24.4-1, et seq.). This statute permits any resident of the State of Rhode Island to make a reasonable request from the Rhode Island Department of Labor and Training for copies of safety data sheets and of certain designated substances. The Department of Labor and Training is then supposed to obtain the requested information from the company involved in the request and provide it to the resident making the request.

A company has thirty (30) days to supply the information requested by the RI Department of Labor to the Department (in duplicate).

The only defense a company has to not provide the requested information, under Rhode Island law, is that the information is a trade secret (as defined by Chapter 21 of Title 28). Otherwise, the failure to provide the information within forty (40) days of the request by the Department results in the Department of Labor having all the powers for fines, penalties and other actions provided by law to the Department under Chapter 21 of Title 28 of the General Laws, to obtain the documents. Further, the Department can impose a fine of up to $100 per day the documents are not provided.

Any resident who makes a request under this statute who does not receive the requested materials within 90 days after making the request may sue the company involved and the Department of Labor in order to obtain the documents requested and any "relevant compensatory damages" (R.I.G.L., Section 23-24.9-8).

A company may seek reimbursement for the cost of providing the materials requested by submitting a statement of the cost of photocopying the documentation. The Department is supposed to collect the cost from the resident requesting the documentation. The Department may also charge an additional $10.00 per request for its services.

A third hazardous substance use and discharge law which is frequently overlooked is the Hazardous Substances Right-to-know Act (Rhode Island General Laws, Section 28-21-1, et seq.).

First, this Rhode Island law requires every employer who uses, transports, stores or otherwise exposes its employees to toxic or hazardous substances in a workplace to have a list of each hazardous substance. The list must be "readily available" to all employees during all hours of operation.

Further, the employer must hang a poster at one or more conspicuous locations in the workplace (or at each workplace) advising its employees of their rights under this Act. The posters are available from the Department of Labor and Training. The employer is responsible to obtain and maintain chemical identification lists and safety data sheets on each hazardous substance to which an employee may have contact or exposure.

If an employee is unable to obtain a material safety data sheet after making a good faith effort to do so (as evidenced by multiple written requests by the means set forth in the Act), the employer needs to inform the Department of Labor and Training of its fruitless efforts. The Department of Labor and Training is then supposed to demand the information from the manufacturer of the chemical(s) involved and, if that fails, can prohibit the sale or distribution of the material in Rhode Island.

Every employer covered by this Act is supposed to submit a list of hazardous materials to the Department and document the training given to its employees, as required by law. The training must be at least annual, but is required to be updated whenever an employee may be exposed to an additional hazardous substance.

Please note that these training requirements are separate from those required by OSHA (though there is substantial overlap).

Further, and again separate from the OSHA multi-employer worksite rules, a company is supposed to supply a list and the safety data sheets of hazardous materials that the employees of a subcontractor may come in contact with. The subcontractor is supposed to then train its employees. This requirement is mutual. A subcontractor is required to provide information to a company it is providing labor or materials to relating to any hazardous materials so the employer can train its employees.

Section 28-21-5 requires a company to provide the local fire department with the chemical identification and safety data sheets, and, more importantly, where different, hazardous materials may be found on the premises.

An employee seeking to enforce his/her right to know and/or to be trained, who is not given access to the information or who is not properly trained can refuse to work. The employer is prohibited from penalizing that employee in any way.

Again, the only viable defense to compliance with this Rhode Island law relates to certain defined trade secrets. This is a difficult defense, as there are many ways to train employees regarding how to safely handle the component chemicals and most component chemicals themselves have safety data sheets and the method and percentage of combination and reaction sequences do not have to be disclosed.

It is extremely important to recognize that, in addition to the penalties the business may be assessed, if an individual fails to comply with this Act, that person may be held personally liable! Further, that person who made the decision to not comply may be held personally liable to any employee who is injured as a result of the non-compliance. The dissolution of the company does not release the officer or the company's liability for the violations.

There are other exclusions and exemptions under these Acts, but these examples serve as a warning to all businesses of the need to quickly learn about the laws which may impact their day-to-day operations and the consequences of ignoring these laws—whether intentionally or not.

About the Author

Dante J. Giammarco is the author of this article about Rhode Island law and RI construction attorneys. He is a retired attorney based in Rhode Island and loves to travel and write about his experience.

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