§ 4 — Substance list; amendment procedures; concentration requirements for toxic or hazardous substances; dissemination of information

Section 4. (a) For the purpose of this chapter, the commissioner of DPH shall establish the Massachusetts substance list and make said list available to manufacturers, employers, municipal coordinators, and the commissioners of DOL and DEP. Substances on the list may be designated by their chemical name or common name(s), and CAS number. Only those substances specifically enumerated on the list shall be subject to the provisions of this chapter, and no articles as defined in section one shall be included on the list. The commissioner of DPH shall prepare and amend the list according to the following procedures, and shall promulgate said list pursuant to the rulemaking provisions of chapter thirty A on an annual basis. The annual list shall become effective ninety days after its promulgation. In the case of substances which are extraordinarily hazardous and a threat to public health, the commissioner of DPH may promulgate emergency amendments to the list according to the laws of the commonwealth, provided that appropriate procedures for amending the list, as specified in this section, are followed.(b) The list shall consist initially of all chemical substances enumerated in any of the following designated source lists, exclusive of generic categories:1.Environmental Protection AgencyRestricted Use Pesticides - 40 CFR 162.302.International Agency for Research on Cancer(Sublist: ''Substances found to have at leastsufficient evidence of carcinogenicity in animals'')3.National Toxicology ProgramList of chemicals published in theAnnual Report onCarcinogens4.Occupational Safety and Health AdministrationToxic and Hazardous Substances - 29 CFR 1910, Subpart Z5.National Institute for Occupational Safety andHealth/Occupational Safety and Health AdministrationOccupational Health Guidelines for Chemical Hazards6.American Conference of Governmental IndustrialHygienistsThreshold Limit Value for Chemical Substances andPhysical Agents in the Workplace7.National Fire Protection AssociationHazardous Chemicals Data (NFPA 49)8.National Fire Protection AssociationFire Hazard Properties of Flammable Liquids, Gases,Volatile Solids (NFPA 325 M)(All items rated II through IV as health hazards orIII through IV as flammability or reactivity hazards.)9.Environmental Protection AgencyCarcinogen Assessment Group's List of Carcinogens10.National Cancer Institute(Substances that meet the NTP criteria for significantcarcinogenic effect.)

(c) The commissioner, in promulgating the Massachusetts substance list and its amendments shall designate on said list any substance which is a carcinogen, mutagen, teratogen, or neurotoxin, based on a preponderance of substantial and valid scientific evidence.

(d) For the purposes of this chapter, a toxic or hazardous substance is present in any mixture if it is one per cent or more of the mixture or two per cent if the toxic or hazardous substance exists as an impurity in the mixture; provided, however, that the commissioner of DPH may, by regulation, raise the concentration requirement for a toxic or hazardous substance which he or she finds is not toxic or hazardous at the threshold levels; and may lower the concentration requirement for a toxic or hazardous substance including carcinogens, mutagens, teratogens, and neurotoxins for which there is valid and substantial scientific evidence that the substance is extraordinarily hazardous.

The manufacturer of a toxic or hazardous substance shall notify the commissioner of DPH of any valid evidence which indicates either: that the concentration requirement for a toxic or hazardous substance is higher than what is necessary to protect employees who work with, or may be exposed to, the substance; or that the concentration levels should be lowered because there is valid and substantial evidence that the substance is extraordinarily hazardous.

The provisions of this chapter shall not apply to impurities which develop as intermediate materials during chemical processing but are not present in the final mixture, and to which employee or community resident exposure is unlikely.

(e) The commissioner of DPH shall amend the Massachusetts Substance List by adding, in place of the generic categories excluded pursuant to subsection (b) of this section, those specific toxic or hazardous substances which fall within said generic categories and which, in his judgment, should be subjected to the provisions of this act. Provided that such amendment shall be made only after opportunity has been provided for public comment and hearing pursuant to the rulemaking provisions of chapter thirty A and upon the commissioner's finding that according to the preponderance of the evidence, substantial and valid scientific evidence exists that any substances added pursuant to this subsection may result in an acute or chronic risk to human health or safety.

(f) Any substance added to or deleted from the source lists designated in subsection (b) of this section by the agency responsible for preparing and amending said list shall be added to, or deleted from, the Massachusetts substance list as part of its annual amendment by the commissioner of DPH.

(g) Further amendments to the Massachusetts substance list may be established by the commissioner of DPH, pursuant to the following process:

The commissioner shall publish a notice of intent to add a substance to the Massachusetts substance list. This notice shall identify the proposed substance and shall inform interested persons of their right to request a proceeding pursuant to this section. Any person showing that he may be substantially and specifically affected by the proposed addition to the substance list may file a request for such hearing provided that such request is filed in writing with the commissioner within thirty days of the date that the notice was published.

Upon receipt of a request for a hearing, the commissioner shall set a hearing date. Reasonable notice of the hearing shall be afforded all persons requesting a hearing and shall include statements of the time and place of the hearing. Parties shall have sufficient notice of the issues involved to afford them reasonable opportunity to prepare evidence and argument.

The commissioner shall allow any other interested person to participate by presentation of argument orally or in writing, or for any other limited purpose, as the agency may order.

Unless otherwise provided by law, the commissioner, or his hearing officer, need not observe the rules of evidence observed by courts, but shall observe the rules of privilege recognized by law. Evidence may be admitted and given probative effect only if it is the kind of evidence on which reasonable persons are accustomed to rely in the conduct of serious affairs. The commissioner may exclude unduly repetitious evidence.

Every party shall have the right to call and examine witnesses, to introduce exhibits, and to submit rebuttal evidence. Cross-examination shall not be allowed.

All evidence, including any records, investigation reports, and documents in the possession of the agency of which it desires to avail itself as evidence in making a decision, shall be offered and made a part of the record in the proceeding, and no other factual information or evidence shall be considered. Documentary evidence may be received in evidence in the form of copies or excerpts, or by incorporation by reference.

The commissioner shall make available an official record, which shall include testimony and exhibits, and which may be in narrative form, but need not arrange to transcribe shorthand notes or sound recordings unless requested by a party. If so requested, the commissioner may, unless otherwise provided by any law, require the party to pay the reasonable costs of the transcript before the agency makes the transcript available to the party.

A decision to place a substance on the list pursuant to this subsection, must be based upon the commissioner's finding that according to the preponderance of the evidence, substantial and valid scientific evidence exists that the substance poses an acute or chronic risk to human health or safety. The commissioner's decision shall be in writing or stated in the record. The decision shall be accompanied by a statement of reasons for the decision, including determination of each issue of fact or law necessary to the decision. Parties to the proceeding shall be notified in person or by mail of the decision, of their right to appeal the decision to the Superior court and the time limits on their right to appeal. A copy of the decision and of the statement of reasons shall be delivered or mailed upon request to each party and to his attorney of record.

Any person aggrieved by the decision of the commissioner may appeal such decision to the Superior court for Suffolk county. The standards for review shall be in accordance with the standards provided in section fourteen of chapter thirty A.

(h) Substances not present on the Massachusetts substance list established pursuant to this section shall not be subject to the provisions of this chapter.

(i) The commissioner of DPH shall be responsible for the dissemination of all information available on the nature and hazards of toxic or hazardous substances, from the chemical substances information networks of the federal environmental protection agency, the health hazard evaluation program of the national institute of occupational safety and health and any and all other information sources. DPH shall promptly assist employers, employees, community residents, municipal coordinators and state personnel with inquiries concerning the toxic or hazardous nature of such substances. DPH shall assist DLI in its responsibilities with respect to preparing or obtaining MSDS information pursuant to section nine (b).