Section 9. (a) Any person subject to the provisions of section eight shall be relieved of the obligation to provide a specific purchaser of a toxic or hazardous substance with a MSDS if he has a record of having provided the specific purchaser with the most recent version of the MSDS; or if the substance is labeled pursuant to the Federal Insecticide, Fungicide, and Rodenticide Act; the Atomic Energy Act; the Food, Drug and Cosmetics Act; or if the article is one sold at retail and is incidentally sold to an employer or the employer’s employees, in the same form, approximate amount, concentration, and manner as it is sold to consumers, and, to the seller’s knowledge, employee exposure to the article is not significantly greater than the consumer exposure occurring during the principal consumer use of the article.
(b) If an employer is not supplied with an MSDS by a manufacturer or an intermediate seller for a toxic or hazardous substance pursuant to the mandates of section eight, said employer shall within a reasonable amount of time after discovering that an MSDS has not been supplied use diligent efforts to obtain said MSDS from the manufacturer or intermediate sellers. For purposes of this paragraph, “diligent efforts” shall mean a prompt inquiry by the employer to the manufacturer or intermediate seller of the toxic or hazardous substance requesting the MSDS with a copy of the request and any written response from the manufacturer or intermediate seller to be filed with the commissioners of DPH and DLI.
Provided, however, that for an independent contractor, or the commonwealth or any of its political subdivisions acting as an employer, “diligent efforts” shall mean a prompt inquiry to the workplace employer, rather than the manufacturer or intermediate seller, in cases where the relevant workplace is not wholly owned or controlled by the employing independent contractor, the commonwealth, or said political subdivisions.
If after having used diligent efforts an employer still fails to obtain an MSDS, he shall request the commissioner of DLI to obtain said MSDS on his or her behalf. The commissioner of DLI shall, in such cases, obtain any available assistance from the commissioner of DPH or DEP in locating or compiling an up-to-date MSDS for the toxic or hazardous substance.
An employer who has used diligent efforts as defined herein and who has made a documented request to the commissioner of DLI pursuant to this section shall not be found in violation of sections eleven, fourteen or sixteen of this chapter with respect to the MSDS which was not supplied by the manufacturer or intermediate seller as required by section eight of this chapter.
Nothing contained in this chapter shall be construed to require an employer to conduct studies to develop new information.