The following is a reprint of the Restatement of Torts
section 757, comment b (1939):
Definition of trade secret. A trade secret may consist of
any formula, pattern, device or compilation of information which
is used in one's business, and which gives him an opportunity to
obtain an advantage over competitors who do not know or use it.
It may be a formula for a chemical compound, a process of
manufacturing, treating or preserving materials, a pattern for a
machine or other device, or a list of customers. It differs from
other secret information in a business (see § 759 of the
Restatement of Torts which is not included in this Appendix) in
that it is not simply information as to single or ephemeral
events in the conduct of the business, as, for example, the
amount or other terms of a secret bid for a contract or the
salary of certain employees, or the security investments made or
contemplated, or the date fixed for the announcement of a new
policy or for bringing out a new model or the like. A trade
secret is a process or device for continuous use in the
operations of the business. Generally, it relates to the
production of goods, as, for example, a machine or formula for
the production of an article. It may, however, relate to the
sale of goods or to other operations in the business, such as a
code for determining discounts, rebates or other concessions in a
price list or catalogue, or a list of specialized customers, or a
method of bookkeeping or other office management.
Director means the director of the department of labor and
industries or his/her designee.
Chemical means any element, chemical compound or mixture of
elements and/or compounds.
Chemical manufacturer means an employer with a workplace
where chemical(s) are produced for use or distribution.
Chemical name means the scientific designation of a chemical
in accordance with the nomenclature system developed by the
International Union of Pure and Applied Chemistry (IUPAC) or the
Chemical Abstracts Service (CAS) rules of nomenclature, or a name
which will clearly identify the chemical for the purpose of
conducting a hazard evaluation.
Combustible liquid means any liquid having a flashpoint at
or above 100°F (37.8°C), but below 200°F (93.3°C), except any
mixture having components with flashpoints of 200°F (93.3°C), or
higher, the total volume of which make up ninety-nine percent or
more of the total volume of the mixture.
Commercial account means an arrangement whereby a retail
distributor sells hazardous chemical(s) to an employer, generally
in large quantities over time and/or at costs that are below the
regular retail price.
Common name means any designation or identification such as
code name, code number, trade name, brand name or generic name
used to identify a chemical other than by its chemical name.
Compressed gas means:
• A gas or mixture of gases having, in a container, an
absolute pressure exceeding 40 psi at 70°F (21.1°C); or
• A gas or mixture of gases having, in a container, an
absolute pressure exceeding 104 psi at 130°F (54.4°C) regardless
of the pressure at 70°F (21.1°C); or
• A liquid having a vapor pressure exceeding 40 psi at 100°F
(37.8°C) as determined by ASTM D-323-72.
Container means any bag, barrel, bottle, box, can, cylinder,
drum, reaction vessel, storage tank, or the like that contains a
hazardous chemical. For purposes of this part, pipes or piping
systems are not considered to be containers.
Designated representative means any individual or
organization to whom an employee gives written authorization to
exercise such employee's rights under this section. A recognized
or certified collective bargaining agent shall be treated
automatically as a designated representative without regard to
written employee authorization.
Definitions applicable to this rule:
Distributor means a business, other than a chemical
manufacturer or importer, which supplies hazardous chemicals to
other distributors or to employers.
Employee means an employee of an employer who is employed in
the business of his or her employer whether by way of manual
labor or otherwise and every person in this state who is engaged
in the employment of or who is working under an independent
contract the essence of which is personal labor for an employer
under this standard whether by way of manual labor or otherwise.
However, for the purposes of this part, employee shall not mean
immediate family members of the officers of any corporation,
partnership, sole proprietorship, or other business entity or
officers of any closely held corporation engaged in agricultural
production of crops or livestock. This part applies to employees
who may be exposed to hazardous chemicals under normal operating
conditions or in foreseeable emergencies.
Employer means any person, firm, corporation, partnership,
business trust, legal representative, or other business entity
that engages in any business, industry, profession, or activity
in this state and employs one or more employees or who contract
with one or more persons, the essence of which is the personal
labor of such person or persons and includes the state, counties,
cities, and all municipal corporations, public corporations,
political subdivisions of the state, and charitable
organizations. This part applies to employers engaged in a
business where chemicals are either used, distributed, or are
produced for use or distribution, including a contractor or
subcontractor.
Explosive means a chemical that causes a sudden, almost
instantaneous release of pressure, gas, and heat when subjected
to sudden shock, pressure, or high temperature.
Exposure or exposed means that an employee is/was subjected
to a hazardous chemical in the course of employment through any
route of entry (inhalation, ingestion, skin contact or
absorption, etc.), and includes potential (e.g., accidental or
possible) exposure.
Flammable means a chemical that falls into one of the
following categories:
• Aerosol flammable means an aerosol that, when tested by
the method described in 16 CFR 1500.45 yields a flame projection
exceeding eighteen inches at full valve opening, or a flashback
(a flame extending back to the valve) at any degree of valve
opening;
• Gas, flammable means:
• A gas that, at ambient temperature and pressure, forms a
flammable mixture with air at a concentration of thirteen percent
by volume or less; or
• A gas that, at ambient temperature and pressure, forms a
range of flammable mixtures with air wider than twelve percent by
volume, regardless of the lower limit;
• Liquid, flammable means any liquid having a flashpoint
below 100°F (37.8°C), except any mixture having components with
flashpoints of 100°F (37.8°C) or higher, the total of which make
up ninety-nine percent or more of the total volume of the
mixture.
• Solid, flammable means a solid, other than a blasting
agent or explosive as defined in WAC 296-52-417 or 29 CFR
1910.109(a), that is liable to cause fire through friction,
absorption of moisture, spontaneous chemical change, or retained
heat from manufacturing or processing, or which can be ignited
readily and when ignited burns so vigorously and persistently as
to create a serious hazard. A chemical shall be considered to be
a flammable solid if, when tested by the method described in 16
CFR 1500.44, it ignites and burns with a self-sustained flame at
a rate greater than one-tenth of an inch per second along its
major axis.
Flashpoint means the minimum temperature at which a liquid
gives off a vapor in sufficient concentration to ignite when
tested as follows:
• Tagliabue closed tester: (See American National Standard
Method of Test for Flash Point by Tag Closed Tester, Z11.24-1979
(ASTM D 56-79)) for liquids with a viscosity of less than 45
Saybolt Universal Seconds (SUS) at 100°F (37.8°C), that do not
contain suspended solids and do not have a tendency to form a
surface film under test; or
• Pensky-Martens closed tester: (See American National
Standard Method of Test for Flash Point by Pensky-Martens Closed
Tester, Z11.7-1979 (ASTM D 93-79)) for liquids with a viscosity
equal to or greater than 45 SUS at 100°F (37.8°C), or that
contain suspended solids, or that have a tendency to form a
surface film under test; or
• Setaflash closed tester: (See American National Standard
Method of Test for Flash Point by Setaflash Closed Tester (ASTM D
3278-78)).
Note:
Organic peroxides, which undergo autoaccelerating thermal decomposition, are excluded from any of the flashpoint determination methods
specified above.
Foreseeable emergency means any potential occurrence such
as, but not limited to, equipment failure, rupture of containers,
or failure of control equipment which could result in an
uncontrolled release of a hazardous chemical into the workplace.
Hazardous chemical means any chemical which is a physical
hazard or a health hazard.
Hazard warning means any words, pictures, symbols, or
combination thereof appearing on a label or other appropriate
form of warning which convey the specific physical and health
hazard(s), including target organ effects, of the chemical(s) in
the container(s). (See definition for "physical hazard" and
"health hazard" to determine the hazards which must be covered.)
Health hazard means a chemical for which there is
statistically significant evidence based on at least one study
conducted in accordance with established scientific principles
that acute or chronic health effects may occur in exposed
employees. The term "health hazard" includes chemicals which are
carcinogens, toxic or highly toxic agents, reproductive toxins,
irritants, corrosives, sensitizers, hepatotoxins, nephrotoxins,
neurotoxins, agents which act on the hematopoietic system, and
agents which damage the lungs, skin, eyes, or mucous membranes.
Appendix A provides further definitions and explanations of the
scope of health hazards covered by this part, and Appendix B
describes the criteria to be used to determine whether or not a
chemical is to be considered hazardous for purposes of this
standard.
Identity means any chemical or common name which is
indicated on the material safety data sheet (MSDS) for the
chemical. The identity used shall permit cross-references to be
made among the required list of hazardous chemicals, the label
and the MSDS.
Importer means the first business within the Customs
Territory of the United States which receives hazardous chemicals
produced in other countries, for the purpose of supplying them to
distributors or employers within the United States. This
definition is the same as Webster's, therefore we did not include
it in the definitions.
Material safety data sheet (MSDS) means written or printed
material concerning a hazardous chemical which is prepared in
accordance with WAC 296-62-05408.
Mixture means any combination of two or more chemicals if
the combination is not, in whole or in part, the result of a
chemical reaction.
Organic peroxide means an organic compound that contains the
bivalent-0-0-structure and which may be considered to be a
structural derivative of hydrogen peroxide where one or both of
the hydrogen atoms has been replaced by an organic radical.
Oxidizer means a chemical other than a blasting agent or
explosive as defined in WAC 296-52-417 or CFR 1910.109(a), that
initiates or promotes combustion in other materials, thereby
causing fire either of itself or through the release of oxygen or
other gases.
Permissible exposure limits (PELs) refer to airborne
concentrations of substances without regard to the use of
respiratory protection and represent conditions under which it is
believed that nearly all workers may be repeatedly exposed day
after day without adverse effect. The permissible exposure
limits (PELs) shall include the following four categories:
• Permissible exposure limits - Time-weighted average
(PEL-TWA) is the time weighted average airborne exposure to any
8-hour work shift of a 40-hour work week which shall not be
exceeded.
• Permissible exposure limits - Short-term exposure limit
(PEL-STEL) is the employee's 15-minute time weighted average
exposure which shall not be exceeded at any time during a work
day unless another time limit is specified in a parenthetical
notation below the limit. If another time period is specified,
the time weighted average exposure over that time period shall
not be exceeded at any time during the working day.
• Permissible exposure limits - Ceiling (PEL-C) is the
employee's exposure which shall not be exceeded during any part
of the work day. If instantaneous monitoring is not feasible,
then the ceiling shall be assessed as a 15-minute time weighted
average exposure which shall not be exceeded at any time over a
working day.
• "Skin" notation is the potential contribution to the
overall employee exposure by the cutaneous route including mucous
membranes and eye, either by airborne, or more particularly, by
direct contact with the substance. These substances are
identified as having a "skin" notation in the OSHA and WISHA PEL
tables (29 CFR Part 1910 Subpart Z and WAC 296-62-075,
respectively).
Physical hazard means a chemical for which there is
scientifically valid evidence that it is a combustible liquid, a
compressed gas, explosive, flammable, an organic peroxide, an
oxidizer, pyrophoric, unstable (reactive) or water-reactive.
Produce means to manufacture, process, formulate, blend,
extract, generate, emit, or repackage.
Purchaser means an employer with a workplace who purchases a
hazardous chemical for use within that workplace.
Pyrophoric means a chemical that will ignite spontaneously
in air at a temperature of 130°F (54.4°C) or below.
Responsible party means someone who can provide additional
information on the hazardous chemical and appropriate emergency
procedures, if necessary.
Specific chemical identity means the chemical name, Chemical
Abstracts Service (CAS) registry number, or any other information
that reveals the precise chemical designation of the substance.
Threshold limit values (TLVs) refer to airborne
concentrations of substances without regard to the use of
respiratory protection and represent conditions under which it is
believed that nearly all workers may be repeatedly exposed day
after day without adverse effect. The TLV includes the TLV-Time
weighted average (TLV-TWA), TLV-Short term exposure limit
(TLV-STEL), TLV-Ceiling (TLV-Ceiling) and "skin" notation as
stated in the most recent edition of the 'Threshold Limit Values
for Chemical Substances and Physical Agents and Biological
Exposure Indices' from the American Conference of Governmental
Industrial Hygienists (ACGIH).
Trade secret means any confidential formula, pattern,
process, device, information or compilation of information that
is used in an employer's business, and that gives the employer an
opportunity to obtain an advantage over competitors who do not
know or use it. WAC 296-62-05427, Appendix D, provides a legal
definition of trade secret and WAC 296-62-05417 sets out the
criteria to be used in evaluating trade secrets.
Unstable (reactive) means a chemical which in the pure
state, or as produced or transported, will vigorously polymerize,
decompose, condense, or will become self-reactive under
conditions of shocks, pressure or temperature.
Use means to package, handle, react, emit, extract, generate
as a by-product, or transfer.
Water-reactive means a chemical that reacts with water to
release a gas that is either flammable or presents a health
hazard.
Workplace means an establishment, job site, or project, at
one geographical location containing one or more work areas.