May 22, 1990

Ms. Linda K. Scholl Manager,
Environmental Resources, Inc.
3000 Tech Center Drive
Monroeville, Pennsylvania 15146

Dear Ms. Scholl:

The Philadelphia Regional Office of the Occupational Safety and Health Administration (OSHA) has requested that we respond to your statement addressed in an April 10 letter to them concerning medical surveillance provisions in the Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120).

Employers are obligated under 29 CFR 1910.120 to make medical surveillance and medical consultation available, but OSHA does not require employees to participate. Mandatory participation in the medical program can, as suggested in your letter, be made a condition of employment. Training requirements in the standard are mandatory for all covered employees and must include along with other subjects the purpose and content of the medical surveillance requirements of the standard.

I hope this information is helpful.

Sincerely,



Patricia K. Clark
Director Designate
Directorate of Compliance Programs




April 30, 1990

Memorandum for:     Patricia K. Clark, Director Designate
                   Directorate of Compliance Programs

From:               Linda R. Anku 
                   Regional Administrator

Subject:            Medical Surveillance under the Hazardous Waste and
                   Emergency Response Standard 29 CFR 1910.120

We are enclosing a copy of a letter from Linda K. Scholl, manager of environmental health for Keystone Environmental Resources, Inc., dated April 10, 1990. We call your attention to page 2, the second indented main point. Dr. Barry had told Ms. Scholl via telephone that section (f)(2) of 29 CFR 1910.120 required all employees to undergo the pre-assignment and annual physical examinations without exception lest they be prevented from site entry. In a later telephone conversation between Dr. Barry and Mrs. Garrahan of your staff, it became apparent that national policy is moving towards interpreting this section in concert with the other health standards that require medical examinations. Namely, the employer need only make the exam available at no cost to the employee but need not compel the employee to submit to the physical against his or her will. Since requests for interpretation of this section are frequently posed by employers and have national significance, we are forwarding her letter to your office for response. We will advise her to anticipate a response from your office.

In the interim, if you need assistance or more information, then please contact Dr. John Barry directly (FTS 596-1201).

enclosure



April 10, 1990

John Morris
Regional Coordinator
US Department of Labor
Occupational Safety
and Health Administration
Room 2100
3535 Market Street
Philadelphia, Pennsylvania 19104

Dear Mr. Morris:

Re: Project No. 603200-00

Pursuant to our phone conversation on April 9, 1990, I am writing to confirm several points of understanding from our discussion regarding medical monitoring programs for employees and the application of OSHA's Hazardous Waste Operations and Emergency Response regulation [Title 29, Code of Federal Regulations (CFR), Part 1910.120].

As you know, Keystone Environmental Resources, Inc. (Keystone) provides a variety of environmental consulting services to our clients. Recently an engineering client and consultant affiliate of Keystone's had a request from an employee to be excluded from the company's recently revised medical monitoring program. The program is directed primarily toward those employees whose consultations require their presence on hazardous waste sites, at waste treatment facilities, or on other cites where the potential exists for exposure to hazardous materials. The employer has established this program in compliance with the requirements set forth in 29 CFR 1910.120(f) and has chosen to conservatively interpret the provisions for employees covered by the standard. Specifically, the employer requires participation in the program for "All employees who are or may be exposed to hazardous substances or health hazards at or above the permissible exposure limits, or, if there is no permissible exposure limit, above the published exposure levels for these substances, without regard to the use of respirators, for 30 days or more a year." [29 CFR 1910.1209(f)(2)]. The employee in question wishes to be exempted from compliance with 29 CFR 1910.12(f) and states that because her job requires her to work only at municipal waste treatment facilities she is exempted from any OSHA compliance since OSHA has no statutory jurisdiction for employees of municipalities.

Our discussion on April 9th focused on three main points with regard to this situation:

o OSHA does not have jurisdiction over municipal employers, but does have jurisdiction over employers otherwise covered by OSHA who perform work for municipalities on a contract basis. Therefore, Keystone's client is subject to compliance with OSHA regulations, including health and safety provisions for those employees performing contract work for municipalities.

o Medical surveillance and medical consultation revisions for all OSHA regulations except 29 CFR 1910.120 are optional at the employee's discretion. The training and medical surveillance requirements of this standard are mandatory for all covered employees.

o It is within an employer's rights to make compliance with health and safety requirements a condition of employment when those requirements are relevant to the work performed by the employee.

Additional points in our discussion included the interpretation that the hazardous substances referred to in 29 CFR 1910.120(f)(2) include the OSHA hazardous substance list (the "Z" Tables) along with physical agents. Keystone also understands that OSHA has not yet provided official guidance and interpretation of all aspects of the subject standard.

Please review the summation of our April 9th conversation given above. If I receive no reply from you within ten working days of your receipt of this letter I will assume that its contents accurately reflect the essence of our phone conversation and will act accordingly. If, however, this summary does not accurately reflect our conversation, or if You have acquired additional information since our last conversation, please contact me.

Thank you for your time and attention to this matter.

Very Truly Yours,



Linda K. Scholl Manager,
Environmental Health Department

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