December 14, 1990

Ms. Denese A. Deeds
Industrial Health and Safety Consultants, Inc.
915 Bridgeport Avenue
Shelton, Connecticut 06484

Dear Ms. Deeds:

This is an update to our response to your letter of October 4, concerning the application of the Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120) to general industry. Please accept our apology for the delay in this reply.

The Occupational Safety and Health Administration (OSHA) believes that the scope and application of this standard as outlined below carries out the intent of Congress and is consistent with good occupational safety and health policy.

Operations Sections of 29 CFR 1910.120

Clean-up of hazardous substances. (b)-(o)

Licensed or interim status (p) hazardous waste treatment, storage, or disposal (TSD) facilities.

Emergency response situations (q) involving hazardous substances that occur at locations other than hazardous waste sites and TSD facilities.

As you can see, only section (q) of the standard applies to general industrial workplaces that have a potential for emergencies resulting from hazardous substances. Furthermore, this standard provides employers the option of using employees to respond to emergencies and meet the requirements in (q) or evacuate their employees from the hazardous area when an emergency occurs and provide an emergency action plan in accordance with 29 CFR 1910.38(a).

The intent of the exception listed under 29 CFR 1910.120(a)(2)(iii) is to explain that the application of paragraph (p) of the standard is limited to TSD operations required by the Environmental Protection Agency (EPA) to have a permit or interim status. Employers who have areas of a facility used primarily for treatment, storage, or disposal but are not required to have a TSD permit or interim status have the option of complying with only sections (p)(8) or (q) of the standard for any emergency response operations at those areas. Since it does not always make sense to maintain two emergency response teams - one for the permitted area and the other for the rest of the facility (although such a practice is not precluded) - one can use a response team trained under (q) to respond throughout the whole facility.

We regret if you received confusing direction on these issues. We cannot, however, consider violations de minimis unless there is no immediate relationship to employee safety or health.

We hope this information will be of help to you. If we can be of further assistance, please do not hesitate to call on us.

Sincerely,



Gerard F. Scannell
Assistant Secretary




October 4, 1990

Mr. Gerald F. Scannell
Assistant Secretary of Labor OSHA
200 Constitution Ave., N.W.
Washington, DC 20210

Dear Mr. Scannell,

It has recently come to our attention that there appears to be a serious discrepancy in the interpretation of the OSHA Standard on Hazardous Waste Operations and Emergency Response (1910.120) in regard to the coverage of industries that are regulated as generators and small quantities of hazardous waste.

In the original Final Standard published in the March 6, 1989 Federal Register there was an exemption in (a)(2)(iii) that discussed large and small quantity generators with regard to their being covered under (p)(8) of the standard. While this exemption was located in a confusing section, it seemed apparent to us that there was an intent to limit the coverage of this standard for the normal industrial workplace. The RCRA classifications of these workplaces were described and we could think of no other meaning for this exemption other than to basically require only "RCRA type" spill training for these workers.

Because some of our clients were also confused by this exemption and by the entire standard, we called OSHA in Washington on March 8, 1990 and spoke to Maryann Garrahan to request clarification. At that time she stated there was a great deal of confusion about that exemption and that shortly there would be a clarification published in the Federal Register.

On April 13, 1990 the correction to the rule was published. This preamble to the correction clearly states "Certain employers ("excepted employers") are not required to have a permit or interim status because they are conditionally exempt small quantity generators under 40 CFR 261.5 or are generators who qualify under 262.34 for exemptions from regulation under 40 CFR parts 264, 265 and 270." In the final preamble and standard, OSHA has summarily referred to these employers as small quantity generators and as large quantity generators of hazardous waste who store for less than 90 days. These excepted employers are not covered by paragraphs (p)(1) through (p)(7) of this section. Excepted employers only need comply with paragraph (p)(8).

The preamble to the correction goes on to explain that excepted employers who are required by EPA or the state to engage in emergency response are covered by (p)(8) and those that are not so required are generally exempt entirely.

In the actual correction to the standard there is a new paragraph (C) in (a)(2)(iii) which serves to confuse rather than clarify what was stated in the preamble. This states that emergency response in areas used for treatment, storage and disposal of hazardous waste only is covered by (p)(8) but in other areas emergency response is covered by (q). Since technically speaking as soon as a "hazardous substance" is spilled it becomes a hazardous waste it could be interpreted that all emergency response in a RCRA facility would occur in an area used for treatment, storage and disposal of hazardous waste. Therefore all emergency response should fall under paragraph (p)(8).

Recently, a company in the Connecticut area was cited by the Area office for failure to meet the requirement of paragraph (q) though they are a large quantity generator and have a program that complies with the requirements of paragraph (p)(8) of this standard. This company's SPCC calls for employees only to dike to control a spill, to evacuate from the danger area, and to call for a professional Haz Mat team to clean-up the spill.

When we called Mike Moore in the Washington OSHA office to discuss this he stated that it is OSHA's policy to require employees who are generators of hazardous waste to comply with the requirements of (q). He refused to explain why there was this apparent discrepancy in interpretation and said that "they" did not write the April 13 correction and did not agree with it.

We are offended that employers have been placed in the position of having to guess what OSHA wants to be in compliance with this standard. If the intent of the exemption in the standard was not to limit the coverage for industrial facilities where the hazards are very well known and storage and use well controlled, then what does this mumbo-jumbo mean? In following the history of this standard it is clear that this was never meant to impose unnecessary and expensive requirements on general industry.

Following OSHA's current interpretation of the requirements for generators and small quantity generators leads to some very inconsistent and ridiculous situations. For example:

The employee working for an emergency response company who never knows what kind of hazard that he/she may encounter when they arrive at a site will have the same level of training as the industrial employee responding to known materials.

The industrial facility employee where the kinds of waste and raw materials are the same day after day will require the same level of training as the TSD employee where the waste streams are constantly changing.

If after reviewing this situation you do not agree with our feeling that this current interpretation is incorrect, we would greatly appreciate a thorough explanation, not only to us but to industry. In addition, we believe that since OSHA has now misled industry in how this standard applies to them several times that violations that result from this situation be classified as de minimis and no fines assessed. OSHA should also take immediate steps to correct this misinformation by widely publicizing this new interpretation.

Thank you for your review of this matter and we look forward to your response.

Respectfully,



Denese A. Deeds, CIH
Senior Consultant

David M. Gioiello, Jr., CIH, CSP
Senior Consultant

cc: Sen. Joseph Lieberman Sen. Christopher Dodd