August 6, 1991

Ms. Kelly V. Camp
Applied Environmental Technologies Corp.
Suite 210
35 Belver Avenue
North Kingston, Rhode Island 02852

Dear Ms. Camp:

This is in response to your letter to Fred Malaby of the Boston Regional Office. Please accept my apology for the delay in this reply. We will answer your questions in the order that you asked them in your letter:

1. Question.

54 FR 9297 states that "with respect to transportation incidents, responders to the scene are covered, but operators (i.e., truck drivers and train crew) are not covered unless they become actively involved in the response action." It is unclear to me what "actively involved" entails. If a hazardous waste transporter has a release during transport, how much can the driver get involved in minimizing the release without being subject to Paragraph (q)? Can they right a drum or tighten a valve, or can only a Hazardous Materials Technician perform these tasks? Can minor spills be cleaned up? It seems like all drivers would at least be subject to 29 CFR 1910.120(q)(4)(i).

Answer.

OSHA does not have jurisdiction over most rolling stock in the transportation industry. The U.S. Department of Transportation has jurisdiction in this area. Therefore, OSHA's standard could not cover the operator while on the road, per se, but does cover any emergency responders. If vehicle operators become actively involved in an emergency response, then they would become an emergency responder and would be covered by 1910.120(q).

"Actively involved" means participating in the emergency response procedures. Even if truck drivers take no further action beyond notifying the authorities of the release they are to have awareness level training in accordance with 1910.120(q)(6)(i) or 1910.1200(h). In addition, the company needs to have an emergency response plan meeting the requirements of 1910.120(q)(1) or an evacuation plan meeting 1910.38(a). The answer to your question about righting a drum or tightening a valve depends upon whether or not the releases involved are emergency situations. For the definition of "emergency response" to be met:

(i) The release or situation must pose an emergency. Examples are: it may cause high levels of exposure to toxic substances; it is life or injury threatening employees must evacuate the area; it poses conditions which are immediately dangerous to life or health (IDLH); it poses a fire and explosion hazard (exceeds or has the potential to exceed 25% of the Lower Explosive Limit (LEL) ); it requires immediate attention because of danger; or presents an oxygen deficient condition. Nuisance spills, minor releases, etc., which do not require immediate attention (due to danger to employees) are not considered emergencies.

(ii) An ordinary spill that can be safely handled by the workers is not an emergency. Such employees must have the proper equipment and training under other OSHA standards such as the Hazard Communication Standard.

If an emergency situation exists because of the tipped over drum then only an emergency responder with at least technician level training could right the drum or tighten the valve.

2. Question.

55 FR 14873 states that large and small quantity generators who have emergency response teams are subject only to Paragraph (p)(8) of the section. Paragraph (p)(8) places no time limits on training. Is this accurate? When would a generator be subject to paragraph (q) instead of paragraph (p)(8)?

Answer.

The intent of the exception listed under 29 CFR 1910.120(a)(2)(iii) is 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.

Training for emergency response employees must be completed before they are called upon to perform in real emergencies. The amount of training is based on the duties and functions to be performed by each responder.

3. Question.

Operations at treatment, storage and disposal facilities (TSDFs) are regulated by Paragraph (p) [54 FR 9326]. If all containers of hazardous waste have been shipped off site and only decontamination of storage areas remains to be done, are the personnel who will be doing the cleaning subject to the 24 hour training requirements

Answer.

Paragraph (p) is specific in saying that any employees who are involved in hazardous waste operations at a TSD site must receive the initial training. However, paragraph (a) says that 1910.120 only applies if employees are exposed or may reasonably be expected to be exposed to safety or health hazards. If the decontamination process potentially exposes employees to unsafe levels of hazardous substances then the employees would need to be trained. However, if this potential has been removed and the process is only for landscaping, drainage, or similar purposes, no training would be necessary.

4. Question.

Paragraph (q) applies to emergency response activities involving hazardous substances which are defined as CERCLA section 101(14) substances, CERCLA 101(33) substances, DOT hazardous materials and hazardous substances, and federally regulated hazardous waste. Provided a state regulated waste does not meet any of these criteria it is not regulated by the regulations, even if it is a hazardous waste in a particular state (e.g., oil-contaminated soil). Is this correct?

Answer.

You are correct. 1910.120 does not apply if the released material is not a hazardous substance as defined by the standard. However, petroleum products are included under the definition of hazardous substance. In addition, there is a potential misconception implicit in your question. Your question presupposes that a release of such a material is in fact an emergency response. As we explained in number 1 above, not all spill responses (even releases of chemicals that meet the definition of a hazardous substance) will meet the definition of a emergency response. It is unlikely that a substance which is not hazardous would cause an emergency response condition.

We hope that this information has been of assistance. If you have any more questions about this matter, feel free to contact my staff at (202) 523-8036 or OSHA's Boston Regional Office, 133 Portland Street, 1st Floor, Boston, Massachusetts 02114, (617) 565-7164.

Sincerely,



Patricia K. Clark, Director
Directorate of Compliance Programs




September 7, 1990

Mr. Fred Malaby
U.S. Department of Labor - OSHA
133 Portland Street
Boston, MA 2114

Re: 29 CFR 1910.120

Dear Mr. Malaby:

After reviewing the March 6, 1989 Federal Register and subsequent amendments, I have a couple of questions about the applicability of 29 CFR 1910.120 to some specific instances. In April, I sent a letter to OSHA in Washington but received no response, so I recently contacted the RI OSHA office and spoke with Cynthia Rosa. She suggested that I contact you. I would greatly appreciate your assistance in clearly defining the scope of the regulations as they apply to the following instances.

(1) 54 FR 9297 states that "with respect to transportation incidents, responders to the scene are covered, but operators (i.e, truck drivers and train crew) are not covered unless they become actively involved in the response action." It is unclear to me what "actively involved" entails. If a hazardous waste transporter has a release during transport, how much can the driver get involved in minimizing the release without being subject to Paragraph (q)? Can they right a drum or tighten a valve, or can only a Hazardous Materials Technician perform these tasks? Can minor spills be cleaned up? It seems like all drivers would at least be subject to 29 CFR 1910.120(q)(4)(i).

(2) 55 FR 14873 states that large and small quantity generators who have emergency response teams are subject only to Paragraph (p)(8) of the section. Paragraph (p)(8) places no time limits on training. Is this accurate? When would a generator be subject to paragraph (q) instead of paragraph (p)(8)?

(3) Operations at treatment, storage and disposal facilities (TSDFs) are regulated by Paragraph (p) [54 FR 9326]. If all containers of hazardous waste have been shipped off site and only decontamination of storage areas remains to be done, are the personnel who will be doing the cleaning subject to the 24 hour training requirement?

(4) Paragraph (q) applies to emergency response activities involving hazardous substances which are defined as CERCLA section 101(14) substances, CERCLA Section 101(33) substances, DOT hazardous materials and hazardous substances, and federally regulated hazardous waste. Provided a state regulated waste does not meet any of these criteria is it not regulated by the regulations, even if it is a hazardous waste in a particular state (eg. oil- contaminated soil). Is this correct?

I appreciate your taking the time to respond to these questions. As environmental consultants, this regulation impacts many of our clients, and we need to be able to give them clear answers on what their responsibilities are.

I look forward to hearing from you soon.

Sincerely,



Kelly V. Camp
Senior Project Manager