August 11, 1995

Ms. Cynthia Hilton
Executive Director
Association of Waste Hazardous
Materials Transporters
2200 Mill Road
Alexandria, Virginia 22314

Dear Ms. Hilton:

This letter formalizes your previous discussions with my staff concerning the application of the Occupational Safety and Health Administration's (OSHA), Hazardous Waste Operations and Emergency Response (HAZWOPER) standard (29 CFR 1910.120) to employers of transfer facilities. This update reflects the additional information provided in your April 17 letter.

Your first two questions ask whether the training and other requirements of OSHA's HAZWOPER (29 CFR 1910.120) standard apply to employees who work at transfer facilities.

Your letter indicates that employees of transfer facilities engage in loading and unloading containers of hazardous waste from transport vehicles and in transferring hazardous wastes between containers. Paragraph (a)(2)(iii) of HAZWOPER states that the requirements of paragraph (p) apply to employers engaged in operations covered under 40 CFR Parts 264 and 265. In addition, the note to paragraph (a)(2)(iii) explains that small quantity generators exempt from 40 CFR Parts 264 and 265 are also exempt from the requirements of paragraphs (p)(1) through (p)(7) of HAZWOPER, only paragraph (p)(8) for emergency response plans applies in this case. Given this exemption, the development of a written safety and health program consistent with the requirements of paragraph (p)(1) is not required.

If the employer at such a facility is not required by the EPA or a state agency to have employees engage in emergency response and if the employer chooses to evacuate all employees in the event of an emergency rather than designate some employees to respond to the emergency, the employer would be exempt from the requirements of paragraph (p)(8). In this case, the employer must develop an emergency action plan in accordance with [1910.38].

In your April 17 letter, you indicated your belief that transfer facilities should comply with paragraph (q) of the standard rather than paragraph (p)(8), in part because you felt that transfer facilities should be considered transporters under EPA and DOT regulations. Interpretation of EPA and DOT regulations is outside of OSHA's jurisdiction; however, as indicated in the note to paragraph (a)(2)(iii) of HAZWOPER, compliance with paragraph (q) of the standard would meet the requirements of paragraph (p)(8). In other words, OSHA would consider a transfer facility in compliance if the employer chose to comply with paragraph (q) in lieu of paragraph (p)(8).

You ask what other general requirements apply at transfer facilities. Specifically, would OSHA's proposed rulemaking regarding retention of labels and placards during repackaging of wastes apply? Are transfer facilities subject to the Hazard Communication standard? Does OSHA require the development of evacuation plans and first aid capability at transfer facilities?

All general industry safety and health standards (29 CFR 1910) potentially apply to operations conducted at transfer facilities. For example, employers must develop emergency action plans in accordance with [1910.38] if all employees are to evacuate in the event of an emergency situation. OSHA's Permissible Exposure Limits (1910.1000) and substance-specific health standards would also apply unless the standard contains a specific exposure level that limits its application (i.e., some provisions of OSHA's health standards apply only if employees are exposed above a specified action limit).

OSHA's Hazard Communication standard (HCS) does not apply to hazardous waste although it does apply to commercial products that contain hazardous constituents. At transfer facilities, the requirements of the HCS apply to non-waste commercial chemicals. Employers must train employees in the hazards associated with exposure to these materials, maintain Material Safety Data Sheets for such products, and label containers of such products with appropriate hazard warnings.

Employers engaged in operations at transfer facilities are required to comply with OSHA's rule governing retention of DOT markings, placards, and labels, 29 CFR 1910.1201. In your April 17 letter you suggested that these DOT labels, markings, and placards should be recognized as an equivalent substitute for labeling mandated under paragraph (f) of OSHA's Hazard Communication standard. OSHA's labeling requirements differ from DOT labeling requirements. For instance, paragraph (f) requires that labels include the identity of the hazardous chemical(s) and the name and address of its manufacturer and requires that hazard warnings on labels identify target organ effects and other substance-specific physical and health hazard information. In general, DOT labels do not provide this specificity and, therefore, are not acceptable substitutes for container labeling in the workplace.

You ask how OSHA's response to the questions above would differ if the transfer facility handled only non-waste hazardous materials.

OSHA standards still apply to the extent that employees are potentially exposed to safety or health hazards present at the facility. For example, if employees are exposed to a potential hazard resulting from dermal or eye contact with a hazardous material, then OSHA's requirements for providing personal protective equipment would still apply. Similarly, if there a is fire hazard, OSHA's fire protection standard would apply. As discussed above, OSHA's HCS would apply to non-waste hazardous materials as would OSHA's Permissible Exposure Limits and substance-specific health standards. The application of other OSHA standards for general industry to a particular transfer facility must be evaluated on a case-by-case basis, depending on the nature of potential occupational hazards present at the facility.

Your final question concerns whether states are specifically authorized under the Occupational Safety and Health Act (OSH Act) to promulgate standards that are more stringent than Federal standards, or whether states are simply "allowed" to be more stringent. To what extent is OSHA authorized to preempt state-imposed OSHA requirements that deviate from Federal standards?

Section 18(b) of the OSH Act permits States to assume responsibility for promulgation and enforcement of occupational safety and health standards under a plan approved and subject to monitoring by Federal OSHA. State standards are required to be "at least as effective" as those promulgated Federally. The Act allows States to adopt standards which are more stringent than the Federal standards. Section 18(c)(2) of the Act, however, states that if a more stringent State standard is applicable to products distributed or used in interstate commerce, this standard must be justified by compelling local conditions and must not unduly burden interstate commerce.

We hope this information is helpful, and appreciate the opportunity to be of assistance.

Sincerely,



John B. Miles, Jr., Director
[Directorate of Enforcement Programs]




February 8, 1994

Joseph Dear
Assistant Secretary for Occupational
Safety and Health
Room N-3463
U.S. Department of Labor
200 Constitution Ave., NW
Washington, DC 20210

Dear Mr. Dear:

On behalf of the Chemical Waste Transportation Institute (CWTI), please provide guidance on what OSHA requirements apply to employees working at "transfer facilities" as defined at 40 CFR 261.10, and to what extent states have authority to be "more stringent than" federal OSHA standards.

The CWTI is a not-for-profit association that represents companies that transport hazardous waste throughout the United States and Canada. The Institute works to promote professionalism and performance standards to minimize risks to public health and safety, develop educational programs to expand public awareness about the industry, and contribute to the development of effective laws and regulations governing the industry. The CWTI is the only national organization that exclusively represents companies engaged in hazardous waste transportation.

Background

The U.S. Environmental Protection Agency (EPA) provides that hazardous waste may be stored at "transfer facilities" defined as "any transportation related facility including loading docks, parking areas, storage arenas and other similar areas where shipments of hazardous waste are held during the normal course of transportation" for periods of time up to 10 days without being subject to permitting and other requirements imposed on hazardous waste treatment, storage and disposal facilities (TSDFs). The Hazardous Materials Transportation Act (HMTA) provides the U.S. Department of Transportation (DOT) with authority to regulate "loading, unloading, and storage incident to" the transportation of hazardous materials, which includes all hazardous wastes transported with a Uniform Manifest.

Among the HMTA charges to DOT is a requirement to provide for training of "hazmat" employees. Such training requirements, however, must "not conflict with regulations issued by [OSHA] relating to hazardous waste operations and emergency response contained in part 1910 of title 29 of the Code of Federal Regulations ...".(1) Moreover, the regulations issued by DOT to implement this mandate "shall [not] be deemed to be an exercise of statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health within the meaning of 29 U.S.C. 653(b)(1)".

 

 

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FOOTNOTE(1) P.L. 101-615, Section 7(b)(3)

DOT's training requirements are codified at 49 CFR 172 subpart H. These regulations require employers of "hazmat" employees to provide "general awareness/familiarization training, function - specific training, and safety training." Safety training includes "measures to protect the employee from the hazards associated with hazardous materials to which they may be exposed in the work place ... and methods and procedures for avoiding accidents, such as the proper procedures for handling packages containing hazardous materials."(2)

 

 

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FOOTNOTE(2) 49 CFR 172.704(3)(ii) and (iii).

In 1989, CWTI received guidance concerning which 29 CFR 1910.120 standards apply to transporters of hazardous waste.(3) The guidance provides that the training standard specified in 29 CFR 1910.120(q) would be appropriate for "employees who may work at ... places where vehicles may be directed to drop their trailers, not unload them, prior to re-routing or for load consolidation ... if they are expected to perform emergency response to the release of hazardous chemical wastes."

 

 

 

 

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FOOTNOTE(3) See attached letter to Cynthia Hilton, CWTI, from Michael Moore, OSHA, dated May 9, 1989.

 

 

 

 

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In the meantime, numerous states have acted unilaterally to impose a variety of management and training requirements on persons engaged in transfer facility operations. Such operations include (1) the storage of DOT-authorized packaging of hazardous waste, both on and off vehicles operated on highway or rail; and (2) interline and intermodal transfers of hazardous waste involve either the movement of DOT-authorized packagings from one transport vehicle to another without opening the package or the opening of such packagings and the transfer of waste from one packaging to another by pouring, dumping, pumping, or other physical means.

Issues

Please provide written guidance about the following issues:

* Specifically what 29 CFR 1910.120 training requirements must be met by employees that load and/or unload DOT-authorized packagings containing hazardous waste between transport vehicles and/or employees that transfer hazardous waste between DOT-authorized packagings at transfer facilities that are different than DOT?

* What other 29 CFR 1910.120 requirements, if any, apply to employees working at "transfer facilities?" For example, are such employees subject to medical surveillance?

* What other general OSHA requirements apply at transfer facilities? For example, does OSHA require the development of evacuation plans, first aid supplies, etc? Please affirm our assumption that such sites will be subject to OSHA's proposed rulemaking concerning the retention of markings and placards on containers to the extent that hazardous waste in DOT-authorized packagings which bear DOT placards and markings are emptied as the wastes are being repackaged at transfer facilities.(4) Are such facilities subject to OSHA's 29 CFR 1910.1200 hazard communication standards?

 

 

 

 

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FOOTNOTE(4) Docket H-0221, 58 FR 47690 (September 10, 1993).

 

 

 

 

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* If the transfer operations described above (storage, interline or intermodal movement of packagings or transloading of material between packagings) involved only non-hazardous waste materials, how would OSHA's response to the above listed questions differ, if at all?

* The preemption authority of the HMTA is nullified to the extent that non-federal requirements are "otherwise authorized by federal law."(5) The Courts have held that non-federal requirements are not "otherwise authorized by federal law" merely because the requirements are not preempted by another federal statute.(6) Applying this precedent, EPA has stated that the Resource Conservation and Recovery Act (RCRA) does not "specifically authorize" states to regulate transfer facilities more stringently than federal standards, but neither does RCRA preclude such state-regulation.(7) Such regulation is "broader in scope and, therefore, not part of the authorized [RCRA] program."(8) Are states specifically authorized under the OSH Act, as opposed to "allowed" to be, more stringent than the federal OSHA standards identified in the responses to the above questions? What is the citation for that authority. To what extent, is OSHA authorized to preempt state-imposed OSHA requirements that deviate from federal standards?

 

 

 

 

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FOOTNOTE(5) 49 U.S.C. App. 1811(a).

 

 

 

 

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FOOTNOTE(6) Colorado Pub. Util. Comm'n v. Harmon, 951 F.2d 1571, 1581 n. 10, (10th Cir. 1991).

 

 

 

 

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FOOTNOTE(7) 57 FR 32726 (July 23, 1992).

 

 

 

 

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FOOTNOTE(8) Id. p. 32728.

 

 

 

 

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Conclusion

The CWTI has challenged, under the preemption authority of the HMTA, selected requirements imposed by the New York Department of Environmental Conservation which differ from DOT requirements for the loading, unloading and storage incident to transportation of hazardous waste held no longer than 10 days at transfer facilities. Your response to the above questions would be helpful to the debate on this preemption determination as well as clarifying for members the extent to which federal OSHA requirements apply to transfer facility operations generally and preempt state requirements that differ from federal standards in those other states that choose to regulate in this area.

Thank you for your attention to this request for written guidance. A timely response would be most appreciated.

Sincerely,



Cynthia Hilton
Manager


Enclosure



May 9, 1989

Ms. Cynthia Hilton
Manager
Chemical Waste Transportation Council
National Solid Waste Management Association
1730 Rhode Island Ave., N.W.
Washington, D.C. 20036

Dear Cynthia:

I am writing in response to your questions of April 21, 1989 concerning the training requirements of paragraphs (e), (p), and (q) as they affect transporters. This letter will confirm our discussions at the HMCRI conference held in New Orleans, Louisiana.

As a point of reference, let me preface my comments by defining "transporters" as I understand the term. For the purpose of our discussion, "transporters" are those employers who operate vehicles for the purpose of transporting hazardous chemical wastes from point A to point B,

From that perspective, transporters whose employees are engaged in work activities at sites covered within the meaning of (a)(1)(i) through (a)(1)(iv) are covered by 1910 120. Operators of motor vehicles at loading or unloading points within sites covered by our rule would require the training under (e) and (p) as appropriate for the site location.

The training for transporters at sites covered by (a)(1)(i) through (a)(1)(iii) would be a minimum of 24 hours initial training and one day of field experience as indicated by paragraph (e)(3)(i) through (e)(3)(iv). Work performed by transporters at sites covered by (a)(1)(iv) would be subject to the emergency response training provisions of paragraph (q) as appropriate.

Because transporters visit several different locations rather than one specific site, the general curriculum of (p)(7) is more appropriate for operators than the site specific requirements of (e)(2).

Finally, transporters are responsible for the safety and health training of their employees.

One last point that we did not discuss but which I wish to bring up concerns transporter employees who may work at intermediate points between pick-up and discharge points. These intermediate points are generally places where vehicles may be directed to drop their trailers, not unload them, prior to re-routing or for load consolidation. Employers at these fixed facilities would be covered (q) if they are expected to perform emergency response to the release of hazardous chemical wastes.

I hope that this letter provides the confirmation you need. If I can be of further assistance, let me know.

Sincerely,



Michael B. Moore
Fire Protection Engineer

[Corrected 4/18/03]

 

 

 

 

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