October 31, 1997

John F. Reagan, CHMM
Regulatory Affairs Manager
Mercury Refining Company, Inc.
1218 Central Avenue
Albany, New York 12205

Dear Mr. Reagan:

This is in response to your inquiry of July 29, sent to Ms. Patricia K. Clark, Regional Administrator, New York Regional Office of the Occupational Safety and Health Administration (OSHA), concerning the application of 29 CFR 1910.120, Hazardous Waste Operations and Emergency Response (HAZWOPER). Please accept my apology for the delay in this reply.

Your letter contains two questions. The first question concerns the applicability of 29 CFR 1910.120(p), Certain Operations Conducted Under the Resource Conservation and Recovery Act of 1976 (RCRA), to employees who work at "Universal Waste Destination Facilities" or as "Universal Waste Handlers" as defined under the Environmental Protection Agency's (EPA) standards for Universal Waste Management, 40 CFR 273. Your second question concerns the safety and health requirements that apply to workers at universal waste facilities if HAZWOPER paragraph (p) does not apply.

The requirements of HAZWOPER paragraph (p) to operations involving hazardous waste that are conducted at treatment, storage, disposal (TSD) facilities regulated by 40 CFR Parts 264 and 265 pursuant to RCRA; or by agencies under agreement with U.S. Environmental Protection Agency (EPA) to implement RCRA regulations. Some of the operations and waste types regulated under 40 CFR 273 are subject to the requirements of 40 CFR 264 and 265, but most are not. For example, universal waste handlers, as defined in 40 CFR 260.10 and [273.9], are not subject to the requirements of 40 CFR 264 and 265, but facilities that meet the definition of a destination facility are subject to the requirements of 40 CFR 264 and 265 and are, therefore, also subject to the requirements of HAZWOPER paragraph (p). EPA must make the determination about the applicability of 40 CFR 264 and 265 to your operations.

If EPA determines that operations at your facility are regulated by 40 CFR parts 264 and 265, then the requirements of paragraph 1910.120(p) apply unless your company can demonstrate that the operations do not involve employee exposure or the reasonable possibility for employee exposure to safety and health hazards.

If EPA determines that your operations are not regulated by 40 CFR 264 and 265 and consequently not subject to the requirements of 29 CFR 1910.120(p), your employer is nevertheless required under Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act) to provide a workplace free of recognized hazards that may cause employee death or serious injury. The specific OSHA regulations that apply to your workplace are determined by the nature of your operations and the hazards present. For assistance in evaluating your workplace and identifying applicable regulations, you may want to take advantage of the OSHA's consultation service. The consultation service is free and confidential, primarily targeted for smaller businesses, and designed to identify potential hazards and improve workplace health and safety management systems. The consultation service is described on OSHA's Internet web page at: http://www.osha.gov/oshprogs/consult.html. In New York, you can reach OSHA's Consultation Office at (518) 457-2238.

I hope that this information is helpful. If you need further clarification of this letter, please contact [the Office of Health Compliance Enforcement] at (202) 693-2190.

Sincerely,

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




July 29, 1997

Ms. Patricia Clark, Regional Administrator
USDL/OSHA
201 Varick Street, Room 670
New York, NY 10014

Dear Ms. Clark:

The purpose of this letter is to request a determination of the applicability of 29 CFR 1910.120(p) to employees working at Universal Waste Destination Facilities or as Universal Waste Handlers (as defined in 40 CFR 273). As you know, 29 CFR 190.120(p) (Certain Operations Conducted Under RCRA - employers conducting operations at a treatment storage and disposal (TSDF) facility) contains requirements for a safety and health program, hazard communication program, medical surveillance program, decontamination program, new technology program, material handling program, training program, and emergency response program. It is my understanding that the requirements of 29 CFR 1910.120(p) would apply to universal waste facilities. If those requirements do not apply, then I would request a summary of the requirements under 29 CFR that would apply to workers at universal waste facilities.

The Universal Waste Rule (UWR), promulgated by EPA on May 11, 1995, applies to hazardous waste batteries, thermostats, and pesticides. The purpose of the UWR is to provide an alternative set of management standards in lieu of regulation under 40 CFR Parts 260 through 272. The UWR also contains provisions for petitions to add hazardous wastes to the list of universal wastes. Wastes under consideration to be designated as universal wastes include mercury thermometers, fluorescent lamps, and cathode ray tubes.

Prior to the UWR, hazardous waste batteries, thermostats, and pesticides were managed by transporting the materials to treatment, storage, and disposal (TSDF) facilities regulated by 40 CFR Parts 264 and 265. Under the UWR (40 CFR Part 273) the TSDFs are now designated as Destination Facilities and universal wastes are handled by Universal Waste Handlers.

In 40 CFR 273.6 destination facility means any facility that treats, disposes of, or recycles a particular category of universal waste, 40 CFR 273.60 contains the standards for destination facilities and indicates that the owner or operator of a destination facility is subject to all applicable requirements of Parts 264, 265, 266, 268, 270, and 124 of the chapter and the notification requirement under section 3010 of RCRA.

40 CFR 273.13 (a) and (c) and 40 CFR 273.33 (a) and (c) contain requirements for small quantity universal waste handlers and large quantity universal waste handlers of batteries and mercury-containing thermostats. These sections allow small and large quantity universal waste handlers to; sort batteries by type, mix batteries in one container, discharge batteries to remove the electric charge, disassemble battery packs, remove battery from consumer packs, remove electrolytes from batteries, and remove mercury ampules from thermostats.

The activities at destination facilities and of universal waste handlers and the potential hazards to workers at such facilities are essentially the same as at a TSDF. It is my understanding, therefore, that workers at destination facilities and universal waste handlers are subject to the requirements of 29 CFR 1910.120(p).

If you have any questions or require additional information, please contact me at (518) 459-0820.

Sincerely,

John F. Reagan, CHMM
Regulatory Affairs Manager


[Corrected 4/18/03]