February 1, 2006

Mr. Eric Clark
Manager, Government Relations
Synthetic Organic Chemical Manufacturers Association (SOCMA)
1850 M Street NW, Suite 700
Washington DC, 20036-5810

Dear Mr. Clark:

Thank you for your October 27, 2005 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs. You have a question regarding the applicability of the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard to hazardous waste generators. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. We apologize for the delay in our response. The scenario, your paraphrased question, and OSHA's response are below.

Scenario: In your letter to OSHA, you raise several issues that lead to a question regarding the applicability of paragraph (p)(8) of HAZWOPER to hazardous waste generators that are not conditionally exempt as small quantity generators. Specifically, your concern involves the following statement that comes from the Notes and Exceptions under 1910.120(a)(2)(iii): "Excepted employers who are required by the EPA or state agency to have their employees engage in emergency response or who direct their employees to engage in emergency response are covered by paragraph (p)(8) of this section, and cannot be exempted by (p)(8)(i) of this section." You state that the language of the rule, available guidance, and interpretation letters make it clear that HAZWOPER does not apply when (1) employees are not exposed or potentially exposed to health or safety hazards, or (2) the only releases of hazardous substances are incidental in nature. You point out, however, that two interpretation letters (January 9, 1990, addressed to Mr. John D'Aloia, Jr., and September 22, 1992, addressed to Mr. Thomas A. Wehrenberg) appear to blur these exemptions because they are silent on these two conditions and therefore make it appear that all generators, other than conditionally exempt small quantity generators, are covered by (p)(8) where the EPA requires some level of involvement in emergency response. Finally, you state that the confusion stems from the fact that the EPA does not specifically define "emergency response" and the performance of some EPA-required duties (40 CFR 265.55 & 56) would not result in employee exposure or the spill could be classified as an incidental release.

Question: Does (p)(8) of HAZWOPER apply to hazardous waste generators, other than conditionally exempt small quantity generators, if an assessment of reasonably anticipated emergency scenarios indicates there are no hazards to employees or the only potential spill scenarios are incidental in nature?

Response: OSHA agrees with the premise that (p)(8) of HAZWOPER would not apply to hazardous waste generators if the employer can demonstrate that the operation does not involve any potential employee exposures or the reasonable possibility of employee exposure to safety or health hazards, as is stated in 1910.120(a)(1). Similarly, HAZWOPER would not apply to small quantity incidental releases, as is discussed in Appendix E to OSHA Directive CPL 02-02-059. Employers making such a determination must use careful judgment and consider all the applicable factors involved such as the inherent properties of the hazardous substances themselves (e.g., toxicity, volatility, flammability, explosiveness, corrosiveness, etc.), the particular circumstances of the release itself (e.g., quantity spilled, permit-required confined spaces, etc.), employee knowledge of the hazardous substance in the immediate release area, personal protective equipment at hand, pre-established standard operating procedures, and other relative factors. If HAZWOPER does not apply, employers must still protect employees through other applicable OSHA standards such as 29 CFR 1910.1200 (Hazard Communication) and 29 CFR 1910.132 (Personal Protective Equipment).

In your letter to OSHA, you stated that you feel the confusion can be resolved by annotating or amending the January 9, 1990, and September 22, 1992, interpretation letters with the qualification that when an assessment of reasonably anticipated emergency scenarios indicates there are no hazards to employees or when the only potential spill scenarios are incidental releases, employers who operate hazardous waste generators exempted under 40 CFR 262.34 can be excluded from coverage under HAZWOPER. Although we generally concur with your understanding of the applicability of HAZWOPER to hazardous waste generators, OSHA cannot alter text in existing interpretation letters. To provide additional clarity, however, a reference to this response will be added to the two letters indicated above.

Thank you for your interest in occupational safety and health. We hope this provides the clarification you were seeking. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at 202-693-2190.

Sincerely,



Richard E. Fairfax, Director
Directorate of Enforcement Programs