June 29, 2012

Mr. Dustin A. Armstrong
424 Swamp Road
Morgantown, PA 19543

Dear Mr. Armstrong:

Thank you for your February 3, 2012, letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs. You took exception to an OSHA letter of interpretation to the Pennsylvania Department of Environmental Protection (PA DEP) concerning employee coverage under OSHA's Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard, 29 CFR 1910.120. Your issues have been paraphrased below, followed by our responses. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not detailed in your original correspondence.

Background: You are a project officer in the program responsible for implementing the Pennsylvania (PA) Hazardous Sites Cleanup Act (HSCA). You manage work at sites deemed threats or potential threats to public health or the environment, where releases or threatened releases of hazardous substances are or may be occurring. Your organization's activities at these sites include collecting water and soil samples, making initial site assessments, reviewing contractor work plans, and overseeing contractor work for drilling, sampling, construction, and remediation activities.

In your letter, you stated that HSCA Program employees have been notified that they are no longer covered under HAZWOPER, that they will no longer receive annual medical monitoring, and that new employee training will be limited to a 24-hour computer-based course. You contend that this status change was based on OSHA's October 9, 2009, letter of interpretation to Mr. Kerry A. Leib, Director, PA DEP, and that the letter to Mr. Leib mischaracterizes the work of HSCA project officers.

General Response: OSHA's letter to Mr. Leib addressed only the following three specific scenarios involving PA DEP employees:

1. Inspectors of Resource Conservation and Recovery Act (RCRA) Treatment, Storage, and Disposal (TSD) facilities who are on-site only occasionally for a specific limited task, are unlikely to be exposed over OSHA permissible exposure limits (PELs) and other published exposure limits, and do not need to wear respirators;
2. Project officers at HSCA/Superfund sites who work only in project trailers outside of the contamination zone where there are no health hazards and there is no possibility of an emergency developing; and
3. Inspectors who monitor completed RCRA corrective action cleanups where the active cleanup is finished prior to assignment and the site and residual contamination is below OSHA PELs and other published exposure limits.

In its letter to Mr. Leib, OSHA indicated that the HAZWOPER standard does not apply to workers in the second two categories and identified the specific HAZWOPER training and medical surveillance requirements that apply to workers in the first category. The letter to Mr. Leib does not address work done by PA DEP employees that does not fall within the limited scope of these three specific scenarios, and that letter should not be construed as opining on whether employees who perform functions other than those specified are covered by the HAZWOPER standard.

In addition, please note that Federal OSHA's standards and enforcement authority do not extend to employees of state or local governments. With respect to HAZWOPER, state and local public sector employees are covered by the states that operate OSHA-approved State Plans (see http://www.osha.gov/dcsp/osp/index.html). In states, like Pennsylvania, that do not have State Plans, state and local government workers (including employees of PA DEP) are covered by the Environmental Protection Agency (EPA). [40 CFR Part 311]. EPA's HAZWOPER standard was adopted to cover public sector workers who are not covered by the OSHA standard. For consistency, OSHA interprets the HAZWOPER standard for EPA.

Question 1: Must a medical surveillance and consultation program be made available for HSCA Program employees?

Response: The HAZWOPER standard requires employers to include the following employees in their medical surveillance program:

1. Employees who are or may be exposed to hazardous substances or health hazards at or above permissible exposure limits or, if there is no permissible exposure limit, above published exposure levels, without regard to the use of respirators, for 30 days or more per year. [29 CFR 1910.120(f)(2)(i)];
2. Employees who wear a respirator for 30 days or more per year or as required by OSHA's respirator standard, 29 CFR 1910.134 [29 CFR 1910.120(f)(2)(ii)];
3. Employees who are injured, become ill, or develop signs or symptoms due to possible overexposures involving hazardous substances or health hazards from an emergency response or hazardous waste operation [29 CFR 1910.120(f)(2)(iii)]; and
4. Employees who are members of HAZMAT teams [29 CFR 1910.120(f)(2)(iv)].

Question 2: Is a 24-hour or 40-hour HAZWOPER training course required for HSCA Program employees?

Response: Paragraph (e) of the HAZWOPER standard establishes training requirements for employees on clean-up sites who are exposed to hazardous substances, health hazards, or safety hazards, and their supervisors and the managers responsible for the site. [29 CFR 1910.120(e)(1)]. General site workers (such as equipment operators and general laborers) who are engaged in hazardous substance removal or other activities that expose (or potentially expose) them to hazardous substances and health hazards must receive 40 hours of off-site training and 3 days of supervised field experience. [29 CFR 1910.120(e)(3)(i)]. Workers who are on site only occasionally for a specific, limited task (for example, ground water monitoring or land surveying) and who are unlikely to be exposed over permissible exposure limits and published exposure limits must receive only 24 hours of off-site instruction and 1 day of supervised field experience. [29 CFR 1910.120(e)(3)(ii)]. Also, workers regularly on site who work in areas that have been monitored and fully characterized indicating that exposures are under permissible exposure limits and published exposure limits, where respirators are not necessary, and where the characterization indicates that there are no health hazards or the possibility of an emergency developing, need receive only 24 hours of off-site training and 1 day of supervised field experience. [29 CFR 1910.120(e)(3)(iii)]. On-site managers and supervisors directly responsible for, or who supervise employees engaged in, hazardous waste operations must receive 40 hours of initial training, have 3 days of supervised field experience, and receive an additional 8 hours of specialized training at the time of job assignment. [29 CFR 1910.120(e)(4)]. [1]

In addition, employees, managers and supervisors covered by the HAZWOPER training requirements must receive eight hours of refresher training annually. [29 CFR 1910.120(e)(8)].

Please note that if an employer can show by documentation or certification that an employee's work experience and/or training has resulted in training equivalent to that required by paragraph (e) of the HAZWOPER standard, the employee does not need to receive the initial training that is otherwise called for. The employee still must receive appropriate site-specific training and have appropriate supervised field experience at the new site, however. [29 CFR 1910.120(e)(9)]. [2]

Question 3: Is the use of a computer-based training course acceptable?

Response: OSHA believes that a self-paced, interactive computer-based training course can serve as a valuable training tool in the context of an overall HAZWOPER training program. However, use of computer-based training by itself is unlikely to meet the HAZWOPER standard's training requirements. To be effective, HAZWOPER training programs generally must cover topics relevant to the worker's assigned duties, provide opportunities for trainees to ask questions of a qualified trainer, and give trainees hands-on experience that can be assessed by the employer. OSHA urges employers to be wary of relying solely on generic, "packaged" training programs in meeting their training requirements. Computer-based training cannot be used to satisfy HAZWOPER requirements for supervised field experience.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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 http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,
Thomas Galassi, Director
Directorate of Enforcement Programs

[1] Initial training for these supervisors/managers may be reduced to 24 hours of off-site training and 1 day of supervised field experience if their responsibilities are limited to supervising employees who need only 24 hours of training and 1 day of supervised field experience. [29 CFR 1910.120(e)(4)].

[2] Different training requirements apply to operations involving hazardous wastes that are conducted at TSD facilities regulated by 40 CFR Parts 264 and 265 pursuant to RCRA, or by agencies under agreement with the EPA to implement RCRA regulations. For those operations, employers must develop and implement a training program for all employees exposed to health hazards or hazardous substances. The training must enable employees to perform their assigned duties and functions in a safe and healthful manner so as not to endanger themselves or other employees. Initial training must be for 24 hours and refresher training must be for eight hours annually. [29 CFR 1910.120(p)(7)(i)].