IX. Federalism

This final regulation has been reviewed in accordance with Executive Order 12612 (52 FR 41685; October 30, 1987) regarding Federalism. Executive Order 12612 requires that agencies, to the extent possible, refrain from limiting state policy options, consult with states prior to taking any actions that would restrict state policy options, and take such actions only when there is clear constitutional authority and the presence of a problem of national scope. The Executive Order provides for preemption of state law only if there is a clear Congressional intent for the Agency to do so. Any such preemption is to be limited to the extent possible.

During the development of this rule, OSHA has, to the extent possible, refrained from limiting state policy options by developing a rule that permits flexibility on the part of the States through the use of performance language. We have also consulted with the States, in particular those states with approved state OSHA plans, during the public hearings and comment period called for in the notice of proposed rulemaking for this rule. We will continue to work with the States that have state occupational safety and health plans approved under section 18 of the OSHA Act to encourage those states to develop their own policies to achieve program objectives and continue to work with appropriate state officials as they present their state standards for approval.

This rulemaking is directed by Congress under the Superfund Amendments and Reauthorization Act of 1986 (SARA). The Constitutional authority and Congressional intent for Federal action in the area of worker protection standards for employees engaged in hazardous waste operations is mandated clearly in section 126 of SARA. Congress therefor has identified the protection of employees engaged in hazardous waste operations and emergency response as a problem of national scope through the enactment of SARA.

Section 18 of the Occupational Safety and Health Act (OSH Act), permits any state to develop its own independent state occupational safety and health program. Any state may develop and submit to OSHA, for approval and use, a state occupational safety and health program that provides, among other things, worker protection "at least as effective as" that protection provided under the Federal program.

With respect to Section 4 of Executive Order 12612, Section 18 of the OSH Act also expresses Congress' clear intent to preempt state laws relating to issues with respect to which Federal OSHA has promulgated occupational safety or health standards. Under the OSH Act, a state can avoid preemption only if it submits, and obtains Federal OSHA approval of a plan for the development of such standards and their enforcement as mentioned above. Occupational safety and health standards developed by such approved Plan-States must among other things, be as least as effective in providing safe and healthful employment and places of employment as the Federal standards.

OSHA has used its regulatory preemption of State law to the minimum level necessary to achieve the objectives of the OSH Act and section 126 of SARA.

Section 126 of SARA, under paragraph (f), requires that the U.S. Environmental Protection Agency (EPA) provide those state and local government workers who are not covered by the protections of approved OSHA state plans with protection that is identical to that provided under the Federal OSHA standards. Non-state and local government employees would be regulated by the Federal OSHA standard. State and local government workers, employed in 25 non-OSHA state plan states, would not normally be covered by standards promulgated under Federal OSHA or approved state OSHA programs. OSHA has worked with EPA in the development of this final rule to assure that the protections provided to all state and local government employees is consistent with that provided by the Federal OSHA standard and the OSH Act. EPA as the regulatory authority for the non-OSHA state plan states will address their actions with respect to worker protection policies that have federalism implications in their rulemaking.

This final rule is written so that employees engaged in hazardous waste operations and related emergency response operations in every state, including those state and local government employees in states regulated by EPA, would be protected by general, performance oriented standards. To the extent that there are state or regional peculiarities caused by the types of hazardous waste operations, including the types of related emergency response provided, states with occupational safety and health plans approved by OSHA under section 18 of the OSH Act would be able to develop their own state standards to address any special problems. This would assure the compatibility of state or local emergency response plans developed independently by state or local emergency planning committees under Title III of SARA with Federal worker protection standards issued by OSHA and EPA.

And, under the OSH Act, if a state develops its own OSHA approved state program, it could make additional requirements in its standards. States that will be covered by regulations issued by EPA under paragraph 126(f) of SARA will be provided the same option. Moreover, the performance nature of this final rule, of and by itself, allows for flexibility by states and owners or operators of hazardous wastes sites or providers of emergency response to provide as much safety as possible using varying methods consonant with the conditions in each state.

In summary, there is a clear national problem, identified by Congress, related to occupational safety and health in hazardous waste operations and related emergency response. While the individual states, if all acted collectively, might be able to deal with the safety problems involved, most have not elected to do so in the seventeen years since the enactment of the OSH Act. Those states which have elected to participate under section 18 of the OSH Act, would not be preempted by this final regulation and would be able to address special, local conditions within the framework provided by this performance oriented standard while ensuring that their standards are at least as effective as the Federal Standard. State comments were invited on the proposal and those that were submitted to the record were fully considered prior to promulgation of this Final Rule.

The agency certifies that this document has been assessed in light of the principles, criteria, and requirements stated in sections 2 through 5 of Executive Order 12621. There are no provisions of this rulemaking that are inconsistent with the principles, criteria, and requirements stated in sections 2 through 5 of Executive Order 12621. States which have approved state occupational safety and health plans may incur additional costs associated with standards development and enforcement as a result of this rulemaking. Funding for these approved state plan programs is available from OSHA under section 18 of the OSH Act. This rulemaking would not change the State's ability to discharge traditional State governmental functions or other aspects of State sovereignty.

An outline of 1910.120 is included for the convenience of the reader as follows:

Table of Contents

Hazardous Waste Operations and Emergency Response

1910.120 Hazardous waste operations and emergency response.

(a) Scope, application, and definitions.

(1) Scope. (2) Application. (3) Definitions.

(b) Safety and health program.

(1) General. (2) Organizational structure chapter of the site program. (3) Comprehensive workplan chapter of the site program. (4) Site-specific safety and health plan.

(i) General. (ii) Elements. (iii) Pre-entry briefing. (iv) Effectiveness of site safety and health plan.

(c) Site characterization and analysis.

(1) General. (2) Preliminary evaluation. (3) Hazard identification. (4) Required information. (5) Personal protective equipment. (6) Monitoring. (7) Risk identification. (8) Employee notification.

(d) Site control.

(1) General. (2) Site control program. (3) Elements of the site control program.

(e) Training.

(1) General. (2) Elements to be covered. (3) Frequency of training. (4) Management and supervisor training. (5) Qualifications for trainers. (6) Training certification. (7) Emergency response. (8) Refresher training. (9) Equivalent training.

(f) Medical surveillance.

(1) General. (2) Employees covered. (3) Frequency of medical examinations and consultations. (4) Content of medical examinations and consultations. (5) Examination by a physician and costs. (6) Information provided to the physician. (7) Physician's written opinion. (8) Recordkeeping.

(g) Engineering controls, work practices, and personal protective equipment for employee protection.

(1) Engineering controls, work practices, and PPE for substances regulated in Subparts G and Z.

(2) Engineering controls, work practices, and PPE for substances not regulated in Subparts G and Z.

(3) Personal protective equipment selection. (4) Totally-encapsulating chemical protective suits. (5) Personal protective equipment (PPE) program.

(h) Monitoring.

(1) General. (2) Initial entry. (3) Periodic monitoring. (4) Monitoring of high-risk employees.

(i) Informational programs.

(j) Handling drums and containers.

(1) General. (2) Opening drums and containers. (3) Material handling equipment. (4) Radioactive wastes. (5) Shock sensitive wastes. (6) Laboratory waste packs. (7) Sampling of drum and container contents. (8) Shipping and transport. (9) Tank and vault procedures.

(k) Decontamination.

(1) General. (2) Decontamination procedures. (3) Location. (4) Equipment and solvents. (5) Personal protective clothing and equipment. (6) Unauthorized employees. (7) Commercial laundries or cleaning establishments. (8) Showers and change rooms.

(l) Emergency response by employees at uncontrolled hazardous waste sites.

(1) Emergency response plan. (2) Elements of an emergency response plan. (3) Procedures for handling emergency incidents.

(m) Illumination.

(n) Sanitation at temporary workplaces.

(1) Potable water. (2) Nonpotable water. (3) Toilets facilities. (4) Food handling. (5) Temporary sleeping quarters. (6) Washing facilities. (7) Showers and change rooms.

(o) New technology programs.

(p) Certain Operations Conducted Under the Resource Conservation and Recovery Act of 1976 (RCRA).

(1) Safety and health program. (2) Hazard communication program. (3) Medical surveillance program. (4) Decontamination program. (5) New technology program. (6) Material handling program. (7) Training program.

(i) New employees. (ii) Current employees. (iii) Trainers.

(8) Emergency response program.

(i) Emergency response plan. (ii) Elements of an emergency response plan. (iii) Training. (iv) Procedures for handling emergency incidents.

(q) Emergency response to hazardous substances releases by employees not previously covered.

(1) Emergency response plan. (2) Elements of an emergency response plan. (3) Procedures for handling emergency response. (4) Skilled support personnel. (5) Specialist employees. (6) Training.

(i) First responder awareness level. (ii) First responder operations level. (iii) Hazardous materials technician. (iv) Hazardous materials specialist. (v) On scene commander.

(7) Trainers. (8) Refresher training. (9) Medical surveillance and consultation. (10) Chemical protective clothing. (11) Post-emergency response operations.

Appendices to 1910.120 - Hazardous Waste Operations and Emergency Response.

Appendix A - Personnel Protective Equipment Test Methods. Appendix B - General Description and Discussion of the Levels of Protection and Protective Gear.

Appendix C - Compliance Guidelines. Appendix D - References.

List of Subjects in 29 CFR Part 1910

Containers, Drums, Emergency response, Flammable and combustible liquids, Hazardous materials, Hazardous substances, Hazardous wastes, Incorporation by reference, Materials handling and storage, Personal protective equipment, Storage areas, Training, Waste disposal.

[54 FR 9293, March 6, 1989; 55 FR 14072, April 13, 1990]