January 9, 1990

Mr. John D'Aloia, Jr.
Vice President, Regulatory Affairs
Deuel and Associates, Inc.
311 West Alma Street
St. Marys, Kansas 66536

Dear Mr. D'Aloia:

This is an update to our interim response to your letter concerning the Hazardous Waste Operations and Emergency Response final rule (29 CFR 1910.120). Your question concerns the application of certain provisions of this standard in light of specific emergency response requirements under the Resource Conservation and Recovery Act (RCRA) rules. Please accept my apology for the delay in this reply.

Thank you for sharing with us the information the Environmental Protection Agency (EPA) has provided to you about their regulations. We met with EPA representatives to further clarify their regulations.

Under the emergency response program for generators of hazardous waste OSHA allows a conditional exemption from the emergency response requirements:

Employers who will evacuate their employees from the worksite location when an emergency occurs, and who do not permit any of their employees to assist in handling the emergency are exempt from the requirements of this paragraph if they provide an emergency action plan complying with 29 CFR 1910.38(a) of this part. (29 CFR 1910.120(q)(1) and (p)(8))

Generators of more than 1,000 kilograms per month (kg./mo.) of hazardous waste (or more than 1 kg./mo. of acutely hazardous waste) who accumulate waste on site, must comply with certain requirements in 40 CFR Part 265 pertaining to contingency plans, emergency procedures, and personnel training (40 CFR 262.34(a)(4)). The generator's training program must be:

Designed to ensure that facility personnel are able to respond effectively to emergencies by familiarizing them with emergency procedures, emergency equipment, and emergency systems, including, where applicable: (i) Procedures for using, inspecting, repairing, and replacing facility emergency and monitoring equipment ... (40 CFR 265.16(a)(2))

In addition, generators are required to have an employee designated as the emergency coordinator (40 CFR 265.55). The emergency coordinator's responsibilities include taking "all reasonable measures necessary to ensure that fires, explosions, and releases do not occur, recur, or spread to other hazardous waste at the facility. These measures must include, where applicable .... collecting and containing released waste ..." (40 CFR 265.56).

It is clear that the EPA requirements contemplate active employee involvement in controlling emergencies and that the OSHA conditional exemption would not be applicable to all employees for generators of more than 1,000 kg./mo. of hazardous waste (or more than 1 kg./mo. of acutely hazardous waste) who accumulate waste on site.

The exceptions listed for small quantity generators and generators who store for less than 90 days (29 CFR 1910.120(a)(2)(iii) are confusing. These generators were singled out to complement EPA's RCRA exemptions. OSHA, however, did not distinguish between small quantity generators (generators of more than 100 kg./mo. but less than 1000 kg./mo. of hazardous waste) and conditionally exempt small quantity generators (generators of less than 100 kg./mo. of non-acutely hazardous waste). EPA requires small quantity generators but not conditionally exempt small quantity generators to comply with emergency preparedness and training requirements including the designation of an emergency coordinator. Since small quantity generators are required to have at least some level of involvement in emergency response the emergency response provisions of 29 CFR 1910.120 would apply to those affected employees. The conditional exemption in (q)(1) and (p)(8) of the final standard would not be applicable for all employees.

Likewise EPA requires generators of hazardous waste who store for less than 90 days and are not exempt small quantity generators to have at least some level of involvement in emergency response. Thus, OSHA's emergency response provisions under 29 CFR 1910.120 would also apply to affected employees for these generators.

We hope this information is helpful. In the next few months a further clarification on these and other issues are expected to be addressed in a Federal Register correction notice. Thank you again for bringing this information to our attention.

Sincerely,



Thomas J. Shepich, Director
Directorate of Compliance Programs