September 3, 1992

Mr. Michael Broumberg
University of Maryland
Environmental Safety Office Building
7505 Yale Avenue
College Park, Maryland 20742

Dear Mr. Broumberg:

This is in response to your inquiry of May 29, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response (HAZWOPER) regulation, 29 CFR 1910.120.

The state of Maryland operates under an OSHA-approved state plan, which covers all occupational safety and health concerns for Maryland. As a state with an approved plan, Maryland must provide employee protection that is "at least as effective" as Federal OSHA's but may be more stringent. Specifically, the University of Maryland is required to follow the Maryland HAZWOPER standard and interpretations. For any particular requirements applying in your state, you may contact the following:

Henry Koellein, Commissioner
Maryland Division of Labor and Industry
Department of Licensing and Regulation
501 St. Paul Place, 2nd Floor
Baltimore, Maryland 21202-2272
Telephone: (301) 333-4179

This letter will provide you with interpretations of the Federal HAZWOPER standard.

Your question concerns clarification on how the HAZWOPER standard is applied to the University of Maryland, which has a treatment, storage and disposal (TSD) facility on its campus. Your letter explains that the TSD permit considers the entire University campus to be a TSD facility, under the authority of the U.S. Environmental Protection Agency (EPA), although the State of Maryland considers the permit to extend only to those areas specifically designated by name and location.

OSHA cannot offer you guidance on how EPA will enforce their standards; you should contact your State or Regional EPA office. However, for the purposes of OSHA enforcement, the employer must comply with 1910.120 paragraph (p) where there is a potential for employee exposure to hazardous substances in areas where TSD operations take place. Other areas of the University may be covered by different paragraphs in the HAZWOPER standard, such as paragraph (q) regarding emergency response regardless of location. OSHA regulations, such as the Laboratory standard (29 CFR 1910.1450), the Hazard Communication standard (29 CFR 1910.1200), and standards for personal protective equipment may also cover other places of work in the university.

We will address your questions in the order that you asked them. To avoid repetition we have answered questions one and two together, and refer to these answers later in the letter.

1. Does OSHA consider spillage of de minimis or larger quantities of hazardous waste within laboratories to be an uncontrolled release?

2. In the definition of "Emergency Response," under what condition(s) does OSHA consider a release of hazardous substances not to pose an actual or potential safety or health hazard relative to chemical exposure?

Releases of hazardous substances within a laboratory fall under the scope of 1910.120 if the release would require, or has the potential to require, an emergency response. Releases of hazardous substances requiring an emergency response may differ depending on the facilities, knowledge of the employees in the immediate area, and the equipment they have at their disposal. The definition of an emergency is not based on the quantity of a spill of hazardous substance; a relatively small quantity can present significant hazards.

Facilities must define the situations that would require an emergency response in their Emergency Response Plan, based on the characteristics of the site. In defining emergencies specific to the facility, we suggest that the employer address the following in their Emergency Response Plan:

The size of the area in which a release would occur (a small laboratory versus a warehouse);

The environment (temperature, ventilation, etc.);

The experience of the people responding;

The concentration of the hazardous substances;

The toxicity or other hazardous qualities of the substances;

The personal protective equipment and emergency response equipment available to responders; and

The surrounding population that may be threatened by a release.

The HAZWOPER standard does not cover releases of hazardous substances which do not pose a significant safety or health hazard to employees or to the worker cleaning them up. This type of release is referred to as an "incidental release" in 1910.120(a)(3) where emergency response is defined. Incidental releases are limited in quantity, exposure potential and toxicity and clearly present no safety or health hazard to workers in the immediate area or those assigned to clean it up. Training in accordance with 1910.120(q) is not required for these spills; however, other OSHA standards, such as 29 CFR 1200, would apply.

3. In the same section, are personnel trained under RCRA requirements for contingency plan and emergency response considered maintenance personnel, in that they have the knowledge, education and experience to absorb, neutralize, or otherwise control the spill?

Employers must consider an employee's expected job duties, not his job title, and the safety and health risks associated with the duties. If workers will only be expected to clean up spills that the employer has defined to be incidental for the facility, then employees do not need emergency response training. If workers will be expected to clean up spills that could become an emergency, the employer must provide emergency awareness training and response training based on the duties and functions to be performed by each responder.

Employers are considered to be in compliance with 1910.120 if they can show that an employee has had training equivalent to the training required by 1910.120 paragraph (p)(7). Training provided to comply with RCRA requirements may satisfy some of the provisions required in 1910.120. Instruction need not be duplicated if employees have already received training in the competencies listed in paragraph (p)(7). The employer must show that the training is equivalent and certify their employees.

4. In the same section, please define "incidental releases."

Please see our answer to question one.

5. In "Notes and Exceptions" to 29 CFR 1910.120(a)(2)(iii), [sub]paragraph (C) differentiates compliance requirements between areas used for treating, storing and disposing of wastes and areas not primarily used for the treatment, storage or disposal of wastes. In view of the OSHA definition for "Facility," EPA's definition of "Facility" found in 40 CFR 260.10 and EPA's definition of "Facility" in the proposed Corrective Action regulations (see FR Vol. 55, no. 145, Friday, July 27, 1990), what areas on a college or university campus does OSHA consider to be areas not used primarily for treatment, storage or disposal?

The employer must comply with 1910.120(p) where there is a potential for employee exposure to hazardous substances in areas that actively treat, store, or dispose of hazardous waste. These areas are likely to be only a small part of a typical university campus.

Subparagraph (a)(2)(iii)(C) states that "in other areas not used primarily for treatment, storage or disposal, any emergency response operations shall comply with paragraph (q)" of 1910.120. It may be easier for a facility who will use employees to respond to emergency releases in both a TSD area and non-TSD area to comply with paragraph (q) rather than (p)(8). By developing an Emergency Response Plan and training employees as emergency responders in accordance with paragraph (q), the employer can meet the provisions in paragraph (p)(8).

6. Regarding the response to question 5, please clarify the requirement for the more stringent response and training requirements of paragraph (q) based on the following logical assumptions:

a. Areas that treat, store or dispose of hazardous waste contain significantly larger quantities, and a more diverse mixture of wastes, than areas not used to treat store or dispose of hazardous wastes.

b. College and university hazardous waste operations personnel that respond to releases in both storage and non-storage areas.

The HAZWOPER standard addresses three categories of employees involved in hazardous waste operations; workers at hazardous waste sites, workers at TSD facilities, and emergency responders. HAZWOPER requirements for each category are specific to the type of operation workers are to perform. The stringency of the requirements are based, in part, on the control or predictability associated with the particular operation.

Generally, hazardous waste site remediation activities are the least controlled, and consequently have the most requirements. Emergency response operations are also uncontrolled in nature and consequently have detailed requirements. Operations at RCRA permitted TSD facilities are process oriented, therefore hazardous waste/substances are well characterized and controlled.

7. In the definition of "Uncontrolled Hazardous Waste Site" OSHA states that "normal operations conducted at TSD sites are not covered by this definition." How does this exception correlate with 1910.120(a)(1)(v)?

In HAZWOPER's "Scope, Application, and Definitions," paragraph (a)(1) lists five specific operations, and paragraph (a)(2) puts these five operations into three general categories:

Paragraphs (b)-(o) cover workers at hazardous waste sites who are exposed to hazardous substances [listed in the scope of the regulation in (a)(1)(i) through (a)(1)(iii)];

Paragraph (p) covers workers at treatment, storage, and disposal (TSD) facilities who are exposed to hazardous waste [listed in the scope of the regulation in (a)(1)(iv)];

Paragraph (q) covers employees who are engaged in emergency response operations to releases of hazardous substances without regard to the location of the hazard [listed in the scope of the regulation in (a)(1)(v)].

In the "Scope, Application and Definitions" section of the standard, it is stated that TSD facilities are not considered uncontrolled hazardous waste sites because TSD facilities are covered in a separate section of the standard. Paragraph (a)(1)(v) does not apply directly to TSD facilities for the same reason. Although, for the areas of a TSD facility that are not part of the TSD operation, and hence are not covered by paragraph (p), paragraph (q) may apply.

We hope this information is helpful. If you have any further questions please contact the Maryland Division of Labor and Industry at (301) 333-4179.

Sincerely,



Patricia Clark, Director
Directorate of Compliance Programs