VIII. Federal and State Coverage of the Public Sector and Volunteers

Federal OSHA is specifically precluded by section 3(5) of the Occupational Safety and Health Act from covering employees of any State or political subdivision thereof. However, States that elect to have their own occupational safety and health program under a plan approved and monitored by OSHA under section 18(b) of the Act are required to extend their coverage to these employees (see section VII of this preamble for a list of these states). Thus, a State hazardous waste operations standard that is either identical to or at least as effective as the Federal OSHA standard will apply to public sector as well as private sector employees in these States. Public sector employees in States without State plans will be protected from exposure to hazardous waste under Title I, section 126(f) of the Superfund Amendments and Reauthorization Act of 1986 (SARA), administered by the U.S. Environmental Protection Agency (EPA). This section requires EPA to promulgate, within 90 days of the promulgation date of this Federal OSHA standard, an identical standard that applies to employees of State and local governments in each State which does not have an OSHA-approved State plan.

OSHA's hazardous waste operations standard and the identical or equivalent standards which will be promulgated by States with OSHA-approved State plans apply under certain circumstances to volunteer firefighters and other volunteers engaged in emergency response operations or hazardous waste operations within the scope of these standards (see paragraphs (a)(1) and (2) of this standard). In many communities, fire and other emergency response services are provided by volunteer companies. In some cases, these companies are established as independent, private sector entities. In others, they are considered a component of State or local government (see 29 CFR 1975.5 for factors to consider in determining whether or not an entity is a public agency). A volunteer working for a public or private entity in a State with an OSHA-approved State plan must be considered an employee under State law in order to be covered by the State's hazardous waste operations and emergency response standard -- for example, because of an employer-employee relationship or because of pay, retirement benefits, health insurance coverage, workers' compensation benefits, etc. This determination is made by each State as part of its standards promulgation process. In a state without an OSHA-approved State plan, a private entity fire company with one or more paid employees would be covered under this Federal standard (29 CFR 1975.4).

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