OSHA Instruction STP 2-1.154C June 10, 1991 Office of State Programs

Subject: Hazardous Waste Operations and Emergency Response; Final Rule and Corrections

A. Purpose. This instruction describes a Federal Program Change to the Regions and State designees.

B. Scope. This instruction applies OSHA-wide.

C. Reference.

1. OSHA Instruction STP 2-1.136A, June 8, 1987, Hazardous Waste Operations and Emergency Response; Interim Final Rule and Corrections.

2. OSHA Instruction STP 2-1.117, August 31, 1984, State Standards.

D. Cancellation. OSHA Instruction STP 2-1.154B, September 17, 1989, Hazardous Waste Operations and Emergency Response; Final Rule and Corrections is canceled.

E. Federal Program Change. This instruction describes a Federal Program Change which affects State programs. Each Regional Administrator shall:

1. Ensure that this instruction is forwarded to each State designee.

2. Provide a copy of the Federal Register notice to the State designee upon request.

3. Explain the technical content of the Federal Register Notices at 54 FR 9294, March 6, 1989, Hazardous Waste Operations and Emergency Response, Final Rule; 55 FR 14072, April 13, 1990, Hazardous Waste Operations and Emergency Response, Final Rule, Corrections; and 56 FR 15832, April 18, 1991, Hazardous Waste Operations and Emergency Response, Final Rule, Corrections to the State designees upon request.

4. Ensure that each State designee acknowledges receipt of this instruction in writing, within 30 days of notification State's plan to adopt and implement the standard change, (b) the State's plan to develop an alternative change, which is as effective, or (c) the reasons why no change is necessary to maintain a program which is as effective as the Federal program.

5. Inform each State designee that the State must, within six months of the date of each Federal Register publication, amend its final rule or adopt the final rule and final rule corrections to ensure that the State standard is at least as effective as the Final Rule for Hazardous Waste Operations and Emergency Response in 29 CFR 1910.120, as corrected. The State must submit a plan supplement to the Regional Administrator within 30 days of State promulgation.

6. Encourage each State designee to cover volunteer workers engaged in hazardous waste operations, including emergency response, under the State's hazardous waste operations permanent final rule for purposes of national consistency. States that do not currently consider these volunteer workers to be employees under State law should consider taking action to extend coverage to volunteers.

7. Require each State designee to specify whether volunteer workers engaged in hazardous waste operations, including emergency response, are deemed employees for the purpose of coverage under the standard. State designees who are uncertain about coverage under the standard should request a legal opinion. The State shall submit a copy of the legal opinion or a statement on whether volunteer workers are covered to the Regional Administrator along with the standards package.

F. Interim Enforcement. Under 29 CFR 1953.23(a) and (b), State plan States are provided up to six months from publication of the Federal standard in the Federal Register to promulgate an identical or "at least as effective" as standard. If a State, for whatever reason, is unable to promulgate a standard in a timely manner (six months for a permanent standard, 30 days for an emergency temporary standard) the State shall be expected to provide assurance that it will enforce the substantive provisions of the new or revised Federal standard through such means as use of its general duty clause or equivalent, temporary adoption of an identical standard, or an alternative, specified enforcement mechanism.

G. Different State Standards. Section 18(c)(2) of the Act requires that State standards be "at least as effective" as the Federal and, when applicable to products used or distributed in interstate commerce, the standards must be required by compelling local conditions and not unduly burden interstate commerce. In addition to the "at least as effective" criterion, this "product clause test" will be applied to State standards with substantively different requirements from the comparable Federal standard, as described in STP 2-1.117. A State standard expanded in scope from the Federal is considered to be a substantively different standard.

H. Effective Date. The final rule was effective on March 6, 1990. The interim final rule remained in effect until then. A State's effective date may be no later than the delayed Federal date or the date of the State promulgation, whichever is later.

I. Explanation.

1. On March 6, 1989, OSHA issued a final rule which replaced its interim standard for hazardous waste operations and emergency response found in 29 CFR 1910.120. The final rule replaces the interim final rule required by Congress in the Superfund Amendments and Reauthorization Act of 1986 (as amended) (SARA) (Pub. L. 99-499, 29 U.S.C. 655 note). When the final rule became effective March 6, 1990, the interim final rule promulgated December 19, 1986 (51 FR 45654) was revoked.

2. The rule regulates the safety and health of employees involved in clean-up operations at uncontrolled hazardous waste sites cleaned up under government mandate, voluntary clean-up operations at sites recognized by Federal, State, local or other governmental bodies as uncontrolled hazardous waste sites, in certain hazardous waste treatment, storage, and disposal (TSD) operations conducted under the Resource Conservation and Recovery Act of 1976 as amended (RCRA) [42 U.S.C. 6901 et seq.], and in any emergency response to incidents involving hazardous substances as defined by OSHA in 29 CFR 1910.120.

3. State plan States are required to extend their coverage to all State and local government employees involved in hazardous waste cleanup and emergency response. Public sector employees involved in these operations in other States are protected under Title I, section 126(f) of SARA. On June 23, 1989, as required by section 126(f), the Environmental Protection Agency (EPA) issued a final rule (40 CFR 311) at 54 FR 26654 requiring the application of OSHA's permanent final rule on hazardous waste operations to employees of State and local governments in States without approved 18(b) State plans.

4. EPA has included volunteers within the scope of its rule because it believes that significant benefits accrue both to the communities that could be endangered by inadequately trained responders and to the responders themselves. The EPA rule defines an employee as a compensated or non-compensated worker who is controlled directly by a State or local government, as contrasted to an independent contractor. EPA's rule is effective March 6, 1990 for emergency response operations, but unlike OSHA's final rule, is effective September 21, 1989 for other hazardous waste operations.

5. State plan States are encouraged to cover volunteer workers engaged in hazardous waste operations, including emergency response, because of EPA's coverage of these workers in non-State plan States. State plan State coverage should include volunteer workers in the private sector as well as the public sector if emergency responders in the State are organized as private entities or corporations.

6. There are situations where these volunteer workers receive pay for their time spent on-the-job, receive other types of remuneration, and/or are covered under workers' compensation provisions. Such factors as these help determine whether a volunteer is an employee. States that do not currently consider volunteer workers engaged in hazardous waste operations or emergency response to be employees under State law should consider taking action to further extend coverage to avoid non-protection of this group of workers only in State plan States.

7. Under the amended OSHA standard, employee protection is provided during the initial site characterization and analysis, monitoring activities, materials handling activities, training, and emergency response.

8. On April 13, 1990, OSHA issued corrections to the preamble and to the final rule on Hazardous Waste Operations and Emergency Response, 29 CFR 1910.120, as amended effective March 6, 1990.

9. As published, the preamble and standard contain typographical errors, incorrect citations and certain ambiguities which may prove to be misleading and are in need of clarification. The areas clarified by this correction, include:

a. The definition of "hazardous substance" by directly including language, rather than incorporating it by reference;

b. OSHA's intent that medical surveillance be provided to both hazardous waste operation employees and emergency response employees;

c. The exception subparagraph regarding treatment, storage and disposal (TSD) operation;

d. Coverage of certain excepted employers;

e. The term "workplace" corrected to "danger area" in several provisions; and

f. Some information added to the non-mandatory appendices.

10. On April 18, 1991, OSHA issued two additional corrections to the final standard, 29 CFR 1910.120, as amended effective April 18, 1991.

11. As originally published, the standard contained two additional areas that may be misleading that have come to OSHA's attention and are in need of clarification. The areas clarified by this corrections include:

a. The definition of "uncontrolled hazardous waste site"; and

b. The definition of "equivalent training."

12. Under 29 CFR 1953.23(a) and (b), States are provided up to six months from publication in the Federal Register for adoption of parallel State standards and amendments.

Gerard F. Scannell Assistant Secretary

DISTRIBUTION: National and Regional Offices State Designees 18(b) State Monitors OSHA Training Institute

*U.S. Government Printing Office: 1991- 282-118/20066