I. Background

The U.S. Environmental Protection Agency estimates that approximately 57 million metric tons of hazardous waste are produced each year in the United States.(1) These wastes must be treated and stored or disposed in a manner that protects the environment from the adverse affects of the various constituents of those wastes.

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  Footnote(1)  U.S. Environmental Protection Agency. "Everybody's Problem
Hazardous Waste at 1 (1980).

In response to the need to protect the environment from the improper disposal of these hazardous wastes, Congress, over the years, has enacted several pieces of legislation intended to control the nation's hazardous waste problem. Federal laws passed in 1965(2) and 1970(3) initially addressed solid waste disposal. Several other pieces of legislation have been enacted by Congress that have ultimately led to the development of this rule and they are discussed below.

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  Footnote(2) Solid Waste Disposal Act, Pub. L. No. 89-272, 79 Stat 99.
  Footnote(3) Resource Recovery Act, Pub. L. No. 91-512, 84 Stat 1427 and
Pub. L. 93-14, 87 Stat 11.

A. The Resource Conservation and Recovery Act of 1976

The first comprehensive, federal effort to deal with the solid waste problem in general, and hazardous waste specifically, came with the passage of the Resource Conservation and Recovery Act of 1976 [RCRA](4). The act provides for the development of federal and state programs for otherwise unregulated land disposal of waste materials and for the development of resource recovery programs. It regulates anyone engaged in the creation, transportation, treatment, and disposal of "hazardous wastes." It also regulates facilities for the disposal of all solid wastes and prohibits the use of open dumps for solid wastes in favor of requiring sanitary landfills.

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  Footnote(4) U.S.C. 6901 et seq.

There are, however, many hazardous waste disposal sites that were created prior to the passage of RCRA. These sites are often abandoned and contain unknown quantities of unknown wastes.

B. The Comprehensive Environmental Response, Compensation and Liability Act of 1980

In response to the need to clean-up and properly reclaim these pre-RCRA sites, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA)(5) commonly known as "Superfund." Superfund established two related funds to be used for the immediate removal of hazardous substances released into the environment. Superfund is intended to establish a mechanism of response for the immediate clean-up of hazardous waste contamination from accidental spills and from chronic environmental damage such as is associated with abandoned hazardous waste disposal sites.

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  Footnote(5) 42 U.S.C. 9601 et seq.

The treatment and disposal of hazardous wastes under RCRA and CERCLA creates a significant risk to the safety and health of employees who work in treatment and disposal operations. Exposure to hazardous wastes through skin contact, skin absorption, and inhalation pose the most significant risks to employees. Employee exposure to these risks occurs when employees respond to hazardous substance or waste emergencies, when they work with hazardous wastes during storage, treatment and disposal operations or when they participate in the clean-up of abandoned-waste sites.

The risk of exposure and the need for protecting employees exposed to hazardous wastes is addressed in the "Superfund Amendments and Reauthorization Act of 1986" (SARA).

C. Superfund Amendments and Reauthorization Act of 1986.

On October 17, 1986, the President signed into law the "Superfund Amendments and Reauthorization Act of 1986" (SARA).(6) AS part of SARA, in section 126 of Title I, Congress addressed the risk of injury to employees by providing that the Secretary of Labor ("Secretary") issue interim final worker protection regulations within 60 days after the date of enactment of SARA that would provide no less protection for workers engaged in hazardous waste operations than the protections contained in the U.S. Environmental Protection Agency's (EPA) "Health and Safety Requirements for Employees Engaged in Field Activities" manual (EPA Order 1440.2) dated 1981, and the existing OSHA standards under Subpart C of 29 CFR Part 1926. OSHA published those interim final regulations in the Federal Register on December 19, 1986 (51 FR 45654). A correction notice was published on May 4, 1987 (52 FR 16241). With the exception of a few provisions that had delayed start-up dates. OSHA's interim final regulations became effective on December 19, 1986 in accordance with section 126(e) of SARA, and apply to all regulated workplaces until the final rule developed under sections 126(a)-(d) becomes effective.

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  Footnote(6) Pub. L. 99-499.

Section 126(a) of SARA provides that the Secretary shall "* * * pursuant to section 6 of the Occupational Safety and Health Act of 1970, promulgate standards for the health and safety of employees engaged in hazardous waste operations." These standards must be promulgated within one year after the date of enactment of SARA. This notice completes the development of those standards by issuing a final rule based upon the proposed regulations as indicated in sections 126(a) and 126(b) of SARA.

Pursuant to section 126(c) of SARA, the final regulations issued today are to take effect in one year. Section 126(c) also provides that the final regulations are to include each of the worker protection provisions listed in section 126(b), unless the Secretary determines that the evidence in the public record developed during this rulemaking and considered as a whole does not support inclusion of any such provision. A discussion of the public record for this rulemaking and the changes made to the proposed regulations issued August 10, 1987 follows.

This final rule has been adapted from the language of the proposed rule. Changes have been made to address more fully the provisions which Congress directed the Agency to cover and the comments made in the public record. OSHA utilized several sources for the proposal. These include the EPA manual entitled "Health and Safety Requirements for Employees Engaged in Field Activities" (1981), the language of OSHA's safety and health standards in Subpart C of 29 CFR Part 1926 and various documents issued either jointly or separately by the EPA, OSHA, the U.S. Coast Guard, and the National Institute for Occupational Safety and Health (NIOSH).

OSHA specifically used the joint OSHA/EPA/USCG/NIOSH manual entitled, "Occupational Safety and Health Guidance Manual for Hazardous Waste Site Activities" (Preamble Reference 6), as an outline in preparing the interim rule and the proposed rule. This manual was developed as a result of the collaborative efforts of professionals representing the four agencies. These professionals, who are knowledgeable in hazardous waste operations, worked with over 100 experts and organizations in the development of the criteria contained in this manual. The manual was published in October 1985 and is public information. The manual is a guidance document for managers responsible for occupational safety and health programs at inactive hazardous waste sites. The manual is intended for use by government officials at all levels and contractors involved in hazardous waste operations. The manual provides general guidance and is intended to be used as a preliminary basis for developing a specific health and safety program for hazardous waste operations. Further, the major subject areas listed in section 126(b) of SARA are nearly identical to the major chapters in the manual.

Based upon the extensive public comments and hearing testimony, OSHA has modified the proposal. The final rule takes into account the entire record. In addition, the language of this final rule clarifies some areas of confusion in the interim rule that OSHA has identified during the public comment period and since the promulgation of the interim final rule. The final rule also reorganizes some of the sections to clarify the standard.

D. Regulatory History

The Superfund Amendments and reauthorization Act of 1986 (SARA) gave the Secretary of Labor 60 days to issue interim final regulations which would provide no less protection for workers employed by contractors and emergency response workers than the protections contained in the Environmental Protection Agency Manual (1981) "Health and Safety Requirements for Employees Engaged in Field Activities" and existing standards under the Occupational Safety and Health Act if 1970 found in Subpart C of Part 1926 of the Code of Federal Regulations. Those interim final regulations were to take effect upon issuance and would apply until final regulations become effective (SARA, 126(e)). OSHA issued its interim final regulations on December 19, 1986 (51 FR 45654).

SARA also instructed the Secretary of Labor to promulgate, within one year after the date of the enactment of section 126 of SARA and pursuant to section 6 of the Occupational Safety and Health Act of 1970, standards for the health and safety protection of employees engaged in hazardous waste operations (SARA, section 126(a)). On August 10, 1987 OSHA issued a Notice of Proposed Rulemaking and Public Hearings (52 FR 20620). That Notice set forth OSHA's proposed language for its final rule and announced public hearings that would be held to gather further information to aid the agency in developing its permanent final rule.

Informal public hearings on the subject of this rulemaking were scheduled and held to afford interested parties the opportunity to comment on OSHA's proposals. The hearings were held October 13-16 and 21-21, 1987 in Washington, DC and October 27-28, 1987 in Seattle, Washington. The hearings originally scheduled for San Francisco, CA in the August 10, 1087 Notice of Proposed Rulemaking were rescheduled for Seattle, WA in an October 13, 1987 announcement (52 FR 37973).

Testimony from over 40 witnesses was presented at the hearings. Further, over 30 post hearing comments were submitted to the record of this rulemaking. In addition to the public hearings and the testimony received in response to those hearings, OSHA received over 125 written comments on its proposed language for a final rule.

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