EPA and OSHA coverage of public hazardous-material responders

December 18, 1991
Mr. William Borwegen
Service Employees
International Union, AFL-CIO
[Recipient address omitted]

Dear Mr. Borwegen:

This is in response to your inquiry of October 28, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response final rule (29 CFR 1910.120).

Your letter asks OSHA which governmental agency has enforcement authority over public employees throughout the United States who are expected to respond to emergencies involving hazardous materials. We will answer your questions in the order that you presented them:

1. "Does OSHA or the EPA have the authority over state and local government employers who conduct hazardous waste operations and emergency response in states that do not have an OSHA approved plan?"

The United States Environmental Protection Agency (EPA) promulgated a standard identical to 29 CFR 1910.120 to protect employees who work in the public sector: 40 CFR 311. EPA's standard varies slightly from OSHA's standard by including volunteers who work for a governmental agency engaged in emergency response, such as fire fighters. The EPA standard also applies to employees of State and local governments in each state which does not have an OSHA approved state plan. EPA's purpose for adopting 1910.120 was to cover employees that OSHA could not otherwise cover.

For consistency OSHA interprets ~~and enforces~~ the HAZWOPER standard for the EPA.

[This document was edited on 10/2/98 to strike incorrect information.]

2. "Which legislation gives the appropriate agency in question one jurisdiction over state and local employers in non-state plan states?"

Section 126 of the Superfund Amendments and Reauthorization Act (SARA) mandated standard development from both OSHA and EPA to address the risk of injury to employees at hazardous waste operations and employees engaged in emergency response to releases of hazardous substances. As an outcome OSHA promulgated 29 CFR 1910.120, the Hazardous Waste Operations and Emergency Response standard.

As discussed in the answer to question one, OSHA has authority over private sector employees, except where there is an OSHA approved state-plan state that covers the private sector. Employees of governmental agencies working at hazardous waste operations or responding to emergencies involving hazardous substance, are protected by either an OSHA approved state-plan state or the EPA.

3. "Does the EPA and OSHA have a written agreement over this jurisdictional issue? If yes, may we have a copy of this written agreement?"

Yes. Please see the enclosed OSHA Instruction STP 2-1.154C dated June 10, and section VIII, Federal and State Coverage of the Public Sector and Volunteers, of the 1910.120 preamble. You may also want to refer to SARA Title I, section 126, for the written agreement on EPA's and OSHA's jurisdiction.

We hope this information is helpful. If you have any further questions please feel free to contact us at (202) 523-8036.

Sincerely,
Patricia Clark, Director
Directorate of Compliance Programs