Volunteer firefighters and HAZWOPER in New York

December 30, 1991

Mr. Thomas Lowe, OHN
Nyack Hospital
Business Health Services
[Recipient address omitted]

Dear Mr. Lowe:

This is in response to your inquiry of September 25, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response final rule (29 CFR 1910.120).

Your question concerns OSHA's jurisdiction over volunteer fire fighters. We appreciate your concern as an Occupational Health Nurse in protecting employee safety and health by complying with OSHA standards. We will assist you as best we can so you can better aid New York State Volunteer Fire Departments.

Section (3)(5) of the Occupational Safety and Health Act of 1970 specifically excludes Federal OSHA's authority over employees of State and local government. The Act encourages States to assume responsibility for occupational safety and health programs under the State's own plan, which must be approved by the US Department of Labor. Each State-plan must include coverage of public employees of the State, and it must be "at least as effective" as Federal OSHA's protection of private sector employees.

The State of New York administers an OSHA state plan in accordance with the Public Employees Safety and Health (PESH) Act, Chapter 729 of the Laws of 1980, applicable only to public employees of the State. (Private sector employment in New York remains under Federal OSHA authority.) New York adopts and enforces occupational safety and health standards in the public sector which are identical to OSHA's, under its OSHA-approved State plan.

The applicability of OSHA standards 29 CFR 1910.156 (Fire Brigades), 1910.134 (Respiratory Protection), and 1910.120 (Hazardous Waste Operations and Emergency Response) to volunteer fire departments in New York depends upon whether volunteer fire fighters are deemed employees of State and local governments under applicable State law. It is our understanding that counsel for the New York Labor department has determined that volunteer fire fighters are covered as public employees under the New York State-plan.

[Incidentally, for volunteers who work in a state that doesn't cover its public employees, 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, specifically including volunteers engaged in emergency response. This EPA standard 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 who were not otherwise covered by OSHA.]

If you wish to obtain further information on the requirements of New York's PESH Program, or the status of volunteer fire fighters, you may contact the New York Department of Labor at the following address:

Ms. Maria Colivita
Division of Safety and Health
New York State Department of Labor
State Office Building - Campus 12
Albany, New York 12240

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

Sincerely,
Patricia Clark, Director
Directorate of Compliance Programs