HAZWOPER and hazard labels at waste transfer facilities

August 11, 1995
Ms. Cynthia Hilton
Executive Director
Association of Waste Hazardous
Materials Transporters
[Recipient address omitted]
Dear Ms. Hilton:
This letter formalizes your previous discussions with my staff concerning the application of the Occupational Safety and Health Administration's (OSHA), Hazardous Waste Operations and Emergency Response (HAZWOPER) standard (29 CFR 1910.120) to employers of transfer facilities. This update reflects the additional information provided in your April 17 letter.
Your first two questions ask whether the training and other requirements of OSHA's HAZWOPER (29 CFR 1910.120) standard apply to employees who work at transfer facilities.
Your letter indicates that employees of transfer facilities engage in loading and unloading containers of hazardous waste from transport vehicles and in transferring hazardous wastes between containers. Paragraph (a)(2)(iii) of HAZWOPER states that the requirements of paragraph (p) apply to employers engaged in operations covered under 40 CFR Parts 264 and 265. In addition, the note to paragraph (a)(2)(iii) explains that small quantity generators exempt from 40 CFR Parts 264 and 265 are also exempt from the requirements of paragraphs (p)(1) through (p)(7) of HAZWOPER, only paragraph (p)(8) for emergency response plans applies in this case. Given this exemption, the development of a written safety and health program consistent with the requirements of paragraph (p)(1) is not required.
If the employer at such a facility is not required by the EPA or a state agency to have employees engage in emergency response and if the employer chooses to evacuate all employees in the event of an emergency rather than designate some employees to respond to the emergency, the employer would be exempt from the requirements of paragraph (p)(8). In this case, the employer must develop an emergency action plan in accordance with [1910.38].
In your April 17 letter, you indicated your belief that transfer facilities should comply with paragraph (q) of the standard rather than paragraph (p)(8), in part because you felt that transfer facilities should be considered transporters under EPA and DOT regulations. Interpretation of EPA and DOT regulations is outside of OSHA's jurisdiction; however, as indicated in the note to paragraph (a)(2)(iii) of HAZWOPER, compliance with paragraph (q) of the standard would meet the requirements of paragraph (p)(8). In other words, OSHA would consider a transfer facility in compliance if the employer chose to comply with paragraph (q) in lieu of paragraph (p)(8).
You ask what other general requirements apply at transfer facilities. Specifically, would OSHA's proposed rulemaking regarding retention of labels and placards during repackaging of wastes apply? Are transfer facilities subject to the Hazard Communication standard? Does OSHA require the development of evacuation plans and first aid capability at transfer facilities?
All general industry safety and health standards (29 CFR 1910) potentially apply to operations conducted at transfer facilities. For example, employers must develop emergency action plans in accordance with [1910.38] if all employees are to evacuate in the event of an emergency situation. OSHA's Permissible Exposure Limits (1910.1000) and substance-specific health standards would also apply unless the standard contains a specific exposure level that limits its application (i.e., some provisions of OSHA's health standards apply only if employees are exposed above a specified action limit).
OSHA's Hazard Communication standard (HCS) does not apply to hazardous waste although it does apply to commercial products that contain hazardous constituents. At transfer facilities, the requirements of the HCS apply to non-waste commercial chemicals. Employers must train employees in the hazards associated with exposure to these materials, maintain Material Safety Data Sheets for such products, and label containers of such products with appropriate hazard warnings.
Employers engaged in operations at transfer facilities are required to comply with OSHA's rule governing retention of DOT markings, placards, and labels, 29 CFR 1910.1201. In your April 17 letter you suggested that these DOT labels, markings, and placards should be recognized as an equivalent substitute for labeling mandated under paragraph (f) of OSHA's Hazard Communication standard. OSHA's labeling requirements differ from DOT labeling requirements. For instance, paragraph (f) requires that labels include the identity of the hazardous chemical(s) and the name and address of its manufacturer and requires that hazard warnings on labels identify target organ effects and other substance-specific physical and health hazard information. In general, DOT labels do not provide this specificity and, therefore, are not acceptable substitutes for container labeling in the workplace.
You ask how OSHA's response to the questions above would differ if the transfer facility handled only non-waste hazardous materials.
OSHA standards still apply to the extent that employees are potentially exposed to safety or health hazards present at the facility. For example, if employees are exposed to a potential hazard resulting from dermal or eye contact with a hazardous material, then OSHA's requirements for providing personal protective equipment would still apply. Similarly, if there a is fire hazard, OSHA's fire protection standard would apply. As discussed above, OSHA's HCS would apply to non-waste hazardous materials as would OSHA's Permissible Exposure Limits and substance-specific health standards. The application of other OSHA standards for general industry to a particular transfer facility must be evaluated on a case-by-case basis, depending on the nature of potential occupational hazards present at the facility.
Your final question concerns whether states are specifically authorized under the Occupational Safety and Health Act (OSH Act) to promulgate standards that are more stringent than Federal standards, or whether states are simply "allowed" to be more stringent. To what extent is OSHA authorized to preempt state-imposed OSHA requirements that deviate from Federal standards?
Section 18(b) of the OSH Act permits States to assume responsibility for promulgation and enforcement of occupational safety and health standards under a plan approved and subject to monitoring by Federal OSHA. State standards are required to be "at least as effective" as those promulgated Federally. The Act allows States to adopt standards which are more stringent than the Federal standards. Section 18(c)(2) of the Act, however, states that if a more stringent State standard is applicable to products distributed or used in interstate commerce, this standard must be justified by compelling local conditions and must not unduly burden interstate commerce.
We hope this information is helpful, and appreciate the opportunity to be of assistance.
Sincerely,
John B. Miles, Jr., Director
[Directorate of Enforcement Programs]

[Requester correspondence and an earlier OSHA letter reproduced on OSHA page; omitted here.]

[Corrected 4/18/03]