Application of HAZWOPER to universal-waste facilities

October 31, 1997
John F. Reagan, CHMM
Regulatory Affairs Manager
Mercury Refining Company, Inc.
[Recipient address omitted]
Dear Mr. Reagan:
This is in response to your inquiry of July 29, sent to Ms. Patricia K. Clark, Regional Administrator, New York Regional Office of the Occupational Safety and Health Administration (OSHA), concerning the application of 29 CFR 1910.120, Hazardous Waste Operations and Emergency Response (HAZWOPER). Please accept my apology for the delay in this reply.
Your letter contains two questions. The first question concerns the applicability of 29 CFR 1910.120(p), Certain Operations Conducted Under the Resource Conservation and Recovery Act of 1976 (RCRA), to employees who work at "Universal Waste Destination Facilities" or as "Universal Waste Handlers" as defined under the Environmental Protection Agency's (EPA) standards for Universal Waste Management, 40 CFR 273. Your second question concerns the safety and health requirements that apply to workers at universal waste facilities if HAZWOPER paragraph (p) does not apply.
The requirements of HAZWOPER paragraph (p) to operations involving hazardous waste that are conducted at treatment, storage, disposal (TSD) facilities regulated by 40 CFR Parts 264 and 265 pursuant to RCRA; or by agencies under agreement with U.S. Environmental Protection Agency (EPA) to implement RCRA regulations. Some of the operations and waste types regulated under 40 CFR 273 are subject to the requirements of 40 CFR 264 and 265, but most are not. For example, universal waste handlers, as defined in 40 CFR 260.10 and [273.9], are not subject to the requirements of 40 CFR 264 and 265, but facilities that meet the definition of a destination facility are subject to the requirements of 40 CFR 264 and 265 and are, therefore, also subject to the requirements of HAZWOPER paragraph (p). EPA must make the determination about the applicability of 40 CFR 264 and 265 to your operations.
If EPA determines that operations at your facility are regulated by 40 CFR parts 264 and 265, then the requirements of paragraph 1910.120(p) apply unless your company can demonstrate that the operations do not involve employee exposure or the reasonable possibility for employee exposure to safety and health hazards.
If EPA determines that your operations are not regulated by 40 CFR 264 and 265 and consequently not subject to the requirements of 29 CFR 1910.120(p), your employer is nevertheless required under Section 5(a)(1) of the Occupational Safety and Health Act (OSH Act) to provide a workplace free of recognized hazards that may cause employee death or serious injury. The specific OSHA regulations that apply to your workplace are determined by the nature of your operations and the hazards present. For assistance in evaluating your workplace and identifying applicable regulations, you may want to take advantage of the OSHA's consultation service. The consultation service is free and confidential, primarily targeted for smaller businesses, and designed to identify potential hazards and improve workplace health and safety management systems. The consultation service is described on OSHA's Internet web page at: http://www.osha.gov/oshprogs/consult.html. In New York, you can reach OSHA's Consultation Office at (518) 457-2238.
I hope that this information is helpful. If you need further clarification of this letter, please contact [the Office of Health Compliance Enforcement] at (202) 693-2190.
Sincerely,
John B. Miles, Jr., Director
[Directorate of Enforcement Programs]

[Requester letter reproduced on OSHA page; omitted here.]