Daily disposal of combustible waste and EPA hazardous-waste rules

May 23, 2000

Ms. Diana M. Jagiella

Howard and Howard Attorneys

[Recipient address omitted]

Dear Ms. Jagiella:

Thank you for your letter of October 4, 1999. You had questions regarding the disposal of combustible wastes as referenced in 29 CFR 1910.106(e)(9)(iii) and 40 CFR 262.34(c)(1). Your questions and our replies are provided below. We apologize for the delay in our response.

Question 1: Has OSHA considered whether the daily disposal requirement is pre-empted under 4(b)(1) of the Occupational Safety and Health Act by EPA's waste storage and disposal regulations which allow satellite accumulation?

Reply: Both sets of regulations appear to be directed at similar hazards, which normally would result in OSHA's requirements being preempted under 4(b)(1). However, the Environmental Protection Agency (EPA) regulations on solid waste are issued under the Resource Conservation and Recovery Act (RCRA). RCRA, among other things, contains a provision [42 U.S.C. 6971(f)] requiring the EPA to furnish OSHA and the National Institute of Occupational Safety and Health (NIOSH) with lists of hazardous waste sites, reports of employee injuries, and other information "to assist [OSHA and NIOSH] in carrying out their duties under the Occupational Safety and Health Act of 1970." Although to date there have been no Review Commission or court decisions construing this provision, Section 6971 on its face strongly indicates that Congress did not intend RCRA to preempt OSHA, and instead intended these laws to be concurrently administered.

Question 2: What constitutes daily disposal under §1910.106(e)(9)(iii)?

Reply: You state in your letter that OSHA regulation 29 CFR 1910.106(e)(9)(iii), which requires daily disposal of combustible waste material and residues, appears to conflict with EPA regulation 40 CFR 262.34(c)(1), which permits a generator of hazardous waste to store as much as 55 gallons of waste at or near the point of generation. The OSHA standard in question does not specifically require combustible waste to be transferred to its ultimate destination on a daily basis, only that combustibles be "disposed of daily" and that this disposal be in "covered metal receptacles." Assuming the 55-gallon drum mentioned in your letter is equipped with a metal cover, it would be suitable for daily disposal of combustible waste such as wipe rags. 29 CFR 1910.106 allows daily disposal in such a container, at or near the point where the waste is generated, as contemplated by EPA requirements which you have summarized.

Question 3: How is the daily disposal requirement satisfied in the case of an employee who works in the principle waste storage area where combustible and hazardous waste is stored for up to 90 days?

Reply: Based on the information you have provided, it is difficult to know precisely the sort of employee exposure at issue here, and consequently what standard to apply. Where up to 55 gallons of hazardous waste is being stored in approved containers in the manner specified in 1910.106, however, an employee will presumably be protected if the requirements of 29 CFR 1910.106 are followed.

Please also note that without knowing the identity of your client, or the state in which their business is being conducted, we are unable to ascertain whether your client is subject to Federal OSHA requirements, or is in a state-plan jurisdiction. A listing of the state plans is attached for your convenience. [The attachment is not reproduced on OSHA’s page.]

Question 4: What are combustible waste materials?

Reply: Please note that there is no comprehensive definition of the term "combustible waste materials." However, giving that term its ordinary meaning, the definition would include for example, combustible liquids, solids, rags or other combustible soaked waste materials that can be ignited and will sustain combustion. Of course, this list is not comprehensive; other waste materials may also be considered "combustible waste materials."

Question 5: Has OSHA issued variances from the daily disposal requirements? If so, under what circumstances?

Reply: After an extensive search, OSHA could not locate any variances issued excepting any employer from the daily disposal requirements. Procedures for variances including desirable procedural regulations for variances are found in §1905.11. You may apply for a variance by contacting [the Directorate of Science, Technology, and Medicine at:

[Directorate of Science, Technology, and Medicine

USDOL/OSHA

Room N3653, 200 Constitution Ave., N.W.

Washington, DC 20210

Phone: (202) 693-2300]

Thank you for your interest in occupational safety and health. We hope you find this information helpful. Please be aware that OSHA's enforcement guidance is subject to periodic review and clarification, amplification, or correction. Such guidance could also be affected by subsequent rulemaking. In the future, should you wish to verify that guidance provided herein remains current, you may consult OSHA's website at http://www.osha.gov. If you have further questions, please feel free to contact the [Office of General Industry Enforcement] at 202-693-1850.

Sincerely,

Richard E. Fairfax, Director

[Directorate of Enforcement Programs]

[Corrected 6/2/2005]