OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

September 22, 1992

Mr. Thomas A. Wehrenberg
Environmental Engineer
Grow Group, Inc.
4000 Dupont Circle
Louisville, Kentucky 40207

Dear Mr. Wehrenberg:

This is in response to your inquiry of July 27, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response (HAZWOPER) regulation, 29 CFR 1910.120.

Your first question concerns clarification on the application of 29 CFR 1910.120 to manufacturing facilities where the potential exists for an emergency release of hazardous substances, and where, as hazardous waste generators, hazardous wastes are accumulated on-site for less than 90 days.

Manufacturing facilities which have the potential for an emergency to occur due to an uncontrolled release of hazardous substances or hazardous raw materials are covered by 29 CFR 1910.120 paragraph (q), which addresses emergency response to hazardous substance releases without regard to location.

Conditionally-exempt small quantity generators and generators who store hazardous wastes for less than 90 days are exempt from compliance with sections (p)(1) through (p)(7), and are thus covered only by section (p)(8), the emergency response program.

Employers who have hazardous waste storage areas in their facilities have the option of meeting the emergency response requirements of HAZWOPER by complying with either paragraph (p)(8) or paragraph (q) for those areas. The employer must meet the requirements of paragraph (q) for other areas of their facility which have potential for emergency releases of hazardous substances or hazardous raw materials.

Your second question inquires about exemption from employee training requirements under paragraph (p)(8) if the employer intends to evacuate employees in the event of an emergency. Paragraph (p)(8)(i), like paragraph (q)(1), provides an exemption from the emergency response requirements if the employer intends to evacuate all employees and provides an emergency action plan (i.e., an evacuation plan) in accordance with 29 CFR 1910.38(a).

However, the HAZWOPER standard states in paragraph (a)(2)(iii)(B) that "employers who are required by the EPA or state agency to have their employees engage in emergency response ... are covered by paragraph (p)(8) of this section, and cannot be exempted by (p)(8)(i) of this section."

It is our understanding that generators who are short term (less than 90 day) accumulators exempt from permit and interim status requirements under 40 CFR 262.34 are specifically required by EPA to have their employees participate in emergency procedures. Therefore, it would not be permissible for these generators to evacuate all of their employees in lieu of providing emergency response training. In contrast, conditionally-exempt small quantity generators exempt under 40 CFR 261.5 are not required by EPA to direct their employees to engage in emergency response activities, and thus would be allowed under HAZWOPER to evacuate in accordance with 29 CFR 1910.38(a) instead of training their employees to respond to emergencies. You may wish to contact EPA directly to verify this. The number for the RCRA Superfund Hotline is 1-(800)-424-9346.

Your third question asks which paragraph, (p) or (q), would apply to your facilities. Paragraph (q) would apply to the manufacturing facility as a whole, except for the hazardous waste storage area where the employer may choose to comply with either (p)(8) or (q). Please refer to our answer to your first question for a detailed response.

Finally, you asked us to specify employee training requirements. Training requirements are explained in detail in paragraph (q)(6). Paragraph (q)(6) describes five levels of tiered training requirements. All employees who work in an area where there is potential for an uncontrolled release must have sufficient awareness training to recognize that an emergency response situation exists and to initiate emergency response procedures by notifying the response team. You may find that you are able to integrate this awareness level training into the hazard communication program required by 29 CFR 1910.1200. Training requirements beyond first responder awareness level will depend on the roles you assign your employees in your emergency response plan. To determine the appropriate level of employee involvement and training for generators exempt under 40 CFR 262.34(a) and (d) it is necessary to refer to the EPA regulations, including 40 CFR 265 subparts C and D, and 40 CFR 262.34(d)(5), respectively, as well as the OSHA regulations cited above.

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


Patricia K. Clark, Director
Directorate of Compliance Programs