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.

May 15, 1996

Mr. Thomas Blank
Communications Director
Association for Responsible
Thermal Treatment
1090 Vermont Avenue, N.W.
Washington, D.C. 20005

Dear Mr. Blank:

This is an updated response to your letter of December 23, 1994, concerning worker protection for employees incinerating hazardous waste on cement plant property. You raised concerns that the Mine Safety and Health Administration (MSHA) does not have the similar standards as the Occupational Safety and Health Administration (OSHA) for employees at hazardous waste facilities.

Senior management personnel from OSHA met with MSHA representatives to discuss worker safety and health issues at these hazardous waste incinerators under MSHA's jurisdiction. Both agencies, OSHA and MSHA, are committed to ensuring the safety and health of workers under their jurisdiction and both have their own approach to accomplishing that goal. We cannot agree with your characterization of a "loophole in the Department of Labor's regulatory jurisdiction."

OSHA has developed experience with inspection and evaluation of hazardous waste incinerators. The agency has realized that the multifaceted aspects of the hazardous waste incinerator work environment present a complex mix of worker safety issues. Based on this experience, OSHA will provide MSHA with technical support and inspection guidance ensuring the communication of lessons we have learned. Further, the agencies will continue to coordinate on hazardous waste incineration safety and health concerns, as necessary.

The consensus was that MSHA remains the agency best suited to provide worker safety and health protection at the incinerator facilities. However, OSHA and MSHA personnel will continue to work together, as needed, in the development of regulations which improve the working conditions of American workers.

Thank you for your interest in worker safety and health.


Ruth McCully, Director
Office of Health Compliance Assistance

December 23, 1994

Mr. John Miles, Director
Directorate of Compliance Programs
Occupational Safety and Health
United States Department of Labor
Room N3468
200 Constitution Avenue, NW
Washington, DC 20210

RE: Hazardous Waste Disposal Operations at Cement Kilns

Dear Mr. Miles:

On behalf of the Association For Responsible Thermal Treatment (ARTT), I want to bring to your attention a matter which affects the health, safety and welfare of cement kiln industry workers and the citizens who live nearby cement plants burning hazardous waste. We believe your timely action can help alleviate the possibility of one or more catastrophic accidents in communities across the country. According to official United States Environmental Protection Agency statistics over 1.6 million tons of hazardous waste were disposed in cement kilns in 1993. A wide variety of hazardous wastes are burned in 24 wet and dry process cement kilns located throughout the United States and Puerto Rico. These wastes include but are not limited to highly toxic and low flash point (< 100f) wastes containing chlorinated hydrocarbons and heavy metals such as lead, cadmium, chromium, beryllium and arsenic. Bulk storage capabilities for these types of hazardous materials can exceed 500,000 pounds at a single facility. A list of the cement-making facilities burning these wastes is attached for your information.

We understand that the cement making industry is regulated under the auspices of the Mine Safe and Health Administration (MSHA). However, a segment of the cement industry chooses to burn hazardous waste as a fuel substitute and, in fact, sixty percent of this nation's hazardous waste is disposed at these kilns, in this manner. We are concerned that workers and the communities surrounding these facilities may be at risk because MSHA does not have compliance standards in place to adequately manage these serious potential risks including the possibility of catastrophic accidents because we believe Occupational Safety and Health Act "OSHA" standards such as Hazard Communications (1910.1200), Hazardous Waste Operations and Emergency Response (HAZWOPER 1910.120) and Process Safety Management (1910.119) are examples of the standards which should be applicable to these facilities. These standards are strictly enforced at all other hazardous waste management facilities e.g. EPA permitted hazardous waste Treatment, Storage and Disposal facilities, under the auspices of OSHA. Yet, because of a loophole in the Department of Labor's regulatory jurisdiction, (although we believe ample regulatory authority exists) these cement producing companies are not mandated to comply with the stringent standards promulgated by OSHA to protect the work force and prevent catastrophic events.

We hereby request that the Department of Labor reiterate the regulatory requirements (OSHA VS MSHA) that must be met by the cement industry when they manage hazardous and toxic wastes at their facilities. We would like to request that this matter be given expeditious review because of its impact on worker and community safety. Finally, we would be happy to provide you and your staff with additiona1 information via correspondence or a formal presentation, at your request.

We appreciate your taking time to review our request and look forward to hearing from you. If you have any questions concerning this request, please do not hesitate to contact me at 202-842-3600.


Thomas Blank, Communications

enc. list of facilities burning hazardous waste

(For U.S Commercial Hazardous Waste Fueled Boilers and Industrial Furnaces Table, see printed copy)