OSHA Instruction STP 2-1.154C June 10, 1991 Office of State Programs
Subject: Hazardous Waste Operations and Emergency Response; Final Rule and
A. Purpose. This instruction describes a Federal Program Change to the
Regions and State designees.
B. Scope. This instruction applies OSHA-wide.
1. OSHA Instruction STP 2-1.136A, June 8, 1987, Hazardous Waste
Operations and Emergency Response; Interim Final Rule and
2. OSHA Instruction STP 2-1.117, August 31, 1984, State
D. Cancellation. OSHA Instruction STP 2-1.154B, September 17, 1989,
Hazardous Waste Operations and Emergency Response; Final Rule and Corrections
E. Federal Program Change. This instruction describes a Federal Program
Change which affects State programs. Each Regional Administrator shall:
1. Ensure that this instruction is forwarded to each State
2. Provide a copy of the Federal Register notice to the State
designee upon request.
3. Explain the technical content of the Federal Register Notices
at 54 FR 9294, March 6, 1989, Hazardous Waste Operations and Emergency
Response, Final Rule; 55 FR 14072, April 13, 1990, Hazardous Waste Operations
and Emergency Response, Final Rule, Corrections; and 56 FR 15832, April 18,
1991, Hazardous Waste Operations and Emergency Response, Final Rule,
Corrections to the State designees upon request.
4. Ensure that each State designee acknowledges receipt of this
instruction in writing, within 30 days of notification State's plan to adopt
and implement the standard change, (b) the State's plan to develop an
alternative change, which is as effective, or (c) the reasons why no change
is necessary to maintain a program which is as effective as the Federal
5. Inform each State designee that the State must, within six
months of the date of each Federal Register publication, amend its final rule
or adopt the final rule and final rule corrections to ensure that the State
standard is at least as effective as the Final Rule for Hazardous Waste
Operations and Emergency Response in 29 CFR 1910.120, as corrected. The
State must submit a plan supplement to the Regional Administrator within 30
days of State promulgation.
6. Encourage each State designee to cover volunteer workers
engaged in hazardous waste operations, including emergency response, under
the State's hazardous waste operations permanent final rule for purposes of
national consistency. States that do not currently consider these volunteer
workers to be employees under State law should consider taking action to
extend coverage to volunteers.
7. Require each State designee to specify whether volunteer
workers engaged in hazardous waste operations, including emergency response,
are deemed employees for the purpose of coverage under the standard. State
designees who are uncertain about coverage under the standard should request
a legal opinion. The State shall submit a copy of the legal opinion or a
statement on whether volunteer workers are covered to the Regional
Administrator along with the standards package.
F. Interim Enforcement. Under 29 CFR 1953.23(a) and (b), State plan
States are provided up to six months from publication of the Federal standard
in the Federal Register to promulgate an identical or "at least as effective"
as standard. If a State, for whatever reason, is unable to promulgate a
standard in a timely manner (six months for a permanent standard, 30 days for
an emergency temporary standard) the State shall be expected to provide
assurance that it will enforce the substantive provisions of the new or
revised Federal standard through such means as use of its general duty clause
or equivalent, temporary adoption of an identical standard, or an
alternative, specified enforcement mechanism.
G. Different State Standards. Section 18(c)(2) of the Act requires that
State standards be "at least as effective" as the Federal and, when
applicable to products used or distributed in interstate commerce, the
standards must be required by compelling local conditions and not unduly
burden interstate commerce. In addition to the "at least as effective"
criterion, this "product clause test" will be applied to State standards with
substantively different requirements from the comparable Federal standard, as
described in STP 2-1.117. A State standard expanded in scope from the
Federal is considered to be a substantively different standard.
H. Effective Date. The final rule was effective on March 6, 1990. The
interim final rule remained in effect until then. A State's effective date
may be no later than the delayed Federal date or the date of the State
promulgation, whichever is later.
1. On March 6, 1989, OSHA issued a final rule which replaced its
interim standard for hazardous waste operations and emergency response found
in 29 CFR 1910.120. The final rule replaces the interim final rule required
by Congress in the Superfund Amendments and Reauthorization Act of 1986 (as
amended) (SARA) (Pub. L. 99-499, 29 U.S.C. 655 note). When the final rule
became effective March 6, 1990, the interim final rule promulgated December
19, 1986 (51 FR 45654) was revoked.
2. The rule regulates the safety and health of employees involved
in clean-up operations at uncontrolled hazardous waste sites cleaned up under
government mandate, voluntary clean-up operations at sites recognized by
Federal, State, local or other governmental bodies as uncontrolled hazardous
waste sites, in certain hazardous waste treatment, storage, and disposal
(TSD) operations conducted under the Resource Conservation and Recovery Act
of 1976 as amended (RCRA) [42 U.S.C. 6901 et seq.], and in any emergency
response to incidents involving hazardous substances as defined by OSHA in 29
3. State plan States are required to extend their coverage to all
State and local government employees involved in hazardous waste cleanup and
emergency response. Public sector employees involved in these operations in
other States are protected under Title I, section 126(f) of SARA. On June
23, 1989, as required by section 126(f), the Environmental Protection Agency
(EPA) issued a final rule (40 CFR 311) at 54 FR 26654 requiring the
application of OSHA's permanent final rule on hazardous waste operations to
employees of State and local governments in States without approved 18(b)
4. EPA has included volunteers within the scope of its rule
because it believes that significant benefits accrue both to the communities
that could be endangered by inadequately trained responders and to the
responders themselves. The EPA rule defines an employee as a compensated or
non-compensated worker who is controlled directly by a State or local
government, as contrasted to an independent contractor. EPA's rule is
effective March 6, 1990 for emergency response operations, but unlike OSHA's
final rule, is effective September 21, 1989 for other hazardous waste
5. State plan States are encouraged to cover volunteer workers
engaged in hazardous waste operations, including emergency response, because
of EPA's coverage of these workers in non-State plan States. State plan
State coverage should include volunteer workers in the private sector as well
as the public sector if emergency responders in the State are organized as
private entities or corporations.
6. There are situations where these volunteer workers receive pay
for their time spent on-the-job, receive other types of remuneration, and/or
are covered under workers' compensation provisions. Such factors as these
help determine whether a volunteer is an employee. States that do not
currently consider volunteer workers engaged in hazardous waste operations or
emergency response to be employees under State law should consider taking
action to further extend coverage to avoid non-protection of this group of
workers only in State plan States.
7. Under the amended OSHA standard, employee protection is
provided during the initial site characterization and analysis, monitoring
activities, materials handling activities, training, and emergency
8. On April 13, 1990, OSHA issued corrections to the preamble and
to the final rule on Hazardous Waste Operations and Emergency Response, 29
CFR 1910.120, as amended effective March 6, 1990.
9. As published, the preamble and standard contain typographical
errors, incorrect citations and certain ambiguities which may prove to be
misleading and are in need of clarification. The areas clarified by this
a. The definition of "hazardous substance" by directly
including language, rather than incorporating it by reference;
b. OSHA's intent that medical surveillance be provided to both
hazardous waste operation employees and emergency response
c. The exception subparagraph regarding treatment, storage and
disposal (TSD) operation;
d. Coverage of certain excepted employers;
e. The term "workplace" corrected to "danger area" in several
f. Some information added to the non-mandatory appendices.
10. On April 18, 1991, OSHA issued two additional corrections to
the final standard, 29 CFR 1910.120, as amended effective April 18,
11. As originally published, the standard contained two additional
areas that may be misleading that have come to OSHA's attention and are in
need of clarification. The areas clarified by this corrections
a. The definition of "uncontrolled hazardous waste site";
b. The definition of "equivalent training."
12. Under 29 CFR 1953.23(a) and (b), States are provided up to six
months from publication in the Federal Register for adoption of parallel
State standards and amendments.
Gerard F. Scannell Assistant Secretary
DISTRIBUTION: National and Regional Offices State Designees 18(b) State
Monitors OSHA Training Institute
*U.S. Government Printing Office: 1991- 282-118/20066