Regulations (Preambles to Final Rules) - Table of Contents|
| Record Type:||Hazardous Waste Operations and Emergency Response (HAZWOPER)|
| Title:||Section 2 - II. Summary and Explanation of the Standard|
II. Summary and Explanation of the Standard
Paragraph (a) - Scope, Application, and Definitions
1. Scope. OSHA proposed to define the scope of this final rule in paragraphs (a)(1) and (a)(2). "Scope" defines the specific worker populations to be covered by this rule.
The scope of this rulemaking has been an issue during the development and promulgation of the final rule. OSHA requested specific comment on whether the proposed rule was appropriate.
Eastman Kodak's comment (10-36) states, "The preamble of the proposed standard at page 29622 requested `specific comment on whether (OSHA's) interpretation of scope is too broad or too narrow.' The scope of applicability of the standard, especially with regard to ongoing operations at hazardous waste management facilities regulated under RCRA and/or corresponding state programs, appears to be appropriate."
While the language of the final rule is somewhat different from the language of the proposed rule, the four major areas of scope remain essentially the same. These four areas of scope include (1) clean-up operations at uncontrolled hazardous waste disposal sites that have been identified for clean-up by a governmental health or environmental agency, (2) routine operations at hazardous waste treatment, storage and disposal facilities or those portions of any facility regulated by 40 CFR Parts 264 and 265, (3) emergency response operations at sites where hazardous substances have been or may be released, and (4) corrective actions at RCRA sites. In addition OSHA has clarified that the agency intends to cover voluntary clean-ups at government identified sites.
OSHA's proposal addressed the three specific populations of workers at the above operations. First, it was proposed to regulate those operations where employees are engaged in the clean-up of uncontrolled hazardous waste sites. These operations include those hazardous substance response operations under the Comprehensive Environmental Response. Compensation, and Liability Act of 1980 as amended (CERCLA), including initial investigations at CERCLA sites before the presence or absence of hazardous substances has been ascertained, those major corrective actions taken in clean-up operations under the Resource Conservation and Recovery Act of 1976 as amended (RCRA), and those hazardous waste operations at sites that have been designated for clean-up by state or local governmental authorities.
The second worker population proposed to be covered included those employees engaged in operations involving hazardous waste treatment, storage, and disposal (TSD) facilities regulated under 40 CFR Parts 264 and 265 pursuant to RCRA, except for small quantity generators and those employers with less than 90 days accumulation of hazardous wastes as defined in 40 CFR 262.34.
The third and final worker population proposed to be covered were those employees engaged in emergency response operations for releases or substantial threats of releases of hazardous substances, and post-emergency response operations to such releases at all workplaces.
In paragraph (a)(1(i) of the final rule OSHA is regulating all government mandated clean-up operations at uncontrolled hazardous waste disposal sights. These operations were included in paragraphs (a)(1)(i) and (a)(1)(iii) of the proposal. For the purposes of this final rule, "Superfund" and other uncontrolled hazardous waste disposal sites include hazardous substance response operations at sites regulated under 40 CFR Part 300, Subpart F; RCRA closure activities conducted under 40 CFR Part 265, Subpart G; and those similar uncontrolled hazardous waste disposal sites that have been designated for clean-up by Federal, state or local governments.
OSHA intends and the change in language clarifies that all government mandated clean-ups are covered. These include not only sites on the various "Superfund" lists, but also all other government mandated clean-ups as well. The changed language makes clear that such clean-ups are covered whether or not they are financed by the government. The language further clarifies that clean-ups mandated by any level of government are covered.
In paragraph (a)(1)(ii) of the final rule, OSHA is regulating corrective actions at RCRA facilities. This paragraph adopts the language proposed in paragraph (a)(1)(ii) of the proposal with one change. The term `major' has been deleted as a modifier of "corrective action." Several commenters requested clarification of the term "major corrective action." International Technologies, a major hazardous waste clean-up contractor, requested in their comment (10-44), "Please clarify `major' corrective actions conducted under RCRA. What distinguishes `major' corrective actions from other corrective actions?" The State of Indiana commented (10-23), "There is no definition of what constitutes a `major corrective action' under RCRA." In addition, the term "major" is not used in EPA terminology.
"Corrective action" is a term unique to RCRA and has been defined for use with RCRA. OSHA's addition of the modifier "major" raised many definitional questions. Therefore OSHA, in the final rule, is deleting the word "major" to be consistent with EPA terminology and eliminate confusion. Rather than define "major corrective action." OSHA is amending the language of the proposal to include a phrase describing the level of corrective action that is to be regulated in the scope of this rule. OSHA will be regulating those corrective actions that potentially expose employees to a "safety or health hazard." OSHA is not concerned with those corrective actions that are intended to abate environmental risks without exposing employees to safety or health hazards. The phrase "safety or health hazard" in the introductory language is the phrase that OSHA has used to differentiate the type of releases that this standard regulates versus those release that may pose only environmental threats rather than safety or health threats to employees.
OSHA has decided to add a new paragraph (a)(1)(iii) to the final rule that would include within the scope of this rule those voluntary clean-up operations conducted at sites recognized by governmental bodies as uncontrolled hazardous waste disposal sites. All other voluntary clean-ups would be exempt from 29 CFR 1910.120. OSHA does not have the statutory; responsibility to identify hazardous waste sites. It will leave to agencies with that authority the responsibility to identify those sites. Those voluntary sites that are not recognized by the government as uncontrolled hazardous waste disposal sites would be exempt from 29 CFR 1910.120; however, they would still be regulated by the other OSHA general industry or construction industry standards applicable to the work being performed at the site.
OSHA did not propose to cover voluntary clean-ups of hazardous substances in its proposed rule. Many comments suggested this, however, the Agency has concluded that individuals involved in voluntary clean-ups may be exposed to the same safety and health risks at voluntary sites identified by the government whether or not the government is compelling action. However, it would be difficult to know whether or not sites not identified by the government are hazardous waste sites without a structured evaluation system for such potential sites.
OSHA raised an issue on the scope in the preamble to the proposal that generated several comments. On page 29622 of the preamble to the proposal, OSHA listed several TSD facilities that would not be covered by the final rule. The exemptions were taken from a list published by the U.S. EPA that are not directly regulated by U.S. EPA. However, the proposed standard's language did not grant these exemption. Comments did not support the exemptions and OSHA did not believe that they were appropriate.
The particular exemption that generated the most comment exempted those TSD facilities which operate under a state hazardous waste program pursuant to RCRA section 3006. These state hazardous waste programs are recognized by the U.S. EPA in a similar fashion to the OSHA state plan states under section 18 of the OSH Act. A number of commenters, such as the State of Indiana (10-23), objected to this type of exemption by OSHA as not being appropriate. They stated OSHA jurisdiction should not be impacted by U.S. EPA state agreement, but only those state agreements provided in the OSH Act. OSHA agrees with these commenters and therefore OSHA jurisdiction will be delegated to only those states which OSHA has formal agreements with under the OSH Act. However, it should be noted that the U.S. EPA jurisdictions under SARA section 126 may make use of their state agreements.
Other commenters, EXXON (10-33) and CONOCO (10-32), suggested that OSHA incorporate the exemptions on page 29622 as a separate paragraph in the final rule.
Typical TSD facilities range from the hazardous waste generator with a hazardous waste storage area to the large, complex hazardous waste disposal facility. EPA estimates that approximately 80 percent of all generators also treat, store, or dispose of their hazardous wastes and thereby qualify as a TSD facility. Over 30,000 TSD facilities notified EPA in 1980 that they would qualify for regulation under section 3004 of RCRA.
OSHA continues to regulate RCRA TSC facilities in paragraph (a)(1)(iv) of the final rule as it was proposed in the regulatory language of the proposal. The list of exemptions on page 29622 will not be incorporated into the final rule. OSHA believes that such a list would create too great a gap in the protection of workers. For example, with respect to workers at TSD facilities operating under a state hazardous waste program pursuant to RCRA section 3006, OSHA agrees with a comment made by the State of Indiana (10-23) that it is possible that the workers in those 42 authorized states identified by Indiana could be without the protections mandated by Congress.
In paragraph (a)(1)(v) OSHA would continue to regulate emergency response operations for releases of, or substantial threats of releases of, hazardous substances without regard to the location of the operation as proposed in paragraph (a)(2) of the proposal. Such emergency response operations are not limited to those responses at uncontrolled hazardous waste disposal sites or RCRA TSD facilities. With respect to transportation incidents, responders to the scene are covered but operators (i.e., truck drivers and train crews) are not covered unless they become actively involved in the response action.
OSHA is making major revisions to proposed paragraph (1). These revisions have been made in response to comments concerning OSHA's involvement in regulating emergency response at every site involving hazardous substance release or potential release. Some of the comments were in favor of OSHA's continued involvement with emergency response (i.e., American Chemical Society, 10-44) and others were opposed to continued involvement (i.e., ECOLAB, 10-64). Others supported OSHA involvement in emergency response activities at uncontrolled hazardous waste sites and certain RCRA facilities but opposed the agency's involvement with non-waste clean-up or non-RCRA facilities (i.e., The Chlorine Institute, 10-24). Yet others called for two separate areas in the rule; one for hazardous waste operations, and one for emergency response (i.e., Allied Signal, 10-38). Others opposed coverage of emergency response to petroleum spills (CONOCO, Ex. 10-32).
OSHA after reviewing all the comments, continues to believe that it is the clear intent of Congress that any employees participating in an emergency response to the release or potential for release of hazardous substance be covered by this rulemaking. This Congressional intent applies to all such emergency responses including those both off and on hazardous waste sites.
The statutory language indicates that all emergency responses where the threat of hazardous substance spills exist are to be covered.
Section 126(b)(11) of SARA specifically provides that "requirements for emergency response" are to be included and is not limited to hazardous waste sites.
- In addition, section 126(d)(4) states:
Training of Emergency response Personnel, -- Such training standards shall set forth requirements for the training of workers who are responsible for responding to "hazardous emergency situations" who may be exposed to toxic substances in carrying out their responsibilities. (emphasis added)
This is very broad language that is not limited to hazardous waste operations or hazardous wastes or substances on CERCLA or RCRA sites. It covers all "hazardous emergency situations" for all "toxic substances" which would clearly cover all types of emergency response for chemical spills including chemical tanker spills and the like. It should also be noted that once a tank truck spills a toxic chemical in an emergency it creates a hazardous waste in the very real sense.
Further, the grant provision of the statute clearly indicates that grants can be made to train workers for emergency response at any location, not just on hazardous waste sites.
- Section 126(g)(1) states:
Grant Purposes. -- Grants for the training and education of workers who are or may be engaged in activities related to hazardous waste removal or containment or "emergency response" may be under this section. (emphasis added)
Other statutory sections also indicate the legislative intent to cover all emergency responses where hazardous chemical spills are possible.
In addition to the statutory language, the documents cited by Congress as the minimum guides for OSHA to use in developing this rule refer to all emergency responses. The EPA manual and the OSHA construction standards referred to in the statute require preparations and planning for emergencies generally, not just for hazardous waste site emergencies.
In addition the legislative history indicates that Congress intended Section 126 to cover emergency response to all situations where spills of hazardous chemicals were a possibility and not just emergency response on hazardous waste sites. For example, Senator Hatch stated:
This amendment will address the concerns that have been raised that the Department of Labor issue standards for employees engaged in hazardous waste operations, as well as emergency response. (9/24/88 Cong. Rec. pg. S-12031)
As discussed elsewhere in this preamble OSHA believes there is a clear need for training and other provisions to protect workers engaged in all emergency responses where there is the possibility of hazardous substance spills. This is needed whether or not the emergency occurs on a hazardous waste site. The agency believes that the hazards are the same in these cases.
Finally, other parts of SARA, in particular Title III, address emergency response actions and planning by communities and local government employers outside of the hazardous waste clean-up operation. The Congressional concerns on toxic emergencies also discussed in "Task Force on Toxic Emergencies," Environmental and Energy Study Conference Special Report, September 18, 1986. This report stresses the need for training of emergency response personnel as well as emergency response planning and related areas. This was part of the legislative research which led to the passage of section 126 of SARA.
OSHA's final rule rulemaking divides emergency response into three separate areas. First, OSHA is regulating emergency response by employees at uncontrolled hazardous waste sites in paragraph (l) of the final rule. This paragraph contains the requirements that were in paragraphs (l)(1) and (l)(2) of the proposal and the interim rule. These regulations applied to the "on-site" operations of the interim rule. Second, OSHA is regulating emergency response at RCRA facilities in paragraph (p)(8). This paragraph contains the requirements that were in paragraphs (l)(1) and (l)(3) of the proposal and interim rule. These regulations applied to the "off-site" operations of the interim rule. Third, OSHA is regulating emergency response to hazardous substance releases by employees not covered by paragraphs (l) and (p)(8) in paragraph (q). Paragraph (q) contains the requirements proposed in paragraphs (l)(1), (l)(3), (l)(4), and (l)(5) of the proposal and interim rule. These regulations were directed toward emergency response teams, industrial fire brigades, and hazardous materials teams.
In its proposal OSHA covered emergency response to releases of hazardous substances. The agency did not propose to limit emergency response to uncontrolled hazardous waste sites but decided instead to propose to cover all emergency response whether it was done at uncontrolled hazardous waste sites or anywhere else, including petrochemical and similar manufacturing facilities.
OSHA's decision to propose coverage of all emergency response was based upon the high risk associated with emergency response by untrained and unprotected employees and the need for proper training and equipment to be provided for emergency response to hazardous substance releases. In testimony during the public hearings on this rulemaking, Mr. William Bunner stated, "The highest-risk incidents are the persons who respond to spills and accidental releases of hazardous chemicals; and those personnel, particularly public first responders, have had the least protection in terms of chemical emergency response safety and health plans, training and equipment." (Tr. pgs. 24-25). Mr. Bunner goes on to state, "The real strength of 29 CFR 1910.120 is that it not only provides for a more consistent and thorough approach to protecting workers involved in hazardous waste operations, but also for personnel who face extremely high risk to life and health that's associated with chemical emergency response." (Tr. pg. 25).
Another witness, Mr. Ray Simpson, one of OSHA's expert witnesses on fire suppression, fire inspection, and training, testified, "I like to support any concept that advocates properly equipping, training, and supporting emergency responders. When I talk about an emergency responder, I'm not talking simply about fire fighters although that's basically my expertise. I'm talking about the emergency medical technicians, the people who handle the victims. I'm talking about the police officer who, many times, is first on the scene before any of us get there: the many who really must make, in some situations, the initial decision about what's going to happen. I have learned over these many years that the two greatest dangers that face us as emergency responders are ignorance or non-awareness of what we're facing and the lack of plan or any procedure that will take us to the end that we're trying to accomplish (Tr. pgs. 89-90).
Margaret Seminario, Associate Director, Department of Occupational Safety, Health and Social Security of the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO) also testified at OSHA's public hearings on the issue of emergency response. Ms. Seminario discussed the participation of the AFL-CIO in hearings before the House Subcommittee on Employment and Housing of the Government Operations Committee and the Safety and Health Subcommittee of Education and Labor. Ms. Seminario stated, "Those hearings dealt with the issues of the problems for hazardous waste workers in both Superfund operations and RCRA operations, but they also got into an issue that had really not been explored very fully: the problems facing emergency response workers, particularly for the AFL-CIO firefighters. The members of our firefighter's union were the ones who were called in when there were spills, leaks and other accidental releases. These weren't hazardous waste sites, per se, at the time. They became hazardous waste sites and were defined as such after the fact; but they were routinely called in without information, without adequate protection to deal with these problems. That was an issue, as I said that was fully explored in those hearings and it was the reason that, when we moved from those hearings into a legislative opportunity in Superfund, we looked beyond the language that we had come up with in the 1980 law which dealt only with hazardous waste and expanded it to include emergency response operations." (Tr. pgs. 345-346) Further, OSHA still believes that Congress intended this rule to have such coverage. This is indicated by the language of SARA as well as the legislative history.
As OSHA stated in the preamble to the proposed rule, "The language of section 126(a) mandates safety and health standards for the protection of employees engaged "in hazardous waste operations." The term "hazardous waste operation" is not limited in the legislation and a response to spills of hazardous substances on the highway or from a railway tank car in order to control and contain the hazardous substance (which has become a waste once it is not contained) is in the common sense meaning a hazardous waste operation.
"This interpretation is reinforced by the fact that SARA is a free-standing statutory provision and not an amendment to CERCLA. The clear Congressional intent then is to provide protection to employees whenever they deal with hazardous wastes."
In addition section 126(d)(4) discussing training or emergency response personnel utilizes the very broad term "hazardous emergency situation." Section 126(g)(1) indicates that training grants may be given independently for emergency response training separate from hazardous waste removal training. Section 126(b)(11) also indicates emergency response is an independent concept separate from hazardous waste removal operation. For those and other reasons OSHA believes section 126 is intended to cover emergency response to hazardous substances whether on an uncontrolled hazardous waste disposal site, a RCRA site or elsewhere. However, the clarified language in the scope sections makes it clear the only employers whose employees have the reasonable possibility of engaging in emergency response are covered. Emergency response employees who respond or will respond to incidents involving hazardous substances are covered by this final rule to the extent that they are exposed to hazardous substances. State and local government employees in states that have agreements with OSHA under section 18 of the OSH Act must be regulated by state regulations at least as effective as these to protect public employees. Those state regulations must be issued within six months of the date of promulgation of this final rule.
However, some commenters have commented that OSHA has exceeded the intent of Congress with the scope of the proposed rule. Many of these commenters stated that OSHA's coverage of emergency response at sites other than specific cleanup or TSD facilities was too broad and unwarranted. AMOCO's comment (10-26) is representative of some of the comments made on this issue. In their comment AMOCO stated that, "Section 126(a) of SARA is the directive to OSHA to promulgate standards `for the health and safety protection of employees engaged in hazardous waste operations.' There is no reference whatsoever in this directive to promulgate standard (sic) with respect to emergency response activities outside of hazardous waste operations." However, other comments received from the petrochemical industry support, on a limited basis, OSHA's decision to cover emergency response with the scope of the standard. CONOCO's comment (10-32) is representative of this point of view. CONOCO states, "Conoco's primary concern with the proposed rule centers on the extremely broad scope of employee coverage under this standard and compared to Congress' intent to cover `hazardous waste operations and emergency response.' We believe that Congress intended section 126 of SARA to cover employees engaged in hazardous waste operations and emergency response to these operations on a full-time basis." While this comment would seem to support OSHA's coverage of employees engaged in emergency response, that support is limited to those employees engaged in response on a full-time basis at hazardous waste operations.
Based upon public testimony and written comments received into the record of this rulemaking, OSHA has concluded, that because of the high risk associated with emergency response to the releases of hazardous substances and the number of these incidents occurring, that coverage of workers conducting such emergency response activities is both appropriate and necessary.
OSHA believes that the scope of this final rule carries out the intent of Congress and is consistent with good occupational safety and health policy. Employees performing clean-up operations under CERCLA, RCRA (corrective actions) and state or local government designated sites -- generally those employees likely to have the highest exposures to hazardous substances over a longer period -- would be covered by virtually all the provisions of this final rule. Employees exposed to hazardous wastes in routine RCRA hazardous waste operations, who are regularly exposed to hazardous wastes but in a more controlled environment, would be covered by the more limited requirements of paragraphs (p) and (q). Emergency response workers, exposed usually for short periods to often unknown but possibly high levels of hazardous substances, would be regulated by paragraph (q).
2. Application. OSHA proposed to define the application of this final rule in paragraph (a)(3) of OSHA's Notice of Proposed Rulemaking (NPRM) published on August 10, 1987 (52 FR 29620) "Applicator" establishes which regulations within this rule apply to the specific worker populations to be protected by this rule.
In paragraph (a)(3)(i) OSHA proposed that the employer would have to comply with the standards in 29 CFR Parts 1910 and 1926, as well as with the requirements specifically covered in the proposed rule. If there were a conflict or overlap between standards, it was proposed that the more protective provisions would apply. Since this rule does not cover all of the hazards present at hazardous waste operations, other OSHA standards in Parts 1910 and 1926 should apply to ensure employee safety and health. Other OSHA standards regulate many other hazards, and OSHA wants to make clear that the other standards continue to apply. Also, OSHA proposed that hazardous waste operators who are not within the scope of this standard should continue to be regulated by the Parts 1910 and 1926 standards. OSHA is keeping those provisions in the final rule for the reasons stated with minor editorial changes for clarification.
In paragraph (a)(3)(ii), OSHA proposed that all paragraphs of section 1910.120 except paragraph (o) would apply to hazardous wastes operations at CERCLA sites, at major corrective action at RCRA sites, and at sites designated for clean-up by state and local governments. Paragraph (o) of the proposal addressed certain operations conducted under the Resource Conservation and Recovery Act of 1976 (RCRA).
OSHA recognizes that the hazards presented to employees engaged in clean-up operations involving uncontrolled hazardous wastes are far greater than those presented to employees engaged in the routine, day-to-day operations of an EPA licensed TSD facility.
OSHA has made two editorial changes in its proposed language in paragraph (a)(3)(ii) without changing the intent of the paragraph. First, rather than referring to each of the types of sites individually. OSHA is making reference to the scope paragraphs (a)(1)(i) through (a)(1)(iii) to identify the sites that this application paragraph addresses. The sites to be addressed remain the same as proposed. Second, because the codification of paragraphs has changed in this final rule due to changes made to the proposal, Paragraph (p) of 1910.120 rather than paragraph (o) will apply specifically to hazardous waste operations at RCRA sites which are involved in treatment, storage, disposal and handling of hazardous waste. The new requirements of paragraph (p) are discussed later in the preamble.
In paragraph (a)(3)(iii), OSHA proposed that the requirements set forth in paragraph (o) of section 1910.120 would apply specifically to the hazardous waste operations at RCRA sites which are involved in treatment, storage, disposal and handling of hazardous waste. The proposal contained a limited exclusion from these regulations for certain small quantity generators and less than 90-day accumulators, such as dry cleaners and gas stations, which come within the purview of RCRA, but are not hazardous waste operations in the normal meaning of the term. The exclusion was available to these operations depending upon the employer's decision to provide or not provide emergency response by employees to releases of, or substantial threats of releases of, hazardous substances.
OSHA proposed to exempt small quantity generators and less than 90 day accumulators from all parts of the rule if they did not provide emergency response by their employees to releases of, or substantial threats of releases of, hazardous substances. OSHA further proposed to exempt small quantity generators and less than 90 day accumulators from all parts of the rule except paragraph (l) if they did provide emergency response by their employees to releases of, or substantial threats of releases of, hazardous substances.
OSHA recognized that many small quantity generators are smaller businesses with limited employee populations. Since most of these establishments rely on the emergency response services of local fire and rescue departments. OSHA is providing a complete exemption from these proposed standards when the employer can show that employees are not required or encouraged to engage in emergency response, but are directed in the case of emergency spills of hazardous substances to maintain a safe distance and to call local fire or other emergency response organizations. In cases where such establishments do provide emergency response by employees, and thereby expose employees to hazardous substances, OSHA proposed that such employers meet the emergency response requirements of paragraph (l) of this proposed rule. OSHA concludes its proposal is supported by the record.
Without these exemptions, these regulations could be interpreted to cover gas stations, dry cleaners, and other small businesses which temporarily store small quantities of a hazardous waste. These businesses are not engaged in hazardous waste operations as that term is conceived of normally. In addition, it is not believed that Congress intended such businesses to be covered. They do not present the relatively high exposure to a number of hazardous health risks to employees that hazardous waste sites typically do.
In paragraph (a)(3)(iv) OSHA proposed that the requirements set forth in paragraph (l) of this section would specifically apply to the work conducted by emergency response personnel when they respond to hazardous substance emergency incidents. Emergency response personnel include firefighters, EMS personnel, and police as well as other employees.
The regulation of employees providing emergency response has been discussed under the "Scope" portion of this preamble discussion. Further discussion of OSHA's changes to the emergency response portion of this rulemaking is contained in the discussion of paragraph (l) of the proposal.
OSHA also requested comment on what other operations should be and are intended by Congress to be covered, and whether specific operations should be excluded because of low exposures. For example, municipal or other sanitary landfills that handle domestic wastes would not normally be regulated by this rule. Similarly, waste paper or scrap metal operations would not normally be regulated because of the type of wastes they handle. However, both types of operations would be regulated if they have clean-ups for or handle hazardous wastes meeting the scope provisions of the standard.
Also, employees at hazardous waste disposal sites who will not be exposed to, or do not have the potential to be exposed to, hazardous substances are not covered by this rule. The provisions of these regulations are designed to protect employees who have or may have exposures, and would not be needed for those employees who do not.
Operations with no exposure to hazardous substances, i.e., road building for site access, construction of or the setting up of temporary facilities in the clean zone, or the closure of a RCRA site involving the building of a clay cap over hazardous wastes, are considered to be construction activities covered by the standards in 29 CFR Part 1926.
As a result of the comments received during the public comment phase of this rulemaking, OSHA has made some changes to the degree of regulation for emergency response workers. However, the scope of this standard continues to cover such workers and paragraph (a)(2)(iv) identifies the new paragraphs within the rule that reflect the changes and identifies the standards that apply to emergency response operations.
3. "Definitions." In paragraph (a)(4), "Definitions," OSHA proposed to identify and define the various terms used in this rulemaking that may cause confusion. However, the following new definitions have been added as a result of comments made in the record: "published exposure level," and "uncontrolled hazardous waste site". Except for the definition of "established exposure level" which has been amended to define "publish exposure level," no definitions have been removed from the proposal.
The term "established permissible exposure limit" was incorporated as part of the determination of whether medical surveillance was required. There were a number of comments on this definition.
One commenter, Four Seasons Industrial Services (10-5), believed that the definition should be broadened. Four Seasons stated, "The routes of chemical exposure are through inhalation, skin absorption, and ingestion. All of these have to be considered when dealing with permissible exposure limits. Your definition as written does not include ingestion." Other commenters were concerned that OSHA included the NIOSH Recommended Exposure Limits in the definition of PELs. The E.I. DuPont de Nemours, Co. (10-28) comments summarized many of those received against the NIOSH levels. DuPont stated, "NIOSH limits have not undergone public review and comment as have national consensus standards and regulatory exposure standards. Therefore, they should not be included in the definition of `established exposure limits'." CONOCO (10-32) agreed when they stated, "These NIOSH limits are not subject to peer review or public comment as are OSHA's PELs. We encourage OSHA to remove the references to these NIOSH limits. We strongly urge OSHA to "only" use PELs given in 29 CFR 1910, Subpart Z."
Dr. James Melius, Division of Environmental Health Assessment, State of New York Department of Health Medical Surveillance, and one of OSHA's expert witnesses in occupational medicine, stated in his testimony (Tr. pg. 115) that, "I think it's important that the OSHA standards be supplemented by information from NIOSH and ACGIH, both of which cover a larger number of chemicals or toxic substances and both of which include, or at least consider, more up to date information on the toxicity of these substances."
In addition, during the public hearings, OSHA, through its panel of staff members specifically asked Captain Richard A. Lemen, Director of the Division of Standards Development and Technology Transfer within NIOSH, about the peer review process of NIOSH RELs. Mr. Thomas Seymour of OSHA directed the following question to Captain Lemen (Tr. pg. 195).
[Mr. Seymour:] We have received some feedback in our record about the order of the hierarchy that we have used for permissible exposure limits. There have been statements made the the RELs are not peer-reviewed or developed. I wonder if you might describe to us how the RELs have been developed by the National Institute for Occupational Safety and Health.
- Captain Lemen's response (Tr. pgs. 195-197) to Mr. Seymour was:
Okay. In response to the peer review question, I would say that probably the RELs were more peer reviewed than most recommendations. The first process of developing an REL at National Institute for Occupational Safety and Health is to propose such a recommendation be developed to the Director of NIOSH through a position paper.
That is then reviewed by senior NIOSH staff. Once that approval is given, a criteria manager then develops the recommended exposure standard in the form of a criteria document.
Once the criteria document has gone through several layers of review within NIOSH, it is then sent out for external review. On the average, we usually send out to more than 40 experts in the field that document for their external comments.
We receive those comments back. We incorporate those comments where appropriate. We then submit the document through the same internal review within NIOSH. It goes through every division within the Institute and it finally winds up in the senior review staff at the directors' level at our headquarters in Atlanta.
A meeting is then held with the Director of NIOSH at which time the criteria manager and the senior scientists within the Institute (review) all of the reviewer -- external and internal reviewer - comments and a decision is made by the Director of NIOSH whether or not to publish a recommended exposure limit.
If the decision is to publish, then we do so and submit that criteria document to the Director of OSHA.
So it goes through a very extensive peer review process compared to, for example, an article submitted to peer-review journal which is written by a researcher and generally sent out to three to five individuals to review before it's placed in a peer review journal.
So the extensiveness of our review process, I think, is much greater than that for a peer-preview journal article.
In light of these comments OSHA has concluded that the NIOSH REL's have under gone the necessary peer review to be included in the standard's hierarchy of limits.
The term "established exposure levels" was defined in the proposal to indicate the levels which would trigger medical surveillance of the exposed employees. The term included not only OSHA established PELs, but also exposure limits suggested by NIOSH and ACGIH. After review of these and other comments, OSHA concludes that it is appropriate to go beyond the OSHA established PELs in triggering medical surveillance. First, medical surveillance is appropriate for workers exposed to toxic chemicals other than those covered by the PEL's. Second, because of the broadly-worded language in section 126(b)(3), which requires medical surveillance for workers engaged in hazardous waste operations "which would expose them to toxic substances." Some of these "toxic substances" are not included in the OSHA PELs. When OSHA completes its rulemaking on the air contamination proposal (PEL's project), there will be fewer toxic substances not covered by PEL's. But in light of Congressional language and the large number of hazardous chemicals present in an uncontrolled hazardous waste site, OSHA concludes that this definition is appropriate to protect employee safety and health.
The term "permissible exposure limits" was defined in the proposal as the inhalation or dermal permissible exposure limit specified in 29 CFR Part 1910, Subpart Z. As a result of the comments received in the record, OSHA has amended its definition that ignored the health limits specified in Subpart G, for "permissible exposure limits."
OSHA has amended the definition for "permissible exposure limits" to include a reference to Subpart G of Part 1910. It now includes both Subpart Z health hazards and those requirements in Subpart G of Part 1910.
First, OSHA has changed the term "established exposure levels" to the term "published exposure level" to reduce confusion. Second, the term "published exposure level" is defined as the exposure limits published in "NIOSH Recommendations for Occupational Health Standards" dated 1986, incorporated by reference, or if none is specified, the exposure limits published in the standards specified by the American Conference of Governmental Industrial Hygienists in their publication "Threshold Limit Values and Biological Exposure Indices for 1987-88" dated 1987, incorporated by reference. Third, the provisions of (f)(2) on medical surveillance have been changed to cover overexposures to both PEL's and, if none, then over-exposure to published exposure limits. OSHA concludes that with these changes the definitions are clear, comprehensive and carry out both statutory directives and appropriate medical criteria in determining whether medical surveillance is required. Some commenters stated a broader guide is necessary for respirator use and that is discussed under paragraph (g).
OSHA requested comment on the appropriateness of its definitions of hazardous waste, health hazard and hazardous substance and whether they were consistent with EPA and DOT practice. Several comments were received on these issues. One set of comments criticized OSHA's incorporation of petroleum and petroleum products in its definition of hazardous substances.
A typical comment was made by EXXON (10-33). In their comments EXXON presented the following discussion:
Perhaps the most fundamental misinterpretation contained in this rule is the inclusion of petroleum and petroleum products in the definition of hazardous substance. As discussed in Comment II.A.4.v, below at pages 11 to 14 (internal EXXON comment references), Congress, the Environmental Protection Agency (EPA), and the Department of Transportation (DOT) have uniformly recognized the inappropriateness of characterizing petroleum as a hazardous substance. There is no indication in SARA Section 126 that Congress intended to change the petroleum exclusion or to subject petroleum releases to emergency response regulation.
EXXON further stated:
It is EXXON's understanding that a situation is not an emergency response subject to the requirements of paragraph (1) unless there is a release of a "hazardous substance." Therefore it is essential that the definition of "hazardous substance" be accurate and correct.
The proposed definition of "hazardous substance" references the Department of Transportation's definition of "hazardous materials" under 49 CFR 171.8. By so doing, petroleum and petroleum products have been included as hazardous substances: and, related spills may be subject to the burdensome requirements for emergency response operations.
Congress, in the very CERCLA sections cited in the proposed definition of "hazardous substance" has recognized that petroleum and petroleum products are excluded from the federal definition of "hazardous substance." EPA regulations under CERCLA have incorporated this congressional directive. See 40 CFR Part 302 and discussion at 50 FR 13456, 13460 (April 4, 1985). DOT has specifically recognized this Federal petroleum exclusion and incorporated the exclusion in its definition of "hazardous substance". See 52 FR 24474 (July 1, 1987). As such the proposed OSHA definition is inconsistent with the CERCLA, EPA, and DOT definitions of "hazardous substance".
The proposed definition of "hazardous waste" includes the EPA RCRA definition of hazardous waste and the DOT definitions at 49 CFR 171.8. The cited DOT regulation defines both hazardous substances and hazardous wastes. As noted above, the DOT definition of hazardous substance at 49 CFR 171.8 should properly be incorporated in the proposed OSHA definition of hazardous substance. It is not a waste definition. Therefore, the proposed definition of hazardous waste should be limited to waste materials; and, the DOT definition of hazardous substance should be clearly excluded.
OSHA does not agree with these arguments. Section 126 of SARA is directed to protecting workers from the hazards of all hazardous waste spills. Petroleum products create significant health and safety hazards. Many comments supported OSHA's incorporation of petroleum and petroleum products.
During the questioning of Dr. Kenneth H. Chase, M.D., President of the Washington Occupational Health Associates, Inc., Mr. Chappell Pierce of the OSHA panel asked Dr. Chase the following question (Tr. pg. 551): "Do you feel that medical monitoring for these types of products (petroleum products) is appropriate?"
Dr. Chase responded. "Petroleum products is just too broad a term for me to answer that in a general way. Certain petroleum derivatives are more toxic than others. Some have acute toxicity; others subacute toxicity; and others, the concern is more about chronic toxicity that is most difficult to detect."
During the hearings, OSHA asked many of the individuals who testified if petroleum and petroleum products should be included in the definition of hazardous substances.
Representative of the responses made to this question was the testimony of the Prince Georges County Fire Department; the International Association of Fire Fighters, AFL-CIO; NIOSH; and the Seattle, Washington Fire Department.
Mr. Gregory Noll, the Hazardous Materials Coordinator for the Prince George's County Maryland Fire Department, testified on the issue (Tr. pg. 448). Mr. Thomas Seymour of the OSHA panel addressed Mr. Noll by stating: "I notice in your testimony, on page 3, that you indicate that at least 50 percent of your responses are involved with flammable liquids or gas emergencies. The definition that OSHA is using in this rulemaking for hazardous substances dealing with and covering flammable liquids and gases you find, then, appropriate?"
Mr. Noll responded, "I think realistically, from the perspective of fire service, we've been successfully handling flammable liquid and gas emergencies for a number of years. Today, with HAZMATs being the buzz word, certainly those categories of commodities have been thrown into the hazardous materials field.
"We now regard them in the hazardous materials field from a practical perspective."
Mr. Thomas Seymour of the OSHA panel asked Mr. Richard Duffy of the International Association of Fire Fighters (Tr. pg. 110), "Mr. Duffy, we have had some previous commenters who have advocated that petroleum and petroleum products be excluded from the scope of the standard.
The example that you just gave about the propane tank inside the building exploding and killing fire fighters, what is your opinion about whether we should exclude petroleum products from this standard?"
Mr. Duffy responded: "I don't know how we would classify them. I would object to that, I mean, I don't know how to better qualify -- I could talk to you for days about incidents involving petroleum products. I don't see any reason to exclude them any more than excluding the oxidizers or any group. I mean, you could pick lots of products and ask to exclude them. And I'm sure a lot of the lobbying entities can establish reasons for it. But I can't see any in terms for fire fighters.
Mr. Charles Gordon of the Department of Labor's Office of the Solicitor and a member of the OSHA panel asked Captain Richard A. Lemen, Director of the Division of Standards Development and Technology Transfer of NIOSH the following question (Tr. pg. 200-201): "In the case of spills of petroleum or petroleum products in either an emergency response situation or as a hazardous waste dump where there are petroleum products as one of the major contaminants, is it appropriate for all the provisions of the OSHA standard or the recommendations to apply in those circumstances?"
Captain Lemen responded, "We believe it is appropriate and they should apply in those circumstances, as well."
Mr. Seymour also asked Deputy Chief Roger Ramsey of the Seattle Fire Department (Tr. pg. 142): "I gather from what you have also said that the definition we have, including the DOT hazardous material definition for hazardous substance and materials is appropriate, and that we should not exclude petroleum products from the coverage of this standard?"
- Deputy Chief Ramsey responded "Absolutely not."
Many spills and emergency response to these spills involve petroleum products. These spills present both health and safety risks. Training is necessary to protect employees who respond to petroleum spills as with other spills. In fact, these are usually the same employees.
OSHA concludes that it is crucial to cover responses to petroleum spills as well as all other spills because petroleum products constitute a substantial threat to employees responding to accidental releases of these substances. Many petroleum products present health hazards as well as fire and explosion hazards. In addition they often contain fractions which present high health hazards. For example, many contain benzene, a carcinogen to which employees may be exposed.
- Therefore, OSHA is not amending its definition for "hazardous substance"
to include the petroleum exclusion referenced by some of the commenters.
The other definitions are discussed in the preamble to the proposal for this rulemaking. There were no major comments. OSHA concludes that those definitions are appropriate for the reasons stated in the proposal preamble.
Paragraph (b) -- Safety and Health Program
Paragraph (b) of the proposal has been reorganized for clarity as a result of the public comment. Basic requirements remain the same. Specific changes are discussed below. This paragraph basically requires that a written safety and health program cover safety and health organization and specific work practices to assure employee safety and health. OSHA has concluded that it is crucial for employee safety and health to have a written safety and health program that would force the systematic identification of site hazards and identify employee response to those hazards. The written plan is necessary to communicate hazards to employees for their awareness and protection. (See preamble discussion at 52 FR 29624.) OSHA received many comments supporting the requirement for a written safety and health program (i.e. State of Wyoming. 10-9; James T. Dufour, 10-78; International Association of Fire Fighters Local 291, 10-12): other commenters have made suggestions for changes to the proposed language.
OSHA concludes that for the reasons stated a written program is necessary. The following discussion covers specific changes.
OSHA has included a non-mandatory note at the beginning of new paragraph (b) that explains the acceptability of safety and health programs developed and implemented to meet other Federal, state, or local regulations in meeting the requirements of this paragraph. Some commenters believed that OSHA's requirements for a safety and health program were somewhat duplicative of the contingency plans and emergency response plans required by the E.P.A. for its permit requirements (i.e., Tennessee Valley Authority, 10-43; National Paint and Coating Association, 10-72; Johnson Wax, 10-84). OSHA will permit existing programs that have been designed to meet other government or corporate requirements. For example, contingency plans developed under 40 CFR 265.50 are acceptable in meeting this requirement if they are supplemented with the provisions established by the OSHA standard. OSHA does not intend to require the duplication of efforts made to meet other governmental regulations. Therefore, any plan containing all of the elements required for the OSHA plan will be acceptable in meeting this requirement without the need for developing a separate OSHA plan.
In paragraph (b)(1) of the final rule OSHA has taken the language proposed in paragraphs (b)(1)(i), (b)(2), and (b)(3) of the proposal and subdivided it into paragraphs (b)(1)(i), (b)(1)(ii), (b)(1)(iii), and (b)(1)(iv). Paragraph (b)(1)(i) contains the first two sentences of the proposal along with two new sentences that clarify what the safety and health program shall include. OSHA has included the new sentences and the new note to this paragraph to provide further guidance to employees who may need assistance in developing their safety and health program.
In paragraph (b)(1)(ii) of the final rule OSHA is using the last sentence and the list of chapters proposed in paragraph (b)(1)(i) and subparagraphs (A) through (C). There are no changes made to the language as proposed other than a recodification of the paragraphs.
In paragraph (b)(1)(iii) of the final rule OSHA is using the exact language proposed in paragraph (b)(2). The proposed language has been moved to this paragraph because it contains a requirement that is of a general nature.
In paragraph (b)(1)(iv) of the final rule OSHA is using the language proposed in paragraph (b)(3)(i) with one exception. A new phrase would require the employer to inform contractors and subcontractors of the site emergency response procedures in addition to the proposed information. One commenter, CDM Federal Programs Corporation (10-83), suggested revised language to the proposal that would assure that the contractors and subcontractors received the site specific safety and health plan as well as the safety and health programs. OSHA agrees with the suggestion of the commenter and that the new language accomplishes the recommended change suggested by CDM Federal Programs.
In paragraph (b)(1)(v) of the final rule OSHA is using the exact language of proposed paragraph (b)(3)(ii).
In paragraphs (b)(2), (b)(3), and (b)(4) of the final rule OSHA is using the exact language of paragraphs (b)(1)(ii), (b)(1)(iii), and (b)(1)(iv) of the proposal. One commenter, James T,. Dufour (10-78), while supporting the use of safety and health plans as an appropriate communication tool for identifying site hazards, suggested that OSHA should require a more comprehensive review and control of the plan to assure its professional quality. OSHA believes that the language of paragraph (b)(4)(iv) would provide for this type of oversight and control. Therefore, the only change to paragraphs (b)(1)(ii)through (b)(1)(iv) is a recodification of the paragraphs.
Paragraph (c) -- Site Characterization and Analysis.
The employer needs to know the hazards faced by employees in order to develop and implement effective control measures. Site characterization provides the information needed to identify site hazards and to select employee protection methods. The more accurate, detailed, and comprehensive the information available about a site, the more the protective measures can be tailored to the actual hazards that the employees may encounter. Congress clearly intended that such a requirement be included. Section 126(b)(1) of SARA provides that the proposal include "requirements for a formal hazard analysis of the site * * *."
It is important to recognize that site characterization is a continuous process. At each phase of site characterization, information is obtained and evaluated to define the potential hazards of the site. This assessment is to be used to develop a safety and health plan for the next phase of work. In addition to the formal information gathering that takes place during the phases of site characterization described above, all site personnel should be constantly alert for new information about site conditions.
In paragraph (c) of the final rule OSHA has used most of the language in paragraph (c) of the proposal. New headnotes have been added to the major paragraphs to make reading the requirements easier.
In paragraphs (c)(1) through (c)(4) of the final rule, OSHA has used the language of paragraphs (c)(1) through (c)(3) of the proposal. The reason for the one additional paragraph in the final rule is that OSHA has numbered the initial unnumbered paragraph in the proposal, and renumbered the rest. This is an editorial change and does not change any of the proposed requirements.
In paragraph (c)(5) of the final rule, OSHA is using the language of paragraph (c)(4) of the proposal with one change. Paragraph (c)(4)(ii) of the proposal has been revised as paragraph (c)(5)(ii). The new requirement still requires the use of a five minute escape self-contained breathing apparatus, however, its need is now based upon two conditions. In the proposal, all employees had to have access to an ESCBA during initial site entry. Two commenters, the State of Wyoming (10-9) and CDM Federal Programs Corporation (10-83), suggested that OSHA revise this requirement to recognize that the use of ESCBAs should be determined by the nature of the health hazards and the nature of the work to be performed. OSHA agrees that all employees who cannot be exposed to site conditions where possible health hazards may occur should not be required to carry ESCBAs. Therefore OSHA has amended its proposal as follows. Two conditions will now limit the employee population that must be provided access to ESCBA. They are (1) if positive-pressure self-contained breathing apparatus is not used as part of the entry personal protective equipment; and (2) if respiratory protection is warranted by the potential hazards identified during the preliminary site evaluation. Workers in populations where these two conditions are not met need not be provided with ESCBA.
Paragraphs (c)(5)(i), (c)(5)(iii), and (c)(5(iv) contain the exact language as proposed in paragraphs (c)(4)(i), (c)(4)(iii), and (c)(4)(iv).
In paragraph (c)(6) of the final rule; OSHA is using the language from paragraph (c)(5) of the proposal with some changes.
In paragraph (c)(6)(ii) of the final rule, OSHA has required that direct reading instruments be used where available. In the proposal OSHA had required only that appropriate equipment be used. The agency believes that direct reading instruments, where they are available for specific chemical hazards, will provide a more expeditious assessment of the hazards when there is not enough time during a specific work cycle to send samples out to a laboratory for analysis. In some situations, employees may be present at a particular job site for only a brief time. Certain sampling techniques, other than direct reading instruments, may require a longer time for analysis than the employee's actual exposure time on the job. Therefore, OSHA is amending its proposal by recognizing direct reading instruments as an alternative to standard testing procedures. OSHA has added the phrase "appropriate direct reading test equipment" in place of "appropriate equipment."
OSHA has also added a paragraph (c)(6)(iv) that would require that an ongoing air monitoring program be implemented in accordance with paragraph (h) of the final rule after site characterization has determined that the site is safe for start-up of operations. This is not a new requirement since it uses the same language as that proposed in paragraph (c)(8) of the proposal. OSHA has moved the paragraph from its position in the proposal to paragraph (c)(6)(iv) of the final rule because it is related to the subject matter of paragraph (c)(6). OSHA considers this to be an editorial change because there is no change in the proposed language.
Paragraphs (c)(6)(i) and (c)6)(iii) continue to use the language of proposed paragraphs (c)(5)(i) and (c)(5)(iii).
In paragraph (c)(7) of the final rule OSHA is using the language of proposed paragraph (c)(6) with one change. In the note which describes risks to be considered, OSHA has amended paragraph (a) by changing the language to reflect the exposure limits and levels to be used in the final rule. Direct reference to Permissible Exposure Limits (PELs), Threshold Limit Values (TLVs), or Recommended Exposure Limits (RELs) has been deleted and a reference is made to permissible exposure limits and published exposure levels as defined in the final rule. No substantive change is made since those terms incorporate PELs, TLVs, and RELs by definition.
Paragraph (d) -- Site Control
In paragraph (d) of the final rule OSHA is using the language of paragraph (d) of the proposal. Minor editorial changes have been made for clarity without changing the proposed requirements. The need for requirements for site control is discussed at 52 FR 29625 in the preamble to our proposal. There were few substantive comments. OSHA concludes that these provisions are necessary as discussed in the proposal.
Paragraph (e) -- Training
The proposed rule included specific provisions for initial and routine training of employees before they would be permitted to engage in hazardous waste operations that could expose them to safety and health hazards. Section 126(b)(2) of SARA requires initial and recurrent training to be included in the final rule. The intent of the final training provisions is to provide employees with the knowledge and skills necessary to perform hazardous waste clean-up operations with minimal risk to their safety and health.
The proposed requirements for training in paragraph (e) addressed the needs of employees who will be working at CERCLA sites, certain RCRA sites, and sites designated or identified for clean up by state or local governments.
The proposed provisions included a minimum of 40 hours of initial instruction off the site, and a minimum of three days of actual field experience under the direct supervision of a trained and experienced supervisor, at the time of job assignment. Congress has specifically imposed these hour and day requirements under section 126(d) of SARA for the proposed final standard. The proposed requirement represented a one-time effort by the employer for each employee covered by this standard. Employees would not need to be retrained for 40 hours at each site at which they work. Employees who had received the required training at one site could use that training to meet the proposed requirement at other sites even if it involved a different employer, provided the previous training addressed the hazards at the new site.
There are often many hazards at a waste site. The employee must be trained to recognize the hazards and appropriate work practices to minimize those hazards. The employee must also be well trained in the use of respirators and other forms of personal protective equipment. Without training, that equipment may not be used effectively and may not provide adequate protection. An extensive training program is necessary to assure that employees can use personal protective equipment effectively.
Managers and supervisors at regulated facilities, who are directly responsible for the site's operations, must have the same training as that of site employees and additional time for specialized training on managing hazardous waste operations. Since these managers and supervisors are responsible for directing others, it is necessary to enhance their ability to provide guidance and to make informed decisions. Section 126(d)(2) of SARA provides that there shall be eight hours of additional training for supervisors and managers.
The provisions also proposed that employees be retrained on an annual basis on relevant matters such as review of health hazards and the use of personal protective equipment. Employees at hazardous waste operations may face serious health and safety risks. Reminders are needed of this and of work practices necessary to avoid hazards. Personal protective equipment provides much of this protection. If there is no retraining in the use, care and maintenance of personal protective equipment, such equipment is unlikely to be properly utilized to provide adequate protection.
In all areas of training, whether it be for general site employees, supervisors at the site, or for the use of specific equipment, the level of training provided must be consistent with the worker's job function and responsibilities. Refresher training must be provided to reemphasize the initial training and to update employees on any new policies or procedures.
Section 126(d)(3) of SARA requires that OSHA provide for certification that an employee has received the training required by the standard. Section 126(d)(1) provides that OSHA not require training for employees who have already received equivalent training. The final standard has provisions to meet this directive.
OSHA requested comment as to whether its proposed training requirements were appropriate for hazardous waste operations. OSHA's proposed training requirements in paragraph (e) were limited to hazardous waste operations that involve the clean-up of uncontrolled hazardous waste disposal sites. Of all the issues raised by OSHA in its proposal, training was one that received a substantial amount of comment. Important comments directed to the paragraph (e) training requirements follow. Comments addressing the training of emergency response workers will be discussed later in this preamble under the appropriate paragraphs.
In paragraph (e)(1) of the final rule OSHA has combined the introductory paragraph of proposed paragraph (e) with the language proposed in paragraph (e)(5). The introductory paragraph of the proposal has been designated paragraph (e)(1)(i) and proposed paragraph (e)(5) has been designated (e)(1)(ii). OSHA considers this an editorial change which groups two general requirements under a single paragraph titled "General."
In paragraph (e)(2) of the final rule OSHA is using the language of paragraph (e)(1) in the proposal. Some minor changes are made to reflect the renumbering of the paragraph without changing any of the proposed requirements.
In paragraph (e)(3) of the final rule OSHA is revising the proposed language of paragraph (e)(2) of the proposal. Several comments addressed the proposed 40-hour training requirement for all employees who work on hazardous waste sites. (i.e., Wassau Insurance Company, 10-8; International Technologies, 10-44; Cooperweld Steel, 10-41; James T. Dufour, 10-78). Some of the commenters believed that 40 hours of training for some employees at this type of site was excessive. For example, it was argued that 40 hours of training was excessive for general laborers who may be installing perimeter fencing around an unopened site and who are not exposed to any hazards. This type of employee normally will not be wearing the type of protective equipment or be performing the type of tasks normally associated with removal of hazardous wastes. On the other hand, employees who will be "digging in the dirt" after the site has been opened in order to remove hazardous waste may need additional training because of the types of equipment they will be using and the types of hazards to which they will be exposed.
Wassau Insurance commented, "I feel the 40 hour minimum training requirement is excessive for many employees who will never be required to work above level D protection." The commenter continues, "The excessive training requirements of the current proposal add a significant burden to employers in situations where only low levels of protection are required (e.g., level D and level C situations)."
OSHA has revised its proposal for 40 hours of training for all employees engaged in hazardous waste operations at uncontrolled hazardous waste sites. For general site workers, OSHA is retaining the 40-hour, three-day on-the-job training requirement. OSHA has concluded that this level of training is necessary to protect general site workers because they are engaged in difficult work in areas with safety and health hazards. Moreover, OSHA believes the Congressional language is quite clear on this matter.
However, for certain types of other workers, OSHA has concluded that less training may be appropriate. For example, those workers who visit sites only on occasion and then under the supervision of experienced site workers are required to have 24 hours of training and one-day of on-the-job training. OSHA has also concluded that this same level of training would be appropriate for those general site workers who work in areas which have been monitored and fully characterized indicating that exposures are under both permissible exposure limits and published exposure limits and that respirators are not necessary.
In paragraph (e)(4) of the final rule OSHA is using the language proposed in paragraph (e)(3).
In paragraph (e)(5) of the final rule OSHA is using the language proposed in paragraph (e)(4) with the addition of a new sentence. Some commenters thought that the proposed language for the qualification of trainers was too broad and ambiguous. The State of Indiana (10-23) offered a representative comment: "Knowledge or training equivalent to (redundant phrase removed) a level of training higher than the level that they are presenting is no assurance that an employee is capable of providing adequate training to other employees."
Another commenter, the International Union of Operating Engineers (10-58), stated, "We believe it irresponsible to summarily state that trainers must be `qualified,' without defining the term other than to suggest that one who knows more than the person he trains may be a qualified trainer."
Subsequent to the receipt of post-hearing briefs, Congress amended section 126(d) of SARA to require the Secretary of Labor to develop requirements for the certification of training programs offered to employees and employers who must meet the training requirements of this standard. OSHA will soon be publishing a Notice of Proposed Rulemaking to carry out this Congressional direction. The requirements of that rulemaking will expand on the provisions stated in this rulemaking.
In order to provide interim guidance to employees and employers in determining the competency of trainers and their qualifications, OSHA has added two sentences to the proposed language. These sentences require the use and demonstration of training, credentials and experience to show competency as a trainer.
In paragraph (e)(6) of the final rule OSHA is using the language of proposed paragraph (e)(6) with one minor change. In addition to permitting certification to be given by the classroom instructor, OSHA will also recognize certifications given by the head or supervisory instructor of the training facility. This change recognizes the fact that some training certificates are signed by the head instructor upon recommendation of the classroom instructor, rather than by the individual classroom instructor.
In paragraph (e)(7) of the final rule OSHA is using the exact language of proposed paragraph (e)(7).
In paragraph (e)(8) of the final rule OSHA is using the language of proposed paragraph (e)(8) with the addition of an example of the type of refresher training that OSHA would consider acceptable. OSHA considers, and has now suggested, that critiques of prior emergency response performance can serve as a means of refresher training. Critiques of performance during an emergency response can give employees a training experience in which they have actual knowledge of the acceptable or nonacceptable actions taken during the response. Such critiques can also provide employees with the experience they may need to perform in a more appropriate manner during their next response. The proposed requirement for annual refresher training has not been changed.
In paragraph (e)(9) of the final rule OSHA is using the exact language of paragraph (e)(9) in the proposal.
Paragraph (f) -- Medical Surveillance
The proposed rule included specific provisions for baseline, periodic and termination medical examinations. Section 126(b)(3) of SARA provides that this rule include requirements for medical examinations of workers engaged in hazardous waste operations. In addition, the EPA manual referred to in section 126(e) of SARA has more detailed requirements for initial or baseline, periodic and termination medical examinations. The clear Congressional direction is to provide a comprehensive medical surveillance program for employees engaged in hazardous waste operations where it is medically prudent.
In paragraphs (f)(1) and (f)(2) OSHA is making some changes for clarity. In addition, OSHA is using the new term "permissible exposure limits or published exposure levels" instead of the term "established exposure levels." The reasoning for this change has been discussed under the paragraph of this preamble addressing definitions.
OSHA would like to clarify an issue concerning who is covered by medical surveillance under paragraph (f)(2) that has caused confusion since the promulgation of the interim final rule. After reviewing the record of comments addressing medical surveillance, it seems that several commenters, in particular from the fire service (i.e., 10-1, 10-3, 10-4, 10-12, 10-32, 10-79), believe that all firefighters must have the medical surveillance protections of paragraph (f) since they may wear respirators 30 days or more a year. Firefighters responding to structural fires will typically wear self-contained breathing apparatus when they enter burning structures or other hazardous locations and they may make such responses 30 days or more a year. OSHA is not requiring all firefighter who wear respirators 30 days or more a year to have medical surveillance. Paragraph (f) applies only to individuals within the scope of paragraph (a)(1)(i) through (a)(1)(iii) as set forth in paragraph (a)(2)(ii). Typical firefighters from local fire departments do not fall with this scope. These firefighters are normally covered by the requirements of paragraph (q) as specified in paragraph (a)(2)(iv). Paragraph (q) does not contain requirements for medical surveillance of firefighters unless they are members of an organized and designated hazardous materials response team, are hazardous materials specialists, or have been injured due to an overexposure to health hazards during an emergency incident involving hazardous substances as established in paragraphs (f)(2)(iii), (f)(3)(i)(D) and (f)(3)(ii) of the final rule.
In paragraph (f)(3) of the final rule OSHA is using the language proposed in paragraph (f)(2) with some changes. In new paragraph (f)(3)(i)(B), OSHA is adding the phrase "unless the attending physician believes a longer interval is appropriate" to the proposed language of paragraph (f)(2)(i)(B). Several commenters (State of Wyoming, 10-9; American Society of Safety Engineers, 10-29; Union Carbide Corporation, 10-56) suggested that an annual medical examination may be excessive for some employees, particularly when an attending physician can make a recommendation for a less frequent schedule. The American Society of Safety Engineers (10-29) stated, "This reviewer concurs in the approach that OSHA has outlined in this comment area that the practical health benefit of annual medical examination for hazardous waste operation workers is indeed uncertain. This is a broad area that requires input from the attending physician, the employee and the employer. It is recommended that annual medical examination not be required rigidly, that this be a flexible time frequency."
Wyoming (10-9) stated, "Periodic occupational health physical examination on an annual basis may not be warranted under all conditions." They go on to state, "It seems reasonable that a good occupational health program requiring physical examination would be based upon documented personal exposure levels and a medical physician's recommendation rather than on an arbitrary administrative decision to require personnel to undergo annual periodic physicals if they fit into the categories under 1910.120(f)(1)(i) and (f)(1)(ii)."
Union Carbide (10-56) said, "The frequency of medical examinations and consultations in this proposed rule has been redefined and the proposed change clarifies the issue of medical surveillance but retains the annual requirement for `all employees who wear a respirator * * *.' This frequency of examination is arbitrary. There is not medically-supportable rational for this annual requirement."
There were also comments in support of OSHA's annual physical examination requirement. The Occupational Health Nurses (10-30) stated, "AAOHN supports pre-exposure, annual, and exit examinations with provision of additional exams if over-exposure or signs or symptoms develop." Lockheed (10-45) responded to OSHA's question on whether examinations should be performed yearly, or at other intervals by stating, "Medical exams should be performed at least yearly."
GSX Chemical Services, Inc. (10-63) stated, "(12) Paragraph (f) describes medical surveillance requirements. The general program described by OSHA for pre-employment, annual, post-exposure, and termination medical examinations is excellent."
BP America, Inc. (10-85) stated, "The need for medical surveillance of workers who would be covered under the provisions of the proposed regulation is appropriate and is supported." They further state, "The proposed requirement to examine workers exposed in emergency situations, but not continue periodic surveillance simply because of the single episode, per se, is logical, and is strongly supported. Having such employees continue under periodic medical surveillance on the basis of the findings of the medical examination is, of course, appropriate."
Because of variations in employee exposures due to work schedules, annual physicals may not be medically necessary. OSHA concludes that annual medical examinations may not always be appropriate. Accordingly the standard is amended to permit the physician to reduce the frequency to not less than bi-annually if the physician believes it is appropriate. The physician may also increase the frequency if it is medically appropriate.
OSHA has also replaced the term "established exposure limits" with the phrase "permissible exposure limits or published exposure levels" in new paragraph (f)(3)(i)(D) since the terms have been redefined as previously explained.
The rest of the language in new paragraph (f)(3) remains as it was proposed in paragraph (f)(2).
In paragraph (f)(4)((i) of the final rule OSHA is using the exact language proposed in paragraph (f)(3)(i).
In paragraph (f)(4)(ii) of the final rule OSHA is using the language of proposed paragraph (f)(3)(ii) with one change. OSHA is still requiring that the content of medical examination and consultations be determined by the attending physician. However, OSHA has added language that would direct the employee, employer, and physician to Appendix D for guidelines in developing the examination.
Several commenters requested guidance on the content of the medical examinations required by the proposal. The Oklahoma Fire District (10-1) commented, "As, written the current document is rather vague," They continued, " . . . the document should give guidance on what the physical examination should entail." The American Association of Occupational Health Nurses (10-30), suggested, "At least minimum content of the physical examination should be specified. An "exam" may be no more than visual inspection of an individual's eyes, ears and throat and have no relevance to the exposure situation."
Other commenters supported OSHA's proposal for the employer and the physician to determine examination protocols. Eastman, Kodak (10-36) commented, "We support OSHA's position that the physician is best able to determine an appropriate medical surveillance protocol. As noted by OSHA, employees may be exposed to differing substances and may be required to use differing levels of personal protective equipment, such as respirators. In view of the particular circumstances presented, the physician is in the best position to formulate and follow an appropriate medical protocol. OSHA should not include a detailed protocol for medical surveillance." Lockheed (10-45) responded to OSHA's issue on protocols, "No. As with training, differences in amounts, kinds and combinations of exposures in different working situations require that protocol for medical surveillance be left to the discretion of the attending physician."
Dr. James Melius testified, "I'd like to direct most of my testimony to discussions of medical surveillance programs for hazardous waste and emergency response workers. I'd like to begin by saying that programs for both of these sets of workers are extremely important." (Tr. pg. 107) He goes on to say, "The medical surveillance program for the workers, therefore, should start with initially assessing their ability to work at the site and their capability for conducting that work. It should include an assessment that focuses through a medical history and initial physical examination on their cardiovascular and respiratory system, also looking for signs of other major medical problems. Selective testing may also be useful in these instances, including pulmonary function testing, chest x-rays and electrocardiograms. However, the workers may differ in their benefits from this testing depending on their age and other risk factors." (Tr. pgs. 110-111) OSHA believes both sides of the argument can be addressed by citing to recommended criteria for medical examination protocols in the Appendix to this section. Some commenters have suggested protocols that OSHA considered for placement in the Appendix. The St. Petersburg Fire Department (10-4) suggested, "A full physical examination: height, weight, eyesight, pulse, blood pressure, respiratory, skin examination, neurological examination, heart and lungs, medical history, and any other aspects determined by the physician. Also included are: Pulmonary function test, chest X-ray, urine analysis, SMA 18 blood test, and hearing examination." The chapter on medical surveillance found in the OSHA/NIOSH/EPA/Coast Guide manual cited in Appendix D also provides guidance. OSHA believes that the language of that chapter will provide guidance for developing the examination protocol.
In paragraph (f)(5) of the final rule OSHA is using the language of paragraph (f)(4) in the proposal with one change. OSHA has added a recommendation that a physician licensed in occupational medicine be used to supervise or administer the examination. Several commenters suggested that the use of such a physician would assure a more complete occupational-oriented examination than one offered by a physician licensed in another field.
Representative of these comments was the suggestion of the American Association of Occupational Health Nurses (10-30). The AAOHN (10-30) stated, "The nature of the potential exposures in hazardous waste operations requires specialized knowledge in toxicology -- knowledge of signs and symptoms and effects of exposure to various substances -- not common in basic health professional curricula. This is information that both occupational health nurses and physicians may have via advance education degrees or continuing education, certification and experience." The AAOHN recommended that OSHA change its proposed language to require the examination to be performed "by a registered professional nurse or licensed physician with training and expertise in evaluating exposures to hazardous substances."
In recognition of AAOHN's comments, OSHA has added the recommendation for the use of a physician from the field of occupational health. The language of the final rule, while it does not preclude the use of occupational nurses, does not specifically call for the use of an occupational nurse. The final language requires that the examination be conducted under the supervision of a licensed physician and that would certainly allow the use of occupational nurses if the attending physician permits.
In paragraphs (f)(6), (f)(7) and (f)(8) of the final rule OSHA is using the exact language proposed in paragraphs (f)(5), (f)(6), and (f)(7).
Paragraph (g) -- Engineering controls, work practices, and personal
OSHA is using the same opening paragraph for paragraph (g) that was in the opening paragraph for paragraph (g) in the proposal.
In paragraph (g)(1)(i) of the final rule OSHA is using the language of paragraph (g)(1)(i) of the proposal.
In paragraphs (g)(1)(ii) and (g)(1)(iii) of the final rule OSHA is using the exact language of paragraphs (g)(1)(ii) and (g)(1)(iii) of the proposal, except that the reference to Subpart G is deleted. A new paragraph (g)(1)(iv) is added to cross reference the requirements of Subpart G for clarity.
In paragraph (g)(2) of the final rule OSHA is using the language proposed in paragraph (g)(2) with some editorial modifications.
In paragraphs (g)(3), (g)(4) and (g)(5) of the final rule OSHA is using the language of paragraphs (g)(3), (g)(4) and (g)(5) in the proposal with minor editorial corrections to be consistent with the terms and language of the final rule.
Paragraph (h) -- Monitoring
In paragraph (h)(1) of the final rule OSHA has combined the proposed language in the opening paragraph and paragraph (h)(1) of the proposal with a clarification. The new paragraphs are designated (h)(1)(i) and (h)(1)(ii).
In paragraph (h)(1)(i), OSHA has modified its proposed language by adding the phrase, "where it is not obvious that an exposure does or does not exist." OSHA is adding this phrase to clarify that monitoring is not necessary where the site environment or safety precautions taken by the employer prevent employee exposure to hazardous levels of chemical exposure. OSHA is only requiring monitoring where there may be a question as to an employee's exposure. When there is a question then the employer should monitor. Where there is no question of exposure, then monitoring is not necessary. For example, if it is obvious through site characterization and analysis that there are no exposures at the worksite, monitoring need not be performed unless worksite conditions or work practices change to the extent that workers could be potentially exposed to hazardous concentrations of chemical exposure.
In paragraphs (h)(2) and (h)(3) of the final rule, OSHA is using the language proposed in paragraphs (h)(2) and (h)(3) except for two changes. First, OSHA is adding language to clarify that monitoring should be used to determine exposure above permissible exposure limits which are not immediately dangerous to life or health. Second, OSHA is deleting proposed subparagraph (h)(3)(v) because it is too general in nature and the previous four subparagraphs adequately cover the hazard.
In paragraph (h)(4) OSHA is using the exact language proposed in paragraph (h)(4) with one addition. If employees with the highest exposure are overexposed, then representative samples of other employees who may be overexposed must be taken to determine if controls or PPE are needed.
Paragraph (i) -- Informational programs
In paragraph (i) of the final rule, OSHA is using the language of paragraph (i) of the proposal. Minor editorial changes have been made for clarity without changing the proposed requirements. The need for requirements for informational programs is discussed at 52 FR 29628 in the preamble to our proposal. There were few substantive comments. OSHA concludes that these provisions are necessary as discussed in the proposal.
Paragraph (j) -- Handling drums and containers
In paragraph (j) of the final rule OSHA is using the language proposed in paragraph (j). Minor editorial changes have been made for clarity without changing the proposed requirements. The need for requirements for handling drums and containers is discussed at 52 FR 29629 in the preamble to our proposal. There were few substantive comments. OSHA concludes that these provisions are necessary as discussed in the proposal.
Paragraph (k) -- Decontamination
In paragraph (k) of the final rule OSHA is using the language of paragraph (k) in the proposal. However, the agency has reorganized the paragraph and provided headnotes to make the reading of the paragraph easier. The need for requirements for decontamination is discussed at 52 FR 29629 in the preamble to our proposal. There are few substantive comments. OSHA concludes that these provisions are necessary as discussed in the proposal.
Paragraph (l) -- Emergency response by employees at uncontrolled hazardous
- waste sites
In paragraph (l)(1) OSHA is using the exact language from proposed paragraph (l)(1)(i).
In paragraphs (l)(2)(i) through (l)(2)(xi) OSHA is using the exact text from paragraph (l)(1)(ii)(A) through (l)(1)(ii)(K).
In paragraph (l)(3) OSHA is using the language of proposed paragraph (l)(2)(i)(A) with some modification. The modifications are considered editorial and are made because of OSHA's reorganization of the overall proposed paragraph (l). In paragraph (l)(3) OSHA will require that employees performing emergency response at uncontrolled hazardous waste sites be trained in accordance with paragraph (e) of this section. This requirement is the same as proposed in the first part of proposed paragraph (l)(2)(i)(A). The portion of proposed paragraph (l)(2)(i)(A) that addresses training at RCRA sites is moved to the discussion of training in paragraph (p) of this rulemaking because of OSHA's reorganization of this paragraph.
The language proposed in paragraph (l)(2)(i)(B) has been moved to paragraph (e)(9) of this final rule. This move is considered editorial since it does not change any duties imposed on the employer, it only reflects the reorganization of proposed paragraph (l).
In paragraphs (l)(4)(i) through (l)(4)(vii) OSHA is using the exact language from paragraphs (l)(2)(ii)(A) through (l)(2)(ii)(G).
In summary, paragraphs (l)(1) through (l)(4) of the final rule use the language of paragraphs (l)(1) and (l)2) of the proposal with some modifications due to the reorganization of the emergency response requirements of the proposal.
Paragraph (m) -- Illumination
In paragraph (m) and Table H-120.2 of the final rule OSHA is using the language of paragraph (m) and Table H-102.1 of the proposal with one minor change. OSHA has combined the language of the opening paragraph and paragraph (m)(1) of the proposal into one paragraph designated paragraph (m). Minor editorial changes have been made for clarity without changing the proposed requirements. OSHA has combined the language of the opening paragraph and paragraph (m)(1) of the proposal into one paragraph designated paragraph (m). The need for requirements for illumination is discussed at 52 FR 29631 in the preamble to our proposal. There were few substantive comments. OSHA concludes that these provisions are necessary as discussed in the proposal.
Paragraph (n) -- Sanitation of temporary workplaces
In paragraph (n) of the final rule OSHA is using the language of paragraph (n) in the proposal with some minor editorial changes. The opening paragraph of proposed paragraph (n) has been deleted because it is not a requirement, and Table H-102.2 has been renumbered Table H-102.3. Minor editorial changes have been made for clarity without changing the proposed requirements. The need for requirements for illumination is discussed at 52 FR 29631 in the preamble to our proposal. There were few substantive comments. OSHA concludes that these provisions are necessary as discussed in the proposal.
Paragraph (o) -- New Technology programs
In paragraph (o) of the final rule OSHA is using the language of proposed paragraph (p). This change is necessary due to the reorganization of the emergency response requirements and the moving of proposed paragraph (o), "Certain Operations Conducted Under the Resource Conservation and Recovery Act of 1976 (RCRA). Proposed paragraph (o) has been moved to paragraph (p) of the final rule.
In paragraph (o)(1) of the final rule OSHA is using the exact language that was proposed in paragraph (p)(1).
In paragraph (o)(2) of the final rule OSHA has used the language of paragraph (p)(2) with some changes. OSHA has revised the paragraph to include some additional examples of acceptable means of suppression. The agency has also added additional information to provide guidance to the employer in making evaluations of products and new technologies. These changes are considered to be editorial since the requirement of the proposal has not changed.
Paragraph (p) -- Certain operations conducted under the Resource
In paragraph (p) of the final rule OSHA is using the language proposed in paragraph (o) with some changes.
In paragraphs (p)(1), (p)(2), (p)(3), and (p)(4) of the final rule OSHA has used the proposed language of paragraphs (o)(1), (o)(2), (o)(3), and (o)(4) with some minor editorial changes. The proposed requirements for each individual paragraph remain the same.
OSHA is adding two new paragraphs, (p)(5) and (p)(6), to address new technology programs respectively. In paragraph (p)(5) OSHA requires the employee to develop and implement procedures for using new technologies and equipment. Congress, in the SARA legislation, directed OSHA to address new technology programs in its rule. The language of the proposal limited new technology programs to uncontrolled hazardous waste sites. OSHA is adding this paragraph to complete Congress's directive and to address these programs at RCRA TSD facilities.
In paragraph (p)(6) OSHA is requiring employers to develop and implement a material handling program for the same reasons as stated above.
In paragraph (p)(7) OSHA is using the language from paragraph (o)(5) of the proposal with some changes. In paragraph (p)(7)(i) OSHA is using the language of paragraph (o)(5)(i) with one change. OSHA has moved a requirement to paragraph (p)(7)(i) from the last sentence of proposed paragraph (o)(5)(ii) that requires employers to provide employees with a certificate indicating that they have successfully completed the training required in the paragraph. OSHA believes that the issuance of this certificate will make it easier for employers to determine if new employees have completed the necessary training and are ready for employment.
In paragraph (p)(7)(ii) of the final rule OSHA is using the language from paragraph (o)(5)(ii) of the proposal with two exceptions. First, the last sentence of proposed paragraph (o)(5)(ii) has been moved to paragraph (p)(7)(i) of the final rule as discussed above. Second, the requirement for eight hours of annual refresher training is added to this paragraph. OSHA has added this requirement to this paragraph because the new format of the final rule now addresses training for new employees and current employees separately. In the proposal there was no distinction between the two groups of employees.
In paragraph (p)(7)(iii) OSHA has added a new paragraph addressing the training of trainers who will be providing the required training to employees. OSHA received many comments on trainers' qualifications. The proposed language for RCRA facilities did not address these qualifications. Therefore OSHA is now requiring that trainers be properly trained and qualified to conduct the type of training that they are expected to provide.
In paragraph (p)(8) of the final rule OSHA is addressing emergency response at RCRA facilities. Paragraph (p)(8) addresses the subject matter proposed in paragraph (1) of the proposal as that paragraph applied to RCRA TSD facilities. Most of the language used in this paragraph has been taken from proposed paragraphs (l)(1).
In paragraph (p)(8)(i) of the final rule OSHA has used some of the language from paragraph (l)(1)(i) of the proposal. The basic requirement for the development and implementation of a written emergency action plan that addresses site procedures for handling emergency response is the same in the final rule as it was in the proposal. OSHA will still permit an exemption from this paragraph if the employer totally evacuates the facility at the time of the emergency and has an emergency action plan meeting the requirements of 29 CFR 1910.38(a). OSHA considers the changes made in this paragraph to be editorial since the proposed obligations of the employer remain the same.
In paragraph (p)(8)(ii) of the final rule OSHA has used the language of proposed paragraph (l)(1)(ii). This paragraph contains the minimum elements that must be addressed in the employers emergency response plan. The basic elements of the required plan remain the same as proposed.
As stated before, training and certification of training were among the many issues discussed during the rulemaking for the final rule. Several commenters indicated that there was a need for more specific training criteria for the courses to be offered and the quality of the instructors presenting the courses. In light of those comments, OSHA has added a new paragraph (p)(8)(iii) that addresses emergency response training on RCRA TSD facilities. The language that is used in the final rule was developed from that suggested in the comments made to the record of this proceeding.
Basically OSHA is requiring that all employees who are expected to perform emergency response at RCRA TSD facilities be trained in how to safely perform emergency response duties prior to being called upon to perform those duties [See paragraph (p)(8)(iii)(A).] Examples of the types of training to be provided have been given. Exemptions are provided in Exception #1 and Exception #2 when employee exposure is reduced through pre-emergency planning that includes development of employee awareness of hazards. OSHA is also requiring that employees who have attended and successfully completed the training that is required in paragraph (p)(8) be certified as having done so. Employers would also have to certify the continued competency of employees on an annual basis [See paragraph (p)(8)(iii)(C)].
In paragraph (p)(9)(iv) of the final rule OSHA is addressing the procedures to be used for handling emergency incidents. The language in the final rule has been taken from paragraph (l)(2)(ii) and the requirements remain the same as proposed.
Paragraph (q) -- Emergency response to hazardous substance releases not previously covered
In paragraph (q) OSHA is covering those emergency response situations that occur at locations other than uncontrolled hazardous waste sites and RCRA TSD facilities. The typical site covered by this paragraph would be a transportation accident where hazardous substances are or have the potential for leaking into the environment. Other sites covered by this paragraph would include hazardous substance releases at chemical manufacturing facilities such as the release that occurred at the Union Carbide plants in Buphol, India, and Institute, WV.
A typical scenario were this paragraph would be applicable would be the emergency response to a derailed tank car containing a hazardous substance that has begun to leak its contents into the atmosphere. The emergency response to this type of accident would usually include the first responders (i.e., witnesses, police, employees on the train), the first dispatched-responsers (i.e., the first due rescue and fire apparatus), and multiple alarm dispatches (i.e., additional fire and rescue apparatus, HAZMAT teams, state fire marshal, Coast Guard or Federal E.P.A. national response teams), and the clean-up crew (i.e., initial response employees of the site owner who clean-up the release). Employees of outside clean-up contractors would be covered by paragraphs (b) through (p).
As the clean-up scenario proceeds towards completion, the various employees on the scene will need different levels of training and protective equipment required in this paragraph.
In paragraph (q)(1) of the final rule OSHA is using the language taken from paragraph (l)(1)(i) with some minor editorial changes. OSHA wants to emphasize that employers who will evacuate their employees from the workplace when an emergency occurs and who do not permit any of their employees to assist in handling the emergency are exempt from the requirements of this paragraph if they provide an emergency action plan in accordance with 1910.38(a).
In paragraph (q)(2) of the final rule OSHA is using the exact language of paragraph (l)(1)(ii).
In paragraph (q)(3) of the final rule OSHA is using the language proposed in paragraph (l)(3)(ii) with the following changes. In paragraph (q)(3)(i) OSHA has used the language proposed in paragraph (l)(3)(ii)(A) with some change. OSHA has deleted the requirement that the senior official responding to an hazardous substance emergency establish the Incident Command System (ICS). As a result of other requirements in this final rule, the Incident Command System should already be established prior to an emergency. The senior official responding to an incident scene should only need to take charge of the incident and begin to implement the preplanned ICS.
In paragraph (q)(3)(iv) OSHA has used the proposed language of paragraph (l)(3)(ii)(D) with a change. The proposed language required all employees engaged in emergency response and exposed to hazardous substances in any way to wear positive pressure self-contained breathing apparatus while engaged in emergency response. The final rule will require only those employees engaged in emergency response and exposed to hazardous substances "presenting an inhalation hazard or potential inhalation hazard" to wear positive pressure self-contained breathing apparatus. OSHA has made this change since several comments suggested that some individuals engaged in emergency response may be exposed to hazardous substances that do not pose an inhalation hazard and, therefore, would negate the need for respiratory protection. Such protection would become a burden to those employees engaged in operations not requiring the use of such equipment.
In paragraph (q)(3)(vi) of the final rule OSHA has used the language of paragraph (l)(3)(ii)(F) with the following change. In the proposal OSHA called for "qualified basic life support" personnel to be present at the site. In some emergency medical service (EMS) systems the term "basic-life support (BLS)" identifies a unique group of trained individuals who have received an established level of specialized training. Typically emergency medical response begins at the first-responder level, and progresses through basic-first aid and basic-life support to advanced-life support (ALS). The amount of training and expertise increases as individuals progress through the system. As a result of several comments, OSHA has decided to reduce the level of training required for a minimum stand-by capability at a hazardous waste sites. Employees trained and qualified in basic first aid have the basic skills such as initial patient assessment, maintenance of airway, control of bleeding, immobilization of fractures, and possibly cardiopulmonary resuscitation (CPR) to control injuries until a higher level responder arrives. If response time for BLS or ALS is long enough that it is necessary for this level of training to be at the site in case of an emergency, this rule does not prohibit the stationing of this level at the site. However, OSHA believes that if BLS or ALS service is available within a reasonable time, a qualified basic first aider can provide the necessary interim care.
The rest of the language in paragraph (q)(3) contains the language that was proposed in paragraph (l)(3)(ii) without change.
In paragraph (q)(4) of the final rule OSHA has used the language from paragraph (l)(3)(i)(C) with some minor editorial changes to reflect the changes made to other paragraphs in this rule. The basic requirement for the use and training of skilled support personnel remains the same as it was proposed.
In paragraph (q)(5) of the final rule OSHA has used the language from paragraph (l)(3)(i)(B) with one major change. OSHA has eliminated the requirement of 24 hours of training for specialist employees and has replaced it with a requirement for annual training or demonstration of competency in their area of specialization. The required minimum hours of training was deleted because some employees may need more or may need less than 24 hours for their area of specialization. Specialized employees are by definition individuals specialized in their area of expertise and should only require whatever level of training is necessary to maintain their level of competency. OSHA considers the other changes made to the language of this paragraph to be editorial.
In paragraph (q)(6) of the final rule OSHA addresses the training requirements for employees who will be responding to hazardous materials incidents. In paragraph (q)(6)(i), (ii), (iii), and (iv) OSHA has provided tiered training criteria for those employees who may be designated as members of an emergency response team. The various levels of response and the required competency levels are based upon recognized levels of response being discussed in the hazardous materials response industry as recommended in several of the comments made during this rulemaking.
To illustrate OSHA's tiered approach to training, the following scenario describes a possible emergency response call.
A state trooper is on routine patrol along a highway passing through a residential and light industrial area of a large metropolitan city. Ahead in his path of travel, the trooper notices a multi-vehicle accident involving a large overturned tank trunk. Immediately the trooper uses his radio to contact his dispatcher to report the accident. After letting the dispatcher know the location and type of accident, the trooper places his vehicle across the travel lanes of the highway approaching the accident site to stop traffic. while he is doing this the dispatcher is alerting the fire and rescue companies in the immediate area and dispatching an established number of fire and rescue vehicles. The trooper then surveys the accident scene from his vehicle trying to identify the type of cargo on the overturned truck. Seeing three different U.S. DOT placards on the vehicle the trooper makes note of the four digit numbers and checks his DOT Emergency Response Guide for a summary of actions to be taken for the chemicals identified on the placards. After determining his next on-site responsibility, he recontacts his dispatcher with the additional information and secures the scene. He stays away from the immediate accident site and does not become involved in rescue or site mitigation.
While the trooper has been securing the scene, the fire and rescue units dispatched after his first radio call begin to arrive on the scene with the additional information from the trooper's second call. The officer-in-charge (OIC) of the fire/rescue response stops his vehicles in a safe location and contacts the state trooper. After determining the type of accident and vehicles involved, the OIC takes control of the scene and directs his crews to take a predetermined defensive action in controlling a leak that has begun on the tanker. The OIC then contacts the dispatcher and reports his assessment of the accident scene including the fact that the tanker is now leaking. He requests the dispatcher to send him the closest hazardous materials response team. He also asks for representatives from the shipper of the liquid and the liquid's manufacturer.
In the meantime, firefighters have established a perimeter defense of the accident scene using fire hose lines and proper personal protective equipment. They begin to evacuate surrounding homes and businesses as indicated in the Emergency Response Guide in case the leaking tanker should explode. They construct dikes and diversion pits to contain water and chemical run-off from the fire hose lines. Rescue personnel, including emergency medical technicians, have made a preliminary assessment of the accident scene and have determined whether any individuals in the spill area are trapped in their vehicles or need immediate assistance. They report their observations to the OIC.
A decision is made by the OIC, based upon the reports of the police officer, the emergency response crew, and the data on the DOT placards, that no rescue attempts can be made safely until such time as the leaking liquid is positively identified and controlled by the HAZMAT team. The proper local authorities are notified under the requirements of SARA Title III.
As firefighters continue to provide defensive protection of the scene and as emergency medical technicians establish a triage area for the treatment of injured passengers, the HAZMAT team arrives and begins to take control of the accident scene. Hazardous materials technicians and specialists assess the scene and plan their attack on the leaking tanker.
After equipping themselves properly, the HAZMAT team makes a final, pre-attack evaluation of the scene, including a scan of the area with appropriate monitoring equipment, and reports its findings to the fire and rescue personnel. Based upon the results of the pre-attack evaluation and a determination by HAZMAT team members using monitoring equipment that the spill area is non-hazardous, rescue personnel now enter the area of the accident to provide emergency medical treatment to injured passengers and to extricate those passengers who may have been trapped in their vehicles. The HAZMAT team proceeds to the point of release and secures the leak.
After all the injured have been cared for and after the leak has been stopped, the firefighters and HAZMAT team begin to clean-up the accident scene in accordance with pre-planned procedures.
All four levels of hazardous materials response have played a role in this scenario. The state trooper, the first on the scene, is the first responder awareness level. The first responding fire and rescue companies who provided the defensive attack are the first responder operations level. The responding HAZMAT team had both hazardous materials technicians and hazardous materials specialists. In this scenario the state trooper would have to have a sufficient amount of training, the first responding fire/rescue companies would need eight hours of training, and the HAZMAT team would need 24 hours of training. The tiered training schedule is based upon the duties and responsibilities of the individuals involved in the various levels of response illustrated in the scenario.
In paragraph (q)(7) of the final rule OSHA is addressing the competency of the trainers who will be providing the training necessary for those employees responding to hazardous materials incidents. As discussed before, several commenters were concerned that OSHA's proposal for the qualifications of trainers was too weak.
In paragraph (q)(8) of the final rule OSHA is addressing refresher training for those employees who have been trained in accordance with paragraph (q)(6). In paragraph (l)(3)(i)(A) of the proposal OSHA addressed the training of employees who perform emergency response at non-hazardous waste clean-up sites. OSHA is using this proposed language in paragraphs (q)(8)(i) and (a)(8)(ii) because the language of the proposal was intended to cover the type of emergency response now regulated by paragraph (q).
In paragraph (q)(9) of the final rule OSHA is using the language of paragraph (l)(4)(ii) of the proposal with some editorial change. The basic requirement that employees who are members of an organized or designated HAZMAT team and hazardous materials specialists receive a baseline physical examination in accordance with paragraph (f) of this section remains the same as proposed.
In paragraph (q)(10) of the final rule OSHA is using the proposed language of paragraph (l)(4)(iii).
In paragraph (q)(11) of the final rule OSHA is using the exact language as proposed in paragraph (l)(5). In paragraph (l)(5) OSHA regulated post-emergency clean-up and the language used in that paragraph has caused some confusion. Rather than change the basic requirement, OSHA is offering the following clarification of the intent of paragraph (q)(11):
Post-emergency response can be performed by two basic groups of employees: employees of the site, or employees from off of the site. Post-emergency clean-up begins when the individual in charge of the initial emergency response declares the site to be under control and ready for clean-up. For the purpose of this rule, paragraph (q)(11) will apply to those employees who come from other employers located off-of-the-site to perform post-emergency clean-up. Employees of the employer at the site where the release occurred, and who perform post-emergency clean-up, are considered, under this rule, to be part of the initial emergency response and not subject to paragraph (q)(11). The reason for this distinction is that employees at the site are more familiar with the types of emergencies that may occur and the types of clean-up operations that may have to take place. The more hazardous exposure to employees occurs when outside contractors or other off-site employees are brought into a strange environment and are expected to clean-up the residue from a release. With this clarification, OSHA concludes that no change to the proposed language is necessary.
- [54 FR 9293, March 6, 1989; 55 FR 14072, April 13, 1990]
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