Applicability of OSHA Standards to Transporters of Hazardous Waste Materials

Overview• The Association of Waste Hazardous Materials Transporters (AWHMT) requested information

concerning OSHA’s jurisdiction over matters related to the transportation of hazardous waste.

• This presentation addresses OSHA’s jurisdiction pertaining to hazardous waste transportation in the railroad and trucking industries, and discusses the application of key OSHA standards, including:

• Hazardous Waste Operations and Emergency Response (HAZWOPER)• Recording and Reporting Occupational Injuries and Illnesses• Personal Protective Equipment (PPE)• Toxic and Hazardous Substances• Process Safety Management• Material Handling• OSHA’s Draft Proposed Safety and Health Program Rule

Background• OSH Act

– Enacted to ensure safe and healthful working conditions for every working man and woman.

– Covers every employer engaged in business affecting interstate commerce who has one or more employees.

– OSHA was created to promulgate and enforce safety and health standards.

• Department of Transportation Act– Primary purpose is to protect the public and transportation

equipment; measures to protect the public also protect employees.– Covers transportation by aircraft, rail, vessels, and motor vehicles.– The Department of Transportation (DOT) was created to

administer and enforce transportation regulations.

DOT Administrations for Rail and Highway Transportation

• The Federal Railroad Administration (FRA)– Enforces DOT regulations applicable to rail carriers, shippers by rail, and manufacturers of tank cars.

Also enforces the Hazardous Materials Regulations (49 CFR 171-180). – Administers Federal railroad safety laws (49 CFR Parts 200-299).– Issues orders to address hazards caused by the transportation of hazardous materials.

• The Federal Highway Administration (FHA)– Enforces DOT regulations applicable to motor carriers, shippers by highway, and manufacturers of

cargo tanks through the Office of Motor Carrier Field Operations. Also enforces the Hazardous Materials Regulations (49 CFR 171-180).

– Administers Federal motor carrier safety laws (49 CFR 390-397).

OSHA or DOT Jurisdiction • OSH Act

– Section 4(b)(1) of the OSH Act states that OSHA does not have jurisdiction over health and safety if another Federal agency exercises its statutory authority in this area.

• U.S. courts interpret the OSH Act using the “gap theory” or “hazard-by-hazard” approach:– If DOT has a regulation that would reduce or eliminate the workplace hazard, DOT regulations

apply.– If DOT does not have a regulation to address the hazard, OSHA regulations apply.

OSHA or DOT Jurisdiction (cont.)

• DOT has jurisdiction for:– In transit operations between destination points, including readjusting and securing the load. – Proper handling of hazardous materials during loading and unloading vehicles and rail cars

according to the Hazardous Materials Regulations (49 CFR 171-180).

• OSHA has jurisdiction for:– Actions associated with loading and unloading the vehicle or railcar at destination points where

DOT does not address a safety or health hazard.– Response to hazardous waste emergencies.

Transportation of Hazardous Waste

• DOT’s Hazardous Materials Regulations (49 CFR 171-180)– Contain training requirements for all hazardous materials employees regarding the safe loading,

unloading, handling, storing, and transporting of hazardous materials, and also regarding emergency preparedness.

– Do not require the hazmat employee to engage in actual emergency response activities.– Contain information requirements for hazardous materials emergency response.

Transportation of Hazardous Waste (cont.)

• DOT’s Hazardous Materials Emergency Response Requirements

– Keep emergency response information accessible at all times,– Provide an emergency response telephone number,– Require the operator to contact the carrier in the event of a hazardous materials incident, and– Report the incident to the proper authorities in accordance with 49 CFR 171.15 and 171.16.

Transportation of Hazardous Waste (cont.)

• Definitions from DOT ‘s Hazardous Materials Regulations:

– HAZMAT employer is a person who uses its employees in connection with: • transportation in commerce;• causing hazmat to be transported or shipped in commerce; or• representing, marking, certifying, selling, offering, reconditioning, testing, repairing, or modifying packagings as qualified

for use in the transportation of hazmat.

– HAZMAT employee is a person who is employed by a hazmat employer and directly affects hazmat transportation safety who:• loads, unloads, or handles hazmat;• tests, reconditions, repairs, modifies, marks, or otherwise represents packagings as qualified for use in the transport of

hazmat;• prepares hazmat for transportation; or• operates a vehicle used to transport hazmat.

Applicability of HAZWOPER to Hazardous Waste Transportation

• Each carrier who transports hazardous materials will be required to comply with OSHA’s HAZWOPER standard, 29 CFR 1910.120, if any of the following conditions are met:

• Employees are required to drive onto uncontrolled hazardous waste sites .

• Employees are required to enter EPA regulated treatment, storage, and disposal facilities.

• Employees are required to respond to hazardous waste emergencies.

• Employees are required to handle, inspect, stop or clean up leaks, etc , in or on a loaded transporter.

Applicability of HAZWOPER to Hazardous Waste Transportation (cont.)

• If employees are required to drive onto uncontrolled hazardous waste sites:

– Employees must receive the minimum training required by 29 CFR 1910.120(e).• 24 hours off-site instruction and one day actual field experience under the direct supervision of a trained,

experienced supervisor.• 8 hours of annual refresher training.

• Employees who enter contaminated areas may need to comply with the:

– Site-specific safety and health plan required by 29 CFR 1910.120(b)(4).– Decontamination procedures established for the site required by 29 CFR 1910.120(k).

Applicability of HAZWOPER to Hazardous Waste Transportation (cont.) • If employees are required to enter EPA regulated treatment, storage, and disposal facilities:

– Employees must receive the minimum training required by 29 CFR 1910.120(p)(7).• 24 hours of initial training. • 8 hours of annual refresher training.

– Employees who enter contaminated areas may need to comply with the:• Safety and health program required by 29 CFR 1910.120(p)(1).• Decontamination program required by 29 CFR 1910.120(p)(4).

Applicability of HAZWOPER to Hazardous Waste Transportation (cont.)

• If employees are required to respond to hazardous waste emergencies:

– Employees must receive:• The minimum training required according to their emergency response duties required by 29

CFR 1910.120(q)(6). [SARA Sect 303] or

– Employers must: • Develop an emergency response program for hazardous substance releases in accordance

with 29 CFR 1910.120(q).• Develop an emergency response plan in accordance with (29 CFR 1910.120(q)(1) and (q)

(2).

To Avoid Duplication of Training...

• DOT– Training conducted to comply with either OSHA’s HAZWOPER standard or EPA’s

HAZWOPER standard may be used to fulfill the DOT hazardous materials training requirements as long as the training addresses the DOT training requirements of 49 CFR 172.704(a).

• OSHA– Training provided under DOT’s Hazardous Materials Regulations may also be used to satisfy the

OSHA HAZWOPER training requirements, to the extent that the training meets the HAZWOPER requirements.

Recording and Reporting Occupational Injuries and Illnesses

• DOT’s reporting and recordkeeping requirements:– Do not exempt the employer from complying with OSHA injury and illness recording

requirements and fatality/catastrophe reporting.

• OSHA’s recording and reporting of occupational injuries and illnesses requirements:– All employers are required to:

• Maintain a record of occupational injuries and illnesses in the form of an OSHA 200 log or equivalent (1904.2).

• Report incidents concerning fatalities or the hospitalization of three or more employees (1904.8).

First Aid Requirements

• Trucks and rail in transit– DOT regulations apply.

• Loading and unloading operations– OSHA regulations apply.

– 29 CFR 1910.151 specifies that:• where an employee could become injured and need medical attention in the absence of an infirmary,

clinic, or hospital, 29 CFR 1910.151(b) requires that a person or persons shall be adequately trained to render first aid and approved first aid supplies shall be made readily available.

• where an employee could be splashed by injurious corrosive materials, 29 CFR 1910.151(c) requires that suitable facilities for quick drenching or flushing of the eyes and body shall be readily available.

Personal Protective Equipment Requirements

• DOT– DOT contains regulations for carrier loading and unloading, cargo transfer hose connection

and disconnection, and coupling and uncoupling rail cars. – However, the DOT regulations do not address employee exposure to hazards such as

inhalation, absorption, ingestion, chemical splash, flying particles, and falling objects.

• OSHA– PPE for eyes, face, head, extremities, protective clothing, respiratory devices, and

protective shields and barriers must be provided and used wherever it is necessary due to hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered that could cause injury or impairment.

Fall Protection Requirements

• DOT– Federal Railroad Administration does not have fall protection requirements applicable to the loading

and unloading of railroad cars.– Federal Highway Administration regulates fall hazards subject to motor carrier employees working

on truck-tractors having a high-profile cab-over-engine (COE) configuration for entrance, egress, and back of cab access, manufactured on and after September 1, 1982 (49 CFR 399.201).

• OSHA– Covers work on trucks and truck-tractors that do not have a high-profile COE.– Covers all trailers regardless of the type of truck used to pull the trailer.

• 29 CFR 1910 - Subpart D - Walking/Working Surfaces• 29 CFR 1910 - Subpart I - Personal Protective Equipment

Exposure to Toxic and Hazardous Substances

• OSHA has jurisdiction regarding employee exposure to toxic and hazardous substances such as:

– asbestos (brake repair)– heavy metals (welding operations)– silica dust– other toxic substances in 29 CFR 1910 Subpart Z

Process Safety Management Requirements

• DOT Requirements– Regulate operations that include carrier loading and unloading, cargo transfer hose

connection and disconnection, attendance by a qualified person during loading and unloading, and associated training.

• OSHA Requirements– Apply when commercial railroad tank cars and commercial tank motor vehicles

remain on a worksite and are used to store threshold quantities of highly hazardous chemicals covered by the PSM standard.

Materials Handling Requirements

• DOT requires that the equipment used for handling hazardous materials must be of a type that does not create a hazard to the material while loading and unloading transportation vehicles and rail cars.

• OSHA has jurisdiction over employee protection issues during the use of material handling equipment, such as powered industrial trucks, overhead and gantry cranes, slings, etc.

Proposed Safety and Health Program Standard

• OSHA’s Draft Proposed Safety and Health Program Rule, 29 CFR 1900.1– Purpose:

• Reduce the number of job-related fatalities, illnesses, and injuries.

– Applies to:• All employers covered by the OSH ACT, except employers engaged in construction and agriculture.

– Basic Obligations:• Develop and implement a safety and health program that includes the following elements:

– Management leadership and employee participation– Hazard identification and assessment – Hazard prevention and control– Information and training– Evaluation of program effectiveness

Application of the Proposed Safety and Health Program Standard to

Transportation• Proposed standard would not apply to in transit operations.

• Proposed standard would apply to loading and unloading operations to the extent that these operations are not covered by DOT.