# Presentation: 128075

## 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).

**Notes:**
Reference Information

The HMR Regulations, 49 CFR Parts 171-180, are issued by the Research and Special Programs Administration (RSPA), and cover the following:
Part 171 - General Information, Regulations, and Definitions
Part 172 - Hazardous Materials Table, Special Provisions, Hazardous 	      Materials Communications, Emergency Response             	      Information, and Training Requirements
Part 173 - Shippers-General Requirements for Shipments and 		       Packagings
Part 174 - Carriage by Rail
Part 175 - Carriage by Aircraft
Part 176 - Carriage by Vessel
Part 177 - Carriage by Public Highway
Part 178 - Specifications for Packagings
Part 179 - Specifications for Tank Cars
Part 180 - Continuing Qualification and Maintenance of Packagings

## 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.

**Notes:**
Reference Information

The following letters of interpretation provide information regarding safety and health jurisdiction for OSHA and DOT :

July 10, 1989 - Review of Policy on Section 4(b)(1) of the Act:  Pertains to the DOT’s Motor Carrier Safety Act and related statutes, a review of OSHA case law relating to truck drivers, and a summary of applicable 4(b)(1) case law including those upholding the “gap theory” and “hazard-by-hazard” approach.

November 9, 1990 - Jurisdiction issues involving the Southwest Transportation Company, Inc. 

April 1, 1991 - Jurisdictional Issue - Southwest Transportation

August 2, 1991 - The working environment of railroad train environment

## 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.

**Notes:**
Reference Information 

DOT HAZMAT Training Requirements, 49 CFR 172.700 include the following:
General awareness/familiarization training to become familiar with the requirements of 49   CFR 172.700 and to enable the employee to recognize and identify hazardous materials consistent with the hazard communication standards of 49 CFR 172.700.

Function-specific training specifically applicable to the functions the employee performs.

Safety training concerning:
*emergency response information required by subpart G of part 172;
*measures to protect the employee from the hazards associated with the hazardous            materials they may be exposed to, including the specific measures implemented to protect the employee from exposure; and
*methods and procedures for avoiding accidents, such as the proper procedures for handling packages containing hazardous materials.

## 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).

**Notes:**
Reference Information 

Hazmat employees who are required to drive onto uncontrolled hazardous waste sites must receive training n accordance with:

Workers on site only occasionally for a specific limited task - 24 hours of instruction off site and one day actual field experience under the direct supervision of a trained, experienced supervisor are required by 29 CFR 1910.120(e)(3)(ii), or

If the hazmat employee is required to wear respiratory protection while on site - 40 hours of instruction off site and three days of actual field experience are required by 29 CFR 1910.120(e)(3)(iv).

## 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.

**Notes:**
Reference Information

Note: 
It is not OSHA’s intent that workers be given duplicative training.  It is OSHA’s position, as well as that of DOT, that training under either regulation that meets the requirements of the other need not be repeated.

## 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).

**Notes:**
1904.15 Small employers:
Employers with 10 or fewer employees during the previous calendar year are not required to comply with the requirements of Recording and Reporting Occupational Injuries and Illnesses, 29 CFR 1904, except for:
Obligation to maintain a log of occupational injuries and illnesses under 1904.2 and to make reports under 1904.21 upon being notified in writing by the Bureau of Labor Statistics, and
Obligation to report fatalities and multiple hospitalizations under 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.

**Notes:**
Reference Information 

During cargo transfer hose connection and disconnection:
Employees could potentially be exposed to hazardous substances, and engineering controls should be implemented to the extent possible.  Where engineering controls have not reduced the likelihood of the hazard, the appropriate PPE should be used in accordance with 29 CFR Subpart I - Personal Protective Equipment such as chemical protective clothing, face shield, etc.

FRA 
The current Policy Statement of the FRA (43 CFR 10584) addresses jurisdictional issues between the FRA and OSHA and states the following with regard to PPE:
“OSHA regulations concerning personal protective equipment apply according to their terms, except to the extent the general requirements might be read to require protective equipment responsive to hazards growing out of railroad operations.  For instance, OSHA, could not prescribe attire designed for mandatory use of an employee while involved in uncoupling cars or operating a locomotive.”

## 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

**Notes:**
Reference Information 

FRA does have regulations pertaining to fall protection and PPE; however are applicable to Railroad Bridge Work Operations, (49 CFR 214).

Discuss the safety measures to prevent employee fall hazards from railcars and trailers:
use of working platforms; 
use of safety harness and lanyards, etc.

## 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.