1. Applicability of OSHA Standards to Transporters of Hazardous Waste Materials

2. 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

3. Background OSH Act Department of Transportation 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.

4. 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 ).
Administers Federal railroad safety laws (49 CFR Parts ).
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 ).
Administers Federal motor carrier safety laws (49 CFR ).
Reference Information
The HMR Regulations, 49 CFR Parts , are issued by the Research and Special Programs Administration (RSPA), and cover the following:
Part General Information, Regulations, and Definitions
Part Hazardous Materials Table, Special Provisions, Hazardous Materials Communications, Emergency Response Information, and Training Requirements
Part Shippers-General Requirements for Shipments and Packagings
Part Carriage by Rail
Part Carriage by Aircraft
Part Carriage by Vessel
Part Carriage by Public Highway
Part Specifications for Packagings
Part Specifications for Tank Cars
Part Continuing Qualification and Maintenance of Packagings

5. 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.
Reference Information
The following letters of interpretation provide information regarding safety and health jurisdiction for OSHA and DOT :
July 10, 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, Jurisdiction issues involving the Southwest Transportation Company, Inc.
April 1, Jurisdictional Issue - Southwest Transportation
August 2, The working environment of railroad train environment

6. 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 ).
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.

7. Transportation of Hazardous Waste
DOT’s Hazardous Materials Regulations (49 CFR )
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.

8. 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 and

9. 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.
Reference Information
DOT HAZMAT Training Requirements, 49 CFR include the following:
General awareness/familiarization training to become familiar with the requirements of 49 CFR and to enable the employee to recognize and identify hazardous materials consistent with the hazard communication standards of 49 CFR
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.

10. 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 , 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.

11. 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 (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 (b)(4).
Decontamination procedures established for the site required by 29 CFR (k).
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 (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 (e)(3)(iv).

12. 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 (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 (p)(1).
Decontamination program required by 29 CFR (p)(4).

13. 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 (q)(6). [SARA Sect 303] or
Employers must:
Develop an emergency response program for hazardous substance releases in accordance with 29 CFR (q).
Develop an emergency response plan in accordance with (29 CFR (q)(1) and (q)(2).

14. 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 (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.
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.

15. 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).
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 and to make reports under upon being notified in writing by the Bureau of Labor Statistics, and
Obligation to report fatalities and multiple hospitalizations under

16. First Aid Requirements
Trucks and rail in transit
DOT regulations apply.
Loading and unloading operations
OSHA regulations apply.
29 CFR specifies that:
where an employee could become injured and need medical attention in the absence of an infirmary, clinic, or hospital, 29 CFR (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 (c) requires that suitable facilities for quick drenching or flushing of the eyes and body shall be readily available.

17. 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.
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.”

18. 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 ).
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 Subpart D - Walking/Working Surfaces
29 CFR Subpart I - Personal Protective Equipment
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.

19. 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

20. 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.

21. 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.

22. Proposed Safety and Health Program Standard
OSHA’s Draft Proposed Safety and Health Program Rule, 29 CFR
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

23. 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.