AcuTech Consulting -

February 1, 2006

Mr. Eric Clark
Manager, Government Relations
Synthetic Organic Chemical Manufacturers Association (SOCMA)
1850 M Street NW, Suite 700
Washington DC, 20036-5810

Dear Mr. Clark:

Thank you for your October 27, 2005 letter to the Occupational Safety and Health Administrations (OSHAs) Directorate of Enforcement Programs. You have a question regarding the applicability of the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard to hazardous waste generators. This letter constitutes OSHAs interpretation only of the requirements discussed and may not be applicable to any question not delineated within your original correspondence. We apologize for the delay in our response. The scenario, your paraphrased question, and OSHAs response are below.

Scenario: In your letter to OSHA, you raise several issues that lead to a question regarding the applicability of paragraph (p)(8) of HAZWOPER to hazardous waste generators that are not conditionally exempt as small quantity generators. Specifically, your concern involves the following statement that comes from the Notes and Exceptions under 1910.120(a)(2)(iii): Excepted employers who are required by the EPA or state agency to have their employees engage in emergency response or who direct their employees to engage in emergency response are covered by paragraph (p)(8) of this section, and cannot be exempted by (p)(8)(i) of this section. You state that the language of the rule, available guidance, and interpretation letters make it clear that HAZWOPER does not apply when (1) employees are not exposed or potentially exposed to health or safety hazards, or (2) the only releases of hazardous substances are incidental in nature. You point out, however, that two interpretation letters (January 9, 1990, addressed to Mr. John DAloia, Jr., and September 22, 1992, addressed to Mr. Thomas A. Wehrenberg) appear to blur these exemptions because they are silent on these two conditions and therefore make it appear that all generators, other than conditionally exempt small quantity generators, are covered by (p)(8) where the EPA requires some level of involvement in emergency response. Finally, you state that the confusion stems from the fact that the EPA does not specifically define emergency response and the performance of some EPA-required duties (40 CFR 265.55 & 56) would not result in employee exposure or the spill could be classified as an incidental release.

Question: Does (p)(8) of HAZWOPER apply to hazardous waste generators, other than conditionally exempt small quantity generators, if an assessment of reasonably anticipated emergency scenarios indicates there are no hazards to employees or the only potential spill scenarios are incidental in nature?

Response: OSHA agrees with the premise that (p)(8) of HAZWOPER would not apply to hazardous waste generators if the employer can demonstrate that the operation does not involve any potential employee exposures or the reasonable possibility of employee exposure to safety or health hazards, as is stated in 1910.120(a)(1). Similarly, HAZWOPER would not apply to small quantity incidental releases, as is discussed in Appendix E to OSHA Directive CPL 02-02-059. Employers making such a determination must use careful judgment and consider all the applicable factors involved such as the inherent properties of the hazardous substances themselves (e.g., toxicity, volatility, flammability, explosiveness, corrosiveness, etc.), the particular circumstances of the release itself (e.g., quantity spilled, permit-required confined spaces, etc.), employee knowledge of the hazardous substance in the immediate release area, personal protective equipment at hand, pre-established standard operating procedures, and other relative factors. If HAZWOPER does not apply, employers must still protect employees through other applicable OSHA standards such as 29 CFR 1910.1200 (Hazard Communication) and 29 CFR 1910.132 (Personal Protective Equipment).

In your letter to OSHA, you stated that you feel the confusion can be resolved by annotating or amending the January 9, 1990, and September 22, 1992, interpretation letters with the qualification that when an assessment of reasonably anticipated emergency scenarios indicates there are no hazards to employees or when the only potential spill scenarios are incidental releases, employers who operate hazardous waste generators exempted under 40 CFR 262.34 can be excluded from coverage under HAZWOPER. Although we generally concur with your understanding of the applicability of HAZWOPER to hazardous waste generators, OSHA cannot alter text in existing interpretation letters. To provide additional clarity, however, a reference to this response will be added to the two letters indicated above.

Thank you for your interest in occupational safety and health. We hope this provides the clarification you were seeking. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHAs interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHAs website at www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at 202-693-2190.

Sincerely,

Richard E. Fairfax, Director
Directorate of Enforcement Programs

March 7, 2006

Mr. Joseph P. Zemen
Ashland Specialty Chemical Company
Special Polymers and Adhesives Division
Calumet City, IL 60109

Dear Mr. Zemen:

Thank you for your July 21, 2005, letter to Gary Anderson, Area Director for the Calumet City Area Office of the Occupational Safety and Health Administration (OSHA). Your inquiry has been transferred to the Directorate of Enforcement Programs at OSHAs National Office. You had questions regarding flame-resistant clothing use in the chemical industry. Your paraphrased inquiries and our responses follow.

Scenario: Our facility stores, processes, or transloads a large volume (up to 750,000 gallons daily) of flammable and combustible liquids, flammable solids, flammable gases, and reactive chemicals. Additionally, we are covered by OSHA standard 29 CFR §1910.119, Process safety management for highly hazardous chemicals (PSM). Our facility has chosen to implement a plant-wide flame-resistant clothing program. It is our understanding that if an injury involving flash/fire burns were to occur involving one of our workers or a contractor in one of these designated areas where flammable or combustible materials are stored, processed, or transloaded, we could be cited for not providing appropriate personal protective equipment (PPE).

Question #1: How does OSHA enforce the use of flame-resistant clothing in a setting such as a petrochemical plant?

Response: Industry practice — It has been recognized as industry practice in the chemical and refining industries to require flame-resistant clothing where there exists a danger of flash fire/burns from accidental releases. National Fire Protection Association (NFPA) 2113, Standard on Selection, Care, Use and Maintenance of Flame-Resistant Garments for Protection of Industrial Personnel Against Flash Fire is a national consensus standard which applies to, among others, chemical, refining, and terminal facilities with flash fire hazards. Among other standards, NFPA 2113 has requirements for when flame-resistant garments/flame-resistant clothing must be used by industrial personnel exposed to flash fire hazards.

The specific standards related to when industrial personnel must use flame-resistant garments/flame-resistant clothing are found in Chapter 4 (including Annex A explanatory information for applicable requirements) and include mandatory requirements for the selection process and a workplace hazard assessment. A review of NFPA 2113, Chapter 4 shows: 1) that a hazard assessment must be performed to determine the need for wearing flame-resistant garments [Section 4.1]; 2) the hazard assessment must be based on whether the facility has flammable chemicals present in quantities that will generate a flash fire and endanger employees [Section 4.2.2]; 3) the hazard assessment must include a determination of the type of hazard(s) present in the workplace such as exposure to fire or explosion hazards and the hazard classification, e.g., chemical, fire, explosion, etc., of the work area [Section 4.2.3 and A.4.2.3]; 4) a specific evaluation of the work environment to determine the requirement for wearing flame-resistant garments must be based on the potential hazards workers are exposed to in their work duties, the evaluation must include among others, factors such as the proximity of the work to the flash fire hazard, the presence of flammable materials in the environment during process operations, the potential for the task being performed to increase the possibility of a flammable release, e.g., a mechanical failure such as a line breaking, etc. [Section 4.2.4]; and 5) an initial review of a facility must determine if flammable chemicals are present in quantities needed to generate a flash fire and endanger employees [Section 4.2.5].

Additionally, the American Institute of Chemical Engineers — Center for Chemical Process Safety (CCPS) provides supplemental questions1 to be used in a hazard evaluation which can apply to flash fire hazards. Appendix B of their document is to be used by employers to identify potential hazards. Section V on Personnel Safety asks, Is personal protective equipment required such as: . . . skin/body protection (liquid splashes, vapors, burns [emphasis added], contamination, etc.).

CCPS also provides guidance2 in applying appropriate practices to prevent accidents including practices for personal protective equipment (PPE). CCPS states that PPE is not a primary defense against hazards. They state that direct hazard control through engineering and administrative controls must come first. PPE is then used as a supplemental measure against hazards. CCPS lists flame/fire retardant coveralls as a full body protection against flash fires.

OSHA Requirements: Based on the large quantity of flammable materials (liquids, solids, and gasses) and reactive chemicals that are handled/processed with associated on-site movement activities at your facility, we believe any worksite assessment required by OSHA or NFPA 2113 would conclude that: 1) flash fire hazards do exist on a continuous basis in various areas (including but not limited to operating, storage, loading/off-loading, etc.) at your facility; and 2) when employees such as operators and maintenance personnel are in the areas where flash fire hazards exist, your employees must wear flame-resistant garments/flame-resistant clothing to protect against the flash fire hazards.

It is possible, then, that if an employer has such flash fire hazards present and fails to address them, OSHA could issue a citation for a violation §1910.132(a), the general requirement to provide protective equipment, including protective clothing (emphasis added), when necessitated by a hazard. A citation could be issued whether or not there had been an accident that precipitated the inspection.

Additionally, since your facility is covered under the PSM standard, and you have determined that a flash fire hazard exists to a degree that you decided to institute a plant wide flame-resistant clothing program, you are required by §1910.119(f)(1)(iii)(B) to include in your operating procedures any precautions necessary to prevent exposure, including engineering controls, administrative controls, and personal protective equipment (emphasis added). This necessary PPE includes, in your case, flame-resistant clothing for your employees. Further, OSHA would expect that your mechanical integrity procedures [1910.119(j)(2)] utilized by your maintenance workers would include your requirement to wear flame-resistant clothing in and/or near covered processes which have flash fire hazards. If your operating or mechanical integrity procedures include requirements for employees to wear flame-resistant clothing in or near PSM-covered processes which include flash fires and it is determined by OSHA that employees are not wearing the specified PPE, the employer may be cited for failing to implement their operating or mechanical integrity procedures [§1910.119(f)(1) or §1910.119(j)(2), respectively].

In summary, if OSHA inspects a facility with a PSM-covered process that includes flash fire hazards and the employer has not conducted a hazard assessment to determine PPE needs with respect to the hazard and the employer has not developed operating or mechanical integrity procedures which require employees to wear flame-resistant clothing to protect themselves when they are near the flash fire hazard, the employer may be cited for 1910.132(a), 1910.132(d), 1910.119(f)(1)(iii)(B) and/or 1910.119(j)(2). If the employer has conducted the hazard assessment required by 1910.132(d) and has determined a need for flame-resistant clothing and has incorporated that requirement into their operating and mechanical integrity procedures but employees do not wear the flame-resistant clothing, the employer may be cited for 1910.132(a), 1910.119(f)(1) and/or 1910.119(j)(2) for failing to implement their procedures.

Additionally, if contractors are utilized at your facility, OSHA would expect contract employees to wear flame-resistant clothing in your facility when they conduct work activities for which they are exposed to flash fire hazards. One key for determining if contract employees need flame-resistant clothing would be to examine the requirements for the your (host employers) employees — if the host employer requires flame-resistant clothing for its employees for various locations and work activities throughout their facility, then contract employees would also be required to wear flame-resistant clothing for the same activities. Depending on the degree of their involvement with the covered process and their specific work activities, if contract employees do not wear flame-resistant clothing when required, contract employers may be subject to violations of 1910.119(f), 1910.119(j), and/or 1910.119(h)(3). Additionally, you (host employer) may be cited for violations of 1910.119(h)(2)(iv) and 1910.119(h)(2)(v) for not assuring contract employees wear flame-resistant clothing in your facility when they are exposed to flash fire hazards when working on or near a PSM-covered process.

Question #2: Are PSM-covered facilities required to have a flame-resistant clothing program before they can apply to participate in the Voluntary Protection Program (VPP)?

Response: The VPP application does not specifically require documentation of a flame-resistant clothing program, only that applicants describe and provide examples of the PPE employees are required to use at the facility. If during the on-site document review and walk-around inspection, the OSHA VPP audit team determines that the use of flame-resistant clothing is necessary but is not currently being implemented, they would then work with the employer to correct the deficiency. If cooperative efforts fail, the team has a responsibility to recommend enforcement action to the OSHA Assistant Secretary.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHAs interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHAs website at http://www.osha.gov.

If you have any further questions regarding the enforcement of OSHA regulations, please feel free to contact the Office of General Industry Enforcement at (202) 693-1850. If you have further questions regarding OSHAs Voluntary Protection Programs, please call the Office of Partnerships and Recognition at (202) 693-2213.

Sincerely,

Richard E. Fairfax, Director
Directorate of Enforcement Programs

Cc: Michael Connors, Regional Administrator
Gary Anderson, Area Director