OSHA Issues Standard Interpretation on 'Sludge Exempt' Regulations

If sludge has a characteristic of hazardous waste but is not a solid waste when reclaimed, is it not hazardous waste, after all? Which OSHA standards apply to workers handling such material, and what are the associated employer obligations for employee hazard communication? Finally, if it's true that under EPA's Federal Sludge Exemption the material is not hazardous waste, is the sludge exempt from OSHA's HazCom and HAZWOPER standards? In answer to these questions, OSHA posted a Letter of Interpretation (LOI) on its Web site yesterday, saying, in a nutshell, that no matter how EPA might classify the material, if it poses a physical or health hazard then, for compliance, the HazCom and HAZWOPER standards will apply.

"It should be understood that just because a material is not classified by the EPA as a hazardous waste doesn't mean that it is not hazardous from the standpoint of OSHA compliance," says the LOI, written by the Directorate of Enforcement Programs Director Richard E. Fairfax. "[T]he HCS provides no exemption for materials that do not meet the EPA definition of a hazardous waste.

"Therefore, if the sludge material meets the definition of a physical or health hazard as defined in the HCS, then the HCS applies. OSHA has no way of knowing whether the material (sludge) meets this definition. Rather, it is the chemical manufacturers' or importers' responsibility to make this determination and assess whether there is exposure, or potential exposure, to workers."

Fairfax added that those who receive sludge should ask the supplier for a material safety data sheet for the product. "Your supplier is required to conduct a hazard determination of the materials they are producing and communicate that information on the MSDS for the material. Suppliers are also required to label the containers of the distributed materials," he wrote.

Regarding specifically the HAZWOPER standard, the LOI notes that Section q of the standard covers emergency response operations for releases of, or substantial threats of releases of, hazardous substances without regard to the location and that, like the HazCom standard, its intent is to protect employees from exposure to the health and physical hazards of hazardous substances. "The definition of 'hazardous substance' under Section (a)(3) of HAZWOPER encompasses those substances defined as hazardous by the EPA and the U.S. Department of Transportation, and includes four distinct categories (see 1910.120(a)(3)(A-D)). Only one of these categories specifically refers to 'hazardous waste.' Therefore, the term hazardous substance covers a broad range of materials including, but not limited to, hazardous waste," Fairfax wrote. The complete text of the LOI, asked and answered in 2005 but posted Feb. 28, 2008, is available on OSHA's Web site at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=25951.

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