{"operation":"document","citation":"10-0225","title":"HazMat Resources, Inc. — Hazardous Materials Safety Interpretation","source_type":"guidance","agency":"Pipeline and Hazardous Materials Safety Administration","status":"guidance","official":true,"published_on":"2011-09-22","effective_on":null,"summary":"10-0225 response to HazMat Resources, Inc. concerning 172.704, 177.834.","machine_formats":{"json":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0225.json","markdown":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0225.md"},"app_url":"https://regulus.evalyn.ai/document/phmsa-interpretation-10-0225","source_url":"https://www.phmsa.dot.gov/sites/phmsa.dot.gov/files/legacy/interpretations/Interpretations/2010/100225.pdf","body":"<<<PAGE 1>>>\n\nU.S. Department Washington. DC 20590\n1200 New Jersey Avenue SE\nof Transportation\nPipeline and Hazardous\nMaterials Safety\nAdministration\nSEP 22 2011\nMr. Daniel G. Shelton\nPresident\nHazMat Resources, Inc.\n124 Rainbow Drive, #2471\nLivingston, TX 77399\nRef. No.: 10-0225\nDear Mr. Shelton:\nThis responds to your letter regarding training requirements under the Hazardous Materials\nRegulations (HMR; 49 CFR Parts 171-180) applicable to a truck driver who is responsible for\nloading and unloading hazardous materials from a cargo tank motor vehicle with the power unit\nattached. Specifically, you are unclear on whether the Occupational Safety and Health\nAdministration (OSHA) or the Pipeline and Hazardous Materials Safety Administration\n(PHMSA) has jurisdiction over the transportation ofhazardous materials in commerce. In\naddition, you ask ifthe HMR require:\n(1) The hazmat employer to provide the first aid training to this hazmat employee?\n(2) The hazmat employer to provide CPR training to the hazmat employee?\n(3) The hazmat employer to provide lo~k out/tag out training to the hazmat employee?\n(4) The hazmat employer to provide the hazmat employee a respirator, perfonn fit testing,\nhave a medical monitoring program and be required to detennine at a loading or\nunloading facility if the airborne concentration identified on the material safety data sheet\nis above the \"Time Weighted Average\" (TWA) and instruct the hazmat employee to don\nthe respirator?\n(5) Ifthis hazmat employee loaded, transported, or unloaded Anhydrous ammonia, would\nOSHA or PHMSA require the hazmat employer to provide the hazmat employee a\nrespirator, perfonn fit testing, have a medical monitoring program and be required to\ndetennine at a loading or unloading facility ifthe airborne concentration identified on the\n\n<<<PAGE 2>>>\n\nmaterial safety data sheet is above the Time Weighted Average (TW A) and instruct the\nhazmat employee to don the respirator.\nFirst, in response to your OSHAlPHMSA jurisdiction question - both PHMSA and OSHA have\nauthority over the handling ofhazardous materials in transportation. This authority is granted\nto PHMSA by 49 U.S.C. §§ 5103; 5106 and to OSHA through 49 U.S.C. § 5107(g){2). The\nHMR applies to the transportation ofhazardous materials in intrastate, interstate, and foreign\ncommerce.\nFor example, under the HMR, a cargo tank must be attended by a 'qualified' person at all times\nwhen it is being loaded or unloaded. The person who is responsible for loading the cargo tank\nis also responsible for ensuring that it is so attended (§177.834(i)). A person is qualified if\nthey have been made aware ofthe nature of the hazardous material (e.g., Anhydrous ammonia)\nbeing loaded or unloaded, have been instructed on emergency procedures, are authorized to\nmove the cargo tank, and have the means to do so (§177.834{i)(4)). The attendee (Le.,\nqualified person) must also meet the prescribed hazmat employee training requirements ofPart\n172, Subpart H, which require general awareness, function-specific, safety, and security\nawareness training.\nSecond, in response to your questions regarding training - all ofthe training in question may be\nrequired. This decision is based on the functions performed by the hazmat employee.\nTraining conducted by employers to comply with the hazard communication programs required\nby OSHA (29 CFR 1910.120 or 1910.1200) or other mandated training requirements may be\nused to the extent that such training satisfy the general awareness, function-specific, safety, and\nsecurity awareness training requirements (See § 172. 704(b)).\nFor further information regarding OSHA's policies or training programs please access their\nwebsite at www.dol.gov, or contact OSHA's Outreach Training Program via email at\noutreach@do1.gov, or by phone at (847) 725-7810. Please send written correspondence to:\nDirector\nOSHA Office ofTraining and Educational Programs\n2020 S. Arlington Heights Road\nArlington Heights, IL 60005-4102\nI hope this information is helpful. Ifwe can be of further assistance, please contact us.\nSincerely,\n~S~\nBen Supko\nActing Chief, Regulations Development\nStandards and Rulemaking Division\n\n<<<PAGE 3>>>\n\n124 Rainbow Drive, # 2471\nLivingston, TX 77399\nOctober 22,2010\nU.S. Department of Labor - OSHA\nAttn: Thomas Galassi, Director\nDirectorate of Enforcement Programs\nRoom N3112\n200 Constitution Ave., NW\nWashington, DC 20210\nMr. Charles Betts\nActing Director, Office of Hazardous Materials Standards\nU.S. Department of Transportation\nPipeline and Hazardous Materials Safety Administration\nEast Building, 2nd Floor\nMail Stop: E21-317\n1200 New Jersey Ave., SE\nWashington, DC 20590\nTo Whom it May Concern,\nPlease accept this letter as an official request for an interpretation of the training requirements for a\ntruck driver who is responsible for loading and unloading hazardous materials from a cargo tank motor\nvehicle with the power unit attached. The Department of Transportation (DOT) has for a long period\nof time regulated the loading, storage incidental to movement, transportation and unloading of\nhazardous materials. I and others believe based on information from the Occupational Safety and\nHealth Administration (OSHA) web site: http://www.osha.gov/SLTC/truckingindustry/index.html\nthat OSHA has no intention nor has any desire to exercise jurisdiction over the transportation of\nhazardous materials in commerce when the DOT has regulations governing those transportation\nactivities. Here is an example of the information identified on the OSHA web site:\nJurisdiction\nWhen another Federal agency has regulated a working condition, OSHA is preempted by Section 4(b)1\nfrom enforcing its regulations. For example:\n• The Department of Transportation (DOT) regulates driving over public highways, the health\nand safety of drivers involving their use of drugs and alcohol, hours of service, and use of seat\nbelts. DOT also regulates the road worthiness of trucks and trailers and has specific\nrequirements for the safe operation of trucks.\n\"Adliiflg v,alue and creating wealt~ for your organization bblUUi\nOlf commitment to per:sonaUzed customer service\"\nFax (877) 841-6023 Phone (423)863-2252\n\n<<<PAGE 4>>>\n\n• DOT has jurisdiction over interstate commerce while OSHA has jurisdiction over intrastate\ncommerce except when handling hazardous materials. The DOT has issued regulations\nregarding the shipping, packaging, and handling of these materials. However, if a truck driver\nbecomes an emergency responder in the event of a spill or other disaster, then OSHA has\njurisdiction.\n• The Federal Aviation Administration (FAA) regulates flight crews and some other aspects of\nthe safety of ground crews. If there is a clause that covers a working condition in an operational\nplan negotiated between the carrier and the FAA, the FAA has jurisdiction over that working\ncondition. Otherwise, OSHA covers most of the working conditions of ground crews and\nbaggage handlers.\n• Due to the DOT brake regulation, OSHA does not cite for failure to chock trailer wheels if a\nvehicle is otherwise adequately secured. DOT's regulation preempts enforcement and DOT has\njurisdiction. However, if the vehicle is an intrastate truck, OSHA has jurisdiction. Only another\nFederal agency may preempt OSHA's jurisdiction.\nAdditionally, in a letter sent to Mr. Paul M. Bomgardner, Hazardous Materials Specialist for the\nAmerican Trucking Association,2200 Mill Road, Alexandria, Virginia 22314 on October 8, 1991\nOSHA once again reaffirmed its position that their jurisdiction over truck drivers was limited to those\nemployees who performed emergency response activities. A copy of this letter is attached in its\nentirety.\nThe DOT has attempted to clarifY when transportation begins and ends. These regulations were\npublished as a result of HM-223 but in actuality there are some who believe that HM-223 blurred the\nlines even more and allowed for dual regulation of employees by OSHA, EPA and the DOT even when\nthese hazmat employees are clearly performing transportation functions. Additionally the DOT has\nclear training requirements for all hazmat employees identified in §49 CFR Part 172.700 704. Those\ntraining requirements include the following:\n);> General Awareness and Familiarization Training\nThis training that will enable the employee to recognize and identify hazardous materials\nconsistent with the hazard communication standards of this subchapter;\n);> Function Specific Training\nApplicable to the functions the employee is required to perform, i.e. loading gasoline in a cargo\ntank motor vehicle or loading compressed gasses in a cargo tank motor vehicle;\n);> Safety Training\nRequires the hazmat employee to be trained on emergency response information and measures\nto protect the employee from the hazards associated with hazardous materials to which they\nmay be exposed in the work place, including specific measures the hazmat employer has\nimplemented to protect employees from exposure; and\n);> In-Depth Security Awareness Training\nThis includes company security objectives, organizational security structure, specific security\nprocedures, specific security duties and responsibilities for each employee, and specific actions\nto be taken by each employee in the event of a security breach.\n\"Adding value and creating wealt~ for your organization thlru\nour commitment to personalized customer service\"\nFax (877) 841-6023 Phone (423)863-2252\n\n<<<PAGE 5>>>\n\nAll these training requirements are DOT training requirements and it is my belief that the DOT has\njurisdiction over these hazmat employees because they are performing transportation functions,\nFollowing is a typical scenario: A person is employed as a truck driver (Hazmat Employee)! for a\ntrucking company (Hazmat Employeri and operates (drives) a cargo tank motor vehicle. Once the\nperson leaves the truck yard they are the only person on the vehicle. The persons job duties include\nloading gasoline and propane at loading racks, transporting the gasoline and propane to either service\nstations or propane bulk plants and unloading the gasoline to the service station and unloading the\npropane at the bulk plant. In addition to these job duties the person may adjust their brakes, replace a\nlight that is defective, may grease their tractor or trailer or perform other minor preventive maintenance\nauthorized by the persons qualification to ensure the required parts and accessories identified in §49\nCFR 392.7 are in proper working order. These minor preventative maintenance activities may be\nperformed by the person either at a roadside parking area designed for trucks when they are required to\ncheck braking systems prior to descending a steep grade or on private property but at no time would\nthese minor preventive maintenance activities be performed by the person in a fixed shop facility.\nPlease provide responses to the following questions based on the above scenario.\nTransporting Hazardous Materials and Operating in Interstate Commerce\nQuestion 1 - Does OSHA or DOT require the Hazmat Employer to provide first aid training to this\nHazmat Employee?\nQuestion 2 Does OSHA or DOT require the Hazmat Employer to provide CPR training to the\nHazmat Employee?\nQuestion 3 - Does OSHA or DOT require the Hazmat Employer to provide lock out/tag out training\nto the Hazmat Employee?\nQuestion 4 Does OSHA or DOT require the Hazmat Employer to provide the Hazmat Employee a\nrespirator, perform fit testing, have a medical monitoring program and be required to determine at a\nloading or unloading facility if the airborne concentration identified on the material safety data sheet is\nabove the Time Weighted Average (TWA) and instruct the hazmat employee to don the respirator?\n! Hazmat employee means (l) A person vmo is: el) Employed on a fllll~time, part time, Of temporary basis by a hazmat employer and who in the course of such full bme, part time or temporary employment\ndirectly affects hu..ardous materials transportation safety, (il) Self-employed (mcluding an owner-operator of a motor vehicle, vessel. Of alrcraft) transporting hazardous materials in commerce who m the\ncourse of such self-employment dIrectly affects hazardous materials transportation safety; (in) A rrulroad Signalman, or (IV) A railroad mamtenance-of-way employee.\n(2) This term includes an mdividual. employed on a full time, part time, or temporary basiS by a hazmat employer, or 'WhQ is self~mpJoyed, who during the course of employment 0) Loads, unloads, or\nhandles haz:ardous materials; «(1) Designs, manufactures, fabricates. mspects, marks, mnintams, reconditIons. repairs, or tes1s a package, container or packaging oomponent that 15 represented, marked.\ncertified, or sold as qualified for USe m transportmg hazardous material in commerce, (ill) Prepares hazardous materials for transportahon, (iv) Is responsible for safety oftransportmg hazardous matenals~\n(v) Operates a vehicle used to transport hazardous materials.\n2 Hazmat employer means: (1) A person who employs or uses at least one hazmat employee on a full-ume, part time, or temporary ba'iis; and 'Who: (I) Transports hazardous marenals lfi commerce; (il)\nCauses hazardous materials to be transported In commerce; or {iit) Designs, manufactures, fabncates, mspects. marks, mamtall1S, reconditions. repairs or tests a package. container, or packagmg component\nthat is represented, marked, certified, or sold by that person as qualified for use in transportmg hazardous materials in commerce;\n\"Adding value and creating wealt~ for your organization thru.\nour commitment to personalized customer service\"\nFax (877) 841-6023 Phone (423)863-2252\n\n<<<PAGE 6>>>\n\nQuestion 5 - If this Hazmat Employee loaded, transported or unloaded Anhydrous Ammonia, would\nOSHA or DOT require the Hazmat Employer to provide the Hazmat Employee a respirator, perform\nfit testing, have a medical monitoring program and be required to determine at a loading or unloading\nfacility if the airborne concentration identified on the material safety data sheet is above the Time\nWeighted Average (TWA) and instruct the hazmat employee to don the respirator?\nTransporting Hazardous Materials and Operating in Intrastate Commerce\nQuestion 6 - Does OSHA or DOT require the Hazmat Employer to provide first aid training to this\nHazmat Employee?\nQuestion 7 - Does OSHA or DOT require the Hazmat Employer to provide CPR training to the\nHazmat Employee?\nQuestion 8 - Does OSHA or DOT require the Hazmat Employer to provide lock outitag out training\nto the Hazmat Employee?\nQuestion 9 - Does OSHA or DOT require the Hazmat Employer to provide the Hazmat Employee a\nrespirator, perform fit testing, have a medical monitoring program and be required to determine at a\nloading or unloading facility if the airborne concentration identified on the material safety data sheet is\nabove the Time Weighted Average (TWA) and instruct the hazmat employee to don the respirator?\nQuestion 10 If this Hazmat Employee loaded, transported or unloaded Anhydrous Ammonia, would\nOSHA or DOT require the Hazmat Employer to provide the Hazmat Employee a respirator, perform\nfit testing, have a medical monitoring program and be required to determine at a loading or unloading\nfacility if the airborne concentration identified on the material safety data sheet is above the Time\nWeighted Average (TWA) and instruct the hazmat employee to don the respirator?\nI believe that we all understand it is impossible to identify every possible activity and every situation\nthat a person may become involved in while transporting hazardous materials and for that reason I\nhave attempted to narrow the focus to specific hazardous materials being transported in cargo tank\nmotor vehicles. I thank you in advance for your prompt reply.\nSincerely\nDaniel G. Shelton\nPresident\nHazMat Resources, Inc.\n\" AddiItg value and creating wealt~ for your organization tbru\nour commitment to personalized customer service\"\nFax (877) 841-6023 Phone (423)863-2252","truncated":false,"body_characters":15956}