September 11, 1989

Mr. C. T. Sawyer
Vice President
American Petroleum Institute
1220 L Street, N.W.
Washington, D.C. 20005

Dear Mr. Sawyer:

This is in response to your letter dated July 21 addressed to Acting Assistant Secretary Alan C. McMillan, concerning the application of 29 CFR 1910.120 to post-emergency clean-up operations including oil spill clean-ups.

As you are aware, under the post-emergency response operations requirements of 29 CFR 1910.120(q)(11) an employer has the option of complying with one of the following:

1. Meet all of the requirements of paragraphs (b) through (o) of 29 CFR 1910.120; or

2. Where the cleanup is done on plant property using plant or workplace employees, such employees shall have completed the training requirements of the following: 29 CFR 1910.38(a); 1910.134; 1910.1200, and any other appropriate safety and health training made necessary by the tasks that they are expected to be performed such as personal protective equipment and decontamination procedures.

It appears that the relief you are requesting is for the Occupational Safety and Health Administration (OSHA) to allow employers involved in the clean-up of oil spills to comply with option 2 above. Since the standard explicitly makes the distinction between activity done on plant property versus activity off the plant site, we believe that a compliance directive is not the appropriate medium for addressing your request.

I have forwarded a copy of your letter to Barry White, Director of Safety Standards Programs. As you know, the standard is being challenged in the United States Court of Appeals for the District of Columbia Circuit. AFL-CIO et al v OSHA, No. 89-1296. Training is one of several provisions that the Court is being asked to review in that case, in which the API has intervened. In addition, OSHA intends to publish a Notice of Proposed Rulemaking setting forth requirements that initial training for employees be given only through training programs with OSHA certification.

In general, OSHA will be enforcing the need for a minimum of 24 or 40 hours of training as specified in 29 CFR 1910.120 (e). There may be cases where OSHA's variance procedures may be appropriate or where OSHA would determine that a specific situation at a worksite warrants a de minimis violation. For further information on OSHA's variance procedures you can contact Mr. James Concannon at (202) 523-7193.

I hope this information is helpful. If we can be of further assistance, please let me know.

Sincerely,



Thomas J. Shepich, Director
Directorate of Health Compliance




July 21, 1989

Mr. Alan C. McMillan
Acting Assistant Secretary of Labor
Occupational Safety and Health Administration
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Mr. McMillan:

On Tuesday, June 6, 1989 we hand delivered the attached request for administrative relief to your office. A follow-up call was placed on July 13th to determine the status of this request. At that time it was learned that there was no record of receipt of the letter by your office.

A copy of the original letter is attached for your consideration and action.

Please contact Michael Donahue of my staff at 682-8135 for any additional information.

Sincerely,



American Petroleum Institute
1220 L Street, Northwest
Washington D.C. 20005
202-682-8140

C. T. Sawyer Vice President




June 6, 1989

Mr. Alan C. McMillan
Acting Assistant Secretary of Labor
Occupational Safety and Health Administration
200 Constitution Avenue, NW
Washington, DC 20210

Dear Mr. McMillan:

The American Petroleum Institute (API) is a trade association representing over 200 companies involved in all aspects of the petroleum and petrochemical industry, including exploration, production, transportation, refining, and marketing.

As you are aware, Section 126 of SARA Title I required OSHA to develop regulations to protect workers involved in hazardous waste operations at uncontrolled hazardous waste sites. OSHA published interim regulations (December 19, 1986); proposed permanent regulations (August 10, 1987); and promulgated final regulations (March 6, 1989). These final regulations (29 CFR 1910.120) become effective March 6, 1990. In the course of the regulatory development, OSHA also addressed emergency response to spills of hazardous substances.

The final rule can be interpreted to require implementation of a comprehensive plan complying with section 1910.120 paragraphs (b) through (o) [intended for hazardous waste sites], to satisfy the post-emergency clean-up provisions following an emergency response to a hazardous substance release [see section 1910.120(q)(11)]. Under such an interpretation, a comprehensive plan meeting the requirements of paragraphs (b) through (o) would be required before spill clean-up operations could begin. Further, it could be read as requiring employees involved with the clean-up to have 40 hours of training plus 24 hours of directly supervised field activities (total 8 days) before performing clean-up operations.

We accept the need for appropriate training of post-emergency response clean-up workers. However, interpreting the rule to require oil spill clean-up workers to have five days of advance training (as is required for workers at hazardous waste sites) may delay and hamper efforts to contain such spills, begin recovery, and protect the environment. These could be large volume spills requiring large numbers of clean-up workers and the rule mandates enormous training requirements which would be exacerbated by the high turnover in the type of work involved.

Training for clean-up workers can be accomplished more efficiently and in a much more timely fashion by dealing directly with the relevant hazards. Such training can address safety issues, health issues, personal protective equipment, decontamination, general operational safety, emergencies, and respiratory protection (if needed). A general outline of such a training plan is attached.

In summary, it is important that API member companies ensure the protection of employees and those who do contract work for us. At the same time, we believe we have an obligation to rapidly control spills and any subsequent environmental impacts when they occur.

We believe this is a matter which requires your consideration. One possible solution would be to note with some specificity in the compliance directives presently being prepared on this subject that training requirements for oil spill clean-up persons working in the post emergency response mode should be oriented around an agenda such as attached, but not be time constrained.

We are ready to meet with you and your staff to discuss these issues further.

Sincerely,



Thomas J. Shepich, Director
Directorate of Health Compliance