October 10, 1989

Richard F. Boggs, Ph.D.
Organization Resources Counselors
Vice President
1910 Sunderland Place, NW
Washington, DC 20036

Dear Dr. Boggs:

I apologize for the delay in responding to your May 18 letter requesting clarification of several issues related to our Hazardous Waste Operation and Emergency Response rule. You have already received a response to most of the issues from our compliance office. I believe it responds to most of your concerns.

In response to the specific concerns given in your letter to Safety Standards, I offer the following. First, the Occupational Safety and Health Administration (OSHA) is assuming jurisdiction for the safety and health of employees involved as emergency responders and those in the clean-up of water-borne releases of hazardous substances which is consistent with the National Response Team (NRT) Policy (Attachment A). Spills that occur on the U.S. territorial waters covered by the Outer Continental Shelf (OCS) Lands Act, are not covered by OSHA (See Attachment B) I understand that the Coast Guard has jurisdiction for releases that remain solely water-borne on the OCS. Also the Coast Guard, under the NRT, will have the lead responsibility for water pollution concerns on navigable waterways (See Attachment A). As for ships' crews (See Attachment C) the Coast Guard has the coverage for crews on vessels that have a current and valid certificate of inspection. Also most oil transport vessels are certificated vessels. As for non-certificated vessels, these ships' crews are covered jointly by OSHA and the Coast Guard. However, all waters in-shore of the OCS are covered by OSHA.

Second, we certainly agree that securing a release and containing the released product is of importance to first responders. Our primary concern is that first responders making the initial containment response have the necessary training and proper equipment to safely conduct that response.

Employees who provide the initial emergency response to releases of hazardous substances outside their immediate work area and who are within OSHA jurisdiction must meet the requirements of 29 CFR 1910.120. Employers such as oil clean-up cooperatives, who we believe are similar in nature and operation to mutual-aid organizations, must provide their employees with the proper training and equipment required in 29 CFR 1910.120. Ships' crews, on the other hand, are much like flight crews on airplanes or train crews on the railroads, and these employees are protected by regulations issued by the U.S. Department of Transportation (DOT) as previously discussed. OSHA would be pre-empted from coverage of these employees when DOT has issued such rules.

Third, second responders who arrive hours or days after an event may fall into two categories. The first group would be those employees of the employer who is responsible for the release of a hazardous substance and may function as specialist employees. Any employees in this group would be considered part of the emergency response group and would be covered by 29 CFR 1910.120(q). The second group would be those employees of contractors called in to help with clean-up after the emergency is controlled or over. This group of employees would be covered by (q)(11)(i).

With regard to your specific example of using local fishermen, we would consider those types of workers to be "skilled support personnel" regulated under (q)(4). This category of worker was included in paragraph (q) to recognize the need at times for fast-response assistance by individuals who possess needed skills and equipment to an emergency scene.

Finally, with respect to clean-up work performed by unskilled labor and volunteers, we still require proper training and equipment for those individuals who meet the definition of "employee" and are being exposed to hazardous substances. Some volunteers may be outside the OSHA "employer-employee" relationship, however, they still deserve the necessary protection for their own health and safety.

You also asked about generic plans for "post-emergency" clean-up operations. I believe that Ms. Clark addressed this issue in her response to you, and we support and concur in that response We will also be considering your comments on our training certification standard during the development of that rule. We look forward to meeting with you and discussing the project as it proceeds through the regulatory process.

Thank you for bringing the concerns of ORC to my attention and if I can be of further assistance in explaining our rule, please let me know. Again, I apologize for the lateness of our response.

Sincerely,



Thomas H. Seymour, P.E.
Deputy Director,
Directorate of Safety Standards Programs




May 18, 1989

Mr. Thomas Seymour
Deputy Director,
Directorate of Safety Standards Programs
Occupational Safety and Health Administration
U.S. Department of Labor
Room N-3609
200 Constitution Avenue, N.W.
Washington, DC 20210

Dear Mr. Seymour:

During an ORC meeting with Mike Moore of your staff on April 19, ORC was told that OSHA is considering preparation of a "correction notice" regarding the Hazardous Waste Operations and Emergency Response Standard (HAZWOPER) that was published March 6, 1989. We request that you consider the following during your deliberations about the content of that notice. It is not clear to ORC whether OSHA or the Coast Guard or Mineral Management Service (MMS) has jurisdiction over oil spills on water. If OSHA determines that HAZWOPER applies to such an event, we ask that OSHA consider the following:

Our most significant concern is about the application of HAZWOPER to petroleum spills on water, which are not the focus of the standard, but which are apparently covered. The implications of the Standard are most serious in the early stages of the event when rapid action is crucial. This is also the time when the oil is most volatile. The following are ways in which the Standard could affect/delay effective response:

a. Securing the leak and containing the spilled oil are the first responders' objectives immediately following the spill. These actions may make a great difference in the ultimate environmental impacts of the spill. First responders may include crews from the spilling company (e.g., ship's crews) or field crews from onshore, oil clean-up cooperatives, or the U.S. Coast Guard or other responders. Cooperatives generally have a small cadre of trained people, who could receive HAZWOPER training prior to an accident. Ship's crews could also receive prior training, but this standard would have to be added to current programs and U.S. Coast Guard regulations governing merchant marine personnel and vessel operations.

b. Second responders (those arriving hours or days after the event) are concerned with recovery of the oil from the water surface, protection of sensitive areas, dispersal operations, bird and mammal rescue, and clean-up. For a large spill on water, fishermen may be used to deploy booms. Their knowledge of local conditions and currents may be very important in protecting sensitive areas such as fish hatcheries. Certain provision of HAZWOPER, including training and site-specific planning and perhaps others, would significantly delay this response.

Clean-up is often done using unskilled labor. Such personnel, as well as volunteers, have been used in the bird and mammal rescue efforts. Training of such clean-up personnel would be feasible if appropriate and more focused training was allowed for clean-up, and would not significantly jeopardize clean-up. Second responders include, in addition, operating company and corporate response team members as well as contractors, and consultants.

As is evident, this is an extremely complex area. ORC requests that OSHA investigate the application of the Standard and clarify how marine spills of petroleum products were intended to be covered by this standard in the correction notice. In addition, it is important that OSHA coordinate this issue with EPA and the U.S. Coast Guard.

Second, ORC requests that OSHA clearly provide for generic plans for poet-emergency operations Paragraph (q)(11) of the Standard addresses "Post Emergency Response Operations." In the event of a hazardous substance release resulting in emergency response activities and post emergency response operations, there is a potential threat to the environment as well as to employees. Because of this, time is of the essence in eliminating the source of, and containing the environmental contamination. Preparation of the lengthy site-specific plan required by paragraphs (b) - (o) would take considerable time and resources.

Therefore, OSHA should make it clear that it is permissible for employers to develop a "generic plan" for post-emergency clean-up operations. This would be a detailed plan addressing appropriate elements of paragraphs (b) - (o), which can be filled in with specifics when an event occurs. Since these types of operations are not as extensive as those at hazardous waste sites, it is likely that some elements of (b) - (o) will not be necessary at a particular workplace and others will have only limited applicability. Inspectors should therefore not cite employers for including only relevant elements or (b) - (o) in a particular plan.

A third concern regards the proposed regulation your office is currently developing for training certification under HAZWOPER.

This rule will have significant impact on industry across the board, as well as on local emergency response agencies when EPA adopts it. The application of the training and certification amendment to operations conducted under the Resource Conservation and Recovery Act of 1976, (paragraph (p) of the HAZWOPER standard) is unclear. It is important that if these requirements are applied to such employees, OSHA should recognize that maintenance work is a special case and should receive special consideration.

We would be pleased to discuss these issues with you or your staff and look forward to your response.

Sincerely,



Richard F. Boggs, Ph.D.
Vice President