February 25, 1991

Mr. C. L. Pettit
Senior Analyst
Remedial Contractors Institute
Suite 1000
1730 Rhode Island Avenue, N.W.
Washington, D.C. 20036

Dear Mr. Pettit:

This is an update to your inquiry of December 20, 1990, concerning guidelines recently issued by the Occupational Safety and Health Administration (OSHA). We appreciate the opportunity to give you information on the intent of these guidelines (OSHA Instruction CPL 2-2.51).

The intent of this instruction is to ensure uniform enforcement of training under the Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120) for employees involved in post-emergency response operations. When sufficient training on safety and health issues pertinent to specific work-site is provided to cleanup workers but the specific number of hours required by the standard (29 CFR 1910.120(q)(11)(ii)) is not given, a de minimis violation may exist. This policy only applies where there is a low magnitude of risk to the post- emergency clean-up workers. Strict criteria, as outlined in G.3. of the instruction, must be met in order to classify such violations as de minimis. A minimum of 24 or 40 hours of training is required for all other post-emergency clean-up workers unless the cleanup is done on plant property using plant or workplace employees (see 29 CFR 1910.120(q)(11)(ii)). Thus, at a site off the plant property where there are varying magnitudes of risks to the post-emergency clean-up workers, low- risk employees must have at least 4 hours of training while 24 or 40 hours may be appropriate for other workers.

It is the responsibility of the employer to comply with OSHA standards. Thus, employers should determine to the extent feasible, worst-case clean-up scenarios (i.e., those with the highest safety and health risk) that employees may participate in and train them accordingly. If there is uncertainty as to the potential safety and health risks to the workers then it is prudent that the employer errors on the side of more training for the workers. Generally, OSHA's involvement with this policy will be during safety and health inspections. OSHA's Regional Response Team members are responsible for reviewing de minimis citations proposed by OSHA field offices to ensure uniform OSHA implementation of the guidelines.

The guidelines do not differentiate between occasional versus longer duration jobs during post-emergency response cleanup. The policy applies to both if the low risk and other criteria is met. If the criteria is not met, employees involved in either short or long duration cleanup would need a minimum of 24 or 40 hours of training depending on the anticipated level of exposure to safety and health hazards.

You inquired why the de minimis policy does not extend to initial responses for spills of relatively innocuous materials. Emergency response provisions in 29 CFR 1910.120(q) already address tiered training requirements (varying hours of training hours) based on the anticipated job duties and responsibilities of the responders. I want to stress again that it is important that emergency responders be trained for the worst-case scenario they may be asked to assist. Employees who are only involved in spill cleanups of hazardous substances where there is no probable likelihood of an emergency would not be covered by 29 CFR 1910.120; other OSHA standards, such as the Hazard Communications Standard (29 CFR 1910.1200), would be applicable.

We hope this information is helpful.

Sincerely,



Gerard F. Scannell
Assistant Secretary