May 22, 1991

Mr. Frank E. Frye
Regulatory Compliance Specialist
Lafayette Utilities System
Water Division
200 North Buchanan Street
Post Office Box 4017-C
Lafayette, Louisiana 70502

Dear Mr. Frye:

This is in response to your inquiry to Roslyn Ammons concerning the application of the Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120) to utility crews. Please accept my apology for the delay in this response. Your letter was inadvertently misplaced in the docket for this standard.

You cited the following two emergency incidents where there has been controversy over the classification of the level of response for the utility workers.

1. A transformer (assumed to be PCB) had a hole in the bottom of it and was leaking oil. The Electric Utilities crews climbed the pole and plugged the leak, then removed and replaced the transformer. During this procedure, other electric workers cleaned up the spill area. Meanwhile the Fire Dept. HazMat Team stood by and watched the operations.

2. An unknown source of a gas leak caused three explosions, damaging a building, a transformer and a man hole. The Civil Defense was activated. The electric utility workers (while wearing SCBA units) did all the digging and removal of conduits, in search for the gas source. The Fire Dept. stood by with water lines in case of fire or another explosion.

You mentioned that the fire department considered the utility workers skilled support personnel that need no training while the utility workers considered their activity at the technician level. Both the fire department and utility company are required to have an emergency response plan which addresses personnel roles, lines of authority, training, and communication (see 29 CFR 1910.120(q)(2)). However, the city of Lafayette could have a comprehensive plan for all city employees. The amount of training must be based on the duties and functions to be performed by each responder.

If the plan is to have personnel take an aggressive role in responding for the purposes of stopping the leak then training at least to the technician level is appropriate.

I hope this information is helpful.

Sincerely,



Patricia K. Clark, Director
Directorate of Compliance Programs




September 5, 1990

Roslyn Ammons
Office of Health Compliance
U.S. Dept. of Labor
Occupation Safety & Health Administration
200 Constitution Avenue
Washington, DC 20210

There is some confusion over the interpretation of OSHA Rules and Regulations 29 CFR 1910.120 between the Fire Dept., Risk Mgmt. and Utilities Regulatory Compliance Section.

I would like to cite two incidents that we've encountered recently.

(1) A transformer (assumed to be PCB) had a hole in the bottom of it and was leaking oil. The Electric Utilities crews climbed the pole and plugged the leak, then removed and replaced the transformer. During this procedure, other electric workers cleaned up the spill area. Meanwhile the Fire Dept. HazMat Team stood by and watched the operation:

CONTROVERSY:

Fire Dept.'s Interpretation: The utility workers are skilled support personnel and need no training.

Utilities Interpretation: The utility workers are taking an offensive action, and are not working under the guidance of the Fire Dept. and are therefore working at a technician level and should be trained at this level.

(2) An unknown source of a gas leak caused three explosions, damaging a building, a transformer and a man hole. The Civil Defense was activated. The electric utility workers (while wearing SCBA units) did all the digging and removal of conduits, in search for the gas source. The Fire Dept. stood by with water lines in case of fire or another explosion.

Several laboratories and various experts were called for audits.

CONTROVERSY:

The Fire Dept. considers everyone (with exception of Fire Dept.) as skilled support personnel and again no training required.

Utilities: Interprets electric utility workers as technicians for the following reasons:

(a) All offensive or aggressive actions were taken by electric utility crews in search for a gas source.

(b) Utility workers wore SCBA units continuously while working in trenches and in areas felt to be dangerous.

(c) This was a first responders operation that lasted several days with crews working around the clock.

(d) All laboratory personnel and experts from various fields would have been classified as specialist employees.

If you could give us some advice it would be most beneficial. I am attaching a copy of the letter to Mr. Moore and his response.

If you have any questions, please contact me.

Sincerely,



Frank E. Frye
Regulatory Compliance Specialist
Lafayette Utilities System




June 26, 1990

Mr. Michael Moore
U.S. Dept. of Labor
200 Constitution Avenue
Washington, DC 20210

Dear Sir:

Last week I attended the EPA/OSHA worker protection standards workshop in Dallas, Texas. Unfortunately, my colleagues chose to leave just before the last question and answer session. This left many of my questions and concerns unanswered. I'm writing today in hopes of acquiring this much needed information. Most of our problems arise from differences of opinions on the interpretation of the final rules and regulations. An example occurred while at the work shop. The fire training officer interpreted a statement you made during a break. He states that you said in case a transformer leaks oil, regardless of the amount or severity of the leak, the fire department Haz. Mat. Team must respond to be in compliance with the law. I must have missed something, because I didn't get the same opinion. I would like to explain what we have done in the utility system and ask your advice.

When interpreting the final regulations for levels of training, my general findings were:

1. Awareness - required an awareness
2. Operations - a defensive approach
3. Technician - an offensive approach
4. Specialist - a level of expertise.

Since the City Utilities System owns its transformers, it is classified as a generator. Should a PCB contaminated, or a PCB transformer leak oil or catch on fire, it would be the generator's responsibility to clean and properly dispose of everything. Due to the number of transformers in our system, we do not know the PCB content in the transformers. Therefore, we treat all transformers as PCB contaminated until proven otherwise. We are working on a maintenance program to test the transformers but the end results are many years away.

On numerous occasions, customers call the utility office about a transformer leaking. Most times these transformers have been leaking for a long time. The customer may notice a small area where the grass is dead or a little oil residue at the bottom of the transformer. I will be called out to inspect and make recommendations on what has to be done. I do not feel this is an emergency situation where the Fire Dept. Haz. Mat. team needs to be called to watch the electric crews tighten a nut or replace the transformers and remove the dead grass. We had a transformer exactly like this after returning from Dallas. The fire training officer insisted we were in violation without the Fire Dept. HazMat on site. Many times I have arrived at a scene and if there was a puncture or hole in the transformer where oil was spraying all over, I would call the Fire Dept. to respond as a safety precaution.

To meet the regulations according to my interpretations, the electric crews that respond to stop and/or repair leaking transformers were trained at the technician level. These employees are the ones that are physically dealing with potential PCBs, while the Fire Dept. is standing back at a safe distance.

Should a transformer catch on fire, the role is reversed. The electric personnel stay back at a safe distance while the Fire Dept. takes an aggressive approach, until the Fire Department releases it back to the Electric Utilities. If the transformer is still leaking after the fire has been put out, the electric crews are the ones that approach it and stop the leak. Therefore reversing the role once more, again this reinforces my belief that these men need to be trained at the technician level to protect themselves.

Another situation of concern is for employees in our water and wastewater treatment plants. These employees work with chlorine and although they are not expected to respond to a chlorine leak they could be put in a position (due to their nature of work) of having to respond to prevent a major disaster. What level (if any), training do these employees need and do they need medical monitoring?

From a utilities perspective, are we more liable by training or by not training these employees.

From a risk management perspective, if a utilities trained "Technician" misuses his training during off duty hours in his community, such as a volunteer fireman how would the City of Lafayette be liable?

Your advice and interpretation of the intent of the rules and regulations would be most beneficial and appreciated by all concerned.

If you have any questions, please call me.

Sincerely,



Frank E. Frye
Regulatory Compliance Specialist
Lafayette Utilities System
318/268-5812




August 23, 1990

Dear Mr. Frye:

Thanks for sending a duplicate of your letter. As soon as the FAX came in I found the original but that's typical for me.

I can see that there is some confusion in Lafayette. In order to provide you with an official written interpretation of our regulations I must send your letter to our Office of Health Compliance in accordance with OSHA policy. Your official interpretation will come from them. I can, however clarify any misunderstandings that occurred as result of my presentation.

The example of the fire training officer's interpretation of my presentation needs to be clarified. There is nowhere in our standard that requires emergency response to any incident by anyone. The employer has always had the option of deciding whether or not to respond to any release or potential release of a hazardous substance. The employer also decides what level or to what extent emergency response will be provided. In the case of a transformer leak, the individual who discovers the release will generally initiate the emergency response. This individual could be a member of the public, a power utility employee, or the fire department. Local protocols should establish what occurs after the leak is discovered. If a member of the public dials 911 to report the leak and the fire department responds, the preplanning required by the rule should establish how the leak will be handled and who is responsible for securing the leak and initiating clean-up. If a customer reports the leak to the utility company or if an employee of the utility company discovers the leak the utility company's response plan should set forth the procedures for handling the leak. In any case, the standard provides for various levels of training and equipment based upon the employer's decision on the level of response to be provided. I would certainly hope that preplanning will eliminate the need to call out an emergency response beyond that necessary to resolve a leak. Emergency equipment and personnel responding to an unnecessary incident are effectively out-of-service and unavailable for response to a more hazardous situation.

Keep in mind also that our standard is not intended to apply to fire suppression. Incidents that present a fire involving hazardous materials must first be handled as a fire using the appropriate fire suppression techniques and regulations. Once the fire is controlled or suppressed and clean-up or overhaul begins, it may be necessary to utilize a hazardous materials response team to do the post-emergency response. However, I don't see a fire department extinguishing fires involving leaks of hazardous materials if the extinguishing of the fire will result in the continuing uncontrolled release of the hazardous material fuel source. Typically such fires are allowed to burn until such time as the fuel source can be shut down. Fire department hazardous materials response teams are typically called in to secure fuel sources that have ignited. Once the fuel source is secured, the fire will extinguish itself or it can be handled by the firefighters.

With respect to your employees who work with chlorine, if they are expected to perform any level of response to the release of chlorine from calling in an outside response to the installation of the appropriate chlorine kit, they must be trained to the level necessary to perform their work. This means trained in hazard awareness, personal protective equipment and medical monitoring if their duties require it. All of the requirements for this function are found in paragraph (q) of the final rule.

As far as your questions on liability go, I can't answer them because I'm not a lawyer familiar with liability law. Your best bet is to consult your city attorneys.

I hope that I have been able to answer all of your questions. If I haven't please let me know.

Sincerely,



Michael B. Moore
Safety Engineer