June 5, 1991

Dr. Richard F. Boggs
Vice President
Organization Resources Counselors, Inc.
1910 Sunderland Place, N.W.
Washington, D.C. 20036

Dear Dr. Boggs:

It has come to our attention that there exists a factual inaccuracy in our letter to you dated September 4, 1990. On page three in the last paragraph we incorrectly stated that "there is no fire hazard [associated with TCE]". Although TCE burns with difficulty, it has a lower explosive level of 8% and an upper explosive level of 10.5%, a flash point of 90 degrees F and is considered and IC flammable liquid (NIOSH Pocket Guide to Chemical Hazards).

Because the PEL is well below the lower explosive level, there would be little potential of a fire hazard. Therefore the answer to the question remains correct although for different reasons i.e., not because TCE is not flammable, but rather because it is not a fire hazard at the concentrations described in the example.

We hope this inaccuracy has not caused your organization undo confusion in interpreting 1910.120.

I hope this information is helpful. If you have any further questions please feel free to contact MaryAnn Garrahan at (202) 523-8036.

Sincerely,



Patricia K. Clark, Director
Directorate of Compliance Programs



September 4, 1990

Richard F. Boggs, Ph.D.
Vice President
Organization Resources Counselors, Inc.
1910 Sunderland Place N.W.
Washington, D.C. 20036

Dear Dr. Boggs:

This is an update to our interim response to your inquiry requesting interpretations of OSHA's final standard for Hazardous Waste Operations and Emergency Response (29 CFR 1910.120).

For the sake of clarity, I will enumerate and respond to your questions in the order you raised them:

I. Definition of Emergency Response. All of the criteria outlined in your letter are not necessary for a situation to be an emergency under the standard. For the definition of "emergency response" to be satisfied (and therefore applicable):

1. The release or situation must pose an emergency. Examples are: it may cause high levels of exposures to toxic substances, it is life or injury threatening, employees must evacuate the area, it poses conditions which are immediately dangerous to life or health (IDLH), it poses a fire and explosion hazard (exceeds or has potential to exceed 25% of the Lower Explosive Limit (LEL)), it requires immediate attention because of danger, or presents an oxygen deficient condition. Nuisance spills, minor releases, etc., which do not require immediate attention (due to danger to employees) are not considered emergencies.

2. An ordinary spill that can be safely handled by the workers is not an emergency. Such employee must have the proper equipment and training under other OSHA standards such as the Hazard Communication Standard.

A. "Assigned work area". The term "assigned work area" is not in the 29 CFR 1910.120 definition of emergency response. We used this term in our July 28, 1989, letter to you where we stated that the "immediate release area" can be the entire geographic boundary of the employee's assigned work area. The application of that clarification is for responses to incidental releases.

B. Location of the incident. The answer to A. above also addresses this question.

C. Potential for a Safety or Health Hazard. Assessment of hazards is a case-by-case or substance evaluation when determining a potential for emergency situations. Certainly the potential for IDLH conditions due to high vapor pressure, toxicity, or oxygen displacement properties is a primary concern. With flammable or combustible substances, the potential for explosive concentrations during a release and the proximity to ignition sources are important. Corrosiveness and other potentials for bodily impairment or damage also would contribute to the evaluation of emergency potential. For levels set to protect chronic exposures such as some Permissible Exposure Limits (PEL), the connection of the potential for an overexposure to these and an emergency situation is not necessarily automatic and needs further attention. One needs to consider whether exposures will be slightly over the PEL or substantially over it; if one is uncertain how much over the exposure limit, it is prudent to treat the situation as an emergency. Other factors which need consideration include other routes of exposure, exposure to breakdown products, synergistic or additive effects, or safety concerns that could create a situation where the health and safety of the employees are seriously jeopardized unless immediate action is taken. Further, by its nature, an emergency requires quick action, and if the situation is unclear or data is lacking on important factors then it is prudent to treat the situation as an emergency.

You asked us to consider the following circumstances and your conclusions regarding them for a worker who accidentally spills a 55 gallon drum of toluene at his work station (undiked area) during the summer. Toluene is a toxic and flammable material, so there are two aspects of hazards to evaluate in assessing this situation. There is employee exposure to toxic vapors and employee exposure to fire if the toluene vapors become ignited. If the situation dealt with a non-flammable but still toxic material such as trichlorethylene (TCE) the answers to the question could be different. Thus, we are providing comments for both toluene and TCE.

Scenario 1: With help from persons outside his work area, the

worker is able to contain the spill area with spill pillows. However, due to the temperature outside, the employees may be exposed to greater than the 100 ppm PEL during the response. It is our understanding that this would clearly be an emergency response situation because of the existence of a potential health hazard and the need for a coordinated response from persons outside of the work area.

Toluene

Emergency Response (ER) aspects: It is an emergency in that, a toxic and flammable material is spilled in a large quantity. A definite fire and toxic exposure is possible to employees in the area and in the response role. It is probably desirable to contain and clean up this material immediately. In addition, employees outside the immediate release area are needed to control the spill, which further indicates that an ER exists.

Trichloroethylene (TCE)

ER aspects: Since the TCE is not flammable, the fire hazard to employees is not present, but the toxic hazard still is. Because it is probably desirable to control the spill immediately and employees from outside the area are needed to assist in the control and there is a potential for overexposure to TCE, the criteria for defining an ER have been met.

Scenario 2: If the same scenario occurred during the winter

and no exposure greater than the PEL was expected, we would not consider this an emergency response even though persons outside the work area were called in, because there is no potential exposure hazard.

Toluene

 

ER aspects: Even though there is no potential

for employee overexposure to toluene, there is a potential for employee exposure to a fire hazard. This situation is still considered an ER.

TCE

 

ER aspects: Since there is no fire hazard and

the toxicity hazard is low, this probably does not require an immediate response because of hazards to employee life and health, therefore the criteria defining an ER are not met, so this is not considered an ER.

Scenario 3: Suppose the worker is able to contain the spill

area with spill pillows, but due to the temperature outside he may be exposed to greater than the 100 ppm PEL during the response and clean-up. We would also not consider this an emergency response solely on the basis of the potential health hazard.

Toluene

 

ER aspects: OSHA would consider this an

emergency because of the size of the spill of a flammable material which is life threatening.

TCE

 

ER aspects: Since there is no fire hazard it

would have to be determined if there is a significant possibility of overexposure to employees not involved in the response. If not, and if as you postulate an IDLH condition does not exist, then the employee responder in the immediate release area could control and clean up the spill alone, and this would not be considered an ER. Such an employee must be properly trained under the Hazard Communication Standard. If there is a potential for substantial overexposure to employees it would be considered an ER.

D. Skin absorption.

In response to your question concerning skin absorption as the major hazard of a potential emergency scenario, assume a spill of a phenol such as pentachlorophenol where there is no likelihood for a fire hazard if the phenol is not in a flammable carrier. The "penta" is a toxic hazard in that it can be absorbed through the skin and inhalation is not a potential exposure route. Immediate response is probably required for a major spill to prevent contamination of employees and equipment. This would meet the criteria for an ER since employees from outside the immediate release area are required to safely respond and control the spill. Inhalation of toxic materials is not the only criteria for an emergency. Hazards of fire, explosion, skin absorption toxins, oxygen deficiency, etc. are also hazards to employees and are considered in ER criteria.

Pentachlorophenol spills of a lesser degree (not major) would not be considered on ER, however all participants would need skin protection.

E. Professional judgement.

Professional judgement of levels of toxic materials to which employees could be exposed is necessary to provide the correct personal protective equipment to prevent employee overexposure. Professional judgement may, in many cases, be to overprotect employees until actual measurements can be made to determine the exact level of protection necessary. In emergency cases, an error in professional judgement may result in death or serious harm to employees, so the safest professional judgement regarding employee protection is to be conservative. Usually level B protection is necessary until measurements or other evaluations can be made which indicate a lower level of protection is adequate.

F. Uncontrolled release.

An uncontrolled release is the accidental release of a hazardous substance from its container. If not contained, stopped, and removed, the release would pose a hazard to employees in the immediate area or in areas in the path of the release, or from its by-products or its effects (such as toxic vapors, fire, overpressurization, toxic gases or toxic particulates).

An incidental release is one that does not cause a health or safety hazard to employees and does not need to be cleaned up immediately to prevent death or serious injury to employees.

OSHA does not necessarily address environmental issues (pollution) except in cases where employees are exposed to the substances by reason of their job requirements. Environmental emergencies are the jurisdiction of other government agencies.

G. RCRA Treatment, Storage and Disposal (TSD). If an area is used primarily for treatment, storage, or disposal of hazardous substances, any emergency response operations in that TSD area shall comply with paragraph (p)(8) if the response is performed by a team dedicated to responding only in the TSD area. In other areas not used primarily for treatment, storage, or disposal, any emergency response operations shall comply with paragraph (q). Compliance with the requirements of paragraph (q) will be deemed to be in compliance with the requirements of paragraph (p)(8). This is clarified in the correction notice issued April 13, 1990 in the Federal Register.

H. In response to your observation about what constitutes an emergency response situation, the key factor which must be considered on a case-by case basis is the actual or estimated exposure or degree of danger to responders, other workers, neighbors, etc. In order to determine this, other factors such as the size of the spill/release, the material spilled and the location the incident (e.g., confined space) play a significant role.

While it may be obvious, it is crucial that planning take place prior to any emergency incident. An employer must determine all likely potentials for emergencies using worst- case assumptions and plan response procedures accordingly.

II. Scenarios. You have asked how the standard applies in

 

the following circumstances:

Scenario A - In a herbicide manufacturing plant a large silo containing 24,000 lbs of ammonium sulfamate (PEL 10 mg/m3 RQ = 5000 lbs) splits due to age. The raw material is transferred by workers into small rail cars and drums. Exposure is below the PEL, but an organized response to transfer the material is made. Is this an emergency response? What if the spill occurred during a rain storm? Would that constitute an emergency because of the high solubility of the material and potential for run-off? If the rupture occurred during the first shift at the plant and an immediate response was made by workers in another area to transfer the material, would that be an emergency response? What if the same spill occurred on the third shift and due to the small crew size it was covered and left until the first shift? Would that change the answer?

Answer: Ammonium Sulfamate is a solid which except when heated to above 160 degrees F. or exposed to acids (fume or liquid) is of low hazard. Heat or acids cause a chemical reaction in which sulfur oxides are formed which can cause a corrosive or respiratory hazard. The PEL of 10 mg/m3 is 67% that of nuisance dust. Ammonium sulfamate is of low human toxicity.

Even though an organized response is made by employees from outside the immediate release area, there is no worker health or safety reason to clean up the material immediately, so no emergency (1910.120) response is in effect. A rain storm would not change the character of the release under the 1910.120 in that rain water would not react with the material to form more hazardous materials.

If leaving the cleanup until the next shift does not create a hazard then an emergency situation does not exist, since an emergency is associated with the need to take immediate action.

Scenario B - During a shift, a pipeline containing chlorinated solvents develops a leak at a joint. A nearby worker trained to the level of a First Responder Operations Level notices this and on his way to get spill pillows and notify the emergency staff he turns off the valve of the pipe, thereby stopping the leak. Does his active participation to stop the leak mean he should have been trained to HazMat Technician level or was training at First Responder Operations Level adequate since it was in his work area, it is part of his duties and training to prevent the spreading of the spill? Answer: The answer depends on whether the employee is or would be taking action to stop the release during a true emergency or whether the employee would only take such action when the situation is not a true emergency. Taking an aggressive role to stop a leak during an emergency requires training at least at the hazardous material technician level. On the other hand, taking an aggressive role to stop a leak prior to an emergency requires training at least at the first responder awareness level in order to meet 29 CFR 1910.120 or 29 CFR 1910.1200. (Note: Your example does not provide sufficient facts upon which to render a definitive answer to whether the situation is an emergency.)

Scenario C - If response to incidental spills/releases are part of a trained operator's "normal duties," how long should the worker attempt to clean up or contain the spill before it becomes an emergency? What if two other trained workers from his area help - is this now an emergency response? If maintenance is initially called to clean up the spill (regardless of material or quantity) - does this make it an emergency response?

Answer: Anyone working with hazardous substances where there is a potential for a release needs to know what action to take during a release. The employer determines the job duties and responsibilities of each worker and must train workers accordingly. If an employee is trained to respond to non-emergency spills but an emergency situation could develop then the employee must also be trained on recognizing when a situation has a potential for becoming an emergency and the appropriate action to take in order to implement emergency procedures. Employees who respond to only non-emergency releases when there is no potential for an emergency are not covered by the emergency response provisions of 1910.120. Other OSHA standards, such as 29 CFR 1910.1200, would be applicable.

Scenario D - See answer to question 1.G.

We hope these responses sufficiently address the concerns you raised. If we can be of further assistance, please feel free to contact us again.

Sincerely,



Patricia K. Clark
Director
Designate Directorate of Compliance Programs




February 21, 1990

Richard F. Boggs, Ph.D
Vice President
Organization Resources Counselors, Inc.
1910 Sunderland Place N.W.
Washington, D.C. 20036

Dear Dr. Boggs:

This is an interim response to your inquiry of January 24, requesting interpretations of OSHA's final standard for Hazardous Waste Operations and Emergency Response (29 CFR 1910.120).

In order to address your concerns, we are in the process of discussing the issues you have raised with the drafters of the standard and staff from the Office of the Solicitor of Labor. Due to the lengthy questions and complex issues raised we expect to provide you with a full response in approximately two months.

Thank you for your patience.

Sincerely,



Patricia K. Clark
Director
Designate Directorate of Compliance Programs




January 24, 1990

Mr. Thomas J. Shepich
Director
Directorate of Compliance Programs
Occupational Safety and Health Administration
U.S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Mr. Shepich:

This is a request for clarification of a number of provisions contained in OSHA's final standard for Hazardous Waste Operations and Emergency Response (CFR 1910.120). With the effective date of the standard fast approaching, need for quidance becomes increasingly urgent. Organization Resources Counselors, Inc. (ORC) has compiled the following list of questions regarding 1910.120.

Question 1

Definition of Emergency Response - The definition of Emergency Response is unclear. After a thorough review of the preamble, text of the standard and written interpretations from OSHA on 1910.120, we have concluded that all of the following five criteria must occur for an incident to be considered an emergency response under the standard. Is this understanding correct?

1. People responding to the incident are from outside the immediate release area (1), e.g. , outside the "entire geographic boundary of the employee's assigned work area". (2)

____________
FOOTNOTE(1): 1910.120 (a)(3) definition of Emergency Response.
FOOTNOTE(2): July 28, 1989 letter to ORC from OSHA Directorate of
Compliance Programs.

________________________________________

2. There is a potential safety or health hazard (3) e.g., fire, explosion, (4) or at least one valid study indicating acute/chronic adverse health effect. (5)

3. The incident is or could likely result in an uncontrolled release of a hazardous substance. (6)

4. There is need for a coordinated spill control response. (7)

5. The spill/leak cannot be absorbed, neutralized or otherwise controlled at the time of release. (8)

If this understanding is correct, it raises several other questions and concerns.

A. How does the Agency define an employee's "assigned work area?" For instance, if a mechanic or electrician could work in any of four different production units in a plant depending on daily need, we presume that all four units would be considered his "assigned work area" rather that only the one unit he is assigned to on a given day. Is this correct?

If an operator handles a spill in his own plant, he is in his work area and knows the hazards of his materials as required under 29 CFR 1910.1200. It is already part of the job. This is also true of the plant engineer. He also knows the hazards and handling methods for the same materials. Is it correct to conclude that if the plant engineer responds from another similar production unit within the plant, he would be "within the entire geographic boundary" of his work area, trained accordingly, and therefore would not be conducting an emergency response?

____________
FOOTNOTE(3): 1910.120 (a)(3) definition of Emergency Response.
FOOTNOTE(4): Ibid
FOOTNOTE(5): 1910.120 (a)(3) definition of Health Hazard.
FOOTNOTE(6): 1910.120 (a)(3) definition of Emergency Response.
FOOTNOTE(7): July 28, 1989 letter to ORC from OSHA Directorate of Compliance
Programs.
FOOTNOTE(8): 1910.120 (a)(3) definition of Emergency Response.
_____________________________________________

If an operator, during the course of his normal duties, occasionally makes a trip to the tank farm, an area with its own operators, would the tank farm still be considered his assigned work area? ORC assumes that so long as the employee has been trained regarding the hazards of the tank farm, it would be considered his assigned work area. Is this correct?

B. Is the location of the incident specifically a factor in determining whether the incident constitutes an emergency response? For example, a tank farm operator handles a tank car leaking from a burst rupture disk. The tank car is in his work area and it is a normal part of his job for which he is trained. It is not an emergency response. The same tank car is parked just outside the plant fence (technically the rail yard property) and starts leaking from a burst rupture disk. He is the plant person who responds. Assuming the other four criteria outlined on page 2 of this letter are met also, is this now an emergency response?

C. To what extent does the Agency mean to factor in exposure -- real or potential? There are very few materials which do not present a potential safety or health hazard. For instance, 10 gallons of Fluorocarbon 113 (a degreasing agent) spills outside on concrete in Louisiana heat. No exposure in excess of the PEL would be anticipated. Therefore, one would normally not consider this an emergency response. But if the same 10 gallons of FC-113 spilled in a confined space, it might be reasonable to expect exposure greater than the PEL during cleanup. Assuming all the other criteria are met, would this then be an emergency response? Suppose a worker accidentally spills a 55 gallon drum of toluene at his work station (undiked area) during the summer. Please consider the following circumstances and our conclusions regarding them:

1) With help from persons outside his work area, the worker is able to contain the spill area with spill pillows. However, due to the temperature outside the employees may be exposed to greater than the 100 ppm PEL during the response. It is our understanding that this would clearly be an emergency response situation because of the existence of a potential health hazard and the need for a coordinated response from persons outside of the work area.

2) If the same scenario occurred during the winter and no exposure greater than the PEL was expected, we would not consider this an emergency response even though persons outside the work area were called in, because there is no potential exposure hazard.

3) Suppose the worker is able to contain the spill area with spill pillows, but due to the temperature outside he may be exposed to greater than the 100 ppm PEL during the response and clean-up. We would also not consider this an emergency response solely on the basis of the potential health hazard.

Is our interpretation of the standard correct in these cases?

D. When the major hazard of the material is skin absorption, and inhalation is not a risk, a spill can usually be handled without airborne exposure. When does a release of this nature become an emergency response situation?

E. Does the Standard allow for the use of professional judgment in determining exposure? Even where inhalation is a factor, years of handling experience with materials may lead to the conclusion that exposure is not likely and there is no risk to the responders, and therefore, no emergency. In many cases, because equipment is not readily available or there are no direct reading instruments for the material of concern, no exposure measurement can actually be taken.

F. What is an "uncontrolled release?" A spill or leak that is not incidental?(9) How does the Agency define incidental? Is risk to the environment alone enough criteria to establish a situation as an emergency under 1910.120? (For example, small quantity run-off to a waterway?) Based on the above criteria, we presume not.

G. There is general confusion regarding how 1910.120 applies when a plant not handling TSD waste is located within a RCRA TSD facility. Often, because of ease of permitting, an entire site is permitted as a RCRA TSD facility even though several units within the facility do not involve TSD activities. It is our understanding that, in this situation, employees working with RCRA requlated TSD waste are subject to training requirements in paragraph (p) while those not involved with TSD waste are not. Is this correct?

____________
FOOTNOTE(9): July 28, 1989 letter to ORC from OSHA
_____________________________________

H. In light of the above questions and scenarios, ORC believes that OSHA should ensure that the following factors be considered, on a case by case basis, when determining whether an incident constitutes emergency response situation:

1. Size of the spill/release.

One pound of hydrogen fluoride in the air is quite a different problem from 100 pounds.

2. The material spilled.

A spill of a 55-gallon drum of calcium hydroxide is quite a different problem than a 55-gallon spill of phenol.

3. Cause of the spill/leak.

A solvent spilled from a leaking pump during process operations is incidental, but the same solvent spilled by a container falling off a truck is not.

4. Actual or estimated exposure (to responder, to neighbors, etc.).

5. Level of emergency response training and knowledge of the particular process or operation and its hazard potential.

6. Location of the incident.

Question 2

Scenarios - OSHA's interpretation of how the standard applies in the following circumstances would be helpful:

Scenario A - In a herbicide manufacturing plant a large silo containing 24,000 lbs of ammonium sulfamate (PEL 10 mg/m3, RQ = 5000 lbs) splits due to age. The raw material is transferred by workers into small rail cars and drums. Exposure is below the PEL, but an organized response to transfer the material is made. Is this an emergency response? What if the spill occurred during a rain storm? Would that constitute an emergency because of the high solubility of the material and potential for run-off?

If the rupture occurred during the first shift at the plant and an immediate response was made by workers in another area to transfer the material, would that be an emergency response? What if the same spill occurred on third shift and due to the small crew size it was covered and left until the first shift? Would that change the answer?

Scenario B - During a shift, a pipeline containing chlorinated solvents develops a leak at a joint. A nearby worker trained to the level of a First Responder Operations Level notices this and on his way to get spill pillows and notify the emergency staff he turns off the valve on that pipe, thereby stopping the leak.

Does his active participation to stop the leak mean he should have been trained to HazMat Technician level or was training at First Responder Operations Level adequate since it was in his work area, it is part of his duties and training to prevent the spreading of the spill?

Scenario C - If response to incidental spills/releases are part of a trained operator's "normal duties," how long should the worker attempt to clean up or contain the spill before it becomes an emergency? What if two other trained workers from his area help - is this now an emergency response? If maintenance is initially called to clean up the spill (regardless of material or quantity) - does this make it an emergency response?

Scenario D - A large facility holds a RCRA TSD (Part B) permit for operation of a boiler which is fueled by a process waste stream. The plant has an emergency brigade to handle emergencies at the production units in the plant but also those which might occur at the boiler. Which of the following training requirements apply to the brigade?

Because the plant is subject to a TSD permit, training for emergency response is included under training requirement of paragraph (p)"Employee members of TSD facility ER organizations shall be trained to a level of competence..."

 

OR

Paragraph (p) applies only to TSD related activities at TSD facilities; that is, permitted operations involving hazardous waste. A brigade which responds to non-TSD related incidents would be subject to paragraph (q) of the rule. "24 hours initial and annual refresher of sufficient content/duration to maintain competency or yearly demonstration of competency.."

I recognize that answering these questions becomes very complex. However, these are "real world" scenarios and both employers and employees need appropriate interpretations. We look forward to hearing from you at your earliest convenience.

Sincerely,



Richard F. Boggs
Vice President

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