June 17, 1991

MEMORANDUM FOR:     MICHAEL G. CONNORS
                   REGIONAL ADMINISTRATOR

THROUGH:            LEO CAREY, DIRECTOR 
                   OFFICE OF FIELD PROGRAMS

FROM:               PATRICIA K. CLARK, DIRECTOR 
                   DIRECTORATE OF HEALTH COMPLIANCE PROGRAMS

SUBJECT:            Interpretations of 29 CFR 1910.120

This is in response to your inquiry of February 5, concerning paragraph (q) of the Hazardous Waste Operations and Emergency Response final rule (29 CFR 1910.120). Please accept my apology for the delay in this reply.

The first scenario described in your memo, the coal fire at a public utility, does fall under the scope of 1910.120 as defined in paragraph (a). Fire involving spills or releases of substances which before combustion were defined as a hazardous substance are covered by paragraph (q) of 1910.120. Coal is listed as a hazardous material by the Department of Transportation under 49 CFR 172.101. Conversely, fires involving spills or releases of substances not classified as hazardous substances before combustion are not included in the scope of 1910.120. Similarly, structural fires, houses, wood etc. burning would not normally be covered by 1910.120.

The second scenario described in your memo, the ammonia leak at a local food processing facility, would fall under 1910.120 paragraph (q) The contractor activity you described appears to be part of the emergency response to the leak and could be required that these personnel be given an initial briefing at the site prior to their participation in any emergency response. The initial briefing shall include instruction in the wearing of appropriate personal protective equipment, what chemical hazards are involved, and what duties are to be performed.

In general, the "on scene incident commander" of the emergency response is charged with deciding when the emergency response is over. The Boggs letter, dated June 20, 1989, is current and correct in its explanation of the distinction between an emergency response and a post emergency response. An exception is during some National or Regional Response Team incidents where the lead federal agency may remain in charge during the entire post emergency clean up phase. Post emergency response begins when the immediate threat of a release has been stabilized or eliminated and clean up of the site has begun. OSHA concurs with your assessment that the contractors in the ammonia leak emergency were involved in emergency response activity.

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


 

DATE:               February 5, 1991

MEMORANDUM FOR:     Patricia K. Clark
                   Director 
                   Directorate of Compliance Programs

THROUGH:            Leo Carey 
                   Director 
                   Office of Field Programs

FROM:               Michael G. Connors 
                   Regional Administrator

SUBJECT:            Interpretations Of 29 CFR 1910.120

Several questions continue to arise concerning the HAZWOPER standard, in particular paragraph (q) on emergency response. This memo is requesting answers to questions which have come to our attention via contested cases and which are enumerated below.

1. In our first case a fire occurred at a public utility plant where large amounts of coal continued to burn through the day. Both the Fire Department and utility employees were involved in fighting the fire. Combustion products of burning coal may include carbon monoxide, hydrogen sulfide, methane, coal dust, carbon dioxide, and acrolein. Would this fire constitute an "emergency" as defined in 1910.120? Specifically, does combustion equal "an uncontrolled release of a hazardous substance"? Also, in general, what fires (structural vs. chemical) would be considered an emergency response under 1910.120, provided all the criteria in the definition of emergency response were met?

2. In our second case an ammonia leak occurred in the refrigeration system at a vegetable processing plant. Specifically, a liquid refrigerant return line valve separated from a pipe in the ammonia compressor room. The Fire Department responded by turning off some valves and plugging the leak.

Fans were set up to ventilate the area and water was sprayed on the floor to reduce ammonia vapors. The employer called in their refrigeration contractor, who was very familiar with the plant system, for assistance during the ammonia leak. When the contractor arrived, the Fire Department had already plugged the leak and vented the area. This was at least 1/2 hour after the Fire Department arrived. Ammonia sensors set at 100 ppm were operating in the plant and the alarms had sounded. No other air monitoring was conducted during the leak to determine air concentrations of ammonia. The firefighters wore totally-encapsulating suits and SCBA's during this emergency.

The contractor advised that more valves needed to be shut off to prevent residual bleeding of ammonia and pressurization of the plug. The contractor employees stuck their heads into the compressor room, which is where the plug was placed. They also worked on some pipes which were sixty feet away form the plugged leak. The Fire Department allowed the contractor employees into the plant as they considered the contractor knowledgeable of the system and associated hazards.

The contractor does not consider themselves emergency responders although they stated in the past they have participated in emergency response activity. They felt the Fire Department had secured the area and that their role was to correct a condition so it does not happen again, close valves to isolate the area, and get the plant back in operation. They stated they were not part of the emergency response.

Our questions relating to these circumstances are:

a. Is the contractor activity considered part of the emergency response, or the post-emergency response? There was no determination that the emergency was considered over by the Fire Department, HAZMAT team, plant management, or any other party.

b. Who determines when the emergency no longer exists? A letter from your office to Richard F. Boggs, Ph.D., dated June 20, 1989 (copy attached-see question #2) discussing this issue would imply that the contractors in our example engaged in emergency response activity. Is the information in the Boggs letter current?

We would appreciate prompt answers to our questions as they refer to pending contested cases. If you need additional information, please contact Cynthia Weaver in our Technical Support Unit at FTS 353-2220.

Attachment



July 28, 1989

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 in 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 enumerated and respond to your questions in the order you raised them:

1. Generic Plans for Post-Emergency Operations.

We concur with your understanding that it is permissible to develop generic plans for post-emergency clean-up operations. This would be a plan addressing appropriate elements of paragraphs (b)-(o), which can be filled in with specific details when an event occurs. It is possible that some of the elements of (b)-(o) will not be necessary at a particular workplace and others will have limited applicability. For example, if there are no confined space entry situations or potential situations then confined space entry procedures do not need to be addressed.

2. Distinction Between Emergency and Post-Emergency Operations.

As long as an emergency response team is still in control of the site and a safety or health hazard exits, the emergency situation continues to be in effect. For example, if a vacuum truck arrives to remove spilled gasoline while an emergency response team is managing the activity, the vacuum truck operator's activity is part of the emergency response operations. Once the emergency response team has declared the response activity over or finished and has left the site, any remaining cleanup would be considered a post- emergency operation.

3. When the Standard Applies.

a. "Emergency Situation" Responses to releases when there are no potential safety or health hazard are not considered emergency responses even if an alarm is sounded. Team responses to releases where there are potential safety and health hazards are not considered "emergency responses" under 29 CFR 1910.120 when the team does not take control of the site (i.e., the substances can be absorbed, neutralized, or otherwise controlled by employees in the immediate release area).

b. "Immediate Release Area" For the purposes of 29 CFR 1910.120 "immediate release area" is a term used in the definition of emergency response to help clarify when an incident is an emergency. Incidental spills that could be cleaned-up or stabilized by the employees working in the immediate spill area without the need of a coordinated spill- control response is not considered an emergency incident. Such employees would have training under the Hazard Communication Standard and other appropriate training made necessary by the tasks they are expected to perform.

The term "immediate release area" is not meant to either classify something as an emergency if immediate attention is not warranted, or encourage employees in the immediate work area to respond to incidental releases without the proper training and equipment.

The "immediate release area" can be the entire geographic boundary of the employee's assigned work area. On a case-by-case basis OSHA will determine whether such employees are capable of responding to incidental releases and will evaluate the emergency response plan, including an evacuation plan, if an emergency situation is possible.

Maintenance personnel responding to releases or potential releases for the purpose of stopping the leak are performing emergency response activities under the rule unless the upset condition:

(1.) Results from routine maintenance activity and the small leak can be readily repaired; or

(2.) Does not need to be taken care of immediately. That is, the safety and health of the employees are not threatened if immediate response is not initiated.

c. "General Application" In general, the standard applies to all operations described in the scope (29 CFR 1910.120 (a)) unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility for employee exposure to safety or health hazards. Thus, if potential for exposure is extremely unlikely the standard would not apply. The term "exposure" here has the same definition as in the Hazard Communication Standard.

4. Safety and Health Plan for Multi-Employer Worksite.

Each contractor/subcontractor is responsible for compliance with all safety and health protection requirements for their employees. An employer's safety and health plan can be used by contractors/subcontractors at the site if it appropriately addresses their activity and potential safety and health hazards. In general, a site plan organized as a single document, with component sections/appendices covering all tasks, operations, and contractors/subcontractors, may promote use efficiency; enhance completeness, clarity and coordination among all affected parties.

5. Training Requirements.

The interim final rule does not have a provision regarding training of less than 40 hours for employees involved in activities at cleanup sites. Prior to the publication of the final rule, OSHA has stated that for non-cleanup activities at designated cleanup sites the determination of the amount of training necessary for the workers to safely perform their job duties will be made on a case-by-case basis. As you are aware, the final standard addresses the issue of when less than 40 hours of training may be appropriate. It does not, however, provide for less than 24 hours of training.

In general, OSHA will be enforcing the need for a minimum of 24 hours of training regardless of the nature of the job. There may be isolated cases where OSHA's variance procedures may be appropriate or where OSHA would determine that a situation warrants a deminimis violation. (Note: Depending on the job duties of the workers involved in emergency response, less than 24 hours of training is allowable under the standard.)

6. Employee Classification.

You mentioned that in many cases companies have a specialist trained and expert in, for example, tank truck accidents. When an emergency arises, this individual could be called on to provide guidance and technical assistance. Such an employee would be considered a "specialist employee" under 29 CFR 1910.120(q)(5) and must receive training or demonstrate competency in the area of their specialization annually.

7. Training Requirements for Management Personnel.

Management personnel who during an emergency situation stay out of the hazardous area and who are not taking charge of the incident, and are not a specialist employee under 29 CFR 1910.120(q)(5) are not covered by 29 CFR 1910.120.

8. Marine Operations.

OSHA does not apply its standards to seamen performing work on vessels which have been inspected and certificated by the U.S. Coast Guard ("inspected vessels") because the Coast Guard has issued comprehensive standards regulating the safety and health of these workers. OSHA has recognized the Coast Guard's jurisdiction over inspected vessels in a Memorandum of Understanding between the two agencies. The Coast Guard has also issued some standards affecting the safety of seamen on uninspected vessels. OSHA would apply its standards to any working conditions not addressed by the Coast Guard.

With these exceptions, OSHA has jurisdiction for seamen aboard vessels located on the waters within the three-mile limit, or in the case of Florida and Texas, within the limit of three marine leagues (the territorial waters). OSHA also has jurisdiction for workers performing work on shore or at other locations not aboard a vessel but within the territorial waters of the U.S. OSHA does not have jurisdiction over vessels outside the territorial waters.

9. Covered Substances and Situations.

Example 1.

10,000 lbs of sodium saccharin (artificial sweetener) are spilled from a silo across a plant fence line into a stream bed. About 4000 lbs reach the water. As a CERCLA Hazardous Substance released above its Reportable Quantity (one pound) the release is reported to the National Response Center, which in turn notifies the predesignated Federal On-Scene Coordinator (OSC). The OSC responds to evaluate the situation and monitors the proper clean up of the sodium saccharin by the plant owner/operator. What portions of the final rule apply?

Answer: Sections (b) through (0) of the rule are applicable for sites where a Federal OSC is overlooking the cleanup unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility for employee exposure to safety or health hazards.

Example 2.

A company manufacturers ammonium nitrate fertilizer, which is listed and regulated in 49 CFR 172.101 as an Oxidizer. A fire occurs in a corner of the warehouse and is extinguished by a local fire department. Would the subsequent removal of the ammonium nitrate from the warehouse by employees of the company be covered by the final rule as a post-emergency response operation?

Answer: A hazard would still be present thus the post-

emergency response provisions of the rule would be applicable.

I hope these responses sufficiently address the concerns you raised. If I can be of further assistance, please feel free to contact me again or Ms. MaryAnn Garrahan of the Office of Health Compliance Assistance at (202) 523-8036.

Sincerely,



Patricia K. Clark, Acting Director
Directorate of Compliance Programs

May 18, 1989

MS. Patricia Clark
Acting Director
Directorate of Compliance Programming
Occupational Safety and Health Administration
U. S. Department of Labor
Room N-3603
200 Constitution Avenue, N. W.
Washington, D.C. 20210

Dear Ms. Clark:

We thank you for making Mary Ann Garrahan available to meet with the Organization Resources Counselors (ORC) Hazardous Waste and Emergency Response Task Force on April 19, 1989 to discuss important issues regarding interpretation of OSHA's final standard for Hazardous Waste Operations and Emergency Response (published March 6, 1989).

This regulation will affect greatly the hazardous waste and emergency response activities in all industries. ORC encourages OSHA to develop a comprehensive compliance directive for this rule so that its compliance officers will be able to enforce it consistently among all industries. In addition, compliance directives are useful to industry as well.

In order for employers to develop and implement effective compliance programs, it is essential that they have a clear understanding of the requirements of the Standard. We would appreciate your comments on the assumptions ORC members are currently using to develop their programs, and your response to questions of interpretation.

1. Generic Plans for Post-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 of (b)-(o) in a particular plan.

2. Distinction Between Emergency and Post Emergency Operations

There has been considerable discussion about when an emergency ends and when post-emergency operations commence. Since the requirements for post-emergency operations are far more detailed, it is important for employers to understand where the line will be drawn.

It is ORC's understanding that as long as an emergency response team is still on site, and a safety or health hazard exists, the emergency situation continues to be in effect. For example, if a vacuum truck arrives to remove spilled gasoline while an emergency response team is managing the activity, the vacuum truck operator's activity is part of the emergency response operations. Once the emergency response team has left the site, any remaining clean-up would be considered a post-emergency operation. We would appreciate your confirming this understanding.

3. When the Standard Applies

a. "Emergency Situation"

Most ORC member companies use the conservative approach of instructing operating employees to sound the alarm as soon as a potential emergency situation arises, before proceeding to stop the release or take other appropriate action. In many cases, the operating employees are able to handle the situation, so that no "actual emergency" exists.

ORC understands that in those situations, the requirements of the Standard are not applicable. Does OSHA agree with this interpretation?

Similarly, do the requirements of the standard apply to situations in which employees are actually exposed to hazardous substances, where there is potential for exposure, or where a hazardous substance is merely "present," as in the Hazard Communication Standard?

ORC understands that the standard applies when there is either actual or potential exposure to hazardous substances. However, if the potential is extremely unlikely (e.g., contaminated soil is present eight feet below the surface, but no employee is disturbing it), there is no emergency or post-emergency response, and it is reasonable that the standard would not apply. Are we correct in this interpretation?

b. "Immediate Work Area"

There is a question about what situations trigger employer compliance with the requirement of the Standard. In the proposed rule, if employees were called from outside their normal work area to respond to an emergency, and they were exposed to a hazardous substance above the PEL they were covered by the Standard.

In the final rule, no such clear-cut, quantifiable criteria exist for application of the rule. Although the definition of "emergency response" or "responding to emergencies" is provided, there remains some question about what is an "immediate work area" and how OSHA will determine that an employee is outside his or her immediate work area.

ORC understands that production or maintenance employees are considered as responding to releases within their "immediate work area" when they are within the geographic boundary of their assigned work area, and have the knowledge and necessary personal protective equipment available so that they are able to stop a release, by performing a task such as turning a valve in a leaking line; such employees need not be within a few feet or within site of the release when it occurs as long as they are in their assigned work area. These employees would have been trained in hazard communication and standard operating procedures for their area, and would not necessarily be designated emergency responders at the level of hazardous materials technician or higher.

Such releases may warrant evacuation of personnel not working to contain or control the release, in accordance with 1910.38, but the responses to the releases would not require activation of the Incident Command System and possibly post emergency response operations in accordance with 1910.120. For releases that are of such a nature that their severity could escalate (such as leaks in liquid anhydrous ammonia or liquid chlorine lines), the designated emergency responders could be put on "standby" or could actually be called to the site in anticipation of a full "emergency response operation." This approach for responding to releases could apply to facilities that only have emergency plans in accordance with 1910.38, choosing to have an outside agency respond to releases beyond their knowledge and ability to control. Is ORC correct in its interpretation of "immediate work area" for production or maintenance employees?

4. Preparation for Meeting Requirements of Paragraphs (b)-(o)

For hazardous waste sites, detailed plans must be developed to comply with requirements or paragraphs (b)-(o) of the Standard. In those cases in which a contractor has developed such a detailed plan, and one or two employees from another company are present at the location, ORC understands that these individuals would be covered by the contractor's plan, even though they are not employees of the contractor. At major Superfund sites, where many employers may be represented, this would eliminate the problem of overlapping, redundant, and potentially contradicting plans. This should be specifically addressed as a "multi-employer work site" issue.

5. Training Requirements

ORC understands that OSHA will adopt a case-by-case approach to determine whether employers have complied with the training requirements. For example, if an employee is cleaning up a single substance or a limited number of substances at a RCRA or CERCLA facility, it may not take a full 40 hours of training for him or her to be adequately trained. ORC understands that OSHA inspectors will be able to look at the task being performed by the employee (e.g., PCB removal) and determine whether the full 40 hours of training was necessary before issuing a citation. In addition, the 24 hour training requirement may be excessive for emergency response training for a single substance or process. We suggest that guidance be provided to compliance officers to undertake this case-by-case approach.

6. Employee Classification

In many cases, companies have a specialist trained and expert in, for example tank truck accidents. When an emergency arises, this individual would be called on to provide guidance and technical assistance. ORC assumes that this individual would not need additional training.

7. Training Requirements for Management Personnel

In some cases, management staff are present at a location (either hazardous waste site or location of emergency response operations), and they are not actually engaging in any emergency response operation, other than providing corporate oversight and administrative support to the incident commander. If these personnel are serving in such an oversight or administrative capacity, ORC believes that 24 hours of training is not necessary. Are we correct?

8. Marine Operations

If there is a large spill of petroleum or petroleum products in U.S. territorial waters or beyond U.S. territorial waters, does the standard apply? Or do Mineral Management Service of the U.S. Department of Interior and U.S. Coast Guard regulations govern? (See attached letter to Mr. Seymour.)

9. What are Covered Substances and Situations?

    Example 1.     10,000 lbs of sodium saccharin (artificial sweetner)
                   are spilled from a silo across a plant fence line into
                   a stream bed.  About 4000 lbs reach the water.  As a
                   CERCLA Hazardous Substance released above its
                   Reportable Quantity (one pound) the release is
                   reported to the National Response Center, which in
                   turn notifies the predesignated Federal On-Scene
                   Coordinator (OSC) The OSC responds to evaluate the
                   situation and monitors the proper clean up of the
                   sodium saccharin by the plant owner/operator.  What
                   portions of the final rule apply?

    Example 2.     A company manufactures ammonium nitrate fertilizer,
                   which is listed and regulated in 49 CFR 172.101 as an
                   Oxidizer.  A fire occurs in a corner of the warehouse
                   and is extinguished by a local fire department. Would
                   the subsequent removal of the ammonium nitrate from
                   the warehouse by employees of the company be covered
                   by the final rule as a post emergency response
                   operation?

Should you or your staff require further information or expansion of the issues we have raised, we would be pleased to meet with you at your convenience. ORC and its member companies look forward to your response.

Sincerely,



Richard F. Boggs, Ph.D.
Vice President