June 26, 1991

MEMORANDUM FOR:

MICHAEL G. CONNORS
REGIONAL ADMINISTRATOR

FROM:

PATRICIA K. CLARK, DIRECTOR
DIRECTORATE OF COMPLIANCE PROGRAMS

SUBJECT:

Natural Phenomenon and 1910.120

This is in response to the inquiry of April 12, to our Appleton Area Office, written by Mr. Gary Frasetto of the United Paperworkers, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response final rule (29 CFR 1910.120).

The specific question relates to evacuation of employees from a facility in the event of an imminent natural phenomenon that has the potential to threaten employee safety and health.

The Hazardous Waste Operations and Emergency Response Final Rule (1910.120) paragraph (a)(1)(v) covers:

"(v) Emergency response operations for releases of, or substantial threats of releases of, hazardous substance without regard to the location of the hazard".

Work places located in areas prone to natural phenomena, such as earthquakes, tornadoes and hurricanes, and subject to a "substantial threat of release of hazardous substances" are covered by 1910.120. The emergency response plan required in 1910.120(q)(1) should include responses to emergencies caused by such natural phenomena. The requirements of the emergency response plan clearly state in paragraph (q)(1), that emergency response plans "shall be developed and implemented to handle anticipated emergencies prior to the commencement of emergency response operations." OSHA interprets this to mean that employers in areas prone to natural phenomena should anticipate whether such natural phenomena are likely to cause releases of hazardous substances and if so incorporate emergency response procedures to such natural phenomenon in their emergency response plan.

Employers that evacuate all employees during an emergency and do not permit any of their employees to assist in handling the emergency incident are not required under paragraph (q) to have an emergency response plan if they provide an emergency action plan in accordance with [1910.38].

In the specific incident presented in the letter from Mr. Frasetto, it appears that the employer evacuated employees that were not subject to "substantial threat of release of hazardous substance" but at the same time did not evacuate those employees working with hazardous substances. If those employees were under substantial threat of release of hazardous substances, the incident would be defined as an emergency. Therefore, depending on the employers action concerning the requirements of paragraph (q)(1), it may have been mandatory to evacuate all employees from the danger area.

Obviously, the "substantial threat" posed by an imminent natural phenomenon would entail a judgement by the employer and therefore be difficult to enforce. However, if the employer takes emergency action, i.e., evacuates office personnel, but does so in a selective fashion, leaving personnel that have not been trained in emergency response procedures in the role of emergency responder, i.e., operating the facility during a natural phenomenon, the employer could be cited under 1910.120(q)(6).

Mr. Frasetto suggested possible use of the general duty clause in enforcing issues concerning weather. Although an employer has a general duty to provide a safe and healthful work place, OSHA prefers to cite more specific regulations when possible. Emergency response to natural phenomena may fall under the scope of 1910.120 if it involves the release or potential release of hazardous substances. Therefore the more specific regulation would be cited.

We hope this information is helpful. If you have any further questions please feel free to contact us at [(202) 693-2190].

Attachment [Text of 29 CFR 1910.38, Emergency Action Plans]

U.S.Department of Labor
Occupational Safety and Health Administration
230 South Dearborn Street, Room 3244
Chicago, Illinois 60604

DATE

April 23, 1991

MEMORANDUM FOR:

PATRICIA K. CLARK, DIRECTOR
DIRECTORATE OF COMPLIANCE PROGRAMS

THROUGH:

LEO GARY, DIRECTOR
OFFICE OF FIELD PROGRAMS

FROM:

MICHAEL G. CONNORS
REGIONAL ADMINISTRATOR

SUBJECT:

Request for Interpretation Applicability of OSHA Standards to Weather Emergencies

Attached are the two letters which prompted this request for citation guidance on weather emergencies. In this specific case it is noted in the Area Office memo that national policy is sought, since the parent company operates several manufacturing facilities across the country and the union representing the employees is also national in organization.

It is our opinion that both 1910.120 and [1910.38] do not specifically address weather emergencies. However, a weather emergency could cause or contribute to an "emergency" as defined in 1910.120 if an uncontrolled release of a hazardous substance occurred in a facility. When an employer assesses the potential for a 1910.120 emergency in their plant, would they be required to include the potential for a 1910.120 emergency caused by the weather? If the employer has chosen to respond to emergencies under HAZWOPER, they would respond no matter what caused the emergency. In addition, most employers do include weather emergencies and bomb threats in their emergency response plans.

We would appreciate a prompt response to the Regional Office.

Thank you in advance for your assistance in this matter. If you have questions or need further information, please contact Ms. Cynthia Weaver of my staff at FTS 353-2220.

Attachments

UNITED PAPERWORKERS INTERNATIONAL UNION
LOCAL NO. 20
KAUKAUNA, WI

Melvin Lischefski
Area Director
U.S. Dept. of Labor
2618 North Ballard Road
Appleton, WI 54915

This past week I had a conversation with Gordy that pertained to our Disaster Control Plan at Thilmany-IP, specifically tornadoes. In that conversation, I mentioned to Gordy that two weeks ago the National Weather Bureau issued a tornado warning in our area. At our mill, the company saw fit to evacuate office personnel, converting employees, and other "non-essential" personnel. At the same time, they kept production and utilities running full strength, completely unaware of the developments outside the mill.

The question I have for you is this, what is OSHA's position on a situation such as this? Also, is there anything that they can be cited for under the General Duty Clause? Gordy suggested that I should submit these requests in writing. Thanks for the info.

Gary Frassetto
Exec. Vice-Pres
Local 20
P.O. Box 195
Kaukauna, WI 54130

DATE:

April 15, 1991

REPLY TO:

Melvin R. Lischefski

ATTN OF:

Area Director

SUBJECT:

Tornado Warnings

TO:

ARA, Technical Support

The attached letter from the United Paperworkers International Union is directly concerned with circumstances at Thilmany Division of International Paper Company. However, it should be considered as part of the national dispute involving these two parties. The union would definitely attempt to apply any interpretation received from the Appleton Area Office on a national basis.

We are not aware of any interpretation relating to weather emergencies in neither 1910.120, 1910.38, nor the general duty clause. the question of whether operations should cease, plants should shut down, or employees at their job should be informed of the condition arises quite frequently. We are of the opinion that a national policy covering this issue would be appropriate.

[Corrected 11/12/2003]