April 7, 1992

MEMORANDUM FOR:     JOE COCALIS
                   ENVIRONMENTAL PROTECTION AGENCY

FROM:               ELLEN ROZNOWSKI, 
                   ACTING DIRECTOR OFFICE OF HEALTH COMPLIANCE ASSISTANCE

SUBJECT:            Review of the EPA fact sheet "Emergency Responder
                   Agreements".

The Office of Health Compliance Assistance has reviewed the EPA fact sheet and has the following comments and suggestions.

In the first paragraph, second sentence the amount of community support required is said to be dependent on "site specific conditions and the tasks to be performed". The role community emergency response agencies can play in responding to an emergency situation at an uncontrolled hazardous waste site is primarily a function of their competencies and capabilities. The function of the fact sheet would be to help the remedial project manager (RPM) characterize the existing competencies and capabilities of the community emergency response agencies and to preplan how these resources will be deployed in the event of an emergency.

If the local community emergency responders do not have a certain competency or capability that may be required in the event of an emergency, the RPM may then choose to facilitate development of those desired capabilities.

It is important to insure that local community emergency response agencies are not expected to play a role for which they are insufficiently trained or equipped. It should be the responsibility of the RPM to insure that the local community emergency response agency is capable of playing the role it will be expected to play regarding the preplanning agreement between the site and the local community.

The second paragraph refers to the "equivalent EPA SARA Title III [standard]". This may be appropriate if there is something in title III of pertinence. However, if the author is referring to the EPA standard which is identical to OSHA's HAZWOPER, the proper reference would be 40 CFR 311. This EPA standard is mandated in SARA Title I, section 126, not Title III. This reference is carried on throughout the fact sheet and if incorrect should be changed accordingly.

The first sentence of the second paragraph describes the employer's responsibility under HAZWOPER to include "[how to] handle emergency responses to releases of hazardous substances, and establishes training and medical surveillance requirements for emergency responders". OSHA prefers to place emphasis on the requirement that the employer must develop a comprehensive emergency response plan if they intend to have employees respond to emergencies. The other requirements of the standard, procedures for handling emergencies, training and medical surveillance are all a function of the emergency response plan.

The second paragraph notes that there can be "dual employers". In fact OSHA will cite as many employers as have employees that respond to a particular incident and that have not met the requirements of 29 CFR 1910.120(q).

The first paragraph of the discussion should mention that OSHA's HAZWOPER standard expects the employer to make worse case assumptions in developing emergency response procedures.

The first sentence of the description of first responder awareness level should be enhanced to read "The primary purpose of the first responder awareness level is to identify releases of hazardous substance that require an emergency response and alert the proper authorities".

The description of first responder awareness level would be enhanced by inserting the phrase "remote from the danger area" after the word "dikes" in the second sentence. The emphasis on operations level personnel not being able to enter the hot zone is good.

OSHA recently made an interpretation that is pertinent to a discussion of community emergency responders and the first responder operation level. It reads as follows;

Propane and Gasoline Fires. 1910.120(q)

"Operations level personnel trained in the hazards of propane may enter the danger area to shut off the valve." (Letter to Ron Runge, dated September 20, 1991)

This is considered to be a special case. The principle hazards from propane are fire and explosion, not toxicity. Because propane fires are common most fire fighters are fully trained and equipped to respond to propane fires, including taking offensive action by shutting off the valves in the danger area. If they have this training (which is a high degree of training), and have received first responder operations level training, OSHA believes they have sufficient training to take offensive action due to propane's relatively low toxicity.

Therefore, if a fire fighter, who took offensive action in the danger area during a propane fire or leak, was fully trained and equipped to handle the fire and had first responder operations training, it would only be a technical violation of 29 CFR 1910.120(q), for not having the additional training required of a HAZMAT technician. In this circumstance OSHA would not issue a citation.

Releases of gasoline similar to the example involving propane discussed above may be addressed by an operations level emergency responder if they have had specific training in the safety and health hazards associated with gasoline. Employers who expect firefighters to shut off a gasoline valve in the danger area, and who can show that employees are trained to the operations level and adequately trained in the hazards of gasoline, have committed a technical violation of 1910.120(q)(6)(iii).

The fire and explosion hazards of propane and gasoline are very substantial. This interpretation is only applicable when fire fighters are fully trained and equipped to handle the explosion and fire hazards of propane and gasoline.

It also be helpful to include another pertinent interpretation in this fact sheet, which although not specifically pertinent to operation level response in particular is relevant to emergency response operations in general.

Fires, Hazardous Substance and Emergency Response. 1910.120(q)

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.

In the description of technician level employees the fact sheet states "utility workers are often considered technician level responders". Is this true? If it is true is it pertinent? Utility workers can only be considered technician level employees if they have received the appropriate training.

Also it may enhance the technician level description be highlighting their role as the "worker bee" of a hazardous material response team. This is the first level of competency which allows the responder to enter the hot zone and take aggressive action to contain the leak. The first sentence of the description should probably be changed to reflect this important ability to enter the hot zone.

The specialist level description could be enhanced if the first sentence was changed to read "The hazardous materials specialist's role requires specific knowledge and expertise in a particular hazardous substance or group of hazardous substances". OSHA does not concur with the last sentence of the description which reads "Again, these personnel may only act defensively to control an incident". This sentence should be deleted, as it is incorrect.

There may be some confusion between a hazardous materials specialist as described in 1910.120(q)(6)(iv) and the specialist employee as described in 1910.120(q)(5). Specialist employees are not emergency responders, but rather are employees with a special knowledge of a process or substance which may be valuable to the on scene incident commander. The role of the specialist employee is to advise and assist the on scene incident commander. Specialist employees may not enter the danger area unless they are fully trained in the use of the required personal protective equipment and are accompanied by a hazardous material technician. OSHA has made a couple of interpretations concerning specialist employees to date.

Specialist Employees. 1910.120(q)(5)

The Specialist employee category is to be used for employees who assist or advise the HAZMAT team. These employees may be operators who work with and are trained in the hazards of specific hazardous substance, but do not necessarily have all of the competencies of the HAZMAT technician. Specialist employees may not perform emergency procedures without the direct guidance of the individual in charge, or independent of the incident command system.

Specialist Employees. 1910.120(q)(5)

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 1910.120(q)(5) and must receive training or demonstrate competency in the area of their specialization annually.

The last three pages of the EPA fact sheet discuss requirements beyond the scope and application of HAZWOPER and OSHA's jurisdiction. However, OSHA has reviewed the pages and concurs with their content.