OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

 

OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.

 


August 24, 1994

Mr. Peter R. Jensen
Quark Management Service
1341 Lathrop Avenue
Racine, Wisconsin 53405-2834

Reference: Letter dated September 15, 1993 to the OSHA Milwaukee Area Office

Dear Mr. Jensen:

This letter is in response to the above-referenced inquiry concerning the application of OSHA's Hazardous Waste Operations and Emergency Response (HAZWOPER) standard (29 CFR 1910.120) to employers of news media personnel who are covering emergency response incidents. Please accept our apology for the delay in responding to your letter. OSHA's response to each of the four questions contained in your letter follows.

Do the provisions of 29 CFR 1910.120 as they relate to First Responder Awareness Level training apply to a news gathering team? Could the news team be considered "Skilled Support Personnel?"

The requirements contained in paragraph (q) of 29 CFR 1910.120 apply to employees who are engaged in emergency response activities where there is the potential for releases, or substantial threats of releases, of hazardous substances. Typically, employees that are covered by this paragraph include police, fire and rescue personnel, medical personnel, and HAZMAT employees. OSHA does not consider members of the news media who are covering emergency response incidents "engaged in emergency response," and are therefore not specifically required to be provided with First Responder Awareness training under this standard. In addition, Skilled Support Personnel, defined under paragraph (q)(4) of the standard, are those employees who are needed temporarily to perform immediate emergency support work. Since the activities performed by news media personnel are not critical to the emergency response effort, OSHA does not consider that news media employees are Skilled Support Personnel under the HAZWOPER standard.

As your letter points out, there are two situations whereby news media personnel may be potentially exposed to hazardous materials during an emergency situation. In the first instance, news media employees respond at the scene of an incident where emergency personnel have already engaged in the response effort. In this situation, the incident commander who is responsible for directing the emergency response effort is required under paragraph (q)(3)(v) of 29 CFR 1910.120 to limit access to areas of potential or actual exposure to site hazards to personnel who are actively performing emergency operations. Thus, news media personnel should not have access to such areas during the emergency response efforts, and therefore would not be at risk of exposure to site hazards.

In the second situation that you describe, news media personnel may arrive at the scene of an emergency incident before emergency response arrive. In this situation, the news team's employer must ensure that the news team is not potentially exposed to hazardous materials while covering such events unless employees are provided with appropriate protective clothing, respiratory protection, and hazard training.

Is the employer of the news team required to develop an emergency response plan and operate an Incident Command System under the provisions of 29 CFR Part 1910.120?

Because OSHA does not consider that news media employees are engaged in emergency response operations, employers of such employees would not be required to develop a written emergency response plan or operate an Incident Command System as described by 29 CFR 1910.120.

In the opinion of OSHA, is there anything in Constitutional case law related to First Amendment rights that would preclude OSHA from enforcing the relevant provisions of 29 CFR 1910.120 in the news media?

OSHA is not aware of any Constitutional case law that precludes OSHA's authority to develop and enforce standards designed to protect employees from workplace hazards. OSHA is specifically authorized under Section 6(b) of the Occupational Safety and Health Act 1970 (P.L. 91-596) to promulgate standards that ensure that no employee will suffer material impairment of health or functional capacity due to exposure to harmful chemical or physical agents; Section 6(b)(7) of the Act authorizes the Agency to prescribe appropriate forms of warning as are necessary to ensure that employees are appraised of all hazards to which they are exposed. Such forms of warning include employee training as required in OSHA's Hazard Communication standard.

If untrained workers, in this case untrained reporters, cameramen, etc. were to enter the site in opposition to the emergency plan, would an enforceable violation be present?

In this situation, the employer of the news media personnel entering a hazardous area at the scene of an emergency could be subject to violations of OSHA standards governing the use of personal protective clothing and respiratory equipment (29 CFR 1910.132 and 1910.134) if the employer were to require that its employees enter an area where they would be potentially exposed to chemical or physical hazards as part of their job assignment. In addition, the employer could potentially be considered to be in violation of the Hazard Communication standard (29 CFR 1910.1200) if his or her employees were not adequately informed of any known hazards likely to be encountered during such emergency situations.

We hope this information is helpful. If you have any further questions, please contact [the Office of Health Enforcement at (202) 693-2190].

Sincerely,

John B. Miles, Jr. Director
[Directorate of Enforcement Programs]

[Corrected 4/15/03]