November 18, 1994

Charles N. Jeffress
Deputy Commissioner/Director
North Carolina Department of Labor
Division of Occupational Safety and Health
413 North Salisbury Street
Raleigh, North Carolina
27603-5942

Dear Mr. Jeffress:

We have been recently asked by the Occupational Safety and Health Administration's (OSHA) Atlanta Regional Office for a copy of our response to an October 8, 1992, inquiry from former Deputy Commissioner Michael D. Ragland. Unfortunately, we could not find a signed copy of our response to this inquiry concerning OSHA's Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard, 29 CFR 1910.120. While this serves as an updated response, we apologize if you never received the original response.

We will address your specific questions in the order they were presented.

1. May an emergency responder trained only at the operations level under paragraph (q)(6)(ii) of the standard perform aggressive or offensive actions at an emergency involving a small spill or leak of gasoline without the employer being in violation of the Standard? Typical actions would include plugging or patching a leaking automobile gas tank.

Operations level training by itself is designed to enable emergency responders to safely perform defensive action at a safe distance from the point of release; personnel who have not been trained beyond the operations level are not considered adequately trained to take aggressive action at the point of release and are not permitted to do so. Such action would be in violation of 29 CFR 1910.120(q)(6)(iii), which defines the training requirements for personnel designated to take aggressive action (i.e., hazmat techs).

However, "a small spill or leak of gasoline" would not necessarily constitute an emergency or potential emergency covered under the HAZWOPER standard. Firefighters with or without operations level training may be permitted to handle non-emergency releases of an identified hazardous substance which they are adequately trained and equipped to control. Where an emergency or potential emergency release has occurred, personnel who have not been trained beyond the operations level may perform defensive action only, deferring aggressive action to more highly trained personnel.

2. May an emergency responder trained at the operations level under paragraph (q)(6)(ii) who has had additional training specific to the hazards of gasoline or other fuel (hereafter referred to as "operations plus") perform the aggressive, offensive operations delineated in question number 1, without the employer being in violation of the standard?

29 CFR 1910.120 is a performance based regulation, providing some flexibility to the employer in meeting the requirements of the regulation. With regard to training, paragraph (q)(6) states that "training shall be based on the duties and function to be performed by each responder;" all employees must be adequately trained to perform their assigned job duties without danger to themselves or others.

Hazardous materials technician (hazmat tech) training is necessary for emergency responders who take aggressive action in a potentially dangerous area to stop the release. OSHA may, in appropriate circumstances, consider violations of the hazmat tech training to be "de minimis," however, when they do not impact on the ability of responders to safely perform their assigned job duties. The burden would be on the employer to demonstrate to OSHA that the violation did not pose a hazard to the safety or health of employees and that the violation was in fact de minimis in nature.

Therefore, in certain limited circumstances, personnel who do not meet all of the training requirements for the hazmat tech level, but who have training beyond the first responder operations level, would be considered by OSHA to be adequately trained to perform a specific task not otherwise permitted for operations level personnel.

The September 20, 1991 letter addressed to Ron Runge to which you refer was intended to apply only to firefighters. OSHA considers properly trained firefighters to already have extensive training and experience in handling gasoline or other fuel incidents by nature of their regular job duties. However, where the identity of the hazardous substance involved in an uncontrolled release cannot be determined, or where the hazardous substance is one for which firefighters have not received specific training or do not have adequate control equipment, aggressive action should be deferred to a fully trained HAZMAT team. Further, response by a fully trained HAZMAT team may be necessary whenever there are factors which may complicate response efforts.

Technical Violations for non-Technician Aggressive Responders

You inquired in question (a) about technical violations and cases where an injury, illness, or fatality has occurred. As you are probably aware, a technical violation, also called a de minimis violation, carries no monetary penalty or requirement for abatement. Citations are not issued for de minimis conditions, although they are to be documented in the same way as any other violation. If an employer complies with the clear intent of a regulation while deviating from its particular requirements in a manner that has no direct or immediate relationship to employee safety or health, OSHA's Field Inspection Reference Manual (FIRM) states that such a violation be characterized as de minimis. (See enclosed pages from Chapter III, C.2.g.(19-20) of the FIRM.)

A violation of training requirements that results in an actual injury to an employee during an emergency response cannot be a "technical violation." Thus, if an injury has occurred and the compliance officer has determined that the responders' training and experience was not sufficient for the tasks being performed, then a citation shall be issued noting a violation of 29 CFR 1910.120(q)(6)(iii) and carrying a penalty and requiring abatement. Whether abatement should require training in all or only part of the competencies of the hazmat tech level would depend on the training needed to safely perform the tasks in question.

If, however, the compliance officer determined that the training which had been provided to the employees in question had been adequate, even though the employees did not have full hazmat tech level training, then the training violation would be considered a de minimis violation and no citation would be issued for inadequate training. Therefore, it is critical that employers who choose to use personnel who are not fully trained hazmat techs conscientiously document that the training and experience their employees have is adequate for their specific assigned job duties. OSHA has not created a new training level, but is simply allowing employers to train their employees in those topics which their job duties demand.

In question (b), you inquired about medical surveillance requirements for personnel who are assigned to take aggressive action in certain limited circumstances. The standard requires medical surveillance for members of "an organized and designated HAZMAT team." Since these personnel will be expected, as part of their regular job duties, to enter the release area, they may in some cases be considered "members of an organized and designated HAZMAT team" and require medical surveillance. (This requirement should be based on job duties and worker exposure and not on the designation "HAZMAT team.") Medical consultation is also required for all emergency responders who exhibit signs or symptoms which may have resulted from exposure to hazardous substances during an emergency incident.

You also inquire, in question (c), about additional training and training offered before the effective date of 29 CFR 1910.120. All emergency responders must be able to objectively demonstrate competency in all required job duties, regardless of whether they have training or experience prior to the effective date of the standard.

Regarding minimum training hours, OSHA would expect the minimum 24 hour training required for the hazmat tech level to be met. Where fewer than 24 hours of training are received for personnel designated to take aggressive action, the employer needs to clearly demonstrate that the employees have been adequately trained in all relevant topics and have competency in all relevant areas. Training hours prior to the effective date of the standard which meet the training requirements of the standard need not be repeated if the employed is able to document the training. It is critical that the responder's competency be current. As you are probably aware, all emergency response personnel are required by paragraph (g)(8) to receive annual refresher training "of sufficient content and duration to maintain their competencies, or shall demonstrate competency in those areas at least yearly."

In cases where the employer was using aggressive responders not fully trained to the hazmat tech level, the compliance officer could regard the violation as de minimis if a review of the evidence such as the employer's records and employee interviews showed that the following criteria were met:

• The employer has defined the employee's job duties and the limits placed on them in the employer's emergency response plan;



 
• The employee has competency in all training elements made necessary by their assigned job duties;



 
• The employer has documented that the employee has met training hour requirements as follows:
   
  • The employee has received a minimum of 24 hours of training meeting the requirement of 29 CFR 1910.120(q)(6)(iii); or
  
  
  
   
  • The employee has received more than eight hours of training covering all relevant topics.

Consideration for the de minimis policy for 29 CFR 1910.120(q)(6)(iii) is generally limited to small scale emergencies involving limited quantities of a known hazardous substance which firefighters are adequately trained and equipped to handle.

Further, please note that this de minimis policy applies only to personnel taking aggressive action in response to a HAZWOPER emergency or potential emergency. Non-emergency releases of hazardous substance would not be covered by the regulation. In these cases responders would not be covered by the training requirements of 29 CFR 1910.120, but must of course be adequately trained to perform their assigned job duties without danger to themselves or others.

Non-Technician Aggressive Responders and Hazard Assessment

You state that the HAZMAT team in an urban county has adopted the policy that gasoline spills of 25 gallons or less do not require response by a HAZMAT team, and can be safely handled by firefighters with "operations plus" training.

OSHA has no authority to determine how State and local authorities divide responsibilities between their fire departments and HAZMAT teams. However, if fire department members with inadequate HAZWOPER training took aggressive action to respond to a hazardous substance emergency, a violation of 29 CFR 1910.120(q)(6)(iii) would exist; obviously, this would not be the case if the fully trained and equipped HAZMAT team were to respond. OSHA acknowledges that in many cases firefighters may have the capabilities to safely respond to spills where 25 gallons or less of the gasoline are involved without full hazmat technician training provided they have extensive training in the safe handling of gasoline.

However, the hazard assessment incidents which can be safely handled by responders without full hazmat tech training can not be based on quantity of hazardous substance alone. Ambient conditions and specific hazards at the scene must be included in the hazard assessment. Incidents that can be safely handled by responders who do not meet all of the competencies required for the hazmat tech level would depend also on the extent and content of any additional training beyond the operations level which they had received.

Employers must establish in their written emergency response plan, required in paragraph (q)(2)(ii), guidelines for determining in which scenarios aggressive action should be deferred to the fully trained HAZMAT team. Personnel who will be expected to take aggressive action, but who have not been assigned the full duties of the hazmat tech level, should as part of their training be instructed in these guidelines to enable them to determine which scenarios are beyond their ability to handle safely.

Your final set of questions addressed the issue of how to cite for technical violations. To summarize our previous statements, technical violations by definition carry no monetary penalty or requirement for abatement, and citations are not issued. If inadequate training of responders taking aggressive action was the cause of an injury, then a citation would be issued indicating that a violation of 29 CFR 1910.120(q)(6)(iii) had occurred, a penalty would be assessed, and abatement would be required to bring the employees up to a level of training adequate for their specific assigned job duties.

We hope this information is helpful. We have included for your reference a copy of the directive: Inspection Procedures for the Hazardous Waste Operations and Emergency Response Standard, 29 CFR 1910.120, Paragraph (q): Emergency Response to Hazardous Substance Releases (CPL 2-2.59). If you have any further questions, please contact the Office of Health Compliance Assistance at (202) 219-8036.

Sincerely,

John B. Miles, Jr.,
Director Directorate of Compliance Programs