July 11, 1996

Richard D. Olson, CIH
Project Manager
Environmental & Health
Regulatory Affairs
Midland, Michigan 48674

Dear Mr. Olson:

This is in response to your inquiry of June 7, concerning a section of the Hazardous Waste and Emergency Response standard, 29 CFR 1910.120 (Hazwoper). You were specifically concerned about the number of workers necessary to be present when there is a need for an operator to respond to a potential emergency that falls under the scope of the Hazwoper standard.

Page D-12 of the Hazwoper Emergency Response Compliance Directive ([CPL 2-2.59A, April 24, 1998]) addresses the limited actions process operators can take when certain conditions are met:

Process operator who have (1) informed the incident command structure of an emergency (defined in the facility's emergency response plan), (2) adequate PPE (3) adequate training in the procedures they are to perform, and (4) employed the buddy system, may take limited action in the danger area (e.g., turning a valve) before the emergency response team arrives. The limited action taken by the process operators must be addressed in the emergency response plan.

* Once the emergency response team arrives, these employees would be restricted to the actions that their training level allows.

* This limited action assumes that the emergency response team is on its way and that the action taken is necessary to prevent the incident from increasing in severity (i.e., to prevent a catastrophe).

* Employers must inform employees during their training that they are to evacuate when they lack the capabilities to respond in a safe manner and in accordance with the standard operating procedures defined in the emergency response plan.

* If the process operator takes action beyond what they have been trained to do, and the action was comparable to the aggressive role that a HAZMAT technician would take, CSHOs shall cite the employer for a violation of 29 CFR 1910.120(q)(6)(iii). If the operator takes action beyond that which they have been trained to do, and the action was comparable to the defensive role that a first responder at the operations level would take, CSHOs shall cite the employer for a violation of 29 CFR 1910.120(q)(6)(ii).

This has been OSHA's long standing policy for operators responding to emergencies. Should you have a different approach that meets the intent of the standard, it would be helpful for us to review it before deciding whether a meeting with you would be necessary.

We hope this information is helpful. If you have any further questions please contact us at 202-219-8036.

Sincerely,

Ruth McCully, Director
Office of Health Compliance Assistance

June 7, 1996

Mr. J.B. Miles, Jr.
Directorate of Compliance Programs
Occupational Safety &
Health Administration
200 Constitution Avenue, N.W.
Washington, DC 20210

HAZARDOUS WASTE OPERATIONS AND EMERGENCY RESPONSE

Dear Mr. Miles:

The Dow Chemical Company (Dow) continues to have concerns about the interpretation, discussed below, of a section of the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, 29 CFR 1910.120. We would like to work with OSHA to clarify the interpretation. We believe that mutual agreement can be reached on this issue.

The compliance directive which OSHA published on this standard, CPL 2-2.59, October 25, 1993, allowed chemical process operators to take certain actions in their workplace in unusual instances without the broad emergency response training which was required of emergency responders. We believe that this is appropriate because of the extensive training that operators are given specific to their workplaces and the inappropriateness of some of the training required of emergency responders. It is circumstances surrounding actions which those operations personnel might take in unusual circumstances which lead to the interpretation questions. These questions arise because OSHA published an interpretive letter to Regional Administrators dated May 1, 1995, aimed principally at actions which firefighters might take in a firefighting emergency.

The circumstances we are concerned about are unusual operating conditions which may be caused by, e.g., failure of equipment. As an example, let us assume that a flange has failed and there may be or is a significant leak of a toxic material. The operator, working in the production unit with perhaps only one other operator, must take some action, e.g., close a valve in the area of the leak, or the incident may escalate to where there may be a potential for a catastrophic incident, e.g., an explosion, or the toxic material release may involve other manufacturing plants on the site, perhaps even nearby community neighborhoods. The concentration of the material in the area of the release may be unknown and has the potential to be above the IDLH level. The operator has been trained in the hazards of the material and is fully trained to operate the equipment he/she is working with, in many cases he/she is the person most knowledgeable about the operation of the equipment. The person is trained in the protective equipment that must be worn and is trained to don the most protective equipment for the material in an emergency, e.g. supplied-air respiratory protective equipment, usually self-contained breathing apparatus. The operator has alerted the emergency response organization and has alerted all others in the immediate area. The operator has been trained in emergency procedures and the unit emergency plan describes actions which the operations personnel can take in the situations which are reasonably foreseen and they are given authority to not respond if they believe their safety or health may be compromised.

With this scenario, we are concerned that the HAZWOPER standard may now be interpreted to require that the operations personnel may not take any action until enough additional personnel are present so that at least 2 employees are available to enter the area of the leak to close the valve and there are an equivalent number of employees in the same protective equipment outside the area to effect a rescue, if necessary.

Dow will not put our employees at risk without the proper training so the employee is prepared for the actions which must be taken. In addition, any employee of ours has the authority to decide not to take a certain action if he or she does not feel comfortable, due to health or safety concerns, taking that action with the personal protective equipment provided.

We believe that this issue can be clarified to our mutual satisfaction. Dow personnel would be willing to further discuss this with you and your staff at some time in the future that may be agreeable to us both. In fact, I will be in Washington on June 26th and would be willing to meet with you, and others if you wish, sometime after 9:30 a.m. You can let me know at 517-636-8295 if you wish to call. Thank you for your consideration.

Sincerely,

Richard D. Olson, CIH
Project Manager
Environmental & Health
Regulatory Affairs
Midland, MI 48674
(517)636-8295