February 26, 2003

Mr. Thomas Johnston
Environmental Analyst
State of Alaska Department of Transportation
PO Box 196960
Anchorage, Alaska 99519-6960

Dear Mr. Johnston:

Thank you for your October 16, 2002 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any scenarios not delineated within your original correspondence. You further detailed your concerns and questions regarding 29 CFR 1910.120, the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, during a phone conversation on October 30, 2002. As you requested, this letter provides a written record of our responses to you.

Question 1: Would the application of absorbent pads to control the release of jet fuel or gasoline from an overturned aircraft constitute an operation that requires emergency response training under paragraph (q)(6) of HAZWOPER? This activity is conducted only under non-emergency conditions to limit environmental contamination, and there is a separate emergency response team to handle the overturned aircraft.

Response 1: Paragraph (q) of 1910.120 covers emergency response operations for releases of, or substantial threats of releases of, hazardous substances without regard to the location of the hazard. However, responses to releases of hazardous substances where there is no potential safety or health hazard are not considered to be emergency responses. Incidental releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of the release by employees in the immediate release area, or by maintenance personnel, are not considered to be emergency responses within the scope of the standard. Appendix E of OSHA Directive CPL 02-02-059 [formerly CPL 2-2.59A] - Inspection Procedures for the Hazardous Waste Operations and Emergency Response Standard, 29 CFR 1910.120 and 1926.65, Paragraph (q): Emergency Response to Hazardous Substance Releases provides a more thorough discussion of the distinction between incidental releases of hazardous substances and releases that require an emergency response, and hence, compliance with the provisions of 1910.120(q).

As we discussed on the phone, if the release of jet fuel or gasoline is covered by 40 CFR 300, the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), you may be required by EPA to follow HAZWOPER. Subpart 300.150 requires that response actions under the NCP comply with the provisions of 29 CFR 1910.120. Your local EPA office could address this in further detail.

Question 2: Would the training required under 29 CFR 1910.120(e) qualify a worker as a Hazardous Materials Technician under 29 CFR 1910.120(q)(6)(iii)?

Response 2: No, hazardous waste site cleanup training under HAZWOPER paragraph (e) does not qualify a worker as a hazardous materials technician as described in (q)(6)(iii) of the standard. The conditions under which these two types of personnel operate and the training they require are generally quite different.

Typically, the cleanup worker is remediating a site after a hazardous substance release has occurred and the location and level of hazardous substances on the site are well-characterized. A hazardous materials technician, however, may operate close to the point of actively releasing hazardous substances for the purpose of stopping or controlling the release. Therefore, although some of the topics addressed in paragraph (e) and (q) may sound similar, the content and extent of the training would be different. For example, your letter suggested that cleanup worker training that discusses the safe use of engineering controls and equipment on the site, [1910.120(e)(2)(v)], might be comparable to the 1910.120(q)(6)(iii)(F) competency to "be able to perform advance control, containment and/or confinement operations..."

We hope it is clear from the discussion above that the cleanup worker will likely be operating in a more controlled, predictable work environment than the hazardous material technician. Knowledge of the "safe use of engineering controls and equipment" may involve an understanding of well-planned standard operating procedures, whereas competency in "advance control and containment" will require an ability to predict the behavior of actively releasing hazardous substances.

Hazardous materials technicians must receive at least 24 hours of training equal to the first responder operations level and in addition have the competencies listed in paragraph 1910.120(q)(6)(iii)(A) - (I). Employers must certify that their employees have these competencies. For more detail about training for hazardous substance emergency responders, we recommend that you review NFPA 472, Professional Competence of Responders to Hazardous Material Incidents. This consensus standard is referenced in Appendix C of HAZWOPER as an excellent resource document for developing training programs.

As a reminder, the State of Alaska administers its own occupational safety and health program under a plan approved and monitored by Federal OSHA. Therefore, employers in Alaska must comply with state occupational safety and health requirements. As a condition of plan approval, states must adopt and enforce occupational safety and health standards that are at least as effective as those of Federal OSHA. Further inquiries regarding this or any other health and safety matter should be addressed to your state office at:

Alaska Department of Labor and Workforce Development
P.O. Box 21149
Juneau, Alaska 99801-1149
Phone: (907) 465-4855
Website: http://www.labor.state.ak.us/lss/

Thank you for your interest in occupational safety and health. We hope you find this information helpful. 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. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Richard E. Fairfax, Director
Directorate of Enforcement Programs

CC: Greg O'Claray, Commissioner
Alaska Department of Labor and Workforce Development

[Corrected 2/27/2004]