June 24, 2003

Mr. John E. Hudson, Jr.
Safety Associates
P.O. Box 357520
Gainesville, FL 32635

Dear Mr. Hudson:

Thank you for your March 31, 2003 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs (DEP). Our response is based on information you provided in your letter and information you provided to one of my staff members in a telephone conversation on May 7, 2003. You have questions regarding OSHA's Process Safety Management of Highly Hazardous Chemicals; Explosives and Blasting Agents Standard (PSM), 29 CFR 1910.119. Please be aware that this response may not be applicable to any question or situation not delineated within your original correspondence. Your specific question is related to the application of OSHA's requirements for emergency response and planning under the PSM standard. We apologize for the delay in our response to you.

Scenario: You have a client who operates an ammonia refrigeration system containing approximately 55,000 pounds of anhydrous ammonia. Ammonia is the only hazardous substance regulated by the PSM standard at this site. During a series of self-audits of both the facility's Process Safety Management Program (29 CFR 1910.119) and the EPA's Risk Management Program (40 CFR 68), questions concerning the various levels of training for the emergency response team were raised. The questions arose due to confusion as to whether the facility should be operating under a 29 CFR 1910.38 (Employee emergency plans and fire prevention plans) concept or whether the response team is actually a HAZMAT Team regulated by 29 CFR 1910.120 [Hazardous Waste Operations and Emergency Response (HAZWOPER)].

You provided additional facts outlining the extent of your client's organizational response in case of an unplanned release of ammonia emergency and actions taken by the emergency response team (refrigeration department employees) at the facility. These facts are provided below:

• The facility has approximately 20 employees working in the refrigeration department that have completed a 24-hour technician level course; several members have had an 8-hour incident command class; and the facility has an emergency evacuation plan.
• The facility has a respiratory protection program compliant with 29 CFR 1910.134 for the refrigeration department employees who, on occasion while working on equipment, will need a respirator.
• During an unplanned release of ammonia, the refrigeration staff (emergency response team) will be the employees remaining behind or going into an adjoining space, to affect an emergency shutdown of ammonia equipment including electrical controls and isolation of equipment or lines using existing valves. They do no mitigation during the emergency shutdown procedures. They will carry a hand-held monitoring device during the emergency shutdown procedure.
• To accomplish the emergency response to an ammonia release, the employer plans for and in fact has had emergency responders don SCBA's when an ammonia release has occurred.
• There is potential for and in fact response to ammonia releases that have originated from outside the immediate release area into rooms where ammonia releases have occurred, i.e., machine room.
• There is a company-registered nurse on duty during normal business hours for medical surveillance for all employees. During other hours, EMS services are called if needed. Emergency response team members have annual physical examinations to evaluate their health, which includes pulmonary function evaluation.
• A horn sounds indicating the need for a facility evacuation. There is a mechanism in place for accounting for all employees and contractor employees on site during an emergency evacuation.
• The existing emergency plan has duties and responsibilities for those who must react to a fire within the facility.
• The facility has a comprehensive maintenance program meeting all the requirements of PSM.
• The facility has a training program, which addresses evacuation procedures for unplanned ammonia release and fire, as well as other safety concerns.

It is your feeling that the facility is well served and protected with the development of an emergency action plan as required by 29 CFR 1910.38.

Question: Given that the emergency responders actions are purely defensive in nature and do not include any mitigation or offensive action, do the actions outlined exceed the requirements of 29 CFR 1910.38?

Reply: You correctly state that your client's facility is covered by the PSM standard (55,000 pounds of ammonia in the facility's ammonia refrigeration process -- anhydrous ammonia is a highly hazardous chemical covered by PSM at a threshold quantity of 10,000 pounds or greater). Therefore, your client must comply with all PSM requirements including the pertinent provision, 29 CFR 1910.119(n), Emergency planning and response.¹ From your discussion with my staff member on May 7, 2003, the core of your question is this -- given that PSM applies to the facility, and given the site specific facts provided, which OSHA standard is required by 1910.119(n)? Is it 1910.38(a) or 1910.120(a) and 1910.120(q)?

You believe your client's facility is well served by complying with OSHA's 1910.38(a) standard versus complying with 1910.120. Based on your letter and telephone discussion, your primary conclusion is based on the fact that your client's emergency responders do not take any "mitigation" or offensive actions, therefore, you believe that your client's emergency responders that remain behind or go into adjoining spaces to affect an emergency shutdown of ammonia equipment, including electrical controls and isolation of equipment or lines by turning valves, are equivalent to employees who operate critical plant operations before they evacuate per 1910.38(c)(3).²

OSHA stated in its HAZWOPER compliance directive³ that limited actions, such as turning valves taken by process operators during an emergency release of hazardous materials, are regulated by 1910.120 [specifically 1910.120(q)(6)(ii) or 1910.120(q)(6)(iii)]. The limited action taken by process operators must be addressed in the emergency response plan [1910.120(q)(1)].

Based on site specific conditions, employers must comply with either 1910.38(a) or 1910.120(q) to satisfy the requirements of 1910.119(n)⁴ for potential releases of highly hazardous chemicals from their PSM-covered processes. An employer's decision to completely evacuate the danger area and allow the local community emergency response organizations to handle a hazardous substance release is the foundation for deciding the applicability of either 1910.38(a) or 1910.120 standards. If the employer decides to evacuate all employees from the danger area should there be a release of a hazardous substance/highly hazardous chemical, then the employer may elect to comply with the requirements of 1910.38(a).

With respect to the magnitude of a release of a highly hazardous chemical, OSHA recognizes that there are PSM - covered processes where the employer is not required to comply with 1910.120 based on the magnitude and nature of the hazard of a potential release. There may be small or incidental releases where an employer may elect to comply with 1910.38(a) instead of 1910.120. If the employer is not required to comply with 1910.120 and elects to comply with 1910.38(a), they may want specific employees in the release area to control or stop minor emergencies or incidental releases. Per 1910.38(a), these actions must be planned for in advance, and procedures must be developed and implemented. Pre-planning for handling incidental releases for minor emergencies in the process area needs to be done, appropriate equipment for the hazards must be provided, and training must be conducted for those employees who will perform the emergency work before they respond to handle an actual small or incidental release. The employer's training program, including the Hazard Communication standard (29 CFR 1910.1200) training, is to address the training needs for employees who are expected to handle incidental or minor releases when the employer complies with 1910.38(a). If employers decide to mobilize the available resources at the plant and have them respond to significant releases, then the employer must comply with 1910.120.

There are releases of hazardous substances, like ammonia from your client's ammonia refrigeration process that pose a sufficient threat to health and safety that, by their very nature, require an emergency response, regardless of the circumstances surrounding the release or the mitigating factors. An employer must determine the potential for an emergency in a reasonably predictable worst-case scenario (or "anticipated emergencies," 29 CFR 1910.120(q)(1)), and plan response procedures accordingly.

Employers who expect their employees to become actively involved in an emergency response due to a release of a hazardous substance, i.e., ammonia at your client's facility, are covered by 1910.120(a) and 1910.120(q), and must train their employees accordingly. Again, from OSHA's HAZWOPER compliance directive,⁵ the Agency has stated that an emergency response can include, but is not limited to, the following situations:

1. The response comes from outside the immediate release area;
2. The release requires evacuation of employees in the area;
3. The release poses, or has the potential to pose, conditions that are immediately dangerous to life and health (IDLH);
4. The release poses a serious threat of fire or explosion (exceeds or has the potential to exceed the lower explosive limit or lower flammable limit);
5. The release can require immediate attention because of a potential imminent danger; and
6. The release may cause high levels of exposure to toxic substances.

All of the criteria listed above have potential to exist or in fact have existed at your client's ammonia refrigeration facility. Therefore, your client must comply with OSHA's HAZWOPER standard 1910.120.

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 General Industry Enforcement at (202) 693-1850.

Sincerely,


Richard E. Fairfax, Director
Directorate of Enforcement Programs

¹ 29 CFR 1910.119(n) -- Emergency planning and response: "The employer shall establish and implement an emergency action plan for the entire plant in accordance with the provisions of 29 CFR 1910.38....Employers covered under this standard may also be subject to the hazardous waste and emergency response provisions contained in 29 CFR 1910.120(a), 1910.120(p) and 1910.120(q)." [Back to Text]

² 29 CFR 1910.38(c)(3) -- [1910.38(a) Application: An employer must have an emergency action plan whenever an OSHA standard in this part requires one. The requirements in this section apply to each such emergency action plan.] "Procedures to be followed by employees who remain to operate critical plant operations before they evacuate." [Back to Text]

³ [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; Appendix D -- HAZWOPER Interpretive Guidance; Section II; Interpretations of 29 CFR 1910.120(q), Emergency Response to Hazardous Substance Releases; and Process Operators Responding within a Facility, (q)(6)(iii) [Section II.E.2.]. [Back to Text]

⁴ 29 CFR 1910.119(n) Emergency Planning and Response "...In addition the emergency action plan shall include procedures for handling small releases..." [Back to Text]

⁵ CPL 02-02-059 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; and Appendix E: Releases of Hazardous Substances that Require an Emergency Response. [Back to Text]