August 1, 2003

Mr. Daniel Graham, Director
Bureau of Field Operations
Division of Safety and Buildings
Post Office Box 2538
Madison, Wisconsin 53701-2538

Dear Mr. Graham:

Thank you for your February 3, 2003 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 or situations not delineated within your original correspondence. You had specific questions regarding the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, 29 CFR 1910.120, and the level of training required for fire fighters. Please excuse the delay in our response. Your questions are re-stated below, followed by our responses.

Question 1: If the fire department dispatcher receives an emergency call reporting a suspected release of a hazardous material, could an Awareness Level fire fighter respond to the scene to confirm the existence of a hazardous material release and then notify another agency with a Hazardous Materials Response Team?

Response: No. If a fire department receives an emergency call reporting a suspected release of a hazardous substance, this would be considered sufficient information to warrant an emergency response. The fire department should not knowingly dispatch an "Awareness Level" fire fighter to respond to a hazardous substance emergency response. As the scenario you presented in your letter to us explains, a police officer reports the discovery of three 55-gallon drums on the side of a road and the officer believes the drums may be the result of an illegal methamphetamine laboratory "meth lab" operation in the area. These facts provide enough information to classify the situation as a potential emergency release of a hazardous substance and thus require it to be treated as an emergency response.

29 CFR 1910.120(q)(6)(ii) states, "First responders at the operations level are individuals who respond to releases or potential releases of hazardous substances as part of an initial response to the site for the purpose of protecting nearby persons, property, or the environment from the effects of the release." Training requirements for all classifications of emergency responders are based on the "duties and functions to be performed by each responder" and are found at 29 CFR 1910.120(q)(6)(i)-(v). Fire fighters who respond to emergency releases or potential emergency releases of hazardous substances must be trained to at least the first responder operations level.

Question 2: How close could the Awareness Level fire fighter get to the scene and what level of PPE is appropriate?

Response: Fire fighters trained at the first responder awareness level are trained to identify the release of a hazardous substance and to notify the proper authorities of the release without approaching the point of release. To further explain this role, OSHA has provided a possible emergency response scenario in the Summary and Explanation of the Preamble to the Hazardous Waste Operations and Emergency Response Standard. In this scenario, a state trooper assumes the role of first responder at the awareness level:

"A state trooper is on routine patrol along a highway passing through a residential and light industrial area of a large metropolitan city. Ahead in his path of travel, the trooper notices a multi-vehicle accident involving a large overturned tank trunk. Immediately the trooper uses his radio to contact his dispatcher to report the accident. After letting the dispatcher know the location and type of accident, the trooper places his vehicle across the travel lanes of the highway approaching the accident site to stop traffic. While he is doing this, the dispatcher is alerting the fire and rescue companies in the immediate area and dispatching an established number of fire and rescue vehicles. The trooper then surveys the accident scene from his vehicle trying to identify the type of cargo on the overturned truck. Seeing three different U.S. DOT placards on the vehicle the trooper makes note of the four digit numbers and checks his DOT Emergency Response Guide for a summary of actions to be taken for the chemicals identified on the placards. After determining his next on-site responsibility, he recontacts his dispatcher with the additional information and secures the scene. He stays away from the immediate accident site and does not become involved in rescue or site mitigation.

As described above, personnel trained to the first responder awareness level can make an effort to identify hazardous substances, but must do so from a distance. Since they are not permitted to approach the point of release to either contain or stop the release, they are not trained to select and use appropriate PPE. They are also not trained to establish perimeters or boundaries designating safe and unsafe areas. These actions are to be deferred to more highly trained personnel, such as those trained to the operations or technician/specialist level.

You had three additional questions in reference to the scenario below. Your scenario is re-stated for clarity, and your questions and our responses follow.

Scenario: "A police officer contacts dispatch to report the discovery of three 55-gallon drums located in a drainage ditch on the side of a road. The police officer believes the drums may be the result of an illegal meth lab operation in the area. The drums have no labels, but have a pungent odor. The police officer requests a response by the local fire department. The local fire department is composed of volunteers, and all of the fire fighters are trained to the Awareness Level. The fire department responds to the call and establishes a perimeter around the barrels.

In surveying the scene, the fire department determines that one barrel has the odor of acetone, another barrel has the odor of ammonia, the third barrel is leaking, and the paint near the leak is discolored. The fire department contacts a regional hazmat team based on a mutual aid agreement. The senior fire officer for the volunteer fire department is the Incident Commander. Under the direction of the Incident Commander, the Hazardous Materials team isolates the barrels for removal, believing that the barrels are hazardous. The volunteer fire fighters establish and maintain a secure perimeter and assist the hazmat team in staging materials.

The barrels are recovered and tested. The lab indicates that the barrels contain mixtures of acetone, lye, ammonia and other compounds associated with the manufacture of meth."

Question 3: Would the actions of the fire department based upon the level of training constitute a violation of the rule?

Response: Dispatching awareness level fire fighters to respond to a suspected hazardous substance emergency response would constitute a violation of 29 CFR 1910.120. For more information, please see the responses to questions #1 and #2.

Question 4: What would the minimum level of training be in order to comply with the rule?

Response: Fire fighters responding to a suspected hazardous substance emergency response must be trained to at least the first responder operations level. For more information, please see the responses to questions #1 and #2.

Questions 5: Would the violations be considered as de minimis?

Response: De minimis violations occur when an employer complies with the clear intent of the standard but deviates from its particular requirements in a manner that has no direct or immediate relationship to employee safety or health. In your scenario, awareness level trained fire fighters are dispatched to respond to "survey the scene" and as a result make close approach to the point of release exceeding their level of training. These actions do not comply with the clear intent of the standard and have a direct relationship to employee safety and health (e.g., breathing in vapors emanating from the drums). As a result, the violations would not be considered de minimis.

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 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