January 6, 2009

Mr. Timothy B. Thomas
Madison County Hazardous Materials Team
2420 Main Street
Elwood, IN 46036

Dear Mr. Thomas:

On January 21, 2004, you sent a letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs requesting an interpretation of the Hazardous Waste Operations and Emergency Response standard, 29 CFR 1910.120. On April 8, 2004, our office responded to you; a copy of that letter is enclosed. In our normal process of reviewing previously written HAZWOPER interpretive letters for consistency, we noticed an error in the April 2004 letter. Our office has decided to correct part of our answer in the first sentence of the third paragraph in the form of bold wording to our previous response. Please excuse any confusion the previous letter may have caused.

This letter constitutes OSHA's interpretation only of the requirements discussed and may not apply to any question not delineated within your original correspondence. You had a question about Hazardous Waste Operations and Emergency Response (HAZWOPER) training requirements for a fire investigator who may have to sift and/or dig through a site of a fire that may or may not have chemicals present.

HAZWOPER is a performance-based regulation allowing employers flexibility in meeting the requirements of the regulation, although the level and type of training is to be based on reasonably anticipated worst-case scenarios. Training requirements for all classifications of responders are based on the "duties and functions to be performed by each responder" and are found at §1910.120(q)(6)(i)-1910.120(q)(6)(v). As you are aware, the duties of a fire investigator are unique in that after the fire has been extinguished, the fire investigator may be exposed to several hazards as a result of combing through debris left from the fire. Since a fire investigator, more routinely than not, arrives on-site after the emergency has been declared over by the incident commander, the HAZWOPER training requirements would not be applicable. Instead, other safety and health standards would be applicable to a fire investigator. These include 29 CFR 1910.132, Personal Protective Equipment; 29 CFR 1910.134, Respiratory Protection; and 29 CFR 1910.1030, Occupational Exposure to Bloodborne Pathogens, to name a few. Each of these standards has some element of training required.

If, however, as a fire investigator, you are called upon to assist in responding to the release of a hazardous substance, then you are covered by §1910.120(q)(6) and are under the Incident Command system. Then, as stated above, your level of training would be based on your duties and functions during the response. For example, workers who assume an aggressive role (offensive) in responding to a release of hazardous substance(s) for the purpose of stopping or controlling the release must have training equal to the hazardous materials technician level (24 hours). Workers who assume a non-aggressive role (defensive) would need to have training equal to the first responder operations level (8 hours), including training on decontamination and personal protective equipment.

As you may be aware, the Indiana Department of Labor administers an OSHA-approved state occupational safety and health program for both private and public sector employers and employees in Indiana. State plans are required to implement regulations that are "at least as effective" as the federal standards. If you would like further information regarding Indiana occupational safety and health requirements, you may contact the Indiana Department of Labor at the following address:

Indiana Department of Labor
State Office Building
402 West Washington Street, Room W195
Indianapolis, Indiana 46204-2751
(317) 232-2378

OSHA has made available guidance material for HAZWOPER compliance on its public web site at http://www.osha.gov. We encourage you to review the various interpretation letters, Publication No. 3114 titled, Hazardous Waste and Emergency Response Operations (a copy of which is enclosed) and related eTools for additional compliance information.

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