February 22, 2010

Dr. Michael D. Harris, Ph.D.
Battelle Memorial Institute
Ft. Leonard Wood/St. Roberts Operations
571 VFW Memorial Drive, Ste. 5
St. Roberts, MO  65584

Dear Dr. Harris:

Thank you for your letter to the Occupational Safety and Health Administration (OSHA).  You have questions in regards to the Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard, 29 CFR 1910.120. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not detailed in your original correspondence.  Your questions are below, followed by our responses.

Question [1]: Does 29 CFR 1910.120 apply to Weapons of Mass Destruction (WMD) Civil Support Teams (CSTs) responding to a hazardous material (HAZMAT) or terrorist incident?  If so, how does it specifically apply?

Response: It is OSHA's understanding that WMD Civil Support Teams are associated with the United States National Guard and are usually called to duty by a state governor.  National Guard units activated by a governor for emergency or disaster relief are under state authority until or unless they are federalized pursuant to presidential order. Thus, CST workers usually would be considered state employees.  Federal OSHA does not cover state and local government employees¹ . Members of the CSTs may, however, be covered by a HAZWOPER standard under a state occupational safety and health program.  There are 27 States that operate OSHA-approved State Plans. Those state programs must set job safety and health standards that are "at least as effective as" comparable federal OSHA standards.  A list of state plans and contact information for the state programs can be found on OSHA's website at http://www.osha.gov/dcsp/osp/index.html.  In addition, the Environmental Protection Agency has promulgated a standard applying OSHA's HAZWOPER standard to state and local government employees in states where there is no OSHA-approved state plan.  See 40 CFR Part 311.

The HAZWOPER standard contains requirements for emergency response operations for releases of hazardous substances and applies irrespective of whether the release is caused by an accidental or terrorist event. Emergency responders performing emergency response efforts for such releases would, therefore, fall under paragraph 1910.120(q). The employer would be responsible for developing an emergency response plan (ERP) that includes planning for any anticipated emergency and covers all applicable elements listed in 29 CFR 1910.120(q)(2).²

Further information on developing an ERP and other important requirements for emergency response under the HAZWOPER standard may be found in OSHA Instruction CPL 02-02-073, Inspection Procedures for 29 CFR 1910.120 and 1926.65, Paragraph (q): Emergency Response to Hazardous Substance Releases.

Question [2]: What are the specific requirements and procedures for the decontamination area under 1910.120(k)?  Are there differences in applicability during a HAZMAT event and during a WMD or terrorist event?

Response: Decontamination requirements are the same for all emergency response efforts.  Employers' ERPs must contain provisions for decontamination of emergency response workers leaving the exclusion zone. See 29 CFR 1910.120(q)(2)(vii).  Workers who will assist the responders as they leave the exclusion area must also be trained in decontamination procedures.

Decontamination of response equipment left in the exclusion zone and the contaminated area may be handled in the post-emergency response and, therefore, decontamination procedures for the equipment and these areas do not necessarily need to be part of the ERP.  If emergency responders are expected to decontaminate their own equipment or the contaminated area, then the procedures to be followed must be included in the ERP. For further guidance on decontamination procedures, we suggest you review the non-mandatory Appendix C, Section 3, of the HAZWOPER standard.

Although you asked about decontamination requirements under paragraph (k) of the HAZWOPER standard, that paragraph generally applies to hazardous substance clean-up, not emergency response operations.  See 29 CFR 1910.120(a)(2).  However, if it is determined that it is necessary to remove hazardous substances, health hazards, or contaminated materials, such as soil, at the completion of an emergency response, the employer conducting the clean-up must comply with the decontamination requirements in 29 CFR 1910.120(k).  See 29 CFR 1910.120(q)(11).³ For additional information about decontamination requirements under paragraph (k) see OSHA Instruction CPL 02-02-071, Technical Enforcement and Assistance Guidelines for Hazardous Waste Site and RCRA Corrective Action Clean-up Operations, Compliance Checklist 'J'.

Question [3]: In a phone conversation with a member of my staff you asked when OSHA would exercise its enforcement authority with regard to terrorist events.

Response: OSHA's role during a terrorist event will be guided by comprehensive national policies in OSHA's National Emergency Management Plan (NEMP), the National Response Framework (NRF) and other legal authorities.  Under the Occupational Safety and Health Act, OSHA's primary duty is to ensure that employers are taking necessary actions to protect workers from hazards on the job; enforcement of standards is only one of the means provided by the law to achieve this end and will not always be appropriate.  During a terrorist event, OSHA may provide technical assistance to protect employees rather than using its enforcement authority.

When actions under the NRF are terminated by the lead Federal agency, or the response period evolves into a clean-up period where a terrorist event has occurred and there are known exposures to hazardous materials, OSHA can and will then take any action, including the enforcement of 29 CFR 1910.120 and all other appropriate standards and regulations, as necessary to ensure that employees are properly protected.  Any decision to discontinue technical assistance in favor of enforcement, including at what point during an incident this transition should occur (e.g., from emergency response phase to clean-up), if at all, will be made by the Regional Administrator in consultation with the Assistant Secretary, Deputy Assistant Secretary, or designee.  With respect to enforcement actions against CSTs specifically, please note the limitations on the scope of federal OSHA coverage described in response to Question 1.

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

¹  Even if activated by the federal government, the CSTs would not be covered by federal OSHA; military personnel are specifically excluded from federal OSHA coverage.  See Executive Order 12196 (Feb. 26, 1980); 29 CFR Part 1960.   [Return to Text]

²  See 29 CFR 1910.120(q)(1) for more information about requirements for emergency response plans.   [Return to Text]

³  Please note that paragraph (k) requirements may not apply if post-emergency clean-up is done on plant property using plant employees.  See 29 CFR 1910.120(q)(11)(ii).   [Return to Text]