HAZWOPER plans, emergency response, training, and marine work

July 28, 1989
Richard F. Boggs, Ph.D
Vice President
Organization Resources Counselors, Inc.
[Recipient address omitted]
Dear Dr. Boggs:
This is in response to your inquiry requesting interpretations of OSHA's final standard for Hazardous Waste Operations and Emergency Response (29 CFR 1910.120).
For the sake of clarity, I will enumerate and respond to your questions in the order you raised them:

1. Generic Plans for Post-Emergency Operations.
   We concur with your understanding that it is permissible to develop generic plans for post-emergency clean-up operations. This would be a plan addressing appropriate elements of paragraphs 1910.120(b)-1910.120(o), which can be filled in with specific details when an event occurs. It is possible that some of the elements of (b)-(o) will not be necessary at a particular workplace and others will have limited applicability. For example, if there are no confined space entry situations or potential situations then confined space entry procedures do not need to be addressed.
2. Distinction Between Emergency and Post-Emergency Operations.
   As long as an emergency response team is still in control of the site and a safety or health hazard exists, the emergency situation continues to be in effect. For example, if a vacuum truck arrives to remove spilled gasoline while an emergency response team is managing the activity, the vacuum truck operator's activity is part of the emergency response operations. Once the emergency response team has declared the response activity over or finished and has left the site, any remaining cleanup would be considered a post-emergency operation.

3. When the Standard Applies.
   a. "Emergency Situation" Responses to releases when there are no potential safety or health hazard are not considered emergency responses even if an alarm is sounded. Team responses to releases where there are potential safety and health hazards are not considered "emergency responses" under 29 CFR 1910.120 when the team does not take control of the site (i.e., the substances can be absorbed, neutralized, or otherwise controlled by employees in the immediate release area).

   b. "Immediate Release Area" For the purposes of 29 CFR 1910.120 "immediate release area" is a term used in the definition of emergency response to help clarify when an incident is an emergency. Incidental spills that could be cleaned-up or stabilized by the employees working in the immediate spill area without the need of a coordinated spill-control response is not considered an emergency incident. Such employees would have training under the Hazard Communication Standard and other appropriate training made necessary by the tasks they are expected to perform.

     The term "immediate release area" is not meant to either classify something as an emergency if immediate attention is not warranted, or encourage employees in the immediate work area to respond to incidental releases without the proper training and equipment.
     The "immediate release area" can be the entire geographic boundary of the employee's assigned work area. On a case-by-case basis OSHA will determine whether such employees are capable of responding to incidental releases and will evaluate the emergency response plan, including an evacuation plan, if an emergency situation is possible.
     Maintenance personnel responding to releases or potential releases for the purpose of stopping the leak are performing emergency response activities under the rule unless the upset condition:
     (1.) Results from routine maintenance activity and the small leak can be readily repaired; or
     (2.) Does not need to be taken care of immediately. That is, the safety and health of the employees are not threatened if immediate response is not initiated.
   

   c. "General Application" In general, the standard applies to all operations described in the scope (29 CFR 1910.120(a)) unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility for employee exposure to safety or health hazards. Thus, if potential for exposure is extremely unlikely the standard would not apply. The term "exposure" here has the same definition as in the Hazard Communication Standard.
   4. Safety and Health Plan for Multi-Employer Worksite.
   Each contractor/subcontractor is responsible for compliance with all safety and health protection requirements for their employees. An employer's safety and health plan can be used by contractors/subcontractors at the site if it appropriately addresses their activity and potential safety and health hazards. In general, a site plan organized as a single document, with component sections/appendices covering all tasks, operations, and contractors/subcontractors, may promote use efficiency; enhance completeness, clarity and coordination among all affected parties.
   5. Training Requirements.
   The interim final rule does not have a provision regarding training of less than 40 hours for employees involved in activities at cleanup sites. Prior to the publication of the final rule, OSHA has stated that for non-cleanup activities at designated cleanup sites the determination of the amount of training necessary for the workers to safely perform their job duties will be made on a case-by-case basis. As you are aware, the final standard addresses the issue of when less than 40 hours of training may be appropriate. It does not, however, provide for less than 24 hours of training.
   In general, OSHA will be enforcing the need for a minimum of 24 hours of training regardless of the nature of the job. There may be isolated cases where OSHA's variance procedures may be appropriate or where OSHA would determine that a situation warrants a de minimis violation. (Note: Depending on the job duties of the workers involved in emergency response, less than 24 hours of training is allowable under the standard.)
   6. Employee Classification.
   You mentioned that in many cases companies have a specialist trained and expert in, for example, tank truck accidents. When an emergency arises, this individual could be called on to provide guidance and technical assistance. Such an employee would be considered a "specialist employee" under 29 CFR 1910.120(q)(5) and must receive training or demonstrate competency in the area of their specialization annually.
   7. Training Requirements for Management Personnel.
   Management personnel who during an emergency situation stay out of the hazardous area and who are not taking charge of the incident, and are not a specialist employee under 29 CFR 1910.120(q)(5) are not covered by 29 CFR 1910.120.
   8. Marine Operations.
   OSHA does not apply its standards to seamen performing work on vessels which have been inspected and certified by the U.S. Coast Guard ("inspected vessels") because the Coast Guard has issued comprehensive standards regulating the safety and health of these workers. OSHA has recognized the Coast Guard's jurisdiction over inspected vessels in a Memorandum of Understanding between the two agencies. The Coast Guard has also issued some standards affecting the safety of seamen on uninspected vessels. OSHA would apply its standards to any working conditions not addressed by the Coast Guard.
   With these exceptions, OSHA has jurisdiction for seamen aboard vessels located on the waters within the three-mile limit, or in the case of Florida and Texas, within the limit of three marine leagues (the territorial waters). OSHA also has jurisdiction for workers performing work on shore or at other locations not aboard a vessel but within the territorial waters of the U.S. OSHA does not have jurisdiction over vessels outside the territorial waters.
   9. Covered Substances and Situations.
   Example 1.
   10,000 lbs of sodium saccharin (artificial sweetener) are spilled from a silo across a plant fence line into a stream bed. About 4000 lbs reach the water. As a CERCLA Hazardous Substance released above its Reportable Quantity (one pound) the release is reported to the National Response Center, which in turn notifies the predesignated Federal On-Scene Coordinator (OSC). The OSC responds to evaluate the situation and monitors the proper clean up of the sodium saccharin by the plant owner/operator. What portions of the final rule apply?
   Answer: Sections (b) through (o) of the rule are applicable for sites where a Federal OSC is overlooking the cleanup unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility for employee exposure to safety or health hazards.
   Example 2.
   A company manufacturers ammonium nitrate fertilizer, which is listed and regulated in 49 CFR 172.101 as an Oxidizer. A fire occurs in a corner of the warehouse and is extinguished by a local fire department. Would the subsequent removal of theammonium nitrate from the warehouse by employees of the company be covered by the final rule as a post-emergency response operation?
   Answer: A hazard would still be present, thus the post-emergency response provisions of the rule would be applicable.

I hope these responses sufficiently address the concerns you raised. If I can be of further assistance, please feel free to contact [the Office of Health Enforcement at (202). 693-2190].
Sincerely,
Patricia K. Clark, Acting Director
[Directorate of Enforcement Programs]
[Corrected 6/2/2005]

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[Requester letter reproduced on OSHA page; omitted here.]