HAZWOPER coverage for marine spills and cleanup workers

October 10, 1989

Richard F. Boggs, Ph.D.
Organization Resources Counselors
Vice President
1910 Sunderland Place, NW
[Recipient address omitted]
Dear Dr. Boggs:

I apologize for the delay in responding to your May 18 letter requesting clarification of several issues related to our Hazardous Waste Operation and Emergency Response rule. You have already received a response to most of the issues from our compliance office. I believe it responds to most of your concerns.

In response to the specific concerns given in your letter to Safety Standards, I offer the following. First, the Occupational Safety and Health Administration (OSHA) is assuming jurisdiction for the safety and health of employees involved as emergency responders and those in the clean-up of water-borne releases of hazardous substances which is consistent with the National Response Team (NRT) Policy (Attachment A). Spills that occur on the U.S. territorial waters covered by the Outer Continental Shelf (OCS) Lands Act, are not covered by OSHA (See Attachment B) I understand that the Coast Guard has jurisdiction for releases that remain solely water-borne on the OCS. Also the Coast Guard, under the NRT, will have the lead responsibility for water pollution concerns on navigable waterways (See Attachment A). As for ships' crews (See Attachment C) the Coast Guard has the coverage for crews on vessels that have a current and valid certificate of inspection. Also most oil transport vessels are certificated vessels. As for non-certificated vessels, these ships' crews are covered jointly by OSHA and the Coast Guard. However, all waters in-shore of the OCS are covered by OSHA.

Second, we certainly agree that securing a release and containing the released product is of importance to first responders. Our primary concern is that first responders making the initial containment response have the necessary training and proper equipment to safely conduct that response.

Employees who provide the initial emergency response to releases of hazardous substances outside their immediate work area and who are within OSHA jurisdiction must meet the requirements of 29 CFR 1910.120. Employers such as oil clean-up cooperatives, who we believe are similar in nature and operation to mutual-aid organizations, must provide their employees with the proper training and equipment required in 29 CFR 1910.120. Ships' crews, on the other hand, are much like flight crews on airplanes or train crews on the railroads, and these employees are protected by regulations issued by the U.S. Department of Transportation (DOT) as previously discussed. OSHA would be pre-empted from coverage of these employees when DOT has issued such rules.

Third, second responders who arrive hours or days after an event may fall into two categories. The first group would be those employees of the employer who is responsible for the release of a hazardous substance and may function as specialist employees. Any employees in this group would be considered part of the emergency response group and would be covered by 29 CFR 1910.120(q). The second group would be those employees of contractors called in to help with clean-up after the emergency is controlled or over. This group of employees would be covered by (q)(11)(i).

With regard to your specific example of using local fishermen, we would consider those types of workers to be "skilled support personnel" regulated under (q)(4). This category of worker was included in paragraph (q) to recognize the need at times for fast-response assistance by individuals who possess needed skills and equipment to an emergency scene.

Finally, with respect to clean-up work performed by unskilled labor and volunteers, we still require proper training and equipment for those individuals who meet the definition of "employee" and are being exposed to hazardous substances. Some volunteers may be outside the OSHA "employer-employee" relationship, however, they still deserve the necessary protection for their own health and safety.

You also asked about generic plans for "post-emergency" clean-up operations. I believe that Ms. Clark addressed this issue in her response to you, and we support and concur in that response We will also be considering your comments on our training certification standard during the development of that rule. We look forward to meeting with you and discussing the project as it proceeds through the regulatory process.

Thank you for bringing the concerns of ORC to my attention and if I can be of further assistance in explaining our rule, please let me know. Again, I apologize for the lateness of our response.

Sincerely,
Thomas H. Seymour, P.E.
Deputy Director,
Directorate of Safety Standards Programs

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