Natural disasters and HAZWOPER emergency planning

June 26, 1991

MEMORANDUM FOR:
MICHAEL G. CONNORS
REGIONAL ADMINISTRATOR

FROM:
PATRICIA K. CLARK, DIRECTOR
DIRECTORATE OF COMPLIANCE PROGRAMS

SUBJECT:
Natural Phenomenon and 1910.120

This is in response to the inquiry of April 12, to our Appleton Area Office, written by Mr. Gary Frasetto of the United Paperworkers, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response final rule (29 CFR 1910.120).
The specific question relates to evacuation of employees from a facility in the event of an imminent natural phenomenon that has the potential to threaten employee safety and health.
The Hazardous Waste Operations and Emergency Response Final Rule (1910.120) paragraph (a)(1)(v) covers:

"(v) Emergency response operations for releases of, or substantial threats of releases of, hazardous substance without regard to the location of the hazard".

Work places located in areas prone to natural phenomena, such as earthquakes, tornadoes and hurricanes, and subject to a "substantial threat of release of hazardous substances" are covered by 1910.120. The emergency response plan required in 1910.120(q)(1) should include responses to emergencies caused by such natural phenomena. The requirements of the emergency response plan clearly state in paragraph (q)(1), that emergency response plans "shall be developed and implemented to handle anticipated emergencies prior to the commencement of emergency response operations." OSHA interprets this to mean that employers in areas prone to natural phenomena should anticipate whether such natural phenomena are likely to cause releases of hazardous substances and if so incorporate emergency response procedures to such natural phenomenon in their emergency response plan.
Employers that evacuate all employees during an emergency and do not permit any of their employees to assist in handling the emergency incident are not required under paragraph (q) to have an emergency response plan if they provide an emergency action plan in accordance with [1910.38].
In the specific incident presented in the letter from Mr. Frasetto, it appears that the employer evacuated employees that were not subject to "substantial threat of release of hazardous substance" but at the same time did not evacuate those employees working with hazardous substances. If those employees were under substantial threat of release of hazardous substances, the incident would be defined as an emergency. Therefore, depending on the employers action concerning the requirements of paragraph (q)(1), it may have been mandatory to evacuate all employees from the danger area.
Obviously, the "substantial threat" posed by an imminent natural phenomenon would entail a judgement by the employer and therefore be difficult to enforce. However, if the employer takes emergency action, i.e., evacuates office personnel, but does so in a selective fashion, leaving personnel that have not been trained in emergency response procedures in the role of emergency responder, i.e., operating the facility during a natural phenomenon, the employer could be cited under 1910.120(q)(6).
Mr. Frasetto suggested possible use of the general duty clause in enforcing issues concerning weather. Although an employer has a general duty to provide a safe and healthful work place, OSHA prefers to cite more specific regulations when possible. Emergency response to natural phenomena may fall under the scope of 1910.120 if it involves the release or potential release of hazardous substances. Therefore the more specific regulation would be cited.
We hope this information is helpful. If you have any further questions please feel free to contact us at [(202) 693-2190].
Attachment [Text of 29 CFR 1910.38, Emergency Action Plans]

[Corrected 11/12/2003]

[The April 23, 1991 regional memorandum, union inquiry, and April 15, 1991 area-office memorandum reproduced on the OSHA page are omitted here.]