OSHA Safety Hazard Information Bulletin
January 31, 1994
OSHA REGIONAL ADMINISTRATORS|
Office of Field Programs
||PATRICIA K. CLARK|
Directorate of Technical Support
||Information on OSHA's Role During Emergencies and Request
for Comments on OSHA's Role in Area Contingency Planning|
Mr. Michael G. Connors, Regional Administrator, Region V
has asked me to clarify OSHA's role during emergencies. Since this information
could also be useful to you, I am attaching a copy of my response to Mr.
Connor's request for your information. While new legislation and regulations
continue to be developed in this area, the attached memorandum reflects our
current thinking on the issue.
In addition, I have also drafted a response to a request from the U.S. Coast
Guard to Region V on OSHA's role in Area Contingency Plans that are called for
by the Oil Pollution Act of 1990. Please review my draft and fax any comments
that you may have to me on 202-219-7068 by February 18. If you have any
questions, you may call me on 202-219-7031 or have your staff call Ken Hunt on
||MICHAEL G. CONNORS|
||PATRICIA K. CLARK|
Directorate of Technical Support
||Draft Response to U.S. Coast Guard on OSHA's Role in Area
I have reviewed the draft response written by Ms. Cynthia
Weaver of your staff, to a U.S. Coast Guard request for OSHA participation in
Area Contingency Plans. Based on current interagency activities associated with
emergency response operations, I have made several modifications to your draft
response and I propose the following language to communicate OSHA's position on
Area Contingency Plans to the Coast Guard.
The Oil Pollution Act of 1990 requires the development of a local contingency
plan to address potential oil spills. The Western Lake Erie Area Contingency
Plan was developed by a local committee comprised of Federal, State, and local
officials. The Area Contingency Plan describes the strategy for a coordinated
response to a discharge of a hazardous substance from a vessel, offshore
facility, or onshore facility within the boundaries of Western Lake Erie.
OSHA supports the goals and objectives of this plan. We intend to continue to
participate in planning sessions to the extent that our resources allow and plan
to be available to provide advice during emergency response operations in
accordance with the National Contingency Plan.
If you have any problems or questions about the proposed language, please
telephone me at (202-219-7031) or have your staff telephone Mr. Ken Hunt of my
staff at (202-219-7047).
||MICHAEL G. CONNORS|
||PATRICIA K. CLARK|
Directorate of Technical Support
||Response to Your Memorandum on OSHA's Role During
As you know, the responsibility for OSHA's participation
in the National Response Team, and related duties, was transferred from the
Directorate of Policy to the Directorate of Technical Support. We belatedly
received your memorandum to Frank Frodyma concerning OSHA's role during
emergencies. I would like to respond to your memorandum by making some general
observations about OSHA's role and specifically address the three questions that
were attached in the letter from W.R. Hamilton, U.S. Coast Guard, to Cynthia
Weaver. I understand that my staff has already provided Ms. Weaver with some
information. Nevertheless, I want to respond to you directly and apologize for
The current confusion about OSHA's role in emergencies is largely attributable
to the fact that OSHA has two separate and distinct responsibilities: (1) To
provide advice under both the National Contingency Plan (NCP) and the Federal
Response Plan (FRP), and (2) To enforce safety and health standards and to carry
out the policies and procedures contained in applicable OSHA Instructions. New
laws, regulations, and policies continue to be developed and implemented which
further complicates the issue. Nevertheless, I hope that our comments will
delineate and clarify OSHA's dual roles so that we can carry out both our
advisory functions and our enforcement responsibilities with our limited
resources and without impeding the emergency response duties of other Federal
OSHA'S ROLE UNDER THE NCP
Catastrophic events are usually handled at the state and local level by state
and local authorities. When a Federal presence is called for, the emergency
operation takes on added political significance. It is imperative, therefore,
that Federal agencies involved in a response operation, including OSHA,
establish and maintain good communication and coordination with other agencies
for operational as well as political considerations.
The NCP provides the basic policies and procedures for the Federal government's
role in planning, preparedness, and emergency response operations for releases
of oil and hazardous chemicals. OSHA's role under the existing NCP (40 CFR
300.175) recognizes our enforcement duties and provides that "On request, OSHA
will provide advice and assistance to EPA and other NRT/RRT agencies as well as
to the On Scene Coordinator/Remedial Project Manager regarding hazards to
persons engaged in response activities. Technical assistance may include review
of site safety plans and work practices, assistance with exposure monitoring,
and help with compliance questions."
The NCP is currently being revised to incorporate provisions of the Oil
Pollution Act of 1990 (OPA). After reviewing a revised NCP draft that would have
created more duties for OSHA and more demands on our limited resources, we
concluded that the proposed language needed to be changed to redefine and limit
OSHA's role. Specifically, the language we recommended removes OSHA from the
problematic obligation to develop, review and maintain site safety plans. OSHA's
role under the proposed revision to the NCP is, therefore, basically to provide
advice. EPA has recently published a Notice of Proposed Rule Making in the
Federal Register for the NCP to strengthen the national response system
and to implement a strongly coordinated national response strategy.
OSHA'S ROLE UNDER THE FRP
The FRP, also known as the Stafford Disaster Relief and Emergency Assistance
Act, supplements the NCP. The FRP outlines the responsibilities for each Federal
agency in case of a natural disaster or catastrophe such as an earthquake,
hurricane, tornado, terrorist action, civil riot, flood or volcano. The FRP is
activated by Presidential declaration. OSHA is assigned two basic duties under
1. Emergency Support Function (ESF) #3 PUBLIC WORKS & ENGINEERING. The
Department of Defense, Corps of Engineers, is the primary agency. The purpose
of ESF #3 is to: "Provide technical personnel to assess threat to public
health and safety. Provide supplemental assistance in debris removal or
demolition activities performed by the ESF." OSHA will be the contact for this
support. The Director of the Office of Construction and Engineering, upon
request from the appropriate RA, will provide technical assistance in support
of ESF #3. MSHA will be the contact for Urban Search and Rescue related
2. ESF #10 Hazardous Materials and Oil. EPA is the primary agency. OSHA's role
is basically the same as under the NCP. ESF #10 provides for a coordinated
response to releases by placing the mechanism of the NCP within a coordinated
structure which assures the most efficient and effective use of Federal
resources. It includes the appropriate response actions to prevent, minimize,
or mitigate a threat to public health, welfare, or the environment.
DTS is drafting an Instruction to set forth procedures for OSHA to follow when
the FRP is implemented. The DTS plan seeks to streamline OSHA activities to
effectively utilize available resources while recognizing that emergency
operations often have implications for public relations.
HAZARDOUS WASTE OPERATIONS and EMERGENCY RESPONSE "HAZWOPER"
OSHA Instruction CPL 2-2.59 establishes policies and procedures to ensure
uniform enforcement of "HAZWOPER". Section H(9)(c)
of the Instruction provides that: "During an event that is covered by the NCP,
OSHA has a responsibility (and has authority) to be both an enforcer of its
regulations and a provider of technical advice, and assistance to the Federal
On-Scene Coordinator (OSC) One method of performing the two functions would be
to have separate OSHA teams for enforcement and technical assistance."
According to Section K(3) of the Instruction, Regional and Area Offices shall
provide training exercises and drills for CSHOs who will be participating in
inspections or providing technical assistance during emergency incidents. This
is crucial for the OSHA offices who expect to take part in NCP responses.
OSHA's presence and acceptance during emergency response operations covered by
the NCP will be greatly enhanced if other agencies are aware of and can plan
for OSHA's role during an emergency response.
SPECIFIC QUESTIONS FROM THE US COAST GUARD'S LETTER
QUESTION 1. What is OSHA's role during a Federal response to a major
ANSWER: As noted above, OSHA has both an advisory role and an enforcement
role during a Federal response to an environmental incident. OSHA's role is
defined by the NCP, the FRP, and various Instructions and policies. In
general, the advisory role precedes the enforcement role. The sequential
nature of the dual roles are discussed in OSHA Instruction CPL 2.94 "OSHA
Response to Significant Events of Potentially Catastrophic Consequence." This
Instruction provides guidelines and policies to assist OSHA's field personnel
in the investigation of catastrophic events. Specifically:
Section (F)(3) "Background" provides that "it has been OSHA's policy not
to engage in activities that would have the effect of impeding the emergency
response." The rationale is that if the emergency itself poses the greatest
risk to health and safety, the emergency response activities should have
priority over enforcement activities.
Section (G)(3)(a) "Initial On-Site Investigation Activities" provides
that upon arrival at the incident scene, the OSHA representative shall
establish contact with the employer and the On- scene Incident Coordinator as
soon as possible. The OSHA representative should explain what the OSHA role is
and what it is not. For incidents subject to the NCP, the OSHA representative
will contact the Federal OSC and provide advice as appropriate.
The Instruction, therefore, indicates that OSHA's enforcement role
begins when the emergency response phase ends. However, there are often no
hard and fast rules on when OSHA roles should change from advisory to
enforcement. The issue needs to be judged by the Regional Administrator on a
case by case basis applying the guidelines and policies suggested herein,
along with the rule of reason.
QUESTION 2. Will local OSHA personnel be able to act as an advisor to the
Federal OSC concerning safety related matters during a major environmental
ANSWER: Yes, OSHA personnel will provide advice as out lined in Section G
of Instruction CPL 2.94. For instance, upon receipt of information from any
reliable source that a significant event has occur red, the Area Director
shall dispatch a CSHO and/or supervisor to the site to obtain information and
establish an agency presence. The OSHA representative will contact the Federal
OSC and provide advice as appropriate. The importance of OSHA's coordination
and cooperation with these authorities during the initial phases of OSHA's
on-site activity is emphasized in Section (G)(5)(a) of the Instruction.
QUESTION 3. More specifically, is OSHA willing to assist the Federal OSC by
committing local OSHA resources to perform the duties of the site safety
officer during a major environmental response as outlined in the "Occupational
Safety and Health Guidance Manual for Hazardous Waste Site Activities.(1)' The
Following duties are of particular interests:
* Coordinates safety and health program.
* Monitors on site hazards and conditions.
* Participates in the preparation of the Site Safety Plan.
* Conducts periodic inspections to determine if the Site Safety plan is being
ANSWER: OSHA's role during emergency response operations is limited by the
NCP, the FRP, OSHA regulations and Instructions, as well as by the
availability of resources and other practical considerations. The duties of
the site safety officer, as listed above, go substantially beyond OSHA's
traditional role of providing advice. Furthermore, the duties of participating
in the preparation of site safety plans and periodically reviewing or
maintaining the plans could be construed as endorsing or approving such plans.
If OSHA's review actions were perceived as approving the site safety plans,
our enforcement duties would be much more difficult. In addition, creating new
responsibilities for OSHA that are not compatible with OSHA's enforcement
duties would create confusion.
Therefore, OSHA would not commit its limited resources to performing the tasks
listed in Question #3, but we could assist others in performing such work
within the context of our limited resources.
Federal emergency response operations involve numerous agencies, with numerous
laws, regulations, responsibilities and policies. To help sort out this
complex situation, I have asked that several charts be developed to clarify
OSHA's roles and responsibilities within the National Response System. I will,
of course, share this information with you as soon as it is finalized.
If you have any questions about my comments please contact me at (202)
219-7031 or have your staff contact Ken Hunt on (202) 219-7047.