OSHA Instruction CPL 2-2.51 November 5, 1990 Directorate of Compliance
Subject: Inspection Guidelines for Post-Emergency Response Operations Under
29 CFR 1910.120
A. Purpose. This instruction provides procedures for ensuring uniform
enforcement of training under the Hazardous Waste Operations and Emergency
Response standard for employees involved in post-emergency response
B. Scope. This instruction applies OSHA-wide.
1. OSHA Instruction CPL 2.45B, June 15, 1989, the Revised Field
Operations Manual (FOM).
2. 29 CFR 1910.120, Hazardous Waste Operations and Emergency
Response, (54 FR 9294, March 6, 1989).
3. OSHA Instruction STP 2.22A, CH-2, January 29, 1989, and CH-3,
February 27, 1990, the State Plan Policies and Procedures Manual.
D. Action. OSHA Regional Administrators and Area Directors shall utilize
the guidelines in this instruction to ensure uniform enforcement.
E. Federal Program Change. This instruction describes a Federal program
change which affects State programs. Each Regional Administrator shall:
1. Ensure that a copy of this change is promptly forwarded to each
State designee, using a format consistent with the Plan Change Two-way
Memorandum in Appendix P, OSHA Instruction STP 2.22A, CH-2.
2. Explain the technical content of this change to the State
designees as requested.
3. Ensure that State designees are asked to acknowledge receipt of
this Federal program change in writing to the Regional Administrator as soon
as the State's intention is known, but not later than 70 calendar days after
the date of issuance (10 days for mailing and 60 days for response). This
acknowledgment must include a description either of the State's plan to
implement the change or of the reasons why this change should not apply to
4. Ensure that the State designees submit a plan supplement, in
accordance with OSHA Instruction STP 2.22A, CH-3, as appropriate, following
the established schedule that is agreed upon by the State and Regional
Administrator to submit non-Field Operations Manual/OSHA Technical Manual
Federal program changes.
a. If a State intends to follow OSHA's policy described in
this instruction, the State must submit either a revised version of this
instruction, adapted as appropriate to reference State law, regulations and
administrative structure, or a cover sheet describing how references in this
instruction correspond to the State's structure. The State's acknowledgment
of the Plan Change Two-way Memorandum may fulfill the plan supplement
requirement if the appropriate documentation is provided.
b. If the State adopts an alternative to Federal guidelines,
the State's submission must identify and provide a rationale for all
substantial differences from Federal guidelines to allow OSHA to judge
whether a different State procedure is as effective as comparable Federal
5. Advise the State designees that, in implementing the State
policy, they are encouraged to follow the enforcement guidelines in
paragraphs G.1.,2., and 3. of this instruction.
6. Advise the State designees that they may consult with the OSHA
Regional Office for technical assistance and questions relating to
post-emergency response operations under 29 CFR 1910.120.
7. Review policies, instructions, and guidelines issued by the
State to determine that this change has been communicated to State
F. Background. A final standard for Hazardous Waste Operations and
Emergency Response (29 CFR 1910.120) became effective March 6, 1990. In
addition to many other requirements, the standard regulates worker safety and
health during post-emergency response operations.
1. The standard defines post-emergency response as:
... that portion of an emergency response performed after the
immediate threat of a release has been stabilized or eliminated and clean-up
of the site has begun. If post- emergency response is performed by an
employer's own employees who were part of the initial emergency response, it
is considered to be part of the initial response and not post-emergency
response. However, if a group of an employer's own employees, separate from
the group providing initial response, performs the clean-up operation, then
the separate group of employees would be considered to be performing
post-emergency response and subject to paragraph (q)(11) of this
2. The employer conducting the clean-up must comply with all the
requirements in (b)-(o) of the standard (29 CFR 1910.120 (q)(11)(i)) unless
the clean-up is done on plant property using plant or workplace employees.
The requirements under (b)-(o) of the standard specify a minimum of 24 hours
of off-site training. If the cleanup is done on plant property using plant
or workplace employees, the employer must comply with the training
requirements of 29 CFR 1910.38(a), 1910.134, 1910.1200, and other appropriate
training made necessary by the tasks they are expected to perform (29 CFR
3. Based on experience with the standard during oil spills off the
coasts of Texas, Alaska, and California, the hazards to employees vary widely
in severity of potential injury or illness. For job duties and
responsibilities with a low magnitude of risk, fewer than 24 hours of
training may be appropriate for these post-emergency clean-up workers. It is
our expectation that though the number of hours of training may vary, a
minimum of 4 hours would be appropriate in most situations. Moreover,
petroleum spills are unique in that many people who assist in the clean-up
operations may not engage in this activity on a recurring basis. In
addition, for maximum protection of the environment, petroleum spills dictate
clean-up must be completed as soon as possible.
4. The U.S. Coast Guard and other concerned parties have requested
flexibility in the amount of employee training required for petroleum spill
clean-ups and other types of clean-up operations which follow emergency
5. The person with responsibility for making assessments when
fewer than 24 hours of training is required is the OSHA Regional Response
G. Enforcement Guidelines.
1. Policy Background. If an employer complies with the clear
intent of a standard but deviates from its particular requirements in a
manner that has no direct or immediate relationship to employee safety or
health, OSHA's FOM directs that such a violation be characterized as de
minimis. Citations are not issued for de minimis violations.
2. Policy. Compliance with the intent of the training
requirements of 29 CFR 1910.120(q) (11) (i) is achieved when an employer
provides sufficient training as outlined in paragraph G.3 below, but the
exact specifications of OSHA standards are not met (i.e., the specific number
of hours required by the standard is not given). In such cases a de minimis
violation exists and no citation will be issued. Violations of 29 CFR
1910.120(q) (11) (i) can be abated by compliance with the criteria specified
3. De Minimis Criteria. All of the following criteria must be met
in order to classify violations of the training requirements of 29 CFR
1910.120(q) (11) (i) as de minimis:
a. Clean-up is performed in an area that has been monitored
and fully characterized by a qualified person indicating that exposures are
presently and can be expected to remain under permissible exposure limits and
other published exposure limits;
b. Health risks from skin absorption are minimal;
c. Employees have completed the training requirements of 29
CFR 1910.38(a) and 1910.1200, including refresher training as
d. Employees have completed other safety and health training
made necessary by the tasks they are expected to perform such as, but not
limited to, operating procedures, decontamination procedures, water safety,
hypothermia, heat stress, and safety hazard controls;
e. There is adequate on-site supervision by employees who meet
the training requirements of 29 CFR 1910.120(e)(4).
Gerard F. Scannell Assistant Secretary
DISTRIBUTION: National, Regional, and Area Offices Compliance Officers
State Designees NIOSH Regional Program Directors 7(c)(1) Project Managers