January 31, 1994
OSHA REGIONAL ADMINISTRATORS
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 202-219-7047.
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).
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 delay.
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 agencies.
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 the FRP:
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 environmental incident?
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 response?
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:
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.Back to Top
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