OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.

October 8, 1991

Mr. Paul M. Bomgardner
Hazardous Materials Specialist
American Trucking Association
2200 Mill Road
Alexandria, Virginia 22314

Dear Mr. Bomgardner:

This is in response to your letter, to Mr. Thomas Seymour of our Safety Standards staff. As my office has responsibility for compliance interpretation of existing standards, your letter was forwarded to me for response. Please accept my apology for the delay in this reply.

Your questions presuppose that an over-the-road vehicle operator who is expected to respond to a large release would be covered by the Occupational Safety and Health Administration (OSHA) standard for Hazardous Waste Operations and Emergency Response (1910.120).

The level of emergency which the operator can safely address depends on a number of factors including the hazards of the substance, the location and characteristics of the release, the control equipment available, and the operator's knowledge of those hazards. If the operator has limited knowledge of a hazardous material, then even an overturned drum or a leaky valve might be beyond the bounds of what the operator can safely assess and control. Thus, such a release might be deemed to be uncontrolled.

We will address your specific questions in the order that you asked them. We will restate your questions and provide you with a response.

1. Question: A motor carrier is engaged in the transportation of hazardous materials. At the time of an accidental release of a material, the motor carrier has instructed its employees to clear the area and call the appropriate outside authorities for mitigation of the release. If this is the extent of the actions that the motor carrier will take in any instance, do the requirements of 1910.120 apply to the employee?

Answer: If the employer instructs operators to evacuate and has trained them in safe evacuation techniques, then no further action is required. 1910.120(q)(1) allows an employer to implement an emergency action plan as described in [1910.38].

Please note that Congress recently passed the Hazardous Materials Transportation Uniform Safety Act (HMTUSA) of 1990, which concerns the handling of hazardous materials in the transportation industry. Under section 7 of HMTUSA the Secretary of Transportation is required to issue regulations by May 16, 1992, for training requirements to be given by all hazmat transportation employers to their hazmat employees regarding the safe loading, unloading, handling, storing and transporting of hazardous materials and emergency preparedness for responding to accidents or incidents involving the transportation of hazardous materials. DOT is required to consult both EPA and DOL to insure that these training requirements do not conflict with OSHA requirements relating to the Hazardous Waste Operations and Emergency Response Rule (HAZWOPER) and EPA regulations concerned with worker protection standards for hazardous waste operations. With respect to section 4(b)(1) of the OSH Act, no action taken by DOT in establishing these training requirements shall be deemed to be an exercise of statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health. Therefore, OSHA's HAZWOPER rule will still apply to the transportation industry.

Designing the training and evacuation plan for truck operators will differ from those for workers at a fixed facility. Operators are in different facilities constantly. Thus, the training will be more a discussion about factors to consider when attempting evacuation rather than training in the evacuation plan from a given facility. In some cases such as bulk deliveries of highly toxic chemicals to complex operations it might be necessary that the transportation company require that the operator be accompanied by a person from the facility to assure that the operator has a guide in the event of evacuation.

2. Question: A motor carrier is engaged in the transportation of hazardous materials. At the time of an accidental release the product can be contained by employees in the immediate vicinity and cleaned up utilizing absorbent. As such, the motor carrier permits employees to take care of these problems (as permitted by 1910.120 definition: "Emergency Response" or "Responding to Emergencies"). However, when a largerproblem arises and there is a need to utilize outside help, the motor carrier instructs its employees to do so. In these instances, do the requirements of 1910.120 apply to the employees? According to Ms. Douglass, employees in this situation would need not be trained as per 1910.120. However, those actually responding to the incident would need to be trained.

Answer: The first half of this question describes what is termed an "incidental spill" in the HAZWOPER rule. An incidental spill poses an insignificant threat to health or safety, and may be safely cleaned up by employees who are familiar with the hazards of the chemicals with which they are working.

If in the event of a spill of hazardous substances an employer instructs all of his employees to evacuate the danger area, then the employer may not be required to train those employees under 1910.120. However, the responsibility of deciding that a spill is either an incidental spill or one requiring an emergency response, requires training.

Operators who are expected to become actively involved in an emergency response due to a release of a hazardous substance are covered by 1910.120 and must be trained.

3. Question: If a spill occurs while the material is on the vehicle or otherwise "in transportation," do the requirements of 1910.120 apply to the employees of the transportation company? According to Ms. Douglass, 1910.120 does not pertain to materials "in transportation." She further stated that the Department of Transportation regulations regarding Emergency Response Communications Standards (49 CFR Part 172 Sub Part G) govern the actions of employees in emergency situations where the product is "in transportation," and that it was never the intent of OSHA to occupy this field.

Answer: OSHA has limited jurisdiction for over-the-road vehicle operation. In this instance OSHA's HAZWOPER standard does not cover the operator per se, but it does cover any emergency responders. If the operator of the vehicle in transportation becomes actively involved in an emergency response, then he/she becomes an emergency responder and is covered by 1910.120(q).

We hope that this information is of assistance. If you have any other questions on this matter, feel free to contact us.


Patricia K. Clark, Director
[Directorate of Enforcement Programs]

[Corrected 1/17/03]