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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 11, 1991
Mr. Robert Brooks
Right to Know Management Systems, Inc.
113 Wembley Road
Wilmington, DE 19808
Dear Mr. Brooks,
This is in response to your inquiry of September 5, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response final rule (29 CFR 1910.120).
Your specific question relates to training of oil distributor employees for emergency response. OSHA responded to your previous letter to OSHA, dated July 29, making it clear that oil distributors are covered by 1910.120 and referred you toparagraph (q)(6).
In your telephone conversation with Matthew Fitzgerald, you reviewed your client's "Spill Prevention Control and Countermeasure Plan" and instruction on oil spill prevention, containment and retrieval methods. Your client's employees may be sufficiently trained to the first responder operations level outlined in (q)(6)(ii), although OSHA cannot come to a conclusion based on your telephone conversation. If the employees will be trained to first responder operations level they may perform defensive action, without trying to stop the release of the oil, and will call emergency responders or post-emergency response cleanup workers to clean up spills.
Equivalent training is acceptable under 1910.120 which states that employees must "have sufficient training or have had sufficient experience to objectively demonstrate competency in the following areas..." However, the employer must ensure that the employee accomplishes all training objectives outlined in paragraph (q). Employees with an engineering degree, for example, may be familiar with engineering controls but may not be aware of safety and health issues.
OSHA does not certify individuals, it is the employer who must show by documentation or certification that an employee's work experience and/or training meets the requirements of 1910.120. There must be a written document which clearly identifies the employee, the person certifying, and the training and/or past experience which meets the requirements. One possibility would be to include this information in the employee's personnel file. The preferred method is to include this information on a separate certificate for each employee.
We hope this information is helpful. If you have any further questions please feel free to contact [the Office of Health Enforcement at (202)693-2190].
Patricia K. Clark, Director
[Directorate of Enforcement Programs]
September 5, 1991
Ms. MaryAnn Garrahan
U. S. Department of Labor Occupational
Safety and Health
Washington, DC 20210
Dear Ms. Garrahan:
For your convenience you will find enclosed copy of my letter to Mr. Scannell and his response. Mr. Scannell's response is very clear and understandable as far as it goes but I do have further questions regarding complying with paragraph (q) regarding training.
From my letter you can see that we believe we have already given the proper training to the oil distributor employees for the type of action they must take in the event of an oil leak. However, paragraph (q)(6)(iii) states that a responder must have 24 hours of training. In addition, an "on scene incident commander" must have the same. In the first case the only action the first responder must take to contain the spill is to pump it from a diked area around the outside tank into tank trucks. We can't possibly see how such an individual (the operations manager of the facility) can spend 24 pertinent hours in training in pumping fuel oil which is very similar to reloading fuel trucks, an everyday standard occurrence.
In the second case we are talking of a fuel truck driver who notices a leak or perhaps has an accident which would require diking the spill area with absorbent materials. When all employees have had Hazcom training with fuel oil emphasized how can they receive 24 hours of pertinent training to dike a small area?
My client wants to comply with this law in any reasonable fashion but it is apparent that the law was not designed for the everyday operations of a home oil distributor.
Perhaps one answer might be to inform all employees to simply notify their emergency response contractor and get out of the vicinity.
I enclose an MSDS on fuel oil for your perusal. Any suggestions you may have for helping us comply with the law would be greatly appreciated. Sincerely
Robert L. Brooks
Certified OSHA Instructor, Outreach Program
July 29, 1991
Mr. Gerard F. Scannell
Occupational Safety & Health Administration
Washington, D.C. 20210
Dear Mr. Scannell:
I'm writing to you to point out a law which puts my client in an apparent dilemma. It concerns how the 1910.120 Hazardous Waste Operations and Emergency Response law is to be applied. An outline of our problem is as follows:
My client is a home heating oil distributor.
His insurance firm suggests he will have to comply with the above law or his insurance premiums may be raised.
Careful reading of the law would suggest it was meant for hazardous waste operations.
My client does have two 20,000 gallon storage tanks (with dikes) of home heating oil and prepared a "Spill Prevention Control and Countermeasure Plan" for state authorities. Instruction has been held on oil-spill prevention, containment, and retrieval methods, and a "dry-run" drill for an on-site vehicular spill incident has been conducted.
The OSHA regional office assures me that while the law was not written for the purpose of applying to an oil distributor it is still not clear that such a company could be excluded.
By trying to comply we would have to provide a minimum of 24 hours of training, still undefined, which under the circumstances would be hard to fill with the limited responses the personnel would provide, i.e., pumping oil from the dike area into tank trucks.
To conclude, OSHA can't tell us it doesn't apply.
The insurance company feels it does apply.
We need definitive information or direction.
Can you have someone look into it?
Robert L. Brooks
Certified OSHA Instructor