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.

March 27, 1992

Mr. Steve Hermann
Arizona Department of Public Safety
2102 West Encanto Blvd.
Post Office Box 6638
Phoenix, Arizona 85005-6638

Dear Mr. Hermann:

This is in response to your inquiry of February 14, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response final rule (HAZWOPER), 29 CFR 1910.120.

As you may be aware, Arizona administers its own occupational safety and health program (for both the private and public (State and local government) sectors) through the Arizona Division of Occupational Safety and Health (ADOSH), under the provisions of the Occupational Safety and Health Act (the Act) of 1970. As part of that program, the State is responsible for adopting, interpreting and enforcing occupational safety and health standards that are at least as effective as Federal OSHA's. The State is subject to monitoring by Federal OSHA. You may wish to contact ADOSH concerning State requirements in this area. ADOSH's address is as follows:

          Mr. Larry Etchechury Director
          Industrial Commission of Arizona
          800 W. Washington
          Phoenix, Arizona  85007
          Telephone:  (602) 542-5795

You requested clarification on how employees of a towing company are covered by 1910.120 paragraph (q) and paragraphs (b) through (o), for post-emergency response clean up.

Employees working for a towing company, skilled in operating equipment necessary for emergency responses, who are "needed temporarily to perform immediate emergency support work that cannot reasonably be performed in a timely fashion by an employer's own employees" are covered by paragraph (q)(4). The HAZMAT team mentioned in your letter, operated by the Arizona Department of Public Safety, would instruct these "Skilled Support personnel" on chemical hazards, the wearing of appropriate personal protective equipment, and other appropriate safety and health considerations.

Subparagraph (q)(4) addresses unforeseen emergency procedures that the HAZMAT team cannot perform without assistance. If employees from the towing company are routinely expected to perform emergency procedures as part of their job responsibilities, then they would be considered part of the HAZMAT team and would need to be trained in accordance with paragraph (q)(6).

You also asked whether a higher standard of care is appropriate for Skilled Support personnel where the personal protective equipment needed for a procedure includes a self-contained breathing apparatus. In cases where a Skilled Support person is the only person who can perform the emergency procedure, on the spot instruction in the proper use of the specific respirator chosen for them is sufficient. The HAZMAT technician or HAZMAT specialist is responsible for the selection of appropriate respiratory protection, and designated members of the HAZMAT team are responsible for the maintenance and care of the respirators and the written respiratory program.

Finally, you asked how the post-emergency response provisions, paragraphs (b) through (o), apply to employees of towing companies. When the HAZMAT team's On Scene Incident Commander declares the emergency over, the "corrective action", or clean up operation begins. The situation that originally posed the emergency will have been mitigated. For example, the gasoline in an overturned truck has been transferred to another truck and the fumes in the overturned truck have been brought below the Lower Explosive Limit.

While employees of the towing company will probably not be involved in the clean up procedure, they may be involved in the transport of hazardous substances. OSHA has limited jurisdiction for over-the-road vehicle operation; HAZWOPER does not necessarily cover employees of the towing company, but it does cover any emergency responders. If the operator of the vehicle in transportation becomes actively involved in an emergency response, then the operator becomes an emergency responder and is covered by 1910.120(q). Employees who tow vehicles containing hazardous substances, where there is the possibility of a release of a hazardous substance that may pose an emergency, must be trained in accordance with 1910.120(q).

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 within 18 months after the date of the enactment of HMTUSA for training requirements "to be given by all HAZMAT 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."

The Department of Transportation is required to consult both Environmental Protection Agency and OSHA to ensure that these training requirements do not conflict with OSHA regulations, in particular the HAZWOPER standard, and EPA regulations concerning worker protection in hazardous waste operations.

We hope this information is helpful. If you have any further questions please feel free to contact us at (202) 523-8036.


Patricia Clark, Director
Directorate of Compliance Programs