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 21, 1992

Dr. Colleen K. O'Toole
Vice President
Mr. Larry Bloomfield Chair
Greater Cincinnati Hospital Council
1811 Losantiville Avenue Suite 460
Cincinnati, Ohio 45237-3954

Dear Mr. Bloomfield:

This is in response to your inquiry of June 1, forwarded to OSHA's National Office from the OSHA Region V office, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response final rule (HAZWOPER), 29 CFR 1910.120.

We will respond to your questions in the order that you presented them:

1. Define "incidental release." What level of personal protective equipment including respirators is allowable for a release to be considered incidental rather than emergency?

The definition for emergency response also addresses incidental releases in 29 CFR 1910.120(a)(3):

"Responses to incidental releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of release by employees in the immediate release area, or by maintenance personnel, are not considered to be emergency responses within the scope of this standard [29 CFR 1910.120]. Responses to releases of hazardous substances where there is no potential safety or health hazard are not considered to be emergency responses."

An incidental release is a release of a hazardous substance which does not pose a significant safety or health hazard to employees in the immediate vicinity or to the worker cleaning it up, nor does it have the potential to become an emergency. For example, a small amount of a substance considered low in toxicity and released from a valve during a maintenance operation would be considered an incidental release, not an emergency.

OSHA does not define the phrase "incidental release" in terms of the levels of personal protective equipment (PPE) used by employees. Incidental releases are defined in terms of the lack of danger or safety and health risks that the release poses to workers. Workers who are exposed to or who clean up incidental spills must have the proper PPE, equipment and training in accordance with OSHA standards.

2. Is a combination of training including HAZCOM, Lab Safety Standard, Ethylene Oxide, Formaldehyde, and Respiratory Protection, sufficient to enable a worker to clean up his own incidental spill?

It is sufficient if all the substances to which the workers may be exposed are covered in the training, the employer has determined that employees can safely handle an industrial release and the training meets the requirements of these OSHA standards.

3. For infectious waste spills, is the OEPA recordable quantity (one cubic foot or more, ORC 3745-27) considered an emergency by OSHA? At the EPA recordable quantity, does HAZWOPER or the Bloodborne Pathogen Rule take precedence in terms of spill response and training? Can we base a response on the limits set by OSHA rather than OEPA?

The HAZWOPER standard does not define an emergency in terms of the quantity of the substance spilled. The term "emergency" is dependent upon several factors, including the hazards associated with the substance, the exposure level, the potential for danger and the ability to contain the substance. This analysis is the responsibility of employers since they are most familiar with the specific hazards of the substance as it is used in their work places and the potential for an emergency. The burden of proving that there is no potential for an emergency at a work site likewise properly belongs to the employer.

HAZWOPER specifically states in 29 CFR 1910.120(a)(2)(i) that if both HAZWOPER and another standard apply, the standard with the more protective provision applies.

4. If, in your opinion, hospitals will have to comply with the HAZWOPER standard, must an incident commander be on site at all times (for hospitals, 24 hours a day, 7 days a week) or on call? What level of training is required for an incident commander?

Hospitals may come under OSHA's HAZWOPER standard (or EPA's equivalent standard, 40 CFR 311, if it is a public hospital), depending upon the level of activity they have chosen to undertake during in-house emergencies. If the hospital has decided that a hospital staff member will be the incident commander during an emergency, this person must meet the training requirements found in 29 CFR 1910.120(q)(6) and be able to implement the procedures for handling an emergency response as outlined in 29 CFR 1910.120(q)(3).

The senior official responding to the emergency can be designated as the individual in charge of the Incident Command System. As is explained in the standard's "note to (q)(3)(i)," this can change as more senior officers arrive on the scene. Therefore, you would not be required to have an incident commander on site at all times, but a designated person must be on call 24 hours a day. The emergency response plan must identify the most senior official who will be in charge until the designated incident commander arrives; this person must be properly trained for the function to be performed.

5. What is the responsibility of hospitals, not designated in the LEPC Plan, to receive contaminated victims of spills other than industrial spills, e.g. rural area pesticide spill?

OSHA does not require hospitals to receive accident victims; however, if the victim was part of an emergency involving hazardous substances and hospital personnel need to decontaminate, OSHA does require that the personnel performing decontamination be trained in accordance with 29 CFR 1910.120.

6. a. What is the responsibility of hospitals not designated in the LEPC Plan, but designated by specific industries to receive contaminated employees?

Hospitals are responsible for providing training and equipment to their own employees. For this reason, hospitals who will receive victims contaminated with hazardous substances should coordinate with the LEPC or the State Emergency Response Commission (SERC). The LEPC or SERC is responsible for planning for emergencies and providing funds to community emergency responders to "improve emergency planning, preparedness, mitigation, response, and recovery capabilities," (SARA Section 305).

b. From the OSHA letter, date-stamped March 31, 1992 (to Randy Ross), we understand that the industry is to "ensure hospitals have appropriate equipment and trained personnel to decontaminate." Must the industry provide the training and equipment or merely verify that they exist?

Industry must verify that hospitals are equipped to decontaminate victims. The industry mentioned in the letter to Randy Ross referred to hazardous waste sites and facilities that would either be obligated to report to their LEPC or could be designated by the LEPC; therefore, they could bring their contaminated employees to the hospitals designated by the community emergency response plan which would be equipped and/or funded by the LEPC.

7. Are hospitals with decontamination facilities required to have an incident commander? If required, what is the appropriate level of training? If required, must an incident commander be on site 24 hours a day, seven days a week or may incident commanders be off-site, but "on call"?

Hospitals' emergency medical personnel who will be expected to assist in responses to releases of hazardous substances in the community must be trained to perform their duties in accordance with HAZWOPER. The incident commander in this case would probably be designated by the Local Emergency Planning Committee (LEPC). The hospital would have to understand its role during a community emergency response, and prepare hospital personnel to respond.

Also, please see our response to question 4.

We hope this information is helpful. If you have any further questions please feel free to contact us at (202) 219-8036.


Roger A. Clark,
Acting Director
Directorate of Compliance Programs