Standard Interpretations - Table of Contents|
| Standard Number:||1910.120; 1910.120(b); 1910.120(c); 1910.120(d); 1910.120(e); 1910.120(f); 1910.120(h); 1910.120(i); 1910.120(j); 1910.120(k); 1910.120(l); 1910.120(m); 1910.120(n); 1910.120(o); 1910.120(a); 1910.120(q)(5); 1910.120(q)(11); 1910.38|
July 28, 1989
Richard F. Boggs, Ph.D
Organization Resources Counselors, Inc.
1910 Sunderland Place N.W.
Washington, D.C. 20036
Dear Dr. Boggs:
This is in response to your inquiry requesting interpretations of OSHA's final standard for Hazardous Waste Operations and Emergency Response (29 CFR 1910.120).
For the sake of clarity, I will enumerate and respond to your questions in the order you raised them:
Patricia K. Clark, Acting Director
[Directorate of Enforcement Programs]
May 18, 1989
Ms. Patricia Clark
Directorate of Compliance Programming
Occupational Safety and Health Administration
U. S. Department of Labor
200 Constitution Avenue, N.W.
Washington, D.C. 20210
Dear Ms. Clark:
We thank you for making Mary Ann Garrahan available to meet with the Organization Resources Counselors (ORC) Hazardous Waste and Emergency Response Task Force on April 19, 1989 to discuss important issues regarding interpretation of OSHA's final standard for Hazardous Waste Operations and Emergency Response (published March 6, 1989).
This regulation will affect greatly the hazardous waste and emergency response activities in all industries. ORC encourages OSHA to develop a comprehensive compliance directive for this rule so that its compliance officers will be able to enforce it consistently among all industries. In addition, compliance directives are useful to industry as well.
In order for employers to develop and implement effective compliance programs, it is essential that they have a clear understanding of the requirements of the Standard. We would appreciate your comments on the assumptions ORC members are currently using to develop their programs, and your response to questions of interpretation.
1. Generic Plans for Post-Emergency Operations
Paragraph (q)(11) of the Standard addresses "Post Emergency Response Operations." In the event of a hazardous substance release resulting in emergency response activities and post emergency response operations, there is a potential threat to the environment as well as to employees. Because of this, time is of the essence in eliminating the source of, and containing the environmental contamination. Preparation of the lengthy site-specific plan required by paragraphs (b)-(o) would take considerable time and resources. Therefore, OSHA should make it clear that it is permissible for employers to develop a "generic plan" for post-emergency clean-up operations. This would be a detailed plan addressing appropriate elements of paragraphs (b)-(o), which can be filled in with specifics when an event occurs. Since these types of operations are not as extensive as those at hazardous waste sites, it is likely that some elements of (b)-(o) will not be necessary at a particular workplace and others will have only limited applicability. Inspectors should therefore not cite employers for including only relevant elements of (b)-(o) in a particular plan.
2. Distinction Between Emergency and Post Emergency Operations
There has been considerable discussion about when an emergency ends and when post-emergency operations commence. Since the requirements for post-emergency operations are far more detailed, it is important for employers to understand where the line will be drawn.
It is ORC's understanding that as long as an emergency response team is still on site, and a safety or health hazard exists, the emergency situation continues to be in effect. For example, if a vacuum truck arrives to remove spilled gasoline while an emergency response team is managing the activity, the vacuum truck operator's activity is part of the emergency response operations. Once the emergency response team has left the site, any remaining clean-up would be considered a post-emergency operation. We would appreciate your confirming this understanding.
3. When the Standard Applies
a. "Emergency Situation"
Most ORC member companies use the conservative approach of instructing operating employees to sound the alarm as soon as a potential emergency situation arises, before proceeding to stop the release or take other appropriate action. In many cases, the operating employees are able to handle the situation, so that no "actual emergency" exists.
ORC understands that in those situations, the requirements of the Standard are not applicable. Does OSHA agree with this interpretation?
Similarly, do the requirements of the standard apply to situations in which employees are actually exposed to hazardous substances, where there is potential for exposure, or where a hazardous substance is merely "present," as in the Hazard Communication Standard?
ORC understands that the standard applies when there is either actual or potential exposure to hazardous substances. However, if the potential is extremely unlikely (e.g., contaminated soil is present eight feet below the surface, but no employee is disturbing it), there is no emergency or post-emergency response, and it is reasonable that the standard would not apply. Are we correct in this interpretation?
b. "Immediate Work Area"
There is a question about what situations trigger employer compliance with the requirement of the Standard. In the proposed rule, if employees were called from outside their normal work area to respond to an emergency, and they were exposed to a hazardous substance above the PEL they were covered by the Standard.
In the final rule, no such clear-cut, quantifiable criteria exist for application of the rule. Although the definition of "emergency response" or "responding to emergencies" is provided, there remains some question about what is an "immediate work area" and how OSHA will determine that an employee is outside his or her immediate work area.
ORC understands that production or maintenance employees are considered as responding to releases within their "immediate work area" when they are within the geographic boundary of their assigned work area, and have the knowledge and necessary personal protective equipment available so that they are able to stop a release, by performing a task such as turning a valve in a leaking line; such employees need not be within a few feet or within site of the release when it occurs as long as they are in their assigned work area. These employees would have been trained in hazard communication and standard operating procedures for their area, and would not necessarily be designated emergency responders at the level of hazardous materials technician or higher.
Such releases may warrant evacuation of personnel not working to contain or control the release, in accordance with 1910.38, but the responses to the releases would not require activation of the Incident Command System and possibly post emergency response operations in accordance with 1910.120. For releases that are of such a nature that their severity could escalate (such as leaks in liquid anhydrous ammonia or liquid chlorine lines), the designated emergency responders could be put on "standby" or could actually be called to the site in anticipation of a full "emergency response operation." This approach for responding to releases could apply to facilities that only have emergency plans in accordance with 1910.38, choosing to have an outside agency respond to releases beyond their knowledge and ability to control. Is ORC correct in its interpretation of "immediate work area" for production or maintenance employees?
4. Preparation for Meeting Requirements of Paragraphs (b)-(o)
For hazardous waste sites, detailed plans must be developed to comply with requirements or paragraphs (b)-(o) of the Standard. In those cases in which a contractor has developed such a detailed plan, and one or two employees from another company are present at the location, ORC understands that these individuals would be covered by the contractor's plan, even though they are not employees of the contractor. At major Superfund sites, where many employers may be represented, this would eliminate the problem of overlapping, redundant, and potentially contradicting plans. This should be specifically addressed as a "multi-employer work site" issue.
5. Training Requirements
ORC understands that OSHA will adopt a case-by-case approach to determine whether employers have complied with the training requirements. For example, if an employee is cleaning up a single substance or a limited number of substances at a RCRA or CERCLA facility, it may not take a full 40 hours of training for him or her to be adequately trained. ORC understands that OSHA inspectors will be able to look at the task being performed by the employee (e.g., PCB removal) and determine whether the full 40 hours of training was necessary before issuing a citation. In addition, the 24 hour training requirement may be excessive for emergency response training for a single substance or process. We suggest that guidance be provided to compliance officers to undertake this case-by-case approach.
6. Employee Classification
In many cases, companies have a specialist trained and expert in, for example tank truck accidents. When an emergency arises, this individual would be called on to provide guidance and technical assistance. ORC assumes that this individual would not need additional training.
7. Training Requirements for Management Personnel
In some cases, management staff are present at a location (either hazardous waste site or location of emergency response operations), and they are not actually engaging in any emergency response operation, other than providing corporate oversight and administrative support to the incident commander. If these personnel are serving in such an oversight or administrative capacity, ORC believes that 24 hours of training is not necessary. Are we correct?
8. Marine Operations
If there is a large spill of petroleum or petroleum products in U.S. territorial waters or beyond U.S. territorial waters, does the standard apply? Or do Mineral Management Service of the U.S. Department of Interior and U.S. Coast Guard regulations govern? (See attached letter to Mr. Seymour.)
9. What are Covered Substances and Situations?
Example 1. 10,000 lbs of sodium saccharin (artificial sweetener) are spilled from a silo across a plant fence line into a stream bed. About 4000 lbs reach the water. As a CERCLA Hazardous Substance released above its Reportable Quantity (one pound) the release is reported to the National Response Center, which in turn notifies the predesignated Federal On-Scene Coordinator (OSC) The OSC responds to evaluate the situation and monitors the proper clean up of the sodium saccharin by the plant owner/operator. What portions of the final rule apply?Should you or your staff require further information or expansion of the issues we have raised, we would be pleased to meet with you at your convenience. ORC and its member companies look forward to your response.
Richard F. Boggs, Ph.D.
Standard Interpretations - Table of Contents|