Appendix E of CPL 2-2.59A Releases of hazardous substances that require an emergency response

The function of this appendix is to present a thorough discussion of the distinction between incidental releases of hazardous substances and releases that require an emergency response, and hence, compliance with the provisions of §1910.120(q), Emergency response to hazardous substance releases. This has been a point of considerable inquiry to and interpretation by OSHA.

An understanding of the distinction between an incidental release of a hazardous substance and a release that requires an emergency response is fundamental to proper compliance with the provisions of §1910.120(q). This part of the standard was written to cover a wide array of facilities and situations: “Emergency response operations for releases of, or substantial threats of releases of, hazardous substances without regard to the location of the hazard.” (§1910.120(a)(1)(v))

Potential releases of hazardous substances in the workplace can be categorized into three distinct groups in terms of the planning provisions of §1910.120(q). These groups are:

1. Releases that are clearly incidental regardless of the circumstances,
2. Releases that may be incidental or may require an emergency response depending on the circumstances, and
3. Releases that clearly require an emergency response regardless of the circumstances.

Releases that are clearly incidental

The scope of the HAZWOPER standard does not cover the inevitable release of a hazardous substance that is limited in quantity and poses no emergency or significant threat to the safety and health of employees in the immediate vicinity. This type of release is referred to as an “incidental release” in §1910.120(a)(3), where “emergency response” is defined.

An incidental release is a release of hazardous substance which does not pose a significant safety or health hazard to employees in the immediate vicinity or to the employee cleaning it up, nor does it have the potential to become an emergency within a short time frame. Incidental releases are limited in quantity, exposure potential, or toxicity and present minor safety or health hazards to employees in the immediate work area or those assigned to clean them up.

If the hazardous substances that are in the work area are always stored in very small quantities, such as a laboratory which handles amounts in pint sizes down to test tubes, and the hazardous substances do not pose a significant safety and health threat at that volume, then the risks of having a release that escalates into an emergency are minimal. In this setting incidental releases will generally be the norm and employees will be trained to protect themselves in handling incidental releases per the training requirements of the Hazard Communication standard (§1910.1200).

For example, a tanker truck is receiving a load of hazardous materials at a tanker truck loading station. At the time of an accidental spill, the product can be contained by employees in the immediate vicinity and cleaned up utilizing absorbent without posing a threat to the safety and health of employees. As such, the employer may respond to such incidental releases (as permitted by §1910.120 definition: “Emergency response” or “Responding to emergencies”).

This situation describes an “incidental spill” under the HAZWOPER. 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.

Releases that may be incidental or require an emergency response depending on the circumstances

The properties of hazardous substances, such as toxicity, volatility, flammability, explosiveness, corrosiveness, etc., as well as the particular circumstances of the release itself, such as quantity, confined space considerations, ventilation, etc., will have an impact on what employees can handle safely and what procedures should be followed. Additionally, there are other factors that may mitigate the hazards associated with a release and its remediation, such as the knowledge of the employee in the immediate work area, the response and personal protective equipment (PPE) at hand, and the pre-established standard operating procedures for responding to releases of hazardous substances. There are some engineering control measures that will mitigate the release that employees can activate to assist them in controlling and stopping the release.

These considerations (properties of the hazardous substance, the circumstances of the release, and the mitigating factors in the work area) combine to define the distinction between incidental releases and releases that require an emergency response. The distinction is facility-specific and is a function of the emergency response plan.

For example: A spill of the solvent toluene in a facility that manufactures toluene may not require an emergency response because of the advanced knowledge of the personnel in the immediate vicinity and equipment available to absorb and clean up the spill. However, the same spill inside a furniture refinishing shop with personnel that have had only the basic hazard communication training on toluene, may require an emergency response by more highly trained personnel. The furniture refinishing shop’s emergency response plan in this case would call for evacuation for all but the most minor spills, while evacuation and emergency response would be necessary for only much larger spills at the chemical manufacturing facility.

Releases that require an emergency response regardless of the circumstances

There are releases of hazardous substances that pose a sufficient threat to health and safety that, by their very nature, require an emergency response regardless of the circumstances surrounding the release or the mitigating factors. An employer must determine the potential for an emergency in a reasonably predictable worst-case scenario (or “anticipated emergencies,” §1910.120(q)(1)) and plan response procedures accordingly.

For example, a motor carrier is engaged in the transportation of hazardous materials. At the time of an accidental release, the product cannot be contained by employees in the immediate vicinity and cleaned up utilizing absorbent. Because of the larger problem, the motor carrier’s employees evacuates the area and call for outside help, as instructed by employer.

In this instance, if in the event of a spill of a hazardous substance an employer instructs all of his/her employees to evacuate the danger area, then the employer may not be required to train those employees under §1910.120. However, the ability to decide whether a spill is an incidental spill or one requiring an emergency response requires training. Also, any employees 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 accordingly. (Note: OSHA has limited jurisdiction for over-the-road vehicle operation. In the instance of spills occurring while the material is on the vehicle or otherwise “in transportation,” OSHA’s HAZWOPER standard does not cover the operator per se. It does, however, cover emergency response personnel who respond to the incident. 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).)

Table B.1

An emergency response includes, but is not limited to, the following situations:

1. The response comes from outside the immediate release area;
2. The release requires evacuation of employees in the area;
3. The release poses, or has the potential to pose, conditions that are immediately dangerous to life and health (IDLH);
4. The release poses a serious threat of fire or explosion (exceeds or has the potential to exceed the lower explosive limit or lower flammable limit);
5. The release requires immediate attention because of imminent danger;
6. The release may cause high levels of exposure to toxic substances;
7. There is uncertainty that the employee in the work area can handle the severity of the hazard with the PPE and equipment that has been provided and the exposure limit could easily be exceeded; and
8. The situation is unclear, or data are lacking on important factors.

Responders from outside the immediate release area

“Emergency response” is defined in §1910.120(a)(3) as follows:

“Emergency response” … means a response effort by employees from outside the immediate release area or by other designated responders (i.e., mutual-aid groups, local fire departments, etc.) to an occurrence which results, or is likely to result, in an uncontrolled release of a hazardous substance. 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. Responses to releases of hazardous substances where there is no potential safety or health hazard (i.e., fire, explosion, or chemical exposure) are not considered to be emergency responses.

The standard covers responses “by other designated responders.” The use of the “or” means that responders are a separate group, different from employees within the immediate release area, directed to respond to the emergency by the employer. Employees working in the immediate release area (not just outsiders) are covered if the employer designates them as emergency responders. The standard, §1910.120(q), uses the term “responders” generally to refer to employees who respond to emergencies.

The Superfund Amendments and Reauthorization Act (SARA), the statute that mandated HAZWOPER, directs broad coverage of all employees responding to emergencies with no limitation on their location. SARAstates, “… standards shall set forth responding requirements for training of workers who are responsible for responding to hazardous emergency situations who may be exposed to toxic substances.” (See SARA 126(d)(4)) For an emergency to be covered by the standard, conditions causing a dangerous situation which involve hazardous substances are sufficient; there need not be both an emergency and a response by outside responders before the employer prepares for an emergency.

For example: A release of chlorine gas above the IDLH, obscuring visibility and moving through a facility, is an emergency situation even if the initial responders are from the immediate release area. Employees who would respond to this hypothetical situation, whether they work in the immediate area or come from outside, would need to act in accordance with §1910.120(q).

Employees must not be made to respond to releases in the immediate release area that would otherwise require outside assistance from a trained hazardous materials team merely because the definition of an emergency response states that an emergency response is “… a response effort by employees from outside the immediate release area.”

Conversely, incidental releases of hazardous substances that are routinely cleaned up by those from outside the immediate release area need not be considered emergency responses solely because the employee responsible for cleaning it up comes from outside the immediate release area.

For example: Paint thinner is spilled in an art studio and the janitor is called from outside the immediate release area to mop it up. The janitor does not have to respond in accordance with §1910.120, although the janitor would be expected to understand the hazards associated with paint thinner through hazard communication training.

Other OSHA standards

Other standards that impact emergency response to fires, chemical releases, or other incidents should be part of an emergency response compliance evaluation. Flammable chemical spills and other small fires are covered by §1910.156 as well as §1910.157. The “Process Safety Management for Highly Hazardous Chemicals,” §1910.119, and “Hazard Communication,” §1910.1200, as well as some of the specific expanded health standards in Subpart Z would also apply.

Appendix D of CPL 2-2.59A HAZWOPER interpretive guidance

This appendix includes clarifications and interpretations to the most frequently asked questions regarding §1910.120 paragraph (q), Emergency response to hazardous substance releases. Where possible, clarifications are keyed to the most applicable paragraph or subparagraph of the HAZWOPER standard.

Scope, application, and definitions

§1910.120(a)

How (a)(1) “Scope” affects certain employers who may be engaged in hazardous waste operations

1. Asbestos removal (a)(1)(v)
   Occupational exposure to asbestos in all industries covered by the Occupational Safety and Health Act falls under the scope of §1910.1001, except as provided by 1910.1001(a)(2) and (a)(3). Employees are covered under §1926.1101 at construction sites and during asbestos work which involves the removal, repair, maintenance, or demolition, even if such work is performed within a facility otherwise regulated under the general industry standard. In certain emergency situations the HAZWOPER standard will apply, e.g., when asbestos is released during a transportation accident.
2. Construction (a)(1)(i)-(v)
   Hazardous waste operations and emergency response for construction sites is covered by §1926.65, and this directive. Paragraph (a)(2) defines the applicability of the construction HAZWOPER standard. Paragraph (a)(2)(i) states that all requirements of 29 CFR Part 1910 and Part 1926 apply pursuant to their terms to hazardous waste and emergency response operations whether covered by §1926.65 or not, and when there is a conflict between requirements, “the provision more protective of employee safety and health shall apply….”
   If an employee on a construction site is directed to engage in emergency response involving hazardous substances, then the employer is subject to all of the provisions of §1926.65(q). However, construction employers may direct that all of their employees evacuate in an emergency, and would comply with HAZWOPER paragraph (q) by having a written emergency action plan in accordance with §1926.35. (Employers who have 10 or fewer employees may communicate the emergency action plan verbally.)
3. Contractors (a)(1)
   Contractor employees must receive HAZWOPER training if their duties or activities fall within the scope of the standard. If a contractor is expected to be part of an emergency response, the employer must comply with the provisions of §1910.120(q). Contractors who have employees that will be called in as specialists or skilled support personnel must act in accordance with the HAZWOPER standard.
   1. Shared responsibility. Both contractors and their clients are responsible for complying with the OSHA regulations. OSHA considers personnel providers/contractors who send their own employees to work at other facilities (e.g., utility workers) to be employers whose employees may be exposed to hazards.
      Since the contractor maintains a continuing relationship with employees, but it is the client who creates and controls the hazards, there is a shared responsibility for ensuring that employees are protected from workplace hazards. The client has the primary responsibility for such protection; however, the contractor-employer has a continuing responsibility under the OSH Act.
   2. Contracts. It is in the interest of the contractor-employer to ensure that all steps required in the OSHA standards have been taken by the client employer to ensure a safe and healthful workplace for the contracted employees. Written contracts with clients should clearly describe the responsibility of both parties in order to ensure that all requirements of the standards are met. (See OSHA Instruction CPL 2.103, the Field Inspection Reference Manual (FIRM), Chapter III.C.6., on Multiemployer Worksites.

4. Hospitals as part of a community emergency response (a)(1)(v)
   Under the Superfund Amendments and Reauthorization Act (SARA) of 1986, the National Contingency Plan (NCP) was revised to require communities to prepare local emergency response plans. Designated local hospitals who will participate in the local planning committee are considered part of the emergency response organization.
   1. Hospitals with responsibility under the NCP. Hospitals, or other emergency medical services who are designated by the LEPC, SERC or local fire department, do not have to develop an entire emergency response plan for community emergency response because their role will be addressed in the contingency plan. The hospital should have designated decontamination areas, although areas dedicated solely to decontamination need not be set aside.
      In terms of a community emergency response, a hospital is not expected to comply with §1910.120 if it has not been designated by a planning committee or by a hazardous waste site as a decontamination facility. The hospital may have responsibility under 1910.120(q) in terms of the potential for an emergency caused by the release of hazardous substances used at the hospital.
   2. Training in decontamination. Hospitals that will receive contaminated accident victims must stress decontamination and personal protective equipment (PPE) in the training for personnel designated to set up decontamination. For medical personnel who will receive and decontaminate accident victims, employers may develop an in-house training course that would focus on decontamination and PPE or provide additional training in decontamination and PPE after sending personnel to a standard “first responder operations level” course.
   3. Emergency medical services at release area. Facilities that create an emergency response plan under §1910.120 must coordinate with hospitals or other medical care providers prior to emergencies in case victims will need to be decontaminated at a hospital (§1910.120(q)(2) and (l)(2) list “emergency medical treatment and first aid” as one of the elements to be covered in the emergency response plan). If a hospital is selected by a facility, it must be made aware of a facility’s intent to use its services so that the hospital may ensure that it is prepared for its duties (e.g., has PPE, methods of containing the hazardous material and waste water, etc.)
   Hospitals that employ emergency medical service personnel who would be exposed to hazardous substances because they are expected to treat contaminated patients at the release area (i.e., ambulance personnel), are required by §1910.120(q) to train these personnel to safely perform these duties.
   Other medical personnel whose expected job duties do not include treating contaminated patients may be needed to respond to accidents where the chemical’s hazards were unforeseen. These employees may be considered “skilled support personnel” and must be given an initial briefing that includes instruction in the wearing of appropriate PPE, any limitations of the PPE, the chemical hazards involved, and the facility’s safety and health precautions.

Employee exposure

§1910.120(a)(1)

Employee exposure or the reasonable possibility of employee exposure to safety or health hazards must consider all routes of entry (inhalation, ingestion, and skin absorption) without regard to the use of PPE. The exposure or potential exposure must be associated with a hazardous substance from operations addressed in (a)(1)(i-iv) or with the release of a hazardous substance during operations addressed in paragraph (a)(1)(v) of the standard.

Safety hazards from a hazardous substance could include fire, explosion, corrosive action, etc., from flammables, corrosive materials, etc. associated with the work site or emergency site. Health hazards from a hazardous substance could include cancer or organ function impairment from toxic, carcinogenic, or infectious material associated with the work site or emergency site. Safety hazards from sources not specifically associated with the hazardous substances at the work site or the emergency site (e.g., trenching, moving machinery, slips, trips, and falls) do not require coverage under HAZWOPER. Employees are considered “exposed” when they encounter any amount of a hazardous substance in the work environment that could cause them harm.

Jurisdictional issues involving the provisions in “application”

§1910.120(a)(2)

1. U.S. Department of Transportation (a)(2)
   The Hazardous Materials transportation Uniform Safety Act (HMTUSA) of 1990 concerns the handling of hazardous materials in the transportation industry. Under Section 7 of that act the regulation entitled “Hazardous Materials; training for Safe transportation; Rule” (49 CFR 171-177), requires employers to train their employees in the safe loading, unloading, handling, storing, and transportation of hazardous materials.
   • OSHA has limited jurisdiction for over-the-road vehicle operation. If operators of vehicles in transportation become actively involved in an emergency response to a release of hazardous substance, then they are covered by §1910.120(q).
   • The operators of vehicles involved in an emergency response would need to be trained at least to the first responder awareness level to recognize an emergency situation, understand their role in an emergency response, and call predesignated authorities for the containment and control of the release.

2. U.S. Department of Transportation. U.S. Coast Guard (USCG) (a)(2)
   The USCG has issued comprehensive standards regulating the safety and health of seamen (this term is intended to be non-gender specific and includes women) performing work on vessels which have been inspected and certified by the USCG (”inspected vessels”); therefore, OSHA does not apply its standards to these employees. The USCG has also issued some standards affecting the safety of seamen on uninspected vessels.
   • With these exceptions, OSHA has jurisdiction for seamen aboard vessels located on the waters within a 3-mile limit, or in the case of Florida and Texas, within the limit of three marine leagues (the territorial waters). OSHA also has jurisdiction for employees performing work on shore or at other locations not aboard a vessel but within U.S. territorial waters.
   • OSHA is not prohibited from inspecting USCG “inspected vessels” if non-seamen (e.g., contractors) are on board. (See the “Memorandum of Understanding Between the United States Coast Guard, U.S. Department of transportation, and the Occupational Safety and Health Administration, U.S. Department of Labor, Concerning their Authority to Prescribe and Enforce Standards or Regulations Affecting the Occupational Safety and Health of Seamen Aboard Vessels Inspected and Certificated by the United States Coast Guard,” effective March 8, 1983.)

3. Employees of governmental agencies and non-compensated workers (a)(2)
   Public sector employees in states with an OSHA-approved State plan are protected by the hazardous waste standards adopted by these State plans.
   • The U.S. Environmental Protection Agency (EPA) promulgated a standard that adopts §1910.120 to protect employees who work in the public sector where there is no OSHA approved State program in place (40 CFR 311).
   • In addition, EPA specifically included “non-compensated workers” (i.e., volunteer workers) who work for governmental agencies engaged in emergency response, such as volunteer fire fighters. Therefore, volunteers who will take part in operations involving hazardous substances must be trained in accordance with the applicable sections of §1910.120.
   • States with OSHA-approved State plans are encouraged both by OSHA Instruction STP 2-1.154C and EPA’s standard, 40 CFR 311, to cover volunteer workers engaged in hazardous waste operations, including emergency response.
   • EPA and OSHA have agreed that interpretations regarding compliance with HAZWOPER will be made by OSHA.

Clarification and interpretation of terms used in “definitions”

§1910.120(a)(3)

1. Emergency response
   An “emergency response” is an organized response to an incident that is, or may pose, an emergency. Since every industry will experience different kinds of emergencies, OSHA will not attempt to create a formula into which all emergencies will fit. (See Appendix E of this instruction for further guidance.)
2. Immediate release area
   The immediate release area is the area, process, or machine which is creating the hazardous spill. This term is not meant to be used exclusively to determine whether a situation is an emergency under this standard. The key factor that must be considered on a case-by-case basis is the actual or estimated exposure or degree of danger to responders, other employees, neighbors, etc.
   In order to determine this, factors such as the size of the spill/release, the material of the spill, and the location of the incident (e.g., confined space) play a significant role. Planning must take place prior to any releases that pose an emergency. An employer must determine all likely potentials for emergencies using worst-case assumptions and plan response procedures accordingly. Past history of emergencies at the site should be used as a guide.
3. Hazardous substance, radioactive
   The term “hazardous substance” as defined by §1910.120 includes radioactive waste in addition to hazardous waste, and should not be confused with §1910.1200, Hazard Communication, which specifically excludes any radioactive chemicals.
   • The U.S. Nuclear Regulatory Commission (NRC) has jurisdiction “inside the fence” at NRC licensed nuclear facilities for the risks involved with licensed radioactive materials, including emergency response procedures. OSHA has jurisdiction “inside the fence” for non-licensed radioactive materials.
   • There may be both NRC and OSHA jurisdiction when there is an emergency involving mixed wastes (licensed radioactive materials and other hazardous substances) “inside the fence.” HAZWOPER may also be applicable “outside the fence” to emergency response and clean-up activities involving hazardous substances, including licensed radioactive wastes.

4. Infectious materials
   Employers must include infectious materials in their effort to comply with §1910.120(q) if there is a possibility that a release could cause an emergency.
   • The definition of “hazardous substance” used in the standard was corrected in the Federal Register, April 13, 1990, to include:
     (B) Any biological agent and other disease causing agent which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any person, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations in such persons or their offspring.
   • Employers with employees engaged in emergency response activities involving infectious materials must comply with the requirements in §1910.120(q), and may also have to comply with the Blood-borne Pathogens standard, §1910.1030. If there is a conflict or overlap, the provision that is more protective of employee safety and health applies.

5. Mixtures containing a hazardous substance

The hazards of a mixture containing hazardous substances would be expected to be treated as a hazardous substance for compliance purposes, unless testing data on the mixture shows that the mixture does not possess hazardous characteristics.

Emergency response to hazardous substance releases

§1910.120(q)

Lack of an emergency response plan

§1910.120(q)(2)

If a facility does not have an emergency response plan, the employer must at least have an emergency action plan and evacuate all employees. In the event that an employer does not plan for emergencies by not complying with either provision, the employer must prove that the chemicals used in the facility will not require an emergency response if released in a reasonably predictable worst-case scenario. CSHOs must still document violations fully and be able to defend any citations. Past history of any emergencies at the site may be used as a guide.

Pre-emergency planning and coordination with outside parties

§1910.120(q)(2)

This means the establishment of procedures between employers and outside parties addressing how each party is to be notified, and what their roles are in the event of an emergency incident. The term “outside parties” means outside responders (fire, police, etc.) and other employers in the surrounding area who could be affected by a hazardous substance emergency incident.

Evacuation routes and procedures

§1910.120(q)(2)

CSHOs shall use §1910.38(a) to serve as an example of what employers need to address in the section of the emergency response plan that requires “evacuation routes and procedures” to be addressed in §1910.120(q)(2)(vi).

Specialist employees

§1910.120(q)(5)

The “specialist employees” category is to be used for employees from off-site who assist or advise the on-scene Incident Commander (IC). These employees may be individuals who work with and are trained in the hazards of a specific hazardous substance, but do not necessarily have all of the competencies of the HAZMAT technician or HAZMAT specialist.

1. Specialist employees who may be sent to the scene of an emergency to advise and assist the person in charge must receive training or demonstrate competency annually. (See §1910.120, Appendix C, section 2 for more details.)
2. Activities of all emergency responders responding to or on the scene of a release of a hazardous substance must be coordinated and controlled through the individual in charge of the Incident Command System, as per §1910.120(q)(3)(i). Specialist employees are not exempted from this requirement.

Training

§1910.120(q)(6)(i)

Fire fighters and police officers who are expected to be engaged in responding to emergencies involving hazardous substances are subject to the HAZWOPER training requirement.

• Generally, police officers should be trained to the first responder awareness level, since they are likely to witness or discover a release of a hazardous substance.
• Fire fighters expected to respond to releases of hazardous substances must be trained to at least the first responder operations level, since they will respond to releases, or potential releases, of hazardous substances for the purpose of protecting nearby persons, property, or the environment.

1. First responder operations level (q)(6)(ii)
   Fire fighters responding to propane and gasoline fires:
   • Fire fighters trained to the operations level, who are also trained in the hazards of propane, may enter the danger area to shut off the valves that will starve the fire and thus extinguish it. Normally, employees trained to the operations level would be restricted from taking aggressive action. This is considered to be a special case. The principle hazards from propane are fire and explosion, not toxicity. Because propane fires are common, most fire fighters are fully trained and equipped to respond to propane fires, including taking aggressive action by shutting off the valves in the danger area.
     If fire fighters are fully trained and equipped (which is a high degree of training), and have also received first responder operations level training, OSHA believes they have sufficient training to take aggressive action due to propane’s relatively low toxicity. However, it would be only a technical violation of §1910.120(q)(6) for not having the additional training required of a HAZMAT technician if a fire fighter took aggressive action in the danger area during a propane fire or leak, was fully trained and equipped to handle the fire, and had first responder operations level training. In this circumstance OSHA would not issue a citation.
   • Releases of gasoline similar to the example involving propane discussed above may be addressed by operations level emergency responders if they have the required PPE, emergency response equipment, and specific training in the safety and health hazards associated with gasoline.
     Employers who expect fire fighters to shut off a gasoline valve in the danger area, and who can show that employees are trained to the operations level and adequately trained in the hazards of gasoline, have committed a technical violation of §1910.120(q)(6)(iii) for such employees not having the training required of a HAZMAT technician.

     Note

     The fire and explosion hazards of propane and gasoline are very substantial. The interpretations herein are applicable only when fire fighters are fully trained and equipped to handle the explosion and fire hazards of propane, gasoline, or similar flammable gases and liquids.

   • If an injury occurred during an emergency response involving these responders (operations level plus additional training) the CSHO would need to consider whether the responders’ training and experience were sufficient for the tasks being performed.
     A violation of training requirements that resulted in an actual injury to an employee during an emergency response by definition cannot be a “technical violation.” Thus, if an injury occurred and the CSHO determined that the responders’ training and experience were not sufficient for the tasks being performed, then a citation should be issued noting a violation of §1910.120(q)(6)(iii) and carrying a penalty that requires abatement. Whether abatement should require full training in all of the competencies of the HAZMAT technician level, or whether certain training requirements could safely be omitted, would depend on the training needed to safely perform the tasks in question.
     If, however, the CSHO determined that the training that had been provided to the employees in question had been adequate, then the training violation would be considered a de minimis violation and no citation would be issued for inadequate training. In this situation the CSHO might determine that the cause of the injury was due to a violation of some other requirement of §1910.120 or other standards, for which a citation carrying a fine and requiring abatement would be appropriate.

2. Process operators responding within a facility (q)(6)(iii)
   Process operators who have (1) informed the incident command structure of an emergency (defined in the facility’s emergency response plan), (2) adequate PPE (3) adequate training in the procedures they are to perform, and (4) employed the buddy system, may take limited action in the danger area (e.g., turning a valve) before the emergency response team arrives. The limited action taken by process operators must be addressed in the emergency response plan.
   • Once the emergency response team arrives, these employees would be restricted to the actions that their training level allows. This limited action assumes that the emergency response team is on its way and that the action taken is necessary to prevent the incident from increasing in severity (i.e., to prevent a catastrophe).
   • Employers must inform employees during their training that they are to evacuate when they lack the capabilities to respond in a safe manner and in accordance with the standard operating procedures defined in the emergency response plan.
   • If the process operator takes action beyond what they have been trained to do, and the action was comparable to the aggressive role that a HAZMAT technician would take, CSHOs shall cite the employer for a violation of §1910.120(q)(6)(iii). If the operator takes action beyond that which they have been trained to do, and the action was comparable to the defensive role that a first responder at the operations level would take, CSHOs shall cite the employer for a violation of §1910.120(q)(6)(ii).

3. On scene incident commander (q)(6)(v)
   The intent of the standard is to provide an incident command system that is headed by a single person who is well trained in managing emergencies of differing severity, as well as overseeing the HAZMAT team, but does not necessarily have extensive knowledge of certain technical aspects such as classification and verification of hazardous materials. Appendix C, section 6 of the standard explains:

   “This enable[s] one individual to be in charge of managing the incident, rather than having several officers from different companies making separate, and sometimes conflicting, decisions. The individual in charge of the [incident command system] would delegate responsibility for performing various tasks…”

   Consequently, the IC requires more training in general matters, plus extensive training in command and management.
   • Training for the IC may require more than 24 hours of total training. The 24 hours covers §1910.120(q)(6)(ii)(A)-(F), and additional training would be needed for (6)(v)(A)-(F). The training hours suggested in the standard are minimums. HAZWOPER training programs often must exceed the 8, 24, or 40 hours minimums in order to include all of the required subjects.

4. Limiting training components (q)(6)
   An employer with a limited range of hazardous substances on-site may opt to supply their personnel with one type of PPE and require employees to wear the entire complement of PPE for any response. This strategy would relieve that particular employer of the requirement of training HAZMAT technicians to be able to “select appropriate PPE,” if employees are trained in the PPE that they are required to wear and this PPE will always provide sufficient protection.

   Note

   If an employer selects a single type of PPE for all releases that require an emergency response, the employer must be sure to evaluate the full range of performance criteria that PPE must meet, such as likely chemical exposures, heat stress, physical constraints, maintenance, and permeability.

   • Another example of requirements specified in the standard that may not be universally applicable is found in §1910.120(q)(6)(iii)(B), training for HAZMAT technicians, where knowledge of “the classification, identification, and verification of known and unknown materials by using field survey instruments and equipment” is required. In many chemical manufacturing facilities this may not be necessary, because hazardous substances that have a potential for being released are known.
     The emergency response plan and training components may cover this by identifying the known hazardous substances that would cause, or have the potential to cause, an emergency if released. Where mixtures of hazardous substances may occur in an emergency and/or hazardous byproducts may be formed during an emergency, the plan must anticipate, identify, and include training components about these mixtures or byproducts.
     Employees trained in this limited manner would only be able to respond to spills on site that involve the limited range of hazardous substances in which they are trained. For example, employees trained to respond only to releases of chlorine may not respond to a release of ethylene oxide, without broadening their limited training.

5. Training alternatives for employers (q)(7)
   A video-only approach to train employees would not be sufficient, although videos could be used for part of the training if the employer can fully assure that the employee has sufficient knowledge and skills. Providing an instructor to respond to the employees’ questions after the video presentations, and evaluating employee understanding of the material would be required. Higher levels of training would require hands-on training and more interaction with the instructor.
   • An in-house training program, among other options, may be developed. Credential requirements for trainers are defined in §1910.120(q)(7).
   • Equivalent training for first responder awareness level and first responder operations level is acceptable, as per §1910.120(q)(6)(i) and (ii), which state that employees must “have sufficient training or have had sufficient experience to objectively demonstrate competency in the following areas….” The employer must ensure, however, that the employee accomplishes all training objectives.
   • Refresher training (q)(8). Refresher training is required because employees must stay up-to-date in their skills and knowledge. If the employee has gone without refresher training for more than twelve months, the employer must evaluate whether the initial comprehensive training may need to be repeated.

Medical surveillance

§1910.120(q)(9)

Under §1910.120, employers are obligated to make medical surveillance and medical consultation available to specific employees without cost to the employees. However, OSHA does not require employees to participate. A record should be made in employees’ personnel files indicating that the employees voluntarily chose not to take part in the medical surveillance program. The CSHO may choose to interview the employees entitled to medical surveillance whose personnel files indicate that they waived their right.

Selection of personal protective equipment

§1910.120(q)(10)

PPE shall be selected and used with the intent to protect employees from hazards and potential hazards.

1. In situations where the type of hazard is fire or thermal energy, then §1910.120(q)(3)(iii) must be followed, and when the type of chemical and its concentration are “totally unknown” or “somewhat known,” the appropriate level of protection must be based on experience, judgment, and professional knowledge.
2. Obtaining air measurements with monitoring equipment for toxic concentrations of vapors, particulates, explosive potential, and the possibility of radiation exposure, would be appropriate in determining the nature, degree, and extent of the hazards. Also, use visual observation and review the existing data (including material safety data sheets).

Emergency response/post-emergency operation

§1910.120(q)(11)

As long as an emergency response team is still in control of the 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 IC has declared the response activity over or finished, and the immediate threat has been stabilized, any remaining clean-up would be considered a post-emergency operation.

1. In a large release, emergency response and post-emergency response activities may occur simultaneously, as in a marine oil spill. The IC must be careful to define the boundaries between the emergency response area and the post-emergency area in this scenario. (See OSHA Instruction CPL 2-2.51.)
2. The IC must convey information on all of the hazards that may still remain at a post-emergency cleanup site to employees who are involved in the clean-up operations. The individuals who will take control of the site to perform the post-emergency response clean-up also have a responsibility to contact the IC to determine if there are any remaining hazards or any special conditions on the site. If the IC feels that the post-emergency response clean-up crews are not sufficiently trained or prepared to perform their duties, the Commander may notify the employer or OSHA.

Post-emergency response for contract personnel

§1910.120(q)(11)(i) and (ii)

1. Contract personnel assigned full time at a plant facility are considered “plant or workplace employees” for the purposes of §1910.120(q)(11)(ii) when such employees are conducting clean-up in areas they routinely work.
2. Contractors brought in specifically for clean-up are covered by §1910.120(q)(11)(i).

Emergency response during a post-emergency response

§1910.120(q)(11)

If an emergency release of a hazardous substance occurs during a post emergency response clean-up, the HAZWOPER emergency response provision that applies would depend upon who is handling the clean-up, who will be responding, and whether the clean-up is done on plant property.

1. If the emergency is responded to by an outside response team or responders, §1910.120(q) would apply.
2. Employees who work at a hazardous waste clean-up site or RCRA corrective action (a post emergency response may be considered either), and are trained in accordance with §1910.120(e)(7), may respond to emergencies at that site.
3. The contractor hired for the clean-up procedure may respond to emergencies during the clean-up if the contractor’s employees who are involved in the clean-up are trained in accordance with §1910.120(e)(7) and (l).

Inspection procedures for the HAZWOPER standard: Excerpts from OSHA compliance directive CPL 2-2.59A

The following information is taken from CPL 2-2.59A, which OSHA issued in April 1998 to establish policies and provide clarification for the uniform enforcement of paragraph (q) of the Hazardous Waste Operations and Emergency Response standard (HAZWOPER). Section 1910.120 of the General Industry regulations covers emergency response operations for releases of, or substantial threats of releases of, hazardous substances without regard to the location of the hazard.

Appendix B of CPL 2-2.59A Guidance for emergency response compliance inspection

This appendix provides uniform guidance for OSHA compliance officers when conducting an inspection. For the employer, the information in this checklist gives valuable insight to fulfilling the requirements in §1910.120(q), Emergency response to hazardous substance releases.

Review the Emergency Response Plan (ERP)

1. Do the provisions of §1910.120(q) apply to the employer? (Would the substances present onsite require an emergency response if released?)
2. Which compliance strategy does the employer use? Evacuation of all employees in accordance with §1910.38(a), or emergency response by employees in accordance with §1910.120(q)?
3. Does the employer have an emergency response plan or an emergency action plan? If not, cite paragraph §1910.120(q)(1).
4. If the employer does not have an ERP but expresses an intent to evacuate all personnel and not allow any employees to respond, does the employer have an emergency action plan in accordance with §1910.38(a) (may be communicated orally to employees by employers with 10 or fewer employees)? If not, then cite §1910.38(a).
5. If the employer does not have an emergency response plan but has an emergency action plan, is the emergency action plan adequate? If not, then cite §1910.38(a).
6. Emergency Action Plan compliance checklist:
   • Is the Plan in writing (may be communicated orally to employees by employers with 10 or fewer employees)?
   • Are emergency escape procedures and emergency escape routes designated?
   • Are procedures established to account for all employees after the emergency evacuation has been completed?
   • Has an employee alarm system which complies with §1910.165 been established?
   • If an employee alarm system is used for other purposes, have distinctive signals for each purpose been developed?
   • Has the employer designated and trained a sufficient number of persons to assist in the safe and orderly evacuation of employees (generally one per 20 employees)?
   • Has the employer reviewed the emergency action plan with each employee covered by the plan initially, and when the plan or the employee’s responsibilities under the plan change?
   • Is the written plan kept at the workplace (may be communicated orally to employees by employers with 10 or fewer employees) and made available for employee review?
   • Has the plan been effectively communicated and implemented by the employer to ensure that employees do not assist in handling emergencies, or does the employer actually intend to have employees respond to emergencies?
   • Does the employer intend to have employees handle incidental releases? If so, are the training, tools, equipment, and PPE appropriate for handling incidental releases of the hazardous substance available in the work area?
   • Does the employer have procedures for notifying both inside and outside parties of incidents? Employees may be placed at risk in situations where they are required by the plan to remain in a temporarily safe area to shut down an operation, and the plan does not have procedures for the employer to ensure that outside responders are notified in a timely manner. CSHOs should look closely at emergency action plans that do not have procedures for immediately contacting the local fire department and other outside parties in order to determine whether such plans place any workers at risk.

     Note

     The term “outside parties” means outside responders (fire departments, police, private hazmat teams, emergency medical service personnel, and other pertinent components of the local, state, and federal emergency response system) and other employers in the surrounding area who could be affected by a hazardous substance emergency incident.

7. Is the Emergency Response Plan (ERP) in writing?
8. Is the ERP easily accessible to employees?
9. Does the employer make use of the local or State ERP in the company ERP? If so, does the local or State ERP adequately provide employee protection for this employer?

   Note

   Emergency response organizations may use the local or State ERP as part of their ERP to avoid duplication. However, the plan must address all of the provisions listed in §1910.120(q)(2) and (q)(3).

10. Does the ERP reflect pre-emergency planning and coordination with outside parties?
    • Does the plan describe procedures or existing agreements addressing how the outside parties are to be notified of an potential emergency situation and what role each should play in an incident?
    • If any response coordination procedures or agreements are included in the plan, are the local fire department and other selected outside emergency response parties aware of their roles and responsibilities as described in the plan?
    • Can outside responders identify any reasons that were not considered by the employer that would delay or prevent them from responding to an incident (e.g., distance, lack of training, etc.)?

11. Are personnel roles, lines of authority, training, and communication provided in the ERP?
12. Does the ERP address emergency recognition and prevention?
13. Does the ERP address safe distances and places of refuge adequate for all employees who may need it?
14. Does the ERP designate equipment, people, and procedures to ensure site security and control?
15. Are evacuation routes and procedures developed, and do they work well with the methods developed for emergency alerting and the designation of places of refuge?
16. Does the ERP address the setting up of a decontamination station, and the decontamination of personnel and equipment?
17. Are emergency medical treatment and first aid available to employees during an emergency response?
18. Are emergency alerting and response procedures addressed in the ERP? Is there evidence of an alerting and response system?
19. Does the ERP address the types and uses of PPE and emergency response equipment to be used?
20. Does the ERP provide procedures for the critique of emergency responses?
21. Are there any other features that are missing or should be addressed in the employer’s ERP?

Note

The elements listed in §1910.120(q)(2) are minimum requirements. The performance-oriented aspect of the ERP is in §1910.120(q)(1), which states that the ERP “shall be developed and implemented to handle anticipated emergencies prior to the commencement of emergency response operations.”

Review procedures for handling emergencies

1. Has a single individual been identified as the On-Scene Incident Commander?
2. Is there a system in place that passes the senior official position up the line of authority as more senior officials arrive on the scene?

   Note

   The senior official assists the On-Scene Incident Commander, “the individual in charge of the Incident Command System” in §1910.120(q)(3).

3. Has a safety official been identified?

   Note

   In smaller responses, the On-Scene Incident Commander may play this role.

Review training requirements

1. Has the employer certified that the employee has been provided training?

   Note

   The employee does not necessarily have to be provided with a certificate, although the employer must certify in writing that employees who have successfully completed the first responder operations, HAZMAT Technician, HAZMAT Specialist, and On-Scene Incident Commander levels are trained.

2. If employee training is done in-house, is training based on the specific duties and functions to be performed at the site?

   Note

   Keep in mind that OSHA does not endorse training programs, but may offer suggestions as to their comprehensiveness.

3. Does the employer have a “statement of training” or “statement of competency” for annual refresher training or competency for all employees trained in emergency response?

   Note

   Methods of demonstrating competency include critiques of actual incidents or “dress rehearsals” which identify any weakness and effectiveness of the response effort.

4. If employee annual refresher training is done in-house, is training adequate for the site?

Note

Keep in mind that OSHA does not endorse training programs, but may offer suggestions as to their comprehensiveness.

Review medical surveillance

1. Does the employer furnish the employee with the physician’s written opinion indicating medical results and whether the employee is capable of working with hazardous materials?
2. Is medical recordkeeping done in a manner consistent with §1910.1020, Access to Employee Exposure and Medical Records?

Review of Personal Protective Equipment Program. Ask to review the written PPE Program required in §1910.120(q)(10).

Note

Subparagraph §1910.120(q)(10) refers to the provisions for PPE in §1910.120(g)(3)-(g)(5).

1. Is the PPE chosen sufficiently protective of employees, based on hazards and potential hazards?
2. Is the PPE maintained and inspected routinely?
3. Does the PPE appear to be in good condition and up to date?
4. Is air monitoring equipment available to assist the Incident Commander in determining when to increase or lower the level of PPE?

Employee interview questions

1. Does the employee have access to the ERP?
2. Has the employee ever been through an emergency response drill or an evacuation drill? Is the employee aware of the evacuation route in the event of an emergency?

   Note

   Drills may be required by SARA title III if the facility or emergency response organization is designated to be part of a community emergency response.

3. Is the employee expected to take any action, other than evacuation, during an emergency? If so, what level of training does the employee have?
4. Does the employee feel the training was sufficient to perform expected duties and functions during an emergency as an emergency responder?
5. Does the employee know how to select, use, and inspect the PPE designated for employee use during an emergency?
6. Have the employees been fitted properly for PPE?

   Note

   §1910.120(q)(10), Chemical protective clothing, refers to the provisions in §1910.120(g)(3)-(5): PPE selection (which requires selection and use of PPE in compliance with Part 1910, Subpart I), totally encapsulating chemical protective suits and a written PPE program.

7. Does the employee know how to use the emergency response equipment designated for use in performing control, containment and/or confinement operations?
8. If possible, interview the designated On-Scene Incident Commander to determine if the individual:
   • Is aware of the potential hazards and/or benefits associated with certain PPE and engineering controls;
   • Is capable of implementing appropriate emergency operations;
   • Can really designate a safety official;
   • Can implement appropriate decontamination procedures;
   • Has received training as an On-Scene Incident Commander.

9. Has the employee gone through refresher training or demonstrated competency annually?
10. Have employees who are entitled to a baseline physical and periodic consultations received them?

    Note

    Designated members of HAZMAT Teams and HAZMAT Specialists must receive baseline physicals and be part of a medical surveillance program.

11. Are employees offered medical consultation following the development of signs or symptoms resulting from exposure to hazardous substances during an emergency incident?