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).