Most of the letters of interpretation issued by OSHA over the years have dealt with PSM applicability issues. However, this newsletter will focus on several interpretations dealing with emergency response planning, specifically how the HAZWOPER regulation should be interpreted. This regulation governing emergency response is considered part of the PSM Standard by reference. Paragraph (n) of 29 CFR 1910.119, the PSM emergency response element, refers to 29 CFR 1910.120(p) or (q), the HAZWOPER standard. Note that most of these interpretations pre-date the adoption of the final PSM Standard.

Interpretations of PSM Standard With Respect to Emergency Response Planning – HAZWOPER

The following utility interpretations of the PSM Standard have been paraphrased and summarized for ease of reading and for space considerations in this article. The exact wording, including fuller explanations by OSHA made be found in the actual documents referenced.

Question: When does 1910.120(q) apply?
Answer: It was never the intent to leave a coverage gap for emergency preplanning and training individuals who respond to emergencies. The first preplanning step under 1910.120(q) requires the employer to make a determination of whether they have a potential for an emergency resulting from hazardous substance. OSHA considers 1910.120 to have a broad coverage for emergency response, in the sense that it applies to all employers who will have their employees respond to an emergency. This broad coverage will necessitate flexibility in enforcement of the various provisions of 1910.120(q). [OSHA internal memo of 5/8/92]

Question: Does 1910.120(q) apply to incidental spills?
Answer: 1910.120(q) does not cover responses to incidental spills per se. OSHA will enforce other applicable standards such as 1910.1200, 1910.132, 1910.134, etc. for these situations to the extent that no emergencies could develop. Once workers are required to respond to incidental spills that have the potential for becoming an emergency then the appropriate requirements of 1910.120(q) are applicable. The level of training required is based on the responsibilities and duties expected of a worker during an emergency response operation. [OSHA internal memo of 5/8/92] Editor’s Note: Paragraph (n) of the PSM Standard clarified the issue of small spills by requiring that ERPs formulated under the PSM Standard address small spills (at least for PSM-covered materials).

Question: How many workers are necessary to be present when there is a need for an operator to respond to a potential emergency that falls under the scope of the HAZWOPER standard?
Answer: Page D-12 of the Hazwoper Emergency Response Compliance Directive ([CPL 2-2.59A, April 24, 1998]) addresses the limited actions process operators can take when certain conditions are met:
Process operator 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 the 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 29 CFR 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 29 CFR 1910.120(q)(6)(ii).

This has been OSHA's long standing policy for operators responding to emergencies. [OSHA Letter of 7/11/96]

Question: Do all post-emergency response participants require medical surveillance? 
Answer: No. Subparagraph (q)(9) requires that "members of an organized and designated HAZMAT team and hazardous materials specialists shall receive a baseline physical examination and be provided with medical surveillance as required in paragraph (f) of this section." Additionally, any emergency response employees who exhibit signs or symptoms which may have resulted from exposure to hazardous substances during the course of an emergency incident must be provided with medical consultation. Post-emergency responders to oil spills who are covered by paragraph (f) may be more difficult to assess medically. Some petroleum "fractions" become relatively benign while others may continually pose a health threat. The employer's medical program should address the points covered in paragraph (f), taking into account the health hazards that employees will encounter. Subparagraph (f)(2)(ii) requires that all employees who wear a respirator for 30 days or more a year, or as required by 29 CFR 1910.134, shall be included in the medical surveillance program. This would apply to any post-emergency responder who falls into this category. [OSHA letter of 8/5/93]

Question: Is the training that the additional response personnel (i.e., company personnel not part of the original response) have sufficient enough to allow them to participate in the post-emergency clean up? 
Answer: All employees who respond to a release of a hazardous substance that is not on plant property must be trained in accordance with 1910.120(q)(6) to respond to the initial emergency, and in accordance with 1910.120(e) to perform post-emergency response clean up. [OSHA letter of 8/5/93]

Question: Is a hazardous materials technician also considered a HAZMAT team member when everyone at the facility is trained to the 24-hour hazardous material technician level? 
Answer: No. A hazardous materials technician would not necessarily be considered a HAZMAT team member when everyone at the facility is trained to the 24-hour hazardous material technician level. With respect to medical surveillance coverage, job duties and responsibilities determine whether an employee is a HAZMAT team member, not their job title. If the employer's emergency response plan (or intent) requires an employee to respond to emergency releases of hazardous substances as part of an organized "team" of responders, then that employee would be considered a member of a HAZMAT team. [OSHA letter of 8/5/93]

Question: Do emergency response plans formulated under the HAZWOPER have to include weather-related emergencies?
Answer: It is our opinion that both 1910.120 and 1910.35 do not specifically address weather emergencies. However, a weather emergency could cause or contribute to an "emergency" as defined in 1910.120 if an uncontrolled release of a hazardous substance occurred in a facility. When an employer assesses the potential for a 1910.120 emergency in their plant, would they be required to include the potential for a 1910.120 emergency caused by the weather? If the employer has chosen to respond to emergencies under HAZWOPER, they would respond no matter what caused the emergency. In addition, most employers do include weather emergencies and bomb threats in their emergency response plans. [OSHA internal memo of 4/23/91]

Although verbal interpretations have no official standing and federal employees rarely speak for attribution, there have been a number forums following the adoption of the PSM Standard where OSHA representatives have made themselves available to speak about PSM and to answer questions. These verbal interpretations contain some interesting information on OSHA’s thinking (or at least the thinking of the person answering the question). Also, OSHA has published non-mandatory guidance on PSM issues in OSHA Publication 3133 (the “purple booklet”). This guidance is also unofficial and is not mandatory. The following verbal clarifications and items published in OSHA 3133 are pertinent to emergency response:

• Provisions must be made in the ERP for employees who are physically impaired.
• Process controls rooms and buildings should not be used as evacuation safe havens.
• Delaying or confusing alarms should not be used.
• A wind direction indicator (wind sock or pennant) should be placed at the highest visible point on the site.
• The safety and health of the emergency responders (HAZWOPER trained) is the responsibility of the on-scene commander.
• Drills and exercises that include offsite responders and support organizations are encouraged.
• Employer's ERP must fit in with the LEPC plan so that emergency response can be effectively carried out.
• Establishing and equipping an emergency control center with the following is encouraged:
    - Backup source of communications.
    - Site and community plot plans.
    - Process and utility P&IDs, including firewater.
    - Emergency lighting.
    - Internal & external notification lists.
    - SARA Title III reports and MSDSs.
    - Emergency procedures manual.
    - Listing of all emergency equipment.
    - Any dispersion modeling data.
    - Access to meteorological data.
• Critiques of actual activations of the ERP are required by PSM (via 1910.120) - citations have been issued for not holding critiques.
• ERP activation critique can be part of the incident investigation process if desired.
• Non-technical workers (e.g. cafeteria) must be included in the ERP, and then maybe employee participation, if appropriate.

Although verbal interpretations have no official standing and federal employees rarely speak for attribution, there have been a number forums following the adoption of the PSM Standard where OSHA representatives have made themselves available to speak about PSM and to answer questions. These verbal interpretations contain some interesting information on OSHA’s thinking (or at least the thinking of the person answering the question). Also, OSHA has published non-mandatory guidance on PSM issues in OSHA Publication 3133 (the “purple booklet”). This guidance is also unofficial and is not mandatory. To our knowledge, there have been no verbal clarifications or other non-mandatory guidance on HAZWOPER training that have been issued.

To see a specific letter or other interpretive document published by OSHA, visit OSHA’s website at http://www.osha-slc.gov/OshDoc/toc_interps.html. 

As a service to our clients and readers, AcuTech has included many of these documents, including the letters of interpretation discussed above, in a continuous Word® file. This file allows for easier searching for keywords that might be of interest and makes it easier to determine if an interpretative document has been published on a particular topic or if any of them address a specific PSM-related issue. 

Note to our readers who have downloaded or used the interpretations file in the past: This file has been updated and now includes interpretations from the OSHA regulations that form the requirements for an emergency response plan, including alarm system and HAZWOPER training requirements. The updated file may be found at http://www.acusafe.com/psm/process-safety-management-interp_letters.html 

In the next month’s issue of the AcuSafe newsletter, we will include additional discussions of interpretations related to Hot Work Permitting. 

If you have an interpretation that you would like to share with AcuSafe or feedback about this feature, please email us at editor@acusafe.com.  To go back to the OSHA Interpretations Feature Index, click here or go back to AcuSafe.