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                                     OSHA Interpretation Letters

________________________________________________________

November 24, 2003

John D. Turley, President
Education and Consulting Resources, Inc.
11604 Woodhaven Road
Waynesboro, PA 17268

Dear Mr. Turley:

Thank you for your January 18, 2002, letter to the Occupational Safety and Health Administration (OSHA) requesting guidance on OSHA's position relating whether 29 CFR 1910.120, Hazardous Waste Operations and Emergency Response (HAZWOPER), applies to terrorism incident responses. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any situation not delineated within your original correspondence. Your questions are paraphrased below followed by the answers. Please excuse the delay in our response.

Background: 29 CFR 1910.120, Hazardous Waste Operations and Emergency Response (HAZWOPER), was promulgated to protect workers working at a hazardous waste site, a treatment, storage, and disposal facility, or performing emergency response. Workers responding for the intention of stopping or controlling the release of a hazardous substance(s) at the point of release are performing emergency response and are under the Incident Command system.

Terrorist events are not considered foreseeable emergencies that OSHA expects an employer to reasonably anticipate in the workplace. However, if an employer chooses to develop an emergency plan to safeguard their employees from the possibility of a terrorist event, OSHA recommends that they contact the local emergency planning committee (LEPC) and possibly plan exercises with those involved so they understand their capabilities and limitations.

With regard to terrorist events, OSHA's role will be guided by comprehensive national policies contained in the Federal Response Plan (FRP), the National Response Plan (NRP), and other legal authorities. OSHA may not be exercising enforcement authority if this is not the role given the agency by the FRP or NRP. Under the Occupational Safety and Health Act, OSHA's primary duty is to ensure that employers are taking necessary actions to protect workers from hazards on the job; enforcement of standards is only one of the means provided by the law to achieve this end and will not always be appropriate. While 29 CFR 1910.120 provides important information on protecting workers, OSHA's task in conveying these protections through employer actions may most effectively be served following a terrorist incident through technical assistance rather than enforcement activity.

When actions under the National Response Plan (NRP) are terminated by the Lead Federal Agency (LFA), or the response period evolves into a clean-up period where a terrorist event has occurred and there are known exposures to hazardous materials, OSHA can and will then take any action, including the enforcement of 29 CFR 1910.120 and all other appropriate standards and regulations, as necessary to ensure that employees are properly protected.

Question #1: What level of training is required of public and private sector employees responding to a terrorism event involving weapons of mass destruction?

Answer: As described above, where a terrorist event has occurred and there are known exposures to hazardous materials, HAZWOPER would apply to employers with employees who are responsible for cleanup of the hazardous materials. HAZWOPER is a performance-based regulation allowing employers flexibility in meeting the requirements of the regulation, although the level and type of training is to be based on reasonably anticipated worst-case scenarios. Training requirements for all classifications of emergency responders are based on the "duties and functions to be performed by each responder" and are found at §1910.120(q)(6)(i)-(v). Workers who respond with the intent of handling or controlling the release of a hazardous substance are also covered by §1910.120(q)(3)(iv) and are under the Incident Command system. Those workers who are removed from the site of the emergency and removed from the point of release of hazardous substance(s) may need a lower level of training. For example, workers who assume an aggressive role in responding to a release of hazardous substance(s) for the purpose of stopping or controlling the release must have training equal to the hazardous materials technician level (24 hours) versus workers who perform decontamination off-site (e.g., at a hospital) would need to have training equal to the first responder operations level (8 hours) with additional training on decontamination and personal protective equipment.

Please be aware Federal OSHA standards apply to employers under Federal OSHA's jurisdiction. Federal OSHA has no jurisdiction over state and local government employees. The OSHAct does, however, encourage States to assume responsibility for their own occupational safety and health programs under plans approved by the U.S. Department of Labor. Such plans must extend coverage to State and local government employees. Twenty-three (23) States operate programs that cover both private and public sector employees. Three (3) States and the Virgin Islands operate programs that are limited in scope to state and local government employees.

Question #2: Is it OSHA's position that WMD terrorism incidents involving CBRN materials are, or are not, hazardous materials incidents? If yes, are all personnel operating at an incident scene required to have current minimum training certification requirements as cited in 29 CFR 1910.120?

Answer: As described above, OSHA's role during a terrorist event will be guided by the policies contained in the Federal Response Plan, the National Response Plan, and the specific response in place under the Incident Command system. OSHA would consider incidents involving Chemical, Biological, Radiological, and Nuclear (CBRN) materials used in a terrorist event a hazardous materials incident. Therefore, any worker responsible for cleanup activities of a known incident scene must have appropriate training as stated above in the answer to Question #1.

Question #3: Will OSHA be addressing training and equipment requirements for possible terrorism incidents from a preparedness standpoint in the future?

Answer: OSHA has already released emergency preparedness guidance on its public web page to assist employers and employees in the planning for all types of emergencies including terrorist-type incidents. Guidance published includes the Emergency Planning Matrix, Emergency Response e-Tool, Anthrax Matrix, Anthrax Health and Safety Plan (HASP), and a fact sheet for high-rise building occupants. In the development stages are two additional matrices; Fire and Explosion and Personal Protective Equipment. Both of these matrices will be available in the future. In addition, two interpretation letters (Roth and Hayden) provide valuable general information on the level of training and equipment necessary for worker protection in case of terrorist incidents. All of these documents are available at http://www.osha.gov. Also, an Emergency Response and Preparedness web page is now available for review at http://www.osha.gov/SLTC/emergencypreparedness/index.html. This web page contains general guidance and information on CBRN topics, tools, as well as, links to other documents by the Department of Justice and Department of Homeland Security.

We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Richard E. Fairfax, Director
Directorate of Enforcement Programs
 

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