This case has bounced around for a while now, but the power plant won their case and had the 29 C.F.R. § 1910.120(q)(3)(iv) citation vacated by the OSHRC. On a personal note, I agree with the dissenting opinion. Only Item 2 of that citation is at issue on review—it alleges a violation of 29 C.F.R. § 1910.120(q)(3)(iv) and proposes a $9,054 penalty because employees who responded to the ammonia release did not wear positive pressure self-contained breathing apparatus (SCBA). Here is what the standard states:
Employees engaged in emergency response and exposed to hazardous substances presenting an inhalation hazard or potential inhalation hazard shall wear positive pressure self-contained breathing apparatus [SCBA] while engaged in emergency response, until such time that the individual in charge of the ICS [Incident Command System] determines through the use of air monitoring that a decreased level of respiratory protection will not result in hazardous exposure to employees.
The judge vacated the alleged violation on the ground that the Secretary did not prove the rovers were exposed to an amount of ammonia above the PEL. On review, the Secretary does not claim that he proved the rovers were exposed to an amount of ammonia above the PEL; rather, he argues that such proof is not required.
We need not determine whether proof of exposure above the PEL is required because we find, in either case, that the Secretary has failed to establish the cited standard’s applicability. The SCBA requirement in the cited HAZWOPER standard applies only when employees are engaged in an “emergency response,” which is defined as:
[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. 29 C.F.R. § 1910.120(a)(3).
This definition distinguishes between incidental releases that can be controlled by employees in the immediate release area and those that cannot, and between releases that pose a potential safety or health hazard and those that do not. Here, the response to the ammonia release was not an “emergency response” because the release:
(1) was incidental and controlled by rovers located in the immediate release area, and
(2) posed no potential safety or health hazard to the rovers during the response