Do the actions taken under PSM duties/SOPs exempt the facility from the scope of HAZWOPER?

OSHA has two (2) significant LOIs, both aligning, and their HAZWOPER CPL that do a really good job of explaining how one crosses over from PSM SOP actions to actions that would fall under the definition of an “emergency response”, thus moving compliance from 1910.119 to 1910.120. I have presented both of these LOIs and the pertenant portions of the CPL below for discussion. The one point that I believe gets lost in these discussions is that someone on-site must have the training and authority to:

recognize the difference between an incidental release and one that calls for an “emergency response”
establish the release is an “emergency” and set-up an Incident Command system so that operations personnel taking defensive actions within the “Warm Zone” are accounted for and controlled in their actions.

As we can see, all three (3) documents align in where they draw the line from when a PSM Operator becomes an Emergency Responder…

Letter #1 from June 2003 @ a refrigeration facility

Scenario: You have a client who operates an ammonia refrigeration system containing approximately 55,000 pounds of anhydrous ammonia. Ammonia is the only hazardous substance regulated by the PSM standard at this site. During a series of self-audits of both the facility’s Process Safety Management Program (29 CFR 1910.119) and the EPA’s Risk Management Program (40 CFR 68), questions concerning the various levels of training for the emergency response team were raised. The questions arose due to confusion as to whether the facility should be operating under a 29 CFR 1910.38 (Employee emergency plans) concept or whether the response team is actually a HAZMAT Team regulated by 29 CFR 1910.120 [Hazardous Waste Operations and Emergency Response (HAZWOPER)].

You provided additional facts outlining the extent of your client’s organizational response in case of an unplanned release of ammonia emergency and actions taken by the emergency response team (refrigeration department employees) at the facility. These facts are provided below:

The facility has approximately 20 employees working in the refrigeration department that have completed a 24-hour technician level course; several members have had an 8-hour incident command class; and the facility has an emergency evacuation plan.
The facility has a respiratory protection program compliant with 29 CFR 1910.134 for the refrigeration department employees who, on occasion while working on equipment, will need a respirator.
During an unplanned release of ammonia, the refrigeration staff (emergency response team) will be the employees remaining behind or going into an adjoining space, to affect an emergency shutdown of ammonia equipment including electrical controls and isolation of equipment or lines using existing valves. They do no mitigation during the emergency shutdown procedures. They will carry a hand-held monitoring device during the emergency shutdown procedure.
To accomplish the emergency response to an ammonia release, the employer plans for and in fact has had emergency responders don SCBA’s when an ammonia release has occurred.
There is potential for and in fact response to ammonia releases that have originated from outside the immediate release area into rooms where ammonia releases have occurred, i.e., machine room.
There is a company-registered nurse on duty during normal business hours for medical surveillance for all employees. During other hours, EMS services are called if needed. Emergency response team members have annual physical examinations to evaluate their health, which includes pulmonary function evaluation.
A horn sounds indicating the need for a facility evacuation. There is a mechanism in place for accounting for all employees and contractor employees on site during an emergency evacuation.
The existing emergency plan has duties and responsibilities for those who must react to a fire within the facility.
The facility has a comprehensive maintenance program meeting all the requirements of PSM.
The facility has a training program, which addresses evacuation procedures for unplanned ammonia release and fire, as well as other safety concerns.

It is your feeling that the facility is well served and protected with the development of an emergency action plan as required by 29 CFR 1910.38.

Question: Given that the emergency responders actions are purely defensive in nature and do not include any mitigation or offensive action, do the actions outlined exceed the requirements of 29 CFR 1910.38?

Reply: You correctly state that your client’s facility is covered by the PSM standard (55,000 pounds of ammonia in the facility’s ammonia refrigeration process – anhydrous ammonia is a highly hazardous chemical covered by PSM at a threshold quantity of 10,000 pounds or greater). Therefore, your client must comply with all PSM requirements including the pertinent provision, 29 CFR 1910.119(n), Emergency planning and response.¹ From your discussion with my staff member on May 7, 2003, the core of your question is this – given that PSM applies to the facility, and given the site-specific facts provided, which OSHA standard is required by 1910.119(n)? Is it 1910.38(a) or 1910.120(a) and 1910.120(q)?

You believe your client’s facility is well served by complying with OSHA’s 1910.38(a) standard versus complying with 1910.120. Based on your letter and telephone discussion, your primary conclusion is based on the fact that your client’s emergency responders do not take any “mitigation” or offensive actions, therefore, you believe that your client’s emergency responders that remain behind or go into adjoining spaces to affect an emergency shutdown of ammonia equipment, including electrical controls and isolation of equipment or lines by turning valves, are equivalent to employees who operate critical plant operations before they evacuate per 1910.38(c)(3).²

OSHA stated in its HAZWOPER compliance directive³ that limited actions, such as turning valves taken by process operators during an emergency release of hazardous materials, are regulated by 1910.120 [specifically 1910.120(q)(6)(ii) or 1910.120(q)(6)(iii)]. The limited action taken by process operators must be addressed in the emergency response plan [1910.120(q)(1)].

Based on site specific conditions, employers must comply with either 1910.38(a) or 1910.120(q) to satisfy the requirements of 1910.119(n)⁴ for potential releases of highly hazardous chemicals from their PSM-covered processes. An employer’s decision to completely evacuate the danger area and allow the local community emergency response organizations to handle a hazardous substance release is the foundation for deciding the applicability of either 1910.38(a) or 1910.120 standards. If the employer decides to evacuate all employees from the danger area should there be a release of a hazardous substance/highly hazardous chemical, then the employer may elect to comply with the requirements of 1910.38(a).

With respect to the magnitude of a release of a highly hazardous chemical, OSHA recognizes that there are PSM covered processes where the employer is not required to comply with 1910.120 based on the magnitude and nature of the hazard of a potential release. There may be small or incidental releases where an employer may elect to comply with 1910.38(a) instead of 1910.120. If the employer is not required to comply with 1910.120 and elects to comply with 1910.38(a), they may want specific employees in the release area to control or stop minor emergencies or incidental releases. Per 1910.38(a), these actions must be planned for in advance, and procedures must be developed and implemented. Pre-planning for handling incidental releases for minor emergencies in the process area needs to be done, appropriate equipment for the hazards must be provided, and training must be conducted for those employees who will perform the emergency work before they respond to handle an actual small or incidental release. The employer’s training program, including the Hazard Communication standard (29 CFR 1910.1200) training, is to address the training needs for employees who are expected to handle incidental or minor releases when the employer complies with 1910.38(a). If employers decide to mobilize the available resources at the plant and have them respond to significant releases, then the employer must comply with 1910.120.

There are releases of hazardous substances, like ammonia from your client’s ammonia refrigeration process 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,” 29 CFR 1910.120(q)(1)), and plan response procedures accordingly.

Employers who expect their employees to become actively involved in an emergency response due to a release of a hazardous substance, i.e., ammonia at your client’s facility, are covered by 1910.120(a) and 1910.120(q), and must train their employees accordingly. Again, from OSHA’s HAZWOPER compliance directive,⁵ the Agency has stated that an emergency response can include, but is not limited to, the following situations:

The response comes from outside the immediate release area;
The release requires evacuation of employees in the area;
The release poses, or has the potential to pose, conditions that are immediately dangerous to life and health (IDLH);
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);
The release can require immediate attention because of a potential imminent danger; and
The release may cause high levels of exposure to toxic substances.

All of the criteria listed above have potential to exist or in fact have existed at your client’s ammonia refrigeration facility. Therefore, your client must comply with OSHA’s HAZWOPER standard 1910.120.

Footnotes:

1 29 CFR 1910.119(n) — Emergency planning and response: “The employer shall establish and implement an emergency action plan for the entire plant in accordance with the provisions of 29 CFR 1910.38….Employers covered under this standard may also be subject to the hazardous waste and emergency response provisions contained in 29 CFR 1910.120(a), 1910.120(p) and 1910.120(q).”

2 29 CFR 1910.38(c)(3) — [1910.38(a) Application: An employer must have an emergency action plan whenever an OSHA standard in this part requires one. The requirements in this section apply to each such emergency action plan.] “Procedures to be followed by employees who remain to operate critical plant operations before they evacuate.”

3 [CPL 02-02-059 (formerly CPL 2-2.59A)] Inspection Procedures for the Hazardous Waste Operations and Emergency Response Standard 29 CFR 1910.120 and 1926.65 Paragraph (q),Emergency Response to Hazardous Substance Releases; Appendix D — HAZWOPER Interpretive Guidance; Section II; Interpretations of 29 CFR 1910.120(q), Emergency Response to Hazardous Substance Releases; and Process Operators Responding within a Facility, (q)(6)(iii) [Section II.E.2.].

4 29 CFR 1910.119(n) Emergency Planning and Response “…In addition, the emergency action plan shall include procedures for handling small releases…”

5 CPL 02-02-059 Inspection Procedures for the Hazardous Waste Operations and Emergency Response Standard; 29 CFR 1910.120 and 1926.65, Paragraph (q): Emergency Response to Hazardous Substance Releases; and Appendix E: Releases of Hazardous Substances that Require an Emergency Response.

Letter #2 from February 2004 @ a refrigeration facility

(NOTE: the contents of this letter have almost verbatim been copied into the HAZWOPER CPL 02-02-073 (August 27, 2007)

Background: Management of a few smaller ammonia refrigeration facilities have started to train personnel in emergency response in several ways. These differences have brought about questions concerning the roll of an IC. All of their ammonia systems have been designed so that shut-down can be accomplished from several areas where responding personnel would not be placed in potentially hazardous conditions. All facilities have an outside agency delineated in their Emergency Response Plan (ERP) that will act as hazardous material technicians in the event of an incident requiring an emergency response.

Scenario A: The first scenario requires all personnel to evacuate, although refrigeration maintenance operators are allowed to start the process of shut-down according to the CPL 02-02-059 [formerly CPL 2-2.59A], Appendix D, Section E.2.

PLEASE NOTE that the newest explanation is in CPL 02-02-073, Inspection Procedures for 29 CFR 1910.120 and 1926.65, Paragraph (q): Emergency Response to Hazardous Substance Releases; section Training – 1910.120(q)(6)) as shown below…

Employees such as chemical process operators may be required to shut down processes, close emergency valves and otherwise secure operations that are not in the danger area before evacuating in the event of an emergency (see 1910.38(c)(3)). These procedures need to be delineated in the ERP, and employees must be trained to be able to perform these preevacuation procedures safely. Employees who perform these operations are not considered “emergency responders.” However, if they are expected to perform duties in the danger area beyond what they are trained to do and comparable to those of a HAZMAT technician or the defensive role of the first responder at the operations level, then they would be expected to be trained as emergency responders in accordance with 1910.120(q).

Process operators who have

1. 1. informed the incident command structure of an emergency (defined in the facility’s ERP);
  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 ERP.

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 such 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 ERP.

For example, first responders (e.g., law enforcement, firefighters, etc.) involved in methamphetamine lab raids are often confronted with releases of, or substantial threats of releases of, hazardous substances such as caustics, solvents, and toxic gases (e.g., phosphine). The training for these personnel must be based on the expected roles and responsibilities during the emergency response. As such, the response personnel responsible for taking the aggressive role of shutting down the laboratory “cooking” process would likely face the greatest exposures, and must be trained to at least the hazardous materials technician level. (Note: Any post-emergency response clean-up must be done in accordance with (q)(11); clean-ups not resulting from an emergency response and that fall under (a)(1)(i)-(iv) must be done in accordance with paragraphs (b)-(o) of HAZWOPER.)

This procedure permits process operators to respond to an emergency situation as long as they have “informed the incident command structure,” assuming the rest of the criteria in that paragraph are met.

Question 1: Do these process operators have to act under the control of an IC?

Answer: Yes. The IC must be notified expeditiously by a PREDETERMINED chain of communication. The chain of communication needs to be clearly defined in the facility emergency response plan (ERP) in the event of a release that would require an emergency response. Informing the Incident Command System (ICS) in effect places the process operators under the control of an IC. Process operators who inform the ICS of an emergency prior to performing any limited action in the danger area (e.g., shutting down processes, closing emergency valves, etc.) are limited to their responsibilities and current training levels. Process operators who shut down processes or close valves OUTSIDE the hot zone or danger area before evacuating are not under the ICS.

Question 2: Does the IC have to be physically present before defensive response steps can be taken?

Answer: The IC is NOT required to be present for the process operators to take limited actions (e.g., shutting down processes, closing emergency valves, etc.). The action taken by the process operators assumes the emergency response team’s arrival is imminent, and the action taken is necessary to prevent the incident from increasing in severity. In addition, the ICs should not be at or near the release area, which would allow them to perform their duties without becoming too closely involved in the response effort.

Note: In several of your questions you use the term “defensive” (e.g., “defensive response steps”). Be aware that this term is typically associated with emergency responders who have been trained to the First Responders Operations Level (1910.120(q)(6)(ii)) because the primary purpose of these workers is to perform defensive actions to contain an uncontrolled release. Process operators addressed in your Scenario A are not considered “emergency responders” and, therefore, cannot perform all of the functions assigned to the First Responders Operations Level.

Question 3: Can defensive action begin if the IC’s presence is imminent?

Answer: Yes. Process operators may begin limited actions (e.g., shutting down processes, closing emergency valves, etc.) prior to the IC’s presence at the scene.

Question 4: Can the IC be a trained person from the facility, or must they be from the outside agency who will command the technician level responders?

Answer: ICs may be from the facility, provided they have had appropriate training in accordance with 1910.120(q)(6)(v). Control over the incident may be passed up the chain of command as more senior officials arrive or to someone from outside the facility (e.g., fire chief). In those circumstances where the facility IC relinquishes command to an outside IC, the lines of authority must be clearly defined and procedures delineated in the facility’s ERP. Also, the facility must ensure, prior to any emergency response operation, that the outside IC will accept the responsibility.

Scenario B: The second scenario involves personnel who have been trained to the operations level (1910.120(q)(6)(ii)). Some of the smaller facilities have decided on training to a higher level to allow their members to be part of a team.

Question 1: Can refrigeration process operators act in accordance with the CPL in Scenario A, even though they are trained as operations level responders?

Answer: Yes. Process operators may perform duties within the scope of their responsibilities and training, even though they may also be trained to the first responder operations level. However, if the process operator takes action beyond that for which they are trained, and the action is comparable to the active role that a hazardous materials technician (offensive action within the hot zone or danger area) would take, such action would be a training violation under 1910.120(q)(6)(iii).

Question 2: Does the IC have to be physically present before defensive response steps can be taken?

Answer: See above.

Question 3: Can defensive action begin if the IC’s presence is imminent?

Answer: See above.

Question 4: Can the IC be a trained person from the facility, or must they be from the outside agency who will command the technician level responders?

Answer: See above.

Question 5: Are all operations level responders required to have training on their functions within an ICS?

Answer: Yes. All first responder operations level and above trained workers must function within the facility ICS.

Question 6: Are all operations level responders required to be trained to the IC level based on the criteria of 1910.120(q)(6)(v)?

Answer: No. First responder operations level workers are not required to be trained to the level of an IC. If the worker’s duties are expanded to include the functions and responsibilities of an IC, then the training requirements in 1910.120(q)(6)(v) must be provided to the worker.

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