During my 24-hr Tech course last week we had an interesting discussion about “the line” between an operator taking “emergency actions” and an operator being an “emergency responder”. This has to be a top question in all our HAZMAT courses at industrial facilities; however, OSHA has actually made the line very clear in their 2007 HAZWOPER CPL…
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 pre-evacuation 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) 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.
Emphasis above added by me.
Source: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=3671
Also in a 2003 LOI, OSHA stated the following about the line between an Operator taking defensive actions and when he/she would actually become an “emergency responder”…
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.
Source: https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=INTERPRETATIONS&p_id=24918