MANDATORY HAZ-MAT EMERGENCY RESPONSE TRAINING: OSHA’s FINAL RULE
LAWS & LEGISLATION
Understand, comply, and deal with the ramifications of OSHA’s “Hazardous Waste Operations and Emergency Response” Final Rule (29 CFR 1910.120).
AT LONG LAST, following in the wake of numerous public hearings and challenges from opposition groups and after much speculation from those responsible for developing hazardous-materials training, the “Hazardous Waste Operations and Emergency Response” Final Rule has been issued by the Occupational Safety and Health Administration. The full scope of this statute encompasses a whole spectrum of issues, including engineering controls, cleanup operations, site controls, emergency response contingency plans, personal protective clothing, medical surveillance, and training requirements. OSHA’s current Interim Rule will be revoked when the Final Rule comes into effect on March 6, 1990.
This article will focus on the requirements imposed for training emergency response personnel and the likely ramifications resulting from the mandate. At first glance, the minimum hourly training requirements appear to be extremely lenient. However, when the expected skill and competency levels—on which this ruling really focuses—are more fully analyzed, the requirements seem more formidable. This perspective is especially true for those individuals who are expected to assume command of hazardous-materials incidents.
BACKGROUND
Federal mandates requiring specialized haz-mat training for employees are nothing new to the private sector of industry. In fact, training requirements for workers in treatment, storage, and disposal facilities were established as far back as 1976 by the Resource Conservation and Recovery Act (RCRA). These regulations—which were codified by 40 CFR sections 264.16 and 265.16— proliferated in the advent of the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CFRCLA) and were further expanded by the Hazard Communication Standard (HCS) established by OSHA in 1984. However, none of these regulations were directly applicable to personnel working in the emergency services until the Superfund Amendments and Reauthorization Act (SARA) in 1986.
Working under the auspices of SARA and direction from the Secretary of Labor, OSHA prepared and submitted the Interim Final Rule in August 1987, which was designed to provide protection for all employees, including all police officers, firefighters, and EMS personnel, until the details of the ruling could be finalized. As codified in 29 CFR 1910.120, the Interim Final Rule requires that all emergency response agencies conduct monthly training sessions for their personnel totaling at least 24 hours annually. It specifies that this training must be designed to cover specific subject areas, such as hazard analysis, safe operating procedures, use of personal protective equipment, and hazard recognition and identification. Provisions were also made under this ruling for the initial training of employees before they are actually permitted to engage in haz-mat response operations.
LAWS & LEGISLATION
OSHA’S FINAL RULE
THE INTERIM PERIOD
Before issuing the Final Rule, OSHA held several public hearings in Seattle and Washington. D.C. to give interested parties the opportunity to comment on the proposals. Controversy at these hearings was centered on arguments as to whether the Final Rule should be applied specifically to workers at hazardous-waste treatment, storage, and disposal facilities or to all employees participating in emergency response to the release of a hazardous substance. Despite many comments in opposition to OSHA’s involvement with emergency response to haz-mat incidents in general—and concerns expressed by other groups specifically opposed to the covering of emergency response to petroleum spills—there was overwhelming testimony given that supported OSHA’s continued involvement. Based on the public testimony and written comments, OSHA concluded that because of the high risk associated with emergency response to releases of hazardous substances and the frequent occurrences of these incidents, coverage of emergency responders is both appropriate and necessary.
On March 6, 1989, after completing the Office of Management and Budget’s review, the “Hazardous Waste Operations and Emergency Response” Final Rule was issued and published in the Federal Register. Effective March 6, 1990, the Final Rule supersedes the requirements previously imposed by the Interim Rule of August 1987. Those state-plan states who have taken the responsibility for enforcing health and safety laws under their own programs, such as California’s CAL-OSHA, have until September 6, 1989 to develop their own standards that must be at least as stringent as the federal requirements. From previous history, it can be anticipated that the regulations developed by these states will be even more formidable than the federal standard, especially in regard to the hourly requirement for training.
TRAINING REQUIREMENTS
Since the scope of the Final Rule has not been limited to operations at hazardous-waste sites but now includes emergency response to hazardous-materials incidents, fire departments and industrial fire brigades will be directly responsible to ensure that their personnel are adequately trained. The specific training requirements contained in 29 CFR 1910.120 are based on the duties and functions to be performed by the individual.
However, it is particularly important for training officers to realize that the competency levels expected of all new responders must be conveyed to them through training before they are permitted to take part in actual emergency operations. This requirement pretty much mandates that hazardous-materials response considerations be included in basic academy training or incorporated into the employee’s regular orientation and indoctrination period.
For the purpose of determining the actual training requirements, emergency responders are classified into five different levels of responsibility: 1) first responder awareness level, 2) first responder operations level, 3) hazardousmaterials technician, 4) hazardous-materials specialist, and 5) on-scene incident commander.
First Responder Awareness Level
Considered to be at the awareness level are personnel who, during the course of their employment, are likely to witness or discover a hazardous-substance release. Their only responsibility in such an event would be to take no further action beyond initiating an emergency response sequence by notifying the appropriate authorities. Typically, this encompasses workers in industrial plants whose only function in an emergency would be to report the release of a hazardous substance and to evacuate employees.
It is also construed from this definition that this classification would include all government employees whose scope of employment takes them to locations where hazardous materials are either used, manufactured, stored, or transported. This would certainly include state troopers, security guards, traffic wardens, fire inspectors, and public works employees. According to the Final Rule, first responders at the awareness level must have sufficient training or experience to be able to demonstrate competency in the following:
- an understanding of what hazardous materials are, the associated health risks, and the possible outcomes potentiated by a hazardous-materials incident;
- the ability to recognize the presence of hazardous materials in an emergency;
- the ability to identify hazardous materials, if possible, and utilize the DOT Emergency Response Guidebook;
- an understanding of the first responder’s role in the employer’s emergency response plan and the ability to realize the need for additional resources and make the appropriate notification.
First Responder Operations Level
Personnel at the operations level are those who are expected to respond to hazardous-substance releases as part of the initial response for purposes of protecting persons, property, or the environment. These individuals are considered the first line of defense and are only held responsible for establishing a defensive mode of operation by containing the release from a safe distance and protecting exposures. Simply stated, this level of expertise would be restricted to preliminary scene assessment, isolation of the danger area, denying entry to unnecessary personnel, localized evacuation, and requesting the appropriate assistance before performing any rescue or medical treatment. All firefighters and EMS personnel are included in this classification, as well as any law enforcement personnel or employees from private industry who, in an emergency, may actually become involved in site mitigation or rescue operations.
The Final Rule specifies that the employer must certify that all first responders at the operations level have received at least eight hours of specialized training or have had sufficient experience to demonstrate competency in all of the following areas, in addition to the requirements contained in the awareness level:
- knowledge of risk assessment techniques and an understanding of the basic hazardous-materials terms;
- knowledge in the selection and use of personal protected equipment as provided at the first responder level;
- knowledge of basic site control, containment, and decontamination procedures;
- knowledge of the relevant standard operating procedures required to control, mitigate, and terminate an incident.
(Note: This is the one area in the Final Rule that is the focal point of some confusion, as the hourly requirements for training and expected level of competency do not seem compatible. To actually achieve these behavioral skills would certainly take more than eight hours of training. Nevertheless, this eight-hour stipulation was included to accommodate the volunteer fire departments who couldn’t, due to logistical reasons, administer the necessary 24 hours of training. However, analysis of the language contained in the training requirements for on-scene incident commanders and the liabilities that could result from noncompliance make it extremely ad- visable for fire departments to administer 24 hours of training equal to first responder operations level competencies.)
Hazardous-Materials Technician
Personnel at this level are members of the specialized teams who assume a much more aggressive role in incident mitigation than first responders at the operations level. These individuals are expected to approach the point of a release in order to plug, patch, or otherwise stop the release. They are also expected to have the ability to operate with a higher level of personal protective clothing, utilize field survey instruments, and employ methods to identify unknown materials. Under the Final Rule, employees must certify that technicians have received at least 24 more hours of training at the first responder operations level to demonstrate their competency in the following additional areas:
- an understanding of the basic chemical and toxicological terminology and behavior patterns;
LAWS & LEGISLATION
OSHA’S FINAL RULE
- knowledge in the selection and use of personal protective clothing as provided to haz-mat response teams;
- the ability to perform advanced control and containment techniques and decontamination procedures;
- the ability to identify, classify, and verify known and unknown substances by using field survey instruments and specialized equipment.
- the ability to implement the employer’s emergency response plan, function within the Incident Command System, and understand incident termination procedures.
Hazardous-Materials Specialist
The duties of a specialist are considered to be parallel to those of technicians; however, they are expected to have more specific knowledge of the various hazardous substances. They are also expected to be able to function as the incident site liaison with various federal, state, and local government agencies that may be involved. Due to their coordination function, specialists are expected to have an in-depth understanding of the specific skills and competencies required of technicians. Employers must certify that specialists have had at least 24 more hours of training at the technician level to demonstrate competency in the following additional areas:
- an in-depth knowledge of risk-assessment techniques;
- a comprehensive knowledge of the state emergency response plan;
- the ability to develop site safety and control plans and actually determine the appropriate decontamination procedures.
On-Scene Incident Commander
The requirements imposed on this functional level definitely have major implications for the fire service—noncompliance with this particular section could produce serious ramifications for an organization in terms of liability and negligence of duty.
The classification of incident commander incorporates all personnel who may be expected to assume control of an incident. This classification would certainly include all chief officers, fire captains, and acting captains. Moreover, as the official job description of many line firefighters contains the stipulation that they may be required, on occasion, to take command of an emergency incident, this would appear to encompass virtually all emergency response personnel.
The consequences regarding noncompliance with this training mandate could be extremely severe for an organization. For instance, if the situation ever occurred where—due to mismanagement—an incident resulted in injury to personnel or damage to property or the environment, an emergency response organization could be found grossly negligent if it couldn’t satisfactorily prove that the incident commander had received adequate training. Viewed with this perspective in mind, the Final Rule would require the employer to certify that all potential commanders have at least 24 more hours of training at the first responder operations level to demonstrate competency in the following additional areas:
- ability to implement the employer’s Incident Command System;
- understand the employer’s emergency response plan;
- know how to implement the local and state emergency response plans and how to activate the federal regional response team;
- know the hazards and risks associated with employees working in specialized chemical protective clothing and understand the importance of decontamination procedures.
REQUIREMENTS FOR TRAINERS
The Final Rule also specifies that trainers who instruct in any of the listed subject areas need to have satisfactorily completed a training course for teaching the subjects they are expected to cover; or they should have had training in the actual subject area and hold the appropriate academic teaching credentials. Proficiency in the subject by itself is not an adequate qualification; instructors must also be certified to deliver the training.
REFRESHER TRAINING
Those employees who have received training in accordance with the regulations must also receive annual refresher training of sufficient content and duration in order for them to be able to maintain and demonstrate their competencies. OSHA has even suggested that incident critiques be used as a means of refresher training, provided that the participants are appraised of the acceptable or nonacceptable actions taken during the actual response.
The rationale behind this suggestion is that performance critiques are capable of providing employees with the experience they may need in order to perform in a more appropriate manner during their next emergency response. To be in compliance with the Final Rule, employers must record all training provided and document the methods used to measure performance competency.
CONSEQUENCES OF NONCOMPLIANCE
State-plan states that have elected to administer their own occupational safety and health programs will be responsible for enforcing regulations that are either identical to, or at least as effective as, this federal standard. Public sector employees in states without state plans will be protected under identical regulations promulgated and administered by the EPA. Fines for noncompliance can range up to S 1,000 per violation and S10,000 for violations demonstrating willful and deliberate disregard of this statute. These fines can double or even quadruple for repeat offenses.
The responses received from officials at federal OSHA and California’s CALOSHA to questions regarding enforcement indicate that the employer’s contingency plans and training records will be evaluated as to content and compliance with the Final Rule. However, even if the state or federal officials never actually pursue enforcement, noncompliance with this statute could generate some very real liabilities for an organization under the common law doctrines.
As previously mentioned, if an incident resulted in personal injury or damage to property or the environment — and if it could be proved that responders were not adequately trained —the organization could be found grossly negligent. Under common law doctrines, negligence is considered the breach of a recognized duty or failure to do what a reasonable and prudent person would do. The interpretation of what is considered reasonable and prudent is based on the individual’s level of training.
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OSHA’S FINAL RULE
As the standard of training expected of response personnel has now been firmly established by OSHA’s Final Rule, it would definitely benefit an organization to comply with these requirements. In terms of vicarious liability, noncompliance with the training requirements could also cause department heads to be held personally liable in the following areas: negligent entrustment, negligent failure to train, and negligent failure to supervise.
HOW TO ACHIEVE COMPLIANCE
The most efficient way of achieving compliance —at least for the first responder awareness and operations level—is for an organization to have certain key members trained and certified to deliver in-house training through accredited institutions or field training organizations. When qualified, these members could obtain the necessary study materials and deliver specialized hazardous-materials training internally. Once the basic training has been completed, the refresher training and more advanced training could be integrated into the department’s regular, ongoing training schedule.
To fully comply with the intent of the statute, instructors should place special emphasis on manual, hands-on training such as decontamination exercises and site-control operations requiring the use of personal protective clothing. Whenever possible, videotapes should be made to record the hands-on training sessions so they can be used for critiquing and improving performance and also for refresher training. Moreover, as the Final Rule mandates that spills and competencies must be objectively demonstrated, the resulting video footage can be used as a credible source of documenting the required performance.
Formalized training specializing in hazardous-materials response can be obtained from many sources, including most state fire academies, the National Fire Academy, the DOT Safety Institute, the Texas A&M Haz-Mat Training School, the Colorado Training Institute, the Nevada Haz-Mat Academy, and the California Specialized Training Institute (CSTI). Also, many private concerns, such as railroads, chemical companies, and LPG transporters, are willing to provide hands-on training for emergency service organizations free of charge. Union Pacific Railroad’s “Dome Mobile” and Dow Chemical’s hands-on first responder program are excellent examples of these services. The Chemical Manufacturers Association (CMA), under its Community Awareness and Emergency Response Program (CAER), also offers many training resources, including an excellent training videotape entitled “First on the Scene.”
What can’t be calculated are the benefits to community and environment from better handling of emergency incidents by better trained personnel.
If an organization doesn’t have the expertise or available resources to develop its own in-house training program, it can still take advantage of the qualified instructors and programs offered by many community colleges and regional occupational programs. In California, one such model program has been established by the Tri-County Hazardous Materials Advisory Council for Santa Cruz, Monterey, and San Benito counties. Under this program, 26 instructors were certified by the California Specialized Training Institute to deliver haz-mat first responder training to fire service, EMS, and law enforcement personnel. To date, operating under the sponsorship of the local ROP, which covers instructors’ salaries and the study materials, more than 1,200 emergency responders in the tri-country area have received 32 hours of specialized training. The only fee charged to participants in this program is S5.00 for CSTI certification.
Another model program has been developed by the Industrial Emergency Council of the San Francisco Bay Area, which has developed a 200-hour haz-mat technician course that is being delivered under the California State Apprenticeship Program. This particular program is currently being reviewed for adoption as a national standard for this level of expertise.
For more information regarding these two programs, contact Mike Thompson, President, Tri-County Hazardous Materials Advisory Council, P.O. Box 4031, Salinas, CA 93912-4031 and Jim O’Donnell, Industrial Emergency Council, 35 Arch Street, Redwood City, CA 94062.
BENEFITS
The benefits offered by meeting these training requirements not only include the elimination of citations and fines for noncompliance and reduce the employer’s liability under common law but should also yield returns in reduced accident rates and absenteeism. The Final Regulatory Analysis conducted for the Final Rule projects that this statute will prevent 20 cancer deaths per year and from 6 to 20 deaths per year from cardiovascular, neurological, renal, and liver disorders.
The FRA study also indicates that the new requirements could prevent 1,925 injuries per year involving 18,700 lost work days. What cannot be calculated are the benefits to the surrounding community and the environment from better handling of hazardous waste and emergency response incidents by more qualified and properly trained response personnel.
