When is an uncontrolled release of a hazardous substance not an uncontrolled release? When it doesn’t fall under the definition of uncontrolled in the HAZWOPER standard, according to the U.S. Court of Appeals for the Eleventh Circuit.
In a ruling upholding an Occupational Safety and Health Review Commission (OSHRC) decision, the court found the term uncontrolled, within the meaning of an OSHA standard, didn’t apply to just any kind of release.
Employees didn’t wear SCBA
Tampa Electric Company was cited by OSHA under 29 CFR 1910.120, the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, for an incident involving a response to a release of anhydrous ammonia.
The agency accused Tampa Electric of violating the HAZWOPER respiratory protection requirements because employees responded to the release – which was caused by an overpressurized system that vented the gas to prevent a burst pipe – without wearing a self-contained breathing apparatus (SCBA).
Tampa Electric argued the HAZWOPER standard didn’t apply to the incident because its employees were able to stop and control the release before there was a need to don SCBA. An administrative law judge with the OSHRC and the full commission agreed with Tampa Electric.
Answer lies within a different definition
On appeal, the Eleventh Circuit explained that the key regarding what defined an uncontrolled release was in the definition of the term emergency response, according to law firm Seyfarth Shaw.
The standard states:
“Emergency response … means a response effort by employees from outside the immediate release area or by other designated responders … 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 … are not considered to be emergency responses.”
The court found that the release of ammonia in this incident couldn’t be considered uncontrolled within the meaning of the emergency response definition’s first sentence. That means the HAZWOPER standard didn’t apply, so the court upheld the OSHRC decision and vacated the citation.
