1. Emergency Support Function (ESF) #3 PUBLIC WORKS & ENGINEERING. The Department of Defense, Corps of Engineers, is the primary agency. The purpose of ESF #3 is to: "Provide technical personnel to assess threat to public health and safety. Provide supplemental assistance in debris removal or demolition activities performed by the ESF." OSHA will be the contact for this support. The Director of the Office of Construction and Engineering, upon request from the appropriate RA, will provide technical assistance in support of ESF #3. MSHA will be the contact for Urban Search and Rescue related missions.

2. ESF #10 Hazardous Materials and Oil. EPA is the primary agency. OSHA's role is basically the same as under the NCP. ESF #10 provides for a coordinated response to releases by placing the mechanism of the NCP within a coordinated structure which assures the most efficient and effective use of Federal resources. It includes the appropriate response actions to prevent, minimize, or mitigate a threat to public health, welfare, or the environment.

DTS is drafting an Instruction to set forth procedures for OSHA to follow when the FRP is implemented. The DTS plan seeks to streamline OSHA activities to effectively utilize available resources while recognizing that emergency operations often have implications for public relations.

HAZARDOUS WASTE OPERATIONS and EMERGENCY RESPONSE "HAZWOPER"

OSHA Instruction CPL 2-2.59 establishes policies and procedures to ensure uniform enforcement of "HAZWOPER". Section H(9)(c) of the Instruction provides that: "During an event that is covered by the NCP, OSHA has a responsibility (and has authority) to be both an enforcer of its regulations and a provider of technical advice, and assistance to the Federal On-Scene Coordinator (OSC) One method of performing the two functions would be to have separate OSHA teams for enforcement and technical assistance."

According to Section K(3) of the Instruction, Regional and Area Offices shall provide training exercises and drills for CSHOs who will be participating in inspections or providing technical assistance during emergency incidents. This is crucial for the OSHA offices who expect to take part in NCP responses. OSHA's presence and acceptance during emergency response operations covered by the NCP will be greatly enhanced if other agencies are aware of and can plan for OSHA's role during an emergency response.

SPECIFIC QUESTIONS FROM THE US COAST GUARD'S LETTER

QUESTION 1.    What is OSHA's role during a Federal response to a major environmental incident?

ANSWER:    As noted above, OSHA has both an advisory role and an enforcement role during a Federal response to an environmental incident. OSHA's role is defined by the NCP, the FRP, and various Instructions and policies. In general, the advisory role precedes the enforcement role. The sequential nature of the dual roles are discussed in OSHA Instruction CPL 2.94 "OSHA Response to Significant Events of Potentially Catastrophic Consequence." This Instruction provides guidelines and policies to assist OSHA's field personnel in the investigation of catastrophic events. Specifically:

Section (F)(3) "Background" provides that "it has been OSHA's policy not to engage in activities that would have the effect of impeding the emergency response." The rationale is that if the emergency itself poses the greatest risk to health and safety, the emergency response activities should have priority over enforcement activities.

Section (G)(3)(a) "Initial On-Site Investigation Activities" provides that upon arrival at the incident scene, the OSHA representative shall establish contact with the employer and the On- scene Incident Coordinator as soon as possible. The OSHA representative should explain what the OSHA role is and what it is not. For incidents subject to the NCP, the OSHA representative will contact the Federal OSC and provide advice as appropriate.

The Instruction, therefore, indicates that OSHA's enforcement role begins when the emergency response phase ends. However, there are often no hard and fast rules on when OSHA roles should change from advisory to enforcement. The issue needs to be judged by the Regional Administrator on a case by case basis applying the guidelines and policies suggested herein, along with the rule of reason.

QUESTION 2.    Will local OSHA personnel be able to act as an advisor to the Federal OSC concerning safety related matters during a major environmental response?

ANSWER:    Yes, OSHA personnel will provide advice as out lined in Section G of Instruction CPL 2.94. For instance, upon receipt of information from any reliable source that a significant event has occur red, the Area Director shall dispatch a CSHO and/or supervisor to the site to obtain information and establish an agency presence. The OSHA representative will contact the Federal OSC and provide advice as appropriate. The importance of OSHA's coordination and cooperation with these authorities during the initial phases of OSHA's on-site activity is emphasized in Section (G)(5)(a) of the Instruction.

QUESTION 3.    More specifically, is OSHA willing to assist the Federal OSC by committing local OSHA resources to perform the duties of the site safety officer during a major environmental response as outlined in the "Occupational Safety and Health Guidance Manual for Hazardous Waste Site Activities.(1)' The Following duties are of particular interests:

* Coordinates safety and health program.
* Monitors on site hazards and conditions.
* Participates in the preparation of the Site Safety Plan.
* Conducts periodic inspections to determine if the Site Safety plan is being followed.

ANSWER:    OSHA's role during emergency response operations is limited by the NCP, the FRP, OSHA regulations and Instructions, as well as by the availability of resources and other practical considerations. The duties of the site safety officer, as listed above, go substantially beyond OSHA's traditional role of providing advice. Furthermore, the duties of participating in the preparation of site safety plans and periodically reviewing or maintaining the plans could be construed as endorsing or approving such plans. If OSHA's review actions were perceived as approving the site safety plans, our enforcement duties would be much more difficult. In addition, creating new responsibilities for OSHA that are not compatible with OSHA's enforcement duties would create confusion.

Therefore, OSHA would not commit its limited resources to performing the tasks listed in Question #3, but we could assist others in performing such work within the context of our limited resources.

Federal emergency response operations involve numerous agencies, with numerous laws, regulations, responsibilities and policies. To help sort out this complex situation, I have asked that several charts be developed to clarify OSHA's roles and responsibilities within the National Response System. I will, of course, share this information with you as soon as it is finalized.

If you have any questions about my comments please contact me at (202) 219-7031 or have your staff contact Ken Hunt on (202) 219-7047.