November 2, 1990

Mr. Dean G. Kratz
McGrath, North, Mullin & Kratz, P.C.
Suite 100
One Central Park Plaza
222 South Fifteenth Street
Omaha, Nebraska 68102

Dear Mr. Kratz:

This is in response to your August 7, 1990, letter where you indicated that 29 CFR 1910.120 does not apply because all example conditions referenced by your client can be "absorbed, neutralized or otherwise controlled at the time of the release by employees in the immediate area, or by maintenance personnel."

The position that we presented to Mr. Larry Huston in our July 25, 1990, letter continues to be our position. Nuisance spills, minor releases, etc., which do not require immediate attention (due to lack of danger to the employees) are not considered emergencies. The quantity of product spilled does not by itself determine if an incidental spill has occurred. Variables include the type of material spilled and the location of the spill. An ordinary spill that can be safely handled by workers is not an emergency. Such employees must have the proper equipment and training under the other OSHA standards, such as the Hazard Communication Standard (29 CFR 1910.1200). However, the examples described by Mr. Huston seem to indicate a potential for exposure of employees to hazardous substances and in amounts in excess of those that could be categorized as ordinary. Anhydrous ammonia, chlorine, and some agricultural chemicals are quite capable of creating emergency spills. I hope this clarifies the issue. If you have any other questions, please do not hesitate to contact us.

Hazardous materials spill cleanup training DVD's and other safety training materials are available at Safety Emporium.

Sincerely,

Patricia K. Clark Director
Directorate of Compliance Programs

August 7, 1990

Ms. Patricia K. Clark
Director Designate
Directorate of Compliance Programs
U. S. Department of Labor
Occupational Safety and Health Administration
Washington, D.C. 20210

Dear Ms. Clark:

I have been asked to respond to your letter of July 25 to Larry Huston wherein you advise him that Section (q) of 29 CFR 1910.120 applies to the ConAgra facilities where they (1) use anhydrous ammonia as a cooling agent, (2) manufacture, process, and store agricultural farm chemicals, and (3) use chlorine as a bleaching agent during the processing of flour for baking. Your conclusion in this regard ignores the following part of the definition of emergency response in Section (a)(3) of 1910.120:

Responses to incidental releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of the 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.

If you have any other thoughts or suggestions on this matter, please let me know.

Sincerely yours,

Dean G. Kratz