Hazardous Materials "Standard of Care"

Chemicals and compounds have been known to exist for centuries. Emergency responders have dealt with them for many years and often referred to them as chemicals or by their common chemical names, if known, such as gasoline, propane, ammonium nitrate, chlorine and ammonia, to name a few.

Initially, most of the knowledge gained about chemical responses came from experience, some good and some bad. Incidents have occurred over the years that resulted in the deaths and injuries of emergency response personnel operating at the scenes of chemical incidents – Texas City, TX (ammonium nitrate); Crescent City, IL (propane); Waverly, TN (liquefied petroleum gas); Kingman, AZ (propane); Kansas City, MO (gasoline); and West, TX (ammonium nitrate).

On Dec. 3, 1984, Bhopal, India, experienced a release of approximately 40 metric tons of methyl isocyanate (MIC) at a Union Carbide pesticide plant. More than 100,000 people were injured and 3,000 people were killed, and many more have died from the long-term effects. Lessons learned from these and other responses have shown that the effects of chemical incidents can be catastrophic. There are, however, options for choosing operational approaches and emergency responders need competency to safely and effectively operate at the scene of a chemical incident.


Hazards defined

The modern-day coinage of the term “hazardous material” occurred in the mid-1970s, when the U.S. Department of Transportation (DOT) established a definition of hazardous material. DOT began the first major regulation of hazardous materials in transportation, including a hazard-class and placard and label system for identifying hazardous materials. As other federal agencies began developing regulations dealing with hazardous materials storage and use, different names were also created. The U.S. Occupational Safety and Health Administration (OSHA) and the U.S. Environmental Protection Agency (EPA) both refer to hazardous materials as “hazardous substances.” The EPA also regulates chemicals that no longer have a commercial value.

When chemicals are no longer useful for their intended purpose, they become hazardous waste. Hazardous waste is regulated in the workplaces where it is generated, during transportation to a disposal site and when it is disposed of. For example, gasoline, when transported, is a hazardous material regulated by the DOT. When a tanker offloads gasoline into an underground storage tank at a gasoline station, it becomes a hazardous substance regulated by the EPA and OSHA. If any gasoline is spilled on the ground during the offloading, it would become hazardous waste, regulated by OSHA, EPA and DOT. There are different names for the same gasoline, depending on whether it was transported, in fixed storage or spilled. For the purposes of this column, we will use the term “hazardous material” interchangeably with all other agency terminology.

After the Bhopal incident, the U.S. Congress passed the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA), also known as the Superfund Amendments and Reauthorization Act (SARA). Congress was concerned that such an incident could happen here. Additionally, Congress was also concerned about the level of preparedness and training available to deal with an incident of the magnitude of Bhopal. With the passage of this important legislation, the federal government for the first time mandated levels of training and competency for emergency responders to hazardous materials releases.


How the system works

Laws are enacted by a legislative body, such as Congress, state legislatures, county governing boards and local city councils and boards. These legislative bodies have no means to enforce the laws they pass. If laws must be enforced, that task is passed on to an enforcement or regulatory agency that forms procedures or regulations to implement the law. On the federal level, laws that concern hazardous materials are generally passed on to OSHA, EPA or DOT.

When EPCRA was passed by Congress, OSHA and EPA were tasked with developing regulations to implement the requirements of the act. OSHA 1910:120 and EPA 40 CFR 311 are identical regulations dictated by federal law that apply to emergency responders that may respond to hazmat incidents. In simple terms, the regulations determine what emergency responders are allowed to do and what they are not. Some states have a delegated authority to enforce OSHA regulations. In those states, hazmat regulations are enforced by the state OSHA. In states that do not have a state OSHA, the EPA regulations are enforced. So, whether responders are in an OSHA state or non-OSHA state, they are covered by the federal regulations for hazmat responses.

National Fire Protection Association (NFPA) standards, while they are not laws, are consensus standards developed by committees that determine what is appropriate for each level of hazmat response and what is not. A jurisdiction may implement NFPA standards, which makes them required in that jurisdiction, much like a regulation. While NFPA standards are not law, they are the recognized way of addressing issues that face the fire service and other organizations today, including hazmat responses.

Hazmat emergency responders may include fire, police, EMS, public works industrial personnel and other public and private workers. OSHA and EPA regulations governing training requirements for hazmat responses establish five levels of competency for hazardous materials emergency responders. According to OSHA 1810.120, “Competent” means possessing the skills, knowledge, experience and judgment to perform assigned tasks or activities satisfactorily as determined by the employer. All responders must be trained specifically for the level at which they are expected to perform by their employers. Employers are charged with the responsibility of determining the level of response, what training is required for that level and developing standard operating procedures (SOPs) or standard operating guidelines (SOGs) for hazmat responses in their jurisdictions.

There are five levels of hazardous materials responder training: awareness, operations, technician, specialist and incident commander. These five levels are also used in the NFPA 472 Standard, Competence of Responders to Hazardous Materials/Weapons of Mass Destruction Incidents. The NFPA standard provides much more detail than does OSHA 1910.120. Additional competencies for emergency medical personnel are outlined in NFPA 473. Each level of response has associated with it certain competencies and limitations placed upon emergency responders for their safety.

Along with the legislation and standards mentioned above comes an implied “Standard of Care” associated with responses to hazardous materials incidents. A Standard of Care is the level of competence anticipated or mandated during the performance of a service or duty. A Standard of Care is not static, but is constantly changing, influenced by laws, regulations, consensus standards, knowledge and experience. Standards of Care are not new to emergency response personnel. EMS has been governed by a Standard of Care since its inception. The EMS Standard of Care dictates what EMS first responders, emergency medical technicians and paramedics are allowed to do and what they are not allowed to do.

Hazmat response personnel have limitations on what functions they can perform at the scene of a hazardous materials incident. Limitations are based upon level of knowledge, experience, training and the availability of personal protective equipment (PPE) and supplies. Awareness, operations, technician, specialist and incident command personnel may also have limitations, based upon the jurisdiction with which they belong.

Recognition of the existence of hazardous materials is the single-most important task any emergency responder can do upon arrival at an incident scene. Generally, hazardous materials scenes are divided into zones for the safety of personnel. These may include “cold,” “warm” and “hot” zones. The “hot” zone is where the hazardous materials are located and the greatest danger exists for response personnel. The “warm” zone is where decontamination takes place. The “cold” zone is everywhere else and should not present an immediate danger to personnel.

According to OSHA, awareness-level personnel are those who, in the course of their normal duties, could encounter an emergency involving hazardous materials and who are expected to recognize the presence of the hazardous materials, protect themselves, call for trained personnel and secure the area. When organized emergency response organizations respond to a hazmat incident, awareness-level personnel are those who first arrive at the scene of the incident. Their responsibilities and limitations are usually recognition, notification, isolation and protection.

Operations-level personnel are those who respond to a hazmat incident for the purpose of protecting nearby persons, the environment or property from the effects of the release. Operations-level personnel are required to have awareness training as well as an additional eight hours of operations-level training. Awareness- and operations-level personnel do not enter the “hot” zone.

Technician-level responders are members of organized hazmat response teams. They may enter the “hot” zone and work in close proximity to hazardous materials if they have the proper chemical protective clothing, respiratory protection, mitigation equipment and training. Specialist personnel are those who are trained to the technician level and have additional training in an area of expertise such as rail cars or particular chemicals.

The incident-commander level requires training to a minimum of the awareness and operations levels (minimum 24 hours) and competencies outlined in OSHA 1910.120 and NFPA 472 for that position. NFPA 472 identifies the incident commander as the person responsible for all incident activities, including the development of strategies and tactics and the ordering and release of resources. OSHA philosophy on dealing with hazardous materials is actually quite simple – they want employers to train and equip their employees for the jobs they are called upon to do.

Some response organizations, because of reduced staffing levels, use operations-level personnel to conduct decontamination. These personnel are not technicians, but rather are trained and equipped operations-level personnel. This is an acceptable practice because operations-level personnel are trained and equipped to do decontamination.


Legal ramifications

In today’s litigious society, even emergency responders and organizations can be sued for not following a Standard of Care. Several legal terms should be known by responders and response organizations.

The first term is liability, which is defined as owing a responsibility or duty to act. All emergency responders have a responsibility or duty to act when called to the scene of an incident involving hazardous materials. Those responsibilities should be outlined in the organization’s SOPs. The only way to eliminate that liability would be to quit being an emergency responder.

If response personnel operate outside the organization’s SOPs or the hazardous materials Standard of Care, they may be determined to be negligent in the performance of their duties. Negligence is the performance outside of the accepted Standard of Care. Negligence can be the fault of the responder, officer, organization or employer. It is possible to be negligent without knowing it. However, I am sure you have heard the saying, “Ignorance of the law is no excuse.”

Gross negligence occurs when a person, officer, organization or employer willfully operates outside of the Standard of Care; for example, if the organization/employer does not provide the required level of training for employees. More importantly, response personnel may be injured or killed if not following local SOPs or the hazardous materials Standard of Care. Hazmat response organizations, officers and personnel should be aware of and implement the requirements of OSHA 1910.120 and NFPA Standards 472 and 473 in their operations.