In the event of a terrorist incident in which chemical, biological, radiological, or nuclear (CBRN) materials are released, are there are changes in an employer's responsibilities to protect employees under OSHA's hazardous waste operations and emergency response (HAZWOPER) regulations?

The simple answer is "no." From the OSHA/HAZWOPER perspective, a terrorist CBRN incident is no different than any incident wherein hazardous materials are released and must be cleaned up. However, OSHA's position is not meant to suggest that employers should conclude their response training for a CBRN event with an assessment that all HAZWOPER conditions can be met. Also, an employer may need to comply with additional requirements imposed by other federal agencies with authority under the National Response Plan (NRP).

Terrorist events are not considered foreseeable emergencies that OSHA expects an employer to reasonably anticipate in the workplace. Therefore, OSHA's specific authority in the immediate aftermath of a terrorist CBRN incident has not been spelled out in federal law and regulation. OSHA says that its role at this time would be guided by comprehensive national policies contained in the Federal Response Plan, the NRP, and other legal authorities.

Under the NRP, enforcement authority would be in the hands of a lead federal agency, which may or may not be OSHA. While the protections contained in HAZWOPER would almost certainly be appropriate, this does not mean they would be required at this time. OSHA explains: "While [HAZWOPER] provides important information on protecting workers, OSHA's task in conveying these protections through employer actions may most effectively be served following a terrorist incident through technical assistance rather than enforcement activity."

OSHA says that when actions under the NPR are terminated by the lead agency, or when the response period evolves into a clean-up period and there remain known exposures to hazardous materials, "OSHA can and will then take any action , including enforcement of [HAZWOPER]."

Above and beyond HAZWOPER, OSHA recommends that employers work with their local emergency planning committees if they wish to develop an emergency response plan to safeguard employers from terrorist incidents. Exercises that will help all involved in understanding their capabilities and limitations are also recommended.

OSHA discusses the application of HAZWOPER to terrorist CBRN incidents in a letter of interpretation available on BLR's website at http://www.blr.com/keyword. Type in em651cbrn when prompted.

[Source: Environmental Manager's Compliance Advisor. Subscribe today!]