The United States Court of Appeals for the Eleventh Circuit issued a decision limiting the reach of the emergency response provisions of 29 C.F.R. § 1910.120, the Occupational Safety and Health Administration’s (OSHA) Hazardous Waste Operations and Emergency Response Standard—the so-called “HazWoper” (or “HAZWOPER”) standard. The decision is U.S. Department of Labor v. Tampa Electric Co.
Tampa Electric Co. uses ammonia in the operation of its electric power plant. The plant was designed and built so that if a supply pipe transporting ammonia becomes overpressurized, the ammonia is diverted to a sump, an underground water tank that absorbs and neutralizes the ammonia sent to it. Once the sump water becomes saturated with ammonia, and is thus unable to absorb more, the system releases the excess ammonia through the sump’s vent pipe and into the outside air. This system prevents the overpressure from rupturing the supply pipe and causing a massive spill of ammonia.
In 2017, the system detected an overpressure, and it worked as designed. When some excess ammonia was, as designed, released through the sump vent, an ammonia alarm sounded. Specially trained employees called “rovers” responded and helped put an end to the release. But because the rovers were not wearing self-contained breathing apparatuses (SCBAs), OSHA issued a citation alleging that Tampa Electric had violated the HazWoper provision requiring SCBAs during emergency responses.
Tampa Electric argued that the incident did not fall within the definition of an “emergency response.” The Occupational Safety and Health Review Commission (OSHRC), an independent tribunal, agreed and vacated OSHA’s citation, with one member dissenting. It noted that the first sentence of the definition of that term makes clear that it applied only to “uncontrolled” releases of hazardous chemicals and that the employer’s system controlled the amount of ammonia released. OSHA then appealed.
The Eleventh Circuit’s Holding
The Eleventh Circuit agreed with the OSHRC and rejected OSHA’s appeal. Like the OSHRC, it noted that the definition states that the term applies only to “uncontrolled” releases, and it agreed that this release was not uncontrolled. On the contrary, the release was controlled as designed by the employer’s system, which limited the amount of ammonia released into the air to prevent the overpressurized supply pipe from rupturing and releasing all its contents at once.
The decision indicates that, even if OSHA argues that a chemical release posed a potential hazard and was not merely “incidental,” the release may still not be covered by the HazWoper Standard if releases were controlled by plant safety systems. It would therefore appear that releases controlled by, for example, pressure relief valves or rupture disks that prevent massive releases would not be covered by the HazWoper Standard.
This does not mean that employees may respond to releases without protection. OSHA could still allege a violation of its respiratory protection standard if employees were to respond, for example, without any sort of respirator available. It also might cite employers for not using engineering controls prophylactically, such as by locating release points high enough to dilute releases, as is required by some OSHA standards.
The upshot of the decision is not that employees responding to controlled releases may go unprotected but that employers have greater discretion in selecting protective measures than the rigid emergency response provisions of the HazWoper Standard would give them, and that they may want to do what Tampa Electric did—have an engineering system in place to deal with controlled releases.
Ogletree Deakins will continue to monitor and report on developments with respect to OSHA and will post updates on the firm’s Workplace Safety and Health blog. Important information for employers is also available via the firm’s webinar and podcast programs.
Art Sapper represented Tampa Electric before the Eleventh Circuit.