• If all employees would be evacuated rather than help respond to an emergency release, employers may create an emergency action plan that includes the evacuation procedure in lieu of complying with the emergency response provisions.
• Incidental releases are those that don’t pose a significant danger to the employees working in the area or cleaning up the substance. Incidental releases are not covered by the HAZWOPER Standard.

When determining applicability, employers should consider if they have a partial exemption from the Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard, as it relates to releases.

Emergency action plan exemption

Employers who will evacuate all employees from the danger area, and who will not permit any employees to assist in handling the emergency, have the option of creating a written emergency action plan (EAP) in accordance with 29 CFR 1910.38 or 1926.35 in lieu of an emergency response plan (ERP) and the other provisions of paragraph (q) of 1910.120 or 1926.65. Employers with 10 or fewer employees can communicate the EAP orally rather than maintaining a written plan.

When used to meet the requirements of HAZWOPER, 29 CFR 1910.38 and 1926.35 require employers to also have an effective alarm system to alert employees to an emergency, evacuate all employees, and notify an emergency response team, such as a fire department that is trained in accordance with HAZWOPER.

Employers who will train some of their employees to respond to an emergency release must create an ERP. The ERP must include an EAP for the evacuation of all employees in the area who are not essential for emergency response.

Incidental release exemption

One of the operations that falls under the HAZWOPER Standard is the emergency response operation for releases of, or substantial threats of releases of, hazardous substances without regard to the location of the hazard. However, responding to incidental spills and releases is not considered an “emergency response.”

An understanding of the distinction between an incidental release of a hazardous substance and a release that requires an emergency response is fundamental to proper compliance with the provisions of the standard.

The definition of the term “incidental release” is found at 1910.120(a)(3) and 1926.65(a)(3) within the definition of “emergency response or responding to emergencies,” where it says, “Responses to incidental releases of hazardous substances where the substance can be absorbed, neutralized, or otherwise controlled at the time of 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.”

An incidental release is a release of a hazardous substance that does not pose a significant safety or health hazard to employees in the immediate vicinity or to the employees cleaning it up, nor does it have the potential to become an emergency within a short time frame. Incidental releases are limited in quantity, exposure potential, or toxicity and present minor safety or health hazards to employees in the immediate work area or those assigned to clean them up. An incidental spill poses an insignificant threat to health or safety and may be safely cleaned up by employees who are familiar with the hazards of the chemicals with which they are working.

On the flip side, an emergency release is defined as an occurrence that results, or is likely to result, in an uncontrolled release of a hazardous substance that requires a response effort by employees from outside the immediate release area or by other designated responders (e.g., mutual-aid groups, local fire departments, etc.). Emergency releases of hazardous substances pose a sufficient threat to health and safety that, by their very nature, require an emergency response regardless of the circumstances surrounding the release or the mitigating factors.

An emergency response includes, but is not limited to, the following situations:

• The response comes from outside the immediate release area.
• The release requires evacuation of employees in the area.
• The release poses, or has the potential to pose, conditions that are immediately dangerous to life or health (IDLH).
• The release poses a serious threat of fire or explosion (exceeds or has the potential to exceed the lower explosive limit or lower flammable limit).
• The release requires immediate attention because of imminent danger.
• The release may cause high levels of exposure to toxic substances.
• There is uncertainty about whether the employees in the work area can handle the severity of the hazard with the personal protective equipment (PPE) and other equipment that has been provided, and the exposure limit could easily be exceeded.
• The situation is unclear, or data are lacking on important factors.

The quantity of a substance spilled does not by itself determine if an incidental spill or emergency release has occurred. The properties of hazardous substances, such as toxicity, volatility, flammability, explosiveness, and corrosiveness, as well as the circumstances of the release itself, such as quantity, confined space considerations, and ventilation, will have an impact on what employees can handle safely and what procedures should be followed.

Additionally, there are other factors that may mitigate the hazards associated with a release and its remediation, such as the knowledge of the employee in the immediate work area, the response and PPE at hand, and the pre-established standard operating procedures for responding to releases of hazardous substances. There are some engineering control measures that will mitigate the release that employees can activate to assist them in controlling and stopping the release.

These considerations (properties of the hazardous substance, the circumstances of the release, and the mitigating factors in the work area) combine to define the distinction between incidental spills and releases that require an emergency response. The distinction is facility-specific and is a function of the emergency response plan.