The OSHA/EPA Final Rules: A Guide to Worker Protection Standards for Hazardous Waste and Emergency Response Operations

E. Lynn Grayson and Joseph F. Madonia

Editors' Summary: In 1986, the Superfund Amendments and Reauthorization Act (SARA) responded to public pressure to clean up hazardous waste sites and to protect surrounding communities from exposure to hazardous chemicals. In 1989, the Occupational Safety and Health Administration (OSHA) and the United States Environmental Protection Agency complied with SARA statutory directives to write standards to protect private and government workers who perform hazardous waste remedial work. Workers subjected to even a "reasonable possibility" of chemical safety or health hazards are within the reach of the 1989 OSHA/EPA worker protection standards. The broad scope of the OSHA/EPA standards, effective March 1990, will have a substantial impact on preventing workplace accidents and deaths from hazardous chemical exposure.

In this Article, the authors outline the emergency planning, training, and response requirements of the OSHA/EPA worker protection standards and suggest that regulated entities adopt an efficient and cost-effective compliance strategy. They describe the costs and benefits, observing that compliance, though economically feasible, may require employers to change their current practices and factor new expenses into the overall cost of doing business.

Ms. Grayson is Chief Legal Counsel of the Illinois Emergency Services and Disaster Agency. Mr. Madonia is an associate with the Chicago, Illinois, law firm Wildman, Harrold, Allen & Dixon.

[20 ELR 10143]

The Superfund Amendments and Reauthorization Act of 1986 (SARA)¹ greatly intensified the health-related scrutiny of hazardous waste operations, including remedial work at Superfund sites performed under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA).² SARA substantially amended CERCLA's hazardous waste cleanup program and created a separate act commonly known as Title III, or the Emergency Planning and Community Right-to-Know Act (EPCRA),³ impacting federal, state, and local governments, and the private regulated community. Driving the enactment of SARA were concerns over the long-term health risks associated with Superfund sites and the potential dangers of acute exposure to hazardous materials in communities and workplaces. SARA responded to these concerns by requiring the Agency for Toxic Substances and Disease Registry to make health assessments at every site on CERCLA's National Priorities List⁴ and by establishing [20 ELR 10144] Title III to improve state and local preparedness for environmental and public health emergencies.

SARA also addressed the specific health concern of worker protection. Section 126 of Title I of SARA required the Occupation Safety and Health Administration (OSHA), under the Secretary of Labor, to promulgate worker protection standards by October 17, 1987, for employees engaged in hazardous waste operations.⁵ Section 126(b) mandated that the new standards must include the following worker protection measures: site analysis, training, medical surveillance, protective equipment, engineering controls, maximum exposure limits, an informational program, handling, a new technology program, decontamination procedures, and emergency response. Section 126(f) further required the Environmental Protection Agency (EPA) Administrator to promulgate worker protection standards for state and local government employees in states without worker protection plans approved by OSHA.⁶ On March 6, 1989, OSHA complied with the § 126 statutory directive and promulgated final worker protection rules for hazardous waste operations and emergency response.⁷ On June 23, 1989, EPA complied with the corresponding § 126(f) statutory directive for state and local government employees in states without OSHA-approved plans and adopted worker protection standards identical to OSHA's.⁸

In effect, one set of worker protection regulations now exists. This Article discusses those regulations, applicable to private and federal, state, and local government employees. It examines the OSHA/EPA rules in detail, focusing on the training and planning requirements, and analyzes the anticipated costs and benefits of compliance.

Hazardous Waste Operations

Scope

Any business that subjects its employees to even a "reasonable possibility" of exposure to chemical safety or health hazards falls within the scope of the OSHA worker protection standards.⁹ This broad scope requires businesses that generate or handle chemical wastes, as well as many environmental engineering and consulting firms, to chart their course through the maze of the OSHA worker protection requirements.

An employer's first step in analyzing the impact of the OSHA/EPA regulations is to determine which regulations apply, a relatively straightforward determination. Businesses engaged in either government-required or voluntary cleanup operations at uncontrolled hazardous waste sites¹⁰ and businesses engaged in corrective actions under the Resource Conservation and Recovery Act (RCRA)¹¹ are regulated, with few exceptions, by PP(a) through (o) of § 1910.120.¹² All hazardous waste operations conducted at RCRA-regulated treatment, storage, and disposal (TSD) facilities are regulated by P(p) of § 1910.120¹³ and emergency response operations for actual or threatened releases of hazardous substances¹⁴ at any location are regulated by P(q) of § 1910.120.¹⁵ Equally important is the requirement that employers comply with the general industry and construction safety and health standards at 29 C.F.R. parts 1910 and 1926.¹⁶ If these standards conflict or overlap with the OSHA standards, the more restrictive provisions apply.¹⁷

The employer's next step is to determine whether any of the standards' few exemptions apply. For example, an employer whose operation demonstrably does not involve even a reasonable possibility for employee exposure to chemical health and safety hazards is exempt from the OSHA regulations, even if that employer's operation would otherwise fall within the scope of the regulations. The OSHA standards also exempt small-quantity hazardous waste generators¹⁸ and large-quantity generators that store their hazardous wastes for less than 90 days, if they do not have in-house emergency response teams that respond to actual or threatened releases of hazardous substances.¹⁹

[20 ELR 10145]

Two other exemptions may apply to employers at TSD facilities where employee training programs are required under P(p)(8) of § 1910.120.²⁰ First, an employer need not implement an employee training program if the work force is divided between a sufficient number of employees who receive the required emergency training and all other employees who have sufficient awareness training to know that they should summon the fully trained employees rather than attempt to control emergencies themselves.²¹ Second, an employer need not implement an employee training program if advance arrangements are made for an outside fully trained emergency response team to respond to on-site emergencies, and if all employees who may initially discover emergencies are instructed to call the outside emergency response team for assistance.²²

In the preamble to the proposed rule, OSHA listed several additional exemptions involving TSD facilities. Comments did not support the exemptions, however, and OSHA believed they were inappropriate.²³ The most controversial exemption was for TSD facilities that operate under a RCRA § 3006 EPA-state hazardous waste program.²⁴ Commentators stated that OSHA jurisdiction should not be impacted by EPA-state agreements. OSHA agreed. Thus, OSHA's jurisdiction may be delegated only to states with which OSHA has finalized formal agreements.²⁵ EPA jurisdictions under § 126(f) of SARA may make use of EPA-state RCRA plans.²⁶

Standards for TSD Facilities

The requirements at 29 C.F.R. § 1910.120(p) (Pp) apply to operations conducted at many RCRA TSD facilities. Even though the P(p) regulations apply only to operations at TSD facilities, they are the most widely applicable of the new OSHA standards. Thousands of businesses are regulated by RCRA as TSD facilities, and most are required to comply with P(p). Businesses that fall within this scope are required to develop and implement the following programs: safety and health,²⁷ hazard communication,²⁸ medical surveillance,²⁹ decontamination,³⁰ new technology,³¹ material handling,³² employee training,³³ and emergency response.³⁴

The most comprehensive P(p) requirement is the health and safety program described in P(p)(1) of § 1910.120. The health and safety program must identify, evaluate, and propose controls for chemical workplace hazards, including an analysis of on-site engineering controls, maximum chemical exposure limits, and hazardous waste handling procedures.³⁵ This requirement enables employers to systematically identify site hazards and employee responses to those hazards.³⁶

Employers should realize that many of the other programs listed in P(p) must be included in the general safety and health program. Employers regulated by P(p) are not, however, required to generate separate documents for each different program. Instead, the health and safety program itself should address the emergency response program required by P(p)(8), the new technology program required by P(p)(5), the hazard communication program required by P(p)(2), and the employee training programs required by P(p)(7).

Employers also should recognize that many of the P(p) requirements incorporate by reference other provisions of § 1910.120. For example, the specifics of the P(p)(5) new technology program, to be included in the site safety and health program, are in P(o) of § 1910.120. Thus, even though employers regulated by P(p) may believe they are exempt from other paragraphs of § 1910.120 requirements, that belief is false to the extent that P(p) incorporates other § 1910.120 provisions. This Article addresses the confusion caused by these and many other overlapping requirements in the OSHA/EPA worker protection standards. The following discussion highlights the six most important P(p) program requirements.

[] Medical surveillance program. The details of the medical surveillance program required by P(p) are set forth in P(f) of § 1910.120. Employers must implement a medical surveillance program for the following employee categories: all employees who may be exposed to health hazards or hazardous substances at or above the exposure levels for such substances, regardless of respirator use, for 30 or more days per year; all employees who wear a respirator for 30 or more days per year; all employees who are injured due to overexposure to an emergency incident involving hazardous substances or health hazards; and members of hazardous materials (HAZMAT) teams.³⁷

The frequency of required medical examinations and consultations for these employee categories varies according to each classification. Medical examinations must include a medical and work history with special emphasis on symptoms associated with hazardous substance exposure and on determining each employee's general "fitness for duty." A fitness for duty determination includes an assessment of the employee's ability to wear any required personal protective equipment under conditions that might occur at the work site.³⁸

All examinations must be conducted without cost to the [20 ELR 10146] employee, and the employer must maintain accurate records of such examinations for at least 30 years except as specified in 29 C.F.R. § 1910.20(d)(ii).³⁹ Detailed guidelines for the specific medical examination procedures are set forth in the Occupational Safety and Health Guidance Manual for Hazardous Waste Site Activities.⁴⁰

Because employee exposures vary due to work schedules and other factors, annual physicals may not always be medically appropriate. Accordingly, the final OSHA/EPA rule permits employees' physicians to increase or to reduce to not less than bi-annually the frequency of employee examinations, as medically necessary.⁴¹

[] Decontamination program. The general guidelines for the required decontamination program are set forth in P(k) of § 1910.120.⁴² "Decontamination" means "the removal of hazardous substances from employees and their equipment to the extent necessary to preclude the occurrence of foreseeable adverse health effects."⁴³ Since the decontamination program requirements are much less specific than other OSHA/EPA requirements, the definition of "decontamination" is probably the best guidance for an employer in formulating such a program. Once the program is developed, P(k) requires employers to communicate it to employees and implement it before any employees or equipment are exposed to hazardous substances.⁴⁴

[] New technology program. The new technology program requirement is designed to facilitate the introduction of new and innovative equipment into the workplace.⁴⁵ The underlying purpose is to provide access for employees who experience hazardous substance exposure to the most sophisticated and advanced equipment available for the protection of their health and safety.

The new technology provision simply requires implementing a formal program for evaluating new technologies. Whether to adopt a particular technology is a decision left to the judgment of the individual employer. The employer's formal program should include a method of identifying relevant new technologies and a method of evaluating such technologies in terms of their anticipated effectiveness in enhancing employee protection. Information and data from manufacturers or suppliers may form the basis for the evaluation. Employers must make new technology evaluations available for OSHA inspection upon request.⁴⁶ Thus, any decision not to adopt certain technologies should be well documented and justifiable in light of all available information.

[] Material handling program. Paragraph (p)(6) requires employers to develop and implement a material handling program for employees who handle drums or containers in the workplace. The specific requirements of the material handling program are set forth in § 1910.120 at PP(j)(1)(ii)(viii) and (xi), as well as PP(j)(3) and (j)(8). General requirements include drum inspection, identification, labeling, and maintenance; employee awareness and notification of potential hazards; and spill prevention and containment programs.⁴⁷

In addition, employers must select, position, and operate "material handling equipment" used to transfer drums and containers to minimize the chance for accidental ignition of vapors released from ruptured drums or containers.⁴⁸ Employers must also implement shipping and transport safeguards toinclude identifying and classifying drums and containers prior to shipment, minimizing the number of drum or container staging areas, providing adequate access routes for staging areas, and thoroughly characterizing and identifying hazardous wastes before bulking.⁴⁹

[] Employee training program. The employee training program required by P(p)(7) of § 1910.120 is a relatively simple and straightforward component of the overall safety and health program. The purpose of the training requirement is "to enable employees to perform their assigned duties and functions in a safe and healthful manner so as not to endanger themselves or other employees."⁵⁰ To that end, P(p)(7) requires an initial 24-hour training course for new employees and an annual eight-hour refresher course. If an employer can demonstrate that an employee's previous work experience or training is equivalent to the initial 24-hour training course, the employee is exempt from the initial 24-hour course.⁵¹ The annual refresher course is required regardless of an employee's prior experience or training.

[] Emergency planning and training program. Finally, P(p)(8) requires employers to implement emergency response planning and training. However, employers that will evacuate their employees from the workplace when an emergency occurs, and will not permit any employees to assist in handling emergencies, are exempt from the requirements of P(p)(8) if they have an emergency action plan.⁵²

An employer developing an emergency response program for inclusion in the general site safety and health program must address each of the issues set forth in P(p)(8) of § 1910.120.⁵³ The employer's responsibilities are not fulfilled, however, merely by developing the emergency response program. The employer must also determine whether the program is compatible and consistent with similar plans of local, state, and federal emergency response agencies, and the employees must regularly [20 ELR 10147] rehearse the program.⁵⁴ In addition, employers must install an employee alarm system to notify employees of an emergency situation, stop work if necessary, lower background noise to speed communication, and begin the emergency procedures set forth in the program.⁵⁵

The remaining emergency response training requirements help employers effectively implement their preplanned emergency response programs in cases where employees will conduct response operations. Regulated employers must train nonexempt employee emergency response teams before those teams respond to real emergencies.⁵⁶ Typical training includes instruction in the elements of the emergency response plan, standard operating procedures, personal protective equipment, and procedures for handling emergency incidents. In addition, emergency response employees must be trained to minimize the risks of chemical hazards, to use control equipment safely, to respond appropriately to overexposure from chemical hazards, and to recognize symptoms resulting from overexposure.⁵⁷

Regulated employers must demonstrate compliance with P(p)(8) requirements by certifying that each covered employee has attended and successfully completed the required training programs or by annually certifying each covered employee's competency.⁵⁸ Paragraph (p)(8) further requires that each covered employee be trained to a "level of competence in the recognition of health and safety hazards to protect themselves and other employees."⁵⁹

Standards for Hazardous Substance Cleanups and RCRA Corrective Actions

The standards set forth in PP(b) through (o) of § 1910.120 apply only in RCRA corrective actions and to government-required and voluntary cleanup operations at uncontrolled hazardous waste sites.⁶⁰ This section of the Article discusses the § 1910.120 standards that require employers to address the following issues: safety and health plans, initial site characterization and hazard analysis, site control programs, employee training, engineering controls, work practices, personal protective equipment, air monitoring, informational programs, and emergency response plans.

— Safety and health program. Many government-required or voluntary cleanup actions and RCRA corrective actions already include rigorous safety and health plans, which are set forth in consent decrees or administrative orders. Accordingly, safety and health plans that satisfy federal, state, or local regulations usually satisfy the OSHA/EPA requirements, with slight modification. Employers need not create multiple plans to meet the worker protection standards.⁶¹

Safety and health programs are written documents that identify, evaluate, and control safety and health hazards and provide for emergency response capabilities for hazardous waste operations. The employer's general safety and health program must incorporate an organizational structure, a comprehensive work plan, a site-specific safety and health plan, the safety and health training program, the medical surveillance program, the employer's standard operating procedures, and any necessary interface between the general program and site-specific activities.⁶² Like the P(p) safety and health program for TSD facilities, the P(b) safety and health program incorporates other required programs into a single document, thereby minimizing the need for duplicate paperwork.

Employers must make the general safety and health program available to hazardous waste contractors and subcontractors, workers, employee representatives, and government agencies with regulatory authority over the site. Additionally, employers must inform contractors or subcontractors who work at the site of the emergency response procedures and any known fire, explosion, health, or safety hazards of the operation.⁶³

The general safety and health program incorporates the site-specific safety and health plan, which is kept on site and includes the following elements:

(a) A safety and health risk or hazard analysis for each site task and operation found in the work plan;

(b) Employee training assignments;

(d) Medical surveillance requirements;

(e) Frequency and types of air monitoring and environmental sampling techniques;

(f) Site control measures for hazardous substance exposure;

(g) Decontamination procedures;

(h) An emergency response plan;

(i) Confined space entry procedures; and

(j) A spill containment program.⁶⁴

Overlap between the site-specific safety and health plan requirements and those of the general safety and health program may lead to confusion. For example, a medical surveillance program is a required element of both the general health and safety program and the site-specific plan. It is safe to assume, however, that the overlapping requirements do not create the need to necessitate multiple plans or programs. The regulations are drafted to encourage employers to include as much required information as possible within a single document. This approach eases both the industry's compliance burden and the government's compliance monitoring task.

— Employee training program. One element of the general safety and health program is the employee training program, including both initial and refresher training requirements. All employees and supervisors who are potentially exposed to hazardous substances, health hazards, or safety [20 ELR 10148] hazards must receive the required level of training prescribed for their job assignments before engaging in hazardous waste operations or field activities.⁶⁵ Training occurs at three levels:

"Level one" employees are general site workers engaged in hazardous substance removal or other activities that expose or potentially expose workers to hazardous substances and health hazards. Level one employees must receive a minimum of 40 hours of off-site instruction and a minimum of three days field experience directly under a trained, experienced supervisor.⁶⁶

"Level two" employees are occasional site workers who are unlikely to be exposed above permissible limits. They must receive 24 hours of off-site instruction and a minimum of one day field experience directly under a trained, experienced supervisor.⁶⁷

"Level three" employees are regulator site workers in areas where potential exposures are under permissible limits and respirators are not necessary. These employees must receive a minimum of 24 hours of off-site instruction and a minimum of one day actual field experience directly under a trained, experienced supervisor.⁶⁸

Level two and three on-site employee supervisors are directly responsible for employees engaged in hazardous waste operations. Supervisors must receive 40 hours of initial training, three days of supervised field experience, and at least eight additional hours of specialized training at the time of job assignment.⁶⁹ The training must cover such topics as the employer's safety and health program, the employee training program, personal protective equipment, spill containment, and health hazard monitoring techniques.⁷⁰

Trainers must have satisfactorily completed an applicable training program or have the necessary academic credentials and instructional experience.⁷¹ Upon successful completion of a training program, employees and supervisors receive a written certificate. Noncertified employees are prohibited from engaging in hazardous waste operations.⁷²

— Initial site entry and control precautions. Entering an uncontrolled hazardous waste site for the first time is potentially the most dangerous step of many cleanup operations. The threat of unseen and unknown chemical hazards makes it imperative for employers that expose their workers to such situations to implement the best possible safety precautions. To that end, the OSHA/EPA regulations require employers to conduct an extensive risk assessment before sending employees to a site.

An employer's first step in the risk assessment is to collect all available site data before the initial entry. These data must include a description of the site's physical characteristics, the task to be performed, planned duration of employee activity, expected hazards, potential migration or dispersion pathways for hazardous chemicals, and current emergency response capabilities.⁷³

The next step is to make a preliminary site evaluation to aid in selecting appropriate employee protection methods for the initial entry. Inhalation and skin absorption hazards evaluated at this stage include confined entry and exit space, potentially explosive or flammable risks, visible vapor clouds, and biological risk indicators, such as dead animals or vegetation.⁷⁴

Based on the findings of the preliminary site evaluation, the employer must next choose protective equipment for employee use during site entry.⁷⁵ The equipment must provide protection to a level of exposure below "permissible exposure limits"⁷⁶ and "published exposure levels"⁷⁷ for suspected hazardous substances.

Immediately after site entry, a more detailed site characterization must be performed to aid in selecting appropriate engineering controls and protective equipment.⁷⁸ If the initial site evaluation produces evidence of the potential for ionizing radiation or conditions immediately dangerous to life or health (IDLH),⁷⁹ or if the initial site information is insufficient to reasonably eliminate these possible conditions, site monitoring must be initiated.⁸⁰ Two types of monitoring are required. First, workers must use direct reading instruments, including combustible gas meters and detector tubes, to monitor hazardous levels of ionizing radiation. Second, workers must conduct visual and mechanical air monitoring to detect potential combustible or explosive atmospheres, oxygen deficiencies, and toxic substances. Once the site characterization demonstrates that the site is safe for operations, employers must implement an air monitoring program in accordance with P(h) of § 1910.120.

Employers must provide all information gathered during [20 ELR 10149] the site evaluation and characterization processes to employees.⁸¹ Before operations begin, employers also must make available to employees any information concerning the chemical, physical, and toxicologic properties of each substance that is expected to be present and is relevant to the employees' duties at the site.⁸² Employers should communicate information about potential chemical exposure exceeding permissible and published exposure limits, IDLH concentrations, potential skin absorption and irritation sources, potential eye irritation sources, oxygen deficiencies,⁸³ and flammability ranges.

After the site characterization has been completed and employees have been informed of all potential risks, two additional steps must precede the start of site operations. Employers must provide workers with appropriate personal protective equipment and implement a site control program.⁸⁴

The site control program is designed to maintain appropriate levels of protection and safety for employees who are involved in site operations. This program is part of the general site health and safety plan and includes a site map, designation of work zones, a "buddy system,"⁸⁵ provisions for site communications, standard operating procedures and safe work practices, and identification of the nearest available medical assistance.⁸⁶

Emergency Response

Scope

The primary impact of the OSHA/EPA standards for emergency response will be on state and local governments. Even though private employers and employees could be regulated under P(q) of § 1910.120, most private sector operations are covered by PP(a) through (p). As with most public safety responsibilities, communities largely depend on state and local governmental responders to take the initiative in responding to hazardous materials incidents, particularly specially trained emergency management, law enforcement, and fire service personnel. Accordingly, P(q) specifically regulates these state and local governmental responders.

Standards for Emergency Response

The requirements of P(q) apply to employers whose employees are engaged in emergency response in any location. A very limited exemption is allowed for emergency response organizations that have developed and implemented programs under § 303 of SARA equivalent to the provisions outlined in P(q).⁸⁷ A second limited exemption under P(q) is allowed for employers that will evacuate their employees from the workplace in emergencies and will not permit their employees to assist in handling emergencies.⁸⁸ These limited exemptions are of little use to state and local government responders that were unable to complete more detailed Title III plans given lack of funds and resources. Moreover, state and local governments may not simply walk away from a hazardous materials incident given both public and private sector reliance on their continued capabilities.

— Emergency response plan. An emergency response plan outlines in writing the proper procedures for handling anticipated emergencies and must be developed before commencement of an emergency response.⁸⁹ The plan must be available for inspection and copying by employees, their representatives, and OSHA personnel.⁹⁰ Under P(q)(2), the emergency response plan must address the following:

(a) Pre-emergency planning and coordination with outside parties;

(b) Personnel roles, lines of authority, training, and communication;

(d) Safe distances and places of refuge;

(e) Site security and control;

(f) Evacuation routes and procedures;

(g) Decontamination;

(h) Emergency medical treatment and first aid;

(i) Emergency alerting and response procedures;

(j) Critique of response and follow-up; and

(k) Personal protective and emergency equipment.

Paragraph (q)(2)(xii) permits emergency response organizations to use existing state or local emergency response plans. To avoid duplication, employers may substitute these existing state and local plans, as well as SARA Title III plans, to the extent that the items addressed are similar. All such plans must be kept together for the employer's and employees' use.

— Emergency response procedures. In actual emergencies, prompt response procedures are essential to control dangerous situations. There is no time to read or write lengthy and detailed safety plans. Responding organizations must, therefore, rely on existing safety plans and standard safety procedures adapted to meet incident-specific conditions.

The senior emergency response official is responsible for the site-specific incident command system (ICS).⁹¹ The senior emergency response official, assisted by the senior official present for each employer, controls all emergency responders and their communications. As more senior officers arrive on the scene, the "senior official" designation is passed up the line of authority.⁹²

Initially, the senior official in charge of the ICS must identify, to the extent possible, all hazardous substances [20 ELR 10150] or conditions.⁹³ The senior official should also conduct a site analysis of engineering controls, maximum exposure limits, hazardous substances handling procedures, and use of any new technologies. Based on the site analysis, the senior official shall implement appropriate emergency operations and assure that appropriate personal protective equipment is worn.⁹⁴ The number of emergency responders in potential hazard exposure areas is limited to those actively performing emergency operations. Further, back-up and advance first aid personnel must stand by with equipment, ready to provide assistance or rescue.⁹⁵

The senior official in charge of the ICS designates a safety official, knowledgeable in emergency response operations, to identify and evaluate hazards.⁹⁶ The safety official may declare operational activities at a site to be immediately dangerous to life or health, and has the authority to alter, suspend, or terminate those activities. The safety official shall immediately inform the senior official of any need to correct imminent operational hazards at the emergency response scene.⁹⁷ After the emergency operations have ended, the senior official responsible for the ICS must implement appropriate decontamination procedures.⁹⁸

Paragraph (q)(3) outlines generic emergency response procedures. These standard safety procedures simply provide instructions on how to accomplish emergency response tasks in a safe manner, without regard to specific emergency incidents. Because emergency response procedures are so important in promoting workplace safety, they should be developed and written by competent safety officials. Effective emergency response procedures, combined with appropriately equipped and trained personnel, help reduce the possibility of workplace exposure to health and safety hazards.

— Skilled support personnel and specialist employees. Some personnel called on in an emergency response operation may not require the extensive hazardous materials training outlined in P(q). For example, employees skilled in certain operations, such as earth digging or crane hoisting, who are needed temporarily to perform immediate emergency support work that cannot timely be performed by an employer's own employees, are exempt from P(q) training requirements.⁹⁹ These skilled emergency support personnel, however, must undergo an initial briefing at the site before participating in any emergency response. The briefing must provide instruction on appropriate personal protective equipment, chemical hazards involved, and duties to be performed. These support personnel are entitled to the same health and safety cautionary considerations as all other employees.

Specialist employees, who as safety officials may provide technical advice or assistance in emergencies, are trained to understand risks associated with specific hazardous substances. In addition to other training requirements under the OSHA/EPA standards, specialist employees must receive additional training and annually demonstrate competency in their specialization.¹⁰⁰

— Training. The OSHA/EPA standards require extensive training for employees engaged in both hazardous waste and emergency response operations. For emergency responders covered by P(q), training is based on the functions to be performed by each individual in an emergency response operation.¹⁰¹ For employees who are likely to participate in emergency response, training is in accord with the following five levels outlined in P(q).

a. First responder awareness level.¹⁰² First responders at the awareness level are individuals who are likely to witness or discover a hazardous substance release and who have been trained to initiate an emergency response sequence by notifying the proper authorities of the release. They take no further action beyond proper notification. The first responder shall receive sufficient training to understand what hazardous materials are and the risks and outcomes associated with a hazardous materials incident, to recognize and identify hazardous materials in an emergency, and to understand the role and duties of a first responder in the emergency response plan.

b. First responder operations level.¹⁰³ First responders at the operations level initially respond to potential releases of hazardous substances to protect the environment from the effects of the release. They are trained to respond in a defensive fashion without trying to stop the release. Their function is to contain the release from a safe distance, keep it from spreading, and prevent exposures. These individuals have had at least eight hours of training and demonstrate competency to perform basic assessment techniques, select and use proper personal protective equipment, perform basic hazard control operations and decontamination procedures, and understand standard operating procedures.

c. Hazardous materials technician.¹⁰⁴ Hazardous materials technicians respond to releases or potential releases to stop the release. They assume a more aggressive role than a first responder at the operations level because they approach the point of release in order to plug, patch, or otherwise stop the release of a hazardous substance. These individuals have had at least 24 hours of training equal to the first responder operations level and must be competent to implement the employer's emergency response plan, identify and verify known and unknown materials using monitoring equipment, function within the ICS, select and use proper personal protective equipment, understand hazard and risk assessment techniques, perform advance hazard control operations, understand termination procedures, and understand basic chemical and toxicological terminology.

d. Hazardous materials specialist.¹⁰⁵ Hazardous materials specialists provide support to hazardous materials technicians. Their duties parallel those of the hazardous materials technician but require a more direct knowledge [20 ELR 10151] of the substances they may be called on to contain. The hazardous materials specialist also acts as the site liaison with federal, state, and local governmental authorities. These individuals have had at least 24 hours of training equal to the technician level and must be competent to implement the local emergency response plan; classify, identify, and verify known and unknown materials using monitoring equipment; understand the state emergency response plan; select and use proper personal protective equipment; understand in depth hazard and risk techniques; perform hazard control operations; determine and perform decontamination procedures; develop a site safety and control plan; and understand toxicological terminology.

e. On-scene incident commander.¹⁰⁶ On-scene incident commanders, who assume control of the incident scene beyond the first responder awareness level, have had at least 24 hours of training equal to the first responder operations level. In addition, on-scene incident commanders must be competent to implement the employer's emergency response plan, understand the risks and hazards of employees working in chemical protective clothing, implement the local emergency response plan, understand state emergency response plan, be familiar with federal regional response team, and understand decontamination procedures.

— Trainers. The training required by P(q)(6) must be taught by qualified trainers.¹⁰⁷ Trainers must have satisfactorily completed a training course or possess the necessary academic credentials and instructional experience.

— Refresher training. All employees trained under P(q) must annually demonstrate competency or receive refresher training.¹⁰⁸ A statement of the training or competency shall be made, and if a statement of competency is made, the employer must keep a record of the methodology used to demonstrate such competency.

— Medical surveillance and consultation. Medical surveillance for emergency responders is required under P(q)(9) in two instances. First, HAZMAT team members and hazardous materials specialists must have a physical examination and be provided with medical surveillance delineated in P(f) of § 1910.120.¹⁰⁹ Second, any emergency response employees exhibiting signs or symptoms from exposure to hazardous substances during an emergency incident must be provided with medical consultation as required by P(f)(3)(ii) of § 1910.120.¹¹⁰

— Postemergency response operations. Postemergency response operations guidelines apply to employers that remove hazardous substances, health hazards, or contaminated materials from emergency response sites. The cleanup must either meet all of the requirements of PP(b) through (o) of § 1910.120, or where cleanup is done on plant property using plant or workplace employees, be conducted by employees who have completed the appropriate safety and health training.¹¹¹

Costs and Benefits

The OSHA/EPA regulations will have an impact on approximately 20,000 uncontrolled hazardous waste sites, 4,000 TSD facilities, 13,600 hazardous materials spills that occur annually outside of fixed facilities, and 11,000 hazardous materials spills that occur annually inside fixed facilities.¹¹² Potentially affected operations include approximately 3,700 RCRA-regulated facilities operated by hazardous waste generators, 100 hazardous waste cleanup contractors, 50 environmental consulting firms, 19,000 state and local police departments, 28,000 fire departments, 750 private HAZMAT response teams, and 22,000 manufacturers that use in-house personnel to respond to emergency hazardous material spills within their facilities.¹¹³

The wide-ranging scope of the OSHA/EPA worker protection standards will have a substantial impact. For example, projections call for the prevention of approximately 20 cancer deaths per year; 6 to 20 cardiovascular, neurological, renal, and liver disorder deaths per year; 1,925 injuries per year; and 6 non-illness-related deaths per year.¹¹⁴ The regulations will protect 1.757 million employees and firefighters from health and safety hazards associated with hazardous waste exposure.¹¹⁵ In addition, the surrounding, nonworker community will derive benefits from better handling of hazardous waste and emergency response incidents that will result from compliance with the OSHA/EPA standards.

The benefits of the OSHA/EPA regulations are not, however, without significant costs. OSHA estimates that "the total annualized incremental cost of full compliance with the standard will be about $ 153.422 million," roughly apportioned as follows: $ 27.966 million spent by contractors on government-mandated cleanups of uncontrolled hazardous waste sites; $ 18.372 million by TSD facility operators; $ 17.332 million by police departments; $ 50.553 million by fire departments; $ 4.226 million by private hazmat teams; and $ 29.179 million by industrial fire brigades.¹¹⁶

OSHA further estimates that the "provision with the largest annual cost of compliance will be the employee training provision ($ 92.978 million), followed by the medical surveillance provision ($ 11.293 million), the required use of escape self-contained breathing apparatus ($ 9.507 million), and the written plan to minimize employee exposure to hazardous materials during postemergency cleanups of hazardous materials spills ($ 8.381 million).¹¹⁷

Compliance

Although OSHA has determined that it is "economically feasible" for every regulated entity to comply with the [20 ELR 10152] worker protection standards,¹¹⁸ such entities must have a well-planned compliance strategy. The economic burden of complying with the employee training regulations, for example, may require some employers to curtail their current use of subcontractors for short-term help at hazardous waste site cleanups and to limit the number of employees eligible to work at such sites. Employers must be able to predict the additional costs associated with such changes in current practices and must factor those expenses into their overall cost of doing business.

Implementation problems associated with the § 1910.120 worker protection standards will be reminiscent of similar experiences with EPCRA.¹¹⁹ Like the OSHA/EPA worker protection standards, EPCRA imposed stringent requirements on private sector businesses as well as on state and local governments. Private and public sector entities alike faced significant obstacles to quick compliance with EPCRA.¹²⁰ Initially, educational information and technical guidance on EPCRA was slow to reach regulated entities, and accordingly, early compliance was difficult.

The March 6, 1990, compliance deadline for the OSHA/EPA § 1910.120 worker protection standards¹²¹ will likely be achieved by a few entities with adequate resources to expend. Compliance efforts will be burdensome, however, for small businesses and state and local governments whose operating budgets are limited.

Conclusion

In the midst of all the statistics, compliance strategies, cost analyses, and strategic business planning, employers may lose sight of the overall prevention of risk that results from compliance with the OSHA/EPA standards. OSHA and EPA's enforcement, however, of the standard of care for industrial safety and emergency response practices will likely fix the costs of noncompliance above those of compliance. The OSHA/EPA standards require that employees be protected from the dangers of hazardous chemicals, just as the public must be protected from the threats that those employees are often working to eliminate. With a thorough understanding of the new regulations and a well-planned approach to implementing them, employers will be able to protect their employees' health and safety efficiently and cost effectively.

1. Pub. L. No. 99-499, 100 Stat. 1613.

2. 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA 001. CERCLA is a highly controversial law. Its notoriety is due in part to the magnitude of the hazardous waste problem it attempts to address. The public outcry that originally led to CERCLA's enactment focused on the need to keep deadly, abandoned chemical dumps from harming unsuspecting citizens. In the congressional rush to clean up U.S. hazardous waste dumps, it was easy for lawmakers initially to overlook an equally important issue: protecting the health of the workers who would perform the remedial work.

3. Superfund Amendments and Reauthorization Act of 1986, Title III, Pub. L. No. 99-499, 100 Stat. 1613, 42 U.S.C. §§ 11001-11050, ELR STAT. EPCRA 001. For a detailed analysis of EPCRA, see Burcat & Johnson, The Emergency Planning and Community Right-to-Know Act of 1986: An Explanation of Title III of SARA, 18 ELR 10009 (Jan. 1988).

4. CERCLA § 104(i)(6)(A), 42 U.S.C. § 9604(i)(6)(A), ELR STAT. CERCLA 019. For a detailed description of the functions of the Agency for Toxic Substances and Disease Registry, see Johnson, Health Effects of Hazardous Waste: The Expanding Functions of the Agency for Toxic Substances and Disease Registry, 18 ELR 10132 (Apr. 1988); Siegel, Integrating Public Health Into Superfund: What Has Been the Impact of the Agency for Toxic Substances and Disease Registry? 20 ELR 10013 (Jan. 1990).

5. SARA § 126, 100 Stat. 1690, ELR STAT. CERCLA 033, note following CERCLA § 110 (codified at 29 U.S.C. § 655 (Supp. V 1987)). The new worker protection provisions were proposed to remedy the inaction of various federal agencies in developing a program to protect the health and safety of employees involved in hazardous materials activities, as required by § 111(c)(6) of CERCLA.

6. See 29 U.S.C. § 667 (1982) (requirements for state plans).

7. 54 Fed. Reg. 9294 (1989) (effective Mar. 6, 1990).

8. Id. at 26654 (effective Mar. 6, 1990 (emergency response operations); Sept. 21, 1989 (other hazardous waste operations)).

9. Id. at 9317 (to be codified at 29 C.F.R. § 1910.120(a)).

10. "Uncontrolled hazardous waste site" is defined at 29 C.F.R. § 1910.120(a)(3) as

an area where an accumulation of hazardous waste creates a threat to the health and safety of individuals or the environment or both. Some sites are found on public lands, such as those created by former municipal, county or state landfills where illegal or poorly managed waste disposal has taken place. Other sites are found on private property, often belonging to generators or former generators of hazardous waste. Examples of such sites include, but are not limited to, surface impoundments, landfills, dumps, and tank or drum farms. Normal operations at TSD sites are not covered by this definition.

11. 42 U.S.C. §§ 6901-6987, ELR STAT. RCRA 001.

12. 54 Fed. Reg. at 9317 (to be codified at 29 C.F.R. § 1910.120(a)(1)(i)).

13. Id. (to be codified at 29 C.F.R. § 1910.120(a)(1)(iv)).

14. See 29 C.F.R. § 1910.210(a)(3) for the definition of "hazardous substance." Most of the numerous comments OSHA received on this definition during the comment period focused on whether it was consistent with EPA and United States Department of Transportation definitions. Some comments criticized OSHA's incorporation of petroleum and petroleum products in this definition. OSHA believed, however, that SARA § 126 mandated worker protection from the hazards of all chemical spills. Thus, OSHA concluded that it is critical to regulate petroleum because spills of petroleum and petroleum products often constitute a substantial threat to employees responding to such incidents. 54 Fed. Reg. at 9302.

15. 54 Fed. Reg. at 9317 (to be codified at 29 C.F.R. § 1910.120(a)(1)(v)).

16. Id. at 9299.

17. Id.

18. "Small Quantity Generator" is defined at 29 C.F.R. § 1910.120(a)(3) as "a generator of hazardous wastes who in any calendar month generates no more than 1,000 kilograms (2,205 pounds) of hazardous waste in that month."

19. 54 Fed. Reg. at 9317 (to be codified at 29 C.F.R. § 1910.120(a)(2)(iii)). Such hazardous waste generators who have emergency response teams for their RCRA workplaces must, however, comply with the training requirements of 29 C.F.R. § 1910.120(p)(8). Id. (Note that the small quantity generator and 90-day storage exemptions mirror RCRA prerequisites set forth at 40 C.F.R. pts. 264 and 265.)

20. 54 Fed. Reg. at 9327 (to be codified at 29 C.F.R. § 1910.120(p)(8)(iii)).

21. Id. (to be codified at 29 C.F.R. § 1910.120(p)(8)(iii)(A)).

22. Id.; see infra note 88 and accompanying text (OSHA standards applicable to outside emergency response teams).

23. 54 Fed. Reg. at 9296. The State of Indiana, for example, objected to these exemptions.

24. RCRA § 3006, 42 U.S.C. § 6926, ELR STAT. RCRA 019. These state hazardous waste programs are recognized by EPA just as state occupational safety and health plans are recognized by OSHA.

25. 54 Fed. Reg. at 9296.

26. Id.; see also supra notes 6-8 and accompanying text. The result of this controversy is that OSHA will regulate RCRA TSD facilities pursuant to P(a)(1)(iv) of the final rule, and the list of exemptions referred to in the original preamble will not be incorporated into the final rule. OSHA believes that the proposed exemptions would have created too great a gap in worker protection. 54 Fed. Reg. at 9296.

27. 54 Fed. Reg. at 9326 (to be codified at 29 C.F.R. § 1910.120(p)(1)).

28. Id. (to be codified at 29 C.F.R. § 1910.120(p)(2)).

29. Id. (to be codified at 29 C.F.R. § 1910.120(p)(3)).

30. Id. (to be codified at 29 C.F.R. § 1910.120(p)(4)).

31. Id. (to be codified at 29 C.F.R. § 1910.120(p)(5)).

32. Id. (to be codified at 29 C.F.R. § 1910.120(p)(6)).

33. Id. at 9327 (to be codified at 29 C.F.R. § 1910.120(p)(7)).

34. Id. (to be codified at 29 C.F.R. § 1910.120(p)(8)).

35. For a more detailed analysis of the safety and health program requirements, see 54 Fed. Reg. at 9308.

36. Id. at 9302.

37. Id. at 9321-22 (to be codified at 29 C.F.R. § 1910.120(f)).

38. Id. at 9322 (to be codified at 29 C.F.R. § 1910.120(f)(4)(i)).

39. Id. (to be codified at 29 C.F.R. § 1910.120(f)(8)(i)).

40. National Institute for Occupational Safety and Health, Occupational Safety and Health Administration, U.S. Coast Guard, and Environmental Protection Agency (Oct. 1985).

41. 54 Fed. Reg. at 9306.

42. Id. at 9325 (to be codified at 29 C.F.R. § 1910.120(k)).

43. Id. at 9317 (to be codified at 29 C.F.R. § 1910.120(a)(3)).

44. Id. at 9325 (to be codified at 29 C.F.R. § 1910.120(k)(2)).

45. Id. at 9326 (to be codified at 29 C.F.R. § 1910.120(o)).

46. Id. (to be codified at 29 C.F.R. § 1910.120(o)(2)).

47. Id. at 9323-24 (to be codified at 29 C.F.R. § 1910.120(j)(1)).

48. Id. at 9324 (to be codified at 29 C.F.R. § 1910.120(j)(3)).

49. Id. (to be codified at 29 C.F.R. § 1910.120(j)(8)).

50. Id. at 9327 (to be codified at 29 C.F.R. § 1910.120(p)(7)(i)).

51. Id. (to be codified at 29 C.F.R. § 1910.120(p)(7)(ii)).

52. Id. (to be codified at 29 C.F.R. § 1910.120(p)(8)(i)). Requirements for the emergency action plan are set forth at 29 C.F.R. § 1910.38(a). See supra notes 18-26 and accompanying text for additional exceptions.

53. Those requirements include pre-emergency planning, lines of communication, emergency recognition and prevention, safe distances and places of refuge, site security, evacuation routes, decontamination procedures, emergency medical treatment, emergency response procedures and personal protective equipment.

54. 54 Fed. Reg. at 9327 (to be codified at 29 C.F.R. § 1910.120(p)(8)(iv)).

55. Id. (to be codified at 29 C.F.R. § 1910.120(p)(8)(iv)(E)).

56. Id. (to be codified at 29 C.F.R. § 1910.120(p)(8)(iii)(A)).

57. Id. (to be codified at 29 C.F.R. § 1910.120(p)(8)(iii)(B)).

58. Id. (to be codified at 29 C.F.R. § 1910.120(p)(8)(iii)(C)).

59. Id. (to be codified at 29 C.F.R. § 1910.120(p)(8)(iii)(B)).

60. Id. at 9317 (to be codified at 29 C.F.R. § 1910.120(a)(1)(i) and (ii)); see supra notes 10-26 and accompanying text. "Clean-up operation" is defined at 29 C.F.R. § 1910.120(a)(3) as "an operation where hazardous substances are removed, contained, incinerated, neutralized, stabilized, cleaned-up, or in any other manner processed or handled with the ultimate goal of making the site safer for people or the environment."

61. 54 Fed. Reg. at 9318 (to be codifiedat 29 C.F.R. § 1910.120(b) note).

62. Id. at 9319 (1989) (to be codified at 29 C.F.R. § 1910.120(b)(1)(ii)).

63. Id. (to be codified at 29 C.F.R. § 1910.120(b)(1)(iv)).

64. Id. (to be codified at 29 C.F.R. § 1910.120(b)(4)).

65. Id. at 9320 (to be codified at 29 C.F.R. § 1910.120(e)(1)(i) and (ii)).

66. Id. at 9321 (to be codified at 29 C.F.R. § 1910.120(e)(3)(i)).

67. Id. (to be codified at 29 C.F.R. § 1910.210(e)(3)(ii)).

68. Id. (to be codified at 29 C.F.R. § 1910.210(e)(3)(iii)).

69. Id. (to be codified at 29 C.F.R. § 1910.210(e)(4)).

70. Id. Specifically, employee training for all levels shall cover the following areas: names of personnel responsible for site safety and health; safety and health hazards present on the site; work practices by which the employee can minimize risks from hazards; safe use of engineering controls and equipment on the site; and medical surveillance requirements, including recognition of symptoms and signs indicating overexposure. Id. (to be codified at 29 C.F.R. § 1910.120(e)(2)).

71. Id. (to be codified at 29 C.F.R. § 1910.210(e)(5)).

72. Id. (to be codified at 20 C.F.R. § 1910.120(e)(6)).

73. Id. at 9319-20 (to be codified at 29 C.F.R. § 1910.120(c)(2), (4)).

74. Id. at 9319 (to be codified at 29 C.F.R. § 1910.120(c)(3)).

75. Id. at 9320 (to be codified at 29 C.F.R. § 1910.120(c)(5)). If the preliminary site evaluation does not produce sufficient information to identify suspected site hazards, the employer must provide minimum protective equipment and use direct reading equipment to identify hazards immediately dangerous to life or health. Id. (to be codified at 29 C.F.R. § 1910.120(c)(5)(iii)).

76. "Permissible exposure limit" is defined at 29 C.F.R. § 1910.120(a)(3) as "the exposure, inhalation or dermal permissible exposure limit specified in 29 CFR Part 1910, Subparts G and Z."

77. "Published exposure level" is defined at 29 C.F.R. § 1910.120(a)(3) as

the exposure limits published in "NIOSH Recommendations for Occupational Health Standards" dated 1986 incorporated by reference, or if none is specified, the exposure limits published in the standards specified by the American Conference of Governmental Industrial Hygienists in their publication "Threshold Limit Values and Biological Exposure Indices for 1987-88" dated 1987 incorporated by reference.

78. 54 Fed. Reg. at 9319 (to be codified at 29 C.F.R. § 1910.120(c)(2)).

79. "IDLH" or "immediately dangerous to life or health" is defined at 29 C.F.R. § 1910.120(a)(3) as "an atmospheric concentration of any toxic, corrosive or asphyxiant substance that poses an immediate threat to life or would cause irreversible or delayed adverse health effects or would interfere with an individual's ability to escape from a dangerous atmosphere."

80. 54 Fed. Reg. at 9320 (to be codified at 29 C.F.R. § 1910.120(c)(6)).

81. Id. (to be codified at 29 C.F.R. § 1910.120(c)(7) & note).

82. Id. (to be codified at 29 C.F.R. § 1910.120(c)(8)).

83. "Oxygen Deficiency" is defined at 29 C.F.R. § 1910.120(a)(3) as "that concentration of oxygen by volume below which atmosphere supplying respiratory protection must be provided. It exists in atmospheres where the percentage of oxygen by volume is less than 19.5 percent oxygen."

84. 54 Fed. Reg. at 9320 (to be codified at 29 C.F.R. § 1910.120(c)(5) (personal protective equipment), (d) (site control program)). The employer must consult the standards set forth in P(g) to determine appropriate levels of employee protection for postentry site operations. Id. (to be codified at 29 C.F.R. § 1910.120(c)(5)(iv)).

85. A "Buddy System" is a system of organizing employees into work groups so that each employee in the group is assigned to be observed by at least one other employee in the group. The purpose is to provide rapid assistance to employees in the event of an emergency.

86. 54 Fed. Reg. at 9320 (to be codified at29 C.F.R. § 1910.120(d)(3)).

87. Id. at 9328 (to be codified at 29 C.F.R. § 1910.120(q)).

88. Id. (to be codified at 29 C.F.R. § 1910.120(q)(1)). This exemption requires that the employer have an emergency action plan in accordance with 29 C.F.R. § 1910.38(a).

89. Id.

90. Id.

91. Id. (to be codified at 29 C.F.R. § 1910.120(q)(3)).

92. Id. (to be codified at 29 C.F.R. § 1910.120(q)(3)(i) note).

93. Id. (to be codified at 29 C.F.R. § 1910.120(q)(3)(ii)).

94. Id. (to be codified at 29 C.F.R. § 1910.120(q)(3)(iii)-(iv)).

95. Id. (to be codified at 29 C.F.R. § 1910.120(q)(3)(v)-(vi)).

96. Id. (to be codified at 29 C.F.R. § 1910.120(q)(3)(vii)).

97. Id. (to be codified at 29 C.F.R. § 1910.120(q)(3)(viii)).

98. Id. (to be codified at 29 C.F.R. § 1910.120(q)(3)(ix)).

99. Id. at 9328-29 (to be codified at 29 C.F.R. § 1910.120(q)(4)).

100. Id. at 9329 (to be codified at 29 C.F.R. § 1910.120(q)(5)).

101. Id. (to be codified at 29 C.F.R. § 1910.120(q)(6)).

102. Id. (to be codified at 29 C.F.R. § 1910.120(q)(6)(i)).

103. Id. (to be codified at 29 C.F.R. § 1910.120(q)(6)(ii)).

104. Id. (to be codified at 29 C.F.R. § 1910.120(q)(6)(iii)).

105. Id. (to be codified at 29 C.F.R. § 1910.120(q)(6)(iv)).

106. Id. at 9329-30 (to be codified at 29 C.F.R. § 1910.120(q)(6)(v)).

107. Id. at 9330 (to be codified at29 C.F.R. § 1910.120(q)(7)).

108. Id. (to be codified at 29 C.F.R. § 1910.120(q)(8)).

109. Id. (to be codified at 29 C.F.R. § 1910.120(q)(9)(i)).

110. Id. (to be codified at 29 C.F.R. § 1910.120(q)(9)(ii)).

111. Id. (to be codified at 29 C.F.R. § 1910.120(q)(11)).

112. Id. at 9311.

113. Id.

114. Id. at 9311-12.

115. Id. at 9311.

116. Id. at 9312.

117. Id.

118. Id.

119. See supra note 3.

120. See Burcat & Johnson, supra note 3, at 10027.

121. See supra notes 7-8.