Beyond the Rule of Thumb
Survival Tip 48
During many incidents involving a hazardous material release, “cleanup contractors” clean up and remove the spilled chemical. These companies have the personnel, equipment, and experience to conduct cleanup operations safely and in accordance with to local, state, and federal environmental and occupational regulations.
Some local government leaders are dismayed when the first responders do not conduct cleanup operations. They ask, “Isn’t that what we pay them for?” The reality is that most fire departments, besides not having the equipment and personnel for these activities, do not have the necessary environmental permits. Likewise, although employees of companies that use or handle chemicals can sometimes clean up spills considered to be “incidental,” federal occupational standards clearly define the limits of these types of spills. Companies that choose to clean up chemical spills in-house that exceed these limits not only expose their employees to unnecessary risk but also expose themselves to potential civil and criminal liability.
Throughout my fire service career, I have found most cleanup contractors willing to do whatever was necessary to protect personnel, property, and the environment. However, I have also learned there are a few things first responders should know to deal effectively with these contractors before someone signs a cleanup contract.
Selecting a Contractor
Most often, the responsibility to select a contractor to clean up a chemical spill rests with the “responsible party,” which is generally the individual or entity in control of the material when the release occurred. Some businesses, including those in manufacturing, transportation, and warehousing, may have one or more contractors on retainer for cleanup operations. Some transportation companies whose routes cover several states contact a “one-call center” specifically intended to handle emergency incidents involving chemical spills. Based on the location and type of incident, representatives at these centers will then contact the nearest qualified contractor from a proprietary list they have developed.
Likewise, many local and state government agencies have cleanup contactors on retainer for incidents when government is the responsible party or when the responsible party is unknown or is unwilling or unable to pay for cleanup. First responders should learn the names and capabilities of the contractors in their area.
Always remember that if the responsible party is willing to pay for the services of a cleanup contractor but has no idea who to call, first responders, as government employees, should refrain from suggesting one particular company regardless of whether that company is on a retainer. Doing so can present problems if other companies complain to local government leaders that first responders are providing their competition with an unfair advantage. This can be especially troubling if some first responders work part-time for the same contractor they always recommend.
Some responders provide the responsible party with a copy of the local telephone book and say “Just pick a contractor.” Another option is to create a list of cleanup contractors in your area that includes a breakdown of each company’s capabilities. Make sure the list is arranged in alphabetical order by company name so that no one can complain about favoritism.
Although some companies have no interest in dealing with fuel spills, other will claim that is their specialty. Likewise, some contractors have extensive experience dealing with small jobs involving “lab packs,” such as when cleaning out a locker in a chemistry lab at the local high school. Others may have vacuum tank trucks of varying capacities and construction equipment such as front-end loaders, dump trucks, and backhoes.
When developing a list of contractors and determining how you will present this list to a responsible party, contact your local government attorney’s office for advice. Remember that if a contractor files a complaint alleging conflict of interest or favoritism, the attorneys are going to get involved anyway. You might as well seek their counsel beforehand and avoid becoming a defendant in a lawsuit.
Always give the responsible party an opportunity to select a contractor because the responsible party is the one who pays the bill. Remember that in some situations, such as when a tractor trailer hauling hazardous materials is involved in a wreck, the responsible party is not the driver but rather the trucking company or more likely its insurance company. Therefore, if the driver is DOA or at the hospital, never take it upon yourself to hire a cleanup contractor and assume that the trucking company will just pay for it. If you do, the company or its insurance carrier will likely balk at the amount of the bill and claim it could have found a contractor to do the job for half the price. Worse, if the driver is an independent trucker operating with no insurance and your name is on the cleanup contract, the contractor will want to get paid just the same. First responders on-scene should NEVER commit public dollars for cleanup operations. That responsibility rests with someone higher up in the chain of command within local or state government.
Contractor Response Time
The response time for a contractor is the time required to assemble sufficient personnel and equipment resources at the incident site. Unfortunately, when asked about their response time, representatives of some contracting companies may unintentionally provide misleading answers. For example, when a contractor says its personnel can respond within one hour, first responders at the scene may breathe a sigh of relief knowing that the incident will soon be over and everyone can go home. However, sometimes the only person who shows up within the hour is a field scout who is there merely to determine what he will need to get the job done. When you express your frustrations about the delay, the contractor promptly reminds you that he did not lie; he was there within one hour. You just assumed he meant that he would be ready to go to work in one hour. Therefore, when you ask for a “response” time, make sure you are clear in stating that what you really want to know is a “ready-to-go-to-work” time.
Avoid Negligent Hiring of a Contractor
According to generally accepted legal practices regarding contractors, someone who employs a contractor is not liable for injuries to third parties resulting from negligence on the part of the contractor. However, there have been situations when an individual or entity was found liable for “negligent hiring” of a contractor by reason of failure to fully investigate the contractor’s reputation or experience. The need to conduct this investigation is especially important when dealing with the cleanup of extremely dangerous chemicals such as explosives, oxidizers, poisons, and radioactive materials.
Some first responders will claim that because most times the responsible party in control of the spilled material is the one who hires the contractor, any liability for “negligent hiring” will always rest with the responsible party. Although this may be true in most circumstances, first responders could still be found to have some legal obligation to stop any actions they observe on the part of the contractor that could constitute a safety risk. Of course, you may not know what hazards to look for, especially when dealing with removal of exotic chemicals, but this just reinforces the need to know more about the contractor and his experience and training.
On some occasions, after listening to the contractor’s claims, my department has sought a second opinion on the cleanup plan by conferring with someone we trust, such as a local chemist or a representative from the state environmental regulatory agency. Remember that if anything goes bad during the cleanup, first responders are the ones who will have to deal with the aftermath, and your community will pay the ultimate price for a cleanup catastrophe that lasts long after the contractor is gone.
Contractor Employee Training
First responders should know that all contractor personnel working at the site have sufficient training that allows them to legally work in a hazardous environment. Most often this requires training that meets the requirements of OSHA standard 1910.120 (Hazardous Waste Operations and Emergency Response). It’s also important to determine whether contractor employees have received the required annual refresher training. Workers employed by a cleanup contractor could be working at the scene along with first responders, so you want to make sure everyone knows what they are doing.
During some incidents, we have requested that the cleanup contractor provide us with copies of training certificates for every one of its employees on site. Because these documents are usually stored in an office, someone there would likely need to fax the copies to the scene. However, if a mobile fax machine is not available, you will need to provide the contractor with a fax number at a remote site (such as a firehouse or police station) and then have some means to bring these copies to you. Remember that if you are not sure what minimum training is required for contractor employees, do not hesitate to contact your state occupational safety office for advice. Representatives from this office may even decide to visit the site to ensure that all cleanup operations are conducted in accordance with applicable regulations.
Get to Know Contractors in Your Area
One way to avoid problems associated with “negligent hiring” of a contractor is to get to know the contractors who work in your area. Besides learning about the companies’ experience in dealing with various types of cleanup, you can determine the type of equipment they have available. Rather than just have a contractor representative stop by the fire station to deliver a glossy company brochure, consider a joint training session. Just like first responders, contractor employees require initial field training and annual refresher training to meet OSHA certification requirements. Bringing equipment and personnel together from the contractor and the hazardous materials team for a mock cleanup drill allows you to develop working relationships with field supervisors and their personnel and to see their equipment in action.
Questions or comments on this or any other monthly Hazardous Materials Survival Tip may be directed to Steven De Lisi at HazMatSurvivalTip@comcast.net
Click here for more info on Steven De Lisi’s book, Hazardous Materials Incidents: Surviving the Initial Response.
Steven M. De Lisi recently retired from the fire service following a 27-year career that included serving as the deputy chief for the Virginia Air Guard Fire Rescue and a division chief for the Virginia Department of Fire Programs (VDFP). De Lisi is a hazardous materials specialist and as an adjunct instructor for VDFP; he continues to conduct hazardous materials Awareness- and Operations-level training. De Lisi began his career in hazardous materials response in 1982 as a member of the hazmat team with the Newport News (VA) Fire Department. He has also served as a hazardous materials officer for the Virginia Department of Emergency Management. De Lisi has a master’s degree in public safety leadership and is the author of Hazardous Material Incidents: Surviving the Initial Response (Fire Engineering, 2006).
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Subjects: Hazardous materials response, firefighter hazmat training
