October 3, 1990

Mr. John B. Moran
Laborers' National Health and Safety Fund
905 16th Street, N.W.
Washington, D.C. 20006-1765

Dear Mr. Moran: This is in response to your most recent letter concerning the Occupational Safety and Health Administration (OSHA) standard for Hazardous Waste Operations and Emergency Response (29 CFR 1910.120). You restated several questions on the application of the training requirements for clean-up workers (29 CFR 1910.120(e)). Specifically you have asked what criteria one uses to determine whether or not employees are exposed or potentially exposed in order to trigger the training requirements. The definition of the term "employee exposure" utilized in the scope and application section (1910.12029 CFR 1910.120(a)(1)) is consistent with the definition provided in OSHA's Hazard Communication Standard at 29 CFR 1910.1200(e) which includes potential (e.g. accidental or possible) exposure. This broad definition is necessary to characterize sites in order to identify site hazards and select worker protection methods.

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As I mentioned in my previous letter, it is the responsibility of the employers of any workers at the site to ensure adequate site characterization. The information that is needed to be gathered is set forth in 1910.120(c). As a result of this process, employers are able to designate contaminated (hot zones) and uncontaminated areas (low hazard areas where no special personal protective equipment is necessary). If site activities or weather conditions change, employers must have ongoing site characterization programs.

Employees who have minimal (low risk) exposures or low probability of exposures to hazardous substances, as determined by the site characterization requirements under 29 CFR 1910.120(c), are covered by the training requirements of other standards such as 29 CFR 1910.1200. Where employee exposures approach permissible exposure limits or published exposure levels, or there is a potential for an emergency, then the training requirements under 29 CFR 1910.120 are applicable.

Thus, anyone who enters a hazardous waste site must recognize and understand any potential hazards to health and safety associated with cleanup of that site. The level of training provided must be consistent with the worker's job functions and responsibilities, the toxicity of the materials, the levels of exposure and the potential for an emergency to develop. The Hazardous Waste Operations and Emergency Response Standard along with other OSHA standards ensure this training.

In response to your concerns regarding compliance policy, you should be aware that we work closely with the Environmental Protection Agency (EPA) on issues relating to our equivalent worker protection standard. All letters of interpretations under 29 CFR 1910.120 including our correspondence with you are shared with them and OSHA Regional and Area Offices. All interpretations are fully reviewed prior to issuance and offer guidance in response to questions submitted to OSHA. As some questions are general in nature, our response must also be general in nature. This Directorate is presently engaged in developing an OSHA Instruction to provide further field compliance guidance on 29 CFR 1910.120. Copies will be made available to all interested parties when finalized.

I trust this response answers your questions. If you desire to meet with us please contact David M. Smith at (202) 523-8036.

Sincerely,

Patricia K. Clark
Director Designate
Directorate of Compliance

August 7, 1990

Ms. Patricia K. Clark
Director Designate
Directorate of Compliance Programs
Occupational Safety and Health Administration
US Department of Labor
OSHA-N3461
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Dear Ms. Clark:

Thank you for your response of July 30, 1990 to my letter to Mr. John B. Miles, Jr. regarding the OSHA standard for Hazardous Waster Operations and Emergency Response under 29 CFR 1910.120.

Apparently my letter to Mr. Miles was not obvious with regard to the two issues of importance:

1. OSHA compliance policy with regard to designated hazardous waste sites with specific reference to whether compliance with 1910.120 is required in so called "clean zones" on or within such sites.

2. What compliance criteria applies with regard to determining clean - contaminated zone boundaries? More simply put, what criteria is appropriate to determine "potentially exposed to health or safety hazards" particularly as much is not included in 1910.120 (a)(3) Definitions?

When this issue was raised on June 11, 1990 with OSHA personnel in the Braintree Area Office, we were provided with no information, guidance, recommendations, or suggestions. Your letter likewise fails to even address this obvious issue. Meanwhile we have a "clean zone" project underway wherein low levels of contamination of groundwater with pollutants known to be present in the contiguous hazardous waste site are evident. The lack of OSHA compliance guidance on this issue is conspicuous by its' absence, particularly as it has been repeatedly sought.

As we learned during the OSHA inspection of Charles George Landfill and the Nyanza hazardous waste sites last year and in the cases involving the contested citations of one of the contractors on each of those sites, 29 CFR 1910.120 is essentially unenforceable in several key regards by the compliance staff/Area Directors and unenforceably vague in other regards from the perspective of the Solicitors office. The compliance policy you outlined in your letter essentially makes 1910.120 even more unenforceable. This issue is further exacerbated by the failure to provide a policy with regard to defining "potentially exposed". This failure to provide compliance direction is further resulting in a wide range of interpretation of 1910.120 by your field compliance staff. Significant differences have occurred in OSHA Area Offices in Louisiana, Idaho, Massachusetts, Colorado, New York, and Ohio for example. Your compliance policy stated in your July 30 letter also appears to differ from the U.S. EPA policy. Meanwhile workers are exposed, potentially exposed, or unknowingly exposed while contractors, owners, and worker representatives try to develop a reasoned decision making rationale for a regulation which OSHA appears to have no interest in whatsoever.

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Am I to assume that these issues are not clearly understood by your staff? I would like to request that we have a meeting in your offices to more fully discuss and clarify this matter. I suggest that such a meeting be held as soon as possible.

Sincerely,

John B. Moran

/ac

cc: K. Ringen L. Palavanchi, Local 721 C. Booker D. Traenor, IUOE R.J. Connerton V. McDougal, Teamsters D. Elisburg G. Scannell, OSHA B. Ryan, IUOE, Local 4 J.B. Miles,Jr. OSHA J. Merloni, Jr. MLDC M. Crockett, OSHA