October 31, 1997

Mr. Daniel H. Sherman IV
Long, Aldridge & Norman
One Peachtree Center
303 Peachtree Street, Suite 5300
Atlanta, Georgia 30308

Dear Mr. Sherman:

This is in response to your letter dated April 22, requesting clarification of the requirements of the Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard (29 CFR 1910.120). Specifically, you requested guidance in determining whether an employer would be subject to the full requirements of the HAZWOPER standard on a plant where three releases of hazardous substances have occurred. The employer at the plant has installed groundwater monitoring wells to investigate the extent of groundwater contamination at the three sites and intends to use one or two employees (who have undergone 40-hour training pursuant to 1910.120(e)(3)(i)) to periodically bail groundwater samples from the wells for testing. You indicated that the sites are listed on the state's hazardous site inventory, but are not listed on the National Priority List and that the employer has not been ordered to perform any remedial actions at the sites. Your questions have been answered in the order in which they were presented.

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Question 1: Would the investigative bailing and sampling activities described constitute a "clean-up operation" for HAZWOPER purposes?

OSHA considers preliminary investigations and voluntary clean-ups at sites recognized by Federal, state, local or other governmental bodies as uncontrolled hazardous waste sites as falling within the scope of the HAZWOPER standard (29 CFR 1910.120(a)(1)(i)-(iii)). Unless we have more specific site information we cannot determine whether the three releases mentioned in your letter fall within the scope of the standard.

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Employees who are performing field sampling to establish site exposure conditions must receive initial training in accordance with paragraph (e) of the standard before they begin monitoring in contaminated areas of the site where there is a possibility of exposure to safety or health hazards. Workers who must perform duties at a hazardous waste site that has not yet been characterized, but where contamination is expected must work under the direction of an on-site supervisor and a site-specific safety and health plan, and must be fully trained and protected in accordance with the HAZWOPER standard. When additional information becomes available through site characterization which verifies that there is minimal or no risk of employee exposure to hazardous substances, a lesser degree of personal protective equipment (PPE) and worker training may be acceptable. Workers in areas that have been characterized as having no reasonable possibility of exposure and who therefore are not required to have HAZWOPER training may be covered by other OSHA standards, such as the Hazard Communication standard (29 CFR 1910.1200).

Paragraph (a)(1) of the standard states: "This section covers the following operations, unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility of employee exposure to safety or health hazards." Paragraph (c) of the standard, "Site characterization and analysis," provides guidance for characterizing and evaluating the hazards of a particular site. The results of characterization and analysis will enable the employer to designate contaminated and uncontaminated areas. If an area in the site has been monitored and characterized, demonstrating that no exposure exists, the training requirements of the HAZWOPER standard do not apply since the employees are not exposed, or potentially exposed, to health or safety hazards related to hazardous waste operations. However, site characterization is an ongoing process. If site conditions change, for example, when there is an indication that exposures have risen, the employer must reexamine the site's operations and notify employees of any changes on the site and how the changes affect their working conditions, such as personal protective equipment and training. In addition, the site's safety and health plan must be reevaluated and modified to comply with the HAZWOPER standard.

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Sincerely,

John B. Miles, Jr., Director
Directorate of Compliance Programs

April 22, 1997

Via Telecopy (202) 219-5550

Ms. Mary Ann Garrahan
Occupational Safety and Health Administration
Directorate of Compliance Programs
Office of Health Compliance Assistance
200 Constitution Avenue, N.W., Rm. C-4511
Washington, DC 20210

Re: OSHA Hazardous Waste Operations and Emergency Regulation,
29 C.F.R. § 1910.120 ("HAZWOPER")

Dear Ms. Garrahan:

I have spoken on several occasions with Ms. Bridgette Brevard of the OSHA Compliance Hotline in connection with my search for guidance to help interpret certain provisions of the HAZWOPER regulation. It does not appear that any OSHA guidance has yet been formulated with respect to my inquiries, and, as such, Ms. Brevard suggested that I write to your office and request assistance.

I am interested in determining whether an entity would be subject to the full administrative requirements of the HAZWOPER regulation under the following conditions: three discrete releases of hazardous substances at the entity's plant are listed on the state's hazardous site inventory. The entity has installed groundwater monitoring wells to investigate the extent of groundwater contamination at certain of these sites. The sites are not listed on the National Priorities List. The entity is not a RCRA-regulated facility and has not been ordered to perform any remedial action with respect to the three identified sites or otherwise. The entity wishes to utilize one or two of its employees to periodically bail groundwater samples from on-site monitoring wells in order to send such samples to testing laboratories. The bailing and sampling would be done for monitoring purposes only, and not in connection with any remedial activity. The employees to perform the sampling activities have undergone a 40-hour training program pursuant to 29 CFR 1910.120(e)(3)(i).

Given the foregoing,

1. Would the investigative bailing and sampling activities described constitute a "cleanup-operation" for HAZWOPER purposes?

2. If so, given the specific, limited nature of the bailing and sampling tasks, what training would be required for the employees performing the tasks under paragraph (e) of the regulation?

3. How can an employer demonstrate that monitoring activities such as those described above do "not involve employee exposure or the reasonable possibility for employee exposure to safety or health hazards," as described in paragraph (a) of the regulation?

Very truly yours,

Daniel H. Sherman IV

DHS/jld