August 15, 1989

Mr. Mark S. Zemelman
McCutchen, Doyle, Brown & Enersen
Counselors at Law
Three Embarcadero Center
San Francisco, California 94111

Dear Mr. Zemelman:

This is in response to your inquiry concerning the application of OSHA's Hazardous Waste Operations and Emergency Response Operations final standard to the construction of a building on property previously occupied by a dry cleaning facility.

For the purposes of this letter you asked us to assume that the ground water would be classified as hazardous waste (contains perchloroethylene (PCE)) and that the ground water beneath the property has been designated by a local agency for cleanup. Because the ground water containing PCE is considerably below the surface of the property, excavation activities are not expected to encounter ground water containing PCE. To install caissons, however, it is necessary to bore holes into the ground that will pass through areas of the subsurface which have PCE-containing ground water.

Any activity during the construction project which is related to cleaning up of hazardous waste would be covered by 29 CFR 1910.120 unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility for employee exposure to safety or health hazards. A minimum of 24 hours of training would be sufficient for workers who will not be exposed above permissible exposure limits and there is no possibility of an emergency developing as a result of an uncontrolled release of a hazardous substance.

As you may be aware, since 1973 the State of California has administered its own occupational safety and health program (Cal/OSHA) under the provisions of the Occupational Safety and Health Act. In February 1987, funding was deleted from the State's budget for private sector activities of that program, and Cal/OSHA ceased private sector enforcement coverage on July 1, 1987. However, Cal/OSHA continued to administer its occupational safety and health program for public employees of the State and its political subdivisions. On November 8, 1988, California's voters passed Proposition 97, which added a section to the State Labor Code mandating California's implementation of a full State plan. On May 1, the State of California began phased resumption of private sector enforcement and is responding to occupational safety and health complaints and accidents. California's full resumption of private sector activities is expected by October 1.

You can contact the appropriate State office at the following address and telephone number:

Ron Rinaldi, Director
California Department of Industrial Relations
525 Golden Gate Avenue
San Francisco, California 94102
Telephone: (415) 557-3356

We hope this information will be helpful to you and your client.

Sincerely,



Patricia K. Clark, Acting Director
Directorate of Compliance Programs




July 14, 1989

Mr. Thomas Shepich - N3469
Occupational Safety & Health Administration
200 Constitution Avenue, N.W.
Washington, D.C. 20210

Application of 29 C.F.R. Part 1910.120

Dear Mr. Shepich:

I am writing to request a determination by OSHA that 29 C.F.R. Part 1910.120 (Hazardous waste operations and emergency response) is not applicable to a particular situation.

A client of our firm is planning to construct a building on property previously occupied by a dry cleaning facility. Ground water beneath the property contains perchloroethylene (PCE) in concentrations of up to 8 parts per million (8 ppm); unsaturated soils beneath the building contains only trace concentrations of PCE. For purposes of this letter, it should be assumed that the ground water would be classified as a hazardous waste under 40 C.F.R. 261.3 and that the ground water beneath the property has been designated by a local agency for cleanup.

Because the ground water containing PCE is considerably below the surface of the property, excavation activities are not expected to encounter ground water containing PCE. To install caissons, however, it is necessary to bore holes into the ground that will pass through areas of the subsurface which have PCE-containing ground water. Some of this ground water may come to the surface when the caissons are installed.

Special drilling procedures and other measures have been taken to minimize the amount of ground water that will be displaced and come into contact with air during the caisson installation activities. Using these procedures, expected PCE concentrations in air on the property are expected not to exceed 0.00063 mg/m(3) during caisson installation. During other construction activities, PCE concentration in air are not expected to exceed 0.0000066 mg/m(3). These concentrations are orders of magnitude below both federal and California OSHA standards (680 mg/m(3)TWA and 170 mg/m(3)TWA, respectively).

On the basis of these calculations, the client's site safety consultant has concluded that no significant health risk is posed by PCE, either by inhalation or dermal exposure. Consequently, the site safety consultant has concluded that, from a health and safety viewpoint, there is no need for workers to be required to undertake 40 hours of training or otherwise be subject to the requirements of 29 C.F.R. Part 1910.120. Nevertheless, it is planned that gloves, boots and other protective clothing will be used by construction workers to minimize direct contact with ground water containing PCE. Additionally, training pursuant to the hazard communication standard of 29 C.F.R. Part 1910.1200 will be conducted. Air monitoring will be conducted to confirm that actual concentrations of PCE are in accordance with calculated concentrations.

Although Part 1910.120 does not include an express exemption for hazardous waste operations on sites where there is no potential of an exposure near or exceeding OSHA standards, it appears to us that such an exemption is necessarily implied. A "standard" is defined by OSHA regulations as conditions or practices "reasonably necessary and appropriate" for safe or healthful employment. 29 C.F.R. 1910.2(f). In this case, the requirements of Part 1910.120, particularly the 40 hour training requirements, are neither necessary nor appropriate to the site conditions. Rather, the requirements impose a substantial burden of time and expense without a corresponding health and safety benefit.

We request that OSHA issue a letter confirming that 29 C.F.R. Part 1910.120 is not applicable to this construction site in these circumstances. In the event that OSHA does not agree with our interpretation, we request that it render a letter determination expressing that the 25 hour training requirement set forth at 29 C.F.R. 1910.120(e)(3)(iii) (effective March 6, 1990) constitutes sufficient training in such circumstances, and that the agency would not find a violation of Part 1910.120 to exist if 25 hours of training (rather than the 40 hour program set forth by the interim regulation) was provided.

We would appreciate a response to this letter by July 31, 1989, if possible. Please call me at 415-393-2355 if you have any questions or wish to discuss this matter.

Very truly yours,



McCUTCHEN, DOYLE, BROWN & ENERSEN
By Mark S. Zemelman