July 28, 1993

Ms. Karen Stoller
Health and Safety Manager
Barr Engineering Company
8300 Norman Center Drive
Minneapolis, MN 55437-1026

Dear Ms. Stoller:

Thank you for your letter dated February 22, concerning the Occupational Safety and Health's (OSHA's) Hazardous Waste. Operations and Emergency Response (HAZWOPER) regulation, 29 CFR 1910.120.

As you may know, the State of Minnesota is administering its own occupational safety and health program under a plan approved and monitored by Federal OSHA. Therefore, employers in the State of Minnesota must comply with State occupational safety and health requirements. As a condition of plan approval, States are required to adopt and enforce occupational safety and health standards at least as effective as those promulgated by Federal OSHA. If you would like further information regarding Minnesota occupational safety and health requirements, you may contact the Minnesota Department of Labor and Industry directly at the following address:

[Ms. Shirley Chase, Commissioner
Minnesota Department of Labor and Industry
443 Lafayette Road
Saint Paul, Minnesota 55155
Telephone: (651) 284-5010]

We are providing our Federal OSHA interpretation in response to your concerns. Please bear in mind that the State of Minnesota must be at least as protective as Federal OSHA and may be more stringent.

Your question requests clarification on the applicability of HAZWOPER to potable water treatment facilities (WTF) involved in CERCLA remedial actions. Specifically, you ask if HAZWOPER applies to a WTF that treats a regional contaminated groundwater plume from a hazardous waste site yet is located several miles downgradient from the contaminated source, i.e. outside the fence line.

The standard states in paragraph (a)(1) that employees involved in hazardous waste operations are covered by the standard "unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility of employee exposure...." Your letter suggests that the WTF believes that there is no significant exposure to hazardous substances. Your example is one where that may indeed be the case. However, OSHA cannot confirm whether your assessment of employee exposure is adequate. If you have sufficient monitoring data to validate your position that employees at the WTF are at "no significant exposure" to contaminants, then indeed, the WTF would not appear to be covered by paragraphs (b) through (o) or (p) of HAZWOPER. Other OSHA standards, such as the Hazard communication standard, 29 CFR 1910.1200, may of course be applicable.

However, section (q) of 1910.120 applies to workplaces that have a potential for emergencies caused by the release of hazardous substance, for example chlorine at the WTF. The HAZWOPER standard provides employers with the option of either using employees to respond to emergencies meeting the requirements in section (q), or evacuating their employees from the hazardous area when an emergency occurs and providing an emergency action plan in accordance with [29 CFR 1910.38, Employee Emergency Plans].

We hope this information is helpful. If you have any further questions please contact the State of Minnesota.

Sincerely,



Roger A. Clark, Director
[Directorate of Enforcement Programs]

(Correction 4/18/03)


February 22, 1993

Mr. Roger Clark Director
Directorate of Compliance Programs
Room N-3471 USDOL-OSHA
200 Constitution Avenue
Washington, DC 20210

RE: 29 CFR 1910.120 Hazardous Waste Operations and Emergency Response Request for Interpretation on Applicability of Standard

Dear Mr. Clark:

This letter is a redraft of the January 20, 1993 letter sent to your office. I have previously spoken with David Brocato of OSHA regarding that letter and would like to clarify some of the issues identified during our discussions.

The purpose of this letter is to request an interpretation of the applicability of the Hazardous Waste Operations and Emergency Response Standard, 29 CFR 1910.120, (hereinafter referred to as HAZWOPER), Section (a)(1), as it relates to the operation of potable water treatment facilities involved in CERCLA remedial actions where a Record of Decision (ROD) has been or is expected to be issued.

Barr Engineering Co. (Barr) is an environmental consulting firm which is involved in advising municipal clients regarding the design, construction, and operation of municipal water treatment systems which treat contaminated groundwater for potable use. We are aware of several situations where municipal water supply wells are being used, or have been proposed to be used, for the dual role of providing potable water and for controlling the migration of groundwater contaminant plumes.

In those situations, the municipalities operate water treatment facilities to assure the delivery of safe drinking water to their residents. These facilities are typically permanent operations that are designed and operated as an integral part of the municipality's water supply system using standard water supply practices. Those practices, as a routine matter, do not include many of the requirements that HAZW0PER would impose. Because these facilities involve long-term operation, application of inappropriate or unintended regulations can have a substantial impact on cost, and impose unnecessary understaffed municipalities.

Many of these water treatment facilities share common characteristics. The location of the facilities are generally several miles downgradient from the contamination source and the water being treated is generally part of a regional contaminated groundwater plume. The facilities are located within the municipality and are surrounded by residential homes. The municipalities and homes serviced by these facilities are situated on top of the regional contaminated groundwater plumes, which may be several hundred feet below the ground surface, miles from the source of contamination. The water supply wells for these facilities were previously operated as potable water supply wells prior to the detection of contamination.

Figure 1 shows the location of a typical water treatment facility as it relates to a contamination source. Figure 2 shows a plan view of a typical facility and its close proximity to residential units. The treatment system in this type of facility may consist of groundwater pumpout wells and pressure vessels containing granular activated carbon (GAC). Groundwater is typically piped to the vessels where contaminants are removed prior to entry into the distribution system. These facilities are generally designed to operate as unmanned facilities. Operators may periodically visit the facility to ensure that the treatment system is properly operating 'and to collect both influent and effluent water samples.

At this time, it is not evident that HAZW0PER applies to the operation of this type of water treatment facility. Reviewing the scope of the standard, paragraph (i) of 1910.120(a)(1) covers clean-up operations required by a governmental body conducted at uncontrolled hazardous waste sites. Although the operation of this type of water treatment facility is required by a governmental body under a CERCLA remedial action, it is our understanding that this type of facility would not fall under the definition of an "uncontrolled hazardous waste site". Due to the low level of contamination typically found in the groundwater at these facilities and the controlled conditions existing in the operation of these plants, Barr does not consider the operations conducted at this type of water treatment facility to be consistent with those operations conducted at uncontrolled hazardous waste sites. These facilities are not located near the source of the contamination and the operation of these facilities does not create threats to the health and safety of individuals and/or the environment.

Paragraph (v) of 1910.120(a)(1) covers operations involving hazardous waste at treatment, storage, and disposal (TSD) facilities. It is our understanding that since these types of facilities treat groundwater for public consumption rather than treating hazardous waste, they would not be considered a TSD facility. The State of Minnesota does not, in general, consider the contaminated groundwater to be a hazardous waste. These facilities are not required to be a permitted TSD facility.

We do understand that other general OSHA standards may apply to this type of facility, as they would to any typical municipal water treatment facility. Hazardous substances used at a facility of this type may include chlorine and hydrofluosilicic acid, which are typical chemicals used in potable water treatment processes. In the event of a release of any of these hazardous substances, employees are typically instructed to evacuate these facilities and rely on emergency response providers to respond to releases.

Please offer an interpretation on whether the operation of these facilities is covered under the HAZWOPER Standard. If you need further information pertaining to the operation of these facilities, please feel free to contact me at (612) 832-2600. We look forward to your reply.

Sincerely,



Karen S. Stoller, CIH
Health and Safety Manager


KSS/lah