September 26, 2002

Mr. Jerry Fields
Health and Safety Professional
Brown and Caldwell
3636 North Central Avenue, Suite 200
Phoenix, AR 85012

Dear Mr. Fields:

Thank you for your April 29 letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs requesting clarification of safety and health program requirements under 29 CFR 1910.120 for Phase I and Phase II environmental assessments. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question or concern not delineated within your original correspondence.

You state in your letter the sites have not been classified as hazardous waste sites, although they may contain hazardous waste or hazardous substances. We clarified other questions in a July 2 telephone conversation with you. Your questions are summarized below, followed by our responses.

Question 1: Does the preliminary evaluation of active or non-active industrial/commercial sites for the determination of ground contamination require a written safety and health plan which would contain all elements of 29 CFR 1910.120(b)(4)(ii)?

Response: First, it must be determined if the work is covered by the Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, 29 CFR 1910.120. HAZWOPER addresses sites recognized by a federal, state, local or other governmental body as uncontrolled hazardous waste sites.

Paragraphs (b)-(o) of the standard apply during mandatory or voluntary clean-up operations and initial investigations conducted to determine the presence or absence of hazardous substances unless an employer can demonstrate that the work does not involve employee exposure to safety and health hazards from hazardous substances at the site. Please refer to our June 27, 1997 letter to Mollie Netherland, available online at www.osha.gov, that more fully addresses the issue of employee exposure under HAZWOPER.

If the HAZWOPER standard applies, then the employer must develop and implement a written site-specific health and safety plan (HASP) that addresses the safety and health hazards of each phase of site operation and includes the requirements and procedures for employee protection. The minimum elements for this plan are contained 29 CFR 1910.120(b)(4)(ii).

Regardless of whether HAZWOPER applies, the employer is responsible for identifying hazards, training employees, and selecting and ensuring the use of appropriate personal protective equipment. The records search that you said would occur prior to any site visit should supply the employer with information so he/she can perform a hazard assessment, select personal protective equipment, and instruct employees on hazard recognition as required under 1910.132(d) for General Industry or 1926.21(b)(2) for Construction. The hazard assessment should be performed before the site survey and initial sampling, and it should be updated to reflect new information.

Question 2: During Phase I and Phase II property assessments, would a modified written site-specific safety and health plan be appropriate if it covered anticipated safety and health hazards?

Response: HAZWOPER is a performance-oriented standard. If worksite conditions are such that HAZWOPER applies to these operations, then a site-specific HASP that addresses site-specific hazards and their control and addresses elements in paragraph (b)(4) would meet the intent of the standard. If a plan element is not applicable (i.e., no confined spaces on the site), noting that information in the plan is sufficient.

Question 3: If Phase I property assessments were required for several similar site locations, would a regional written safety and health plan be appropriate if it covered anticipated safety and health hazards?

Response: If HAZWOPER applies to these operations, the employer may prepare a generic HASP and add the site-specific information for each new site. Please see the response to Question 1 above regarding the site-specific elements that must be addressed.

The Occupational Safety and Health Administration and the Environmental Protection Agency provide a number of on-line and written resources for developing both a site-specific HASP and a comprehensive Safety and Health Program. You may access this information by choosing "H" on the OSHA web page index and selecting "Hazardous Waste" from the list.

Thank you for your interest in occupational safety and health. We hope you find this information helpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult the OSHA website at http://www.osha.gov. If you have any further questions, please feel free to contact the [Office of Health Enforcement] at (202) 693-2190.

Sincerely,



Richard E. Fairfax, Director
[Directorate of Enforcement Programs]