July 30, 2021

Mr. Eric J. Sparks
5800 Foxtail Drive
Reno, NV 89502

Dear Mr. Sparks:

Thank you for your inquiry to the Occupational Safety and Health Administration (OSHA), Directorate of Enforcement Programs. Your letter requested guidance on the application of OSHA’s Hazardous Waste Operations and Emergency Response (HAZWOPER) standard, 29 CFR § 1910.120, to homeless camp cleanup operations. This letter constitutes OSHA’s interpretation only of the requirements herein, and may not be applicable to any questions not delineated within your original correspondence.

Background: Your letter stated that chemical compounds (e.g., synthetic opioids, other illegal drugs), blood contaminated syringes, and other biological hazards can reasonably be expected to be encountered in many homeless camps and pose an immediate risk of significant health effects for employees who may mishandle these substances during cleanup operations. You also stated the hazardous substances encountered in these encampments seem to meet the Environmental Protection Agency (EPA) and Department of Transportation (DOT) definitions for hazardous substances, and it appears the cleanup operations may fall under OSHA’s HAZWOPER standard.

General response: The HAZWOPER standard applies to five distinct groups of employers and their employees. This includes any employees who are exposed or potentially exposed to hazardous substances -- including hazardous waste -- and who are engaged in one of the following operations as specified by 29 CFR §§ 1910.120(a)(1)(i)-(v):

(i) Cleanup operations required by a governmental body involving hazardous substances that are conducted at uncontrolled hazardous waste sites.¹

(ii) Corrective actions involving cleanup operations at sites covered by the Resource Conservation and Recovery Act (RCRA) of 1976 as amended.

(iii) Voluntary cleanup operations at sites recognized by a governmental body as uncontrolled hazardous waste sites.

(iv) Operations involving storage, treatment, and disposal facilities regulated by 40 CFR §§ 264 and 265 pursuant to RCRA.

(v) Emergency response operations regardless of location when there has been a release or substantial threat of release of hazardous substances.

Cleanup operations of homeless encampments would fall under the scope of the HAZWOPER standard under paragraph 1910.120(a)(1)(iii) if the site is recognized by a governmental body as an uncontrolled hazardous waste site. Voluntary cleanup operation sites must be acknowledged by a government agency in writing, or the agency would be willing to acknowledge in writing that the site contains hazardous substances as defined by 29 CFR § 1910.120(a)(3).

Where cleanup workers are exposed to a hazardous substance, as defined by 29 CFR § 1910.120(a)(3), and the cleanup operation is covered by one of the scope provisions of the standard (as stated above), then the HAZWOPER standard would be applicable and the employer would be required to comply with paragraphs 1910.120(b)-(o), including site characterization, written safety and health plan, training, and medical surveillance.

Note that the HAZWOPER standard is unique in one of its provisions, 29 CFR § 1910.120(a)(2)(i), which states if there is a conflict or overlap, the provision more protective of employee safety and health shall apply without regard to 29 CFR § 1910.5(c)(1). Other possible applicable standards include, but are not limited to: General Requirements for Personal Protective Equipment, 29 CFR § 1910.132; Respiratory Protection, 29 CFR § 1910.134; Bloodborne Pathogens, 29 CFR § 1910.1030; and Hazard Communication, 29 CFR § 1910.1200.

In circumstances where workers engage in a cleanup operation of a worksite that does not fall under the scope of the HAZWOPER standard, the employer must still comply with other applicable OSHA standards to protect its workers, such as those listed above.

In states with approved OSHA State Plans, the occupational safety and health of state and local employees are covered under their respective State OSHA program.

Your questions are paraphrased below, followed by our response.

Question 1: If cleanup workers are exposed to blood, feces, and contagious pathogens that may reasonably be anticipated to cause disease, would these hazards meet the definition of hazardous substances under 29 CFR § 1910.120(a)(3)?

Response: The definition of hazardous substance under 29 CFR § 1910.120(a)(3) includes “[a]ny biologic agent and other disease causing agent which after release into the environment and upon exposure, ingestion, inhalation, or assimilation into any person, either directly from the environment or indirectly by ingestion through food chains, will or may reasonably be anticipated to cause death, disease, behavioral abnormalities, cancer, genetic mutation, physiological malfunctions (including malfunctions in reproduction) or physical deformations in such persons or their offspring.”

Applicable HAZWOPER cleanup operations involving biological agents reasonably likely to cause death or disease, including blood, would be covered as hazardous substances under 29 CFR § 1910.120(a)(3), Definitions. As explained in the preamble to the Bloodborne Pathogens standard:

There are three potential scenarios where the bloodborne and hazardous waste operations and emergency response standard may interface. These scenarios include: workers involved in cleanup operations at hazardous waste sites involving regulated waste; workers at RCRA permitted incinerators that burn infectious waste; and workers responding to an emergency caused by the uncontrolled release of regulated waste (e.g., a transportation accident).

Employers of employees engaged in these three activities must comply with the requirements in 29 CFR § 1910.120 as well as the Bloodborne Pathogens standard. If there is a conflict or overlap, the provision that is more protective of employee health and safety applies. 56 Fed. Reg. 64004 (Dec. 6, 1991).

However, in general, human feces would not meet the definition of hazardous substance because they are not reasonably anticipated to cause death or disease.

Question 2: Some hazards (e.g., biological agents) present during cleanup operations could meet one of the definitions found in EPA 40 CFR § 261.3 or DOT 49 CFR § 171.8 standards. Would OSHA consider these potential exposures as meeting the definition of hazardous waste per 29 CFR § 1910.120(a)(3)?

Response: Yes. Since the EPA and DOT definitions for hazardous waste [emphasis added] were incorporated by reference into the HAZWOPER standard, a hazardous substance that meets either the EPA or DOT definition would also meet OSHA’s HAZWOPER definition as a hazardous waste, and should be properly handled in accordance with the HAZWOPER standard.

Question 3: Would the following homeless camp cleanup scenario be considered a voluntary cleanup operation under 29 CFR § 1910.120(a)(1)(iii)?

Scenario: The cleanup operation occur in an unsecured location that was unauthorized for use as a homeless camp (e.g., bridge underpass, public park). Substances are present that meet the definition of hazardous substances or hazardous waste, and the site is uncontrolled, but the cleanup operation is recognized as hazardous through written communication of local government by means of e-mail correspondence, written request for proposal, or by written job description and scope.

Response: The cleanup of homeless encampments of any kind, regardless of where they are located and whatever hazards may be present, should have an adequate and complete site characterization conducted prior to site entry to identify any potential safety and health hazards. Based on the site characterization and the potential hazards noted, then any appropriate cleanup procedures, plans, and equipment should be used, and the employer must comply with all applicable OSHA standards. For the given scenario, it seems that the cleanup operation could meet the criteria of a voluntary cleanup operation under paragraph 1910.120(a)(1)(iii).

While not specific to homeless camp cleanup operations, further information on HAZWOPER requirements can be found in OSHA publication 3114, Hazardous Waste Operations and Emergency Response, available on OSHA’s web site at https://www.osha.gov/Publications/OSHA3114/OSHA-3114-hazwoper.pdf.

Thank you for your interest in occupational safety and health. I hope you find this information helpful. OSHA’s requirements are set by statute, standards, and regulations. Letters of interpretation do not create new or additional requirements but rather explain these requirements and how they apply to particular circumstances. This letter constitutes OSHA’s interpretation of the requirements discussed. From time to time, letters are affected when the agency updates a standard, a legal decision impacts a standard, or changes in technology affect the interpretation. To ensure that you are using the correct information and guidance, please consult OSHA’s website at https://www.osha.gov. If you have further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.

Sincerely,

Patrick J. Kapust, Acting Director Directorate of Enforcement Programs

[1] Governmental body means Federal, state, local, or other governmental bodies.