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. Note that 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 OSHA's website at https://www.osha.gov.

March 25, 1992

Mr. Travis Best Director,
Health and Safety
CWM Federal Environmental Services
1597 Cole Blvd.,
Suite 350
Denver, Colorado 80401

Dear Mr. Best:

This is in response to your inquiry of December 27, 1991, forwarded to OSHA's National Office from OSHA's Region VIII office, concerning the Occupational Safety and Health Administration's (OSHA) Hazardous Waste Operations and Emergency Response final rule (HAZWOPER), 29 CFR 1910.120.

You requested OSHA's clarification on what is considered a cleanup operation that has been "identified by a governmental body as an uncontrolled hazardous waste site." We addressed this issue in a memorandum dated July 16, 1990, to John Miles, Regional Administrator:

The term recognized by a government body means the hazardous waste site has been 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 in 29 CFR 1910.120. For example, all sites listed on EPA's CERCLIS list are "recognized."

A site that has not been formally recognized in writing by a government agency, but would be recognized if it were brought to an agency's attention, is still covered by OSHA. In some cases the employer will have to do some research to determine an agency's classification of the site. OSHA is not responsible for notifying employers of the status of their site.

In your correspondence to OSHA you asked whether there is any distinction between sites "recognized" by government bodies and sites "identified" by government bodies. The terms are synonymous; 1910.120 covers hazardous waste sites that are recognized or identified as such by governmental bodies.

In your correspondence you also quoted a question that you asked recently of a Denver Area Office Inspector, whose response you said was "No":

"If a governmental body, recognizing or requiring the cleanup operation involving hazardous substances, does not identify the site as an uncontrolled hazardous waste site, is the employer obligated to meet 29 CFR 1910.120?"

If a governmental body has stated to you in writing that it does not identify the site as a hazardous waste site that needs to be remediated or have the hazards removed, then the answer to your question is, correctly, "No." The exact words "uncontrolled hazardous waste site" do not have to be used by the government body to identify a site as covered under 1910.120. However, the absence of the classification, because the government agency is not fully aware of the site's characteristics, does not make the site exempt from HAZWOPER's scope.

You argue that there could be sites on the NPL or state priority lists, or otherwise specifically identified in (a)(1)(i), which would not be covered by HAZWOPER "until the site is specifically identified by a governmental body as an uncontrolled hazardous waste site". Your interpretation is incorrect and the question you asked would only apply in very rare situations. All sites on the lists identified by (a)(1)(i) are covered by 1910.120. The standard covers clean ups of hazardous substances at hazardous waste sites, and those are lists of reported hazardous waste sites.

We would also like to correct a quotation from your letter that we feel is vitally important to your interpretation. The Code of Federal Regulations (CFR) states that HAZWOPER covers clean-up operations required by a governmental body that are conducted at uncontrolled hazardous waste sites:

"... (including, but not limited, to the EPA's National Priority Site List (NPL), state priority site lists, sites recommended for the EPA NPL, and initial investigations of government identified sites which are conducted before the presence or absence of hazardous substance has been ascertained)"

All sites on the lists identified in that paragraph are covered by 1910.120. Sites that are not on one of those lists would be covered if they came under a category specified in HAZWOPER'S scope.

In addition, if a site fails to fall within HAZWOPER's scope the employer's obligation then shifts from protecting employees working at the site by complying with the HAZWOPER standard to protecting employees by complying with the appropriate general industry and construction standards. Moreover, the general duty clause, section 5(a)(1) of the Occupational Safety and Health Act of 1970, applies to all employers and requires each employer to provide employees with a place of employment which is free from recognized hazards that may cause death or serious physical harm to employees.

We hope this information is helpful. If you have any further questions please feel free to contact us at (202) 523-8036.


Patricia Clark, Director
Directorate of Compliance Programs