March 11, 2011
Mr. David J. Wingerd, P.G.
1105 Fairlawn Court
Crofton, MD 21114
Dear Mr. Wingerd:
Thank you for your January 28, 2011, letter to the Occupational Safety and Health Administration's (OSHA's) Directorate of Enforcement Programs. You requested OSHA's interpretation of available sanitation facility requirements under the Hazardous Waste Operations and Emergency Response (HAZWOPER) Standard, 29 CFR 1910.120 [29 CFR 1926.65 in construction]. This letter constitutes OSHA's interpretation only of the requirements discussed and may not be applicable to any question not detailed in your original correspondence. Your questions are below, followed by our responses.
Question 1: Is it acceptable under either or both §1926.51(c)(4) and §1910.120(n)(3) [§1926.65(n)(3)] to deem workers at a HAZWOPER site to be "mobile workers when the scope of work requires approximately four weeks of daily activities?"
Answer: No. Workers on a worksite for extended periods of time (days, weeks, or longer), would not be considered a mobile crew.
Question 2: Is it acceptable for an environmental/engineering (E/E) firm in responsible charge of a HAZWOPER site to designate use of sanitary facilities at an off-site location without the consent of the commercial, hospitality industry business targeted?
Response: The sanitation provisions under the HAZWOPER standard come from the OSHA's construction industry requirement 29 CFR 1926.51. In that standard, employers are required to provide on job sites, not provided with a sanitary sewer, one of the following toilet facilities unless prohibited by local codes: privies (where their use will not contaminate ground or surface water); chemical toilets; recirculating toilets; or combustion toilets. There is no OSHA requirement to obtain consent from a commercial business when using off-site facilities.
Question 3: Is it necessary to have a written agreement in place with more than one of several of the "nearby" commercial facilities for acknowledgement of the allowed use of sanitary facilities by HAZWOPER workers, which is then documented in the health and safety plan in lieu of the E/E firm employer providing portable sanitation facilities?
Response: There is no OSHA requirement to have a "written agreement" for workers that may utilize sanitation facilities outside of the job site. However, the site health and safety plan (HASP) required under HAZWOPER must include information on the job site's sanitation needs for workers.
Question 4: If anyone arrives to the HAZWOPER site frequently and who is not under the HASP (e.g., environmental regulators), then are those individuals considered to be mobile workers?
Response: Generally, each employer that has workers working at a HAZWOPER site must evaluate the nature of the site and job functions of their workers. Workers who continually or frequently move from jobsite to jobsite on a daily or hourly basis would be considered a "mobile crew." Environmental regulators that may travel daily between multiple sites would be considered "mobile." But, an environmental regulator worker that is considered an "on-scene coordinator" normally works at the same site throughout the period of time a clean up operation is taking place. This type of worker would then not be considered "mobile."
Question 5: If anyone working on the site requests that sanitary facilities be brought to the HAZWOPER site, is it acceptable for the E/E firm's Project Manager, office management, E/E firm's Principal and E/E firm's corporate health and safety Manager to ignore and neglect these requests?
Response: See response to question 2. In addition, workers affiliated or not with the on-site E/E firm may make a safety/health complaint or referral to the federal area office or state plan office having jurisdiction over the job site. A listing of area and state plan offices may be found at or by phoning 1-800-321-OSHA (6347).
Question 6: If the E/E firm's choice is to not provide portable sanitation facilities for HAZWOPER workers for the four week period and workers would rather not leave their work area, is the E/E firm accountable for condoning public urination or out-of-doors defecation on two commercial properties not owned by their client without the subject being addressed in the HASP?
Response: See response to question 2.
As you may be aware, the Maryland Division of Labor and Industry administers an OSHA-approved state occupational safety and health program for both private and public sector employers and employees in Maryland. State plans are required to implement regulations that are "at least as effective" as the federal standards. If you would like further information regarding Maryland occupational safety and health requirements, you may contact the Maryland Division of Labor and Industry at the following address:
Maryland Division of Labor and Industry
Occupational Safety and Health
10946 Golden West Drive, Suite 160
Hunt Valley, MD 21031
PH: (410) 527-4447
FAX: (410) 527-4495
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. 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 www.osha.gov. If you have any further questions, please feel free to contact the Office of Health Enforcement at (202) 693-2190.
Thomas Galassi, Director
Directorate of Enforcement Programs