HAZWOPER coverage for construction above contaminated groundwater

August 15, 1989

Mr. Mark S. Zemelman
McCutchen, Doyle, Brown & Enersen
Counselors at Law
[Recipient address omitted]
Dear Mr. Zemelman:

This is in response to your inquiry concerning the application of OSHA's Hazardous Waste Operations and Emergency Response Operations final standard to the construction of a building on property previously occupied by a dry cleaning facility.

For the purposes of this letter you asked us to assume that the ground water would be classified as hazardous waste (contains perchloroethylene (PCE)) and that the ground water beneath the property has been designated by a local agency for cleanup. Because the ground water containing PCE is considerably below the surface of the property, excavation activities are not expected to encounter ground water containing PCE. To install caissons, however, it is necessary to bore holes into the ground that will pass through areas of the subsurface which have PCE-containing ground water.

Any activity during the construction project which is related to cleaning up of hazardous waste would be covered by 29 CFR 1910.120 unless the employer can demonstrate that the operation does not involve employee exposure or the reasonable possibility for employee exposure to safety or health hazards. A minimum of 24 hours of training would be sufficient for workers who will not be exposed above permissible exposure limits and there is no possibility of an emergency developing as a result of an uncontrolled release of a hazardous substance.

As you may be aware, since 1973 the State of California has administered its own occupational safety and health program (Cal/OSHA) under the provisions of the Occupational Safety and Health Act. In February 1987, funding was deleted from the State's budget for private sector activities of that program, and Cal/OSHA ceased private sector enforcement coverage on July 1, 1987. However, Cal/OSHA continued to administer its occupational safety and health program for public employees of the State and its political subdivisions. On November 8, 1988, California's voters passed Proposition 97, which added a section to the State Labor Code mandating California's implementation of a full State plan. On May 1, the State of California began phased resumption of private sector enforcement and is responding to occupational safety and health complaints and accidents. California's full resumption of private sector activities is expected by October 1.

You can contact the appropriate State office at the following address and telephone number:

Ron Rinaldi, Director
California Department of Industrial Relations
525 Golden Gate Avenue
San Francisco, California 94102
Telephone: (415) 557-3356

We hope this information will be helpful to you and your client.

Sincerely,
Patricia K. Clark, Acting Director
Directorate of Compliance Programs

[Requester letter reproduced on OSHA page; omitted here.]