Contaminated soil discovered during construction excavation

NOTICE: This is an OSHA Archive Document, and may no longer represent OSHA Policy. It is presented here as historical content, for research and review purposes only.

December 9, 1989

MEMORANDUM FOR: JOHN B. MILES, JR.
REGIONAL ADMINISTRATOR

THROUGH: LEO CAREY, DIRECTOR
OFFICE OF FIELD PROGRAMS

FROM: THOMAS J. SHEPICH, DIRECTOR
DIRECTORATE OF COMPLIANCE PROGRAMS

SUBJECT: Application of 29 CFR 1910.120

This is in response to your inquiry concerning the scope and application of the Hazardous Waste Operations and Emergency Response standard (29 CFR 1910.120) to the Newport Combined Sewer Overflow Station construction site where some of the soil is contaminated.

Our understanding of this situation is as follows:

1. Work began to construct a sewer overflow station.

2 A discarded fuel tank was discovered during excavation activity.

3. The site was characterized by an environmental engineering firm. Some soil is contaminated with # 2 fuel oil and lead. One area is contaminated with EP extractable lead levels in excess of 5 mg/l which makes this soil material a hazardous waste.

4. The contaminated soil removed by the excavation activity is being stockpiled for later disposal as a hazardous waste under RCRA.

5. The site is not being cleaned up per se.

6. Nobody has designated the site to be cleaned up.

You are asking whether this site falls under the scope of 29 CFR 1910.120 and if so what provisions are applicable.

Even though the soil is considered a hazardous waste, the excavation and other construction activity is not considered a hazardous waste cleanup operation for the purposes of compliance with 29 CFR 1910.120 since:

1. At this time no Federal State or local government has designated this as a hazardous waste site that needs to be cleaned up; and

2. The excavation activity is being done solely for the purposes of construction.

If necessary other construction standards such as 29 CFR 1926.55, 1926.59, and 1926.21(b)(2) may be applicable to ensure employees are adequately trained on potential safety or health hazards.

If the contaminated soil is stockpiled for 90 days or more a RCRA TSD interim status or permit may be necessary. We suggest contacting the EPA Regional or State office for a clarification. The requirements of (o) of the interim final standard (29 CFR 1910.120) would be applicable for the handling (e.g., removal) of the hazardous waste if a RCRA interim status or permit is required.

I hope this information is helpful.