March 26, 1996

Colonel Walter J. Cunningham, Commanding
Huntsville Division,
U.S. Army Corps of Engineers
Post Office Box 1600
Huntsville, Alabama 35807-4301

Dear Colonel Cunningham:

This is in response to your memorandum to the Occupational Safety and Health Administration (OSHA) requesting clarification of whether the OSHA Hazardous Waste Operations and Emergency Response (HAZWOPER) standard (29 CFR 1910.120 and 1926.65) applies to the remediation of unexploded conventional ordnance at formerly used defense sites (FUDS) and active military installations.

Specifically, you asked whether 40-hour training for general site workers, mandated in 1910.120(e)(3) and 1926.65(e)(3), is necessary for workers engaged in site activities that are not ground-intrusive, such as brush clearing and surveying, in which the primary hazard is the detonation of unexploded conventional ordnance. In a subsequent telephone conversation with Mr. William Chaffin of your staff, Mr. Chaffin further clarified that the remediation sites involved unexploded ordnance both at and below the soil surface and that detonations could result if workers inadvertently stepped on or struck the ordnance with an axe.

The Department of Transportation classifies conventional ordnance as a hazardous material in Title 49 of the Code of Federal Regulations Part 172.101 (49 CFR 172.101). Based on this classification, conventional ordnance meets the definition of a hazardous substance under OSHA's HAZWOPER standard. Accordingly, remediation work at FUDS and active military installation sites contaminated with unexploded conventional ordnance falls within the scope of the HAZWOPER standard. Workers performing remediation activities (including clearing and surveying activities) at these sites, therefore, must meet the intent of the 40 hours of instruction off the site and a minimum of three days supervised field experience in accordance with 29 CFR 1910.120(e)(3) (or 1926.65(e)(3)).

Your letter expressed concerns that the 40-hour training currently provided to workers engaged in remediation activities on sites contaminated with unexploded conventional ordnance was of little value. Mr. Chaffin elaborated on this concern in a subsequent telephone conversation, indicating that the 40-hour "standard HAZWOPER course" provided to these workers does not address explosives hazards and therefore, does not seem pertinent to their work. We share your concerns and acknowledge that training that does not address the hazards present on the worksite is of little value. We do not agree, however, that the 40-hour training described by Mr. Chaffin and in your letter is consistent with the OSHA HAZWOPER standard. The OSHA standard does not mandate a rigid, "standard" curriculum for the 40-hour training requirement but rather specifies in paragraph (e)(2) of the standard that required training must address the safety and health hazards present on the site and the related procedures and controls necessary for worker protection. Accordingly, the training provided to workers engaged in remediation activities on sites contaminated with unexploded conventional ordnance must address the hazards of unexploded ordnance and the related controls, as well as other hazards associated with the remediation site and proposed activities.

Compliance with the intent of the training requirements of 29 CFR 1910.120(e) or 1926.65(e) is achieved when employees are trained to a level required by their job functions and responsibilities. When sufficient training on safety and health issues pertinent to a specific worksite is provided to cleanup workers, but the specific number of hours required by the standard is not given, a de minimis violation may exist. If an employer complies with the clear intent of a standard but deviates from its particular requirements in a manner that has no direct or immediate relationship to employee safety or health, such a violation is characterized as de minimis. Citations are not issued for de minimis violations.

We hope that this response provides the clarification you need. If you have further questions, please contact this office at (202) 219-8045.

Sincerely,



John B. Miles, Director
Directorate of Compliance Programs