2000 CPEO Brownfields List Archive

From: Emery Graham <egraham@ci.wilmington.de.us>
Date: Mon, 17 Jul 2000 10:46:00 -0700 (PDT)
Reply: cpeo-brownfields
Subject: [CPEO-BIF] Do All Brownfields Programs Meet OSHA Safety Requirements?

Do all entities participating in the National Brownfields Assessment
Demonstration Grant Program have OSHA compliant "Health and Safety
In cities with densely populated brownfield areas, the question of
municipal worker and resident citizen safety is an often overlooked
aspect of a local Brownfields program. Issues related to the
reasonableness of risk based cleanups in densely populated areas deal
with the impacts of leaving contaminants on site and institutional
control agreements designed to maintain protection of the public. In the
short term, questions of waste site worker, municipal worker, and area
resident safety parallel those more commonly discussed and long term

Routine verbal guidance from Program Managers probably states that the
assessment contractor will supply the health and safety plan for the
site. I'm certain that's true, but there's an addtional requirment that
supercedes the contractor's obligation. While not having seen every
Brownfields Cooperative Agreement, I suspect they all require identical
commitments from award recipients in their certifications section. One
of the more perplexing certifications has been the one in #13 dealing
with health and safety plans.

In the literature and guidance from EPA I've found no specific direction
to local Brownfield Coordinators on meeting the Brownfields Assessment
Demonstration Cooperative Agreement certification requirement dealing
with health and safety programs ,i.e., item #13 in the Certifications
Section of the Cooperative Agreement. I suspect that this is not an
issue in cities with long standing health and safety programs or in
cities whose state is an OSHA Plan state. I do suspect that in small
cities and in non OSHA Plan states, this issue is problemmatic.

Unfortunately the neither the Program Office nor the External Affairs
Office  in my Region of EPA was able to provide definitive guidance in
the matter. My Congressional Delegation contacts were able to link me
with the Senior Environmental Specialist on the Environmental Response
Team who serves as the Health and Safety Program Specialist. He in turn
linked me to the OSHA Compliance Specialist and her counterpart in EPA
who manages the interagency cooperative agreement governing OSHA's
supporting role as part of EPA's obligation to enforce OSHA Health and
Safety Program requirements(29 CFR 1910.120) in states that aren't OSHA
"Plan" states. As it turns out  EPA has been obligated to act as OSHA in
matters dealing with Health and Safety Programs in non OSHA Plan states.
The result of this assistance was a 4 hour workshop featuring these very
knowledgeable and authoritative program personnel giving our Public
Safety Director, City Solicitor, Public Health Officer, Brownfields
Coordinator, and City Council Consultant a very thorough background in
the municipality's obligation to have a Health and Safety Program that
complied with 29 CFR 1910.120 if it had any functions that dealt with
hazardous wastes or materials, Brownfields being one example of such

The resounding  message regarding Health and Safety Programs was that
every city had to have a 29 CFR 1910.120 compliant Health and Safety
Program if it had any employees involved with hazardous wastes,
materials, or situations where regulated contamination was involved.

The prevailing thought had been that OSHA regulations did not apply to
municipal governments; that is not correct! OSHA's Health and Safety
Program regulations at 29 CFR 1910.120 apply to all governments that
meet the criteria stated in the regulation. Below is my abbreviated
structure of obligations and authorities that link Brownfield Assessment
Demonstration Grant Cooperative Agreement recipients to OSHA Health and
Safety Program performance requirements. I'd like to hear from other
Brownfield Coordinators who have interest in this issue or who find this
information helpful. You can contact me at egraham@ci.wilmington.de.us.


Item #13 in the Brownfield Assessment Demonstration Cooperative
Agreement Certifications Section:

"Before beginning field work, the recipient must have a health and
safety plan in place providing for the protection of on site personnel and
area residents. This plan need not be submitted to EPA, but must be made
available to EPA upon request.

The recipient's health and safety plan must comply with Occupational
Safety and Helath Administration  (OSHA) 29 CFR 1910.120, entitled
"Hazardous Waste Operations and Emergency Response," unless the recipient
is an Indian Tribe which is exempt from OSHA requirements."


[Code of Federal Regulations]
[Title 40, Volume 20, Parts 300 to 399]
[Revised as of July 1, 1999]
>From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR311.1]

[Page 414-415]


                           AGENCY (Continued)

PART 311--WORKER PROTECTION--Table of Contents

Sec. 311.1  Scope and application.

    The substantive provisions found at 29 CFR 1910.120 on and after
March 6, 1990, and before March 6, 1990, found at 54 FR 9317 (March 6,
1989), apply to

[[Page 415]]

State and local government employees engaged in hazardous waste
operations, as defined in 29 CFR 1910.120(a), in States that do not have

a State plan approved under section 18 of the Occupational Safety and
Health Act of 1970.


[Code of Federal Regulations]
[Title 40, Volume 20, Parts 300 to 399]
[Revised as of July 1, 1999]
>From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR311.2]

[Page 415]


                           AGENCY (Continued)

PART 311--WORKER PROTECTION--Table of Contents

Sec. 311.2  Definition of employee.

    Employee in Sec. 311.1 is defined as a compensated or non-
compensated worker who is controlled directly by a State or local
government, as contrasted to an independent contractor.


OSHA Regulations (Standards - 29 CFR)
   Hazardous waste operations and emergency
   response. - 1910.120

     OSHA Regulations (Standards - 29 CFR) - Table of Contents

        Standard Number: 1910.120
        Standard Title: Hazardous waste operations and emergency
        SubPart Number: H
        SubPart Title: Hazardous Materials

        Scope, application, and definitions. -

        Scope. This section covers the following operations, 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:

        Clean-up operations required by a governmental body, whether
Federal, state local or other involving hazardous substances 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 substances has been ascertained;

        Corrective actions involving clean-up operations at sites
covered by the Resource Conservation and Recovery Act of 1976 (RCRA) as
amended (42 U.S.C. 6901 et seq);


        Voluntary clean-up operations at sites recognized by Federal,
state, local or other governmental bodies as uncontrolled hazardous waste

        Operations involving hazardous waste that are conducted at
treatment, storage, disposal (TSD) facilities regulated by 40 CFR Parts
264 and 265 pursuant to RCRA; or by agencies under agreement with
U.S.E.P.A. to implement RCRA regulations; and

        Emergency response operations for releases of, or substantial
threats of releases of, hazardous substances without regard to the
location of the hazard.


        All requirements of Part 1910 and Part 1926 of Title 29 of the
Code of Federal Regulations apply pursuant to their terms to hazardous
waste and emergency response operations whether covered by this section or
not. If there is a conflict or overlap, the provision more protective of
employee safety and health shall apply without regard to 29 CFR 1910.5(c)(1).

        Hazardous substance clean-up operations within the scope of
paragraphs (a)(1)(i) through (a)(1)(iii) of this section must comply with
all paragraphs of this section except paragraphs (p) and (q).


        Operations within the scope of paragraph (a)(1)(iv) of this
section must comply only with the requirements of paragraph (p) of this

   Notes and Exceptions:

        All provisions of paragraph (p) of this section cover any
treatment, storage or disposal (TSD) operation regulated by 40 CFR parts
264 and 265 or by state law authorized under RCRA, and required to have a
permit or interim status from EPA pursuant to 40 CFR 270.1 or from a state
agency pursuant to RCRA.

        Employers who are not required to have a permit or interim
status because they are conditionally exempt small quantity generators
under 40 CFR 261.5 or are generators who qualify under 40 CFR 262.34 for
exemptions from regulation under 40 CFR 262.34 for exemptions from
regulation under 40 CFR parts 264, 265, and 270 ("excepted employers") are
not covered by paragraphs (p)(1) through (p)(7) of this section. Excepted
employers who are required by the EPA or state agency to have their
employees engage in emergency response or who direct their employees to
engage in emergency response are covered by paragraph (p)(8) of this
section, and cannot be exempted by (p)(8)(i) of this section.


        If an area is used primarily for treatment, storage or disposal,
any emergency response operations in that area shall comply with paragraph
(p) (8) of this section. In other areas not used primarily for treatment,
storage, or disposal, any emergency response operations shall comply with
paragraph (q) of this section. Compliance with the requirements of
paragraph (q) of this section shall be deemed to be in compliance with the
requirements of paragraph (p)(8) of this section.

        Emergency response operations for releases of, or substantial
threats of releases of, hazardous substances which are not covered by
paragraphs (a)(1)(i) through (a)(1)(iv) of this section must only comply
with the requirements of paragraph (q) of this section.

        Definitions -

        "Buddy system" means a system of organizing employees into work
groups in such a manner that each employee of the work group is designated
to be observed by at least one other employee in the work group. The
purpose of the buddy system is to provide rapid assistance to employees in
the event of an emergency.

        "Clean-up operation" means an operation where hazardous
substances are removed, contained, incinerated, neutralized,d stabilized,
cleared-up, or in any other manner processed or handled with the ultimate
goal of making the site safer for people or the environment.

        "Decontamination" means the removal of hazardous substances from
employees and their equipment to the extent necessary to preclude the
occurrence of foreseeable adverse health effects.

        "Emergency response" or "responding to emergencies" means a
response effort by employees from outside the immediate release area or by
other designated responders (i.e., mutual aid groups, local fire
departments, etc.) to an occurrence which results, or is likely to result,
in an uncontrolled release of a hazardous substance. Responses to
incidental releases of hazardous substances where the substance can be
absorbed, neutralized, or otherwise controlled at the time of release by
employees in the immediate release area, or by maintenance personnel are
not considered to be emergency responses within the scope of
this standard. Responses to releases of hazardous substances where there
is no potential safety or health hazard (i.e., fire, explosion, or chemical
exposure) are not considered to be emergency responses.

        "Facility" means (A) any building, structure, installation,
equipment, pipe or pipeline (including any pipe into a sewer or publicly
owned treatment works), well, pit, pond, lagoon, impoundment, ditch,
storage container, motor vehicle, rolling stock, or aircraft, or (B) any
site or area where a hazardous substance has been deposited, stored,
disposed of, or placed, or otherwise come to be located; but does not
include any consumer product in consumer use or any water-borne vessel.

        "Hazardous materials response (HAZMAT) team" means an organized
group of employees, designated by the employer, who are expected to
perform work to handle and control actual or potential leaks or spills of
hazardous substances requiring possible close approach to the substance.
The team members perform responses to releases or potential releases of
hazardous substances for the purpose of control or stabilization of the
incident. A HAZMAT team is not a fire brigade nor is a typical fire brigade
a HAZMAT team. A HAZMAT team, however, may be a separate component of a
fire brigade or fire department.

        "Hazardous substance" means any substance designated or listed
under (A) through (D) of this definition, exposure to which results or may
result in adverse effects on the health or safety of employees:

        [A] Any substance defined under section 101(14) of CERCLA;

        [B] Any biologic agent and other disease causing agent which
after release into
        the environment and upon exposure, ingestion, inhalation, or
assimilation into any person, either directly from the environment or
indirectly by ingestion through food chains, will or may reasonably be
anticipated to cause death, disease, behavioral abnormalities, cancer,
genetic mutation, physiological malfunctions (including malfunctions in
reproduction) or physical deformations in such persons or their offspring.

        [C] Any substance listed by the U.S. Department of
Transportation as hazardous materials under 49 CFR 172.101 and appendices;

        [D] Hazardous waste as herein defined.

        "Hazardous waste" means -

        [A] A waste or combination of wastes as defined in 40 CFR 261.3,

        [B] Those substances defined as hazardous wastes in 49 CFR

        "Hazardous waste operation" means any operation conducted within
the scope of this standard.

        "Hazardous waste site" or "Site" means any facility or location
within the scope of this standard at which hazardous waste operations take

        "Health hazard" means a chemical, mixture of chemicals or a
pathogen for which there is statistically significant evidence based on at
least one study conducted in accordance with established scientific
principles that acute or chronic health effects may occur in exposed
employees. The term "health hazard" includes chemicals which are
carcinogens, toxic or highly toxic agents, reproductive toxins, irritants,
corrosives, sensitizers, hepatotoxins, nephrotoxins, neurotoxins, agents
which act on the hematopoietic system, and agents which damage the lungs,
skin, eyes, or mucous membranes. It also includes stress due to temperature
extremes. Further definition of the terms used above can be found in
Appendix A to 29 CFR 1910.1200.

        "IDLH" or "Immediately dangerous to life or health" means an
        concentration of any toxic, corrosive or asphyxiant substance
that poses an  immediate threat to life or would interfere with an
ability to escape  from a dangerous atmosphere.

        "Oxygen deficiency" means that concentration of oxygen by volume
below which atmosphere supplying respiratory protection must be provided.
It exists in atmospheres where the percentage of oxygen by volume is less
than 19.5 percent  oxygen.

        "Permissible exposure limit" means the exposure, inhalation or
dermal permissible exposure limit specified in 29 CFR Part 1910, Subparts
G and Z.

        "Published exposure level" means the exposure limits published
in "NIOSH Recommendations for Occupational Health Standards" dated 1986,
which is incorporated by reference as specified in Sec. 1910.6, or if
none is specified, the exposure limits published in the standards
specified by the American Conference of Governmental Industrial Hygienists
in their publication
"Threshold Limit Values and   Biological Exposure Indices for 1987 - 88"
dated 1987, which is incorporated by reference as specified in Sec. 1910.6.

        "Post emergency response" means that portion of an emergency
response performed after the immediate threat of a release has been
stabilized or eliminated and clean-up of the site has begun. If post
emergency response
is performed by an employer's own employees who were part of the initial
emergency response, it is considered to be part of the initial response
and not post emergency response. However, if a group of an employer's own
employees, separate from the group providing initial response, performs the
clean-up operation, then the separate  group of employees would be
considered to be performing
post-emergency response and subject to paragraph (q)(11) of this section.

        "Qualified person" means a person with specific training,
knowledge and experience in the area for which the person has the
responsibility and the authority to control.

        "Site safety and health supervisor (or official" means the
individual located on a hazardous waste site who is responsible to the
employer and has the authority and knowledge necessary to implement the
site safety and health plan and verify compliance with applicable safety
and health requirements.

        "Small quantity generator" means a generator of hazardous wastes
who in any calendar month generates no more than 1,000 kilograms (2,205)
pounds of  hazardous waste in that month.

        "Uncontrolled hazardous waste site" means an area identified as
an uncontrolled hazardous waste site by a governmental body, whether
Federal, state, local or other where an accumulation of hazardous
substances creates a threat to the health and safety of individuals or the
environment or both. Some sites are found  on public lands such as those
created by former municipal, county or state    landfills where illegal or
poorly managed waste disposal has
taken place. Other sites are found on private property, often belonging to
generators or former generators of hazardous substance wastes. Examples of
such sites include, but are not limited to, surface impoundments,
landfills, dumps, and tank or drum  farms. Normal operations at TSD sites
are not covered by this

        Safety and health program.

        NOTE TO (b): Safety and health programs developed and
implemented to meet other federal, state, or local regulations are
considered acceptable in meeting this requirement if they cover or are
modified to cover the topics required in this paragraph. An additional or
separate safety and health program is not required by this paragraph.


        Employers shall develop and implement a written safety and
health program for their employees involved in hazardous waste operations.
The program shall be designed to identify, evaluate, and control safety and
health hazards, and provide for emergency response for hazardous waste

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