[CPEO-BIF] Brownfield Assessment Demonstration Grant Health and Safety Plans

[Emery Graham <egraham@ci.wilmington.de.us>]

Most of the Brownfield Grant recipients are aware of the Cooperative
Agreement certification requirements calling for a health and safety
plan that meets the requirements of 29 CFR 1910. After taking the
HAZWOPER training and reviewing 29 CFR 1910, it became clear to me that
complying with this requirement would call for a consultant to assist in
preparing these plans along with a lot of cooperation from other units in
City government.

My EPA Program Manager let me know that there was no need for my City to
develop its own Health and Safety Program, that we could use the one
provided by our approved environmental assessment contractor. After two
years he finally acknowleged the certification requirements and offered to
send me some background data. Additionally I was assured that as long as we
certified that we had a plan on site, there would be no need to forward it
to my Program Manager. There seemed to be some confusion about the
difference between a site specific health and safety plan and an
organizational health and safety program as well.

Further inquiry through my U.S. Senator's office lead me to the Health
and Safety Program Manager with the U.S.E.P.A. Environmental Response
Team.  A brief conversation with him revealed that EPA had been charged to
promulgate and implement health and safety standards for use by the
entities that met the five conditions identified in the beginning of 29 CFR
1910. He made it plain that Brownfield Assessment Demonstration Grant
recipients, as well as volunteers involved in clean up activities, were
covered by the regulation regardless of the level of government or type of
voluntary agency involved in the covered activities. A short portion of the
regulation follows:

[29 CFR Sec. 1910.120 Hazardous waste operations and emergency response.

    (a) Scope, application, and definitions--(1) Scope. This section
covers the following operations, unless the employer can demonstrate
that the following operation does not involve employee exposure or the
reasonable possibility for employee exposure to safety or health
hazards:
    (i) 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 governmental identified sites which are conducted
before the presence or absence of hazardous substances has been
ascertained:....]

Further discussion revealed a standing difference of bureaucratic
opinion about EPA's ability to enforce these regulatory requirements.
There seems to have been a question of the statutes language and not
having the explicit use of the word "enforcement" as part of EPA's
power. There also was a debate about including volunteers under the
coverage of the 29 CFR 1910. For most Brownfield programs that meet
their citizen participation requirements, the inclusion of volunteers is
an integral part of meeting the environmental justice concerns and the
community eduction and involvement commitments of the cooperative
agreement.

As it turns out EPA's Office of Emergency and Remedial Response offers a
consulting service that will provide on site evaluation and critique of a
City's Health and Safety Program re 29 CFR 1910 and will provide
assistance in the development of the program document. In some instances
EPA will pay for some of the costs of the program development.

For those of you who have followed my efforts to resolve some very basic
issues about the appropriateness of fencing hazardous waste sites
situated in heavily populated areas; the National Response Team staffer
made it plain that the idea was entirely appropriate and supported by one
of the basic principles of effective civil defense and public protection;
"remove the public from the endangering substance, situation or condition."

The level of disorder, confusion, and ambiguity prevailing in the EPA
bureaucracy is dangerous to the life, health, and safety of the American
population. Something as fundamental as the requirement to have a
regulation compliant health and safety plan should never be hidden in the
certification section of a grant application. This requirement should be
one of the determining criteria for awarding a grant.

How many people have been needlessly put in danger because of this
confusion? Who's liable for any harm that might have occured? What's
this say about the production of environmental injustice? What's the
proper corrective action? What happens to the insurance coverage of a
community that fails to comply with the health and safety program
requirements of their cooperative agreement. These questions need to be
examined quickly and carefully.

I'd really like to hear from some Brownfield grantees. For further
information you can contact the Senior Environmental Scientist,
U.S.E.P.A. Environmental Response Team at 732-321-6741. This EPA
staffer  responded to an inquiry made by U.S. Senator Roth's office.
Brownfield grantees might find it very useful to establish good
communications with their Congressional delegation especially when the
answers they get to basic public safety questions don't make "common
sense."





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