Unfenced and Unmarked Hazardous Wastesites - Municipal Liability

[Emery Graham <egraham@dca.net>]

One of the biggest problems I've faced in dealing with brownfields is
their identification. I haven't heard of any requirement to fence and
mark brownfields or hazardous wastesites. At what point is there gross
neglect on the part of the responsible bureaucracy. Gross neglect is one
of the components needing to be proved when trying to establish an act
of negligence.

This problem is compounded when the hazardous
wastesite is located in an area that is densely populated with
households. There seems to be some continuing definitional problems re
whether brownfields are also hazardous wastesites. Maybe this is a
localized perception in that political correctness may not support
calling brownfields hazardous wastesites. However, think about it; if
you do an assessment on a brownfield and find hazardous wastes that need

to be removed, did the act of testing the brownfield change it into a
hazardous wastesite? Or was the brownfield a hazardous wastesite all the

time?

In any event, municipalities that have received Brownfields Assessment
Demonstration Grant awards are now actively engaged in the first phase
of emergency response, remediation, and cleanup activities. The only
technicality is one of terminology which the OSHA Specialists in the
various EPA offices will inform you of. OSHA regulations apply only on
"uncontrolled hazardous wastesites." The designation of a contaminated
site as an uncontrolled hazardous wastesite must be made by a Federal,
state, local, or other public body inorder for 29 CFR 1910.120
requirements to apply to municipal workers(and volunteers) engaged in
emergency response, remediation, cleanup, or maintenance work on
hazardous wastesites.

While these issues may seem cumbersome and vague, they directly affect
the liability of a municipality in regard to the health and safety of
its employees who who work on hazardous wastesites.  In states that have

an OSHA approved plan, I suspect each municipality has a "HASP" (Health
and Safety Plan) in effect. In states that don't have OSHA approved
plans, accepting a Brownfields grant will require some organizational
and legislative changes in order to address the liability and workplace
issues.

I'd like to hear from folks on this topic. I'd like to make sure that
I've got it right and to find out who else is interested and where
they're from. I'd also like to know if they have municipal sponsored
citizen participation activities that involve brownfields tours. Do the
citizens actually stand on the brownfield? Does the municipality own any

brownfields? Do the municipal employees service the location in any way?

All of these questions weren't raised in the Brownfields application or
assurance literature. If they were, I completely missed them. Can
someone out there speak to this question.

Emery