Chapter 13 - § 13.3 • SPECIFIC ENVIRONMENTAL PROBLEMS FACED BY THE CONSTRUCTION INDUSTRY
| Jurisdiction | Colorado |
The construction industry faces recurring environmental problems. This section of this chapter describes a host of such difficulties and the legal framework that addresses them.
All of the parties in a project - design professionals, owners, contractors, and sureties - must become sufficiently familiar with these difficulties to avoid them; if possible, to recognize problems before they arise as controversies; and to handle them quickly and properly with minimal impact to health and safety, the environment, and the job (and minimal exposure to liability).
§ 13.3.1-Routine Equipment Maintenance
Routine maintenance at equipment yards and construction sites often involves regulated activity. The wise contractor must be aware of applicable laws in order to ensure compliance.
Fuel and Lubricant Storage
CWA requires above-ground storage of regulated substances, including fuel and lubricants, to comply with specific safety measures if the total storage volume exceeds 1,320 gallons.133 Secondary containment around storage tanks is required, usually in the form of a berm, with a volume equal to the largest container plus freeboard, and a sealed bottom. A spill prevention control and countermeasure (SPCC) plan is also required. It provides employees with specific information about what to do and whom to call in the event of a spill. Whether an SPCC plan must be developed is also dependent upon waters-of-the-United States jurisdiction, and as such should be given careful consideration during assessment.134
If 10 percent or more of a storage tank volume lies below the ground surface, it is deemed to be an underground storage tank (UST) under RCRA and Colorado's UST program. At that point, the tank is subject to notification, corrosion protection, spill and overfill control, leak detection, release reporting, corrective action, and closure requirements under the UST program.135 Underground storage tanks should also comply with ASTM standard E2681-13.136
Waste Oil Storage and Disposal
Waste oil uncontaminated with regulated substances is neither a hazardous substance under CERCLA nor a hazardous waste under RCRA. Nevertheless, disposal of waste oil is regulated under CWA137 and RCRA.138 Collection and disposal of waste oil is licensed by the EPA.
The owner of waste oil, including a contractor, is responsible for its ultimate disposal. If an unscrupulous collector of waste oil improperly disposes of the oil, a contractor or other generator at the construction site can be held liable for the cleanup.
A used-oil problem is much more severe if the waste oil is mixed with regulated substances like heavy metals (e.g., chromium, lead, cadmium, or barium) or petroleum-based solvents. When so mixed, it then becomes a "hazardous substance" for which much more stringent treatment and disposal methods are required. For example, if a collector mixes a contractor's uncontaminated waste oil with other contaminated waste oil and then disposes of the mixture improperly, the contractor will be liable for remediation costs unless it can prove that its oil was not contaminated.
It is important to know the waste oil collector and how and where it disposes of the oil. Also, one should check to see that the collector has current EPA approval and an EPA identification number. Solvent detection kits are available to test used oil to provide proper records (i.e., of non-contamination) should a problem arise.
The oil spill provisions of CWA prohibit the discharge of oil (and hazardous substances) "in such quantities as may be harmful as determined by the President."139 The regulations provide more clarity, stipulating that an oil discharge is harmful if it results in a violation of water quality standards, or if it causes a film or a sheen on, or discolors, the surface of the water of adjoining shorelines, or causes a sludge or emulsion to be deposited beneath the water surface of or on the adjoining shoreline.140
CWA requires that the Coast Guard National Response Center be notified of a reportable oil spill. Failure to do so carries severe sanctions, including fines and prison terms up to five years.141
Used oil that contains a listed substance, such as certain heavy metals (e.g., chromium, cadmium, lead, or barium) or solvents, is a hazardous substance under CERCLA. If discarded, and if it is contaminated enough, it can also be a hazardous waste under RCRA.
Used Oil Filters
Used oil filters that are non-terne (not tin and lead coated) are not regulated and can be disposed of conventionally provided that they are properly drained. The dome end of the filter, or the anti-drain back valve, must be punctured and then hot-drained for 12 hours. Terne filters are considered a hazardous waste and must be disposed of accordingly.
Used Lead Acid Batteries
Unless they are properly recycled, used lead acid batteries are a hazardous waste.142 Generally, vendors will accept returns. Avoid accumulation of batteries in an equipment yard, because a vendor may refuse to accept a large quantity for recycling. A storage site can easily turn into an unpermitted hazardous waste site.
Antifreeze
Antifreeze is highly toxic to animals and children. Although it is not regarded as a "hazardous substance," care should be taken to ensure that it is properly stored and disposed of. Some sewage treatment districts actually allow disposal into the sewer for quantities of up to 30 gallons. One should inquire of the local treatment operator before doing so. The Colorado Department of Public Health and Environment stipulates that recycling of antifreeze is the preferred disposal method.143
§ 13.3.2-Asbestos Removal and Disposal
Asbestos is frequently found in construction projects that require renovation or demolition. The EPA estimates that over one-half million public and commercial buildings contain "friable" (easily crumbled) asbestos. Because asbestos fibers are a severe health threat, parties to a construction project must become educated and vigilant about the substance.
Asbestos is a naturally occurring mineral composed of microscopic fibers. Until the 1970s, asbestos was widely used in building construction because of its durability, strength, and resistance to fire. Uses included insulation for boilers and pipes; acoustical ceiling plaster; spray-on fireproofing; ceiling tile; vinyl asbestos floor coverings; mastics; roofing materials; shingles and siding; drywall plaster; and cements.
Asbestos fibers are very light and remain suspended in the air if released. When asbestos fibers are then inhaled, they can disrupt the functioning of the lungs. Exposure to airborne asbestos fibers was associated with lung diseases in the 1930s, but it was not until 1955 that the relationship between asbestos exposure and lung cancer was confirmed. Most asbestos-related cancers develop slowly, over a 20- to 40-year period from the first exposure. The greater the exposure, the more quickly disease develops. There is no known safe level of exposure.
As a result, the use of, exposure to, and removal and disposal of asbestos is regulated by a variety of state and federal laws. OSHA has established work practices for occupational exposure to asbestos,144 and OSHA has a comprehensive set of asbestos regulations specifically for the construction industry.145 The EPA regulates emissions of asbestos in schools under a specific program for identification, management, removal, and disposal.146 The EPA also administers a regulation for worker safety.147 In Colorado, the CDPHE also regulates asbestos removal and disposal under separate statutory authority.148
OSHA regulations contain specific standards and procedures that apply to almost all construction work involving asbestos, including demolition, salvage, removal, encapsulation, alteration, repair, installation, spills, transportation, storage, and disposal of asbestos or products containing asbestos, and a mandatory Appendix A specifies the OSHA-approved procedure for testing air samples for asbestos compliance.149 These rules include standards for exposure, sampling, employee monitoring, notice requirements, and compliance procedures.
The Federal Clean Air Act (CAA) establishes emissions and management standards for hazardous air pollutants,150 including asbestos. Under the EPA's regulations, contractors must comply with asbestos emission standards.151 These regulations also govern releases from the removal of asbestos during renovation or demolition of a building.152 "Owners or operators" of buildings containing asbestos must notify the EPA of their intentions to demolish or renovate a building153 and follow prescribed procedures to prevent releases of asbestos fibers to the air.154 Disposal of asbestos waste is also closely regulated, including specific requirements for packaging and disposing of the waste at an approved disposal facility.155
Construction projects involving the renovation of schools containing asbestos also invoke the Asbestos Hazard Emergency Response Act (AHERA).156 However, because AHERA requires affirmative inspection for and reporting by school districts of asbestos in buildings, it is likely that the presence of asbestos in a building will be known and a remediation plan in place for any such projects before renovation is undertaken.
Colorado has also enacted complex statutes and regulations to reduce the risk of asbestos in buildings accessible to the general public.157 The Colorado Air Quality Control Commission has promulgated standards and procedures for abatement, demolition, and asbestos spill incidents for schools, state owned or leased buildings, and buildings to which the general public has access. These requirements include, among other requirements: (1) notification to the CDPHE of an intent to conduct an asbestos abatement project at least 10 days prior to commencing work;158 (2) obtaining a permit before an abatement project...
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