Chapter 13 - § 13.6 • ENVIRONMENTAL INCIDENTS

• Jurisdiction: Colorado

§ 13.6 • ENVIRONMENTAL INCIDENTS

Despite care and preventative measures, environmental incidents will occur. When they do, they must be recognized immediately as environmental threats and the response must be appropriate, both from a health and safety perspective and from a project standpoint. In this way, all parties to a construction project can minimize injury and economic damages.

§ 13.6.1-Emergency Response

Whenever the health or safety of people is threatened, or when it is clear that significant environmental impact is imminent, the construction manager must take emergency measures to ensure that the injury is minimized and that the threat of continued damage is eliminated. It is not always clear whether there is any damage or even a threat. Certainly, a physical injury or unmistakable physical evidence like caustic fumes is a significant problem. However, the discovery of slightly discolored subsoil might not be so clear.

OSHA requires an employer to prepare an emergency action plan as a contingency for a release of a hazardous substance. This plan must be communicated to employees.²⁶⁰ In the event of an incident, the first step is to stop any activity that in any way contributes to the problem. OSHA requires that, in the event of the discovery or release of a hazardous material, an employer must elect to evacuate its employees or have them participate in response and corrective measures.²⁶¹

If employees participate in a response to an emergency, their activities are governed by OSHA regulations.²⁶² An employer that elects employee participation must have an "emergency response plan" in place²⁶³ and must ensure that employees responding to an emergency are trained in accordance with their responsibilities during a response.²⁶⁴ Lines of authority, responsibility, and procedural requirements are also set out in OSHA regulations.²⁶⁵

The nature of an incident will largely determine a contractor's response choice. Some incidents, such as a small release of diesel fuel onto the ground, may not be inherently dangerous and may not require special training or licensing to clean up. Other incidents, such as the release of PCBs or the discharge of oil into a water course, are dangerous and require special response expertise. General considerations include the nature of the incident, the associated risk, the location, and the kind of response required by law. Even if a contractor undertakes a response to an incident that does not pose an imminent threat, or that does not require special training, the incident may still require compliance with statutes and regulations, such as reporting.

The contractor or the owner must report the incident to the necessary agencies and authorities immediately, and arrange for final cleanup and disposal. Specific contract matters such as notice and work suspensions must also be addressed.

§ 13.6.2-Environmental Reporting

It is usually necessary to report an environmental incident immediately to the government. Under applicable reporting statutes, it is usually an owner, operator, or "person in charge" who must report. Sanctions attach for failure to report, or failure to report within the time periods in applicable statutes. Deciding whether one must report, what must be reported, and when to report are often difficult legal decisions, especially when an emergency is still occurring. Often an incident will be governed by more than one statute and will require multiple reporting. Thus, the owner and contractor at a construction site have considerable work to do, and very quickly, if a release occurs. If a hazardous substance is involved in an incident, CERCLA requires:

Any person in charge of a . . . facility shall, as soon as he has knowledge of any release (other than a federally permitted release) of a hazardous substance from such . . . facility in quantities equal to or greater than those determined pursuant to [42 U.S.C. § 9602], immediately notify the National Response Center . . . .²⁶⁶

The "person in charge" can be both an individual and a corporation; it can include an "owner" or an "operator" of a site who is involved in daily site operations, or employees at supervisory levels.²⁶⁷ Several entities at a construction site might be affected. A "reportable quantity" of a hazardous substance under CERCLA is one pound unless a greater amount is set by the EPA.²⁶⁸

The CERCLA report must be made immediately to the National Response Center in Washington, D.C.²⁶⁹ In addition, ordinarily the CDPHE should also be notified.²⁷⁰

The Emergency Planning and Community Right-to-Know Act (EPCRA)²⁷¹ was enacted as part of the 1986 amendments to CERCLA. It expands reporting requirements under CERCLA. Under EPCRA, immediate notice by the owner or operator of a facility must be given to state and local emergency personnel (in addition to the National Response Center) of a release or threatened release of listed "extremely hazardous substances"²⁷² as well as CERCLA hazardous substances. The report must be made immediately to: (1) the community emergency coordinator for the local emergency planning committee in areas likely to be affected by the release; (2) the state emergency planning commission; and (3) a 911...