Verizon Wireless and EPA’s corporate audit program

Verizon Wireless has just agreed to pay $468,600 in civil penalty to EPA for a series of violations uncovered in its corporate wide audit at 655 facilities in 42 states. Here is a link to EPA’s press release.

A corporate audit agreement is an agreement that allows corporations, universities or other organizations with many facilities to plan corporate-wide or facility-wide audits with an advance understanding between the entity and EPA regarding schedules for conducting the audit and disclosing violations. EPA factors in the companies’ cooperation and willingness to do the audit voluntarily, and the penalties are typically lower than if the same violations were discovered through enforcement.

Some of the violations that Verizon uncovered included failure to prepare SPCC plans, failure to obtain air permits and failure to file Tier II reports.

You are responsible for choosing your waste transporter

If you are a hazardous waste generator, it is your responsibility to make sure your waste transporter is licensed by EPA and/or state agency to transport hazardous wastes. In other words, you need to make sure it has an EPA ID number. Federal regulation 40 CFR 262.12(c) states that a ”generator must not offer his hazardous waste to transporters or to treatment, storage or disposal facilities that have not received an EPA identification number.” 

California’s Title 22 hazardous wastes regulation 22 CCR 66262.12(c) has similar language.

It is that simple.

Here is what happened to Home Depot in California. On May 13, 2004, a waste transporter hired by Home Depot collected hazardous waste at the Player del Rey Home Depot and started mixing different types of wastes in a 55-gallon container. The container exploded and caused a fire that resulted in the store being evacuated. The following day, California Highway Patrol found a truck operated by the same transporter hauling hazardous wastes from Home Depot.

It turned out that this waste hauler was not licensed by DTSC as a hazardous waste transporter and did not have an EPA ID number. The unlicensed waste hauler was a subcontractor to Home Depot’s contractor.

This finding initiated a series of subsequent inspections at Home Depot’s 200+ facilities in California which resulted in the State of California filing a law suit against Home Depot. The company was held liable for numerous violations and fined a total of $9.9 million by the Superior Court .

It all started with an unlicensed waste transporter.

Using your satellite accumulation points (SAP)

Federal and state regulations allow you to accumulate up to 55 gallons of hazardous wastes at the point of generation before moving to your central storage area. Once the 55 gallons limit is reached, you have 3 days to move the waste to the central storage area and that’s when your 90-day or 180/270 day clock starts – depending on your waste generator status. So the SAP concept can extend your storage time limit by quite a bit.

If you are in California, you cannot store waste at your SAP area for more than a year even if you have not reached the 55-gallon limit. 

The operator at the point of generation MUST have total control over the waste. The container at theSAP must have the words “hazardous waste” on it. However, you are NOT required to do weekly inspection of your waste at the SAP area as you would at your central storage area.

Some generators ship their wastes out to the Treatment Storage Disposal Facility directly from the SAP – bypassing the central storage area altogether. This eliminates the possibility of being cited for not having weekly inspection at the central storage area.

How to work with your plant folks

This blog gives you some practical ideas on how to interact with your colleagues at the plants. Let’s start by taking a hard look at the plant manager. The degree to which your plant maintains its environmental compliance status depends largely on the attitude of the plant manager.

There are basically two types of plant managers. The first type understands the need to stay in compliance and will work with you to achieve that goal. The plant managers in this group understand the legal aspects of environmental compliance and will make sure that his staff works with you to make sure that the plant stays in compliance. Fortunately, most plant managers fall into this category. The second group of plant managers is made up of those people who consider environmental compliance a nuisance.

With the first group of plant managers, your work is fairly straightforward. All you need to do is to make sure that the plant personnel get the necessary corporate support to fix any deficiencies. Make sure they have the necessary resources to stay in compliance. As you go thorough the facility and notice a non-compliance situation, you should sit down with the plant manager or person in charge and go through what needs to be fixed. Your immediate focus should not be on preparing a plant visit or audit report that details all the environmental problems. The focus should be on getting the problems fixed as quickly as possible. For example, one of your central roles may be to help the plant prepare a capital appropriation request in order to obtain the necessary funding from corporate to get the issue resolved. If your financial resources are not sufficient to tackle all the problems, prioritize them and work on the ones with the most significant human health or environmental impact first.

By the way, once the problem is corrected, make sure you document the efforts your company has undertaken to resolve the issue. It never hurts to document your good faith efforts.

A few words of caution here. Try not to do everything for the plant even though it will make you real popular at the plant. You want to make sure that the plant personnel have ownership of any plans or documents that are specific to their operation. Support them by all means – but don’t do all the work for them. For example, you want to make sure that they are involved in the development of their Spill Prevention and Control Countermeasure Plan (SPCC), their hazardous material inventory form (Tier II report), their Stormwater Pollution Prevention Plan, or their hazardous waste contingency plan. Most of these plans contain plant-specific information and documented inspections. Unless the plant personnel are involved in the development of these plans, they are not likely to have ownership and nothing will be done by way of follow-up or implementation.

For example, the RCRA contingency plan requires the facility to identify an on-site emergency coordinator and to list where hazardous wastes are accumulated. Tier II report requires the plant to show where they store certain hazardous chemicals. Since they know where they store their own chemicals, it makes sense for the plant to prepare its own inventory. It is fine to have outside consultants come in to assist the plant personnel in preparing their hazardous waste contingency plan or spill prevention plan. Just make sure the plant personnel are involved in the process. Otherwise, the plan will end up being just a nicely prepared document prepared by some outside consultants that sits on the plant manager’s bookshelf. No one will ever look at it, update it or implement it because there is no ownership at the plant. And when the agency inspectors come by to inspect the plans, they look for evidence of implementation. For example, if the plan calls for weekly inspections, the agency wants to see log book entries that demonstrate that. The inspectors will always check to make sure the plans are current and up-to-date.

The second group of plant managers looks upon environmental compliance as a hindrance to meeting their production goals. These folks are totally focused on numbers – meeting their production quotas and getting their bonuses – and they will do just about anything to circumvent environmental regulations. Worse yet – some of these managers also take an adversarial approach to the regulatory agencies. They see everything as “us versus them”. If you sense that the relationship between the plant management and the local agency staff is somewhere between antagonistic and hostile, you need to bring that situation to a halt as quickly as possible. Let senior management at headquarters know about it as well. It is a sad but true fact that many major enforcement actions can be traced back to a poor working relationship between the regulator and the regulated.

Interestingly enough, very often you will find these same plant managers pay a lot of attention to workers’ injuries while totally ignoring environmental compliance issues. The reason is quite simple. The monthly costs of safety non-compliance can be easily tracked by senior management through incident rates and workers comp costs. Environmental non-compliance costs, on the other hand, are much harder to track. These costs are often hidden in overhead and maintenance. As a result, senior management at the corporate level often set safety goals for their plants and reinforce them with safety performance bonuses for the plant managers. Lower incident rate translates to a larger year-end bonus. The attitudes of many of these plant managers are then shaped by such financial incentives and that explains why they pay much more attention to safety concerns than environmental issues. If you find yourself faced with such a situation, what you want to do is to work closely with safety manager. Try to incorporate some environmental training at the same time when you or your safety counterparts do safety training. For example: When you are doing OSHA’s hazard communication training, tack on at the end a session on emergency response training for those employees who handle hazardous wastes.

With this second group of plant managers, you will also need to make sure that the plant manager’s supervisor is informed of all non-compliance issues and extra efforts must be made to ensure follow-up. You want to find someone up the management ladder – above the plant manager’s level -who is cognizant of the need to stay in compliance. You will need the support of this senior corporate officer to help you put your program in place at the plant. In other words, you need a “champion” who can overrule the recalcitrant plant manager.  If such a person does not exist within your organization, you may want to think about moving on to another company.

You also need to be vigilant in making sure that you don’t become party to a “bad decision” making process. For example, if a plant manager should ever suggest to you or his staff in your presence that they “alter” or falsify a wastewater Discharge Monitoring Report or ship hazardous wastes to an unlicensed facility, you need to make your objections known in a highly visible and documented manner to everyone involved –  including the plant manager’s supervisor. The worst thing you can do for yourself and your company in this case is to “go along in order to get along”. In a highly regulated industry, silence on your part can be easily interpreted by the law enforcement agencies to mean acquiescence.

After all, you are supposed to be in charge of the environmental programs, aren’t you?

Watch your emails!

When I do my seminars on environmental liability and enforcement, I always caution the audience to be careful with their emails. Never write any emails unless you feel comfortable reading about them in the New York Times the next day.

There is no such thing as a secret, confidential or personal email.

If there is more convincing proof, here is today’s headline from AOL:

Paper Reveals Governor’s Steamy E-Mails

AP

posted: 7 HOURS 55 MINUTES AGO

COLUMBIA, S.C. (June 24) — Just after South Carolina Gov. Mark Sanford admitted to a yearlong extramarital affair, his state’s largest newspaper posted online romantic, suggestive e-mails that it says were exchanged between the chief executive and his Argentinian lover.

What you can expect from an Obama EPA

Here are some tell tale signs of what direction on environmental management the new administration will take us in the next four years.

 

The New EPA administrator.  Lisa Jackson has been confirmed by the Senate as the new EPA Administrator. She is a chemical engineer by training and was the Commissioner of the New Jersey Department of Environmental Protection.

 

In her confirmation hearing before the Senate Committee on Environment and Public Works on January 14, 2009, Jackson stated that the new Administration’s environmental initiatives are “highlighted by five key objectives: reducing greenhouse-gas emissions; reducing other air pollutants; addressing toxic chemicals; cleaning up hazardous-waste sites; and protecting water.”

 

In her first memo to staff, Lisa Jackson highlighted the five priorities that will receive her personal attention:

 

       “Reducing greenhouse gas emissions. The President has pledged to make responding to the threat of climate change a high priority of his administration. He is confident that we can transition to a low-carbon economy while creating jobs and making the investment we need to emerge from the current recession and create a strong foundation for future growth. I share this vision. EPA will stand ready to help Congress craft strong, science-based climate legislation that fulfills the vision of the President. As Congress does its work, we will move ahead to comply with the Supreme Court’s decision recognizing EPA’s obligation to address climate change under the Clean Air Act.

        

       Improving air quality. The nation continues to face serious air pollution challenges, with large areas of the country out of attainment with air-quality standards and many communities facing the threat of toxic air pollution. Science shows that people’s health is at stake. We will plug the gaps in our regulatory system as science and the law demand.

       Managing chemical risks. More than 30 years after Congress enacted the Toxic Substances Control Act, it is clear that we are not doing an adequate job of assessing and managing the risks of chemicals in consumer products, the workplace and the environment. It is now time to revise and strengthen EPA’s chemicals management and risk assessment programs.

        

       Cleaning up hazardous-waste sites. EPA will strive to accelerate the pace of cleanup at the hundreds of contaminated sites across the country. Turning these blighted properties into productive parcels and reducing threats to human health and the environment means jobs and an investment in our land, our communities and our people.

        

       Protecting America’s water. EPA will intensify our work to restore and protect the quality of the nation’s streams, rivers, lakes, bays, oceans and aquifers. The Agency will make robust use of our authority to restore threatened treasures such as the Great Lakes and the Chesapeake Bay, to address our neglected urban rivers, to strengthen drinking-water safety programs, and to reduce pollution from non-point and industrial dischargers. “

 

Changes to regulations. There will be “roll back” of some of the new regulations finalized by EPA during the last months of the previous administration. This is a rite of passage when there is a new administration. For example, under the Bush administration, EPA excluded from the definition of solid waste spent solvents that are to be reclaimed. That means generators do not need to manage their ignitable spent solvents as hazardous wastes while waiting to reclaim them. This rule became final in December of 2008 and could be one of the many new rules that will be reviewed by the new EPA and rolled back.

 

Increase in enforcement. There will be more focus on enforcement of existing environmental regulations. Historical enforcement data from EPA indicates that the number of persons charged with environmental crimes increased under a Democratic White House. (See chart). You can expect another increase in enforcement under the Obama administration.

 

The push from Congress. The House of Representatives and Senate are now controlled by the Democrats with a sizable margin. It is reasonable to expect this new Congress to play a much more important and active role in formulating national environmental policies. In the Senate, Barbara Boxer of California is chair of the Senate Environment and Public Works Committee that has jurisdiction over EPA. On the House side, Congressman Henry Waxman – also from California – is now chair of the powerful House Energy and Environment Committee.

 

Here is what Senator Boxer said about EPA in her opening statement at the confirmation hearing: The mission of the Environmental Protection Agency is very clear: “To protect human health and the environment.” This is EPA’s central purpose. Unfortunately, we have seen the agency move in a direction diametrically opposed to the mission it was established to achieve. She went on to say that  “EPA must ensure that our environmental laws protect our children first and foremost, not ignore the dangerous threats children face from pollution. When we protect our children, we protect everyone.”

 

Directives from the White House. As with any administration – Republican or Democratic – the background of the Administrator’s background is less important than the policy directives from the White House. Even before the new EPA administrator was confirmed by the Senate, President Obama already directed EPA to consider granting waiver to California and 13 other states under the Clean air Act to adopt more stringent tail pipe emission standards for automobiles. The same waiver had been denied under the previous administration. This is just a sign of the times.

EPA increases its maximum penalties

On Dec 11, 2008, EPA issued its final rule on adjusting its maximum civil penalties for inflation.  For example, under the Clean Water Act, RCRA, Clean Air Act and CERCLA (Superfund law), the maximum statutory penalties are now $37,500 – a substantial increase from the original $25,000.

Potato chips and Prop 65 in California

The State Attroney General of California Jerry Borwn said Heinz, Frito-Lay, Kettle Foods and Lance had agreed to sharply lower acrylamide levels in the potato chips and french fries as part of a settlement announced last Friday.

Acrylamide is a byproduct of frying, roasting and baking foods, particularly potatoes, that contain certain amino acids. It is also one of the Prop 65 chemicals in California. The Prop 65 list identifies chemicals that can casue cancer or reproductive toxicity. Under state law, all products sold in California that contain any Prop 65 chemicals must bear a warning label.

Prop 65 is one of the many topics that we cover in our 2-day environmental seminars.

3 things to remember when you have a chemical spill

It goes without saying that the first thing you need to do when you have a spill is to stop the spill and ensure the safety of your employees and the community. After you have done that, there are three things you should keep in mind:

 

The first thing is to determine your Federal Reportable Quantities. Determine the amount of chemical you have spilled and check to see if it has exceeded EPA’s federal reportable quantity (RQ). You can do that easily by looking up the RQ in EPA’s List of Lists. Remember that the RQ of a chemical always refers to its pure form in a mixture or compound. For example, if you spill a mixture that contains 50% of X and the RQ for X is 400 lbs, you will have to have spilled more than 800 lbs of the mixture for you to exceed the RQ.  You must report any spilled amount over the RQ to the National Response Center at  1-800-424-8802.

 

The second thing to remember is to check your state’s own reporting requirements. Many states have their own spill reporting requirements in addition to the Federal reporting requirement. States such as New Jersey, California, New York and Iowa(just to name a few) require reporting of all spills regardless of quantities. For example, in Californiayou must report any amount of chemical spill to the California Office of Emergency Response unless you can show that “there is a reasonable belief that there is no significant present or potential hazard to human health, the environment or property.”  The onus is on you to determine if the spill was “significant” or not.

 

We have prepared a summary chart showing the various spill reporting requirements in all 50 states. Use it as a guide. Check out the state’s website for more details.

 

The third thing to remember is this. If you are not sure if you should report a spill,  report it.

 

 

 

How to set up an Early Warning System for your own protection

If you are the person who is responsible for your company’s environmental management program, you carry certain personal liability. For example, if EPA were to find out or suspect that someone within your organization has falsified your Discharge Monitoring Report (DMR) under the Clean Water Act, who do you think will be the first person the agency wants to interview? What will be your response to the enquiry? What will you say to the FBI agents?  To minimize your own personal liability, it is important for you to understand all the requirements and the enforcement process. Try to look at enforcement from the agency’s viewpoint. In other words, understand how the agencies select their targets. And remember that your response to the agencies will often determine their responses to you. This is particularly true in the case of agency inspection. Always cooperate with the agencies while protecting your rights. A good place to start is to have a set of clearly defined environmental procedures sop that your employees know how to behave before, during and after an agency inspection. They also need to understand how to manage their records.

Understand that as an environmental manager, you do have certain specific responsibilities and the agencies expect you to carry them out lawfully.  If you are negligent in your duties and something bad happens, you may be held personally accountable. Let’s say you have personal knowledge that an aboveground storage tank storing some very hazardous chemical has some structural instability problems. The base of the tank is showing signs of severe corrosion. When that tank collapses a few weeks later and fatalities or sever environmental damage occur, the agency will want to know why you fail to take action. The agency will want to know if anyone within your organization directed you not to take action or perhaps you have decided upon yourself to keep this known defect secret. You may be held liable as a result of the investigation. If someone has falsified your DMR, the agency will want to know how that happened under your watch since you are the person responsible for the company’s environmental program. They will want to know if you played a role – directly or indirectly – in the illegal act. 

Early Warning System 

What you need to have is an Early Warning System to protect you.    The Early Warning System is very simple: As the environmental manager within your organization, you want to pay special attention to what your employees say and do when it comes to compliance issues. If someone within your organization – especially someone at a more senior level than you are – makes some suggestions to you that you know to be in violation of some environmental regulations, it is your responsibility to voice your objections forcefully and immediately. Let those around you know that you will not be party to any kind of “conspiracy” to commit an environmental crime. Let your supervisor know immediately. If your supervisor is the person suggesting such illegal activities, work your way up the organization until you find someone who will listen to you and will take action. Alert your organization’s legal counsel and make sure you have documented proof (with date and time) that you have raised such objections.  Remember this: your silence can often be taken to mean acquiescence. Pay close attention to emails and memo that come across your desk. If you see any evidence of diversion from compliance, you need to stop the illegal thinking process immediately and steer the ship back to the right course.  Ignore those people within your organization who tell you that you are “rocking the boat” or not being a “good team player” by being vigilant. These people are wrong and they do not have your best interests at heart.  One final piece of advice: When it comes to environmental compliance in the corporate setting, NEVER go along to get along. That is a recipe for disaster.  Here is an example from EPA’s website: “A plant manager at a metal finishing company directs employees to bypass the facility’s wastewater treatment unit in order to avoid having to purchase the chemicals that are needed to run the wastewater treatment unit. In so doing, the company sends untreated wastewater directly to the sewer system in violation of the permit issued by the municipal sewer authority. The plant manager is guilty of a criminal violation of the Clean Water Act.” If you are the environmental manager and you go along with this plant manager’s decision, you will very likely be prosecuted as well.