Is groundwater “navigable waters” under SPCC?

You have to prepared a SPCC plan if you have more than 1320 gallons in shell capacity AND the potential to impact navigable waters of the United States.

Many people ask the question” “Is groundwater included in the definition of navigable waters under the Spill Prevention Control Countermeasures regulation?”

The short answer is NO.

However, keep in mind that groundwater could act as a conduit for spilled oil to reach navigable waters of the U.S.

Here is what EPA stated in its SPCC Inspection Guide: Facilities should consider “certain underground features (e.g., power or cable lines, or groundwater), (that) could facilitate the transport of discharged oil off-site to navigable waters.”

EPA reached largest Clean Water Act settlement in the Gulf Oil Spill case

EPA just announced the first major settlement with a company connected with the BP oil spill in the Gulf.

MOEX Offshore 2007 LLC has agreed to settle its liability in the Deepwater Horizon oil spill in a settlement with the United States valued at $90 million, announced the Department of Justice, the U.S. Coast Guard and the U.S. Environmental Protection Agency (EPA) today.  Approximately $45 million of the $90 million settlement is going directly to the Gulf in the form of penalties or expedited environmental projects.

According to the terms of the settlement, MOEX will pay $70 million in civil penalties to resolve alleged violations of the Clean Water Act resulting from the spill and agreed to spend $20 million to facilitate land acquisition projects in several Gulf states that will preserve and protect in perpetuity habitat and resources important to water quality and other environmental features of the Gulf of Mexico region.  At the time of the spill, MOEX was a minority investor in the lease for the Macondo well. It no longer owns any share of the lease.

This is the largest Clean Water Act penalty to-date. MOEX owned 10% interest in the Macondo well and settled for $90 million. Just imagine how much BP will pay in final settlement.

When do you have to revise your SPCC?

The regulations say that you must revise your SPCC plan if there are “material changes” in your operation. What exactly is “material change”?

If the petroleum product  you store on site changes from diesel to gasoline, you have made a material change in your operation. You have gone from a combustible product to a flammable product. You must revise your plan. If you change your grade of gasoline from one octane to another, that would not be considered to be a material change.

Another point to remember about SPCC is that it refers to the amount of petroleum product you have onsite at any given time. So you are a marketer of gasoline and you purchase 5500 gallons at one time and then you deliver smaller quantities to your customers over the year until you have 500 gallons left onsite. You are still required to have a SPCC plan since you have more than 1320 gallons during the year.

We discuss SPCC requirements at our 2-day environmental seminars.

Emergency Preparedness and Preparation

If you generate more than 100 kg of hazardous wastes in a calendar month, you are either a small or large quantity generator under federal hazardous waste regulations. A large quantity generator is someone who generates more than 1000 kg of hazardous wastes in a calendar month. That’s roughy equal to five 55-gallon containers a month.

As a waste generator, there are certain requirements pertaining to preparedness and prevention that you must adhere to:

1. You must have an accessible communication or alarm system that is capable of providing emergency instructions to your plant personnel. In the event of an emergency, you must instruct your plant personnel to either evacuate the facility or relocate to a safe area.
2. You must have the means to communicate your emergency and request assistance from local authorities such as the police department, fire department and emergency response team. A two-way communication device is needed.
3. Your preparedness plan must clearly identify the locations of fire extinguishers, water hose stations, automatic sprinklers and other forms of fire control equipment. It should also include a plant layout showing all exit routes.
4. You should also have a complete up-to-date list of spill control equipment such as pumps and absorbents that you keep on-site.
5. Your plan must include procedures to test and maintained your emergency equipment to make sure that they are always in a state of operational readiness. It is also critical to assign someone the responsibility of replenishing any expended spill control material (such as sorbents) so that you will have adequate supply in the next spill.
6. At the place where you store your hazardous wastes, you must maintain adequate aisle space to allow access for emergency and spill response personnel. The federal  regulation does not specify how large the aisle space need to be. As a general rule of thumb, the space should be at lease 24 inches or wide enough for a 55-gallon container to pass through.
7. You must also store your waste containers in such a manner that each individual container is easily accessible to an inspector. The inspector must be able to read and inspect the label on each container without having to go through some physical contortion.
8. You also need to have procedures in place to minimize the possibility of fire, explosion, or spills. That means that if you are storing highly flammable or ignitable wastes onsite, you need to have “NO SMOKING” signs posted at the storage area.
9. The federal rule requires you to “make arrangement” with local authorities on providing emergency response. What that means is that you need to send a copy of your plan to the fire department, police station and local hospital and let them know what kind of wastes you are storing at your facility. Make sure you document any effort you have made to reach out to these local authorities because it is your responsibility to do so under federal law.
10. If you have made contractual arrangements with a private emergency response company to handle any spills that you may have, make sure you include the contract in your preparedness plan.

One last point, the rule says that only large quantity generators need to have a WRITTEN plan. If you are a small quantity generator, you do not have to have a written plan – but you must have a plan nonetheless.

 

My advice is that you make a written plan regardless of your generator status. If you are going to have a plan, you might as well have it written out.

If you are a large quantity generator, you will also have to have a written RCRA Contingency Plan which will include the designation of an Emergency Coordinator who must have delegated authority from senior management to shut down operation in case of an emergency. This person must be accessible and reachable at all times. The Contingency Plan must also be kept up-to-date. Failure to keep a Contingency Plan up to date is one of the most frequently cited violations.

We discuss emergency response and preparedness at our 2-day environmental seminars.

 

Is BP liable under the Superfund Law?

The short and quick answer is NO. BP is not liable for the spilled oil (petroleum products) under the Superfund Law because of the “Petroleum Exclusion” clause in the law.

Section 101(14) of the Superfund Law specifically excludes “petroleum, including crude oil or any fraction thereof” from the definition of “hazardous substance”. You can only be liable under the Superfund Law if you release hazardous substances to the environment.

Now – does that mean BP is off the hook completely? Not at all. BP is liable under the Clean Water and the Oil Pollution Act – just to name a few environmental laws.

Read my earlier blog on BP’s potential liability.

New Mortal Sin!

Are you aware that polluting the environment is now officially a mortal sin according to the Catholic Church?

Bishop Gianfranco Girotti, head of the Apostolic Penitentiary, the Vatican body which oversees confessions and plenary indulgences, was quoted in the Vatican newspaper as saying the following:

“You offend God not only by stealing, blaspheming or coveting your neighbour’s wife, but also by ruining the environment, carrying out morally debatable scientific experiments, or allowing genetic manipulations which alter DNA or compromise embryos,” he said.

So think twice before you dump that 55-gallons of toxic waste in your neighbor’s backyard.

Other new mortal sins also included taking or dealing in drugs, and social injustice which caused poverty or “the excessive accumulation of wealth by a few”.

The Importance of Internal Environmental Audits

It is always good environmental management practice to have regularly scheduled internal audits. The main purpose of such audit is to uncover small or emerging environmental problems and correct them BEFORE they become costly or deadly ones.

On September 22, 2003, BP’s EHS team conducted an internal environmental and safety audit at its Texas City refinery. The report is entitled “Getting HSE Right”. The Executive Summary has become a public document.

The audit team reported the following significant gaps:

1. The “checkbook mentality”, blame, and status culture still exists throughout most of the Texas City Site; and this limits HSE and general performance.
2. The condition of infrastructure and assets is poor at the Texas City Site
3. The audit team is concerned there are insufficient resources to achieve all commitments and goals.
4. Leadership has not embedded or enrolled the Texas City Site organization in high performance execution.

One of the team’s recommendations to management was to “accept zero tolerance for exceptions to BP (global and local) HSE standards”.

On March 23, 2005 at 1:20 pm – 18 months after the audit report was submitted to senior management – there was an explosion at the same refinery and 15 persons were killed and 180 injured.

Could this incident have been prevented had BP management accepted the findings and recommendations of its own internal audit report?

Safety Performance vs Production Costs

Are these two forces at loggerhead?

The Wall Street Journal just published an article on June 29, 2010 on this thorny topic. This generally pro-business newspaper wrote a scathing expose on how cost cuttings at BP have affected its safety performance.

The paper cites an internal BP investigation that a small oil spill from a BP oil platform in 2008 was caused by a “defective pipeline pump that BP had put off repairing” in the “context of a tight cost budget.” The budget was “underestimated” resulting in “conflicting directions/demands.” Management decided that the problem with the pumps “was not in itself a cause for safety or environmental concern.” The repair was deferred until the following budget year.

The Journal reports that “after a six-month inspection of the Texas City refinery last year, OSHA hit BP with an $87 million fine, the biggest in the agency’s history. About $57 million of  what OSHA describes as failure to abate hazards similar to those that caused the 2005 explosion which killed 15 people.”

It is also reported in the Journal that senior management at BP “focused on meeting performance targets, which determined bonuses for top managers and low-level workers alike.”

According to a former BP health and safety manager who was quoted in the Journal, workers had “high incentive to find shortcuts and take risks.”

The CEO of BP also spoke of “slaying two dragons at once; safety lapses that led to major accidents, including a deadly 205 Texas refinery explosions; and bloated costs that left BP lagging” Shell and Exxon Mobil.

After the small BP spill in 2008, BP’s internal report “warned of lax safety oversight and tight budgets.” As reported in the Journal, the BP report went on to conclude: “A key question to ask, especially with apparently minor and disconnected defects, is ‘what’s the worst thing that could happen?’”

I think we all know the answer to that.

Lessons we can all learn …..

The US Chemical Safety Board (CSB) conducts chemical accident investigations and issues findings and recommendations. Several years ago, it conducted an investigation on a refinery explosion in Texas that killed 15 and injured 180 persons. Here are some of its findings:

1. “Cost cutting, failure to invest and production pressures” from senior management impaired process safety performance at the refinery.
2. “Reliance on low personal injury rate” as a safety indicator failed to provide a true picture of process safety performance.
3. There was a “check the box” mentality at the plant where people simply just checked off on safety procedures even though they had not been completed.
4. “Personnel were not encouraged to report safety problems and some feared retaliation for doing so.”
5. There were “numerous surveys, studies and audits identifying deep-seated safety problems” but management’s response was often “too little, too late”.

We can all learn from these fatal mistakes.

The issue of reward structure at manufacturing facility is a tricky one. Many companies offer bonuses to middle managers for meeting production deadlines. Fewer companies offer similar rewards for excellence in safety. And when they do offer reward on safety, it often pertains mainly to personal safety and not process safety. That is understandable since it is harder to quantify process safety. There are lots of safety indicators for personal safety.

One of the findings by the CSB was that the refinery relied too much on its low personal injury rate as a false indicator that the process was safe. Just because people are not getting injured working next to a building that is about to collapse does not mean that the building will not collapse.

Measuring the wrong thing is worse than not measuring anything at all.

Another fatal mistake this refinery made was that it failed to act on the findings of its own numerous studies and audits. What is the point of doing all these audits if you are not going to fix the problems?

The “check the box” mentality at this refinery is most likely a result of the lack of ownership and training on the part of the employees. If an employee does not feel that he is part of the safety process and does not understand the rationale behind a long check list that he is given to complete, he is likely to just check them off. That’s just human nature.

We can all learn from these mistakes.

More lessons from the BP oil Spill

The CEO of BP Oil went before Congress today and testified under oath. For most of the time, he was bobbing and weaving trying to avoid admitting errors – for obvious legal liability reasons. However, there was one statement he made that has a lot of bearing on what we are going to discuss here. He said that accidents happen for two reasons: equipment failure and poor human judgment. That is absolutely TRUE!

So how do we avoid accidents?

To avoid or greatly minimize equipment failure, we need to design the equipment under worst case scenarios. We also need to have a backup system when the “fail-safe” equipment fails. The BP CEO actually said that his “ultimate fail-safe equipment” failed – which lead to the oil spill. Note that there was no relief well designed as part of the deep water well system. That’s why BP is now drilling two relief wells to kill the blown-out well but that won’t be completed until August – 4 months after the blowout and millions of gallons of oil spilled!!!

To combat error in human judgment, the following need to be in place. Employees must receive adequate training to do the job. They must know what to do in case of emergency. The emergency response plan must be realistic and specific to the worst case scenario. It must also be specific to the facility – none of this cut-and-paste stuff. Finally, the management/bonus/reward structure must be designed to discourage corner cutting.

So keep all of this in mind when you prepare your next SPCC plan, your RCRA Contingency Plan and your storm watre pollution prevention plan.

Equipment failure and human error!