Ten Steps to Avoid Air Fines

Bob Davis wrote an excellent article in the November 2009 issue of Pollution Engineering magazine. (Full disclosure: I write a column there every two months). It is called “10 steps to avoid air fines”. A few of his compliance tips (in italics) are worth repeating here followed by my own commentaries:

• When it comes to ensuring compliance, make everyone responsible. Hallelujah! Make someone responsible for reviewing the air permit – or any permit for that matter. It is amazing how many people spend oodles of money getting a permit and then just file it away in the desk draw without reading it. It is critical that you read and understand the requirements of your own permit. Don’t wait for an inspector to review it for you.
• Follow the EPA online and stay informed on regulatory actions. One good way to do that is to sign up for EPA (and state agency’s) mailing lists. They are FREE and will keep you posted on the latest regulatory requirements.
• Quiz vendors on potential problems that could lead to trouble. If a vendor tells you his equipment is the best thing since sliced bread, tell him to back it up with full indemnification in writing. In other words, if his wonderful machine causes a violation, he pays your fine.
• Practice vigilance when selecting a stack tester. That is excellent advice. Make sure the tester has good working relationship with the agency that will be reviewing the test results. Talk to the regulatory agency BEFORE hiring the tester. If the tester has a questionable reputation, the regulators will let you know in one way or another. They may not come right out and tell you. But you will sense it.
• Get to know the inspectors and do not hesitate to ask them for guidance. That is good advice up to a point. If you have a good working relationship with your inspector, he/she will offer you guidance unofficially. Many agencies specifically prohibit their inspectors from offering consulting advice to the regulated communities. Do not count on your inspectors as your free consultants. Back to the first point – you need to know your own permit conditions.

When do you need an air permit?

This is a question asked by many people in industry. In almost every state, you are required to obtain a state operating permit if you have an air emission source unlessthat source is specifically exempt by state regulations. An emission source would be any equipment or facility that is capable of emitting air contaminants to the atmosphere.

Different states have different exemptions. For example, in Illinois you are exempt from getting an air permit if your coating operation uses less than 5000 gallons of coating material including thinners (Illinois Title 35, subtitle B, chapter I, section 201.146(g)). If you have a print shop and you use less than 750 gallons of paint a year, you are exempt as well.

In southern California, the Air Quality Management District (AQMD)’s Rule 219 lists all the emission sources that are exempt from getting an air permit. For example, Rule 219(h) exempts printing operations that emit less than 3 lbs of VOC per day or 66 lbs of VOC per calendar month.

By the way, in every state and under the Clean Air Act, you must obtain a construction permit before you are allowed to install any air emission sources.  Sometime they call it a pre-construction permit. If you have purchased a new piece of equipment that is an emission source, you are not allowed to bolt it to the ground or wire it up. You can unwrap it and have it sit on the shop floor while you are waiting for your construction permit to be approved. Many companies have been fined by EPA for installing equipment without a construction permit. The agency may even order you to uninstall the emission source and pay a fine and apply for a construction permit.

This is often a bone of contention between the environmental staff (you) and production staff (them). The production folks may take 3 years to decide on a new piece of equipment. Once they have purchased it, they want to install it and run it right away. This is where you say to them: “No, you can’t do that. We have to apply for a construction permit first and that may take a month or two.”  If they were smart, they would have told you about the new equipment a month earlier before they take delivery of it so that you could start the permitting process.

That would be the ideal situation.

If you need the construction permit in a big hurry, you can pay the agency a fee to get on the “fast track”.

Good apples vs bad apples

We have had some lively discussions about EPA’s self-audit policy lately. The topics of good apples and  bad apples came up in the context that EPA does not trust the bad apples. These are the companies that have a bad reputation and a long history of non-compliance.

One of observations I have made in my seminar business over the past 10 or more years is that bad apples never send their employees to training classes. They never want to spend the money to train their employees. And that’s a main reason why they are bad apples! If their employees don’t know what to do in their daily routines, they are going to get into trouble with the regulatory agencies. It is the age old question that dishwashing detergent salesman faces all the time: Do I sell my detergent to people with dirty dishes or people with clean dishes?

The answer is ….(drum roll please)…..: You sell detergent to people with clean dishes. People with dirty dishes don’t buy detergent. That’s why they have dirty dishes.

If you are an environmental manager with a bad apple, you have a long road ahead of you. It takes a long long time for a bad apple to be converted into a good apple in the eyes of EPA. You need to do everything you can to resist management’s tendency to delay, procrastinate and obfusicate when it comes to environmental compliance. There are  managers who still think that for every year that they delay compliance, they save a year’s interest on the expenditure. These are the same people who have never heard of EPA’s economics benefits portion of the civil penalty. These are also the same type of people who think becasue of their elevated position in their company they are somehow “immune” from prosecution for environmental crimes.

If you know what you are about to do is the right (and legal) thing to do, go ahead and do it if you can. Don’t ask for permission from management becasue you know the answer is going to be no. Admiral Grace Hopper used to say: “It is easier to ask for forgiveness than it is to get permission”. There is some truth to it.

The transition from bad apple to good apple generally takes a few years. You have to demonstrate to the agency through your action that they can trust you when you tell them you are going to do certain things. One way to do that is to always respond to the agency in a timely fashion. Always meet any deadlines that you have with the agency. Never play mind games with the agency. Make sure you hire the right kind of consultants to represent you before the agency. You also need to protect yourself from personal liability if your company is a bad apple. Here is an article I wrote recently on this topic.

We cover all of these ideas and many more in our 2-day seminars. <—-occasional shameless plug here.

Environmental audits

There are two types of environmental audits.

The most common ones are the compliance audits. This is where you go and check to see if you are in compliance with the various environmental regulations. You often do this with a checklist. You are asking the question: “Is everything OK today?” This type of audit gives you a snap shot of your compliance status on the day you perform it. It does not tell you anything about what happens a week or a month later.

With the checklist, you are essentially asking yes/no questions. For example, you are asking “Is the accumulation start date clearly marked on the hazardous waste label?” There can be only two answers. It is either “yes, it is there” or “no, it is not there”.

The second type of audit is the environmental management audit. Here you do NOT ask  yes/no questions. You ask open-ended questions. For example, you would ask the person responsible for the waste accumulation area this type of question: “When do you put the accumulation start date on the label?” He cannot answer yes or no to your question. If he answers “when I ship the container out”, that would be the wrong answer. The correct answer is “when the first drop of waste goes into the container in the storage area”.

When you ask open-ended questions like the example above, you are trying to determine the level of understanding and knowledge of  the person who is responsible for managing the wastes.  You are not asking the “is anything wrong here today” question.  You are not taking a snap shot. You are trying to determine how that person will manage an environmental problem when it comes up a month later.

In a compliance audit, you are looking at physical things like evidence of spills, records, labels, etc. In a management audit, you are looking at people skills.

By the way, a tell tale sign of future problem is when you ask someone “why do you do it this way” and the reply is “I am not sure but we have always done it this way.”

It is all in how you ask the right questions.

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.

New development on the air front

Today EPA granted California’s waiver from federal air emission standards for cars and trucks. This waiver means that California can enforce its own tailpipe greenhouse gas emission standards BEFORE the federal emission standards become effective 2012. The same waiver had been denied by the Bush EPA earlier.

This is another example that California and other states can have more stringent environmental standards than the federal standards.

Another development today is the Minnesota Supreme Court’s ruling that Al Franken had won the Senate race. Norm Coleman conceded soon after the ruling came out. What that means is that there will now be 60 Democratic senators and that makes it easier for the Democrats to pass its cap-and-trade law in the Senate.

The House passed its cap-and-trade law (American Clean Energy Security Act) last week.

Remember to update your Risk Management Plan

Under the Clean Air Act, if you are required to file a Risk Management Plan (RMP), you are also required to update your plan every 5 years. EPA has started to warn companies to update their plans or face penalties.

For example, in a streamlined enforcement process, EPA’s Region 2 office continually identifies facilities that currently have risk management plans in place to see which plans are overdue.  Where the Agency finds facilities that have not updated their plans on time, EPA is giving that facility a chance to comply and pay a discounted penalty.  This was the case recently for the Kuehne Chemical Company in South Kearny, New Jersey.  As a result of EPA’s enforcement efforts, the company updated its plan and paid a $1,400 penalty for late filing.  Additional enforcement actions are planned in the coming months.

For assistance in submitting an updated RMP, facilities should contact the RMP Reporting Center at 301-429-5018.  Additionally, EPA has developed a new method for preparing and submitted your RMP which became available on March 13, 2009.  The new method is called RMP*eSubmit and information about RMP*eSubmit and how to set up an RMP*eSubmit account can be found here.

EPA’s new budget for 2010

The White House has proposed the largest budget increase in EPA’s 39-year history.

The Obama Administration is proposing to spend $10.5 billion in 2010 on EPA including $3.9 billion for the agency’s operating budget which includes research, enforcement and regulatory activities.

The White House also proposes to re-impose the Superfund tax that had expired in 1995. The tax would go in later years after the economy has recovered. It would generate $1 billion for toxic site cleanups.

For a copy of the proposed budget for EPA, click here.

Storm water enforcement action by EPA and California

EPA Region 9 and the Los Angeles Regional Water Quality Control Board conducted on-site audits of City of Los Angeles’ and City Long Beach’s municipal storm water programs and conducted 55 individual storm water inspections of port tenants in May 2007.

As a result of this effort, on November 9, 2007, EPA issued an audit report and 20 Administrative Orders to facilities at the Ports of Los Angeles and Long Beach for being not in compliance with California’s Industrial General Permit.

One of the facilities was cited for:

1. Not identifying a pollution prevention team in its storm water pollution prevention plan (SWPPP)
2. Not maintaining sampling records of monthly visual storm water discharge observation
3. Not adequately implementing Best Management Practices (BMP) as identified in its SWPPP. In this case, the facility lists good housekeeping as a BMP. And yet the EPA inspectors observed significant amount of trash and white material on the ground at a location that drains toward the storm drain. There were also evidence of tank overfilling and spillage of glycol and latex paint.

These are common violations for many SWPPPs because facilities often ignore the written plans and fail to IMPLEMENT them. It is very easy for an inspector to look at the written plan and compare it to reality. More often than not, the written words and reality fail to match.

The issuance of 20 Administrative Orders by EPA is convincing proof that the agencies always LOOK for evidence of implementation when it comes to environmental plans such as SWPPP. It is NOT sufficient to just hire some consultants to prepare a nice looking plan for you. You have to actually do what the consultants have put into the plan.

So always manage your consultants and make sure they don’t put something in your plan that you can’t implement. Remember: they get paid whether you implement the plan or not. Work with the consultants and your staff who will be implementing the plan to make sure your staff has ownership of that plan.  

Without ownership, it is likely no one will implement the plan.

Hazardous Waste Violations

On January 7, 2008, the U.S. Environmental Protection Agency issued a press release saying that it has fined Admiral Transportation of City of Industry, Calif., $15,000 for violating federal hazardous waste regulations. The violations uncovered by EPA during an inspection in April 2006 included: 

• Failure to comply with labeling requirements for containers of hazardous wastes;
• Storage of hazardous waste without a permit for a period exceeding 90 days;
• Failure to close hazardous waste containers;
• Failure to submit biennial reports;
• Failure to conduct weekly inspections of hazardous waste areas;
• Failure to properly dispose of hazardous waste.

These are very common hazardous waste violations. Click here for a list of the 13 most common RCRA violations and practical ways you can avoid them. Note that EPA cited the facility for storing hazardous wastes without a permit because the facility exceeded its storage time limit of 90 day. The RCRA regulations are exemption based. You are allowed to do certain things (such as storing hazardous wastes on-site) without the need for a RCRA permit as long as you comply with certain conditions (such as not storing them for more than 90 days if you are a large quantity generator). So as soon as this facility exceeded the storage time limit, the exemption became invalid and it was operating a Treatment Storage and Disposal Facility (TSDF) without a permit. 

Another violation was on failure to conduct weekly inspection of the waste storage area. This too is a very commonly cited violations. One way to ensure compliance with this requirement is to make sure your weekly checklist is simple to fill out and the person who is responsible for doing it has some ownership of it. Make sure that person understands why this must be done every week. And if you discover any discrepency during your inspection, make sure you have a procedure to correct these problems in a timely fashion. Here is a sample checklist that is simple. 

Note that it is rather unusal for EPA Region 9 to be involved in enforcement action in California. The common practice is for the local agencies to get involved first. There may have been other circumstances that led to EPA’s involvement.