The Perils of Environmental Crimes and How to Avoid them

ImageEPA’s enforcement data over the most recent 9 years shows a relatively small number of environmental crime cases initiated by the federal government.

The fact that less than 300 persons are charged by the federal government for environmental crime in a year points to several interesting facts. Why are there so few cases at the federal level with hundreds of thousands of companies operating in the country? There are two answers to this questions. The first one is that most environmental crime cases are prosecuted at the state or county levels. The second reason is that EPA mainly targets only the most egregious kinds of environmental violations for prosecution.

Internal memos with EPA show that the federal government looks at several factors before pursuing an environmental crime case. The first thing they look for is public endangerment. Any illegal activities that impact or have the potential to endanger the general public will be prime candidates for prosecution. For example, if a waste generator were to abandon its hazardous wastes at or near a school yard or discharge its toxic effluents into a public waterways that impact a public beach, the perpetrator will likely be prosecuted.

Another factor the agencies often consider is the mindset or behavior of the violator before the violations are committed. Although most environmental laws carry strict liability and do not require proof of intent, the agencies will still want to know what the violator was thinking. Did he intentionally commit the unlawful act in order to save money? Or did he knowingly operate a facility without an environmental permit knowing full well such a permit is required? Did he receive ample warnings from an agency inspector but choose to ignore the warnings and correct the violations? 

All of these factors go into the decision by the federal government on whether or not to file environmental crime charges against a violator.

The best way to avoid being targeted or appearing on the federal government’s radar screen is to heed the following advice:

  1. Always be responsive to an agency inspector’s warning and directive to correct a violation – no matter how small that violation may seem to be at the time. Many large enforcement cases started as a minor violation that management ignored and allowed it to fester into a negligent or knowing violation. Ignoring a agency’s first warning is never a good strategy under any circumstances.

  2. Perform internal environmental review or audit on a regular basis. It is like doing a regularly scheduled medical checkup. The sooner you discover a minor problem, the less costly it will be for you to fix it if you do it in a timely manner. Early detection is the key here. A small tumor can grow into a cancerous one if left untreated.

  3. Make sure your staff have sufficient knowledge of regulations to recognize a festering environmental problem. Your staff do not need to be environmental experts. But they do need to know enough to ask the right questions or stop a pending illegal act. Ignorance of environmental regulations is not blitz and is no excuse in the agency’s eyes.

  4. Always read your permits and understand what they require you to do in terms of operational conditions and recordkeeping. Seek outside help if you are not sure. Never wait for an inspection so that you can ask the inspector about your permit. By the time the inspector is at your facility, it is too late. The inspector is there not to provide you with free consulting advice. He is there to evaluate how well you are performing under your permit conditions.

  5. Do your own due diligence when it comes to hiring vendors to dispose of your hazardous wastes. If they offer you something that sounds too good to be true, it probably is.

  6. Never ever lie to a federal investigator or provide false information to the agency. Bad things will happen to you if you do. As with most white collar crimes, the cover-up is much more problematic than the actual crime itself.

Last but not least, always try to develop and maintain a cordial and professional working relationship with your agencies. If you are constantly “at war” with the regulatory agencies, you are diverting much needed energy and resources from your production and you also instill a high level of mistrust within the agencies about you. And that’s not a good position to be in.


EPA’s New Rule on Solvent-Contaminated Shop Rags

Back in 1992, the foreman and plant manager of a print shop in Tampa Florida disposed of their solvent-soaked shop rags in their dumpsters. They had been warned by the county inspector to cease such practice because the rags contained a spent solvent. They ignored the warnings and one day two 9-year kids got inside the dumpster to play and died from toluene fume asphyxiation. The plant manager and foreman were subsequently sentenced to prison for knowing endangerment and illegal disposal of hazardous wastes without a permit.

The proper disposal of shop rags that are soaked in spent solvent has always been a thorny issue for generators. The disposal practice has been mainly regulated by individual states. Many states prohibit the disposal of shop rags in dumpsters. EPA has never promulgated any regulations on such practice until very recently.

On July 30, 2013, EPA published its final rules on the proper disposal of solvent-contaminated shop rags and wipes. These final rules are set to go into effective January 31, 2014.

According to EPA, over 2.2 billion wipes are generated by industries annually and many of them contain spent solvents. The new EPA rule can be summarized as follows:

If you have a wipe that is contaminated with spent solvents or is ignitable, you have several options to manage and dispose of these.

If the wipe is reusable (made of cloth), you can send it to a laundry facility that has  been approved by EPA to wash these wipes.

If the wipe is non-reusable (made of paper), you can dispose of it in a municipal landfill or hazardous waste landfill or an industrial incinerator.

You must meet the following conditions:

  1. You may not store the wipes for more than 180 days.
  2. There must not be free liquids as determined by the Paint Filter Liquids Test (EPA Methods Test 9095B)
  3. The wipes must be kept in a non-leaking closed contained
  4. Documentation must be kept that these wipes are being managed as excluded solvent-contaminated wipes.

If you meet all of these conditions, your solvent-contaminated wipes are then excluded from the definition of hazardous wastes. In essence, these wastes will be viewed by EPA as being somewhat similar to universal wastes.

One note of caution, ONLY the wipes are being excluded. The spent solvent that comes out of these wipes are not excluded. Wipes containing trichloroethylene are NOT part of this exclusion.

You can download a copy of EPA’s final rule here.


Beware of LinkedIn Posts

ImageThe adage “Just because you read it on the Internet does not mean it is true” has been validated again.

A self appointed scientist from South Africa just posted a piece of garbage about global warming in LinkedIn. She claims that for every inch of ice that is melted off the polar ice caps, the world’s ocean would rise by 250 feet. Yes…you heard that right …250 feet!

Let’s just apply some simple high school math here: if the total area covered by the ocean were the same as the area covered by the ice caps (and it is NOT), one would expect the ocean level to go up by about one inch.  And we know that the area covered by the ocean is much larger than the ice caps. So how is it possible that one inch of ice would turn into 250 feet of ocean water? 

It is this kind of garbage that gives the legitimate environmental movement a bad name.

If that so-called scientist had gone to college and that’s what she got out of her education, then I believe she is entitled to a refund from that school.



ImageThere are many risks around us as we wake up in the morning and go to work. There is the risk of car crashes as we drive along the freeway.  We also have the risk of buildings falling down during an earthquake. When we get on the plane, there is always the risk that some terrorists may hijack our plane.

Society has taken certain actions to manage these risks. We establish speed limits and impose traffic rules by to minimize the chance of cars crashing into each other. We require buildings to meet certain codes to keep them from collapsing during an earthquake. We created the Transportation Safety Agency to screen all passengers going on planes. All of these actions are part of risk management.

Companies also manage risks at various levels.  For example, corporate risk managers work with insurance companies and fire departments to reduce the risk of their factories burning down. Safety managers set up machine guards to prevent amputations. They establish lockout/tagout procedures to reduce the risk of employees being electrocuted.

What about the environmental managers? How should we go about managing environmental risks?

The first thing we need to recognize is that environmental risks involve more than the risk of being fined by the government for permit violations. We as environmental managers need to think outside the box. Always be suspicious when somebody says “we have always done it this way” as a reason to resist change.

The old adage: I”f it ain’t broke, don’t fix it” is true only up to a certain point. If we had stuck with it during the horse and buggy days, we would still be riding to work in a horse drawn buggy because the buggy was never broken. It got us from point A to point B most of the time.

To think outside the box, we should look at chemicals that we use at the factory and ask these questions:

What are the risk to our workers when they use these chemicals?

What risks do these chemicals pose to the environment if they are spilled?

Are we storing too much of these chemicals on site at any given time?

We should look at the amount of hazardous wastes that we store onsite. What are the environmental risks associated with storing all those highly ignitable hazardous wastes on-site even though they may be within the legal limits of 90/180/270 days? Should we ship them out more frequently so as to reduce the risk of fire and spillage onsite?

These are all important environmental risk management questions we as environmental professionals need to ask ourselves.

When we do an environmental audit, we should never rely solely on a simple checklist. We should look around us and try to recognize risks. For example, if we see a deteriorating water tank right next to a transformer substation, a flashing red sign saying “HIGH RISK” should light up in our heads. We should immediately recognize that risk because when that water tank collapses, our factory will be out of commission for a long time.

Another example to consider environmental risk management concerns chemical reformulation? There is a simple reason why air regulations are constantly reducing the allowable amount of VOC in our cleaning solvents. The regulatory agencies are trying to encourage industry to switch to a more environmentally friendly solvent. Reformulation is an excellent way to reduce environmental risks. Many paint shops have escaped the clutches of Title V air permits simply by reformulating their paints. They now use paints that contain much less Hazardous Air Pollutants and VOC and that takes them below the Title V permitting threshold. So by getting out of title V permitting system, they significantly reduce the risk of citizen lawsuits and running afoul of Title V compliance certifications.

The last and very important way to reduce our environmental risks is to make sure that all our employees receive the proper training that they need so that they know what to do in case of an emergency. They also need to know why they are doing the things that they do and not just because someone told them so. A good auditor will always ask the question:  “How will they deal with it when something really bad happens?”

That is the ultimate test for environmental risk assessment and it should be on the mind of every environmental manager.

A funny, sad but true video about some Environmental Professionals

Here is a very funny video about why we are getting so many bad Phase 1 reports.

How to write a perfect Best Management Plan

iStock_000003319956XSmallThere are many environmental programs that require best management practices (BMP). These are actions that you must develop on your own to address certain environmental conditions at your facility. While the agencies provide guidelines, they do not prescribe specific details on how you must write your plans.

Here are three examples of BMPs that are required under US environmental regulations.

BMP for storm water management

BMP for hazardous waste

BMP for spill control

In all three examples, you are required to evaluate your particular situation and come up with a specific plan of your own to mitigate any environmental damages that might arise.

In the case of storm water BMP, you must identify how you store your chemicals and how you operate your facility and develop a plan to minimize the impact on storm water. There are two basic types of BMP: structural and procedural. Your structural BMP would describe how you physically control the movement of storm water to avoid coming into contact with your industrial activities.  For example, if you build a roof over your chemical storage area and install secondary containment, you are physically and structurally preventing the storm water from coming into contact with your chemicals.

A procedural storm water BMP would consist of good housekeeping practices that require your staff to clean up any spilled chemicals and not wash them down the storm drain. You achieve that through a training program and implementing of procedures to mitigate potential damages.

In the case of hazardous waste BMP, you are required to have a contingency plan or emergency response plan in place to manage any incidents involving your hazardous waste storage areas.  In this case, you must identify an emergency coordinator who has been given the prior authority to shut down operation in the event of an emergency. As part of the plan, you will have to develop a weekly checklist to inspect your waste storage area.  The regulations do not prescribe how you should write your contingency plan. The details of the weekly inspection checklist is left up to you. But the agencies do require you to develop the plan AND implement it.

If you store more than certain amount of oil onsite and have the potential to impact navigable waters of the United States, you are required by law to develop a BMP known as Spill Prevention and Control Countermeasures (SPCC). in this plan, you must identify specific steps that you will take to prevent any spilled oil from reaching the navigable waters of the United States. The specific details of how you do it is based on where and how you store your oil. Every facility is different.

One common thread among these BMPs is that you control the contents of these plans and it is your responsibility to demonstrate to the agency that your plans will do the job and that you will implement the plans as written by you.

Is your BMP overly simplistic that it cannot possible mitigate any damages? Or is your BMP so complicated and involved that you cannot possibly implement it? There is a happy medium and that’s what the agencies look for during an inspection. They look for evidence of implementation as written in the plan.

Many facilities make the mistake of hiring outside consultants to prepare these BMPs for them without any regards to how the plans will be implemented. For example, if the consultant puts down in the BMP that you will inspect your oil storage facilities every day, will you have the manpower to carry it out? The agencies will be looking for a COMPLETED daily inspection checklist as evidence that you have carried out your BMP.

The best way to avoid such situation is to make sure you and your staff are involved with the consultant in developing the plan. Make sure the consultant does not promise anything in your BMP that you cannot deliver. Also make sure the people who will be implementing the plan are involved. Ownership is the key to implementing any environmental plans.

Bottom line: always write a plan that has sufficient meat in it to do the job but not so complicated that it never gets implemented.

BP’s Criminal Fines

The US Department of Justice announced yesterday that it had reached a landmark settlement with BP Oil for its massive oil spill 2 years ago.

BP has agreed to pay $4.9 billion in criminal fines and plead guilty to criminal charges of manslaughter resulting from the deaths of 11 employees on the drill rig. A vice president of BP has been indicted for lying to Congress when he allegedly provided false information about the amount of oil spilled to the government. He told Congress the amount spilled was about 5000 barrels a day when he had knowledge that it was almost 10 times that amount, according to the indictment.

Two drill rig supervisors (the most senior persons on the platform when the incident occurred) were also indicted for manslaughter. The government alleged in the indictment that they ignored repeated danger signs that the rig was about to blow up and failed to consult with company experts prior to the incident.

The maximum amount of criminal fine under the Clean Water Act could be as high as $20 billions based on findings of criminal negligence.