Volume I, issue III


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Contact us: vitalsigns@vanguardenvl.com

• Asking The Right Questions: Measuring Your Facility's EPA/OSHA/DOT Compliance Against the Government's Benchmark
   
• Reg-Alert!!!
  Establishing Landowner Liability Protection through All Appropriate Inquiries
   
• Occupational Safety & Health
  Indoor Air Quality: The Liability Risks
   
• One Eye on Enforcement
   
• OHMMP Updated

ASKING THE RIGHT QUESTIONS: Measuring Your Facility's EPA/OSHA/DOT Compliance Against The Government's Benchmark

REGULATORY COMPLIANCE...60+ federal EPA, OSHA, DOT laws - with mandates at state, county, and local jurisdictions - has simply outrun Industry's ability to keep pace!  yet, such "bet the company" issues can not be ignored!  That's exactly what's happening in the overwhelming majority of companies in the U.S.  It's simple!  People assigned to their company's compliance aren't aware of all the laws, much less have an effective basis for comparison with government mandates.  Thus, they fall prey to myths and misconceptions that place their company in severe jeopardy.

Most people don't know what constitutes being in or out of compliance, so they fall far short of the government's expectations.  In short, the answer is PRECISION DUE DILIGENCE... doing one's homework with a commitment toward accountability without bias to the outcome, knowing enforcement penalties are an ugly alternative.  We've all heard the slogan, "Garbage in, garbage out."  Regulatory compliance is no exception.  In truth, you're only as good as your due diligence.  It all begins by ASKING THE RIGHT QUESTIONS!

So, here is a set of industrial-strength questions which must be posed when assessing the strengths and weaknesses of a facility's compliance against the only benchmark that matters...that of the U.S. Government.  Moreover, these questions can be posed whether your compliance is handled internally OR outsourced to a consultant.  This instrument is an exceptional power tool for evaluating the capabilities of an 3rd party EHS consulting firm to ensure their serves to you align perfectly with the government's expectations - no more, no less.  Make use of these questions and you can't go wrong in making the right decisions about your EPA/OSHA/DOT compliance.  It's the least you need to know!  To blindly assume you're in compliance, or to rationalize you're exempt, without having a benchmark for comparison, can be professional suicide.  Don't take this set of questions lightly.  It just may lead you to the most important decisions you'll make this year!

Please read on.  You may just find yourself even more excited when you discover how Vanguard's proprietary technology, COMPLIANCE GAP ANALYSIS (the largest regulatory compliance data base in the U.S.) serves as the GOVERNMENT'S BENCHMARK to screen your facility's site-specific compliance issues against all the questions below (and more).

GENERAL / COMPLIANCE ASSURANCE & ENFORCEMENT READINESS

1. What BENCHMARKS do we/you (you, i.e. consultant) use for compliance assurance with those laws driven by chemical hazards, thresholds, and regulatory mandates among the 60+ laws imposed by the government?
    

2. How do we/you TRACK LEGISLATIVE CHANGES & COMPLIANCE DEADLINES? (with the laws evolving by as much as 30% per year)?
    

3. What’s the status of our DEFENSIBLE DOCUMENTATION in readiness for an enforcement inspection coming from any jurisdiction – federal, state, county, & local - among 60+ EHS laws?
    

4. How do we/you screen against the FOUR (4) THRESHOLD CATEGORIES encompassing the 60+ laws to which our company is accountable?
    

5. What methods of PRECISION DUE DILIGENCE do we/you currently perform for compliance assurance, continuous improvement on ever-evolving regulatory laws, and risk management?
    

6. How do we execute the AGGREGATE TOTAL RULING as a part of our due diligence on the 11 laws requiring its application?

SPECIFIC REGULATORY: ENVIRONMENTAL, HEALTH, SAFETY, HAZMAT

1. What's the STATUS of our ENVIRONMENTAL COMPLIANCE REPORTING under EPA’s SARA Title III?

   • (California: What’s the status of our Hazardous Materials Business Plan?_______________________)

   • (Maricopa County, AZ: What’s the status of our Hazardous Materials Mgt. Program?_________)

   • (Houston, TX: Hazardous Materials Permit?______ (Flammables: 5 gals inside/10 gals outside)
      

2. How do we/you screen our company against the 375 extremely hazardous substances under EPA’s SARA, Sec. 302 where the threshold planning quantities (TPQs) go as low as 1 lb, including the execution of the Aggregate Total Ruling?
   
   For a complete list of "The Right Questions" click here
    

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), as amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA), assigns responsibility for any actual or threatened release of a hazardous substance at a facility, in which response costs are incurred, to owners and operators (and others) who contributed directly to the release.  This liability is shared by current owners and operators of the facility, even if they may not have materially contributed to the release.  When CERCLA was promulgated, Congress acknowledged the hardships that this liability might incorrectly place on lenders, and included a ‘secured creditor’ exemption.  This protection was reinforced when Congress passed the Lender Liability Amendments to CERCLA in 1996.

The lender, however, still shouldered a significant liability; if a mortgagee was found to be responsible for incurred response costs, bankruptcy would be a real possibility.  Building on the ‘third party defense’ language in 42 U.S.C. §9607, the CERCLA innocent landowner defense has evolved into a set of formal, specific regulations, found in 40 CFR 312, and known as the All Appropriate Inquiries (AAI) requirements.  AAI was published in the Federal Register in November, 2005, with an effective date of November 1, 2006.  After this date, to qualify for any of the three landowners liability protections offered by CERCLA, an ‘all appropriate inquiry’ into the previous ownership and uses of the property must be conducted.  Conducting an investigation into the history of a tract of land, according to the ASTM Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process E 1527-05 (Standard), specifically satisfies this requirement.

An AAI investigation, according to the Standard, is made up of four general parts, including the historical records review, the site reconnaissance, interviews of knowledgeable persons, and creation of the final report.  An environmental professional, as defined in the Standard, must conduct this investigation.  Finally, it is important to note that the completed investigation expires, for all practical purposes, after 180 days.  The interviews, review of historical records, site reconnaissance and the declaration of the environmental professional must be completed less than 180 days before the date of property acquisition.

Documentation

It is imperative that a workplace create defensible documentation of the entire work environment to prevent frivolous lawsuits against the organization relating to Indoor Air Quality (IAQ). This historical documentation has saved many of my clients! Without consistent records of contaminant levels, any person employed for even a short period of time can claim loss of hearing or respiratory function and walk away with a five- or even six-figure settlement.

Sampling

IAQ sampling should be performed twice a year:

• Once in the summer when windows and doors are normally open (air dilution); and
• Once in the winter when the facility is closed and fumes/vapors are more concentrated.

Doing this not only provides a more accurate understanding of seasonal variations in ventilation vs. production levels vs. contaminate levels, it also helps close a seasonal "window" of legal liability.

One statement I hear regularly is "Yeah, it's not too bad right now because all the windows are open, but you should be here in the winter when the building is closed up."

If an employee makes that statement during legal proceedings and a company does not have historical, seasonal monitoring, break out the checkbook because you are going to be writing a big check!

Following this schedule not only identifies times and/or seasons of peak contaminate levels, it provides hard data that facility managers can use to monitor the performance of building ventilation systems and equipment. This can contribute to better process control and reduced operating costs. Do you want to know how switching from a solvent-based cleaner to a water-based biodegradable cleaner affects IAQ? Simply evaluate the results of a recent IAQ report with previous years and you have an answer – not conjecture, not guesswork, but hard scientific data.

Conclusion

Although it may not be measurable or even considered as a tangible benefit, when a workforce observes constant monitoring of a work environment, employees tend to be much more aware of management's proactive efforts to protect them as employees. This results in a general increase in safety awareness and employee satisfaction. It also helps prevent litigation because employees realize the company is not an easy target!

IAQ monitoring is relatively inexpensive and this relatively low cost investment could literally save a company. How many other investments in safety equipment or machinery offer such a high return on investment?

The Canadian Perspective

• Failure to monitor equipment and take steps to prevent internal corrosion
• Failure to employ personnel qualified in corrosion control methods, and
• Failure investigate and repair corrosion problems reported in two of its pipeline sections
• NOTE: The company will spend another $86 million to upgrade safety of its 10,000 mile pipeline system.

OHMMP UPDATED!!!! CHECK OUT THE LINK BELOW!!!!

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CONTACT US
Email: vitalsigns@vanguardenvl.com
(918) 641-5588 (Worldwide)
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