Vital Signs

The information here comes from over a decade of personal field work in the EHS Compliance field through visitation of over 25,000 companies in business and industry in the U.S., Canada, & Mexico. It is hoped that it provides a bit of assistance in either eliminating myths and misconceptions or resolving issues in the minds of individuals who are making an effort at keeping their companies in a proactive posture when it comes to their own compliance.

These “myths” are generally bandied about by someone operating from a very limited framework of knowledge about compliance. This is surely not to imply that such an individual is stupid, because usually the comment in the mind of the speaker is based on something that just might sound or seem logical from his perspective, especially if it’s the kind of statement that could possibly keep him from complying with a given law or laws. Every businessperson would love to be relieved from compliance (tax relief and compliance relief come from the “good news” arena, right?), so he might say anything to avoid compliance. But, how about that inspector who’ll visit someday? If accurate information is not provided to rid us of “stinkin’ thinkin’” (as Zig Ziglar has so aptly puts it), we’ll only be left with a false sense of security, only to have it blow up in our face someday upon the inspector's arrival. Isn’t the heading of this chapter appropriately named…Truth or Consequences? That says it all, huh?

It might also be wise to submit a basic disclaimer here that says, in most cases, the content below is factual, but it is not implied that the information presented here would be true in every single case, for every individual, given every law, and every jurisdiction. The intent is to provide some basic information that could help someone understand compliance issues to a greater degree, thus helping them avoid non-compliance and the unnerving mishap of an enforcement inspection in which a company’s progress in “bottom line” issues suffer a major financial setback due to a lack of awareness on compliance matters. Such a so-called “knock-out punch” happens everyday somewhere in America. Let it not be you that hears the oft-repeated phrase, “Ignorance is no excuse for the law.”

Simply stated, you can get in compliance, or you can rationalize it away with excuses, but you can’t do both. Incidentally, the myths below are not offered in any order of priority.

ANSWER: You're probably referring to OSHA's definition of a hazardous substance in which they make a distinction between a hazardous and non-hazardous chemical. OSHA makes a distinction between "hazardous" vs. "non-hazardous," whereas the EPA considers practically everything "hazardous." The objectives of EPA laws are much broader and entirely different from the intent of OSHA. OSHA's objective is one of safety and health for employees in the workplace, while EPA's objectives goes far beyond that to one of environment - air, land, and water - the community, the region downwind, plant and animal life, and even future generations. So, the EPA defines a hazardous substance as almost "anything reflected in a Material Safety Data Sheet - Liquid, Solid, or Gas.” The chemicals you have in your facility are definitely hazardous, depending on which of the some 50 federal compliance laws come into play. But then you must also consider state, county, and local regulations, as well. This gives new meaning to the term “regulatory maze.”

ANSWER: First of all it’s important to remember that virtually all the laws are based on chemicals, thresholds, and the mandates that govern them. It’s important to know just which law you’re referring to when making such a statement. Many laws have thresholds that go as low as 1 lb. and then the thresholds can change from one law to another, even on the same chemical due to the objectives of each law. There are actually millions of variables when it comes to thresholds. For example, there are 4 categories of thresholds: 1. Inventory thresholds...maximum amt. on hand any given day; 2. annual usage...how much chemical did you go thru over the course of an entire year; 3. emissions...how much did you release to the environment over the period of a given time - generally a year, but can be weekly, monthly, or quarterly; 4. permissible exposure limits (pel's)...expressed in parts per million (ppm's). The latter usually refers to Indoor Air Quality in which you must monitor for the action level which is exactly half of the PEL. When you reach the action level on one or more chemicals, then you must develop an entire program to manage that problem in your facility. In conclusion, it’s difficult for a facility to have any kind of chemical inventory as reflected in their MSDSs and not be exceeding some kind of threshold. Be extremely cautious when you hear yourself saying, “We don’t exceed any thresholds.”

Two more things really important to understand about thresholds would be these: 1. the initial quantity that would require your accountability; 2. the aggregate total ruling. The universal regulatory language says, "If you use, store, process, produce, manufacture, distribute, or import a chemically-oriented product, then you're accountable for all federal, state, county, and local laws - as long as you have it in excess of household quantity or in concentrate form. Household quantity would be like having a couple cans of W-D 40 at home in your garage. But when you get a case of it and bring it into the workplace, you are required to have an MSDS and accountable for any and all EPA, OSHA, DOT compliance laws. Concentrate Form, on the other hand, is a bit more obscure to understand. Let's say you buy just a quart of Methyl Ethyl Ketone (MEK) and bring it into your facility. Because it's really hazardous (aka a bad actor), this is what the EPA refers to as the "0 Threshold Amount.” Now you are automatically accountable for executing the necessary due diligence for all the laws that relate to MEK.

It's extremely difficult to have a chemical inventory in a company where everything is maintained at household quantity and all chemicals are so watered down that they wouldn't require any accountability.

ANSWER: It is common that people don't fully understand how a "chemical" is defined. Many people think of a chemical as some form of "liquid in a pail." But the U.S. Government establishes a "chemical" as ALL the constituents - liquids, solids, gases - that comprise a product utilized in a facility. Since most people think in terms of products, rather than chemicals, they are unaware that there are an average of 3 chemicals for every product utilized as a part of the facility's operation. A good regulatory guideline for projecting how many chemicals must be analyzed and tracked is: MULTIPLY THE NUMBER OF MSDSs MAINTAINED WITHIN THE FACILITY BY THE FACTOR OF THREE. THIS GIVES A FAIRLY ACCURATE PROJECTION OF THE CHEMICALS PRESENT IN THE FACILITY, AND THEREFORE, MUST BE ANALYZED FOR COMPLIANCE. FOR INSTANCE, 3 CHEMICALS X's 75 MSDSs = 225 PROJECTED CHEMICALS THAT MUST BE ANALYZED AGAINST THE VARIABLES OF REGULATORY COMPLIANCE LAWS. [Exception to guideline…Plating companies will have a factor of 1 ½ per MSDS and cultured marble mfrs. will have a 2 : 1 factor; and chemical &/or paint mfrs. will have raw materials (different from their finished goods) that have just about a 1 : 1 ratio because they're mixing pure chemicals together for the purpose of manufacturing a finished product.]

4. MYTH: WE’RE NOT A MANUFACTURER, WE’RE ONLY A DISTRIBUTOR (WAREHOUSE – OR OTHER FORM OF NON-MANUFACTURER).

ANSWER: This is actually good news, to a degree. Your compliance responsibilities will be reduced because you’re not a manufacturer. However, the government regulates EHS compliance by chemicals, processes, and human exposure to hazards in the workplace, rather than the nature of your business activity. For instance, EPA’s SARA Title III (1986) established compliance requirements for manufacturers to begin by March of 1987 reflective of the previous calendar year. Then, the same requirements, with very few exemptions, were established for NON-MANUFACTURERS to begin by March of 1988 (the very next year) for the previous calendar year.

But also, please remember the regulatory umbrella phrase, “If you USE, STORE, PROCESS, PRODUCE, MANUFACTURE, DISTRIBUTE, OR IMPORT a chemically-oriented product – as reflected in your facility’s MSDSs – then you’re definitely accountable for many EPA, OSHA, & DOT laws. Frankly, there are not many OSHA laws that will carry any compliance relief for non-manufacturers. But true, the hazards will probably be less which, in turn, probably reduces your overall compliance responsibilities.

5. MYTH: EXCEPT FOR A FEW PAINTS AND FUELS, WE DON'T HAVE ANY CHEMICALS. WE JUST FABRICATE METALS.

ANSWER: Ah! METALS, one of an inspector’s favorite words, as in “GOTCHA!” In the metals industry alone, Vanguard serves over 200 clients across the country, so we've run into this misconception before. All metals are recognized as mixtures of chemicals, too. They contain such chemicals (many of which cause cancer) as CHROMIUM, NICKEL, MANGANESE, MAGNESIUM, CADMIUM, COPPER, ZINC, LEAD, VANADIUM, ALUMINUM, AND MANY OTHERS. All metallic chemicals are required for analysis, tracking, and reporting, except in the case of an "article of commerce" which removes some requirements from the facility. As one EPA's top administrators shared with us when we were in Wash., D.C., it is not uncommon, for example, for an entire "battleship being repaired at dry dock" to become a part of a facility's requirements. The American Institute of Steel Construction is an excellent source for this topic as they have published some helpful information for their membership regarding compliance issues regarding metals. You may want to contact them directly or call Vanguard to secure a copy of an announcement about reporting metals under EPA’s Toxic Release Inventory. Also, you may want to locate a copy of EPA's list of metal chemicals and how they're regulated under Form R Reporting, which are also regulated under the Storm Water & Air Permitting laws, too. Or, if you’re a movie buff, try renting, A Civil Action, starring John Travolta – or Erin Brockovich, starring Julia Roberts - for a jolt of compliance reality on metals. Both movies will get you to thinking.

6. MYTH: WE'RE A "SMALL QUANTITY GENERATOR" (or CONDITIONALLY-EXEMPT SMALL QUANTITY GENERATOR – KANSAS GENERATOR, if in KS) SO WE DON'T HAVE TO DO ANYTHING. THIS STATUS MAKES US EXEMPT.

ANSWER: Now we know we can really help you. We know that you don’t necessarily want to hear that you’re out of compliance; but we know you’d rather hear it from us than an inspector that just walked through your facility’s door. The fact that you are any kind of generator states that you are using chemicals so hazardous, they happen to be regulated for hazardous waste disposal under EPA's Resource Conservation & Recovery Act (RCRA). Here's the way people become mystified on this topic. The word "small" is misleading. It just means your facility, as an SQG, is disposing of between 220 lbs. and 2200 lbs. of hazardous waste in any one month. Unfortunately, if you're satisfying disposal regulations as a part of RCRA, it doesn't mean other laws don't apply to your facility. It means exactly the opposite in most cases. Actually, a typical SQG may have to comply with as many as 15 different laws from EPA, OSHA, and DOT. It's important to know that hazardous waste generation is a key indicator that your facility will be regulated under many other laws. If you even so much as whispered this myth to an inspector, you just told him you're out of compliance on at least a few laws because you've misinterpreted the definition of the word "small" in your generator status. But don't feel bad about it, you're not the first or the last that will make that mistake. The fortunate thing is that you discovered this through Vanguard.

7. MYTH: OSHA (OR AN INSPECTOR FROM SOME OTHER LOCAL, STATE, OR FEDERAL AGENCY) WAS OUT HERE RECENTLY, AND THEY DIDN'T SAY ANYTHING ABOUT OTHER COMPLIANCE REQUIREMENTS, SO WE MUST BE OKAY.

ANSWER: You know, it’s upsetting the way inspectors come in and, by not saying anything, they leave the company with a false sense of security. I believe strongly that inspectors should have to carry a written statement with them that informs people about what the scope of their visit entails and what its limitations are. For instance, OSHA inspectors are generalists - they'll inspect for almost anything regarding a safety and health issue, but they have no authority on EPA or DOT matters, so they don't say anything about that since that's not the purpose of their visit, or even an area of their expertise. EPA Inspectors, on the other hand, are very specialized and only inspect for their area of authority or assigned expertise. An inspector from the EPA will come in on just one specific issue, and in many cases, cover a specific subsection of a law. They won't delve into the other 12-15 laws from their very own agency, nor do they even let you know that the purpose for their visit does not somehow imply that you're either in or out of compliance on everything else your company may have to do. One important thing, though, enforcement agents may compare notes about your facility with their colleagues in other levels of regulatory agencies (EPA and OSHA signed a "tipoff" pact in early 1991 in this regard), since they do not perform a one-stop inspection status report on all regulatory issues. Remember, to assume your compliance is okay on several laws, just because an inspector found no flaws in the one area for his inspection, is faulty thinking.

8. MYTH: WHY DOESN'T THE GOVERNMENT TELL ME THESE THINGS? THEY'VE NEVER CALLED ME OR WRITTEN ME.

ANSWER: Actually, they do, but probably not in the way you'd prefer. The government can make a strong case it has told you all you need to know in the way the U.S. Congress and state agencies require them to tell you. True, they probably haven't called you personally on the telephone. But they have communicated in a number of ways. The only one that really matters, though, is the Code of Federal Regulations (or the Canada Gazette for our friends in the North), and you're required to know the laws that affect your business if you're going to operate a company in the United States. The 1947 Supreme Court decision of Federal Ins. Corp. v. Merrill states, "Everyone is charged with knowledge of the U.S. statutes at large." This was the landmark case, which everyone now recognizes as: "Ignorance is no excuse!" In addition to the above, the three U.S. regulatory agencies - EPA, OSHA, DOT - and their state and local jurisdictions commonly and consistently do seminars and conferences to keep you abreast of the variables of the law. They even consistently send you correspondence and publish their conference dates in newspapers and trade magazines. Most associations have regulatory affairs managers and departments that assist their membership with regulatory compliance updates. Frankly, you'd probably have a rough time proving that the government hasn't informed you of the laws. It would be unwise to use “the gov’t didn’t tell me” defense.

9. MYTH: THAT'S JUST FOR THE..."BIG BOYS" (BIGGER COMPANIES, OIL COMPANIES, MANUFACTURING COMPANIES, CHEMICAL COMPANIES, ANY KIND OF COMPANY OTHER THAN THAT OF THE PERSON DOING THE TALKING).

ANSWER: This is one of those things that's relative. For instance, a millionaire and an average wage earner both have to pay taxes…just to different degrees, right? Well, companies both large and small have to comply with EHS laws, but the large ones are probably going to have to do much more. It's important to understand that many of the regulatory compliance laws have no minimum limits on size or number of employees. Here's a cardinal rule of compliance laws. For any company that has a chemical inventory of any consequence, reflected in the facility's MSDSs, there are probably at least three laws holding the company accountable for due diligence and compliance - 1. EPA Environmental Compliance Reporting under SARA Title III, Sec. 301-312; 2. OSHA Hazard Communication (Employee Right-To-Know); 3. DOT's HazMat Employee Training.

10. MYTH: WE'RE NOT DOING ANYTHING WRONG! WE'RE NOT POLLUTING OR DUMPING OR POURING THINGS DOWN THE DRAIN! THE GOVERNMENT CAN'T BE CONCERNED ABOUT US!

ANSWER: If this strikes a chord with you, then you’re probably a good corporate citizen. But, unfortunately, that's not what drives EHS laws, even though it's certainly good you're not dumping, etc. You see, if it all came down to "dumping" or out-and-out environmental crimes, the government's job of environmental protection and occupational safety/health would be a lot easier. Virtually all the laws are based on chemicals in industry and almost all companies have chemicals. The crux of the problem goes deeper than you think, and the government's scientists have been studying it for well over 50 years. They've got more "significant studies from leading universities" than anyone could count. Here's the challenge. The U.S. is the strongest industrialized nation in the world. Business and industry has become dominant in the U.S. for the past 125 years (that thing called the Industrial Revolution, you know?). The manufacturing and non-manufacturing sectors of industry are actually polluting the environment through STANDARD OPERATING PROCEDURES every single day. Well, you don't just shut this industrialized power down, but you've sure got to manage it - and this is what the government is doing through regulatory compliance laws. Just the Standard Industrial Classifications, 2000-3999, alone are emitting as much as 10 Billion Pounds of TOXIC (not all chemicals - just toxic) CHEMICALS to the environment EVERY SINGLE YEAR! So, no one said you’re committing environmental crimes. But, you’d be breaking the law if you’ve read this far and you don’t think EHS laws somehow apply to your facility.

ANSWER: Since Vanguard runs in these circles, we find a lot of companies making great effort on their compliance and, yes, quite a few that aren't. But to say that nobody is complying is a stretch. We know one thing: there are enough companies out of compliance that every 10 minutes, on the average, a company somewhere in the U.S. receives an enforcement penalty from the EPA, OSHA, or DOT. So, if you've discovered a bunch of companies out of compliance, you can be assured they're going to get nailed, sooner or later. But don’t use this as a rationale for non-compliance on your part, or you’ll become an unenviable recipient of the same Notice of Violation (NOV).

ANSWER: People generally make that statement when they're frustrated about the government. The fact is that's exactly when you'll need your revenue-producing strength the most, because they don't come in and try to shut you down unless you're willfully threatening life - or dumping. They'll only fine you relative to the amount they think you can painfully afford. It's the litigation that gets you down after awhile when it drags out for 1-3 years. So then, more than ever, you’ll need your cash flow-producing company to generate revenue to fund the system in which you got trapped. After all, it’s the law.

13. MYTH: WE'VE NEVER BEEN BOTHERED UP TILL NOW – WE’VE NEVER BEEN INSPECTED OR VISITED - WHY SHOULD WE BE CONCERNED?

ANSWER: Actually, that sounds like a decent perspective, flawed as it may be. All these laws have crept up on industry in just the last 7-8 years. And during that time, we don’t figure you’ve been going home every Friday night to read the Code of Federal Regulations by the fireside. So, if someone, like you, has been staying busy doing what they do best for that long or more, they can easily be oblivious to the laws and the penalties that go with them. Since the late 80's and early 90's, a “fuse” for each law enacted began burning as a matter of when, rather than if, an inspector is going to pay you a visit. Vanguard’s job, of course, is to douse the fuse. If you’re not aware of all the laws, it doesn't mean they disappeared. It means you're in jeopardy, perhaps unknowingly, but vulnerable just the same.

ANSWER: You’re probably right. But, boy, is that dangerous thinking? It's Vanguard's objective to help our clients on those laws that can deliver the "knockout punch." That would be on those laws that would cost several thousand dollars in fines, attorney fees, too, and then would litigate for 1-3 years. I think you can handle the $75 frayed wire kind-of-fine. I just have a feeling you don't want to have to deal with the kind of setback that would ruin your financial progress or ruin everyone's Christmas bonus for the next 5 years. Take care of the majors and don’t sweat the small stuff; but take care not to rationalize too quickly and be totally out of compliance on the majors. Be proactive. Don’t forget the line at the introduction of this piece…you can get in compliance, or you can rationalize, but you can’t do both.

ANSWER: Oh! You're referring to your workers compensation insurance company. Your workers compensation company is an insurance company that deals in risk and monitors your safety issues from time to time so as to know how much to charge you in annual premium costs. But, you've got to know they won't implement your compliance for you, except on an advisory basis. Of course, you should take advantage of any free services as a part of your insurance company’s benefits. But, please don’t form a false sense of security in thinking all your compliance among the 50 EPA, OSHA, DOT laws is covered on top of insuring your work force against workplace injuries and fatalities. The best way to understand just what is being provided by your workers compensation company, above and beyond insurance coverage, is to ask them to write you a letter on everything covered and IMPLEMENTED on anything related to EPA, OSHA, DOT compliance. And then, for that which they say is covered, ask them to show you where they’ve provided your company with site-specific documentation to the specs of each law, all to be maintained on your site. Now, if you’re so naïve to take their word for it (and not get it in writing), you probably will come to a moment in your business life when, like all of us do from time to time, you don’t feel as smart as you thought you were. After all, do you really think that a workers comp company can provide EHS compliance services, even if they had the expertise and manpower to do so, for no extra fees beyond the premiums they’re charging for the INSURANCE they’re providing. Here’s a simple test if you’re not yet quite convinced. Just pick up the phone and ask your agent, “Could you tell me what my storm water coefficient is for my TRI issues?” Now time the silence with the second hand on your watch.

Under the Oil Pollution Prevention and Response regulation (40 CFR 112), the U.S. EPA established requirements for specific facilities to develop Spill Prevention, Control, and Countermeasures (SPCC) plans to help prevent oil discharges from reaching navigable waters or adjoining shorelines. These plans detail equipment, workforce, procedures, and training to prevent, control, and provide adequate countermeasures to a discharge of oil.

On August 16, 2002, the U.S. EPA finalized amendments to the original 1973 SPCC rule. In December 2006, EPA Administrator Steven L. Johnson signed an additional final rule as an amendment to the August 2006 SPCC rule. The final rule was made effective on February 26, 2007. It was designed to streamline the regulatory process and included the following changes:

Self-certification for qualified facilities

Owners/operators of facilities with above-ground oil storage capacity of 10,000 gallons or less and that meet qualifying criteria may self-certify their SPCC plans in lieu of certification by a Professional Engineer (PE). This includes meeting tailored facility security and tank integrity inspection requirements without PE certification.

Secondary containment for qualified oil-filled operational equipment

Facilities with oil-filled operational equipment (e.g., electrical transformers, hydraulic systems, machining coolant systems) that meet qualifying criteria may implement an inspection and monitoring program, develop an oil spill contingency plan, and provide a written commitment of resources to control and remove discharged oil in lieu of secondary containment. Oil-filled operational equipment includes oil storage container(s) in which the oil is present solely to support the function of the apparatus.

Exemptions for motive power containers

A motive power container is any onboard bulk storage container used primarily to power movement of a motor vehicle or ancillary onboard oil-filled operational equipment (e.g., truck fuel tanks). The U.S. EPA has exempted these containers from the SPCC requirements.

Exemptions for mobile refuelers

A mobile refueler is a bulk storage container onboard a vehicle or towed, and is used to store and transport fuel to an aircraft, motor vehicle, vessel, or oil storage container. Owners/operators of mobile refuelers at non transportation-related facilities will no longer need to provide sized secondary containment; general secondary containment requirements still apply.

On May 10, 2007, Mr. Johnson signed an additional rule extending the compliance dates for owners and operators of facilities preparing or amending and implementing SPCC plans. This final rule extends the dates by which a facility must prepare or amend and implement its SPCC Plan until July 1, 2009. It is important to note that EPA expects to propose further revisions to the SPCC rule in 2007. New preparation and implementation guidelines are as follows:

*A facility (other than a farm) starting operation...*	*Must...*
On or before August 16, 2002	Maintain its existing Plan Amend and implement the Plan no later than July 1, 2009
After August 16, 2002 through July 1, 2009	Prepare and implement a Plan no later than July 1, 2009
After July 1, 2009	Prepare and implement a Plan before beginning operations

EPA has stated the extension of the compliance deadline will provide time for the regulated community to:

Make changes to their facilities and to their SPCC Plans necessary to comply with the revised requirements that EPA expects to propose in 2007;
Fully understand the regulatory relief offered by revisions to the 2002 SPCC rule as finalized in December 2006;
Understand the material presented in a document entitled SPCC Guidance for Regional Inspectors, which will be updated to address both the December 2006 revisions and the upcoming revisions expected to be proposed in 2007, before preparing or amending and implementing their SPCC Plans.

Remember when your parents told you how important it was to keep your room clean? Well they were right! Their advice applies to the workplace, too. Slips, trips and falls constitute the majority of general industry accidents. According to the Bureau of Labor Statistics, in 2005 they caused 255,750 injuries, 771 deaths, and are the third leading cause of fatalities. And they are generally easy to prevent.

The easiest way to prevent these types of injuries is to implement a Housekeeping Inspection Program. A weekly, if not daily, inspection will go a long way toward maintaining a clean, well-organized workplace. This doesn’t mean more work for the supervisor; a Housekeeping Inspection Program can be (and should be) accomplished by employees in each work area. The key is a simple form – a checklist – placed on a clipboard and kept in the applicable work area.

What items should your checklist address? That depends on the area. Each list should be tailored to the specific area in which it will be used. Although certain items may be identical on each form, the use of generic or general checklists do not address the core reason for doing the inspection: to monitor hazards common to a specific work area. Click here for a sample checklist.

· Lighting and environmental (What does ‘environmental’ refer to? Heating, ventilation, A/C)

It is recommended that the checklist require a signature of the person performing the inspection and the date, for the following reasons.

1. Theoretically, an employee may actually do the inspection if their signature is required, particularly if you or the Safety Committee occasionally checks for accuracy.

2. Having completed checklists on file could help in court if a disgruntled employee files charges that include negligence. These reports provide documentation that your company takes a proactive safety posture by involving workers in their own safety and gives them an opportunity to identify any concerns they may have.

One note of caution: If an actual discrepancy is identified, you must address it or you could be documenting your company’s disregard for safety! Each discrepancy should be addressed by writing a comment on the inspection form. This is a great job for the Safety Committee.

With very little effort, a Housekeeping Inspection Program can produce a cleaner and safer work area, reduce injuries, encourage employees to identify their safety concerns, and provide you with documentation that could help in court. Now go make your folks proud!

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