PLAIN ENGLISH GUIDE TO EHS LAWS
Page 4

BLOODBORNE PATHOGENS PROGRAM & TRAINING - OSHA 29 CFR 1910.1030

On December 6, 1991, the Occupational Safety and Health Administration (OSHA) published the "Occupational Exposure to Bloodborne Pathogens" Standard under 29 CFR 1910.1030. The purpose of this regulation is to "eliminate or minimize occupational exposure to Hepatitis B Virus (HBV), Human Immunodeficiency Virus (HIV - AIDS Virus), and other Bloodborne Pathogens." The regulation went into effect on March 6, 1992.

It was in 1986 that the American Federation of State, County and Municipal Employees (AFSCME) petitioned OSHA to formally take action to reduce the risk to employees from exposure to various infectious agents. Later that year, the Service Employees International Union, the National Union of Hospital and Healthcare Employees and other groups petitioned OSHA to create a standard to protect employees from the hazard posed by occupational exposure to the Hepatitis B Virus. It was these actions that prompted OSHA to begin work on the Bloodborne Pathogens Standard, becoming OSHA's first regulation of occupational exposure to biological hazards.

The Bloodborne Pathogens Standard applies to facilities or operations where exposure to human blood or other potentially infectious materials is possible. The original thrust of the regulation was aimed at healthcare facilities such as HOSPITALS, CLINICS, NURSING HOMES, MEDICAL LABORATORIES, and BLOODBANK / PLASMA CENTERS. However, the Standard also affects virtually ALL INDUSTRIAL FACILITIES from 1992 forward, since employees are periodically exposed to blood or blood-contaminated materials in a number of situations, including:

• Internal "first responders" on HazMat teams, fire brigades, first aid teams, etc
• Cleaning up first aid and rescue equipment after use
• Company medical offices and first aid stations
• Trash containing contaminated band-aids, bandages and feminine hygiene products
• Cleanup of industrial accidents where employees are injured

The only exemption to this regulation is "Good Samaritan" acts performed by employees. In this sense, it is not necessary to provide the training to employees who wouldn't be expected to encounter human blood or other potentially infectious materials on their jobs... but who might through good will provide first aid to a fellow employee. In this way, OSHA tries to ensure that employers will not discourage people from coming to the aid of fellow employees in a medical emergency.

As with all OSHA regulations, the Bloodborne Pathogens Standard is intended to "protect employees" from potential workplace hazards. OSHA fully intends that, if necessary, a company's facility shall be modified to attain this goal... and that employees shall be informed and educated so that they can contribute to this reduction/elimination of exposure themselves, as well.

COMPLIANCE COMPONENTS, DEADLINES, & ENFORCEMENT PENALTIES
Compliance with the Bloodborne Pathogens regulation has been driven by three major deadlines:

May 5, 1992 - The written EXPOSURE CONTROL PLAN must be in place and then upgraded at least annually;

June 4, 1992 - Employee information and training, inclusive of appropriate
documentation and recordkeeping, must begin and be renewed at least annually;

July 6, 1992 - Allowance for the following items must be made:
- Engineering and work practice controls; - Personal Protective Equipment;
- Housekeeping; - HIV and HBV labs - Hepatitis B vaccinations
- Labeling & signage.

Like most OSHA regulations, the Bloodborne Pathogens Standard is "performance oriented," meaning the accomplishment of certain prescribed outcomes must occur.

The WRITTEN "EXPOSURE CONTROL PLAN" is the cornerstone of compliance with this regulation. The Plan must spell out exactly what steps you are taking to comply with the regulation. Specifically, the Standard says that, "Each employer having employee(s) with occupational exposure (reasonable anticipated skin, eye, mucous membrane or parenteral - skin piercing - contact with blood or other potentially infectious materials) shall establish a written "Exposure Control Plan." The primary objective of the Plan must "ELIMINATE OR MINIMIZE EMPLOYEE EXPOSURE...TO BLOODBORNE PATHOGENS."

More than anything else, OSHA feels that providing employees with adequate information and training (amply documented) is key to a company's compliance with regulations. The Bloodborne Pathogens Standard stipulates that: "Employers must ensure that all employees with occupational exposure participate in a training program which is provided at no cost to the employee, and conducted during working hours." The initial employee training session was to have been completed by June 4, 1992, and then be provided annually thereafter. Training allowances must be made for those employees initially assigned or encountering job changes affecting their potential exposure to bloodborne pathogens. Medical and training records must be maintained.

OSHA now conducts its enforcement procedures in which it can levy as much as $70,000 in civil penalties and financial fines. In addition to the financial penalty, community relations are also affected when such a penalty is incurred. Moreover, employee complaints against deficient company compliance create a seemingly litigation-happy workforce. Recently, over 22,000 chemical hazard inspections were conducted by OSHA in one year.

1. THE EXPOSURE CONTROL PLAN. All vitally important data regarding the facility and employee participants must be gathered so as to develop the written Plan site-specific to the client's facility. The Plan is comprehensive in scope, encompassing:

• Purpose
• Establishing Program Management and Performance Criteria
• Exposure Determination 
• Methods of Accomplishing Compliance
• HIV & HBV bloodborne pathogens 
• Hepatitis B Vaccination and Post-exposure evaluation and follow-up
• Labels & signs - Information & training.

2. EDUCATION AND TRAINING. Training shall consist of the following:

• Bloodborne Pathogens Standard;
• Overview of epidemiology and symptoms of bloodborne diseases;
• Understanding how bloodborne pathogens are transmitted;
• Instruction on the facility's Exposure Control Plan;
• Recognizing how tasks and activities may involve exposure to blood and other infectious materials;
• Review of the methods that will prevent or reduce exposure to bloodborne
  pathogens such as work practices and the use of personal protective equipment;
• Review of proper labels, signs, and container "color coding."
• Contingency plans and emergency response to emergencies involving blood or
  other potentially infectious materials, including procedures for and "exposure incident."

3. RECORDKEEPING, DOCUMENTATION, AND QUIZZES. A part of the overall
compliance mandate is to substantiate through documentation those very objectives accomplished as a part of the program. Appropriate records, documents, and employee participation logs should be filed and readily accessible in the event of an enforcement inspection.

CONTINGENCY PLAN - AS SIGNIFICANT TO 40 CFR 264 (HAZWASTE)

The Occupational Safety & Health Administration (OSHA), in conjunction with the U.S. Environmental Protection Agency (EPA), requires a Contingency Plan to prevent or minimize hazards to human health or the environment in the event of fire, explosion, or any unplanned sudden or non-sudden release of hazardous waste or hazardous waste constituents to air, soil, groundwater, or surface water. The provisions of this plan shall be implemented immediately upon knowledge that one or more of the aforementioned events could threaten human health or the environment.

At all times, there must be at least one employee on the facility premises, or on call for rapid response, with the responsibility for coordinating all internal emergency response measures. This/these employee(s) shall be designated as the EMERGENCY COORDINATOR (EC). The EC must maintain full responsibility for activation and control of the Contingency Plan and should be thoroughly familiar with:

1. Facility's Contingency Plan for effective, efficient, & appropriate emergency response;
2. All operations and activities at the facility;
3. The location and characteristics of any hazardous materials;
4. The location of all records within the facility;
5. The physical layout of the facility.

Additionally, the EC will have the authority to commit the resources needed to implement this Contingency Plan, as the Plan must be a "working document." The nature of the incident may also dictate the EC obtain assistance from outside agencies to provide emergency services to the facility as the EC deems appropriate, especially as it might relate to the EPA's 40 CFR 264, Subpart D, which regulates the management of hazardous wastes and its constituents.

[Note regarding HAZWOPER: The Contingency Plan and its annual update should be done concurrently with OSHA's 1910.120 requirement for HAZARDOUS WASTE OPERATIONS AND EMERGENCY RESPONSE in which the 24 hour Hazmat Technical Training is followed each year with the annual 8 hour refresher. The company's SPCC Plan should also be reviewed concurrently with these two functions on the anniversary date of the HAZWOPER TRAINING, although the reader is reminded that the regulations only require that the SPCC Plan be updated every three years.]

The Contingency Plan must be represented in document format reflective of site visits and Plan development by a technically-qualified professional in the field of emergency response implementation procedures. The Plan must be updated annually and made available for inspection by an OSHA or EPA official, local or state emergency response officials, employee(s) of the company, or even citizens-at-large. Because such a plan must demonstrate a reality-based capability to respond immediately, effectively, and efficiently to even the most catastrophic events, a part of the implementation of the plan must also consist of education with the company's internal emergency response team, pertinent personnel, and the environmental compliance management team. Moreover, the most effective implementation would be a "staged rehearsal of an emergency scenario" to evaluate and measure the performance capability of the company's response to a life-threatening / environment-threatening event.

The Contingency Plan document follows the outline below, as prescribed by OSHA and the EPA.

1. EMERGENCY RESPONSE NUMBERS
2. INCIDENT INFORMATION SUMMARY
3. INTRODUCTION  A. Purpose and Scope B. Planning Factors
4. FACILITY DESCRIPTION
A. Hazard Identification B. Emergency Equipment
5. EMERGENCY RESPONSE OPERATIONS
A. Plan Implementation
1. Observation 2. Notification 3. Activation
4. Duties and Responsibilities
6. DIRECT RESPONSE PROCEDURES
A. Exposure Assessment for Each Potential Hazard
B. Containment and Control Actions
7. EVACUATION PLAN
A. Site Evacuation B. Offsite Evacuation
8. INFORMATION FOR THE COMMUNITY
9. APPENDICES
A. Post Emergency Provisions B. Arrangements with Local Authorities
B. Amendments to Plan D. Chemical Information

PHASE I ENVIRONMENTAL ASSESSMENT FOR REAL ESTATE TRANSACTIONS
The basic purpose of a Phase I Environmental Assessment, as related to real estate transactions, is to determine and document what environmental impairment, degradation, or hazards, if any, are associated with the property or site in question. A report documenting a thorough investigation of the site and its historical use alerts all parties involved (buyer, seller, financial institution) in the transaction for any potential for remediation / cleanup prior to the consummation of the final agreement. Phase I especially informs the buyer and financial institution of any environmental liabilities at the time of the transaction that could substantially reduce the value of the investment in the future. If the Phase I Environmental Assessment documents evidence that environmental hazards do exist, then there may be cause for the site to undergo Phase II (Sampling, Testing & Evaluation) and Phase III (Cleanup & Abatement) projects. An outline description of Phase I, II, & III projects is offered below to avoid confusion about the scope of each project's requirements. The Phase I outline serves as a helpful checklist of events and action steps to take place in the assessment proper. Environmental Assessments find a legal perspective from the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980. Also known as Superfund, this law was created to provide the authority and a source of funding for cleaning up environmentally abused property. Courts have upheld CERCLA's provisions of strict liability for contamination and joint and several liability among potentially responsible parties (PRPs). Congress recognized the plight of "innocent" buyers by incorporating the "innocent landowner" defense into CERCLA. To claim innocence, however, the landowner must first demonstrate that at the time of property transaction there was "no reason to know" that the property was contaminated and that "all good commercial or customary practice" was undertaken to detect the potential for property contamination. In order to qualify for the "innocent landowner" defense, a buyer must establish that, immediately prior to or at the time of acquisition, a Phase I Environmental Assessment was conducted and documented on the real property by an environmental professional.

PHASE I - REVIEW OF SITE HISTORY AND SITE INSPECTION
A. EXAMINE OWNER'S ENVIRONMENTAL DOCUMENTATION, AS REQUIRED BY LAWS OF REGULATORY AGENCIES, INCLUDING:
- Environmental policies and procedures;
- Past violations of environmental policies and procedures;
- Transportation and disposal records;
- EPA and other environmental permits.
- Records of Inspections;
- Licenses and Coverage of Insurance Contracts;

B. DETERMINE PAST LAND USE:
-Obtaining and examining all available current and historical aerial photographs of
the property;
-Examining ownership records and abstracts for extensive review of the historical backdrop in land use as far back as records date (or at least 50 yrs);
-Interviewing past owners, neighbors, and relevant persons acquainted with the past and recent
use of the property.

C. OBTAIN AND EXAMINE PUBLIC RECORDS OF INCIDENTS PERTINENT TO ENVIRONMENTAL SIGNIFICANCE AND/OR INCIDENTS IN THE VICINITY THAT COULD HAVE INFLUENCED THE CONDITION OF THE PROPERTY ADVERSELY.

D. OBTAIN STATE RECORDS OF THE PAST OR RECENT USE OF UNDERGROUND STORAGE TANKS, ALTHOUGH SOME TANKS MAY BE UNREGISTERED.

E. INSPECT THE PROPERTY TO IDENTIFY POSSIBLE ENVIRONMENTAL PROBLEMS AS INDICATED BY:
- Contaminated soils or surface waters;
- Stained or barren soil;
- Visible evidence of underground storage tanks;
- Electrical transformers that may contain PCB's;
- Possible asbestos containing building materials;
- Discarded or abandoned chemical containers.

F. EXAMINE THE SURROUNDING PROPERTY FOR POSSIBLE ENVIRONMENTAL PROBLEMS THAT COULD AFFECT THE PROPERTY.

G. WRITE A PHASE I "EXECUTIVE BRIEF" DOCUMENTING FINDINGS OF THE PROJECT, INCLUSIVE OF ANY PROBLEMS IDENTIFIED AND RECOMMENDATIONS, IF REQUIRED, FOR FURTHER STUDIES TO BE CONDUCTED. TWO COPIES OF THE REPORT WILL BE PRESENTED TO THE VANGUARD CLIENT.

PHASE II - TESTING AND EVALUATION
The Phase I findings will determine items necessary in the Phase II project.
A. Collect samples of soils, surface / subsurface water, container contents and possible asbestos containing materials;
B. Have the samples tested in a laboratory for contaminants or asbestos as appropriate;
C. Drill a test well to collect a sample of the groundwater. Have the sample tested for contamination;
D. Contact the local utility company or manufacturer of any transformer whose contents are unknown to find out if they know whether it contains PCB's. If it cannot be determined in this manner, arrange to have the utility company sample and analyze the contents of the transformer;
E. Write a final Phase II report stating the environmental findings and recommend the corrective actions necessary before the real estate transaction is completed.

PHASE III - IMPLEMENTATION OF CLEANUP AND ABATEMENT OF ENVIRONMENTAL PROBLEMS IDENTIFIED IN PHASE I & II
A. Review and establish a plan to implement the cleanup and abatement process;
B. Obtain proper permits through the City, County, State, and Federal regulatory authorities;
C. Begin Cleanup and abatement process;
D. Inspect for complete abatement and cleanup of materials associated with project;
E. Write Final Report on the Phase III project.

SOURCE REDUCTION / WASTE MINIMIZATION (SR/WM) - [TEXAS, CALIFORNIA AND GEORGIA]

The Waste Reduction Policy Act of 1991 (WRPA) and 30 TAC 335.471-480 has required the Texas Natural Resource Conservation Commission (TNRCC) to develop the SOURCE REDUCTION & WASTE MINIMIZATION ANNUAL PROGRESS REPORT to assess the pollution prevention progress of facilities which are required to develop Source Reduction & Waste Minimization Plans. This allows facilities to track their own pollution prevention progress and provide data to the TNRCC, who in turn, can then assess pollution prevention progress for the entire State of Texas.

The TNRCC's mission to protect natural resources and public health can be greatly enhanced by pollution prevention efforts of individuals and businesses through source reduction and waste minimization planning and plan implementation. The information collected will be used to detail the facility's progress in meeting reduction goals identified in their Plan. This information will also be used to assess the total progress of all Texas facilities toward meeting the state's 50% reduction goal for hazardous waste and TRI chemical releases to the environment by the year 2000, compared to 1987 levels.

WRPA requires that certain designated facilities (see below) prepare a Pollution Prevention Plan, an Executive Summary of the Plan, and an Annual Progress Report. Original deadlines were required for March 1 annually beginning in 1995, but TNRCC changed the deadline to July 1 annually (relative to the previous calendar year) so as to align its due date with the same deadline each year for FORM R REPORTING (TOXIC RELEASE INVENTORY) under SARA Title III / EPCRA, Section 313. Here is the listing of size category and time schedule requiring facilities to comply with the development and filing of this documentation:

TOTAL AMOUNT OF HAZARDOUS WASTE (HW) GENERATED
OR TOTAL AMOUNT OF FORM R - TRI RELEASES & TRANSFERS (TONS PER YR.)

1. If in calendar year of 1994, a facility generated HW equal to or greater than 15 tons, OR TRI Releases + Transfers were equal to or greater than 5 tons, then the SR/WM was due to be filed by July 1, 1995.

2. If in calendar year of 1995, a facility generated HW equal to or greater than 5 tons, OR
TRI Releases + Transfers were equal to or greater than 1 ton, then the SR/WM is due to be filed by July 1, 1996.

3. If in calendar year of 1996, a facility generated HW equal to or greater than 1.102 tons, OR TRI Releases + Transfers were less than 1 ton, then the SR/WM is due to be filed by July 1, 1997.

IMPORTANT NOTE: TNRCC's SR/WM Annual Progress Report should not be confused with the U.S. EPA Waste Minimization Report under the Resource Conservation and Recovery Act. A separate office of TNRCC manages this latter report. The SR/WM is NOT a substitute for other reports required by the TNRCC or U.S. EPA. Likewise, other reports are NOT substitutes for the SR/WM.

TNRCC ENFORCEMENT PENALTY POLICY
Failure to submit the SR/WM Annual Progress Report to the TNRCC by the due date is a violation of the Texas Administrative Code (TAC) and can result in fines of up to $10,000 per day that the report is late. Failure to submit an SR/WM Executive Summary to the TNRCC or failure to have a complete SR/WM Plan in place by the due date is also a violation of the TAC.

The SR/WM must render 3 major components of TNRCC's SR/WM Annual Progress Report:
1. Pollution Prevention Plan; 2. Executive Summary; 3. Annual Progress Report.
Moreover, the owner/operator is required to develop and file these mandated documents with TNRCC by the annual deadline of July 1 (concurrent to Form R Reporting, Toxic Release Inventory). The Pollution Prevention Plan, according to TNRCC, is to be a "working" document.

The project shall include the following elements:

• Site-Investigation;
• Chemical Hazard Analysis;
• Survey of RCRA Hazardous Waste Manifests & pertinent RCRA Documents;
• Review of Form R Reports for at least 3 previous years, if not back to 1987;
• Review of SWR Pollution Prevention Plan under Storm Water Runoff
• Permit/NPDES;
• Survey of Operational Waste Minimization, Recovery, & Recycling Methods;
• Inspection of Paint Booths & their applications (filters & exhausts, too);
• Consideration of Neighborhood, Community-at-Large, & Region Downwind;
• Employee Training as required under RCRA & OSHA;
• Personal Protective Equipment being utilized at the facility;
• All items compared to 1987 as the base line year.

[Coastal Areas Only - This synopsis written for Texas Gulf Coast, but could apply in principle to other coastal areas.] OIL SPILL PREVENTION & RESPONSE PLAN - OIL POLLUTION ACT (1990), Sec. 4202(a)(6); AMENDING 40 CFR, Part 112, CWA, Sec. 311 (EPA - U.S. Coast Guard - TX General Land Office)

On August 18, 1990, President George Bush signed into legislation the Oil Pollution Act of 1990 (OPA 90). This law amends Section 311 of the Clean Water Act (CWA) to augment Federal response authority, increase penalties for unauthorized oil spills, expand the organizational structure of the Federal response frame work, and provide a greater emphasis on preparedness and response activities. The CWA requires the preparation of plans to respond to a worst case discharge of oil and other chemical products to U.S. waterways, setting forth specific requirements for the development of such plans. Section 311 of CWA originally required owners/operators of facilities and/or vessels that store oil and chemical products to prepare and submit their response plans by February 18, 1993. The most recent deadline for submission of the Oil Spill Response Plan was established as February 21, 1996. Administered in conjunction with the U.S. Coast Guard, the U.S. EPA, and the Texas General Land Office (Title 31, TAC 19), the primary objective of the Plan is that of "responding to the maximum extent practicable, to a worst case discharge of oil [and other chemical products] and to a substantial threat of such a discharge."

As this regulation was delegated to the U.S. Coast Guard (USCG) for transportation-related facilities, and the U.S. Environmental Protection Agency (EPA) for nontransportation-related facilities, many sites are subject to multiple federal jurisdictions. These facilities are referred to as complex facilities by regulation. Facilities affected by these regulations are required to prepare and submit their plans or stop handling, storing, or transporting oil and other chemical products. The State of Texas also administers these regulatory issues under its Oil Spill Prevention & Response act via the Texas General Land Office. On March 29, 1995, the State of Texas gained Federal approval to amend regulations regarding implementation of these requirements. Since all facilities covered by OPA 90 are now required to have a federally approved Facility Response Plan (FRP), the TGLO allows the OPA Plan to meet standards for the OSPRA Plan. TGLO's audits concentrate on the performance aspects of preparedness and response, so the facility must know the contents of its plan and be able to implement it.

The OSPR Plan requirements apply to an owner/operator of any onshore facility that because of its location could reasonable be expected to cause substantial harm to the environment by a discharge of oil into navigable waters, adjoining shorelines, or the exclusive economic zone. Such facilities are referred to as "Substantial Harm" Facilities.

AUDITS, DRILLS, AND INSPECTIONS BY THE TEXAS GENERAL LAND OFFICE (TGLO)
An audit is a full review of a facility's or vessel's compliance with the requirements of OSPRA of 1991 and regulations adopted pursuant thereto. An audit may be announced or unannounced, commencing between the hours of 7 am and 6 pm. The owner/operator of the facility subject to the audit must produce records related to unauthorized discharges of oil into coastal waters, discharge contingency plans, equipment inventory maintenance and repair, material safety data sheets (MSDSs) for oil products handled, oil products storage and throughput, financial responsibility, personnel certification and training, and daily records and other documents and records containing information relevant to compliance with OSPRA. The representative of the TGLO conducting the audit is authorized to view all equipment at the facility that is available for responding to unauthorized discharges of oil. The representative is authorized to enter any portion of the facility where oil is handled and where discharge prevention and response equipment and supplies are stored and maintained.

A drill is a test of equipment and personnel in operation. A drill is in response to a mock discharge which is conducted by TGLO representatives who determine the extent and parameters of the exercise. A drill may be announced or unannounced. Prior to entering property in order to conduct the drill, TGLO will make a reasonable effort to obtain consent of the owner/operator or representative of either to enter the property. A drill involving a facility will be conducted in cooperation with any other governmental agencies who TGLO intends to involve in the mock operation. A facility will not be subjected to more than 2 audits or drills in one 12-month period, excepting facilities who have violated OSPRA of 1991. The owner/operator must bear its own costs of the audit, drill, or inspection and may not be reimbursed costs for the drill.

OSPRA PLAN COMPONENTS
The owner/operator would be required to follow at least the following elements that comprise a facility's requirements under the "Oil Spill Prevention & Response Plan." A qualified engineer must conduct a site-investigation at the facility in an exhaustive search and collection of data pertinent to fulfilling these comprehensive requirements on a multi-jurisdictional level. The engineer will then formulate appropriate documentation for submittal to the pertinent regulatory agency to satisfy that aspect of the requirement. Two copies of the documentation must be developed, of which one must be filed with the TGLO as required. The engineer performing the tasks of the requirement, should remain available as technical representatives in the event an enforcement inspection would require such assistance.

Program elements shall include the following:

1. Facility Certification. The owner of a regulated facility must apply to the TGLO for a discharge prevention and response certificate. No facility may commence or continue operations after January 1, 1993, without a discharge prevention and response certificate issued by TGLO. An application fee shall be required of the client by TGLO.
2. Application for either Major Facilities, Small Commercial Facilities & Underground Storage Facilities;
3. Description of Facility. Owner/Operator Status, Products Handled, Location, Contact Person, MSDSs, Storage and Transfer Capacity, Throughput Capacity, and Average Daily Throughput, etc.
4. Facility Prevention Measures, Facility's Response Plan (Planned Discharge Prevention, Chain of Command, Lines of Communication, and Procedures for TGLO notification in the event of an Unauthorized Discharge, Response Equipment & Supplies, Plans for Sampling, Testing, & Measuring, Plans for the Recovery;
5. Plans for the Recovery, Storage, Separation, Transportation, and Disposal of Waste from an Unauthorized Discharge;
6. Probable Direction and Rate of Flow for Unauthorized Discharges;
7. Plans and Maps showing Strategy Protecting Environmentally Sensitive Area - Site Map, Topographical, Aerial, Neighborhood, Community, Shoreline, Affected Geographical Areas;
8. Plans for Providing Emergency Medical Treatment, Site Safety & Security & a Site-Specific Plan for 29 CFR 1910.120 (HAZWOPER which may become an additional project if not yet developed and readily available);
9. Schedules, Methods & Procedures for Maintaining & Evaluating Response Readiness;
10. Description of Relationships with Discharge Cleanup Organization(s);
11. Estimate of Worst Case Discharge, Including Rationale used to Establish Estimate;
12. A Description of all Hazardous Substance Discharges at the Facility in the Previous Year;
13. A List of Environmental Permits and Registration / Identification Numbers (wastewater discharge, injection wells, and underground / above ground storage tanks, and any other permits or licenses related to discharges into ground or surface waters of the State of Texas;
14. A Statement describing participation in the National Preparedness for Response Exercise Program (PREP);
15. Issuance, Modification & Suspension of Facility Certificates;
16. Persons in Charge Data;
17. Audits, Drills, and Inspections to Determine Prevention & Response Capability;
18. Certification of Discharge Cleanup Organizations;
19. Spill Response Procedures;
20. Reporting An Unauthorized Discharge Procedures;
21. Jurisdictional Response Determinations;
22. Duties of Responsible Person(s);
23. Assistance from 3rd Party Cleanup Organizations & Emergency Response Firms;
24. Disposal of Waste from Unauthorized Discharges Procedures;
25. Completion of Response Procedures;
26. Waiver of Provisions;
27. Compensation and Liability;
28. Designation of Responsible Person & Advertising Claims;
29. Claims Procedures;
30. Natural Resource Damages;
31. Response Costs;
32. Natural Resources & Conservation;
33. Social Services & Assistance;
34. Vessel Information, as applicable, and/or vessels influenced;
35. Coastal Facility Designation Line.

HAZARDOUS MATERIALS BUSINESS PLAN (HMBP) - HAZMAT INVENTORY REPORTING (HMIR) - (CALIF. AB 2185 & U.S. EPA EPCRA, SEC. 301-312)

American Business & Industry has been impacted with the critical challenge of satisfying an extensive scope of regulatory compliance requirements. The problem is compounded by ever-evolving laws from three independent departments of the Federal Government, as well as those regulatory offshoots at state, county, and local jurisdictions. Federally, there are some 40 regulatory laws, compounded in California by 20 other related laws, and then administered at the local agency level in most cases.

It's only sensible that industry must approach regulatory compliance with an emphasis on due diligence for all compliance laws which, in turn, must lead to a site-specific "Regulatory Compliance Agenda."  A company must know which laws require compliance and which do not. It must know its "Regulatory Compliance Agenda" for each and every compliance year, as well as the dynamic changes due to amended and newly-enacted laws. The stakes are too high to do otherwise when considering the repercussions of enforcement penalties for non-compliance on laws in which personnel are not even aware of their existence, much less their compliance mandates.

INTRODUCTION & REQUIREMENTS OF CALIFORNIA'S HMBP
Community Right-to-Know programs associated with the handling of hazardous materials by local agencies in California established Chapter 6.95 of the Health and Safety Code, which governs hazardous materials handling, reporting requirements and local agency surveillance programs.  These programs were developed in response to the 1984 Bhopal disaster, CA's 1985 community right-to-know law, AB 2185, the Hazardous Materials Response Plans and Inventory Law, and other local, state, and federal influences.  In 1999, there were some 20 California state laws, in addition to the 40 federal EPA, OSHA, & DOT laws, relative to industry and hazardous materials.  The widely-used term, "handling," is an all-encompassing word in California in which it means usage, storage, processing, producing, manufacturing, distributing, and importing..

In 1986, the U.S. Congress enacted SARA Title III, also called the Emergency Planning and Community Right-To-Know Act (EPCRA). Many of the EPCRA requirements from the U.S. EPA were incorporated into the California program to consolidate reporting requirements for industry, except for Sec. 313 of this law which is completely administered by federal EPA.

The state Office of Emergency Services (OES) is responsible for directing the statewide hazardous material community right-to-know programs which are directly administered by local and county agencies. A major change from federally-administered hazardous materials laws is California's CUPA program, or Certified Unified Program Agency. Local administering agencies for community right-to-know business plans came into effect pursuant to 1993 legislation in the form of Senate Bill (SB) 1082 in which effected a major transfer of program administration and enforcement from state agencies to local government. The CUPA process was intended to streamline the number of regulatory contacts a facility must maintain, but also to standardize and simplify forms, reports, and environmental reporting tasks. Beginning in 1996, each local CUPA was to be certified by CAL/EPA before its authority became official. Going into 1998, 69 CUPA's were approved from 97 agency applications.

Definitions of Hazardous Material, Hazardous Substance, & Hazardous Waste
"Hazardous Material means any material that, because of its quantity, concentration, or physical or chemical characteristics, poses a significant present or potential hazard to human health and safety, or to the environment. Hazardous materials include, but are not limited to, hazardous substances, hazardous waste, and any material which may be injurious to the health and safety of persons or harmful to the environment if released." [Health & Safety Code 255001 (k)]

Hazardous Substance means any substance or chemical product relative to the criteria below:

• It is listed on the "Director's List" from the Dept. of Industrial Relations pursuant to the Hazardous Substances Information & Training Act (1994);
• It is listed pursuant to Part 172 of 49 CFR under the U.S. Dept. of Transportation Hazardous Materials List
• It is listed as radioactive under Title 10 CFR as set forth by the Nuclear Regulatory Commission
• The manufacturer or producer is required to prepare an MSDS for the substance
  pursuant to Federal OSHA's Hazard Communication Standard under 29 CFR 1910.1200 [CA: 8 CCR 5194].

The California Chamber of Commerce states the following: Based on the extremely broad definition of hazardous substance in the OSHA Hazard Communication Standard, it initially should be presumed that any substance handled by a facility for which an MSDS has been prepared by the supplier is a hazardous material if it is in form or used in a manner capable of being release to pose a health or safety risk to humans or the environment. Hazardous Substances on the above lists or for which an MSDS is required should be regarded as hazardous materials for purposes of community right-to-know compliance.

Hazardous Waste is listed by EPA as a hazwaste or it has one or more of the following characteristics: ignitability, corrosive, reactivity, or toxicity.  If hazardous waste is generated on-site, the facility should presume the waste to be covered by the community right-to-know law.

Hazardous Materials Compliance Requirements for Covered Facilities
The basic requirements for Hazardous Materials laws in California apply to any facility that handles any hazardous material (liquid, solid, gaseous chemicals; chemical-containing products, hazardous wastes, etc.) in a quantity exceeding reporting thresholds. The most common thresholds that trigger reporting based on the state statute are 500 pounds of solid, 55 gallons of liquid, and 200 cubic feet of compressed gas. However, there are many local agencies that have exercised their legal option to impose stricter threshold standards.  Any facility exceeding state and local thresholds is regulated and must comply with all applicable regulatory requirements. Once a threshold is exceeded, the main requirement of the community right-to-know law is the preparation and submittal of a Hazardous Materials Business Plan (HMBP) to the appropriate CUPA.

The standard chemical emergency planning document is the HMBP that originated with AB 2185. The HMBP includes an inventory of hazardous materials. In comparison to Federal EPCRA, the California program is more stringent because of the additional business plan requirements and the inventory thresholds, the essence of which establishes thresholds in California 20 times more stringent. Unlike the application of Federal EPCRA in most other states, once a facility is in compliance with its local administering agency's requirements for HMBP and inventory of hazardous materials, it is not required to complete Federal forms (such as Tier I & II), nor submit such information to any other agency. The inventory must be updated to current regulatory laws and resubmitted by March 1 of each year, although some administering agencies have changed the annual reporting deadline for facilities under their authority.

The basic elements of hazardous materials business plans and community right-to-know regulations for covered facilities include:

• Applicability Determination from hazardous materials handling;
• Immediate reporting of releases or spills of hazardous materials;
• Annual Submittal and updating of a Hazardous Materials Business Plan and
  inventory as required by the CUPA having jurisdiction over the facility;
• Notification of the CUPA of handling of specified quantities of extremely hazardous substances (EHSs);
• Registration of handling of a "regulated substance" in amounts greater than the threshold quantity (TQ) and preparation of a Risk Management Plan as required;
• Annual submittal by facilities specified as per SIC Codes under Toxic Release
  Inventory (Form R) when annual threshold usage amounts of specified
  toxic chemicals are manufactured, processed, or otherwise used; [may
  or may not be required - done under project specific to TRI];
• Obeyance of requirements of hazardous materials storage imposed by CUPA's, fire departments, and CAL/OSHA;
• Specific details on the business, including ownership and operator status,
  location, SIC Code, principle activity, emergency phone numbers, etc.
• Inventory of hazardous materials with specific quantity data, storage, containment descriptions, chemical constituents, and physical/health
  hazard information;
• Adherence to Uniform Fire Code Hazardous Materials Classification;
• Facility layouts coded to chemical storage areas and other pertinent data to scale as required by the OES;
• Emergency response procedures for release or a threatened release of
  hazardous material(s);
• Immediate Notification Procedure to CUPA for releases and/or spills;
• Evacuation plans and procedures for the facility;
• A description of training for all employees in evacuation and safety procedures for releases or spills consistent with their responsibilities,
  and proof of implementation of such training on an annual basis. This
  shall include OSHA Hazard Communication Training, General Emergency Response & Evacuation Training, 8 hrs. of First Responder
  Training, and 24 hours of Hazardous Materials Technician Training;
• Identification of local emergency medical assistance appropriate for potential
  hazardous material incidents.
  Facilities covered by the HMBP requirement should be aware that their initial business plan under current OES regulations was due to be submitted to the administering agency on or before March 1, 1997 and annually thereafter.

Please note the following exemptions: (Detailed descriptions of these items are available upon request)

• consumer product as pre-packaged for direct distribution to, and use by, the general public (In some circles this is called the Wal-Mart exemption);
• agricultural farm activities as long as the handler annually provides a hazardous material inventory to the county agricultural commissioner;
• Lubricating oils and similar products in convenience stores and small auto parts stores and service outlets as long as each product doesn't exceed 55 gallons and the total volume doesn't exceed 275 gallons at any one time;
• Hazardous materials in transit (railroad cars and marine vessels not exempted) or in which temporary storage is less than 30 days;
• Medical office for anesthetic gases when stored at less than 1,000 cu. ft;
• Partial pipeline operations since regulated under CA Pipeline Act of 1981 and
  U.S. DOT, and may file a contingency plan instead of an HMBP;
• Unstaffed remote facilities in sparsely populated areas;
  

Federal & State Risk Management Program (RMP) Requirements

In response to Federal EPA's new RMP under 40 CFR Part 68 and SB 1889, OES has adopted regulations and a list of covered chemicals and will require local agencies to implement Risk Management Plans for facilities subject to the law within each community. This program is called the Accidental Release Program (CalARP) in California. The initial deadline for submittal of Risk Mgt. Plans was June 21, 1999.

The federal program applies to a list of regulated substances for accidental release prevention, also included in the California List of Lists. This list includes a specific list of flammable materials also subject to the federal program. Each substance on the federal list is covered only if the established threshold is exceeded. For flammables, this threshold quantity is 10,000 lbs, whereas the threshold may differ in California. There are many more chemicals listed (and at lower thresholds) for RMP in California, as well. The state list is accompanied by a volume of explanatory rationale as to why these chemicals and their lower thresholds were chosen in lieu of the Federal RMP list.

INTER-RELATIONSHIP OF U.S. EPA's SARA TITLE III (1986) TO CALIFORNIA'S HMBP

On October 17, 1986, President Ronald Reagan signed into law SARA TITLE III, administered by the EPA.  Also called the Emergency Planning & Community Right-to-Know Act (EPCRA), this law has required facilities with a chemically-oriented product inventory to report annually (since 1987) its site-specific chemicals and vital emergency response data to various federal, state, county, and local EPA-related agencies.  Reports, Emergency Notification, and HazCom Documentation are mandated under Sections 302, 304, 311, 312, 313.    [Note: This EPA "COMMUNITY RIGHT-TO-KNOW" Law (1986) must not be confused with OSHA's "EMPLOYEE RIGHT-TO-KNOW" Law under OSHA's Hazard Communication Standard (1987).  Unlike OSHA, the EPA, is an independent agency of the Federal Government, totally separate from OSHA, administered under the Department of Labor.  While the EPA & OSHA appear to be related in subject matter, the agencies goals and objectives differ widely.  It is essential to understand that both EPA & OSHA do not inspect for non-compliance with laws of the other agency. However, as authorized in January 1991, they are authorized as informants for their counterparts in other agencies.

The purpose of EPA Environmental Compliance Reporting is two-fold:
1. To provide qualitative and quantitative data to emergency response authorities established by the EPA at all levels so as to respond effectively to a chemically-oriented emergency, and thus, eliminate/reduce the loss of life, property, and the release of hazardous substances to the environment - air, land, water and the community-at-large.

2. To assert the community's Right-To-Know of the presence of hazardous substances maintained at any facility in the U.S, and therefore, monitor the release of toxic chemicals to the environment, subsequently preventing the pollution of the environment through source reduction, waste minimization, and pollution prevention techniques.

HMBP: ENFORCEMENT PENALTY POLICY (RISK MANAGEMENT)
Enforcement penalties vary from local to state to federal authority. Failure to report a release or threatened release can meet with a state penalty of up to $25,000 per day and one year of imprisonment. Failure to submit a business plan can meet with penalties at the state and local levels as follows: State: $2,000 penalty per day + $5,000 per day after reasonable notice; Local: $2,000 penalty per day in form of administrative penalty.

EPA civil and administrative penalties, ranging from $10,000-$75,000 per day per violation, can be assessed to facilities failing to comply with Sections 302, 304, 311, 312, 313, as well as trade secret reporting violations. Criminal penalties of up to $50,000 or five years in prison may also be given to any person who knowingly and willfully fails to provide emergency release notification under CERCLA 304. Form R violations can be assessed up to $25,000 per chemical per year, retroactive for at least five years prior to the current reporting year.

U.S. DOT "HAZMAT EMPLOYEE" TRAINING [HM-126F] - (49 CFR 177.800; Final Ruling: 57 CFR 20944)

As of October 1, 1993, the U.S. Department of Transportation (DOT) required that detailed training be given to all "Hazmat Employees" associated with transporting hazardous materials - by air, roadway, rail, or water - in the workplace. (The original deadline was April 1, 1993.)
DOT defines a "Hazmat Employee" as..."a person, who in the course of employment, DIRECTLY AFFECTS HAZARDOUS MATERIALS TRANSPORTATION SAFETY." The definition mandates Hazmat Training of the following employees to include anyone who:

• is involved with packaging;
• marks or labels packages,
• prepares shipping papers; 
• manages or supervises shipping;
• loads a vehicle;
• operates a vehicle;
• manages records;
• any other employees involved in transporting hazardous materials.

DOT defines a "Hazmat Employer" as..."any person who uses one or more employees in connection with any of the above functions." DOT requires that "it is the responsibility of the Hazmat Employer to assure that every hazmat employee receives certification training, as mandated."

BIENNIAL TRAINING REQUIRED
1. DOT's Hazardous Materials Analysis must be conducted so as to determine the inherent hazards of each product which, in turn, will make the HazMat Training "site-specific" as required to satisfy compliance by DOT.

2. All Hazmat Employees must receive GENERAL TRAINING, on:
- Requirements of DOT regulations;
- Recognition and identification of hazardous materials consistent with DOT hazardous materials communication rules.

3. All Hazmat Employees who handle or transport hazmat packages and anyone else who:
a. might be exposed to the materials as a result of an accident must receive SAFETY TRAINING on:
- DOT emergency response communications - 49 CFR 172 (g);
- How to protect themselves and others from the hazards of hazardous materials to which they may be exposed;
- Methods and procedures for avoiding accidents involving hazardous materials.

4. Each type of Hazmat Employee must receive SPECIFIC TRAINING, such as:
- Classification and naming of Hazardous Materials;
- Packaging (Including new "Performance Packaging");
- Marking and Labeling;
- Shipping Papers and Emergency Response Information Provision;
- Placards;
- Loading and unloading of transport vehicles;
- and other hazmat transportation information applicable to their job.

5. Site-specific written plan, documentation (inclusive of employee record-
keeping), and participant manuals are prepared by trained and qualified instructors and support personnel. These materials are provided for the client, in the event of a DOT inspection under this ruling, as reflective of the training taken place.

6. The instruction is to last a minimum of two hours in length, preferably at the facility of the client, for the purpose of site-specificity. Two supervisors should be instructed on basic information for fulfilling DOT's requirements for "new-hire orientation" throughout the year until the biennial training is due again.