Navigating compliance with complex environmental regulations is an ongoing and challenging process that facility operators must plan for and manage daily. Nonetheless, violations do occur, and are growing more expensive. In 2018, the U.S. Environmental Protection Agency again raised the cost for violations for several of its programs, after also raising penalties in 2017. For example, Resource Conservation and Recovery Act (RCRA) hazardous waste violations were increased to $72,718 per day, per violation. Keeping apprised of current trends in environmental compliance is one approach to help prioritize the management of your own environmental liabilities and avoid violations and fines.
As California has historically been at the forefront of environmental regulation, one can look to the state for insight on trends in environmental compliance. The California Certified Unified Program Agencies (CUPAs) are a collection of 84 certified local government agencies with the authority to apply regulatory standards for hazardous materials, hazardous waste, aboveground storage tanks (ASTs), underground storage tanks (USTs), and community right-to-know regulations in the state of California. The CUPAs held their annual training conference this past February in Burlingame, California where regulators, industry personnel, and consultants gathered to enhance the Unified Program implementation and improve consistency and coordination between the agencies. Employees from Potomac-Hudson Engineering, Inc. (PHE) attended the conference and prepared this overview to better assist our clients and fellow consultants prioritize environmental liabilities.
The most common violations issued by regulators in 2017 were addressed at the conference, including approximately 49 percent related to the UST Program and 42 percent related to the hazardous waste program. The aboveground storage tank program, which implements the Federal Spill, Prevention, Control, and Countermeasures (SPCC) Rule, comprised another 6 percent of violations. The remaining three programs (hazardous materials, emergency planning, tiered permitting for hazardous waste treatment) comprised 1 percent of violations each.
Although these violations pertain to environmental regulations in California, trends there can be applied to similar programs around the country. This article will focus on the top compliance violations within the UST, hazardous waste, and aboveground storage tank programs, as they comprise the vast majority of violations. Although the data provided are California-specific, we have indicated below which regulations are also applicable at the federal level and have provided regulatory citations where applicable. It is noteworthy that the CUPA compliance data mirror PHE’s own experience with respect to the compliance audits we conducted nationwide in 2017; the clear majority of our findings were also related to storage tanks/SPCC and hazardous waste management.
Underground Storage Tanks. Nationwide, state and local governments are the implementing regulatory authority for federal UST regulations. The most common violations for USTs in California in 2017 include the following:
- Failure to submit complete and accurate application for a permit to operate (3,167 violations). In California, UST owners are required to complete and obtain a permit to operate. Federal regulations require that all USTs be registered with the applicable regulatory authority within 30 days of bringing a UST into use or assuming ownership of a UST [40 CFR 280.22].
- Failure to submit and maintain complete and current Certification of Financial Responsibility or other mechanism of financial assurance (2,502 violations). In both California and nationwide, UST owners need to demonstrate to regulators that they have sufficient funds to address leaks or spills. This can be done through obtaining insurance coverage from an insurer or a risk retention group; demonstrating self-insurance using a financial test; obtaining corporate guarantees, surety bonds, or letters of credit; placing the required amount into a trust fund administered by a third party; or other state-specific, U.S. Environmental Protection Agency (EPA)-approved methods [40 CFR 280, Subpart H].
- Failure to have a properly qualified service technician test leak detection equipment as required every 12 months (2,010 violations). California regulations require monitoring equipment be tested every 12 months for operability, proper operating condition, and proper calibration by persons who meet specific requirements. Beginning on October 13, 2018, Federal regulations will also require annual testing of mechanical and electronic release detection equipment (e.g., automatic tank gauges, probes, and sensors) per the 2015 updates to UST regulations. Many other states have similar requirements.
- Failure to keep water out of the secondary containment of UST systems (1,957 violations). California regulations require that UST systems must prevent the intrusion of precipitation, infiltration, or surface runoff and that secondary containment systems be kept free of water at all times. Federal regulations require tanks installed after April 11, 2016, to have secondary containment systems that must be able to contain regulated substances leaked from the primary containment [40 CFR 280.20].
Hazardous Waste. Numerous states have adopted their own hazardous waste regulations. Be sure to check with your state hazardous waste regulations when determining compliance requirements. The most common violations for hazardous waste in California in 2017 include the following:
- Failure to properly label hazardous waste containers (5,436 violations). California and federal regulations specify various labeling requirements. Labeling requirements vary by state but generally include an indication of the hazard of the contents (e.g., a specific description of the waste stored, the physical state of the waste), and depending on your state and the accumulation point the waste is collected at (e.g., satellite accumulation areas vs. 90-day or 180-day storage area), the accumulation start date [40 CFR 262.15(a)(5); 40 CFR 262.16(b)(6); 40 CFR 262.17(a)(5)]. Be sure to check your state regulations for specifics on labeling. It is important to note that EPA recently passed new regulations which include additional labeling requirements for hazardous waste. These new rules are already being enforced in many states and will eventually be enforced in all states.
- Failure to obtain an Identification number prior to treating, storing, disposing of, transporting or offering for transportation any hazardous waste (3,055 violations). Facilities who generate applicable thresholds of hazardous waste are required to obtain and maintain an active EPA ID Number [40 CFR 262.18]. This is true both in California and nationwide. ID numbers can be obtained through the EPA, or in most cases, through an EPA-delegated state agency.
- Failure to meet the container management requirements (1,917 violations). Containers must meet various management requirements, including being kept in good condition, being compatible with waste being held, and being kept closed except when adding or removing waste. These requirements are nearly identical under both California (66262.15 through 17) and federal regulations [40 CFR 262.15(a); 40 CFR 262.16(b); 40 CFR 262.17(a)]. Specific management requirements apply for different management areas (e.g., satellite accumulation areas must be at or near the point of generation and under control of an operator [40 CFR 262.15]; 90- or 180-day storage areas (“central accumulation areas”) must have adequate aisle space to allow access to containers [40 CFR 262.16]. Various inspection requirements also apply depending on your generator status.
- Failure to send hazardous waste offsite for treatment, storage, or disposal within the designated timeframes (1,432 violations). In both California and federally, small quantity generators must ship waste offsite from their central accumulation area within 180 days (or within 270 days if waste is being transported greater than 200 miles). Large quantity generators must ship waste offsite from their central accumulation area with 90 days.
SPCC Rule. California facilities meeting oil storage requirements are subject to the Aboveground Petroleum Storage Act (APSA), which implements the Federal SPCC Rule in the State of California. The most common violations in California relating to SPCC rules include:
- Failure to prepare a Spill Prevention, Control, and Countermeasures (SPCC) Plan (973 violations). Facilities with the total aggregate capacity of aboveground storage greater than 1,320 U.S. gallons of oil or that have total aggregate capacity of completely buried storage greater than 42,000 gallons of oil, and have the potential to discharge to navigable waterways of the U.S. as defined, must prepare an SPCC Plan. In California, the potential for discharge to any water body warrants preparation of an SPCC Plan [40 CFR 112.1].
- Failure to comply with record keeping requirements (573 violations). Facilities must keep records of SPCC inspections, which should occur monthly or as dictated by the SPCC Plan, and tank testing records, as applicable [40 CFR 112.7(e)].
- Failure to provide the following training to all oil-handling personnel (339 violations). Owners or operators of a facility subject to the SPCC regulations must train oil-handling personnel in the operation and maintenance of equipment, discharge procedure protocols, applicable pollution control laws, rules and regulations, general facility operations, and the contents of the facility SPCC Plan at least once per year [40 CFR 112.7(f)].
- Failure to complete a review and evaluation of the SPCC Plan at least once every 5 years (323 violations). Plans must be reviewed every 5 years and be updated to include any changes in oil storage or spill prevention procedures or equipment at the facility [40 CFR 112.5(b)]. Additionally, SPCC Plans must be updated within 6 months of certain events, including the addition of new tanks, changes in secondary containment, or changes in certain oil-handling processes or procedures.
Navigating environmental compliance can be complex, but proactive steps towards managing compliance requirements can help not only avoid notices of violation, they can also prevent your facility from being vulnerable to serious environmental liabilities that can have greater costs than regulatory fines. Please feel free to contact John Ribar, P.E. (JohnR@phe.com) or Brian Whipple, P.E. (BrianW@phe.com) if you have questions about environmental compliance at your facility.