If your EHS department is like most I have seen, you are not overstaffed and looking for something to do. Therefore, you likely need to prioritize your efforts to protect your employees, prevent harm to the environment and avoid fines and citations.
I would like to say that if you do not have employee injuries and environmental complaints you will not have potential fines and violations, but unfortunately that is not true. Companies have been cited for paperwork violations and for violations that did not result in employee injuries or environmental harm. However, the risk is likely to be lower due to several factors. First, Occupational Safety and Health Administration (OSHA) prioritizes inspections in the following order:
- Imminent danger situations
- Fatalities and catastrophes
- Complaints
- Follow-ups
- Planned or programmed investigations[1]
The Environmental Protection Agency (EPA) inspection priorities vary, but Environmental Protection Agency (EPA) violations have a gravity factor based on impact to the environment:
“Actual or possible harm: This factor focuses on whether (and to what extent) the activity of the defendant actually resulted or was likely to result in an unpermitted discharge or exposure.”[2]
The Occupational Safety and Health Administration (OSHA) has National Emphasis Programs (NEP) and Local Emphasis Programs (LEP) they use to focus their resources where they determine workers are at risk[3]. In a similar manner, the Environmental Protection Agency (EPA) sets national compliance initiatives that prioritize inspection and enforcement efforts on what they consider the most serious environmental issues[4]. I would review these and consider focusing my efforts on these programs if they applied to my company or facilities.
Beyond that, I have laid out options below that you can consider for prioritizing your efforts.
15.1 Fatal Activities
Some of the falsehoods that perpetuated in the health and safety world was: Preventing minor injuries prevented major injuries, there was a fixed ratio of major injuries to minor injuries and accidents that did not result in injuries[5]. Unfortunately, this may have led to focusing efforts on all potential injuries and not just those that could result in major injuries and the Department of Labor (DOL) statistics have shown a slower decline in life-threatening and fatal injuries than other injuries[6].
When I took over a safety program, the safety managers and I developed a list we called the fatal five: Five safety categories (i.e., Occupational Safety and Health Administration (OSHA) programs) that, if not implemented correctly, could result in a fatality. These five programs were confined spaces, electricity, fall protection, hot work and lockout tagout. These safety categories were specific to our industry and may not be the same for other industries. Although we were worried about any injury, we prioritized safety measures that could result in severe injury and death for obvious reasons.
A similar effort was going on in other industries, but they typically refer to it as Serious Injury and Fatality (SIF)[7]. The meaning of fatality is obvious, but the meaning of serious injury may be different amongst industries and organizations. Some examples of serious injuries, whose definition likely varies from company-to-company, include those that result in:
- A permanent impairment or life-altering state
- An injury that if not immediately addressed will lead to death or permanent or long-term impairment[8]
In addition to Serious Injury and Fatality (SIF), the effort also includes focusing on Precursors to Serious Injury and Fatality (PSIF). Precursors to Serious Injury and Fatality (PSIF) can be considered near misses, but only those that could have resulted in a Serious Injury and Fatality (SIF). Precursors to Serious Injury and Fatalities (PSIF) examples include near misses involving:
- Suspended load
- Fall from elevation
- Mobile equipment and workers on foot
- Motor vehicle incident (occupant)
- Heavy rotating equipment
- High temperature
- Steam
- Fire with sustained fuel source
- Explosion
- Excavation or trench
- Electrical contact with source
- Arc flash
- High dose of toxic chemical or radiation[9]
15.2 Environmental Impacts and Regulatory Issues
15.2.1 Unpermitted Discharges
On the environmental side, I would first focus on operations that might be directly impacting the environment: unpermitted discharges to the air, surface water, groundwater, and disposal on the land. The priority of this focus may be adjusted depending upon geographic issues such as a
- Groundwater protection zones
- Nearby waterway and/or conducting operations over or on the water
- Non-attainment area (i.e., air quality issues around your facility)
- Threatened or endangered species habitat nearby or on-site
Discharges to the air may be the most difficult to identify since they may be invisible to the naked eye (e.g., volatile organic compound leaks from pipes and fittings). Some discharges to the air occur from stacks and vents and you should be able to identify these emission points and track them back to an emission unit to determine if they are permitted or exempt. Other discharges, such as fugitive volatile organic compound emissions, may not be as easy to detect without special instruments (e.g., forward-looking infrared (FLIR) cameras).
Water discharges, except for cross connections, may be easier to identify. One method of identifying water discharges is “dry weather discharge observations” which are required in some states as part of an industrial storm water permit. This is simply a site walkthrough when the weather conditions are not creating stormwater runoff (e.g., 72 hours after the last precipitation event assuming you do not have on-going snow melt). If water is flowing during these dry weather conditions, it may be from process operations and may be an illicit discharge if it is not permitted or exempted.
Discharges into drainage systems may be more difficult to identify since they are not visible. You can open drain covers and investigate pipe systems to observe for water flow. However, if you also have process water or sanitary waste flow in these systems, you may not be able to identify where the water entered the system.
For some water discharges, you may know the source, but you do not know the disposition: the water flows into belowground pipes and you do not know if they go to a sewer system, storm drain system, drain field, septic tank, cesspool, or the adjacent ground. Although, it may seem unlikely, during a sale of a facility my company owned, we discovered that the sanitary waste discharged to the ground outside of one of the buildings. To identify the disposition of a water discharge, you have several options: you can conduct a dye test where you put a dye into the water and then you observe potential downstream discharges for the dye. You should coordinate this with local regulatory officials since this dye may flow to the wastewater treatment plant and downgradient water bodies, which could raise some concern. Another couple of options, typically conducted by a plumbing company or using rented equipment, is to snake the piping with a camera or a small electrical charge that can be detected aboveground. If you know where the pipe starts, you may also be able to use ground-penetrating radar to trace the pipe to its destination.
15.2.2 Other Environmental Regulatory Issues
To address potential environmental regulatory issues, have a good accounting of chemicals that you store, manufacture, process or otherwise use in large quantities. Since some environmental regulations are based on storing, using (e.g., manufacturing, processing, etc.) a threshold or more of a chemical, when you have or use large quantities of a chemical, you are more likely to trigger a regulatory threshold. Unfortunately, large is a relative term so I cannot provide a certain threshold volumetric or mass cutoff since that will vary from industry and site to site.
A second strategy is to identify materials that may have listed chemicals, that, even in small quantities, can trigger regulatory thresholds. If a chemical is on one of these lists, you may have regulatory obligations even if you have small quantities of these materials:
- Clean Air Act (CAA) Hazardous Air Pollutants (HAP)[10]
- Emergency Planning and Community Right-To-Know Act (EPCRA) EHS[11]
- Resources Conservation and Recovery Act (RCRA) P-listed chemicals[12]
I would also add anything with lead in it to the list.
15.3 Critical Safety and Environmental Devices and Equipment Maintenance, Repair and Replacement
To prevent fatal activities, environmental releases and other EHS issues, we rely on equipment and devices that prevent or warn us of potential issues. The number of these items are too vast to identify here, but examples include:
- Air monitors
- Alarms
- Arc flash clothing
- Baghouses/dust collectors
- Catalytic and thermal oxidizers
- Cut-resistant gloves
- Cyclones
- Electrostatic precipitators
- Fall protection
- Fire extinguishers and sprinkler systems
- Flame-resistant (FR) clothing
- Harnesses
- Heat sensors
- Hydrostatic relief valves
- Level gauges
- Pressure relief valves
- Respirators and cartridges
- Secondary containment systems
- Self-retracting lifelines
- Ventilation systems
These devices and equipment are literal lifesavers and make jobs safer and more protective of the environment. Unfortunately, these devices can give a false sense of security. Implementing these items is a great first step, but one of the common issues I have encountered is that companies just ‘set it and forget it’ and do not take the additional steps to make certain these devices and equipment continue to operate correctly. Failure of these devices could require you shut down operations and/or cause injury to your employees and the environment. Therefore, it is crucial that you should establish maintenance, repair and/or replacement frequencies for your critical safety and environmental devices and equipment.
For some equipment, like respirator cartridges, you might simply replace them periodically. As easy as this sounds, this requires you to:
- Train personnel when to replace them
- Have an ample and readily available supply to make it easy to replace
- Know when conditions (e.g., atmospheric concentrations of chemicals) might change that require you to change the replacement frequency or upgrade to supplied air
This is just the cartridge and does not even include inspecting and checking the respirator itself.
Other devices can have complicated maintenance, repair and replacement requirements that may require robust tracking systems and coordination with other departments and even outside contractors (e.g., you may not have the in-house expertise or equipment to conduct the necessary activities). As complicated as this might be, I cannot stress how important it can be to set this up and follow through.
15.4 What Next
After you have addressed some of those issues and put out the figurative fires, what should you do next? Auditing your EHS compliance program would be a good next step. Chapter 6 provides more details on conducting audits. If you still do not have a thorough understanding of the EHS programs that apply to your company, you may want to have a gap analysis conducted: The gap analysis will not identify specific regulatory issues, but instead provide you a list of EHS programs that apply. After that you can audit the specific EHS programs.
15.5 References
[1] “Occupational Safety and Health Administration (OSHA)® Fact Sheet Occupational Safety and Health Administration (OSHA) Inspections” by U.S. Department of Labor (http://www.osha.gov/OshDoc/data_General_Facts/factsheet-inspections.pdf)
[2] “A Framework For Statute-Specific Approaches To Penalty Assessments: Implementing EPA’s Policy On Civil Penalties EPA General Enforcement Policy #GM – 22” Environmental Protection Agency, February 16, 1984, Page 14 (https://www.epa.gov/sites/default/files/documents/penasm-civpen-mem.pdf)
[3] “Directives – NEP” Occupational Safety and Health Administration (OSHA) website, accessed February 26, 2022 (https://www.osha.gov/enforcement/directives/nep)
[4] “National Compliance Initiatives” EPA website, accessed February 26, 2022 (https://www.epa.gov/enforcement/national-compliance-initiatives)
[5] “Foundations of Safety Science A Century of Understanding Accidents and Disasters” by Sidney Dekker, CRC Press Taylor and Francis Group, Boca Raton, Florida, 2019, Pages 88 and 89
[6] “Serious Injury and Fatality Prevention: Perspectives and Practices“ by the Campbell Institute, National Safety Council, 2018 (https://www.thecampbellinstitute.org/wp-content/uploads/2018/10/9000013466_CI_Serious-Injury-and-Fatality-Prevention_WP_FNL_single_optimized.pdf), page 3
[7] Ibid, pages 3 and 4
[8] Ibid, page 11
[9] “Memo: SCL Model Revisions” Author Dr. Matthew Hallowell and EEI OSH Technical Advisor, Edison Electric Institute, January 3, 2022, Appendix 2 (https://esafetyline.net/eei/docs/eeiSCLmodel.pdf)
[10] Clean Air Act Amendments of 1990 Title III and 40 Code of Federal Regulations 61.01(a)
[11] 40 Code of Federal Regulations (CFR) 355 Appendix A
[12] 40 Code of Federal Regulations (CFR) 261.33(e)
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