Magazine Article
Feature written by Richard Stewart for Trucking Safely magazine
(ATA's Safety Management Council member magazine) on Spill Center,
an environmental claims management company
Protect Yourself With a Contingency Plan
to Handle Environmental ReleasesTruck accidents resulting in spills of diesel fuel and hazardous
materials require a prompt and efficient response by transporters
to contain the costs and liabilities associated with these
environmental releases. Penalties for failure to comply with
regulatory reporting requirements are big and enforcement is up,
according to the Spill Center, a 24-hour environmental claims
management company serving the trucking industry.
Failure to give immediate telephone notice of a hazmat incident
carries a fine of $3,000. A fleet can be fined from $500 to $2,500
for failing to file a DOT 5800.1 Hazardous Materials Incident
Report within 30 days of an unintentional hazmat release.
The best way to protect your operation from fines and third-party
claims is to be prepared for spills before they happen. A detailed
contingency plan is your first line of defense. It acts as a road map
to direct your response to spills, whenever and wherever they may
occur, according to Tom Moses, Spill Center president.Know the Laws
"Since reporting requirements vary from state to state and county to
county, half the battle is knowing the local regulations and whom
to contact after a spill for every jurisdiction in which your trucks
operate," says Moses.
"Acquaint yourself with the reporting requirements and procedures
of each state and locality you run through and the federal regulations
that apply to environmental releases. That information becomes the
heart of your contingency plan."
The potential for multiple jurisdictions with separate reporting
requirements exists in every spill, he notes. A spill in one of the five
boroughs of New York City requires that reports be made to county,
state and federal authorities. "In addition to those, you also have to
report the spill to the NYC Dept. of Environmental Protection. If you
fail to make the city report, it can cost you $25,000 a day, with each
day being a separate violation," says Moses.
The contingency plan should lay out all the steps to take in the
event of an over-the-road release. It should list all the hazardous
materials, including cargo, fuel and other truck fluids, that would
require an emergency response if spilled. Drivers should be familiar
with the kind of information to report and how to properly fill out a
DOT Hazardous Materials Incident Report.
The plan should list the phone numbers of all regulatory agencies
that may be involved and cleanup and disposal services that may be
needed, according to the Spill Center, which prepares custom
contingency plans and handles reporting requirements for subscribers.
Spill Center subscribers are private fleets, for-hire carriers, truck
leasing companies, and chemical and insurance companies.Carry a Spill Kit
Moses recommends that every truck carry a spill kit. The the driver can
use it to stop or slow a leak and minimize damages to the environment.
The kit should include plugs of different sizes and a trenching shovel
that can prevent diesel fuel or other hazardous materials from reaching a
storm sewer or waterway, says the Spill Center.
Stock and custom spill kits are available. Diesel kits include sorbent
pads and booms to soak up spilled fuel. An instant-open container
resembling a child's inflatable swimming pool can hold the contents of
two 100-gallon saddle tanks.
"One of the best reports a driver can make is when he tells the
regulatory authorities that he deployed his spill kit to stop a leak and
prevented any hazardous material from running into a waterway," relates
Moses, an environmental attorney and former toxicologist with the
Environmental Protection Agency in Washington. The driver should
always inform the regulatory authorities about the proximity of a
waterway or storm sewer or drain to the spill, he advises.
"One of the easiest ways to get tricked into not reporting a violation
is when fuel enters a swale or ditch that's dry and it later rains." Dry
ditches should be considered the same as waterways, storm sewers or
drains for purposes of reporting, notes Moses.
When in doubt, report! "You can never get in trouble by reporting
an incident you did not need to report, but you can be fined substantially
if you fail to report a spill of reportable quantity," he says. But you need
to know what's reportable, since it varies from one jurisdiction to the next,
and an amount that is below the limit in one state is reportable in another.
For example, any amount of diesel fuel sufficient to cause a sheen is
reportable in Massachusetts, while in Ohio, from a practical standpoint,
the state expects reports when 25 gallons or more are released.
"If an environmental regulatory authority tells your driver that he
doesn't have to make a report after a spill, just be sure he gets the name
and phone number of the person who told him he didn't have to report it.
That's the best defense you can have against failure-to-report violations
at any level and against third-party claims," he says.
"You can argue that your spill could not have caused the amount of
damage a property owner is complaining about because it did not meet
the threshold for concern, so the regulatory authority declined to take
the report. That's a much better position to be in than sitting in court
when the plaintiff's attorney claims that your driver not only damaged
his client's property, but he didn't even report the spill to the
environmental authorities."Keep Written Record
Documentation is critical to avoid being drawn into a pre-existing
contamination problem as a responsible party after a spill. Being able
to document that your release was separate in time, separate in nature,
and was the subject of a separate and complete response and
remediation, will go a long way toward a successful defense, adds Moses.
He advises drivers to log all actions they take after a spill. That written
record can be used to place the company and driver in a legally defensible
position. "And be sure to make all written follow-up reports that are
required. They should be listed in the contingency plan along with
addresses for each jurisdiction. "You can minimize the possibility of fines
with timely, complete and accurate reporting."
A driver who thought he had done everything required of him after a
routine diesel fuel spill of 30 gallons in New Jersey got a big surprise a few
weeks later. A letter from the N.J. Dept. of Environmental Protection
advised the private fleet to which he was leased that it was required to pay
a $75,000 fine for failure to comply with the state's environmental
reporting requirement.
The fleet had filed a full accident report with the State Police, but the
police had not mentioned the spill reporting requirement. The fleet thought
the situation was resolved after the site was cleaned up and soil remediation
work was completed. A costly mistake, since insurance does not cover
failure-to-report fines, as it is not an insurance company's responsibility
to report spills to authorities.
Another failure-to-report violation cost a locomotive cleaning operator
near St. Louis a total of $500,000 in fines and a two-year probation. The
company had been discharging waste oil and solvents from a poorly
maintained oil-water separator into a ditch that ultimately flows into the
Mississippi River. After realizing the problem, the company failed to report
it, as required by law. In addition to the fines, the Illinois Environmental
Protection Agency, which first discovered the discharges after an
anonymous complaint, ordered the firm to pay $26,000 in restitution.Make Spills a Priority
Fleet safety directors wear many hats and are involved in a broad range
of issues, including hazardous materials, transportation safety, regulatory
issues and OSHA requirements. As a result, they have a broad knowledge
base from which to draw to handle their responsibilities. But keeping up
with environmental regulations needs to be a top priority to avoid fines
and other penalties associated with environmental releases, according
to Moses.
The Chemical Manufacturers Association and its Chemical
Transportation Center (CHEMTREC®), recognized worldwide as a
primary resource for fast, reliable technical information about hazardous
materials in the transportation industry, offers a CHEMTREC-Spill
Center Group Registration Program. A single call to CHEMTREC after
a spill activates the transporter's custom Spill Center contingency plan
and provides access to chemical information to advise emergency
responders.
The Spill Center, staffed by legal, technical and environmental
specialists, works closely with several industry organizations, including
the ATA Safety Management Council, to advise members on proper
procedures for handing and reporting environmental releases. Founded
in 1990, the Spill Center uses a proprietary environmental claims
reporting, tracking and documentation system to support subscribers
nationwide.
Moses reminds fleets that the liability for a spill—regardless of whose
fault it may be—remains with the spill generator. That requires
following all applicable reporting and cleanup requirements or facing
the consequences, which can be very costly. Dealing with
environmental releases swiftly and thoroughly is the best way to stay
out of trouble with the authorities, he adds.
A trend in the cleanup contractor community is a movement toward
dedicated emergency response, according to the Spill Center, which has
a database of more than 3,000 private spill cleanup contractors
throughout North America. "More cleanup contractors are dedicating
their operations to emergency response rather than taking emergency
work only when they don't have a Superfund site to work or a tank to
remove. That helps resolve the problem of finding contractors who
aren't tied up with other business and are ready to go at a moment's
notice," says Moses.
He recommends that fleets follow the Boy Scouts' example and
Be Prepared! "A fleet that is prepared—one that proactively puts
together a contingency plan to handle this type of emergency—is
likely to come out of it far better off than the fleet that takes a
live-and-learn approach," he adds.
The Spill Center has developed an environmental compliance
information help-line in addition to its other services. Safety
Management Council members who have questions about
environmental regulations or related issues are invited to contact the
Spill Center, 100 Powdermill Road, Suite 323, Acton, MA 01720.
Phone: 978-897-6461, Fax: 978-897-9163. You can also check out
Spill Center on the Internet at www.spillcenter.com.
Copyright © 1998-2008 Stewart & Associates Communication Arts. All rights reserved.
