As the COVID-19 virus has sunk its teeth into every facet of American life, states and the federal government have reacted in part by loosening regulatory restrictions on businesses. While some reporting requirements may be relaxed, now is not the time for fleets to take a break on meeting their obligations, especially when it comes to environmental requirements, compliance experts say.
“Don’t believe all the news articles you’ve been reading on this stuff,” Kevin Weaver, senior director of environmental for U.S. Compliance, which, in partnership with J. J. Keller & Associates, Inc., specializes in Environmental Protection Agency (EPA) and Occupational Safety and Health Administration (OSHA) compliance. The EPA has been forgiving, he added, but reporting requirements are still in effect.
Guidance from regulatory compliance specialists J. J. Keller & Associates aligns with these thoughts.
“There has been consistent communication that all regulatory deadlines and requirements remain in place for both essential and non-essential businesses,” Lisa Neuberger, environmental health and safety editor for J.J. Keller, said. “Unless you have received specific communication from a local regulatory authority on individual permits, presume all deadlines are in place.”
Enforcement initiatives may be limited, Neuberger noted, but compliance is not optional. In a March 26 enforcement press release, EPA reiterated this point.
“The temporary policy makes it clear that EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible,” it said. “To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.”
The California Air Resources Board (CARB) also confirmed that all its regulations remain in effect.
At the outset of the COVID-19 pandemic, many federal and state agencies, including EPA, began issuing new guidance on regulatory compliance. In most cases, that guidance has amounted to a relaxing of reporting obligations and nothing more, Weaver told FreightWaves.
Some, he said, have interpreted the guidance as a waiving of compliance with regulations. He pointed to a Google search of the phrase, “EPA relaxes rules.” Article after article appears, with many using headlines like, “Open license to pollute” or “EPA significantly relaxes rules for polluters.” Even this headline, “Citing virus, EPA has stopped enforcing environmental laws.”
While EPA has relaxed enforcement of rules, according to Weaver, trucking interests are not exempt from following the letter of the law.
“The EPA’s [opinion] is it will be a little more forgivable on things, like maybe a weekly inspection report that runs a little late,” he said, citing as an example weekly or monthly pickups of 55-gallon drums of hazmat material that don’t occur regularly right now. “Generally, it’s been relaxing of things with no major impact and everyone should just keep records.
“They didn’t give the OK to pollute,” he added. “Nobody said it was OK to pollute.”
Where fleets should be focused
In trucking, when talk of environmental regulations comes up, it is most often in association with greenhouse gas emissions. But there are many other types of environmental regulations fleets must contend with. There are three primary areas every fleet should be concerned with:
1. Vehicle maintenance.
2. Maintenance and vehicle yards.
3. Chemicals and what’s being transported.
J.J. Keller said all the requirements that fleets followed prior should still be followed and documented. In some cases, waivers have been issued, but companies should consult with the appropriate agencies at the state level. If a routine inspection doesn’t take place, or there is some kind of issue, the experts suggest documenting what happened and why it happened.
Environmental regulations can touch many parts of a trucking fleet, including oil changes and vehicle washes; forklift batteries and the use of, storage of and disposal of any chemicals; and hazmat regulations on freight remain in full effect.
When it comes to oil, specifically used oil, Neuberger said regulation 40 CFR 279 and its subpart 40 CFR 279.1 governing what is considered used oil and when it is considered contaminated remain in effect. Also, compliance for spill prevention, control and countermeasures (SPCC) apply “if there is the capacity to store 1,320 gallons of any oil (including used) onsite in 55-gallon containers or larger.” Regulation 40 CFR 112.7 covers SPCC.
Vehicle washes, which fleets use to maintain clean and professional-looking equipment, are also still subject to regulations, including proper handling of wastewater runoff that may include chemicals or detergents. Wastewater contaminants can include oil and grease, paint chips, phosphates, detergents, road salts and other chemicals that may be illegal to dump into groundwater, including rivers, drainage ditches and storm sewers.
“If you discharge from a point source into the waters of the United States, you need a NPDES (National Pollutant Discharge Elimination System) permit,” Neuberger said. “If you discharge pollutants into a municipal sanitary sewer system, you do not need an NPDES permit, but you should ask the municipality about their permit requirements. If you discharge pollutants into a municipal storm sewer system, you may need a permit depending on what you discharge. You should ask the NPDES permitting authority.”
Information on permits for wastewater discharge is available at https://www.epa.gov/npdes/npdes-permit-basics.
Lead-acid batteries are another common item that fall under the purview of regulators. Both the transport and disposal of these are regulated, and different regulations apply depending on the type of battery. Transport of both new and used forklift batteries are covered, but there are some exemptions as outlined in 49 CFR 173.159.
Batteries also contain chemicals and are considered hazardous substances and therefore fall under additional regulations, including the requirement for onsite safety data sheets for chemicals, and threshold planning quantities (TPQ) limits. TPQ limits are 10,000 pounds for hazardous substances and 500 pounds or less for extremely hazardous substances. More on these limits can be found in Part 355, appendices A and B.
Documentation of hazardous materials must be filed with state emergency response commissions, local emergency planning committees and even local fire departments in some jurisdictions.
A common mistake many fleets make is in the transport of hazardous materials. Some that transport regulated chemicals or hazmat goods in support of their own business can use a Materials of Trade (MOT) exemption, as outlined in 49 CFR 173.6.
In general, a MOT would apply:
1. For the purpose of protecting the health and safety of the motor vehicle operator or passengers (such as insect repellent, hand sanitizer or breathing apparatus).
2. For the purpose of supporting the operation or maintenance of a motor vehicle (such as spare batteries, fuel or starting fluid).
3. For use by a private motor carrier in direct support of a principal business that is other than transportation by motor vehicle (such as welding or vehicle mobile maintenance).
Size and limitations of hazmat transported under MOT is restricted to the amounts listed in 49 CFR 173.6(a), Neuberger noted, and gross weight of the material must not exceed 440 pounds per vehicle.
Compliance with the regulations requires specialized knowledge. Trucking operations deal regularly with the Federal Motor Carrier Safety Administration and U.S. Department of Transportation, but many do not realize they are also regulated by EPA.
Weaver added that if a company falls out of compliance, it remains important to notify the proper authorities. “Those emergency departments that take those requests are still operating,” he said.
Following the letter of the law is also good business sense, J. J. Keller added.
“It’s important to be aware of your environmental obligations for several reasons, including the need to take care of the planet,” Neuberger said. “We all share in the responsibility to keep our air and water clean. In addition, running afoul of the EPA can cost you several thousands of dollars per violation per day and lead to costly legal actions. Environmental violations also reflect negatively on your operations in the court of public opinion.”
So, while the headlines may suggest the EPA is letting polluters pollute, those that ignore environmental regulations may face financial peril in the near future.