Haz Mat Spills: Preventing a Lost Fortune

Protect Yourself With a Contingency Plan to Handle Environmental Releases

Truck 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 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.

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 Tom Moses, Spill Center president.

"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 toreport 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.

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, 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 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 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 Spill Center at 22 Kane Industrial Drive, Hudson, MA 01749, or telephone (978) 568-1922 x222 or 800-847-0959. Spill Center can be reached (978) 568-1945.


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