THE NATIONAL SHIPBUILDING RESEARCH PROGRAMRecipients : New employees on arrival, and existing...

SHIP PRODUCTION COMMITTEEFACILITIES AND ENVIRONMENTAL EFFECTSSURFACE PREPARATION AND COATINGSDESIGN/PRODUCTION INTEGRATIONHUMAN RESOURCE INNOVATIONMARINE INDUSTRY STANDARDSWELDINGINDUSTRIAL ENGINEERINGEDUCATION AND TRAINING

THE NATIONALSHIPBUILDINGRESEARCHPROGRAM

May1999NSRP 0545

N1-94-2

Environmental Training ModulesModule 5 - GeneralEnvironmental Awareness

U.S. DEPARTMENT OF THE NAVYCARDEROCK DIVISION,NAVAL SURFACE WARFARE CENTER

in cooperation with

National Steel and Shipbuilding CompanySan Diego, California

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ENVIRONMENTAL TRAINING MODULES

MODULE 5

GENERAL ENVIRONMENTAL AWARENESS

Prepared by:

DM Austin Environmental Consulting, Inc.

May 1999

NSRP 0545(N1-94-02)

TRAINING MODULES OVERVIEW

Executive Summary and User’s Guide (NSRP 0540) Gives an overview of the 10module set of environmental training modules, plus key issues involved in training ingeneral. Instructions are supplied for how the modules can be modified to suit individualshipyards, as well as hardware and software requirements.

Module 1 (NSRP 0541) Good Environmental PracticesContent: Craft/trade-specific training on items that workers must deal with on a regularbasis – material handling, labeling, waste generation/minimization, requirementsawareness.Recipients: New employees on arrival, and existing workers as a refresher.

Module 2 (NSRP 0542) Environmental Practices for Specific Craft/Trade GroupsContent: Specific training on air, hazardous materials, waste minimization, and relatedenvironmental considerations, with a focus on the generator personnel and theirindividual practices and procedures. Emphasis on those personnel likely to encounter ahigh incidence of problems during their regular duties.Recipients: Specific craft/trade groups of workers.

Module 3 (NSRP 0543) Shipyard Incident Response TrainingContent: Detailed presentation of response requirements specified by OSHA. Basicingredients of a viable program for a shipyard – what is required and how to reach asatisfactory state of readiness. Includes specific duties of all participants, as well as howto ensure coordination and a common focus. This Module will provide the shipyardswith an in-house capability for conducting this important training.Recipients: Environmental Manager, Environmental Staff Personnel, Safety Engineer,Safety Personnel, Fire Department Personnel, Laboratory Staff and Technicians,Emergency Response Coordinator, Medical Personnel.

Module 4 (NSRP 0544) Shipyard Oil Pollution Prevention and PIC TrainingContent: Provides a detailed overview on the federal regulatory oil pollution preventionand response requirements. Also contains specific training material for those shipyardemployees with designated “Person in Charge” responsibilities.Recipients: Ship and Craft Managers and Leadmen, Environmental and SafetyDepartment Personnel, designated Persons in Charge.

Module 5 (NSRP 0545) General Environmental AwarenessContent: Overview of environmental statutes and regulations affecting shipyards,including responsibilities for compliance including both civil and criminal penalties fornon-compliance. Includes an overview and explanation of environmental processes -how laws are formulated, the role of environmental groups, consultants, advisers.Recipients: Senior Management

Module 6 (NSRP 0546) Technical Overview of Environmental Statutes andRegulationsContent: A general but in-depth overview of all environmental statutes and regulationswith a focus on shipyard interests, and emphasis on the technical aspects of therequirements.Recipients: Environmental Managers and staff personnel.

Module 7 (NSRP 0547) Environmental Requirements of Concern to ShipyardsContent: General overview of ALL requirements as they apply to shipyards. Emphasison technical aspects and actions needed for compliance, rather than on the penalties fornon-compliance. Includes overall strategy for developing a strong environmentalposture.Recipients: Senior Management, Supervisors, Generator Personnel; all workers whointerface with environmental matters.

Module 8 (NSRP 0548) Generation/Treatment/Minimization of Hazardous WasteContent: Discussion of regulatory requirements and statutes that apply to shipyardhazardous waste activities. Stresses the high points of the laws, and how to satisfy them.Includes overview of training provided to hazardous waste operators.Recipients: Middle-level Managers

Module 9 (NSRP 0549) Hazardous Waste Operator TrainingContent: Detailed training on practices and procedures performed by hazardous wasteoperators. Includes reclamation techniques, safe handling practices, labeling/marking,inventory control, hazard minimization.Recipients: Hazardous Waste Operators; helpers and assistants

Module 10 (NSRP 0550) Environmental Training for Subcontractor PersonnelContent: Briefing on environmental requirements and considerations applicable to allSubcontractor Personnel entering a shipyard environment.Recipients: Subcontractor Personnel; visitors to a shipyard; transient personnel such asdelivery agents, auditors, and oversight personnel.

General Environmental Awareness for ShipyardManagement

Module 5, 1-Intro.doc NSRP 05451

Objective of this Training Session: To provide anintroduction to the subject of environmental laws andregulations in the United States.

Introduction: Environmental law has evolved into asystem of statutes, regulations, guidelines, factualconclusions and case specific interpretations which relateto each other. This system is complex in and of itself. Itis made more challenging due to the fact that thetechnical foundation of the subject matter, environmentalhealth and safety, has not fully matured, and high levels ofuncertainties in the underlying body of law still exist. Asa result of these perplexities, our system of environmentallaw is often perceived to be inequitable by both thosewho are subject to the requirements and those whobelieve they have been damaged by environmentaldegradation.

The Environmental Law System: The environmental lawsystem in the United States is derived from the interactionof multiple sources, including:

1. laws (federal and state statutes and localordinances);

2. regulations (promulgated by federal, state andlocal agencies);

3. court decisions interpreting laws andregulations;

4. the common law;

5. constitutions (both United States and states);and

6. treaties.

The interplay of these and other legal elements define thestructure of the environmental law system in the UnitedStates. This system is continuing to evolve with both theenactment of new environmental statutes, and theapplication of existing law from different fields to achieveenvironmental goals. One example of this trend is theapplication of the existing civil rights statutes to issues oftoxic chemical exposure on minority communities. Thisis usually referred to as Environmental Justice andrepresents an expansion of the use of the original statutesto achieve environmental and societal objectives.

Introduction toenvironmental lawsand regulations in theUnited States

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Shipyard management can better respond to the evolvingdemands placed on their management skills and oncompany organization by being armed with a clearerunderstanding of how our environmental law systemevolved, as well as how it is currently structured.

The Development of Environmental Law and Regulation:The Federal legislative process used to enactenvironmental law is identical to the process used forother matters of the law. First, a bill is introduced ineither the House of Representatives or the Senate. Billsare then referred to a committee for consideration. Thecommittee(s), in considering a bill, may perform studies,hold hearings with knowledgeable witnesses, preparereports and make recommendations on whether or notbills should pass. When the bill is reported out ofcommittee, it is placed on calendar in the house where itoriginated in order to be considered, debated, amendedand voted upon. If passed, the bill becomes an act.

Often the House and Senate pass different bills on thesame subject area, and a conference of House and Senaterepresentatives then meet to resolve any differences in thetwo versions of the legislation. After passage of oneagreed upon version of the bill in both the House andSenate, the act is sent to the President of the UnitedStates. The act will become law if it is signed by thePresident, or if the President does not veto the act withinten days.

The process of developing and writing a bill, the passageof the bill by the House or Senate to become an act, andthe act being signed into law by the President is typicallya long procedure with much compromise performedalong the way. This can result in confusing language,which more often than not can have significantunexpected consequences when implemented by federaland/or state agencies. The process can be seen to beimperfect from almost any perspective. However, it is aprocess that provides for the greatest participation fromthe affected entities involved.

Environmental Regulations: Environmental lawsgenerally empower an administrative agency to developand promulgate regulations necessary to implement therequirements of the statute. For Federal laws, agenciessuch as the Environmental Protection Agency, the


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United States Coast Guard and the Department ofTransportation are examples of agencies that have andcan implement law through regulation. The Presidentmay also empower an executive agency to promulgateregulations through an executive order.

Regulations are promulgated through a process of rule-making whereby proposed regulations are published,providing an opportunity for the public and interestedstakeholders to comment through the submission ofwritten comments. Additionally, public hearings areusually held whereby interested parties may providecomment by testifying at the hearing. The agency willreview all the comments received and usually respond inwriting regarding the general disposition of the comment.Based on the comments received, an agency may modifythe proposed language of the regulation.When the final regulation is developed it will be publishedand codified in the appropriate section of the code. ForFederal regulations, the final regulations are codified intothe Code of Federal Regulations (CFR).

The Role of Stakeholders in the Development ofEnvironmental Laws and Regulation:

Stakeholder is the term generally used in theenvironmental process to identify those persons or partiesthat have an interest in the outcome of a legislative orregulatory action. These persons or parties may be thosemandated by law to perform under the law or regulationor those persons that will be affected by the perceivedoutcome of the requirement. Typically, stakeholders willperceive both positive or negative outcomes tothemselves or those they represent from a proposedlegislative or regulatory action. The role of thestakeholder is to interact effectively with the legislativebody or regulatory agency to achieve their desired goal.Several of the more frequently encountered stakeholdersin the environmental process include:

• Citizen activists - This stakeholder is typicallya private citizen representing themselves or asmall group based upon a perceived need orimpact. The citizen activist is oftendemanding that action be taken by a legislativebody or regulatory agency to stop a perceivedenvironmental


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problem that does or will directly effect theirhealth or safety. Less commonly, but withincreasing frequency, the citizen activist isinvolved in demanding that proposedenvironmental requirements be scaled back toprotect their jobs or property rights. Thecitizen activist is usually restricted to a narrowset of issues that directly impacts their well-being.

• Community representatives - When aproposed environmental action may effect alarge group of persons within a geographicarea, community representatives often assumea stakeholder role. Communityrepresentatives include elected municipalleaders, religious organization leaders,neighbor associations, local trade andcommerce groups, educational organizationsand many others. Similar to the citizenactivist, the perceived impact of a legislativeor agency action may be positive or negative.Often various community representativestakeholders will be attempting to effect theoutcome of the process in ways opposed toeach other.

• Industry representatives - As business andindustry are frequently the entities required toperform under environmental laws andregulations, their representatives have a clearstakeholder role in the process. As theimplementation of environmental requirementsin business typically increase the cost of doingbusiness and/or effect potential market share,business has a substantial stake in assuringthat the improvement in environmentalprotection quality is cost effective.

• Professional consultants - Professionconsultants, which generally include lawyers,engineers, and scientists, are often involved asstakeholders in the legislative and regulatoryprocess representing societal


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objectives or processes. For example,engineers and scientists are often involved inensuring that a proposed requirement has anadequate scientific foundation to support itsimplementing requirements. Attorneys areoften involved in ensuring that proposedrequirements have been promulgated in alegally correct manner. Professionalconsultants may also be involved in assistingother stakeholders in developing andpresenting legal or scientific information tosupport the stakeholder’s position.

• Environmental organizations - Environmentalorganizations consist of those groups thattypically have established memberships andenvironmental goals. The objectives of themembership are achieved through acoordinated strategy at the executive level ofthe organization. National examples ofenvironmental organizations include the SierraClub, the National Resource Defense Counciland the Environmental Trust.

In addition to the stakeholders listed above, theregulatory agencies can and often assume the role of astakeholder in the legal process. This typically happenswhen the agency is called upon to comment or providetestimony on the proposed action(s) of another agency orlegislative body.


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Module 5, 2-EnvirLawSyst.doc NSRP 05451

Objective of this Training Session: To Provide an Overviewof the Environmental Law System in the United States.

Introduction: The system of environmental law in the UnitedStates can be broken down into various elements whichinclude the federal and state statutes, government agencyregulations, court interpretation of the law and applicableelements of common law. This session provides anoverview of these elements, as well as discussion as to howtheir interaction produced our system of environmental law.

Laws That Establish Compliance Obligations:Environmental laws create compliance obligations on certaingroups within our society, such as persons that dischargewaste to the waters of the United States or owners ofproperty that contain wetlands. The major federalenvironmental laws define most of the substantivecompliance obligations for the environmental law system.These federal statutes do not, however, operate alone. Thereare other components of “environmental laws” thatsupplement or complement the programs which the federalenvironmental statutes establish, including state laws andfederal and state regulations.

The major federal environmental laws include:

a) Resource Conservation and Recovery Actand its amendments;

b) Clean Air Act and its amendments;

c) Comprehensive Environmental Response,Compensation, and Liability Act and itsamendments;

d) Superfund Amendments andReauthorization Act;

e) Emergency Planning and Community Right-to-Know Act;

f) Federal Insecticide, Fungicide, andRodenticide Act;

g) National Environmental Policy Act;

h) Oil Pollution Act of 1990;

i) Toxic Substance Control Act and itsamendments;

Environmental LawSystem

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j) Safe Drinking Water Act; and

k) Pollution Prevention Act of 1990.

The above list of titles illustrates the extensive subject matterof current federal environmental law. Even a cursorysummary of the requirements contained within these statuteswould require a manual far beyond the scope of this trainingsession. In addition to the major environmental statuteslisted above, there are numerous minor statutes thatconsistently come into play when determining theapplicability and scope of the requirements for the operationof a shipyard facility.

State Statutes and Regulations Implementing the FederalStatutes: Many of the federal statutes, like the Clean Air Actand Clean Water Act, establish federal-state regulatoryprograms in which the states are given the opportunity toenact and enforce laws, meeting federal minimum criteria inorder to achieve the regulatory objectives which Congresshas established. In most instances, when the states have hadthe opportunity to take over regulatory programs in theirjurisdictions, they have done so. States are generally theprimary permitting and enforcement authorities subject tofederal intervention only if they do not enforce effectively orrigorously enough.

State Laws Independent of the Federal Requirements: Manystates provide their citizens and their environment withprotection beyond that generally available under the federalstatutes. Some states such as California, New Jersey andFlorida have an extensive state law and regulatory systemthat provide strict standards independent of federalrequirements. The laws in many states may be a moreimportant factor in dictating the focus of complianceprograms than the laws which exist at the federal level.

Tax Laws: There is a trend at both the state and federallevels towards using the tax laws to create incentives forenvironmentally benign products and activities, anddisincentives against products and activities considered to beenvironmentally detrimental. As an example, many stateshave provided for the taxing of disposal of hazardous waste.This tax is intended to provide an incentive to reduce thegeneration of such waste.

Business Regulatory Laws: Innovative use of lawsoriginally intended to regulate business practices are nowbeing used to achieve environmental protection goals. Full


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disclosure requirements for property transfer and unfairbusiness practices laws are examples of business laws beingadopted for environmental purposes.

Local and Municipal Laws: Localities do have great powersto control the location and operation of facilities within theirjurisdictions. Common local issues which can impact afacility’s operation include the operation of the localwaterworks and waste treatment plants, local recyclinginitiatives, zoning and noise control ordinances, nuisancelaws, air emission requirements, landfill restrictions orclosures, and local emergency planning. The impact of thiskind of local action can be as immediate and severe as thatof any taken at the state or federal level. From theperspective of an environmental law compliance program,local does not mean trivial.

Environmental Law and the Courts: As the courts interpretenvironmental laws and regulations and apply them tospecific factual situations, they are continually determiningwhat the law actually means in factual situations. Thisprocess provides for an evolving understanding andclarification of elements of the statutes over time as newfactual situations arise and are tested in the courts. As aresult, with new environmental statutes, there will besignificant issues of contention that have not been put to thejudicial test.

Common Law: Underlying the development of legal theoryin the United States is a body of rules and principles relatingto the government and security of persons and propertywhich had its origin, development and formulation inEngland. These principles, known as the common law, arederived from the application of natural reason, an innatesense of justice and the dictates of conscience. Common lawis not the result of legislative enactment. Rather, its authorityis derived solely from usages and customs which haverecognized, affirmed and enforced by the courts throughjudicial decisions.

Many important environmental issues are addressed throughcommon law. In particular are civil suits in which theplaintiff (the party bringing the lawsuit) seeks to remedy theviolation of a right. The three most frequently used types ofcommon law actions that can be the basis of a lawsuit in thepollution control field are nuisance, trespass and negligence.Each of these actions is explained in greater detail below.


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Nuisance - Nuisance is defined as “that activitywhich arises from the unreasonable, unwarrantableor unlawful use by a person of his own property,working an obstruction or injury to the right ofanother or to the public, and producing such materialannoyance, inconvenience, and discomfort that thelaw will presume resulting damage.”1

The general rule is that a person may use his land orpersonal property in any manner he sees fit.However, this rule is subject to limitation: Theowner must use his property in a reasonable manner.A nuisance arises whenever a person unreasonablyuses his property to cause material injury orannoyance to a neighbor.

The most common form of environmental nuisanceis noise pollution. In order to constitute a nuisancein the legal sense, generally, noise must be of suchmagnitude and intensity as to cause actual orpsychological discomfort to persons of ordinarysensibilities. Noise from the operation of anindustrial plant constitutes an actionable nuisance ifit injuriously affects the health or comfort ofordinary people in the plant’s vicinity to anunreasonable extent. As no absolute standard forwhat level of noise is unreasonable exists, thedetermination of a noise nuisance rests on the factson the individual case.

Smoke, dust, odors, other airborne pollutants, waterpollutants and hazardous substances have also beenheld to be nuisances.

“Coming to a nuisance” is the phrase used todescribe the defense that the complainant or plaintiffwho is affected by the nuisance moved into the areawhere the “complained about activity” had alreadybeen in existence.

An example of “coming to a nuisance” occurs whensomeone moves onto property near to an airport orindustrial complex and then complains of thenuisance that existed prior to his moving there. Ingeneral, the courts have held that if an individualpurchases property with the knowledge of the

1 Black’s Law Dictionary 1065 (6th ed. 1990).


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existence of a nuisance or that he came to thenuisance it does not defeat his right to the abatementof the nuisance or recovery of damages. This isbased on the theory that the right to pure air and thecomfortable enjoyment of property belong toproperty as much as the right of possession andoccupancy.

Finally, with regard to nuisance actions, it must benoted that compliance with governmentrequirements such as permit conditions is typicallynot a defense, if compliance still results in a nuisancecondition. In these cases, additional steps may haveto be taken to abate the nuisance in addition tomaintaining compliance with agency rules,regulations and permit conditions.

Trespass - Trespass is an injury to, or interferencewith the possession of personal property, or anunlawful, forcible entry on another person’s land.

Trespass to land is the type of trespass action that isgenerally used in pollution control cases. In actionfor trespass to land, entry upon another’s land neednot be in person. It may be made by causing orpermitting a thing to cross the boundary of thepremises. The trespass may be committed by castingmaterial upon another’s land, by discharging water,soot or carbon, by allowing gas or oil to flowunderground onto someone else’s land, but not bynoise or light which are generally classed asnuisances.

Negligence - “Negligence” is “the omission to dosomething which a reasonable man, guided by thoseordinary considerations which ordinarily regulatehuman affairs, would do, or the doing of somethingwhich a reasonable and prudent man would not do.”2

Negligence is that part of the law of torts whichdeals with acts not intended to inflict injury.

The standard of care required by law is that degreewhich would be exercised by a person of ordinaryprudence under the same circumstances. This isoften defined as the “reasonable man” rule, that is ,

2 Black’s Law Dictionary 1032 (6th ed. 1990).


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what a reasonable person would do under all thecircumstances.

In order to render the defendant liable, his act mustbe the proximate cause of injury. Proximate cause isthat which in the natural and continuous sequence, ifunbroken by an efficient intervening act, producesinjury and without which the result would not havehappened.

Persons harmed as a result of careless and improperdisposal or handling of hazardous waste can recoverfor their losses under a negligence cause of action.Indeed, state and federal courts have longrecognized this common law theory of recoveryagainst defendants who engage in the negligentdisposal of pollutants, such as hazardous waste.Where negligence can be established, it is nodefense that the negligent action was in fullcompliance with all government regulations andpermit conditions. On the other hand, noncomplianceregulations or a permit may be prima facie evidence(proof without any more evidence) of liability insome states.

The assessment of liability for damages withoutrequiring a showing of negligence is called “strictliability.” A landowner keeping a potentiallydangerous substance on his land which, if permittedto escape, is certain to injure others, must makegood the damage caused by the escape of thesubstance, regardless of negligence on his part.

The reasoning for this strict liability standard is thatif someone is engaged in an ultra-hazardous ordangerous activity for profit, he should bear theburden of compensating others who are harmed byhis activities.

Laws That Enforce Permits, Prohibitions And Penalties:Although the environmental law’s mechanisms for enforcingits requirements are essentially the same as other laws, thereare distinctive aspects to the overall enforcement package.Most notably are the ways in which the availablemechanisms are used together to effectively compelfulfillment of environmental compliance.

Permits: Perhaps the most distinctive aspect ofenvironmental enforcement is its extensive and effective


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use of permitting mechanisms. Particularly with laws ascomplex and technical as most of the environmental statutes,it is critical that there be an effective mechanism for bridgingthe generalities of the law to specific performancerequirements.

The permit fulfills this need by, in effect, establishing the“law” for a particular discharge or activity. The requirementto obtain a permit and operate in compliance with it is anindividualized and highly effective way of insuring thatregulators are notified of releases or activities of which theyneed to be aware. It is also an effective way of assuring anddemonstrating that the person required to comply is onnotice of his obligations.

Enforcement Provisions of the Federal and StateEnvironmental Statutes: Each of the major federalenvironmental statutes provides an array of enforcementtools to compel compliance with its mandates. Generally,these include:

• Civil Penalties ranging from $10,000 to$50,000 per violation or day of violation

• Administrative Orders to respond or abate,enforceable by civil and criminal sanctions

• Civil Action for Relief including prohibition ormandatory injunction enforced by judicial decree

• Citizens’ Civil Actions - to compel compliancewith or collect damages for violation of thestatute

• Criminal Sanctions against organizations andresponsible individuals for misrepresentation orknowing or negligent violation of the statutes

There is no doubt that the federal environmental statutes andthe regulations under them present a formidable set ofreasons for a business or other organization to instituteprograms for aggressive compliance with environmentallaws. They are supported and complemented by similarenforcement provisions in the state environmental statutes,as well as in local laws and ordinances.

General Purpose Criminal Laws: Laws from the criminalcode, originally enacted to punish more traditional crimes,have been adopted to the prosecution of crimes which areessentially environmental. The criminal code provisions


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which have proven particularly useful in this connectioninclude:

• Prohibition Against False Statements to theFederal Government - 18 U.S.C. 1001

• Mail Fraud Statutes - 18 U.S.C. 1341, 1343

• Conspiracy Laws - 18 U.S.C. 371

Even more traditional criminal laws, such as the murderstatutes, have been used, at least at the state level, tosuccessfully prosecute environmental offenses. These non-environmental laws have become almost important as theenvironmental statutes in defining the liability of violators.

The environmental law enforcement package is a carefullystructured combination of methods - environmental andgeneral purpose, traditional and newly conceived - whichwork together to bring serious consequences to those whofail to fulfill their environmental compliance obligations.This interaction has been extremely effective and willbecome even more formidable as the environmental lawsystem matures.


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Module 5, 3-EnforceLiab.doc NSRP 05451

Objective of this Training Session: To understand theenforcement and liability issues associated with non-compliance of environmental requirements.

Introduction: There can be substantial negativeconsequences for failure to comply with the requirementsof environmental laws and regulations. Theseconsequences can fall on companies, as well asindividuals within the company. Liability can beapportioned to the person who committed the act whichresulted in the non-compliance, in addition to the personin the company that should have know and taken actionto prevent the problem. Penalties range from “trafficticket” fines to prison terms. It should be noted thatliability can be assessed for not only errors of commission(“I knew it was hazardous waste and I threw it thegarbage can anyway”) but also for errors of omission (“Iwas responsible for determining if it was hazardouswaste, but I didn’t”). This training session will providean overview of the issues of environmental liability andenforcement.

The Purpose and Types of Environmental Liability:There are several purposes for imposing liability as aresult of environmental non-compliance. As in other“crimes,” liability is imposed to encourage compliance orto deter non-compliance and secondly, to punishtransgressors who fail or refuse to comply with the law.Environmental liability is also imposed to require personsresponsible for causing environmental damage toremediate the problem, and to require responsible partiesto make the injured whole, usually by paying damages.Forms of environmental liability fall into three maincategories: penalties, remedies and compensation. Eachof these general areas of liability is explained in greaterdetail below.

Penalties - Penalties can be classified based uponthe process by which they are imposed, and to thedegree of blame or responsibility that is attachedto the act or omission to be penalized. The typesof penalties available to ensure environmentalcompliance are administrative, civil and criminal.

Enforcement AndLiability

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Administrative penalties are typically imposed bythe implementing agency for a violation of a ruleor regulation. Usually, there is no element ofintent required for the determination that anadministrative penalty is justified. The mere factthe an instance of non-compliance existed is allthat is necessary. Penalties can take the form ofmonetary fines ranging from the hundreds to tensof thousands of dollars. Additionally, in the caseof environmental non-compliance, each day ofviolation is typically considered to be a separateoffense for which a penalty can be assessed.

Civil penalties are imposed by judicial actions filedin civil court. This can be the result of anenvironmental agency taking the company orperson to court for prosecution, or a citizens suitaction brought under the applicable environmentalstatute. Like administrative actions, civil penaltiescan range from a few hundred to tens ofthousands of dollars per day of violation. Whilecivil actions are usually taken against companiesor organizations, in some cases, individuals areprosecuted if there is a compelling reason, such asdeterrence of the same behavior by otherindividuals in the future.

Criminal penalties can be attached to bothcompanies and individuals who have committed aprohibited act, or failed to perform what waslegally required. Usually, but certainly notalways, in addition to the act of commission oromission, some element of bad intent,recklessness or willful misconduct is required todemonstrate criminal conduct. Virtually everyenvironmental statute now provides for some sortof criminal liability. The enforcers ofenvironmental law understand that a sure way tochange the “culture of compliance” in a companyis to seek and obtain criminal sanctions againsttop company officials. While many people wouldagree that this technique is not fair, the reality isthat it has become an acceptable practice ofprosecutorial discretion, and can be a very realpossibility in an environmental crime situation.


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Remedies - Many environmental laws contain therequirement to remedy the effects of releases ordischarges of hazardous materials or wastes to theenvironment by performing some type of responseaction. The most common types of responseactions taken by companies are: (1) a response tothe release of oil and/or hazardous substancesonto the land or water and (2) the clean-up ofsites where the company has disposed of waste inthe past. A third, but less common type ofresponse is the “closure” or clean-up of hazardouswaste treatment facilities after the facility isclosed.

Under the Comprehensive Emergency Response,Compensation and Liability Act (“CERCLA”),persons who generate or participate in thedisposal of hazardous pollutants that endanger theenvironment may be held jointly and severallyliable for costs incurred by the government orprivate parties in order to respond to and/orremove the damage. Under the joint and severaltheory of liability, each person who contributed tothe problem can be held responsible for the entirecost of clean-up. (In other words, each person inthe group is both jointly and individuallyresponsible for the cost of the clean-up.) Inpractice, this custom has not been perceived asbeing a particularly fair way of apportioningliability in such cases. While some efforts havebeen made to reform CERCLA, the element ofjoint and several liability remains intact, and willmost likely remain intact for some time to come.

Compensation - The requirement to make“whole” those persons injured by another’sactions usually arise in the context of so-called“toxic tort” lawsuits to compensate for the loss ordamage to natural resources. This compensationis in addition to any fines or penalties thatgovernment agencies may impose as a result ofviolations of laws or regulations that result innatural resource damage.


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Toxic tort actions can also be brought byindividuals who claim that the environmentaldamage caused by a another person has personallyinjured them and/or their property. Personal injurylawsuits often allege that exposure to an injuriousmaterial or substance resulted in that personacquiring a disease, such as cancer.

Toxic tort actions can also be brought forrecovery of property damage, if causationbetween the release of a hazardous material andthe environmental damage to the property can beshown. On a few occasions, large areas andwhole cities have been abandoned due to toxiccontamination. In these cases, the claim forproperty damage can be huge in comparison to apersonal injury claim.

Enforcement of Environmental Laws and Regulations:Enforcement of environmental requirements generally fallto government representatives, such as the agencyresponsible for implementing a particular element of astatute or its regulations. Enforcement may also be aprosecutorial function, performed by the Department ofJustice or State Attorney General. Administrativepenalties are usually handled directly by the involvedagency. Civil and criminal enforcement actions arehandled by the prosecutors. Both the federal and stategovernments can play an enforcement role, with eitherthe state or the federal government (or both) enforcingthe requirements. Local laws are enforced by localgovernments.

Citizens also have the right to enforce environmental lawsunder many existing statutes. Typically, the citizen mustnotify the responsible person (and other required parties)that he is intending to sue them and provide specificinformation regarding when and how the law wasviolated. Usually the law requires a delay of sixty daysprior to the filing of the lawsuit. In some cases,correction of the violation within this sixty day periodnegates the grounds for the lawsuit, and prevents it fromgoing forward. If the lawsuit goes forward and violationsare proven, a judge may issue


Notes:



an injunction to comply with the law and assess a civilpenalty to be paid to the government. Citizens canrecover their costs and attorney’s fees from thewrongdoer if they are the prevailing party in the lawsuit.


Notes:


Module 5, 4-RegReqs. NSRP 05451

Table of Contents Shipyard Environmental Requirements

Objective of this Training Session .................................................................................... 2

Introduction .................................................................................................................... 2

Overview of Environmental Regulations Affecting Shipyards........................................... 2

Disposal of Waste........................................................................................................ 2

Management of Hazardous Materials ......................................................................... 10

Special Pollutants ...................................................................................................... 16

Storage Tanks ........................................................................................................... 18

Air Quality Permitting................................................................................................ 21

Water Quality ............................................................................................................ 23

Emergency Response................................................................................................. 28

Conclusions ............................................................................................................... 32



Objective of this Training Session: Gain an overviewunderstanding of the environmental regulations that mayeffect shipyard operations and processes.

Introduction: From an environmental perspective,shipyards are considered to be a “highly-regulated”industry. One reason for these regulations lie in the factthat a broad range of pollutant generating industrialprocesses and operations occur in shipyards in a locationwhere air, land and water meet. This proximity to thethree environmental media also increases the potentialthat accidental discharges of oil or hazardous substanceswill impact the environment before there is anopportunity to contain and clean-up the release. Thesefacts result in shipyards being subject to a greater numberof environmental regulations than most industries. Thistraining session outlines some of the basic federalregulatory schemes to which most shipyards are, or couldbe, subject. State environmental requirements mayimpose more stringent or additional requirements withwhich the shipyard must comply.

Overview of Environmental Regulations AffectingShipyards:

Disposal of Waste: Shipyards are subject to regulationsregarding the management and disposal of hazardouswastes and non-hazardous wastes (usually referred to as“solid waste”). All shipyards typically generate bothhazardous waste and solid waste, both of which need tobe managed and disposed of properly. Impropermanagement and/or disposal of waste has the potential toresult in severe penalties.

Hazardous Waste Determination - Anyone whogenerates waste materials, including smallquantity generators, must determine if the waste ishazardous as defined by the ResourceConservation and Recovery Act (“RCRA”).Determining whether a waste is subject to RCRASubtitle C is a two-step process:

1. Is the material a "solid waste"?

2. Is it "hazardous"?

ShipyardEnvironmentalRequirements:

Notes



Solid waste is defined as: "any garbage, refuse,sludge from a waste treatment plant, or airpollution control facility and other discardedmaterial, including solid, liquid, semisolid, orcontained gaseous material resulting fromindustrial, commercial, mining, and agriculturaloperations and community activities, but does notinclude solid or dissolved material in domesticsewage.”

A material that fits the definition of solid wastemay be regulated as hazardous waste underRCRA if it poses a threat to human health or theenvironment. RCRA defines hazardous waste as"a solid waste, or combination of solid wastes,which because of its quantity, concentration, orphysical, chemical, or infectious characteristicsmay... pose a hazard to human health or theenvironment.” The EPA has identified over 450substances as "listed wastes" because they areknown to be hazardous, but if a substance doesnot appear on a list, it does not mean it is not"hazardous." It could be classified as a"characteristic waste," or based on the wastegenerator's knowledge of the process or materialused to produce the waste, or sampling results,the waste could be classified as hazardous.

Hazardous Waste Storage - Hazardous wastestorage is defined by the RCRA rules as themeans of holding hazardous waste for atemporary period, prior to treatment, disposal, oradditional storage. While the definition of storageis broad, it also specifically distinguishes storage,which is temporary, from treatment and disposal,which both result in permanent changes to ahazardous waste. Anyone storing hazardouswaste has to comply with the federal RCRAstorage rules, which require storage facilities to bepermitted. In addition, RCRA strictly regulatesseveral types of hazardous waste storage,including storage in containers, tanks,containment building, surface impoundments, andwaste piles.


Notes



A Large Quantity Generator (“LQGs”) or a SmallQuantity Generator (“SQGs”) may storehazardous wastes on-site without a storage permitprovided that the generator complies withRCRA’s accumulation rule. While theaccumulation rule sets forth requirementsapplicable only to LQGs or only to SQGs, the rulealso requires both types of generators to complywith the following requirements:

• EPA ID number. All generators whogenerate more than 100 kg ofhazardous waste per month arerequired to have an EPA identification(ID) number.

• Identification and labeling. Allcontainers and tanks must be markedwith the date that the storage periodbegan, and be labeled with the words“Hazardous Waste."

• Preparedness and prevention plan.Generators have to have apreparedness and prevention plan thatdetails what emergency equipment andresponse teams are available torespond to a fire, explosion, or releaseof hazardous waste.

A LQG may accumulate hazardous waste on-sitefor up to 90 days without a storage facility permitif, in addition to the general requirements, theLQG complies with the following:

• Storage standards. To storehazardous waste, the generator needsto meet the federal containerhazardous waste storage tank orcontainment building standards.

• Contingency plans. LQGs arerequired to have a written contingencyplan. A contingency plan specifieswhat actions must be taken in responseto a fire, explosion, or release ofhazardous waste.


Notes



• Employee training. LQGs areresponsible for training employees toproperly manage hazardous wastegenerated on-site.

• Biennial report. LQGs that ship wasteoff-site for treatment, storage, ordisposal are responsible for submittingthe federal biennial report to stateenvironmental authorities.

Hazardous Waste Accumulation - Generators ofhazardous waste are responsible for removing thewaste from their site to a permitted Treatment,Storage and Disposal Facility (TSDF”), beforespecific volume and time limits are exceeded. Thespecific limit is dependent on several factors,chiefly how much waste is generated within amonth. Accumulation time limits give a generatora period in which storage of hazardous waste isallowed without a permit. The categories ofhazardous waste generators and the allowedaccumulation time are as follows:

• Large Quantity Generators (“LQGs”),that are generating more than 1,000kilograms (kg) of hazardous waste ormore than 1 kg of acutely hazardouswaste per month, may accumulatewaste for up to 90 days without astorage facility permit. However, totake advantage of the 90-day permit-free accumulation time period, theLQG has to meet specific on -sitestorage requirements.

• Small Quantity Generators (“SQGs”)are those generators producing morethan 100 kg, but less than 1,000 kg ofhazardous waste, and less than 1 kg ofacutely hazardous waste per month.SQGs are allowed to store hazardouswaste on-site for up to 180 days.

• Conditionally Exempt Small QuantityGenerators (“CESQGs”) generate lessthan 100 kg of hazardous waste, or 1


Notes



kg of acutely hazardous waste, and arenot subject to any specific time limits.However, they may not accumulatemore than 1kg of acutely hazardouswaste or more than 1,000 kg ofhazardous waste at any time.

Satellite Accumulation. LQGs may accumulate55 gallons of any hazardous waste, or one quartof acutely hazardous waste, in containers orcontainment buildings that are away from thegenerator's main storage area for an unlimitedamount of time, if certain storage rules are met.

Hazardous Waste Disposal - RCRA has extensiverules and restrictions covering the disposal ofhazardous waste, which include disposal facilitypermit requirements and land disposalprohibitions. Disposal of hazardous waste isdefined by RCRA as "the discharge, deposit,injection, dumping, spilling, leaking, or placing ofsolid or hazardous waste into any land or water sothat such solid or hazardous waste or anyconstituent thereof may enter the environment orbe emitted into the air or any waters, includinggroundwaters.”

In order for the RCRA hazardous waste rules tobe applicable to a particular substance, thesubstance must first be identified as a "hazardouswaste." Generators must first determine whetherits generated material is, a "waste", secondly, a"solid waste", and, thirdly, a “hazardous waste."There are two methods for making this thirddetermination. The substance may be a "listed"waste, that is, one of hundreds of substances thatthe EPA has placed on a list of hazardous wastes.Alternatively, the substance may be a"characteristic" hazardous waste, that is, one thatthrough testing exhibits any of the following fourhazardous waste characteristics: ignitability,corrosivity, reactivity, or toxicity.

Hazardous waste management standardsestablished by regulation are dependent upon thevolume of hazardous waste generated at thefacility. In general, hazardous waste generators


Notes



must identify waste as hazardous, obtain an EPAidentification (ID) number, store the hazardouswaste properly on-site, package the hazardouswaste for shipment off-site, manifest the shipment,develop and maintain a contingency plan, trainemployees who manage hazardous waste,complete biennial reports, minimize the amount ofhazardous waste generated and reduce thetoxicity of the hazardous waste.

Solid Waste - Solid waste, as defined by RCRA,is a much broader term than it might seem. In thiscontext, "solid" can include liquid-like substancesand even gases. Whether a material is solid hasmore to do with its method of disposal than withits appearance. If the waste is treated, stored ordisposed of (in the sense of being trucked away,burned, etc.), it is probably regulated underRCRA as a solid waste no matter what it lookslike.

For a substance to be a ‘waste,’ it must be in theprocess of being disposed of. Disposal is a verybroad term. Under RCRA, disposal means thedischarge, deposit, injection, dumping, spilling,leaking, or placing of any solid waste orhazardous waste into or on any land or water, sothat such waste or any constituent of the wastemay enter the environment or be emitted into theair, or discharged into any waters, includinggroundwaters. Under this definition, virtually anydisposition, even passive storage in somecircumstances, can constitute disposal.

RCRA separates wastes into two broad categories- hazardous and non-hazardous. Non-hazardouswastes are regulated under RCRA Subtitle D,while hazardous are regulated wastes underRCRA Subtitle C.

Non-hazardous (solid) waste is most oftendisposed of in landfills, which for years wereregulated by state, county, and local requirementsrather than federal rules. However, EPA's 1991solid waste landfill rules established federalstandards that required compliance by allmunicipal solid waste landfills by October 1993.


Notes



Each state was responsible for implementing thesenew federal requirements.

Used oil - RCRA requires the EPA to establishstandards for recycled used oil that will protectpublic health and the environment, and at thesame time, not discourage used oil recycling. OnSeptember 10, 1992, the EPA issued its final ruleon recycled used oil management standards.Primarily, the management standards apply toused oil generators, transporters, marketers,processors, and re-refiners. These managementstandards include storage and release responserequirements, tracking and recordkeepingrequirements, and bans on certain practices thathave caused contamination problems (road oilingand the storage of used oil in non-permittedsurface impoundments).

Used oil is any oil that is refined from crude oil,or any synthetic oil, that has been used, and as aresult of use, is contaminated by chemical orphysical impurities. Excluded from the used oilmanagement regulations are:

• mixtures of used oil and diesel fuelmixed by the generator or an"aggregation point” for use in theirown vehicles

• used oil that contains more than 50ppm polychlorinated biphenyls(PCBs), which is regulated under 40CFR 761

• used oil that is to be introduced intocrude oil or natural-gas pipelines, andis regulated only until the point whereit is introduced into the pipeline

• used oil produced on vessels fromnormal shipboard operations

• wastewater contaminated with deminimis quantities of used oil

Recycled used oil is defined as any used oil that isreused following its original use, for any purpose,including the purpose for which the oil


Notes



was originally used. Oil that has been re-refinedor reclaimed, burned for energy recovery, orreprocessed is also recognized as having beenrecycled. The majority of used oil recyclinginvolves processing the used oil into fuel to beburned for energy recovery.

All generators, processors, re-refiners,transporters, and collectors of recycled used oilare affected by the used oil managementstandards, with the exception of some categoriesof minor used oil generators.

Depending on the concentration of pollutants,used oil burned for energy recovery, and any fuelproduced from used oil by processing, blending,or other treatment, can either be "off-specificationused oil," or "specification used oil." Eachclassification is subject to a different level ofregulation.

Generators of used oil must keep storage units ingood condition, label storage tanks and containers"used oil," clean-up spills or leaks, and use atransporter with an EPA ID number. Generatorscan store used oil in tanks and containersregulated under RCRA. Used oil cannot bestored in a surface impoundment, unless it is apermitted hazardous waste impoundment.

All aboveground tanks or containers that are usedmust be in good condition and be properly labeledas "used oil.” Generators must ensure that alltanks and containers are free of any visible spillsor leaks, as well as structural damage ordeterioration. If used oil is stored in anunderground storage tank (“UST”), that USTwould have to comply with the standards forUSTs. Fill pipes that transfer used oil into USTsmust be marked clearly with the words "usedoi1."

The EPA has decided that used oil filters do nothave to be treated as hazardous waste providedthat the oil is drained from them, and the filter isnot plated with terne (an alloy of tin and lead).


Notes



Used oil filters must be properly drained in orderto fit into the exemption. The EPA requires thatfilters remove used oil by either puncturing thefilter anti-drain back valve or the filter dome endand hot-draining, hot-draining and crushing,dismantling and hot-draining or any otherequivalent hot-draining method that will removeused oil.

Management of Hazardous Materials: Shipyards usemany types of materials and chemical products that arepotentially hazardous to human and/or environmentalhealth. Examples include paints, thinners, petroleumproducts, abrasive blast media, solvents, adhesives,resins, compressed or liquefied gasses and many others.To ensure that these types of materials are managed insuch a manner so as to minimize their hazards, bothsafety and environmental agencies have promulgatedregulations regarding these substances. These regulationsgenerally are concerned with how to store and managehazardous materials on-site, train workers on the properhanding of hazardous materials, plan for hazardousmaterials accidents, and report releases of hazardousmaterials to the proper authorities.

Uniform Fire Code - The Uniform Fire Code(“UFC”) is a model code setting constructionstandards for buildings and pertaining fixtures, inorder to prevent or mitigate hazards resultingfrom fire or explosion. Each regional associationof fire chiefs publishes its own fire code (forapplication within the region) and updates itperiodically. Since each local fire jurisdictionadministers its own fire code and may adopt theUFC, whole or in part, by ordinance, it takes timefor amendments to the UFC to come into force.Local fire codes often contain some articles fromearlier versions of the UFC, or may excludecertain provisions, and/or include unique localelements.

Part VII of the UFC addresses "special subjects"such as cryogenic fluids, flammable andcombustible liquids, and hazardous materials.Many of these subjects cover hazardous and toxicsubstances and their uses. The two most


Notes



important sections, or “Articles,” that regulatehazardous materials are Article 79 and Article 80.

Article 79 regulates the storage, handling and useof flammable and combustible liquids. Theseliquids must have warning signs, their containersmust be compatible with their contents, andincompatible substances must be segregated.Tanks must be properly vented, sprinkler systemsmust be installed in buildings used for chemicalstorage or application, and safe chemical mixingand onsite transportation practices instituted.

Article 80 addresses hazardous materials. ThisArticle regulates the manufacture, storage, onsitetransportation and use of these materials. Fireagencies can require facilities to separateincompatible materials and place materials in areasthat do not present a fire or life hazard. ThisArticle also requires hazard identification signsand procedures for spill responses.

OSHA Hazard Communication - The OSHAHazard Communication Standard (“HCS”) is notan environmental regulation per say, having as itsmain purpose the protection of worker health andsafety. However, this regulation containsnumerous hazardous material managementrequirements and can therefore play a significantrole in the facility’s pollution prevention program.

The purpose of the HCS is to ensure thatemployers understand, and inform employeesabout, the particular hazardous substances in theirworkplace, the health risks associated with them,and how to take protective action. If employeesunderstand the hazards and risks associated withchemical products, they are more likely to managethe material in such a manner that also protectsthe environment.

HCS requires that companies maintaininformation regarding the chemicals and chemicalproducts used at the facilities. This information isprovided in the form of a Material Safety DataSheet (“MSDS”) that contains


Notes



specific data regarding hazards, chemical andphysical properties, health risks and responseprocedures. The MSDS is also an importantdocument for meeting many environmentalreporting requirements, as the MSDS providesmuch information regarding the specific chemicalconstituents of materials used on-site.

OHSA requires that employers provide training atthe time of an employee’s initial assignment, andwhenever a new hazard is introduced into thework area. This training is intended to providethe workers with very specific informationregarding the chemical products with which theywork. Effective training in - how to read anMSDS, understand chemical product labels,recognize chemical risks and use protectivemeasures - will help ensure protection ofemployees as well as the air, land and water.

Emergency Planning and Response - The term"emergency planning and response," as used inenvironmental regulations, is both a specific termthat refers to extremely hazardous substancesunder the Emergency Planning and CommunityRight-To-Know Act (“EPCRA”) and SuperfundAmendments and Reauthorization Act (“SARA”),and a general term that refers to emergencyplanning and preparedness requirements coveringother hazardous wastes and substances.

Emergency planning requirements under SARATitle III are primarily directed to the state andlocal authorities. SARA Title III requiresfacilities to notify state and local agencies if at anyone time the facility has an extremely hazardoussubstance on-site in a quantity greater than itsthreshold planning quantity. A facility is alsocovered under SARA Title III if it releases anyreportable quantity of an extremely hazardoussubstance, or a CERCLA hazardous substance.Some states may require additional facilities toparticipate in the emergency planning process.


Notes



RCRA Contingency Planning. Generators ofhazardous waste are required to plan and preparefor accidents or spills during the transport,management and storage of hazardous waste ontheir site. A contingency plan is the documentthat sets out how a generator, treater, storer, ordisposer of hazardous waste will respond to anemergency at its facility. In addition to acontingency plan, hazardous waste generatorsmust also complete a preparedness and preventionplan, which details what response equipment andpersonnel will be available in the event of a fire,explosion, or release involving hazardous waste.

Spill Prevention, Control, and Countermeasure(SPCC) Program. The SPCC Program wasimplemented by the EPA in 1973 under the CleanWater Act. SPCC plans focus on procedures toprevent and control oil spills. The SPCCregulations require a regulated facility to preparea written spill contingency plan within six monthsafter operations commence. The facility mustimplement the plan no later than 12 months afteroperations commence. The facility notifies theEPA that the SPCC plan has been prepared, keepsthe plan on file, and makes it available for reviewby the EPA. SPCC plans have to be certified by aregistered professional engineer and preparedfollowing good engineering practices.

With few exceptions, all shipyard facilities aresubject to the requirement to prepare a SPCCplan and implement the required elements of theplan. The SPCC plan must be amended wheneverthere is a change in the shipyards design,construction, operation, or maintenance whichsubstantially affects the potential for an oildischarge. The SPCC plan amendment must beimplemented as soon as possible, but not laterthan six months after the change occurs.

The SPCC plan must be reviewed at least onceevery three years and amended to include moreeffective prevention and control technology to


Notes



reflect any significant changes in the facility'sdesign, construction, operation. or maintenancewithin six months of the change.

A civil penalty may be imposed for up to $5,000per day for each violation for failure to prepare aSPCC plan, have the SPCC plan and amendmentscertified by a registered professional engineer,implement the SPCC plan, submit appropriateinformation following a reportable spill, amendand implement the plan as required by the EPAregional administrator, amend the plan afterchange in facility design and/or review the planevery three years and amend if required.

Toxic Chemical Release Reporting - TheEmergency Planning and Community Right-to-Know Act (“EPCRA”) is an important law thathas resulted in numerous regulatory requirementsthat affect almost all shipyards in their use andstorage of hazardous chemicals. EPCRA isactually Title III of the Superfund Amendmentsand Reauthorization Act (SARA) of 1986, alsoknown as SARA Title III.

Under EPCRA, there are provisions foremergency planning procedures and requirementsfor companies to report the presence of hazardouschemicals in the workplace to certain state andlocal authorities. The Act is administered by theEPA and state and local agencies, and is intendedto provide the public and local governments withinformation concerning potential chemical hazardsin their communities.

In addition to the federal rules, nearly every statehas its own community right-to-know regulations,along with separate reporting forms, and state andlocal regulatory agencies.

One section of EPCRA (Section 313) requiressubject facilities to submit a Toxic ChemicalRelease Inventory Report (Form R) each year tothe EPA. The purpose of the reportingrequirement is to inform the public andgovernment officials about releases of specified


Notes



toxic chemicals to the environment, assist thegovernment, researchers, and the public in theconduct of research and data gathering, and to aidin the development of appropriate regulations,guidance, and standards. This reportingrequirement is often referred to as section 313reporting because it is from section 313 ofEPCRA. The EPA has identified 300 toxicchemicals that are subject to this yearly reportingrequirement. Shipyards commonly store and usemany of the chemicals for which reporting may berequired, including chemicals in marine coatingssuch as metals and solvents.

Release Reporting - Many federal and state lawsrequire timely reporting of releases of varioussubstances. Failure to report certain spills canresult in substantial penalties imposed on both thefacility and its employees.

The initial release notification is usually requiredimmediately, or within 24 hours of knowledge ofthe release. In some cases, follow-up writtenreports are also required.

A release of a CERCLA hazardous substance, inquantities equal to or greater than their reportablequantity, must be immediately reported to theNational Response Center. Such release is alsosubject to state and local reporting under EPCRA.EPCRA requires that releases of a reportablequantity of a hazardous substance (CERCLA), orextremely hazardous substance, must be reportedto the state emergency response commission(SERC) for each state likely to be affected by therelease. Notice is also provided to the communityemergency coordinator for the local emergencyplanning committee (LEPC) of any area affectedby the release. If the release is a CERCEAhazardous substance, the NRC must also benotified. Notice is required immediately upondiscovery of the release.

EPCRA's emergency notification requirementscover facilities that produce, use, or storehazardous chemicals as defined by OSHA's hazardcommunication standard, as well as any


Notes



release of a hazardous substance or extremelyhazardous substance in excess of the reportablequantity.

The Clean Water Act requires immediatenotification when there has been any discharge ofoil into or upon navigable waters or adjoiningshorelines that is not authorized by a permit. Anyoil spill has to be reported if it violates waterquality standards, or causes a sheen ordiscoloration of the surface water or adjoiningshorelines, or causes a sludge or emulsion to bedeposited beneath the surface of the water orupon adjoining shorelines.

The NRC must be notified if more than thereportable quantity of a RCRA hazardous waste isreleased. Many of these wastes are contained onthe CERCLA list. If a waste is on the CERCLAlist, the CERCLA reportable quantity applies. Ifthe waste is not on the CERCLA list. but exhibitsthe characteristics of a hazardous waste,(ignitable, corrosive, reactive, toxic) thereportable quantity is 100 pounds.

Under RCRA, UST owners or operators arerequired to report a suspected release from a tankwithin 24 hours to the EPA or designated stateauthorities (if the state is authorized by the EPAto administer its own UST program). In addition,the EPA requires notice of any spills or overfillsof petroleum tanks in excess of 25 gallons thatcauses a sheen on surface water, or spills orhazardous substances in excess of its reportablequantity under CERCLA Superfund.

Special Pollutants: Several different types of hazardousmaterials are specifically regulated by the EPA and/orother agencies. Three of these special pollutantscommonly encountered in shipyard repair andconstruction work include polychlorinated biphenyls(“PCB”), asbestos and lead based paint. Thesesubstances are regulated by both occupational andenvironmental health and safety perspectives.

PCB - Polychlorinated Biphenyls (“PCB”) are aclass of chemical compounds that may be found


Notes



in a number of situations in the shipyard,particularly on ongoing repair operations.Additionally, PCBs may be found in electrical(and other) equipment in the shipyard facility.Most manufacture and distribution of PCBs hasbeen phased out over the last twenty years. As aresult, most of the regulatory requirements thatshipyards must comply with deal with storage anddisposal.

Generators, transporters, brokers, storers, anddisposers of PCB wastes are now required tocomplete a manifest for “cradle-to-grave" trackingof PCB wastes containing more than 50 parts permillion ppm) PCBs.

The manifest system is similar to the hazardouswaste manifest tracking system under RCRA.The PCB tracking system requires use of theRCRA manifest forms, and completionrequirements follow the RCRA system closely(including retention of manifest records, manifestdiscrepancies, unmanifested waste reports, andexception reports).

The PCB manifest system also requires that theowner or operator of the disposal facility preparea Certificate of Disposal for the PCBs and PCBitems disposed of at the facility. The disposalfacility must keep a copy of the Certificate, send acopy to the generator, and a copy to anycommercial storer. These copies must be kept forthree years.

Asbestos - Federal asbestos regulation is dividedamong a number of agencies, including the EPA,OSHA, and DOT. Many states have alsoimplemented more stringent regulations governingasbestos.

The EPA administers and enforces regulationsunder National Emission Standards for HazardousAir Pollutants (“NESHAP”) rules that controlasbestos manufacturing, building renovation anddemolition activities, as well as asbestos emissionsresulting from asbestos waste disposal andprocessing. The EPA must be


Notes



notified whenever demolition or removal takesplace, including onboard ships. If the amount offriable (crumbly) asbestos is less than 260 linearfeet on pipes or 160 square feet on other facilitycomponents, the notice may be in any abbreviatedform. During the removal or renovation project,the EPA requires that specific procedures befollowed to prevent particulate asbestos materialemissions to the outside air.

The EPA also has regulations proscribing thedisposal of asbestos. All asbestos-containingwaste material must be deposited as soon as ispractical by the waste generator at an approvedwaste disposal site. Vehicles used to transportasbestos-containing waste material must bemarked during the loading and unloading of wasteso that the signs are visible. For all asbestos-containing waste material transported off thefacility site, the shipyard must maintain wasteshipment records similar to the form contained inthe regulation. The shipyard must also provide acopy of the waste shipment record to the disposalsite owners or generators at the same time as theasbestos-containing waste material is delivered tothe disposal site, and retain copies of all wasteshipments for at least two years.

OSHA's shipyard standard for asbestos regulatesall shipyard work, including the demolition ofsalvage of structures and vessels, removal orencapsulation of materials, construction,alteration, repair, maintenance or renovation ofvessels and structures, installation of asbestosproducts, clean-up of asbestos spills andtransportation, disposal, storage, and containmentof products containing asbestos at a constructionsite.

Storage Tanks: Tanks used to store hazardoussubstances or petroleum products are subject to a varietyof federal rules and regulations governing variouselements ranging from construction standards,monitoring, and removal. The types of regulatoryprograms that tanks can be subject to are generally


Notes



divided as to the placement of the tank above ground orunderground. It is important to note that the terms aboveground and underground have regulatory definitions thatcan be confusing in some tank placement situations. Thatis to say, while a tank may appear to be above ground, itmay actually be defined as an underground tank. Acorrect interpretation of the definitions is vital tounderstanding which set of regulatory requirements applyto any particular tank.

Underground storage tank requirements - theEPA's underground storage tank (UST)regulations apply to any person who owns oroperates a UST or UST system. Both ownersand operators are responsible for complying withthe technical design and constructionrequirements, financial responsibilityrequirements, and corrective action requirementsspecified in the federal statute and rules. Allfederally regulated USTs must be registered, meetleak detection requirements and meet upgraderequirements (i.e., spill, overfill, and corrosionprotection) by December 22, 1998.

In addition, owners and operators must meetfinancial responsibility requirements, perform asite check and corrective action in response toleaks, spills, and overfills, replace or close USTsthat do not meet the upgrade requirements byDecember 22, 1998, follow regulatory rulesduring installation of new tanks, maintain recordsas required, and have periodic checks performedon corrosion protection and leak detectionsystems.

Several categories of full or partial exemptionsand exclusions from the underground tankregulations are provided by the EPA. These listsshould be consulted to determine whether anexemption or exclusion is applicable to anyspecific tank. For example, USTs that are used tohold hazardous waste and are regulated underRCRA, or USTs used in a water treatmentsystems that are regulated by a NPDES permit areexcluded from the underground storage tanksregulations.


Notes



There are specific requirements regarding thedesign, construction and installation of bothexisting and new petroleum and chemical tanks.Existing USTs must be protected from spills,overfills, and corrosion by December 1998.When new USTs are installed, they are requiredto have leak detection and protection from spills,overfills, and corrosion. All tanks and piping haveto already have leak detection.

In regard to petroleum tank corrosion protection,existing tanks may be constructed of either coatedand cathodically protected steel or fiberglass.Additionally, a steel tank clad with fiberglass, ortanks fitted with an added cathodic protectionsystem, an interior lining, or a combination ofinterior lining and cathodic protection may beused.

New petroleum tanks must be constructed ofeither coated and cathodically protected steel orfiberglass, or be a steel tank clad with fiberglass.

By December 1993, all USTs should have met thefederal leak detection requirements. The oldesttanks, which are the most likely to leak, had theearliest compliance deadlines. The EPA hasidentified the following leak detection methodsthat UST owners and operators can use to meetthe federal requirements for detecting leaks fromportions of both tanks and piping that routinelycontain product. These methods includegroundwater monitoring, vapor monitoring,secondary containment with interstitial or internalmonitoring and automatic tank gauging systems.

If a underground tank leaks, the owner/operatormust respond to contain and stop the release.Additionally, notification of the release must bemade to the proper regulatory authorities. If soilor groundwater has been contaminated as a resultof a UST release, corrective activities mustusually be taken to mitigate any environmentaldamage.


Notes



Recordkeeping is an important part of the USTregulatory requirements. UST owners andoperators must maintain records on monitoring,cathodic protection, installation, release detectionequipment calibration, maintenance, repairs, andclosures. UST owners must also report on initialrelease abatement, initial site characterization, freeproduct removal, clean-up, investigation, andcorrective action. Records of testing results forany cathodic protection system, leak detectionperformance, and upkeep, repairs, and siteassessment results at permanent closure must bekept for at least three years.

If the tank has not been used for a period of 12months or more, the owner or operator mustcomply with permanent closure requirements.The owner or operator must notify authorities 30days before closure, determine if leaks from thetank have damaged the environment (if there isdamage, the owner or operator may be requiredto take corrective actions), and empty and cleanthe tank. In most instances, a closed tank isremoved from the ground. If the tank is left in theground, it must be filled with an inert materialsuch as sand.

Air Quality Permitting: Currently there are threefederal air permit programs under the Clean Air Act(CAA). Two of the federal permitting programs(preconstruction review and prevention of significantdeterioration) are a part of the New Source Review(NSR) program. These air emissions permits have to beobtained prior to construction or modification of a majorsource of air pollution. The third program, Title V’soperating permit program, is not part of the NSRprogram. A Title V operating permit will be issued afterthe completion of construction of a major source of aregulated air pollutant.

New Source Review Permitting - The NSRprogram was established by the 1977 amendmentsto the CAA and applies to major new sources ofair pollution and modifications that cause asignificant increase in emissions at existing majorsources. Under this program,


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there are two types of permits: a preconstructionreview permit for non-attainment areas, and aPSD permit for attainment areas.

• The preconstruction review permit.Preconstruction review permittingprograms only affect non-attainmentareas for one or more of the federalcriteria pollutants. This permit isissued either by EPA or by the stateenvironmental agency prior toconstruction or modification of amajor source.

• The prevention of significantdeterioration (PSD) permit. PSDpermits only apply to geographicalareas that are in attainment withfederal standards for criteriapollutants. This permit is issued by theEPA or by the state environmentalagency prior to construction ormodification of a major source.

The Title V operating permit - Title V's operatingpermit program applies to all major sources ofregulated air pollutants. Title V regulations havebeen completed by the EPA on the federal level,but are still in the process of being developed onthe state level. Once the EPA approves a state'sTitle V operating permit program, that state'senvironmental agency will administer and enforcethe Title V operating permit program.

Hazardous Air Pollutants and NESHAPs -Hazardous Air Pollutants (“HAP”) are thosepollutants identified in the Clean Air ActAmendments (“CAAA”) that when emitted intothe air have the potential to cause acute and/orchronic human health effects. The EPA is taskedwith establishing National Emission Standards forHazardous Air Pollutants (“NESHAP”) thatestablish standards for HAP emissions on apollutant by pollutant basis. The Clean Air ActAmendments of 1990 changed this regulatoryapproach. The CAAA now requires the EPA toissue standards, over a 10 year period, regulating


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emissions of 189 toxic air pollutants on industrysector basis. Shipbuilding and repair is one of theindustry sectors for which the EPA was required todevelop emission standards.

The shipbuilding and repair industry HAP emissionstandard was promulgated in the form of aMaximum Achievable Control Technology(“MACT”) rule. The rule would limit the volatileorganic hazardous air pollutants (VOHAP)content of several categories of marine coatings,and specify work practices that minimizeevaporative emissions and spills from thehandling, transfer, and storage of organic thinningsolvent and paint wastes.

Compliance with the hazardous air pollutants(HAP) rule would be determined using thevolatile organic compounds (VOC) content of thecoating as a surrogate for the VOHAP content.Shipyards must submit reports demonstratingcompliance, or in the case of noncompliance,reports demonstrating the extent and cause(s) ofviolation. Reports will contain much but not allof the information kept in a facility's records, andshall be submitted every 6 months following thecompliance date.

Water Quality: Water quality regulations affect shipyardoperations in many ways. The disposal of industrialwaste water from the shipyard to the surface waters, orto the industrial waste water sewer, will be subject toimportant environmental requirements. Pollutantdischarges to the waters are regulated through a NationalPollution Discharge Elimination Permit. Discharges tothe industrial waste water sewer are regulated through anIndustrial Waste Water Disposal Permit. The purpose ofthe permits are to eliminate, or reduce to the maximumextent possible, the discharge of pollutants to the watersof the United States. By this process, it is envisioned thatpolluted water bodies will be cleaned-up and clean waterbodies will not be degraded.

NPDES Permitting - Any pollutant-containingwastewater that is discharged into waters of theUnited States is probably subject to the National


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Pollutant Discharge Elimination System (NPDES)program. The NPDES program requiresdischargers to obtain permits from the EPA, orfrom their state, if their state is authorized by theEPA to administer the program.

The NPDES permit establishes what may bedischarged and at what levels. After it is issued,the owner or operator will be required to complywith its conditions, including compliance witheffluent standards for toxic pollutants. It also willrequire the owner or operator to maintain records,to perform monitoring, and to properly operateand maintain all treatment and control systems.Monitoring information will usually be recordedon a Discharge Monitoring Report (DMR).

Effluent limitations represent the maximumquantity, rate, and concentration of specificpollutants allowed to be discharged fromindustrial point sources, such as shipyards, intoU.S. waters.

Federal regulations define effluent limitations as:“Any restriction established by a state or EPA onquantities, rates, and concentrations of chemical,physical, biological, and other constituents whichare discharged from point sources into navigablewaters, the waters of the contiguous zone, or theocean.”

Effluent limits are typically embodied in a federalor state NPDES permit and proscribe numericalconcentration limits of specific chemicalconstituents. The limits may be expressed asinstantaneous or time-weighted averageconcentrations. Monitoring of waste waterdischarges must be performed on a regular basisto determine if the shipyard discharges are inconformance with the effluent limits. Testingresults are reported to the appropriate agency forreview, and possible corrective action ifwarranted.

In addition, the permit will require the owner oroperator to provide information and access for


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inspections and sampling on request to thepermitting agency.

Permit violators are subject to civil penalties of upto $10,000 per day of violation. Willful ornegligent violations are punishable by fines of upto $25,000 per day, and/or imprisonment for upto one year.

Stormwater Permits. Stormwater dischargesresult when pollutants on land are washed intosurface waters by rain, snow melt, or other formsof precipitation. These are referred to in theregulations as "non-point-source discharges."Stormwater discharges are distinguished frompoint-source discharges, which are dischargesfrom industrial activities directly into surfacewaters.

Many types of industrial facilities are required toobtain either federal or state NPDES permits todischarge stormwater. The largest number ofregulated facilities are those associated withindustrial activity. Regulated industrial facilitiesare identified either by their Standard IndustrialClassification (SIC) code number or by a generaldescription in the rule. Shipyards are one of thelisted SIC code categories which are required tohave storm water discharge permits.

There are two types of stormwater NPDESpermits: individual permits and general permits.There are three different general permits: 1)general permit for industrial activities; 2) generalpermit for construction activities, and 3) multi-sector general permit for industrial activities. Themulti-sector permit for industrial activities areapplicable to industry sectors (including the shipbuilding and repair industry) that are located instates that are not authorized by the EPA toadminister the NPDES permit program, and aretherefore subject to federal jurisdiction. Infederally authorized states, most shipyards aresubject to the requirements of a general industrialactivities permit issued by a state or local agency.


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Storm water permits contain several commonelements including requirements for the facility toprepare a Storm Water Pollution Prevention Plan(“SWPPP”) that identifies actual and potentialsources of storm water pollution at the facilities.Once the sources of pollution have beenidentified, the facility develops and implementsBest Management Practices (“BMP”) designed toreduce the level of pollutants to the maximumextent practical.

In addition to instituting BMPs, most facilities arerequired to implement a program of sampling andmonitoring their stormwater discharges forpollutants likely to be discharged from the site.This information can then be used to determinethe effectiveness of the BMPs in reducing thepollutant load to stormwater.

Significant civil and criminal penalties exist forviolations of the Clean Water Act requirements ofdischarges of storm water, including penalties ofup to $25,000 per day of violation. Additionally,the Clean Water Act allows citizens to filelawsuits against companies to enforce the statue,regulations and permit conditions.

Industrial Waste Water Permitting - Industrialwaste water discharges to a Public OwnedTreatment Works (“POTW”) are subject torequirements imposed by the local waste watertreatment agency. These requirements arederived from the fact that the discharges from thePOTW after treatment must meet EPAlimitations. To ensure that the POTW cancontinue to meet the federal standards, and thatits treatment system is not “upset” by certaintypes of potential discharges into the system,discharge permits are issued to the system users.

Pretreatment is the method by which industrialdischargers treat their wastewater beforedischarging it into a POTW. POTWs include anysystem used in the storage, treatment, recycling,and reclamation of municipal sewage or industrialwaste in liquid form. It includes pipes,


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sewers, and conveyances if they are used toconvey wastewater to a POTW treatment plant.

The twofold objective behind the establishment ofpretreatment standards is to ensure that pollutantsare not discharged into the systems, which wouldeither "interfere" with the POTW’s functioning, orwould allow pollutants to "pass through" withoutfirst receiving appropriate pretreatment.

A pass through is defined as a discharge from thePOTW into waters of the United States, whicheither because of quantity or concentration,causes the POTW to violate its National PollutantDischarge Elimination System (NPDES) permit.An interference is defined as a discharge whichinhibits the POTW, its treatment process, or itssludge processes, use, or disposal.

Pretreatment standards can be divided intoprohibited discharges and categorical prohibitions.Prohibited discharges apply to all sources. Thecategorical prohibitions are additional standardsthat apply to particular industries.

The EPA has compiled a list of substances thatare specifically prohibited from being introducedinto POTWs. Prohibited discharges are applicableto all industrial dischargers.

Prohibited discharges into a POTW includepollutants that: (1) create a fire or explosionhazard; (2) cause corrosive structural damage tothe POTW; (3) solid or viscous pollutants thatwould obstruct the flow in the POTW and causean interference; (4) petroleum oil, or products ofmineral oil origin in amounts that will causeinterference; (5) pollutants which result in thepresence of toxic gases, vapors, or fumes withinthe POTW in a quantity that may cause acuteworker health and safety problems; (6) anytrucked or hauled pollutants, except at dischargepoints designated by the POTW; (7) heat thatwould inhibit biological activity in the POTW,causing an interference; and, (8) any pollutant


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released at a flow rate or concentration thatwould cause an interference.

The federal rules specify that dilution is not anacceptable form of pretreatment, unless expresslyauthorized by an applicable pretreatmentstandard.

Categorical standards are additional industry-specific prohibitions. The EPA has notestablished industry specific prohibitions forshipyards at this time. Shipyards must thereforebe in compliance with the requirements forprohibited discharges and any substance specificlimitations imposed by the POTW that receives itswaste water.

Emergency Response: When oil or a hazardous materialis spilled or discharged into the environment animmediate response is required to contain and remove thematerial. To ensure that a facility is properly prepared torespond to an accident, both the U.S. Coast Guard andthe EPA have requirements for response planning andtraining that affect shipyards. The Coast Guardrequirements generally pertain to vessel operations andfacility to/from vessel transfers of oil and/or hazardoussubstances. The EPA requirements pertain to thoseshipyard operations and/or processes that are consideredto be “non-transportation” related. This would involveoil and hazardous substance storage tanks, facilitytransfers and pipelines.

EPA Facility Response Plans - The owner oroperator of any non-transportation-relatedonshore facility (which includes that portion ofthe shipyard not subject to Coast Guardcontingency planning requirements) that, becauseof its location, could reasonably be expected tocause substantial harm to the environment bydischarging oil into or on the navigable waters oradjoining shorelines, must prepare and submit afacility response plan to the EPA RegionalAdministrator.

The EPA defines substantial harm based on acombination of oil storage capacity and potentialenvironmental impact factors. The applicability


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standard most likely to subject a shipyard to thisrequirement is the definition of substantial harm asa facility that transfers oil over water to or fromvessels, and has a total oil storage capacitygreater than or equal to 42,000 gallons (1,000barrels). All facility response plans must beconsistent with the requirements of the NationalOil and Hazardous Substance PollutionContingency Plan and applicable AreaContingency Plans.

The EPA requires that a Facility Response Plan(“FRP”) follow the format of the model facility-specific response plan provided by the EPA inAppendix F of 40 CFR 112, unless an equivalentresponse plan has been prepared to meet state orother federal requirements. To be acceptable, theFRP must address the following elements:

• Emergency response action plan

• Facility information

• Information about emergency response

• Hazard evaluation

• Response planning levels

• Discharge detection systems

• Plan implementation

• Self-inspection, drills/exercises, andresponse training

• Diagrams (site and drainage plans)

• Security systems.

The EPA provides specific guidance concerningthe appropriate content of each of the subjectareas above. This guidance must be consultedprior to preparing the FRP and its subsequentsubmittal to the Regional Administrator.

The facility owner or operator must develop afacility response training program to train thosepersonnel involved in oil spill response activities.The EPA recommends that the training programbe based on the U.S. Coast Guard's Training


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Elements for Oil Spill Response, as applicable tofacility operations. An alternative program canalso be acceptable subject to approval by theRegional Administrator. Training includes:

• Proper instruction of facility personnelin the procedures to respond todischarges of oil, as well as applicableoil spill response laws, rules, andregulations

• Training shall be functional in natureaccording to job tasks for bothsupervisory and non-supervisoryoperational personnel

• Trainers shall develop specific lessonplans on subject areas relevant tofacility personnel involved in oil spillresponse and clean-up.

Facility response drills/exercises - The facilityowner or operator must develop a program offacility response drills/exercises, includingevaluation procedures. The EPA recommends aprogram that follows the National Preparednessfor Response Exercise Program (PREP). Analternative program can also be acceptable subjectto approval by the Regional Administrator.

Coast Guard Facility Response Plans - Responseplans are required for all marine transportationrelated (“MTR”) facilities that could reasonablybe expected to cause substantial harm, orsignificant and substantial harm to theenvironment by discharging oil into or on thenavigable waters or adjoining shoreline.

Elements of a facility response plan include:

• Qualified individual and alternatequalified individual

• Methods of ensuring the availability ofresponse resources by contract orother approved means


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• Worst case discharge - The responseplan must use the appropriate criteriato determine the volume of a worstcase discharge

• Specific Requirements for facilitiesthat could reasonably be expected tocause significant and substantial harmto the environment

• Specific requirements for facilities thatcould reasonably be expected to causesubstantial harm to the environment

• Specific response information to bemaintained on mobile MTR facilities

• Specific requirements for mobilesubstantial harm facilities aredescribed, related to maintainingrequired information at the mobilefacility

• Response plan development andevaluation criteria for facilities thathandle, store, or transport Group Ithrough Group IV oils

• Response plan development andevaluation criteria for facilities thathandle, store, or transport Group Voils

• Response plan development andevaluation criteria for facilities thathandle, store, or transport non-petroleum oils

• Training - A facility operator mustprovide training to each individualwith responsibilities under theresponse plan

• Drills - The response plan mustcontain detailed information on thetype and frequency of oil spill drills tobe conducted at the facility


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• Inspection and maintenance ofresponse records

• Submission and approval procedures -A facility’s response plan must besubmitted to the COTP for initialreview and, if appropriate, approval

• Plan revision and amendmentprocedures

Conclusions: Federal environmental requirements thatdo or may effect shipyard operations are numerous andcomplex in their scope and application. Virtually allshipyard processes in both new construction and repaircan or maybe subject to some regulatory requirement.For many of the requirements determining compliance ismore qualitative than quantitative. To ensure that theshipyard maintains compliance with the regulations it isimportant a comprehensive environmental managementplan is implemented with adequate resources toaccomplished the required goal.

The number and stringency of the environmentalrequirements will most likely increase throughout theforeseeable future.


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Additional copies of this report can be obtained from theNational Shipbuilding Research and Documentation Center:

http://www.nsnet.com/docctr/

Documentation CenterThe University of MichiganTransportation Research InstituteMarine Systems Division2901 Baxter RoadAnn Arbor, MI 48109-2150

Phone: 734-763-2465Fax: 734-763-4862E-mail: [email protected]

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