Environmental Risk Assessment Reports - Chapter 27

CHAPTER 27 Facility Risk Assessment George Anderson CONTENTS I. Introduction.................................................................................................506 II. RCRA Facility Assessments.......................................................................506 A. RCRA Compliance Assessment...................................................506 1. Determining the Type and Extent of the Assessment......506 2. Writing a Request for Proposals.......................................506 3. Contractor Selection..........................................................507 4. During the Assessment Audit ...........................................507 5. Control and Review of Rough Drafts...............................508 6. Control of the Final Report ..............................................508 7. Evaluating the Results.......................................................508 8. Addressing Deficiencies....................................................509 B. RCRA Facility Assessment..........................................................509 1. Determining the Type and Extent of the Assessment......509 2. Writing the Request for the Proposal...............................509 3. Contractor Selection..........................................................510 4. Evaluation of Proposals....................................................510 5. Offer Acceptance...............................................................510 C. Evaluation of Results....................................................................510 III. Preemptive Assessment...............................................................................511 A. Determining the Type and Extent of the Assessment..................511 1. Writing the Request for Proposal.....................................511 2. Contractor Selection..........................................................512 3. Evaluation of Proposals....................................................512 4. Accepting a Proposal........................................................512 5. The Assessment Audit.......................................................512 6. Control of the Results.......................................................512 7. Responding to the Results................................................513 IV. Conclusion..................................................................................................513 References...................................................................................................513 505 © 2001 by CRC Press LLC 506 A PRACTICAL GUIDE TO ENVIRONMENTAL RISK ASSESSMENT REPORTS I. INTRODUCTION Other chapters of this book have discussed how to assess environmental media for environmental risk. This chapter discusses how to assess a facility for potential to generate environmental risk. Three forms of assessments will be described that are required under RCRA. RCRA compliance assessment evaluates a facility for com-pliance with RCRA requirements; RCRA facility assessment evaluates the liability assumed by sending waste to an RCRA treatment or disposal facility. Preemptive assessment of one’s own property evaluates it under RCRA authority to avoid future complications under CERCLA. Compliance assessment, facility assessment, and preemptive assessment will be discussed separately because each is unique in the depth of the analysis required and the disciplines that should be involved. II. RCRA FACILITY ASSESSMENTS A. RCRA Compliance Assessment An RCRA compliance assessment of a facility is directed at protecting the environ-mental manager and other top officials from criminal liability under RCRA. U.S. EPA and many states have increasingly personalized enforcement of environmental regulations by taking criminal enforcement actions against managers responsible for perceived violations. Conducting an RCRA risk assessment demonstrates intent to comply with the law. It reinforces the environmental manager’s case for necessary changes in operations and it provides a different perspective on the facility’s oper-ations that may help identify problems that would otherwise be overlooked. 1. Determining the Type and Extent of the Assessment The extent of the evaluation of a facility is determined by the complexity of oper-ations at the site and the depth of assessment desired. However, compliance assess-ments are normally limited in their scope and cost. The types of operations at the facility will also determine the disciplines required to develop the report. Basic types of operations to consider include: treatment, storage, disposal, recycling, fuel blending, transportation, and hazardous waste gen-erator. A facility can be evaluated from two perspectives: either according to the RCRA rules, or according to the conditions of the facility permit, if the facility is permitted. The permit conditions usually remain consistent throughout the permit period. The RCRA rules, however, change constantly as do the policies that agencies use to implement those rules. 2. Writing a Request for Proposals Develop a scope of work by outlining the operations to be included in the compliance assessment and indicate the level of evaluation by listing items to be reviewed. For example an assessment might address: © 2001 by CRC Press LLC FACILITY RISK ASSESSMENT 507 · Contingency plan and emergency procedures · Waste analysis plan · Closure plan/contingent long-term care plan · Financial responsibility for liability coverage · Personnel training/records · Manifest records · Inspection records · Operating records · Security, preparedness, and prevention · Tank and container standards When setting a deadline for proposals, allow enough lead time for consultants to schedule a site visit. This may be necessary to allow them to accurately estimate their costs (see Chapter 4). 3. Contractor Selection Assemble a list of potential candidates who have demonstrated an understanding of RCRA rules and permitting. Consider how those rules apply to the facility and whether any of the contractors have specific knowledge in applicable areas of RCRA. Finally, contractor experience with the regulatory agency for the facility is a major factor. Most compliance assessment contracts are minor, so project interviews are not normally warranted. Evaluation usually involves review of the proposal offer, and possibly a follow-up telephone call to deal with any questions. In evaluating pro-posals, consider both the firm’s reputation and the project manager’s qualifications. A reputable company name carries weight with a regulatory agency, but the project manager is the most important factor in determining the quality of the report. The project manager should be proficient in areas of RCRA pertaining to the facility operation. Experience with the agency or individuals that regulate the facility is also essential. If the operating systems are complex, such as a combustion unit, the project manager should also have an understanding of how the operating system’s operation affects its performance. Although a number of firms have an understanding of RCRA, few have technical expertise on specific equipment. Additional factors to consider when evaluating the proposal include: similar project experiences, acceptable scope of work, confidentiality procedures, level of technical resources, and quality of writing. Consulting firms involved in this form of service should have a system in place to protect their clients’ confidentiality. Confirm acceptance of the consultant in a letter that restates the scope of work. Although many people do not notify the firms not selected, it is appropriate to send a short letter or make a telephone call to other candidates to notify them that they did not get the contract. 4. During the Assessment Audit When the consultant makes arrangements to inspect the facility, it is important to determine which sets of records must be available for inspection and which personnel © 2001 by CRC Press LLC 508 A PRACTICAL GUIDE TO ENVIRONMENTAL RISK ASSESSMENT REPORTS should be available for interviews. If possible, a facility management representative should accompany the auditors during the inspection. This will help insure that areas are not overlooked which pose the greatest concern to facility managers. Finally, the facility management should conduct an exit interview with the inspectors. An exit interview gives the managers an opportunity to learn of any significant areas of noncompliance and begin immediate correction of the problem. It also provides an opportunity to correct any misunderstanding of what was seen during the audit. Finally, it provides a last chance to review report confidentiality procedures with the auditors. 5. Control and Review of Rough Drafts It is important to control access to rough drafts and to edit errors out of a draft report. An outside person auditing a facility for the first time may misinterpret what they see. Unless dealt with immediately and clearly, inaccuracies and misunder-standings develop a life of their own. Therefore, they should never be left in writing. It is not the intent of the RCRA compliance assessment to allow the contracting company to edit out bad news, but false statements should be sought out, identified, and corrected as quickly as possible. Otherwise, they may someday appear in agency files as the truth. After inaccuracies have been identified and corrected, a final report should be generated and all drafts should be destroyed. 6. Control of the Final Report An RCRA risk assessment can document potential violations, so it is important to protect its confidentiality. In some cases, it can warrant having all copies protected as confidential material under the attorney/client privilege. Then, if required, access to the information may be denied to regulators. In order for a document to be protected as attorney/client privileged material, it must be created by the attorney, or at his or her direction, in anticipation of litigation. It is not sufficient to work with the contractor to generate a final report and then present it to the attorney for safe keeping. In some states, such as Minnesota, a company’s self-audits are pro-tected by a limited privilege. 7. Evaluating the Results Normally, it does not require a strong technical background to evaluate an RCRA compliance assessment. However, there are exceptions. For example, complex oper-ations, such as a combustion unit, may require technical knowledge. Even in this case, however, the consultant’s project manager should be capable of presenting the information at a level that managers can understand. Complex detail and specifics should be included in the report, but the explanation of this information should be conducted at a level that managers can comprehend. If the facility operates under a permit, two separate sets of standards can apply: the original permit limits, and whatever current rules establish. If one standard is more stringent, the stricter standard applies. Therefore, both standards should be presented in series so that they are easy to interpret. © 2001 by CRC Press LLC FACILITY RISK ASSESSMENT 509 8. Addressing Deficiencies The principal reason to conduct a RCRA risk assessment is to identify and correct problems that could lead to violations. Once problems have been identified, it is imperative to identify what is required to address each item, set a reasonable schedule for completion, and then clearly document progress toward correction. Conducting the assessment, and then addressing problems in a timely fashion, is accepted as an expression of intent to comply with the law. This helps relieve the potential of criminal negligence. Failure to do so can negate the good accomplished by conducting the assessment. It can also create a trail of knowing noncompliance under RCRA and potentially lead to criminal penalties for the managers involved. The consultant, as part of the final report, should suggest how to address the problems identified. These suggestions should be combined with alternatives gen-erated by company managers. The person that regulates the facility can also be a great help if an open relationship exists between the management and the regulatory agency. However, the decision to involve a regulator is typically a very sensitive issue. It should occur only after consultation with all appropriate managers. B. RCRA Facility Assessment An RCRA facility assessment is conducted to evaluate the liability assumed by the company by using a treatment or disposal facility to handle waste. This type of analysis is an important part of protecting the company from potential CERCLA liability. Although a facility’s RCRA compliance is important, this form of assess-ment can also include evaluations of a facility’s environmental problems, general operations, financial strength, and customer base. 1. Determining the Type and Extent of the Assessment The majority of off-site facility assessments are limited in scope. The basic intent is to evaluate the level of liability that will remain after a facility treats or disposes of your waste. This involves assessing the form of technology used, the expected longevity of the company, and if the company fails to survive, who will you share the CERCLA liability with? The assessment scope of work can be limited to an information search of readily available regulatory and financial records. This is often done from the consultant’s office. On the other hand, it may require an investigation that involves a team of auditors visiting the facility, interviewing appropriate regulatory personnel, and conducting an in-depth financial audit. The depth of this type of assessment should be related to the level liability that will be assumed. 2. Writing the Request for the Proposal Outline the factors you want assessed. This should include at a minimum, a review of their technology, a compliance evaluation, and financial screening. © 2001 by CRC Press LLC ... - tailieumienphi.vn