The Risks of Ignoring Environmental Records during Malfunction Events

It's no secret that one of the most important methods of keeping your business in compliance with regulations is to keep regular and detailed records about all your environmental aspects, including equipment parameters and production records. What many managers don't know is that these environmental records become even more important during those periods when your compliance is most at risk: shutdown, startup and malfunction (SSM) events.

When a piece of equipment suddenly starts to malfunction, or when your air emissions begin to bypass your control equipment, the last thing on your mind might be to endure taking regular readings from you monitoring equipment and environmental management system. During an SSM event you're more likely to prioritize finding a solution to the problem as quickly as possible and performing maintenance to correct the issues at hand.

But one of the wisest things you can do for yourself in any SSM event is to start taking more frequent environmental readings and dedicating a regulatory specialist to managing your compliance records throughout the entire SSM period. These records can turn out to be a life-saver after the malfunction has been addressed when it’s time to submit an affirmative defense to protect yourself from (or at least minimize) noncompliance fines.

This data is so crucial to capture because if you didn’t collect the data during the event, it can’t be recaptured and since the burden of proof lies with you, this may result in penalties.

To clarify how EPA’s affirmative defense works, it’s a malfunction report designed to protect responsible manufacturers from paying civil penalties related to air emissions and permit noncompliance due to unpreventable and unpredictable malfunctions. Under certain conditions a period of malfunction may not cost you anything if events are deemed by your regulators to be out of your control – but the burden of proof falls squarely on the shoulders of your compliance specialists.

They will need comprehensive environmental records to convince your regulators that you did everything required within an acceptable time period.

Identifying Malfunctions with Environmental Records

Pinpointing when and where a malfunction event occurs is a difficult task without detailed environmental records. This includes operational data from any sort of control equipment, which is one of the most common sources of unanticipated malfunction. Having a continuous monitoring system in place is a sound idea, even if it isn’t required by your permits. In fact, continuously monitoring control equipment parameters is the best preventative measure.

For example, a piece of control equipment like a VOC oxidizer can only operate at peak efficiency under certain operating conditions. If the temperature or gas flow rate exceeds acceptable min and max thresholds set out by our permits, your facility is considered to be in malfunction. But you might not notice any malfunction indicators until it’s too late without detailed record keeping and constant data collection.

Many businesses that have to deal with these types of compliance parameters turn to automated data collection simply to keep up. This lets you know the minute a malfunction begins, why, and for exactly how long your equipment was malfunctioning - All vital data during your affirmative defense.

Applying the Affirmative Defense

EPA only accepts affirmative defense submissions under certain conditions, several of which require specific documentation and recordkeeping procedures to be followed.

Here are some of the most important conditions you’ll use documentation to prove:

• You must have notified your regulators by phone or fax as soon as possible, and no later than two business days after the malfunction.
• The malfunction was sudden, short-term, and due to an unavoidable equipment failure.
• The malfunction was sudden, unanticipated, and could not have been prevented through proper operations.
• The malfunction was not part of a pattern of reoccurring events.
• You kept all emissions monitoring and control systems in operation, if possible.
• All actions you took to resolve the issue were properly documented and signed in your operating logs.
• You provide a written root cause analysis to find the source of the malfunction and methods to resolve the issue. You must also specify the amount of fugitive excess emissions using best monitoring methods.

It’s clear from the applicable conditions that your responsibilities during malfunctions do not just include ending the malfunction, but also ensuring that you document every action and every emission and environmental parameter.

Half the battle is getting it all down on paper. Data automation can help remove this obstacle from your compliance scenario.

Using Environmental Records in Your Affirmative Defense

If you ever find yourself needing to submit an affirmative defense, the first step is to gather all of the necessary documentation, including emission reports and equipment operation records. It can be a surprising amount of documentation that you’ll need, even for short malfunction events.  However, every claim you make will need support from concrete environmental data. That’s why everything you do and all operating parameters before, during, and after malfunctions need to be carefully documented.

Your environmental records will play an important role in demonstrating that the malfunction was not part of a noncompliance pattern. Having compliant air emission records from the last five years will show that the malfunction was an anomaly in your compliance history. Equipment records that show your control equipment regularly operating within acceptable parameters will also be needed to prove your permits are being adhered to.

Minute-by-minute equipment records can be used to show for exactly how long a malfunction occurred, which can be used to create a reliable timeline of your corrective actions and convince EPA regulators that you acted in a timely manner.

No affirmative defense is complete without a full account of the hazardous air pollutants that were released during the malfunction. Hands down, the easiest way to get this information is to collect it as the malfunction occurs rather than trying to piece together the data afterwards. That’s perhaps the top reason to continue to prioritize emissions readings and hourly recordkeeping during the malfunction period. This emission data is of upmost importance to EPA regulators: their primary concern is minimizing and quantifying your fugitive air emissions.

Although environmental and equipment monitoring can seem like the least of your worries, don’t let the urgency of a malfunction event stop you from collecting the information and data you need for a solid affirmative defense. It could be the only thing protecting you from EPA penalties.

Gary Vegh, co-founder of ERA Environmental Management Solutions, has more than 15 years of experience in providing environmental compliance software to manufacturing companies looking for solutions to comply with complex environmental regulations. Vegh graduated from Concordia University - Montreal, where he studied Chemistry/Ecotoxicology. He later moved to Raleigh, NC to work in the Research Triangle, where ERA was founded to meet the compliance needs of the local wood furnishing industry. Today the company’s clients include Volkswagen, Toyota, Nalco, Vigor & BMW.