A lot of what OTO does involves helping clients manage risks. Sometimes we do this in a reactive mode– digging up leaking gasoline tanks, capping abandoned landfills, and otherwise resolving problems that already exist. The proactive side is less obvious and dramatic (ok, and maybe a little less fun), and consists mostly of identifying potential hazards, planning how to deal with them, and helping train staff in how to respond.

Multiple Planning Requirements

There is a surprisingly large amount of this work, because many federal environmental laws and regulations include emergency planning requirements.

For example:

  • RCRA Contingency Plan for hazardous waste Generators and Treatment, Storage and Disposal Facilities (40 CFR 262.34, 264.52, 265.52, and 279.52);
  • Spill Prevention, Control, and Countermeasures plans under the Oil Pollution Act (40 CFR 112)
  • Facility Response Plans under the Oil Pollution Act (40 CFR 112.20 and 112.21); (with review and approval from EPA, Coast Guard, DOT and Department of the Interior regulators as appropriate)
  • Clean Air Act Risk Management Plan( 40 CFR part 68)
  • DOT Facility Response Plan (49 CFR part 194);
  • OSHA Emergency Action Plan (29 CFR 1910.38[a])
  • OSHA Hazwoper (29 CFR 1910.120)
  • OSHA Process Safety Management (29CFR 1910.119);


Combining Plans

Wouldn’t it be nice if you could somehow combine all of these into one plan?

Well, as it happens, you can.  This isn’t really a new thing—EPA’s guidance for “integrated contingency plans,’ sometimes referred to as the “One Plan” concept, was published in the Federal Register in June 1996 (61 FR 28641, June 5, 1996 and 40 CFR 265.54), and EPA Region 1 and the Massachusetts Office of Technical Assistance produced a demonstration model plan several years ago. The “one plan” option provides a means to combine numerous contingency plans into one living document that can address multiple overlapping (or we could say ‘redundant’) requirements. It can’t cover all of them, but it can usually cover the ones listed above.

When you consider how much of the required content of each kind of plan listed above overlaps, combining them makes a great deal of sense. At bottom, a good plan consists of four components:

  1. A description of the location/situation and risks including information such as: standard precautions; potential hazards; potential receptors; an analysis of what could go wrong; and what would happen as a result (e.g. an oil slick on a river upstream of a drinking water intake, or an anhydrous ammonia cloud over an urban area). The degree of analysis is the major variable among the various plan types, for example a SPCC or FRP requires evaluation of potential releases to water bodies, whereas the RMP is concerned principally with releases of airborne vapors or gases.
  1. Emergency contact information for facility and corporate staff, emergency response personnel, regulators, and emergency management agencies such as the Coast Guard or the Local Emergency Planning Committee;
  1. Written procedures for what facility staff should do in the event of an emergency, and
  1. Documentation of relevant things such as changes to the facility, inventories of available equipment, updates to the plan, and staff training. After all, the best plan in the world doesn’t mean much if it’s not documented.

For example….

Consider, for example, a commercial dairy processing facility located along a river—ok, milk sounds innocuous, but it’s probably more complicated than that. Animal fats can be as destructive to aquatic life as heavy fuel oils- one of the major effects of any sort of oil or fat is a huge increase in chemical and biochemical oxygen demand (COD and BOD) which depletes the oxygen level in the water to a level that fish and other critters can’t survive. Animal fats are therefore covered under the Oil Pollution Act, so a SPCC is required. It could also be the case (as it often is), that the facility has a massive refrigeration plant using anhydrous ammonia, which triggers the Clean Air Act’s Risk Management Plan and OSHA Process Safety, RCRA generator status for various hazardous wastes, etc. Then let’s assume EPA thinks the facility could cause ‘substantial harm’ to the river in the event something goes wrong, and requires a Facility Response Plan (an “FRP”) on top of the SPCC.

That’s five planning requirements right there, but at bottom most of them are going to deal with the same regulated materials, the same staff, and the same emergency response procedures, so having one well-maintained and drilled plan instead of five makes complete sense. It’s also far easier to keep one plan up to date than five, particularly when that means documenting inspections, staff training (and for some plans, such as Facility Response Plans, actual drills).

Train Like It’s For Real


Of course, having a plan on paper is only the first part, since if it only exists on paper even the best and most comprehensive plan won’t do any good without training and practice. At our recent in-house OSHA refresher training, OTO had a guest speaker who had been an OSHA inspector for 37 years.  He presented us with a number of case studies for industrial accidents, and one recurring theme was emergency action plans that essentially existed only on paper, and provided no value at all when an actual emergency occurred, since staff couldn’t implement a plan they hadn’t been trained on.

Staff need to be trained, equipment bought and maintained, and procedures practiced both in the field and as tabletop exercises. Effective plans represent ongoing commitments, and require inspections, training and documentation. This of course means money, in terms of staff time, hiring an engineering consultant to assist in developing plans, and sometimes hard construction costs, such as upgrading secondary containment for tanks, modifying stormwater systems to reduce potential spill exposures or modernizing HVAC systems to keep pace with vapors or fumes. Many plans, such as the SPCC, require the party responsible for the facility to certify that they are committing the necessary resources to make the plan workable. Good plans are also ‘living’ documents, which means that if you change your operation, say by adding another 20,000 gallon aboveground storage tank, you would need to change your plan, and if one part of your plan turns out not to work, you update your plan.

While it’s always good to be the “man with a plan”, sometimes all you need is one plan.






sean pic

The Underground Tank Problem

If you own an old underground storage tank (UST) in Massachusetts, particularly a single-walled steel tank, chances are you have heard about the push to remove these older tanks.  The problem with them is that over time, they are prone to leaking and when they leak; they contaminate the environment and can hurt human health.  New USTs need to meet strict guidelines for environmental safety including being “double walled” (a tank within a tank) and there has to be a leak detection system.  Older tanks usually do not have these features.

If you are the owner of an old UST, taking it out of service can be a scary prospect, since it can be expensive and, in some cases, disrupt business on a property for from a few days up to several weeks.

Old single walled steel (SWS) tanks were in common use from the early 20th century up through the late 1980s.  These tanks are more prone to leaking their contents because they lack a second ‘wall’ in case the interior or exterior wall fails, and can also lack other leak prevention equipment such as corrosion protection or upgraded product piping.  At OTO we’ve even come across a number of pre-1930 tanks that were riveted together rather than welded!   These tanks did not even have tight seams.

By the late 1970s, there were hundreds of thousands of SWS USTs across the country.  Some are still in use and many others were abandoned in place often with no documentation that they had ever been installed. Removing a leaking UST is a potentially expensive clean-up project.  Leaking USTs have historically been the most widespread source of oil and gasoline contamination to groundwater and drinking water aquifers.  In addition, occupants of buildings near leaking USTs could be exposed to vapors that migrate underground and into buildings.

The Government Acts

In 1988, the USEPA set a deadline of 1998 for: 1) the removal of out-of-use USTs; 2) the incorporation of leak detection, corrosion protection, and spill and overfill containment equipment on most new or retrofitted USTs; and 3) the registration of certain in-use USTs (such as for retail gasoline or diesel) with state agencies. This requirement led to the removal and remediation of thousands of leaking USTs in the Commonwealth. In addition, the Massachusetts Department of Fire Services prohibited the installation of new SWS tanks after 1998.

SWS tanks installed prior to this date are now nearing or past their recommended service lives. The 2005 Energy Policy Act included the requirement that SWS tanks be removed by August 7, 2017. In 2009 government responsibility for the UST program in Massachusetts was transferred to MassDEP, which in January 2015 promulgated new UST regulations (310 CMR 80.00), and which maintains the SWS tank prohibition and removal requirement at 310 CMR 80.15.

These regulations are intended to protect public health, safety and the environment by removing these SWS USTs from service because they have a higher likelihood of leaking and releasing petroleum products into the environment.


The Current Status

The MassDEP has established a number of regulatory deadlines for the assessment, repair and/or removal of the old UST systems.   In certain situations, MassDEP is exercising enforcement discretion and granting extensions of regulatory deadlines.

In addition:

  • All spill buckets tested and, if necessary, repaired or replaced in accordance with 310 CMR 80.21(1)(a) and 28(2)(g);
  • All turbine, intermediate and dispenser sumps tested and, if necessary, repaired in accordance with 310 CMR 80.27(7) and (8);
  • All Stage II vapor recovery systems decommissioned in accordance with 310 CMR 7.24(6)(l), if applicable; and
  • New Stage I vapor recovery requirements met in accordance with 310 CMR 7.26(3)(b), if applicable.

At the time of UST system removal, environmental conditions must be assessed per state and federal regulations. In Massachusetts, tank closures must meet DEP’s Tank Regulations, 310 CMR 80.00. These regulations allow tanks to be permanently closed-in-place only if they cannot be removed from the ground without removing a building, or the removal would endanger the structural integrity of another UST, structure, underground piping or underground utilities.

If you have questions or need assistance related to  a UST system, please contact Sean Reilly with O’Reilly, Talbot, & Okun at (413) 788-6222.

With all the hubbub in Washington DC lately, it’s been largely overlooked that some of the regulatory changes that started under the previous administration are only now coming to fruition.

Hazmat storage - BADHazmat storage - BEST

For example, the Hazardous Waste Generator Improvement Rule went into effect on the federal level on May 30, 2017 by amending parts of the regulations promulgated pursuant to the Resource Conservation and Recovery Act (RCRA).  RCRA was passed in 1976 and provides the national regulatory framework for solid and hazardous waste management.  These changes will become effective in Massachusetts, Connecticut, and other states with authorized hazardous waste programs as the states update their regulations.

RCRA’s ‘generator requirements,’ haven’t changed much in the last thirty years—the last major change happened in 1984. The new requirements  address the process by which a person or company who generates a waste: 1) evaluates whether or not it’s a hazardous waste or a solid waste; 2) stores the waste and prepares it for transport; and 3) maintains records of the waste’s generation and treatment, recycling or other management.

Changes in Hazardous Waste Generation

Industry has changed a great deal since RCRA went into effect. In the last ten years, the amount of hazardous waste generated in Massachusetts has dropped from 1,121,752 tons in 2001 to 39,108 tons in 2015, even as the number of registered waste generators nearly doubled (EPA Biennial Hazardous Waste Report, 2001 and 2015). Interestingly, EPA national biennial reports indicate the quantity of RCRA waste generated in Massachusetts didn’t change very much between 1985 (114,381 tons) and 2001, although there was some fluctuation as EPA added new categories of generators and wastes to RCRA. The general trend over time has led to there being fewer Large Quantity Generators, and many more Very Small Quantity Generators, so that a representative slice of the modern population of generators consists mostly of auto repair businesses, retail stores, pharmacies, and small manufacturing operations rather than the large factories and sprawling chemical plants of the 1970s and early 1980s.

This changing waste generation demographic (for lack of a better word) matters a lot, since compliance with these generator requirements generally happens at the ‘factory floor’ level, and while Kodak or Monsanto plants had chemical engineering departments to help with waste characterization and management, small shops generally don’t.

While the new rule makes over 60 changes to the RCRA regulations, its main goal is to clarify the ‘front end’ generator requirements. Some of these changes are major; others involve only routine regulatory housekeeping; and some are potential compliance pitfalls for generators.  Several of these changes dovetail with EPA’s 2015 changes to the Definition of Solid Waste, which opened up expanded opportunities for recycling certain materials rather than requiring that they be handled as solid or hazardous wastes.

Other changes in the new rule include:

  • Under some circumstances, Very Small Quantity Generators (VSQGs) will be allowed to send hazardous waste to a large quantity generator (LQG) that is under the control of the same “person” for consolidation before the waste is shipped to a RCRA-designated treatment, storage or disposal facility (TSDF). This is most likely to benefit large “chain” operations, such as retail stores, pharmacies, health care organizations with many affiliated medical practices, universities, and automotive service franchise operations.
  • One of the common problems for VSQGs or SQGs is that since generator status is determined by the quantity of wastes generated, sometimes exceptional events (such as a spill or process line change) occur which bump them up into the Large Quantity Generator category, triggering many other regulatory requirements even if the status change is only for the space of a single month. The Generator Improvement Rule would allow a VSQG or SQG to maintain its existing generator category following such events, as long as certain criteria were met..
  • The addition of an explanation of how to quantify wastes and thus determine generator status.
  • Changes to the requirements for Satellite Accumulation Areas, and for the first time, a formal definition of a Central Accumulation Area.
  • An expanded explanation of when, why and how a hazardous waste determination should be made, and what records must be kept. The final rule does not include requirements proposed in the initial rule that generators keep records of these determinations until a facility closes. The rule also recognizes that most generators base their waste determinations on knowledge of the ingredients and processes that produce a waste, rather than laboratory testing.
  • Clearer requirements for facilities that recycle hazardous waste without storing it.
  • Small Quantity Generators will have to re-notify their generator status every four years.
  • A clarification of which generator category applies if a facility generates both acute and non-acute hazardous waste (for example, a pharmacy that generates waste pharmaceuticals that are P-listed acute hazardous wastes).
  • Revising the regulations for labeling and marking of containers and tanks
  • “Conditionally Exempt Small Quantity Generators” will be renamed Very Small Quantity Generators, a term already used in many states including Massachusetts.
  • Large and Small Quantity Generators will need to provide additional information to Local Emergency Planning Committees as part of their contingency plans

The new rule also contains several expanded sections on exemptions applicable to wastes together with a distinction between “conditional requirements,” such as those which would qualify a waste for an exemption, and ‘independent requirements,” such as container labeling and spill prevention, which are mandatory across the board.

In addition, the rule makes many relatively minor changes, such as updated references to other regulations and rearranging portions of the Code of Federal Regulations text into a more intuitive order.

As with any new or revised regulation, we can expect a learning curve, particularly as implementation filters down to the state agencies. In the meantime, EPA has the Final Rule on its website, along with several fact sheets and FAQs




caulk and bricj

PCBs, polychlorinated biphenyls, are a group of related chemicals that were used for a variety of applications up until the 1970s.  In the 1960s the development of improved gas chromatography methods allowed environmental scientists to become aware of the environmental persistence and global distribution of PCBs in the environment.  Since that time there have been hundreds of studies conducted to better understand the environmental transport and fate of PCBs.

However, it has been only over the past 20 years or so that studies have focused on learning more about PCBs that were incorporated into building products and their fate in the indoor environment.  Much of what has been learned is surprising and counter-intuitive.

For example, while it is generally true that PCBs have low volatility and low water solubility, it turns out that even at room temperature they are volatile enough to permit them to migrate in and around buildings at concentrations high enough to have regulatory implications.  This migration may take place slowly, over the course of several decades, but in some instances, it has happened in as little as a year.  With today’s sensitive instrumentation, chemists are able to track the movements of even tiny concentrations of PCBs as they migrate.

This post is a primer on the three primary categories of building materials which contain PCBs and how their PCBs can move inside of buildings.

Primary Sources

As the name suggests, primary sources are building materials that were either deliberately or accidentally manufactured with PCBs as an ingredient prior to their installation in a building.  The most common primary sources are:

  • Caulking;
  • Paint;
  • Mastics;
  • Various surface coatings; and
  • Fluorescent light ballasts (FLBs).

FLBs are different from the other materials on this list because they use PCBs in an “enclosed” manner.  This is defined as use in a manner that will ensure no exposure of human beings or the environment to PCBs.   However, with continuous use FLBs are known to deteriorate, sometimes resulting in the release of PCBs.  Only FLBs manufactured before the PCB ban (1979) should contain PCBs and by now (2017) any of these older PCB containing FLBs should have been replaced with non-PCB ballasts since even the youngest PCB FLBs are almost 40-years old.  FLBs are considered to have had a functional life span of only 10-15 years.  The type of PCBs used in US-made FLBs were almost exclusively Aroclors 1242 and 1016.

The other primary PCB sources on the above list are considered to be “open” PCB uses because, unlike FLBs, the PCBs were not contained in an enclosure.  In most of these cases PCBs were added to the materials to improve the performance of the products by contributing: fire resistance, plasticity, adhesiveness, extended useful life and other desirable properties.  For PCBs to impart these properties they were generally included at concentrations ranging from 2% to about 25%; this is equivalent to 20,000 parts per million (ppm) to 250,000 ppm.  The most common PCBs found in US-made building materials are Aroclor 1254 followed by Aroclor 1248, 1260 and 1262.

PCBs can sometimes be present in primary sources by accident rather than by design.  The presence of Aroclor PCBs in primary sources at concentrations less than 1,000 ppm (equal to 0.1%), or non-Aroclor PCBs at any concentration, may indicate an accidental PCB use.

Under the federal PCB regulations primary sources of are referred to as PCB Bulk Products and they are regulated when their PCB concentration is 50 ppm or greater.

Secondary Sinks and Secondary Sources

When a PCB primary source is in direct contact with a porous building material, the PCBs in the primary source can often migrate from the primary source into the porous material.   Porous building materials known to adsorb PCBs in this way include concrete, brick and wood.  When this migration occurs, the now PCB containing porous materials are referred to as secondary PCB sinks.  Secondary sinks often have PCB concentrations in the range of 10-1,000 ppm.

While the federal regulations apply to primary sources when their concentration is 50 ppm or greater, requirements for secondary sinks are stricter.  They are categorized as PCB Remediation Wastes and are regulated when their PCB concentration is 1 ppm or greater.

In some situations, the PCBs in secondary sinks can be remobilized and either migrate directly into other porous materials or they can volatilize into the air.  When this occurs, these secondary sinks may be referred to as secondary sources.  In practice one hears the terms secondary sinks and secondary sources being used interchangeably.

Tertiary Sinks and Sources

Tertiary sinks arise when PCBs from primary or secondary sources volatilize into the air and then condense onto other materials in a building.  The significance of volatilization as a PCB migration pathway was underappreciated until recent times because the relatively low volatility of PCBs suggested that the volatilization rate was too low to be meaningful.  However, laboratory testing and numerous real-world examples have demonstrated that volatilization of PCBs from primary and secondary sources with redeposition on other materials can be significant in some settings.   Tertiary sinks often have PCB concentrations between 1-100 ppm.

Some authors prefer to use the term secondary sinks to describe both secondary and tertiary sinks.  Personally, I prefer to use ‘tertiary sinks’ to identify materials affected by indirect contact (through the air) and ‘secondary sinks’ to identify materials affected by direct contact to primary sources.  However, I acknowledge that it is not always evident whether a material is a secondary or tertiary sink.

Why Understanding PCB Sources and Sinks Matters

Understanding the ways that PCBs move around in buildings is important if your goal is to reduce potential exposures inside of buildings.  It is a frequent occurrence in PCB building remediation for primary sources to be removed only to find that indoor air concentrations have not been reduced to the extent expected.  Or for air concentrations to fall immediately after remediation, only to return to previous levels with the passage of time.  This is often due to an insufficient appreciation for the influence and action of secondary and tertiary sinks.

If you have a particular PCB in building condition that needs a fresh set of eyes to review it, consider reaching out us for another opinion.


This picture is of a coal mine in West Virginia; the publication it was in was dated 1946, where it was presented as an example of ‘the bad old days.’ I found it in an old copy of the quarterly employee magazine of Eastern Gas and Fuel Associates, a holding company which used to have a very large vertically-integrated slice of the American coal industry– they owned coal mines, railroads, a fleet of colliers (coal transport ships), coking plants, blast furnace plants for making pig iron, and even a chain of general stores in mining towns.  They even owned Boston Consolidated Gas Company — this was back when gas was still mostly made out of coal, so for Eastern to own a major gas company made a lot of sense. When natural gas came along in the ’50s, Eastern Gas and Fuel promptly bought ownership stakes in the gas pipeline companies.

This was decades before the phrase “Safety First” was coined, but even so, the mining and transportation industries carry a lot of known hazards with them and Eastern Gas and Fuel evidently made a point of contrasting the ‘bad old days’ above with the image of a modern industrial company, for example the following page on drum handling, from another issue:


That’s still pretty good advice, even sixty years later.  So is “Don’t get hurt” for that matter, but we’re a lot more sophisticated about it lately.