EPA and New World Tours By Carmen Daecher

The recent EPA versus New World Tours incident has certainly provided our industry with the proverbial "wake-up call"! However, there is a danger that this incident has put the spotlight on one single aspect of EPA regulations, with the effect that it may draw industry attention away from the much larger picture.

The federal Environmental Protection Act - the EPA - casts a very wide net that is not just confined to the dumping of lavatory holding tanks, which was the central issue of the incident in question. The EPA mandate covers a whole raft of activities that relate to the environment. Unfortunately many industry people are not familiar with other important aspects of EPA that may affect bus operators.

There is a danger that motorcoach operators having successfully addressed the holding tank dumping issue, may consider the EPA as no longer significant - a non-issue so to speak. Similarly those who operate other kinds of buses or motorcoaches that do not have lavatories may be of the belief that EPA regulations do not apply to them.

Nothing can be further from the truth. EPA regulations cover the activities of every bus operation in the nation, as well as bus vehicles licensed outside the United States such as Canada or Mexico, while operating within this country.

There are also several other federal acts that should be of concern to bus operations in all sectors of the industry. And no bus fleet is exempt from any of these regulations. All parties are expected to understand and implement procedures and policies within their respective operation and to ensure that their individual organization conforms to these regulations in a satisfactory manner.

For your convenience we have encapsulated this information in the form of a checklist and a chart that can form some basis or framework on which you may wish to develop or review existing company procedures.

For anyone not yet aware of the precedent-setting court case involving the EPA and New World Tours we briefly summarize the events as we understand them. This summary will also serve to underline the seriousness of any breach of EPA or similar regulations and the consequences that can be expected.

Sometime during 2000, the FBI began monitoring the New World Tours operation at their service facility in Lorton, Virginia. Why they were monitoring this facility may not be fully understood; however, it is thought that a neighboring tenant or individual in the industrial park had noticed spillage into the storm drainage system, and had probably complained to officials. Federal officials subsequently laid charges against the company and its co-owner, Mr. Dave Bolen.
Early this year, Mr. Bolen entered a guilty plea to one misdemeanor count, and the company to one felony count which involved an incident involving the discharge of a motorcoach's lavatory holding tank into a storm sewer. This dumping incident which led to the charges was cleaned according to proper procedures within a week of the occurrence at a reported cost of $800.
On May 17th the presiding federal judge, Leonie M. Brinkema, sentenced Mr. Bolen to serve a two-year term of supervised probation starting with six-months of home-based electronic monitoring. Bolen was also fined $500. New World Tours was ordered to pay a fine of $50,000 and endure a one-year probation period in connection with the same environmental pollution charges.

It should be noted that the government's determined pursuit of criminal penalties for the environmental violations in this case is believed to be the first such prosecution in the motorcoach industry. Federal Judge Leonie M. Brinkema acknowledged that the sentences represent a direct message that the government would not go lightly on other companies who don't learn from New World's punishment.

The Judge said Bolen's willingness to cooperate in an industry outreach program that might deter others from such environmental offenses, and the fact that his was a crime of "negligence" rather than intent, were the primary reasons that he was not being sentenced to time in jail.

Viewpoint: The United Motorcoach Association

The UMA offers their notes and assessment on this matter.

Sentence aimed at Industry! Stiff penalties, clearly intended to place the commercial motorcoach industry on notice about the importance of environmental laws, were handed to a Virginia coach operator by a federal judge in Alexandria, VA, on May 17th.

One chance to learn! New World Tours' pollution case is the only warning the industry can expect.

Unlike Monopoly, when the "Get out of jail" card is used in this game, it isn't returned to the bottom of the deck.

On May 17th, Dave Bolen of New World Tours in Lorton, VA, was sentenced to a term of two-years' probation for "negligent management" in an incident involving his company's dumping of a motorcoach lavatory tank into a storm sewer. In so many words, the judge made it clear that Bolen used this industry's only "Get out of jail" card; the government will reward the next offender with time in jail.

Also unlike Monopoly, there was nothing "free" about the "Get out of jail" card that Bolen used. It will cost him and his company dearly. Bolen will be largely confined to home and must wear an electronic monitoring anklet for six months to allow U.S. marshals to know his whereabouts every minute. He was fined $500, but he'll also bear the cost of the monitoring, another $1,000 or more.

His company was fined $50,000, a price that any motorcoach company in America would feel at any time, but one that seems painfully magnified when imposed during the fragile industry's 9/11 recovery campaign. New World was also placed on probation for a year.

And at the age of 39, Bolen will carry a criminal record with him through the rest of his life. His crime? He failed to put in place the management controls and company policies that might have prevented an employee from dumping a visiting coach's lavatory tank into a storm sewer when it proved incompatible with the New World waste recovery system. Bolen had verbally warned his employees against such an act. He wasn't there when it was done and he hadn't approved it.

The Judge acknowledged that probation was being imposed instead of jail time, in part, because Bolen's was a crime of negligence rather than one of intent. But she said far more! Repeaters will not fare well.

Judge Brinkema said she was "impressed" with the coverage, which Bolen's case has been afforded by UMA's "The Docket" and other industry publications, and that she was convinced that Dave Bolen's willingness to share his story with others would help them avoid similar crimes.

If it doesn't though, she made it crystal clear that "the government is serious" about stopping the environmental crimes by operators in their handling of motorcoach wastes.

That means lavatory wastes, but it could also mean oil, antifreeze, cleaning fluids or a host of other substances. The court reminded those in attendance however, that Bolen was allowed to plead guilty to a misdemeanor, rather than a felony; and that if the government had pursued prosecution at the maximum allowable levels, his sentence could have been a very long stay in jail.

There was a very direct inference that the next coach company found guilty of environmental crimes will not have the "Get out of jail" card available to them. Someone could pay a very heavy price indeed!

Mr. Victor Parra, UMA president points out, "What happened to Dave Bolen was truly unfortunate. Dave is a quality operator who works hard to set an example for others to follow. What would be more unfortunate, however, would be if other operators chose to ignore what happened to Dave and New World and fall the victim to the same problems Dave encountered with the EPA. The next operator found guilty of these EPA violations, I'm afraid, will receive a much harsher penalty that may include jail time."

Mr. Parra goes on to offer this sage piece of advice, "Don't try to compare it (this incident) with the stories you read about massive industrial and municipal polluters who seem to get nothing more than a pink slip from the EPA which reads, "Please don't do that again." If you discount this case as "Justice Gone Awry", you'll only devalue the pain that's already been forfeited and you'll miss the point."

So what's the point?

Somewhere in America right now, a well-meaning driver working for a trusting, nice-guy manager who's done no more than issue verbal warnings, could be pulling the handle on the lavatory tank of your coach over a ditch along a country road. That driver doesn't know that the industry's one and only "Get out of jail" card has been used. He doesn't know that both you and he could spend real time in real prison. He could be determining your future right now. It's up to you to make sure he knows. It's time for even nice guys to "Put it in writing!"

Mr. Carmen Daecher, noted industry consultant, has developed a comprehensive guide specific to the bus and motorcoach industry that covers all aspects of EPA and other pertinent federal regulations.

He has condensed the appropriate regulations and required procedures into a handy "quick reference" checklist, that he has kindly made available to associations and industry publications. With his permission we have decided to publish this informative checklist and accompanying chart in its entirety.

Mr. Daecher strongly advises that it is critically important that as a bus operator, you take the necessary time to develop a written set of procedures and policies that governs the conduct and operation of your bus fleet, and that fully complies with the requirements set under EPA and OSHA regulations .

If your organization contracts out its service, repair, and maintenance to an outside service garage, it is of course their responsibility to ensure that their facility conforms to all governing regulations. However you are still responsible for the safe and environmentally sound operation of your vehicles, and therefore, you are still required to develop the necessary written procedures and policies, and reporting requirements under the regulations that pertain to operating bus vehicles.

If you operate your own garage and service facility, the procedures and policies become rather comprehensive, and you probably may require a third-party consultant to efficiently develop or review an effective oversight program, and to manage an on-going self-audit program.

Should you wish to develop your own procedures and policies then it should be acknowledged that this would require a substantial investment in time and effort. Firstly, one must become familiar at least on a general level with all aspects of EPA and OSHA regulations. One should then carry out a detailed accounting of what aspects of one's business might relate to those regulations.

Once establishing which aspects of your business are subject to EPA and OSHA regulations it is important to set up a framework on which to develop a comprehensive and satisfactory (to authorities) set of procedures and policies that will assure that your operation will adequately comply to EPA and other regulations.

From this point it becomes more of a "fill in the blanks" game, in which you imbed all details of your procedures and policies. Once this is complete, the next step is to "test" your procedures and policies. You do this by considering every possibility and every event that could go wrong, and read through your procedures to ensure that these are adequately addressed as follows:

that every likely event or situation is covered
that the in-place procedure effectively meets proper requirements and solutions according to regulations
that it is readable and easily understood by all staff members
that you conduct an effective well-documented and certified staff training and awareness program
that you develop a comprehensive self-audit system that provides a documented review on a regular basis

Unfortunately developing an effective set of policies and procedures to deal effectively with all relevant regulations that include DOT, EPA, and OSHA, is quite involved. Regulations require not only written procedures and policies, but staff training, proper record keeping, designated coordinators and in some cases a reporting mechanism.

Although larger bus operations are relatively well acquainted with DOT, EPA and OSHA regulations, many smaller to mid-sized bus fleet operators are not quite so informed about these regulations. Most may have heard of the term "EPA-something" as being some obscure federal administration or jurisdiction, but few really understand the depth and breadth of these regulations, nor do they realize that the EPA - the Environmental Protection Agency - has taken a keen interest in how you as a bus operator conduct your business affairs.

If you wish further information and consulting advice you may wish to contact the Daecher Consulting Group, Inc. at (717) 975-9190, or access their website at: www.safetyteam.com . On pages 21, 22 and 24, Carmen Daecher provides our readers with a checklist, chart, and audit information of basic requirements under EPA & OSHA regulations.

The Last Word in this Article comes from the man at the center of this incident, Mr. Dave Bolen himself! Dave throughout this entire stressful affair has made it his personal goal to try to advise as many industry members as possible on the serious need to conform to federal and state regulations.

As the federal judge noted at sentencing, Mr. Bolen's crime was not intentional. Rather it was more a case of simply not being aware of regulations in the strictest sense - i.e. - the "letter of the law". Also as noted by this same judge, "a willingness to cooperate in an industry outreach program that might deter others from such environmental offenses" attests to the professionalism and the respect that he has earned from within the industry.

On the next page is Dave's message - an open letter to all bus and motorcoach operators.

An Open Letter to Members of the Bus Industry,

I hope that nobody else will ever have to go through what I've gone through! You should understand that your operation must comply to EPA and OSHA governing laws, exactly how they are prescribed."

There are two important points that you should know!

The first is the fact that it is impossible for an owner or manager to directly and individually supervise each and every person in his or her employ twenty-fours hours a day, seven days a week. You have drivers out on the road, mechanics in the garage, and cleaning people at night. The law therefore requires that you effectively "transfer responsibility from management to individual employee". The only way that this can be achieved is through a written system of policies and procedures, an effective training program, which must be fully documented, and which must be certified through signatures by each employee. Anything less and the owner or manager remains directly and personally responsible for their actions.

Secondly, all spillage of toxic substances must be immediately reported to appropriate authorities. By reporting such spillage you still leave yourself wide open for clean-up costs and subsequent fines that can be rather heavy. However, if you fail to report an incident, no matter how insignificant it may appear, the situation instantly changes to something far worse - a federal crime. Law enforcement officials consider "failure to report" as a "conspiracy against the Laws of the United States"! This can carry up to a six-year prison sentence.

My experience has been unimaginably stressful, and something that I thought could never happen to me. Like most readers of this magazine I have always tried to do my job to the best of my ability, and have prided myself in being as sensible and as professional as I could be. But it did happen!

It started at one moment in time when a half-dozen FBI and county cars suddenly surrounded our place of business, and 18 officers came through the doors and rounded up our employees and myself. Each of us was interrogated on the spot, while officials pored over and collected files and other paperwork. It was just like something from the movies - except this was real! And it only ended very recently, along with a personal criminal record, a tremendous loss in company goodwill and reputation, and some $300,000 in costs - through fines, legal expenses, extraordinary preventive measures that meet environmental standards.

On the other hand there is a silver lining amongst those dark clouds. Our employees are now extremely well trained, diligent, empowered, and demonstrate a high regard for the company, and work very hard to ensure its future success. It remains as a profitable and viable enterprise. I only wish I could have achieved these things without having to face the severe experience of this incident.

My advice to every operator out there - spend a few thousand dollars now by hiring a recognized industry consultant, which you should consider as extremely good insurance against the unimaginable".

Best Regards,
Dave Bolen

A checklist of responsibilities under EPA and OSHA regulations

Your organization's environmental and safety program must comply with the following

Management and proper disposal of wastes such as antifreeze, used oil filters, used oil, absorbents, solvents, paint wastes and filters, scrap tires, batteries, lavatory waste and all other wastes generated.
Management and proper disposal of wastewaters such as service bay drain wastewaters, tank bottom waters, vehicle wash waters and stormwater.
Management of fuel storage and liquid storage systems such as underground and aboveground storage tanks and containers used to store used oil or hazardous wastes.
Compliance with clean air requirements for air conditioning servicing, automotive refinishing operations, Stage I and II vapor recovery at gasoline dispensing facilities, use of proper fuels and applicable alternative fuel requirements.
Community Right-to-Know reporting of hazardous materials stored on site.
Requirements for recycling of solid wastes and waste minimization.

Here are 14 additional points that you need to consider in combination with the above elements to make sure that you have an effective program:

A statement of environmental and safety responsibility endorsed by top management and communicated to all employees;
An environmental and safety management program established throughout your organization;
Environmental and safety responsibilities delegated to a person(s) within the organization;
Appropriate resources and budget been authorized and established by the organization;
Provisions for periodic facility audits and reviews to monitor compliance, measure performance and control costs;
Periodic education, training and awareness at all levels of the organization;
Program objectives that are clearly communicated and responsibilities delegated to appropriate individuals;
Established methods to ensure timely reports and permit renewals to all government agencies;
A procedure for the organization, maintenance and storage of all records;
Procedures to prepare for an EPA, OSHA or DOT inspection;
Procedures for responding to notices of violation and other orders government agencies;
Procedures to evaluate and inspect firms providing waste transport, treatment, storage and disposal of regulated wastes;
Procedures to limit environmental liabilities from the purchase, lease or transfer of real estate;
Policies that are enforced and incentives (or penalties) to maximize employee compliance.

From an OSHA point of view, have you attended to the following:

Do you have descriptions for physical activities and work performed for each job? Have you performed a job hazard analysis to determine hazards associated with each job? Have you developed plans for minimizing the hazards defined?
Do you have a written Hazard Communication Program? Do you have a complete hazardous chemical inventory list? Do you have current Material Safety Data Sheets? Have all employees been trained?
Do you have a Bloodborne Pathogen Control Program? Have you determined the possible situations where employees may be exposed? Have you provided appropriate personal protective equipment? Do you have appropriate spill and clean up kits? Have the appropriate employees been trained regarding bloodborne pathogens, exposures, protection against exposure, etc.?
Do you have an Emergency Evacuation Plan for fires, natural disasters, and bomb threats? Have appropriate employees been designated to carry out the plan if an emergency arises? Have appropriate employees been trained in the use of portable fire extinguishers? Have all employees been informed of evacuation plans and protocols?
Do you have Lock-out/Tag-out Procedures if needed? Have all employees involved in the maintenance of equipment that requires such procedures, been properly trained?
If you use a forklift, have all operators been trained? Do you have documentation of training?
Have you developed and require the use of appropriate procedures for small tools and equipment, including the use of all safeguards (especially for those bench grinders!)?
Do you have appropriate medical and hygiene provisions for situations that can occur at the workplace? Do you have a properly stocked first aid kit? Do you have an irrigable eyewash station? If appropriate, do you have a full body shower station?
Have you defined necessary personal protective equipment needed by all employees to safely perform their job? Have you specified the use of this equipment while performing their jobs? Have you provided such equipment which can remain at the facility for use by the employees? Has training been provided for the proper use of all personal protective equipment?

The Audit

A Primary Tool to Ensure Continuing Compliance With DOT, EPA & OSHA

One of the most important elements of an environmental and workplace management program is the audit. An audit is periodic monitoring and review of facilities and operations, recordkeeping, waste handling procedures, etc.

A comprehensive self-audit should be conducted at least semi-annually or whenever there is a change in facility coordinators. The value of an audit is only as good as the person conducting it and the checklist or procedure used. A good audit will indicate areas that may not be in compliance or which may require further evaluation or corrective action.

Environmental and workplace audits are important tools. They should be included in your organization's tool chest of management solutions.

If you have let your programs slip regarding environmental and employee health and safety, fix them. And if you don't have such programs, build them. Complying with necessary environmental and workplace laws not only gives you piece of mind, but creates the type of environment within which your employees and others can perform their work safely and in good health.

*** Click here to visit the DDC USA Fleet training web site ***