GeoInsighter Spring 1999 Newsletter

Y2K Bugs Spread!  USEPA Attacks Problem

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There is an additional aspect to the Year 2000 (Y2K) situation that some may not have considered and that may have potential effects on environmental monitoring, management, and treatment systems. As most of us are aware, the Y2K bug refers to potential operating failures by equipment and electronics when the date changes to 2000 on January 1 of next year. Most organizations are currently engaged in a significant effort to identify equipment that may malfunction (e.g., telephone systems, voice mail systems, computers, heating/ventilating control systems, etc.) and to test and modify systems that are found to be non-compliant with Y2K requirements. 

We urge you to consider carefully and to test the potential effects of the Y2K bug on the environmental aspects of your operations. Over the last 20 years, most industrial organizations have implemented necessary effluent and emissions monitoring and treatment systems and may have become sufficiently accustomed to the routine performance of these systems that they may not have considered potential Y2K effects. For example, automated monitoring and treatment units frequently employ programmable logic controllers (PLCs) that direct the automatic performance of certain tasks (e.g., periodic sample collection or addition of chemicals to adjust pH) in response to certain schedules or measurements. The PLCs may contain date-driven functions that will fail on the rollover to 2000. These failures could, in turn, result in equipment failures affecting environmental performance, potentially leading to compliance violations. Similarly, software systems used to document and report monitoring data may fail if they are not Y2K compliant.

At a recent meeting, representatives of the U.S. Environmental Protection Agency (USEPA) emphasized their intentions with regard to enforcement of issues that arise from the Y2K bug under a policy originally issued in November 1998. Fundamentally, USEPA developed its policy to aggressively motivate testing in advance of January 2000 to avoid failures of environmental systems thereafter. The USEPA expects full compliance after January 1, 2000, and it will pursue enforcement as usual after that date subject to certain exemptions only for major external factors such as an entire power grid failure. 

To foster advance testing, through December 31, 1999, USEPA expects to exercise its discretion to waive 100 percent of civil penalties and to recommend against criminal prosecution for Y2K testing-related failures, assuming that the testing meets the following nine criteria:

1) test protocols were designed in advance and were conscientiously intended to evaluate Y2K issues and not to circumvent compliance requirements;
2) Y2K testing was the direct and proximate cause of the failure;
3) the testing was necessary to evaluate Y2K issues, part of a comprehensive program to correct all Y2K deficiencies, conducted well in advance (typically at least 30 days) of Y2K dates, and performed for the shortest period practicable (and for not more than 24 hours);
4) violations occurring during testing did not create an imminent and substantial endangerment or serious actual harm;
5) violations ceased at the end of the test or were corrected immediately thereafter (i.e., within 24 hours);
6) any releases or other adverse health or environmental consequences were expeditiously remedied as required by USEPA;
7) all legal requirements for reporting violations were met in a timely manner and violations for which notification was not required were reported to USEPA within 30 days;
8) any re-testing meets these criteria and uses modifications to earlier test protocols designed to achieve full compliance; and
9) any information requested by USEPA was promptly provided, as necessary, to determine whether the penalty waiver and recommendation against criminal prosecution is appropriate.

USEPA also expects that some level of effort will be made to identify Y2K issues through contacts both up and down the chain of business relationships from vendors to customers. States are taking similar courses of action with regard to Y2K compliance, which is to be expected given that USEPA's delegation of regulatory authority (and the associated monies) typically assumes a consistency of approach. However, some States are more aggressive, implementing tougher Y2K standards than those promulgated by USEPA. For example, Massachusetts is setting a higher expectation by not offering a priori waivers for testing-related violations, although it expects to generally abide by the USEPA policy. Massachusetts is also requiring that businesses ensure that vendors are also Y2K compliant. However, most States with which we have spoken are committed to assisting business and industry in accomplishing expeditious evaluation and resolution of Y2K issues.

John A. Gilbert
jagilbert@geoinc.com

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