Environmental & Safety Law Update

PHMSA Issues Guidance for Strengthening Pipeline Safety Through “Rigorous Program Evaluation and Meaningful Metrics”

Posted in Product Liability, Transportation

By Kevin A. Fritz and Craig B. Simonsen

The Pipeline and Hazardous Materials Safety Administration (PHMSA) recently published an Advisory Bulletin (ADB–2014–05) and a “Guidance for Strengthening Pipeline Safety Through Rigorous Program Evaluation and Meaningful Metrics” (Guidance). Notice of Issuance of Advisory Bulletin, 79 Fed. Reg. 61937 (October 15, 2014).

PHMSA rules require operator self‐evaluation as part of an “effective safety program.” PHMSA rules require the development, implementation, and documentation of processes to perform program evaluations, including the “regular monitoring and reporting of meaningful metrics to assess operator performance.” These rules emphasize that it is the operator’s management’s responsibility to fully understand and acknowledge the implications of these program evaluations, and to take necessary steps to address observed deficiencies and make necessary program improvements.

PHMSA’s pipeline Integrity Management (IM) regulations, 49 CFR Part 195.452, require operators to establish processes to evaluate the effectiveness of their IM programs. Program evaluation is one of the key required program elements established in the IM rules. Additionally, operator senior management is required to certify the IM program performance information submitted annually to PHMSA.

PHMSA issued this Advisory Bulletin to inform owners and operators of natural gas and hazardous liquid pipelines that PHMSA has developed Guidance on the “elements and characteristics of a mature IM program evaluation process using meaningful metrics.” The Guidance should be used when operators develop and perform IM program evaluations.

Previously, PHMSA published Advisory Bulletin ADB–2012–10, “Pipeline Safety: Using Meaningful Metrics in Conducting Integrity Management Program Evaluations,” to remind operators of gas transmission and hazardous liquid pipeline facilities of their responsibilities under regulations to perform evaluations of their IM programs using meaningful performance metrics. 77 Fed. Reg. 72435 (December 5, 2012). The new Advisory Bulletin is intended to expand that reminder by informing owners and operators of gas and hazardous liquid pipelines that PHMSA has developed guidance on the elements and characteristics of a mature program evaluation process — which must use “meaningful metrics.”

Note: the Advisory Bulletin announced that PHMSA inspectors will use the program evaluation Guidance as criteria when evaluating the effectiveness of operator IM program evaluations to assure operators are developing “sound program evaluation processes” and are developing and applying a “robust and meaningful set of performance metrics” in their program evaluations.

To ensure compliance with the updated Advisory Bulletin, businesses, owners, and operators in these industries are encouraged to review carefully their corporate policies, implementation practices, and training on these provisions.

OSHA “Launches” Rulemaking to Significantly Update and Massively Increase the Number of Chemicals with Permissible Exposure Limits

Posted in Chemical Safety, OSHA Compliance

By James L. Curtis and Craig B. Simonsen

Through a fifty-five page proposed rule in the form of a Request for Information (RFI), 79 Fed. Reg. 61384 (October 10, 2014), OSHA has re-opened a “national dialogue on hazardous chemical exposures and permissible exposure limits” (PELs) in the workplace.

The OSHA’s PELs are the regulatory limits on the amount or concentration of a chemical substance in the air in the workplace. The PELs are intended to protect workers against the adverse health effects of exposure to hazardous substances. According to OSHA, approximately ninety-five percent of the current nearly 500 PELs have not been updated since their adoption in 1971. More importantly, OSHA’s current PELs cover only a “small fraction of the tens of thousands of chemicals used in commerce, many of which are suspected of being harmful.”

OSHA had previously acted in 1989 to update the PELS. In a challenge to that rulemaking the Eleventh Circuit Court of Appeals vacated the final rule, finding that “OSHA has not sufficiently explained or supported its threshold determination that exposure to these substances at previous levels posed a significant risk of these material health impairments or that the new standard eliminates or reduces that risk to the extent feasible.” AFL-CIO v. OSHA, 965 F. 2d 962 (11th Cir. 1992).

In its announcement concerning this rulemaking, Dr. David Michaels, the OSHA Administrator, said “many of our chemical exposure standards are dangerously out of date and do not adequately protect workers.” “While we will continue to work on updating our workplace exposure limits, we are asking public health experts, chemical manufacturers, employers, unions and others committed to preventing workplace illnesses to help us identify new approaches to address chemical hazards.”

In particular, OSHA’s stated purpose in promulgating the RFI is to:

  • Review OSHA’s current approach to chemical regulation;
  • Describe and explore other possible approaches that may be relevant to future strategies to reduce and control exposure to chemicals in the workplace; and
  • Inform the public and obtain public input on the best methods to advance the development and implementation of approaches to reduce or eliminate harmful chemical exposures in the workplace.

In a public statement Dr. Michaels stated that “we are particularly interested in ideas about possible streamlined approaches for risk assessment and feasibility analyses, and alternative approaches for managing chemical exposures. Among the approaches we ask about are control banding, task-based approaches, and informed substitution.” It is the lack of risk assessments and feasibility analyses that tripped up OSHA in its 1989 PELs rulemaking. OSHA is now seeking a “work-a-round” to enable the massive revision and update to the PELs, without the trouble and expense associated with  risk assessments and feasibility analyses for every chemical on the to be expanded list.

This rulemaking is important to manufacturers and businesses that make, use, distribute, or handle chemical substances.  

Public comments on the RFI, Docket No. OSHA-FRDOC-0001-0595, are due on April 8, 2015.

EBOLA and Employer Liability Issues

Posted in Emergency Planning, International, OSHA Compliance

By Mark A. Lies II, Kerry M. Mohan, and Brent I. Clark

By now, the worldwide health authorities and media have publicized the Ebola hemorrhagic virus (EHV) (sometimes called Ebola Virus Disease, or EVD) (the “virus” or “disease”) that has been reported throughout western Africa. Although the United States has only experienced several cases of the virus, as the outbreak in Africa spreads it is possible more cases will arise throughout the country. Given high density areas of human contact such as mass transportation systems, schools, hospitals and the workplace, the potential is great for this widely circulating virus to spread from human-to-human in a short period of time.

What is Ebola?

EHV is a hemorrhagic virus originating from the African continent. It derives its name from the Ebola River which is in the vicinity of where the virus was first identified. An individual infected with EHV will often suffer the following, worsening systems:

  • Fever (greater than 101.5°F);
  • Severe headache;
  • Muscle pain;
  • Weakness;
  • Diarrhea;
  • Vomiting;
  • Abdominal pain;
  • Unexplained hemorrhaging (bleeding or bruising); and
  • Death.

Though an individual’s symptoms may appear anywhere from 2 to 21 days after exposure to the virus, the average is 8 to 10 days. The virus has a mortality rate in certain areas well in excess of fifty percent of individuals who become infected.

How is EHV Transmitted?

Unlike other diseases, such as influenza, measles, and the norovirus, EHV is NOT easily transmitted. An individual who has been exposed is not contagious until an infected individual shows symptoms of the disease.

EHV is transmitted through direct contact, either broken skin or mucous membranes, with an infected individual’s:

  • Blood or bodily fluids, such as urine, saliva, feces, vomit, semen; and
  • Objects that have been contaminated with the virus (i.e., needles and syringes).

Though EHV is not readily transmitted by coughing or sneezing, it is possible that an infected individual could transmit the virus if his or her saliva or mucous from a cough or sneeze comes into contact with another individual’s eyes, nose, or mouth. It is possible that the virus could contaminate a surface (e.g., desk, arm rest, chair, table, bedding, clothing, etc.) and another individual could come in contact with the virus through normal daily activities. Moreover, EHV is able to live outside of the body in blood or other bodily fluids for up to several days. The virus can remain infectious in human semen for several months.

What are the Legal Ramifications that Employers Should Consider?

There are several employment and other laws which may be directly involved with this disease and must be considered by employers. These are as follows:

Occupational Safety and Health Act: General Duty Clause

Under the Occupational Safety and Health Act (“Act” or “OSHA”), the employer has a legal obligation to provide a safe and healthful workplace. One of the agency’s enforcement mechanisms is the ability to issue citations with monetary penalties to employers. The “General Duty Clause” (Section 5(a)(1)) of the Act requires an employer to protect its employees against “recognized hazards” to safety or health which may cause serious injury or death.

Given that OSHA does not have a specific regulation which deals with EHV, the Occupational Safety and Health Administration (the “Agency”) will utilize the General Duty Clause. In order to determine the scope of the employer’s obligation under the General Duty Clause, OSHA is empowered to utilize outside nationally recognized consensus standards or other authoritative sources. In this case, OSHA would rely upon recommendations issued by the Centers for Disease Control (“CDC”), the National Institute for Occupational Safety and Health (“NIOSH”), the World Health Organization (“WHO”) or other similar resources. If the Agency can establish that employees at a worksite are reasonably likely to be “exposed” to the EHV (e.g., serving as healthcare providers, emergency responders, transportation workers, etc.), OSHA will require the employer to develop a plan with procedures to protects its employees.

OSHA Multi-Employer Worksite

Under the Act, the host employer may also have additional legal obligations to the employees of another employer who may come to the host employer workplace and may potentially be exposed to the hazard (in this case to EHV carriers). OSHA can utilize its authority under the “multi-employer workplace doctrine” to issue citations to the host employer when personnel of another employer are exposed. In these instances, citations can be issued by the Agency to the host employer if another employer’s staff members are exposed or if the host employer created the hazard or exposed the other employees to the hazard. The host employer or the controlling employer at the site will ultimately be held responsible to correct the hazard.

OSHA Response Plan

OSHA will expect the responsible employer to develop a program based upon a “hazard assessment” of potential exposure at the worksite (hygiene and decontamination), including:

  • Conduct employee awareness training regarding the hazard;
  • Develop procedures requiring the issuance and use of personal protective equipment (PPE) (e.g., masks, gloves) if necessary to prevent infection and transmission;
  • Develop a means of reporting infection and providing medical surveillance for employees who contract the disease;
  • Maintain appropriate documentation of the foregoing actions;
  • Preserve medical records;
  • Record on the OSHA 300 Log any illnesses which are occupationally related.

Whistleblower Protection

Because of the significant health hazards associated with this disease, it is possible that an employee could refuse to work because s/he believes that his/her health is in imminent danger at the workplace due to the actual presence or reasonable probability of the disease at the workplace. An employee who makes such a complaint is engaging in “protected activity” under Section 11(c) of the Act and is not subject to adverse action by the employer for refusal to work until the employer can establish through “objective” evidence that there is no hazard or that the employer has developed a response plan that will reasonably protect the employee from exposure to the disease.

Worker’s Compensation – Disability Benefits

In the event that an employee contracts EHV as a result of occupational exposure, (in other words, the illness “arises out of and in the course of employment” which the employee must prove with competent medical evidence), the employee is entitled to receive temporary total disability benefits in lieu of wages, reasonable and necessary medical treatment and an award for any resulting permanent disability (e.g., reduced respiratory capacity, etc.). An employer should evaluate whether it has adequate worker’s compensation insurance coverage and coverage limits that include occupational diseases.

If an employee contracts the disease and it is not occupationally related, the employee may be entitled to disability benefits if the employer provides such benefits. Again, the extent of such benefits and any exclusions should be carefully evaluated by the employer. The employer must consider that EHV is going to involve significant medical issues, such as determining (1) whether the employee is infectious, (2) what type of treatment is necessary, (3) whether the employee presents a health risk to others and, (4) when the employee can safely return to work. Therefore, it is essential that the employer identify a competent medical professional with expertise in infection control who can advise it on all medically-related issues, including worker’s compensation.

Family and Medical Leave Act

Under the Family and Medical Leave Act (“FMLA”), employers who have more than 50 employees are required to provide up to twelve (12) weeks of unpaid leave to a qualified employee who has a “serious health condition.” An employee is also eligible under the FMLA in the event of a “serious health condition” affecting its spouse, child or parent(s).

If an employee contracts EHV, this disease will most likely be considered a “serious health condition” under the FMLA warranting the unpaid leave. Similarly, if an employee’s parent, spouse or a child contracts the disease, this will likely be a qualifying event entitling the employee, with physician’s documentation, to utilize leave time to care for such an immediate family member.

It is certain that issues may arise if the employee contracts the disease but is able to continue working while potentially exposing other employees to infection. Since the CDC appears to recommend removal of such individuals from the workplace during the incubation period of the disease (2-21 days) to prevent transmission of the disease, the employer may have to consider placing the employee on an FMLA leave or providing some other form of leave despite the employee’s desire to continue working.

If the employee exhausts the entire twelve weeks of FMLA leave, and is unable to return to work at that time, the employer may wish to consider additional unpaid leave for the employee, although such leave would be outside of the FMLA required reinstatement rights.

Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) provides certain protections to employees who may have physical, mental or emotional “disabilities” but who are otherwise qualified to perform the essential functions of their jobs. Typically, a disability is an impairment which substantially limits one or more of the major life activities of an individual (e.g., breathing, working, speaking) which is chronic in nature. Thus, EHV, which is expected to involve temporary infection, and hopefully recovery, would not appear to qualify as a “disability.”

The ADA may become a factor, however, if an employee develops a disability as a result of the disease and cannot return to their former work duties because of such impairment. The employer must then be prepared to engage in an “interactive process” with the employee which involves a case-by-case dialogue regarding the employee’s ability to return to work, any work restrictions, what accommodations may be available which do not cause undue hardship to the employer or whether the employee’s disability presents a direct threat to the health or safety of the employee or other employees. Again, it is recommended that employers engage competent medical advice regarding any accommodations which may be warranted as a result of the long term effects of this disease.

Premises Liability

Under general common law principles in most jurisdictions, a landowner (sometimes the employer) who allows third parties to enter upon its premises for business or related purposes (such as clients, vendors, contract employees), owes these individuals a duty of “reasonable care” to protect them against hazards at the premises which are not “open and obvious.” In the case of EHV, if the landowner (for example, a healthcare provider, emergency responder, transportation related company) is (or should be) aware that there are infectious persons at the premises (whether its own employees or tenants) who may create a health hazard to these third party entrants, there may be a duty to warn such third parties, or to prevent access to certain facility areas. In the event that the building ventilation system or washroom facilities may become contaminated with EHV, the landowner may have an obligation to prevent such contamination through enhanced sanitation measures.

In many cases, the legal duty of the landowner for site security and sanitation will be defined by contractual documents, such as leases. The landowner should make sure to review such documents to confirm its obligations regarding third parties who may have access to the property.

Recommendations

It is recommended that employers become knowledgeable about this disease by accessing recognized sources of information (identified below). In addition, employers should determine, based upon a “hazard assessment,” whether an EHV response plan is required. For example, does the employer employ individuals:

  • In industries where exposure may be likely (healthcare, emergency response, transportation); or
  • Who have or are expected to travel to/from western Africa or other geographical areas where the disease has been identified.

If so, the employer may need to consider:

  1. Means and methods to protect employees from potential exposure;
  2. Means and methods to protect employees before they travel to areas known to have experienced the EHV disease; and
  3. What procedures will be followed when these employees return to the United States from such areas (e.g., possible quarantine, fitness for duty medical examination if the employee exhibits the symptoms of EHV). In some cases, the employer may be able to offer employees the option of remote work to isolate these employees from the general working populace during the incubation period.

Finally, in the event that the employer engages in activities where there is a possibility of employee infection, the employer should consider consulting with its local Department of Public Health to obtain guidance, as well as engaging with a medical provider who has particular expertise with infectious diseases of the magnitude of EHV.

Where Can I Find Additional Information on EHV?

Informational Websites and Call Numbers

OSHA Ebola Safety & Health Topics Page – www.osha.gov/SLTC/ebola/index.html

NIOSH Ebola Workplace Safety & Health Topics Page – www.cdc.gov/niosh/topics/ebola/

CDC Ebola Virus Disease Page – www.cdc.gov/vhf/ebola/

Center for Disease Control - www.cdc.gov/

U.S. Department of Health & Human Services - http://www.flu.gov/

The World Health Organization - http://www.who.int/

CDC Emergency Response Hotline for health employers – (770) 488-7100

Local Department of Public Health

EPA Finalizes Change to All Appropriate Inquiry Rule: ASTM E-1527-05 Does Not Establish CERCLA Defenses Anymore

Posted in CERCLA, Due Diligence, Environmental Compliance, Investigations/Inspections, Vapor Intrusion

By Andrew H. Perellis, Jeryl L. Olson, and Ilana R. Morady

On October 6, 2014, EPA finalized an amendment to the “All Appropriate Inquiries” (AAI) rule to remove the reference to ASTM E-1527-05. 79 Fed. Reg. 60087. This means that ASTM E-1527-05 is no longer adequate to establish landowner and lender liability protections under CERLA. Buyers, sellers, and lenders take note: you will now need to ensure that your AAI is conducted under the newer 2013 ASTM standard.

“All Appropriate Inquiries,” or AAI, is the process of evaluating a property’s environmental conditions and assessing the likelihood of any contamination. Buyers, Sellers and Lenders involved in the transfer of real estate, including real estate transferred as part of a corporate merger, acquisition or asset sale, know that ASTM E-1527 is the typical starting point for conducing AAI and thus obtaining landowner and lender liability protections under the environmental statute CERCLA. In 2013, the 2005 ASTM standard was revised (see our article, SOMETHING NEW IS IN THE AIR:  Important Changes to ASTM E 1527 “Phase I” Environmental Due Diligence, to read more about the 2013 revisions). EPA’s policy at the time was that both ASTM E1527-05 and E1527-13 were consistent with the AAI rule at 40 CFR Part 312.  Now, however, EPA has amended the AAI rule  to remove the reference to ASTM E-1527-05, thus rendering the 2005 standard inadequate for establishing CERCLA landowner and lender liability protections.

The amendment comes after EPA received many adverse comments in response to its decision to allow both ASTM E1527-05 and E1527-13. Commenters stated that using two standards could create confusion, especially since even ASTM no longer recognizes 2005 as meeting its standards for good customary business practice. EPA ultimately agreed, and is now requiring the 2013 standard to establish AAI. Thus, if you are commissioning a Phase 1 audit report to establish AAI, you will need to make sure  the environmental consultant performing the Phase 1 relies upon ASTM E1527-13.

California Industry: Start Preparing for New Industrial Stormwater Permit Requirements

Posted in California, CWA, Environmental Compliance, Permitting

For our readers with California facilities and interests, Patrick D. Joyce has prepared a Management Alert on California’s new Industrial Stormwater Permit (2014 General Permit), which will apply on and after July 1, 2015. Industrial General Permit, 2014-0057-DWQ.

The California State Water Resources Control Board’s newly adopted industrial stormwater permit regime includes a broader array of industrial facilities not previously covered, increases sampling and monitoring requirements, and implements new Best Management Practices.  Due to the complexity and breadth of the new 2014 General Permit, affected facilities should consider consulting with environmental counsel and a stormwater consultant for further guidance.

Checkout the full Management Alert for complete details.

Retail Industry Update: DOT’s “Reverse Logistics” Rulemaking to Add Exception for Transportation of Hazardous Materials

Posted in Hazardous Materials, Transportation

By Jeryl L. Olson and Craig B. Simonsen

The Pipeline and Hazardous Material Safety Administration (PHMSA) has proposed to modify its hazardous materials regulations as it affects the retail industry by adding a definition for “reverse logistics.” 79 Fed. Reg. 46748 (August 11, 2014).

PHMSA has been working on the proposal since July 2012, when it had requested public comment to assist it in forming a “reverse logistics policy” tailored to the unique requirements of hazardous materials transportation associated with the retail industry product returns which may involve product recalls, expired products, seasonality, broken consumer packaging, and customer returns of products containing hazardous materials. In the Advanced Notice of Proposed Rulemaking, 77 Fed. Reg. 39662 (July 5, 2012), PHMSA defines reverse logistics as “the process initiated when a consumer product goes backwards in the supply chain, such as an item being returned to a store by a customer, or when a local retailer sends unused merchandise back to a regional distributor.”

The PHMSA Administrator, Cynthia Quarterman, noted that “reverse logistics is already a complex process, and when hazmat items are involved, the potential for error greatly increases.” “We are working with industry trade groups and stakeholders to devise a safety solution that provides a clear definition for reverse logistics in a hazmat context without being unnecessarily burdensome.” The proposal would create a new section in the Hazardous Materials Regulations (49 CFR Parts 171–180) to add provisions for a reverse logistics scheme. The PHMSA notes that “by creating an exception from existing regulations for certain reverse logistics shipments, this [proposed rule] offers opportunities for reduced compliance costs among hazmat shippers and carriers, without any decrease in safety.”

In addition, the rulemaking intends to solve a reverse logistics issue related to the transportation of used automobile batteries to recycling centers. This change to the regulations, it is suggested, “will reduce the burden on the regulated community when consolidating shipments of lead acid batteries for recycling.”

Specifically, the proposed rule intends to do the following:

  • Define the term “reverse logistics”;
  • Establish regulations for the shipment of products containing hazardous materials in the retail industry reverse logistics supply chain;
  • Establish clear applicability to the training requirements associated with “reverse logistics” shipments;
  • Provide authorized packaging for reverse logistics shipments;
  • Establish segregation requirements for reverse logistics shipments; and
  • Allow more flexibility for the transportation of lead acid batteries.

Retailers, distributors, shippers, carriers, and reverse logistic companies may wish to review the proposal closely — especially if you had participated in or commented on the Advanced Notice of Proposed Rulemaking — for provisions that may belie the PHMSA’s stated conclusion that there will be little new costs associated with the implementation of these new rules, or other provisions.

The comment deadline, in this Docket No. PHMSA-2011-0143, is November 10, 2014.

President Issues Executive Order on Climate-Resilient International Development

Posted in Climate Change, Environmental Compliance, International

By Patrick D. Joyce and Craig B. Simonsen

This week at the U.N. Climate Change Summit in New York City, President Barack Obama, joined by leaders from more than 120 countries from around the globe, announced his Executive Order on Climate-Resilient International Development. 79 Fed. Reg. 58231 (September 26, 2014).

The Executive Order directs all federal agencies to factor climate change into their international development programs and investments and to evaluate climate-related risks to overseas programs, facilities, and projects.  We consider this announcement important to our clients, as many conduct or plan to conduct business on an international scale, and may be interacting with federal agencies on their projects overseas.

To increase the effectiveness of these projects, the Executive Order requires that agencies:

  • Improve the resilience of the international development programs, projects, investments, overseas facilities, and other funding decisions through consideration of current and future climate-change impacts, as appropriate;
  • Share knowledge, data, tools, information, frameworks, and lessons learned in incorporating climate-resilience considerations; and
  • Complement efforts by the Federal Government to reduce greenhouse gas emissions at home and globally.

Along with the Executive Order, the President announced “a new set of tools to harness the unique scientific and technological capabilities of the United States to help vulnerable populations around the world strengthen their climate resilience.”  The tools include:

  • Improved and extended extreme weather risk outlooks to help avoid loss of life and property;
  • Data, tools and services to enable countries to better prepare for the impacts of climate change, including a new release of global elevation data; and
  • An announcement of a new public-private partnership to ensure that the climate data, tools, and products made available by U.S. technical agencies are useful to developing countries.

In his speech, the President acknowledged the role of the United States in creating potential global warming impacts and called on other nations to join the fight against climate change.

According to the Whitehouse, U.S. financial support for “adaptation activities” in developing countries has increased eightfold since 2009.  “Adaptation” requires adjustments in natural or human systems in anticipation of a changing global environment.  For example, development investments in areas like eradicating malaria, building hydropower facilities, improving agricultural yields, and developing transportation systems will not be effective in the long term if adverse impacts such as shifting ranges of disease-carrying mosquitoes, changing water availability, or rising sea levels are not accounted for.

The Whitehouse also put out a Fact Sheet regarding the President’s announcement.

EPA Publishes Effluent Guidelines Plan Focusing on Petroleum Refining, Oil and Gas Extraction, Metal Finishing, and Nanomaterials

Posted in CWA, Environmental Compliance

By Kevin A. Fritz and Craig B. Simonsen

EPA has just announced its Final 2012 and Preliminary 2014 Effluent Guidelines Program Plans, EPA-820-R-14-001 (September 2014). The Plans announce both final decisions the EPA is making on the control of industrial wastewater discharges, and its proposed “new actions for the future.”

The Clean Water Act requires the EPA to biennially publish a plan that establishes a schedule for (1) the annual review and revision of the Agency’s existing effluent limitation guidelines, (2) the identification of any new industrial categories selected for an effluent guideline rulemaking, and (3) to provide a schedule for new rulemaking. This year the EPA is looking particularly at the petroleum refining, oil and gas extraction, metal finishing, and nanomaterials industries.

The Agency announced that it will initiate a detailed study of the petroleum refining industry because of “potential pollutant discharge issues related primarily to metals.” The EPA’s continued category review of petroleum refining (40 CFR Part 419) toxic weighted discharges and review of new and revised air regulations indicated that the industries implementation of wet air-pollution controls, as well as a changes in feedstock, “may result in an increased discharge of metals from petroleum refineries, potentially at concentrations above treatable levels.”

The EPA will also prepare a detailed study of centralized waste treatment (“CWT”) facilities that accept oil and gas extraction wastewaters. The EPA seeks to determine if CWTs provide adequate treatment for these wastewaters that, under the current regulations, “may not provide adequate controls for the oil and gas extraction wastewaters.”

The EPA will continue its Preliminary Category Review of metal finishing (40 CFR Part 433), initiated in 2012.  In a review of the Targeted National Sewage Sludge Survey data, the Agency found that these facilities may be “potentially discharging high concentrations of metals, particularly chromium, nickel, and zinc, to publically owned treatment works.”

The Agency will also prepare a report on a methodology and interim findings of its investigation into the environmental toxicity and industrial wastewater discharge of nanomaterials. In support of that investigation, the EPA requests public comments and any information or data available on the “wastewater hazards and discharges associated with the manufacture of nanomaterials and their use in manufacturing or formulating other products.”

Finally, the EPA has also announced that for the meat, poultry, pulp, paper, and paperboard industries – which EPA has been investigating for the past two years – “no further review is necessary since EPA has resolved the wastewater discharge issues in both industries and determined an effluent guideline revision is not warranted at this time.”

The public comment period on the Plans, in Docket No. EPA–HQ–OW–2014–0170, must be received by November 17, 2014. Stay tuned here for the latest.

Business Interests in China? State Council Issues Guidelines for Pilot Emissions Trading Program

Posted in CAA, China, CWA, Environmental Compliance

By Wan Li and Craig B. Simonsen

The State Council recently announced new Guidelines for pilot programs for trading emissions permits to reduce air and water pollution.

Key pollutants to be traded under the pilot programs include sulfur dioxide and nitrogen oxide in the air, and chemical oxygen demand and ammonia nitrogen in wastewater. Speaking of these pollutants, Huang Xiaozeng, Deputy Head of the Pollution Emission Control Department of the Environmental Protection Ministry, said earlier this year that “all kinds of measures will be implemented to ensure the tough targets are met.”

The pilot programs had begun in 2007, with areas now or soon to be running pilot trading programs for emissions permits including Tianjin, Hebei province, the Inner Mongolia autonomous region, and the provinces of Shanxi, and Hunan. Under the Guidelines the eleven pilot regions must establish mechanisms for the purchase and trading of emissions by 2017, which is then expected to lay a foundation for the program to be rolled out nationwide.

According to the Ministry of Environmental Protection’s website, during the past year, on Shanxi’s provincial emissions permit trading system alone, over $60 million in emissions permits have been traded between 400 companies. Regions may apply the permits to the pollutants that affect them most, with revenues intended to be provided to local governments to further fund pollution control.

According to the recent State Council statement, “trading of emissions rights must be done in a voluntary, fair and environment-oriented way and trading prices will be decided by the buyer and the seller.” Additionally, “the pilots aim to allow the market to play a decisive role in resources allocation, encourage firms to actively cut pollutant discharges, speed up industrial restructuring and clean the environment.”

The State Council statement, though, differs from a statement offered by Ma Zhong, the Dean of the School of Environment and Natural Resources, at Renmin University, in Beijing, to Reuters. “Emission trading in China is not strictly a market activity and it is more like paying for emitting. It is [currently] just a few regions running some test trading.”

Businesses with interests in China, and especially in these pilot trading program areas, may wish to fully investigate and explore their options when dealing with facility and process permitting requirements. The new Guidelines do create a scheme where facilities will be required to pay for their emissions, but doing so will be necessary to avoid even higher potential penalties for not having the required emissions permits. In the meantime, facilities that participate in the emissions trading permits program will be taking steps toward helping to clean the environment.

OSHA Head Says OSHA Will Lower Whistleblower’s Burden of Proof in Investigations

Posted in OSHA Enforcement, Whistleblower

By Brent I. Clark, Ada W. Dolph, and Craig B. Simonsen

In remarks before its Whistleblower Protection Advisory Committee, OSHA Administrator Dr. David Michaels said that he will lessen the whistleblower’s burden of proof in investigations.

Dr. Michaels spoke at the September 3, 2014 Whistleblower Protection Advisory Committee meeting. In his introduction, he noted that from 2009 through June 30, 2014, OSHA has issued 3,726 merit determinations, “recovering over $119,000,000 in damages for whistleblower complainants, and reinstated 389 whistleblowers to their positions.” In fact, “in the first three quarters of this year, we’ve already issued 602 merit determinations and awarded approximately $21.5 million in damages to whistleblower complainants.” Dr. Michaels asserted that from 2009 through June 30, 2014, OSHA more than doubled the number of complaints OSHA found to have merit (from 450 in FY2009 to 934 in FY2013). A real question, of course, is whether this extraordinary increase in merit findings by OSHA was actually warranted by the facts of those cases.

Apparently, though, there were not enough complaints that were found to have merit by OSHA’s investigators, as the Administrator believes that the burden of proof in whistleblower investigations was just too high. “We are working on a new policy memo clarifying the Agency’s position regarding burden of proof in whistleblower investigations. The memo will change the burden of proof to be based on a ‘reasonable cause’ that a violation occurred, which is a lesser burden to prove than a ‘preponderance of the evidence.’ OSHA and the office of the Solicitor of Labor are working on this policy memo and it should be completed shortly.”

While the burden of proof in whistleblower cases is a legal standard prescribed in the 21 statutory provisions for whistleblower protections that OSHA administers, including OSHA 11(c), STAA, AIR21, and SOX, Dr. Michaels believes that OSHA should lower the burden needed before OSHA can find a case has merit. The natural consequence of such policy change will be even more cases being found to have merit by OSHA.

Of course, what Dr. Michaels and OSHA cannot change is the actual burden of proof that the courts are required to apply under each statute. If OSHA is constantly using a lower burden of proof to screen and evaluate cases, regardless of the statute, it seems they may be headed for trouble if and when they get to court.

Brent Clark and Ada Dolph are Partners, and Craig Simonsen is a Senior Litigation Paralegal, in Seyfarth Shaw LLP’s Chicago office.  If you would like further information, please contact a member of the Workplace Whistleblower Team, your Seyfarth attorney, Brent Clark at blcark@seyfarth.com, Ada Dolph at adolph@seyfarth.com, or Craig Simonsen at csimonsen@seyfarth.com.