Environmental & Safety Law Update

SEP Right for You? EPA Updates its Supplemental Environmental Projects Policy

Posted in Environmental Enforcement

By Andrew H. Perellis, Patrick D. Joyce, and Craig B. Simonsen

The U.S. Environmental Protection Agency recently updated its Supplemental Environmental Project (SEP) Policy.

Most federal actions for failure to comply with the environmental laws are resolved through settlement agreements. As part of a settlement, an alleged violator may voluntarily undertake a supplemental environmental project (SEP), which is an environmentally beneficial project related to the violation in exchange for mitigation of the penalty to be paid.

SEPs are projects or activities that go beyond what could legally be required in order for the defendant to return to compliance, and secure environmental or public health benefits in addition to those achieved by compliance with applicable laws. According to EPA, SEPs generally “further EPA’s goal of protecting and enhancing the public health and the environment.”

SEPs can also help to further the EPA’s mission to protect public health and the environment, which includes, but is not limited to:

  • Improving Children’s Health – SEPs that reduce children’s exposure to, or health impacts from, pollutants, and/or that reduce environmental risks to children in the community impacted by a violation are actively sought and encouraged.
  • Furthering Environmental Justice – SEPs that help promote environmental justice through a variety of projects is an overarching goal of EPA, because environmental justice is one of the six critical factors on which SEP proposals are evaluated. SEPs that benefit communities with environmental justice concerns are actively sought and encouraged.
  • Encouraging Pollution Prevention – Projects that prevent the generation of pollution often provide the chance to utilize new and innovative technologies. Effectiveness in developing and implementing pollution prevention techniques and practices is also a factor in evaluating a SEP, and can be reflected in the degree of consideration accorded to the defendant in the calculation of the final settlement penalty; such projects are actively sought and encouraged.
  • Developing Innovative Technology – SEPs provide defendants with an opportunity to develop and demonstrate new technologies that may prove more protective of human health and the environment than existing processes and procedures. SEPs also provide the EPA with a unique opportunity to observe and evaluate new technologies which might, should they prove effective and efficient, lead to better standard industry practices. Technology innovations may also be a means to assure that future industry and other commercial practices are sustainable, reflect the best available technology, and lead to continued long-term pollution reductions and improved public and environmental health. Innovative technology can take a variety of forms and may be applied broadly across environmental media and commercial, industrial and municipal activities, processes and practices.
  • Preventing Climate Change – Projects that address the causes of climate change and reduce or prevent emissions of climate change pollutants and greenhouse gases, such as carbon dioxide are encouraged as SEPs. In addition, projects that address the impacts of climate change and help increase a community’s resilience in the face of these impacts on ecosystems or infrastructure are also encouraged as SEPs.

The 2015 Update applies to all civil judicial and administrative enforcement actions taken under the authority of the environmental statutes and regulations that the EPA administers. The Update also applies to federal agencies that are liable for the payment of civil penalties.

Under the 2015 Update, to include a proposed project in a settlement as a SEP, Agency enforcement and compliance personnel are expected to ensure:

  1. That the project conforms to the basic definition of a SEP);
  2. That all legal guidelines are satisfied;
  3. That the project fits within one (or more) of the designated categories of SEPs;
  4. That the penalty mitigation amount is appropriate as reflected in the project’s environmental or public health benefits using the evaluation criteria; and
  5. That the project satisfies all of the EPA procedures, settlement requirements, and other criteria.

The 2015 Update notes that “in some cases, strict application of this Policy may not be appropriate…In such cases, the litigation team may use an alternative or modified approach, with advance approval from the Assistant Administrator for the Office of Enforcement and Compliance Assurance (OECA).”

EPA has identified eight board categories of projects that may be acceptable for SEPs:

(1) public health, (2) pollution prevention, (3) pollution reduction, (4) environmental restoration and protection, (5) emergency planning and preparedness, (6) assessments and audits, (7) environmental compliance promotion, or, generally, (8) other types of projects.

EPA has also identified several types of projects that are not appropriate for SEPs including, but not limited to, general public educational or public environmental awareness projects, contributions to environmental research at a college or university, cash donations to community groups or environmental organizations, and projects which are undertaken, in whole or in part, using funds obtained from the federal government.

Seyfarth Shaw has negotiated numerous SEPs with EPA as part of a settlement agreement. If you have questions about SEPs or would like assistance negotiating a settlement with EPA, please contact your Seyfarth Shaw attorney for guidance.

The 2015 Update supersedes the 1998 Policy, and is effective immediately.

OSHA Updates its Field Operations Manual

Posted in OSHA Enforcement

By James L. Curtis and Craig B. Simonsen

iStock_000060649530_MediumThe Occupational Safety and Health Administration (OSHA) has just released a substantial update to its Field Operations Manual (FOM), CPL 02-00-159 (October 1, 2015). The FOM is a reference document for OSHA field personnel that provides enforcement policies and procedures in conducting OSHA investigations.

In his related blog, OSHA Administrator David Michaels, explains that in FY 2014 OSHA conducted 36,163 safety and health inspections, with another 47,217 inspections conducted by states that administer their own health and safety plans. “Each one of those inspections was important…. But the reality is that some required far more time and resources than others. For example, the inspection of an oil refinery or a chemical manufacturing facility is more complex and time-consuming than one of a trenching site. Those complex inspections make a big difference – showing employers, and the whole country, that we are determined to investigate serious hazards regardless of how complex or challenging those inspections may be.”

To reflect this “on-the-ground reality,” Michaels announced that OSHA is changing the way it plans for and measures OSHA inspections by giving “added weight to the most demanding and complex inspections by introducing a new measurement: the Enforcement Unit.” “Under the new Enforcement Weighting System, routine inspections are valued as one Enforcement Unit, while more complex categories are valued at up to eight Enforcement Units.” Under the new system “process safety management inspections will be valued at seven units, workplace violence inspections are three units, and inspections involving a chemical for which there is no permissible exposure limit are also three units.” Michaels notes that the enforcement values were set based on historical data.

This new Enforcement Weighting System also correlates to the updated FOM’s inspection priorities as set out in Table 2-1:

Priority Category
First Imminent Danger
Second Fatality/Catastrophe
Third Complaints/Referrals
Fourth Programmed Inspections


Under the FOM, by November 30, 2015, state plans must submit a notice of intent indicating if the they will adopt or already have in place enforcement policies and procedures that are “identical to or different from the federal program.” State adoption then “should be accomplished within six months.”

NIOSH Drive Safely Work Week 2015 – Is Your Company (and its Policies) Ready?

Posted in OSHA Compliance

By Erin Dougherty Foley and Craig B. Simonsen

The National Institute for Occupational Safety and Health (NIOSH) Center for Motor Vehicle Safety (CMVS), through its NIOSH Science Blog, recently featured the Drive Safely Work Week campaign. The event is scheduled for this week, October 5-9, 2015.

Drive Safely Work Week is sponsored by the Network of Employers for Traffic Safety (NETS). NETS is a public-private partnership to engage employers in preventing motor vehicle crashes on and off the job. In their blog, Rebecca Olsavsky and Stephanie Pratt, PhD, note that “motor vehicle crashes are the leading cause of workplace fatalities in the U.S., and the second leading cause of unintentional fatal injuries off the job.” (Emphasis added.)

The CMVS has found that in 2012, 36% of all work-related fatalities reported by the Bureau of Labor Statistics were associated with motor vehicles. Between 2003-2012, 12,458 worker deaths occurred in single- or multiple-vehicle crashes on public highways

To assist employers in protecting their employees from motor vehicle crashes, the CMVS has released a fact sheet for employers: “Preventing Work-Related Motor Vehicle Crashes.” DHHS (NIOSH) Publication Number 2015-111. The fact sheet “outlines components of a successful motor vehicle safety program” and provides a checklist that “employers can use to implement the recommendations.” The CMVS motor vehicle safety program outlines the following components for an effective program:

  1. Company commitment to road safety.
  2. Written policies to guide employee actions to promote road safety.
  3. Driver selection, training, and evaluation that maximizes road safety.
  4. Safe and well-maintained vehicles.

The CMVS fact sheet can provide employers with a broad outline in the development of a company-wide motor vehicle safety program.

It is important to note that if a company-wide motor vehicle safety program is developed or is in-place, then the elements of the program need necessarily be fully implemented and monitored for defects, as if an accident does occur, you may be sure that third party inspectors, investigators (and other counsel) will be reviewing your plan closely to see if it was sufficient, and if it was fully implemented.

If you have questions regarding this information, please contact the authors or your Seyfarth attorney.

EPA Releases Final Clean Water Act Electronic Reporting Rule

Posted in CWA, Environmental Compliance

By Philip L. Comella, Patrick D. Joyce, and Craig B. Simonsen

iStock_000021343324_MediumThe U.S. Environmental Protection Agency last week finalized its rule to “modernize” Clean Water Act (CWA) regulatory reporting requirements for municipalities, industries, and other facilities.

According to the Agency’s news release the final rule will require regulated entities and state and federal regulators to “use existing, available information technology to electronically report data required by the National Pollutant Discharge Elimination System (NPDES) program instead of filing written paper reports.” EPA suggests that once the rule is fully implemented, the 46 states and other U.S. territories that are authorized to administer the NPDES program will collectively save about $22.6 million a year as a result of switching from paper to electronic reporting.

As part of the final rule the EPA will make facility-specific information, like inspection and enforcement history, pollutant monitoring results, and other data required by NPDES permits, accessible to the public through EPA’s website. Cynthia Giles, the Assistant Administrator for EPA’s Office of Enforcement and Compliance Assurance, indicated that “electronic reporting will give the public full transparency into water pollution sources, save millions of dollars, and lead to better water quality in American communities.”

During the rulemaking process, the EPA had held over 50 webinars and meetings to discuss the proposed rule. NPDES Electronic Reporting Rule, 78 Fed. Reg. 46006 (July 30, 2013). In response to state feedback, the final rule will provide “more flexibility for implementation,” providing more time for the transition from paper to electronic reporting, and more flexibility in how states can grant electronic reporting waivers to facilities.

Most facilities subject to effluent monitoring reporting requirements will be required to start submitting data electronically one year following the effective date of the final rule. A second phase will incorporate electronic reporting for other Clean Water Act reports such as performance status reports for municipal urban stormwater programs, controls on industrial discharges to local sewage treatment plants, and sewer overflows. Also in response to comments and suggestions from states, EPA is providing states with more time to electronically collect, manage, and share this data – up to five years instead of two years as initially proposed.

As indicated in the Agency’s proposed rule, electronic reporting has already been implemented in some states, and early findings showed improved data quality and data availability with reduced costs.

For municipalities, industries, and other facilities, as the Agency noted in its release, this rule will give the public “full transparency” into water pollution sources. Now would be a good time to consider your facility and the reporting that you have been doing. Will electronic filing make a difference to you in terms of time spent reporting or accessibility of reports to the public? Does it matter if the filed information is readily and more easily accessible to the public? Thinking about these questions before the new rule is implemented may cause you to think about changes in the way “things have always been done.” Your Seyfarth Shaw attorney is always available to answer any pressing questions you may have regarding this new rule.

OSHA Says You Should Train Employees on How to Do Their Laundry

Posted in OSHA Compliance

By Meagan Newman and Adam R. Young

iStock_000026199854_MediumOn June 1, 2015, federal OSHA released an Interpretation Letter requiring that employers train employees on the laundering requirements of fire retarding (FR) and arc-rated clothing.

The question, submitted to OSHA by the United Association of Plumbers and Pipefitters, sought OSHA’s enforcement position on the Personal Protective Equipment (PPE) Standard, 29 C.F.R. § 1926.95. The Union inquired as to whether the employer or employees were responsible for the laundering of fire retarding (FR) and arc-rated clothing provided to employees.

In response, the Agency explained that employers must ensure that protective clothing is maintained in a reliable condition. Where employees are expected to launder their own clothing at home, employers must train employees in “proper laundering procedures and techniques.” Employers then must inspect clothing on a regular basis to ensure that it is not in need of repair or replacement. According to OSHA, if an employer is unable to train employees on proper laundering procedures or is unable to inspect clothing regularly, the employer must launder the clothing itself.

While an Interpretation Letter is only advisory, the position taken in this letter demonstrates federal OSHA’s increasingly aggressive enforcement with regard to PPE and FR clothing. OSHA presents employers with a Hobson’s Choice: pay to collect and launder employee clothing, or be responsible for an adequate laundry training and clothing inspection program. Accordingly, employers should consider reviewing their policies for laundering PPE and seek compliance with the regulation.

Be Careful About What you Claim – Or Fail to Claim – FTC Sends Green Guides Warning Letters

Posted in Environmental Compliance, Green Marketing, Sustainability

By Meagan Newman, Ilana R. Morady, and Craig B. Simonsen

Last week the Federal Trade Commission (FTC) sent warning letters to providers of environmental certification seals, and to businesses using those seals, alerting them to the Commission’s concerns that the seals “could be considered deceptive and may not comply with the FTC’s environmental marketing guidelines.”

In the FTC’s news release, Jessica Rich, Director of the FTC’s Bureau of Consumer Protection, indicated that “environmental seals and certifications matter to people who want to shop green.” “But if the seals’ claims are broader than the products’ benefits, they can deceive people.”

In 2012, the FTC published its Guides for the Use of Environmental Marketing Claims (Green Guides). The FTC had first issued the Green Guides in 1992 to help marketers ensure that claims they made were true and substantiated. The Green Guides provide: 1) general principles that apply to all environmental marketing claims; 2) how consumers are likely to interpret particular claims and how marketers can substantiate these claims; and 3) how marketers can qualify their claims to avoid deceiving consumers. The FTC had revised the Green Guides in 1996 and 1998, and in 2010 it proposed the current revisions.

The Green Guides address environmental claims, namely renewable material claims, renewable energy claims, and carbon-offset claims. They also clarify and supplement existing guidance on general environmental benefit claims, ozone-safe, compostable, degradable, recyclable, recycled content, source reduction, refillable, and free-of/non-toxic claims, and the use of certifications and seals of approval. While during the rulemaking some public comments had requested that the FTC add a section to the Green Guides discussing organic and natural claims, the FTC declined because the Food and Drug Administration (FDA) and United States Department of Agriculture (USDA) also regulate the use of those terms.

The Green Guides were published at 16 CFR Part 260. As guidance documents they do not have the force and effect of law and are not independently enforceable. The FTC can, however, take action under Section 5 of the FTC Act, which prohibits unfair or deceptive practices, if a marketer makes an environmental claim inconsistent with the Green Guides.

Green seals and certifications, if not used clearly, can inadvertently deceive consumers by conveying something about a product that is not true. The FTC’s news release about the warning letters this week explains that unqualified general environmental benefit claims such as “green” and “eco-friendly” convey a “broad range of attributes, and that almost no product could have them all.” The Green Guides require that green claims be properly qualified, and provide some examples of how to create a seal or certificate to avoid deceiving consumers.

With this new round of ongoing enforcement proceedings and warnings relating to the Green Guides (see our previous blog about earlier FTC enforcement activities), manufacturers, distributors, and sellers of products should look closely at their marketing materials and “green” claims. Make sure now that your claims are substantiated, before the FTC comes calling.

OSHA Updates “General Industry Digest”

Posted in OSHA Compliance

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

iStock_000060649768MediumFederal OSHA has recently revised and re-published its “General Industry Digest” (Digest). OSHA 2201-08R 2015.

The Digest gives an overview of OSHA’s general industry standards to aid employers, supervisors, workers, and safety and health professionals in achieving compliance.

The Digest provides summaries of the “standards most frequently cited” and those standards “which cover particularly hazardous situations.” In 2014, OSHA’s most frequently cited standards were:

1 1926.501 Fall Protection (Construction)
2 1910.1200 Hazard Communication
3 1926.451 Scaffolding (Construction)
4 1910.134 Respiratory Protection
5 1910.178 Powered Industrial Trucks
6 1910.147 Lockout/Tagout
7 1926.1053 Ladders (Construction)
8 1910.305 Electrical, Wiring Methods
9 1910.212 Machine Guarding
10 1910.303 Electrical, General Requirements


OSHA continues to encourage employers to adopt an “injury and illness prevention program,” a “proactive process to help employers find and fix workplace hazards.” OSHA has not, however, adopted an IIPP standard. The Digest outlines recommendations and key elements for an IIPP program.

The Digest also includes a summary of “Hazardous Workplace Complaints: Worker Rights,” explaining that “workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards.” Appropriately, the Digest notes that “often the best and fastest way to get a hazard corrected is to notify a supervisor or employer.”

For businesses, this Digest can be read as the Agency’s perspective on compliance under these commonly cited standards. However, the Digest provides only a perfunctory summary of OSHA’s position on each standard. Agency interpretations and enforcement policy also can change over time. While the Digest may be a useful resource and instructive tool for safety personnel, it is an incomplete guide to compliance in your facility.


EPA Says “Stop” – Don’t Dump Those Drugs Down the Drain

Posted in Chemical Safety, Environmental Compliance, RCRA

By Patrick D. Joyce, Jeryl L. Olson, and Craig B. Simonsen

shutterstock_178475264The U.S. Environmental Protection Agency this week released a pre-publication copy of a proposed rule on pharmaceutical hazardous wastes in healthcare and related industries that will significantly affect our healthcare clients. 80 Fed. Reg. 58014 (Sept. 25, 2015).

Under the proposed rule, aimed at hospitals, clinics, nursing and assisted care facilities, retail stores with pharmacies, and reverse distributors that generate pharmaceutical waste, the Agency expects to “reduce the burden on healthcare workers and pharmacists” by creating specific regulations addressing “wastes” at these facilities. EPA’s proposed generator rule will regulate the labeling, managing and disposal of pharmaceutical waste, including over-the-counter medications, as well as, facilities’ emergency planning and preparedness, an area that is at best murky under current regulations.

In EPA Assistant Administrator Mathy Stanislaus’ blog about the proposal, “Making Hazardous Waste Regulations Work for Today’s Marketplace,” he explained that “we’re proposing to remove the traditional manufacturing-based hazardous waste generator requirements and instead provide a new set of regulations designed to be workable in a healthcare setting while ensuring safe management and disposal of hazardous waste pharmaceuticals.” (Emphasis added). Stanislaus says the proposal will ban the sewering, or flushing down the toilet or sink, of hazardous waste pharmaceuticals from healthcare facilities. The Agency expects the rule to prevent the flushing of more than 6,400 tons of hazardous waste pharmaceuticals annually.

The rule will define what are and are not “hazardous waste” pharmaceuticals, and will eliminate the concepts of small quantity generators (SQGs) or large quantity generators (LQGs), so that all generators and pharmaceutical reverse distributors, regardless of the volume of waste, “will be required to manage their hazardous waste pharmaceuticals under subpart P of 40 CFR part 266, instead of 40 CFR part 262.” This means the proposed standards will not be an optional alternative to managing hazardous waste pharmaceuticals under 40 CFR part 262 — they will be mandatory standards — and they may not provide the flexibility EPA desires.

The following facilities will potentially be regulated under the proposed rule:

NAICS Codes Description of NAICS Code
44611 Pharmacies
54194 Veterinary Clinics
6211 Physicians’ Offices
6212 Dentists’ Offices
6213 Other Health Practitioners (e.g., Chiropractors)
6214 Outpatient Care Centers
6219 Other Ambulatory Health Care Services
622 Hospitals
6231 Nursing Care Facilities (e.g., Assisted Living Facilities, Nursing Homes, U.S. Veterans Domiciliary Centers)
623311 Continuing Care Retirement Communities (e.g., Assisted Living Facilities with on-site nursing facilities)
Subset of 92219 Medical Examiners and Coroners’ Offices
Various NAICS Pharmaceutical Reverse Distributors

The Agency will accept public comments on the proposal, in Docket No. EPA-HQ-RCRA-2007-0932, until November 24, 2015.

OSHA Implications Under the NLRB’s New Expansive Definition of Joint Employer

Posted in OSHA Compliance

By Meagan Newman, Ilana R. Morady, and James L. Curtis

Safety at workLast week on our Employer Labor Relations Blog we wrote about a recent ruling of the National Labor Relations Board in the Browning-Ferris Industries (BFI) case that vastly expanded the definition of joint employer.

The case involved two companies, BFI and Leadpoint. Under a contract with BFI, Leadpoint supplied employees to BFI to perform various work functions including cleaning and sorting of recycled products. Using a greatly expanded legal definition, the Board found the two companies to be “joint employers.” Under the Board’s newly expanded test, two or more otherwise unrelated employers may be found to be a “joint employer” of the same employees under the National Labor Relations Act “if they ‘share or codetermine those matters governing the essential terms and conditions of employment’.” The Board’s ruling will have a significant impact on many business relationships. It greatly expands the types and number of entities that can be held responsible for unfair labor practice violations and who may be held to have collective bargaining obligations regarding employees of a totally separate, independent employer.

The Board’s decision may also expand OSHA liability. Under OSHA’s multi-employer policy an employer can already be cited for hazards to other employers’ employees if OSHA finds that the employer controls the hazard or is responsible for creating the hazard or correcting the hazard. Accordingly, “controlling employers” already faced potential OSHA liability. However, the BFI decision may allow OSHA to further expand controlling liability under the OSH Act to employers who really have little or no actual “control” over workplace safety. For example, OSHA appears intent on using the BFI decision to expand OSHA liability to franchisors when franchisees have been found to have violated the Act. OSHA is already pushing this agenda in a number of ongoing inspections.

Any employer that utilizes franchise agreements should carefully consider the potential impact of the BFI decision on their potential OSHA liability.

IFA Seeks OSHA Explanation of Applying a New Joint Employer Standard

Posted in Investigations/Inspections, OSHA Compliance

By James L. Curtis, Craig B. Simonsen, and Ronald J. Kramer

iStock_000018878893_HiResThe International Franchise Association (IFA) has filed a Freedom of Information Act (FOIA) request with the Occupational Safety & Health Administration (OSHA) asking for the rationale behind questions that its inspectors are asking franchise owners, which appear designed to establish joint employer relationship between franchisors and local franchisee small business owners.

The FOIA request is extensive, spanning four pages of detailed document requests. For instance, the IFA FOIA request asks for correspondence between the U.S. Department of Labor (DOL) and OSHA officials, the National Labor Relations Board (NLRB), and the Service Employees International Union (SEIU), which the IFA alleges has been engaged in a three year, $50 million corporate campaign (“Fight for 15”) to destroy the legal separation between franchise businesses and to grow union membership.

OSHA’S questions appear to go hand-in-hand with the NLRB’s recent Browning-Ferris decision. In a blog about it in our Employer Labor Relations Blog we note that the NLRB with its decision has “refined its standard for determining joint-employer status. The revised standard is designed ‘to better effectuate the purposes of the Act in the current economic landscape.’  With more than 2.87 million of the nation’s workers employed through temporary agencies in August 2014, the Board held that its previous joint employer standard has failed to keep pace with changes in the workplace and economic circumstances.”

In light of the NLRB’s stunning new interpretation, IFA Vice President of Government Relations, Public Policy & Counsel, Elizabeth Taylor, says that “the Labor Department is conducting a witch hunt that, at a minimum, exceeds the statutory authority afforded to the OSHA by Congress. At worst it is engaged in a conspiracy to destroy the franchise model in cooperation with the Service Employees International Union and the supposedly-independent unelected bureaucrats at the National Labor Relations Board and its General Counsel.”

The FOIA request indicates that IFA members have reported that OSHA investigators have been requesting extensive documentation during investigations that far exceed normal OSHA procedure, and exceed the statutory authority of OSHA. OSHA, IFA believes, has done so at the direction of the DOL. Some of the requests are for documents detailing the business relationship between the franchisor and the franchisee and have nothing to do with the franchisors direct involvement in the safety issues at local restaurants.

These questions appear to suggest OSHA may already be pursuing the expanded definition of joint employer, as it applies to the franchisor/franchisee relationship, put forth in the Browning-Ferris decision.