Environmental & Safety Law Update

OSHA Prepares “Request for Information” to Prevent Communication Tower “Tragedies”

Posted in OSHA Compliance

By James L. Curtis and Craig B. Simonsen

In recent remarks by OSHA Administrator David Michaels at the “DOL-FCC Workshop on Tower Climber Safety and Injury Prevention,” Michaels indicated that “we at OSHA are very concerned about the rising number of tower worker deaths. The fatality rate in this industry is extraordinarily high – tower workers are killed on the job at a rate more than ten times higher than construction workers.” Emphasis added.

Michaels noted that in 2013 OSHA recorded 13 communication tower-related worker deaths, which was nearly double the number of the previous two years combined. “So far in 2014, there have already been 11 worker deaths at communication tower worksites.”


Employees in this industry need to climb towers throughout the year, including during inclement weather conditions. Some of the potential hazards may include:

  • Falls from heights;
  • Electrical hazards;
  • Hazards associated with hoisting personnel and equipment with base-mounted drum hoists;
  • Inclement weather;
  • Falling object hazards;
  • Equipment failure; and
  • Structural collapse of towers.

In response to the 2014 falling fatalities OSHA has implemented a national outreach campaign using traditional, digital and social media, including a tower safety webpage. OSHA framed the campaign with the slogan, “No More Falling Workers.” OSHA is also preparing a Request for Information to engage all stakeholders “in a collaborative effort to prevent more of these senseless tragedies.” Additionally, OSHA has set up a dedicated email address, at OSHACommTower@dol.gov, where individuals may “share your stories, concerns, and best practices.”

Employers in the communications tower industry need to be especially cognizant of OSHA’s rampant attention to their business and projects. Special care should be taken to make sure that all of your company safety policies, procedures, and training are up-to-date and current. While accidents may happen no matter how well we work to avoid them, having corporate materials in order, and properly training and overseeing your employees will go a long way in minimizing potential liabilities if and when an accident occurs.

Railroad Ordered to Pay $225,000 in Whistleblower Action where Employee Allegedly Lied About Prior Injuries

Posted in OSHA Compliance, Transportation, Whistleblower

By Ada W. Dolph and Craig B. Simonsen

A railroad’s decision to terminate an apprentice electrician whose OSHA injury report revealed he had not been truthful in his employment record about other prior workplace injuries was unlawful retaliation under the whistleblower provision of the Federal Railroad Safety Act, 49 U.S.C. § 20109 (FRSA), OSHA has ordered.  The railroad was ordered to pay $50,000 in compensatory damages, $150,000 in punitive damages, more than $22,000 in back wages and interest, and reasonable attorney’s fees.

After the employee was seriously injured at work, the injury was reported to OSHA and included information regarding prior unrelated workplace injuries.  The company investigated the injury, reviewed the information reported to OSHA, and concluded that the employee had been dishonest with the company about his prior workplace injury record.  As a result, the company terminated the employee’s employment.  The employee filed a whistleblower complaint under FRSA asserting that his employment had been terminated in retaliation for reporting workplace injuries.  OSHA agreed, leveling this significant damages award against the company.

This decision demonstrates how broadly OSHA will interpret employee whistleblower protections.  Employers should tread lightly when taking disciplinary action that is the fruit of any aspect of employee activity that is permitted under the whistleblower provisions of FRSA or any of the 21 other statutes that OSHA is charged with enforcing. 

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

Retail Grocers and Related Industries To Feel Impact of Phase Out of HCFCs

Posted in CAA, Environmental Compliance

By Jeryl L. Olson

Following pressure from Environmental Groups and Congress, the U.S. Environmental Protection Agency has announced two rule changes affecting users of refrigerants containing ozone depleting substances (ODS) (chlorofluorocarbons or “CFCs” and hydrochlorofluoro-carbons or “HCFCs”). 

On October 20, 2014, EPA announced the phase out of the production, import, and export of certain HCFCs between 2015 and 2019, and to phase out the use of the most common HCFCs (HCFC 22, HCFC 142b, and HCFC-225ca/cb) by 2020.  This final rule is effective January 2015.  As in previous rulemakings phasing out the production of, and eventually banning the use of ODS associated with refrigerants, these changes will have a significant impact on industries with high use of refrigerants, including retail grocers. 

While many grocery chains have moved away from HCFCs in order to avoid the recordkeeping and reporting associated with leak detection and repair rules, others have continued to commonly use HCFC 22, and other users of  HCFC 142b and HCFC-225ca/cb will likewise be affected. 

In a separate rulemaking, on October 21, 2014, EPA suggested several alternatives to the ODS scheduled on October 20, 2014 for a phase out and ban.  79 Fed. Reg. 62863.  Approved alternative substances include trans-1-chroyl-3,3,3,-trifluoroprop-1-ene (Solstis 1233zd(E), and Solstis N12 Refrigerant).  Carbon dioxide (R-744), is identified as an alternative for use in a refrigerated transport, and R450A as a substitute in refrigeration and air conditioning systems.  For foam blowing, EPA has suggested methylal and hydrofluoroolefin (HFO), as alternatives to the soon-to-be HCFC ODS. 

The full list of acceptable substitutes for ozone depleting substances in all industrial sectors are available on the Agency’s Ozone Layer Protection Web site.

Feel free to reach out to the author, one of Seyfarth Shaw’s Environmental Compliance, Enforcement & Permitting team members, or your Seyfarth attorney with any questions on this important topic.

120,000 Dental Offices to be Regulated Under EPA Dental Amalgam Rules

Posted in CWA, Environmental Compliance

By Andrew H. Perellis and Craig B. Simonsen

In another proposal aimed at small business, the U.S. Environmental Protection Agency has just proposed a rule for Effluent Limitations Guidelines and Standards for the Dental Category. 79 Fed. Reg. 63258 (October 22, 2014). The rule will add more federal compliance costs and potential local treatment facility user fees to already tight dental office budgets.

The EPA proposed technology-based pretreatment standards under the Clean Water Act will be for discharges of pollutants into publicly owned treatment works (POTWs) from existing and new dental practices that discharge dental amalgam. Dental amalgam is a mixture of metals, consisting of liquid mercury and a powdered alloy composed of silver, tin, and copper. Approximately fifty percent of dental amalgam is elemental mercury by weight. Dental amalgam is a dental filling material used to fill cavities caused by tooth decay. It has been used for more than 150 years in hundreds of millions of patients.

EPA estimates there are approximately 160,000 dentists working in over 120,000 dental offices who use or remove amalgam in the United States – “almost all of whom discharge their wastewater exclusively to POTWs.” According to the EPA news release, “this is a common sense rule that calls for capturing mercury at a relatively low cost before it is dispersed into the POTW.”

Specifically the rule would require dentists to cut their dental amalgam discharges to a level achievable through the use of the “best available technology,” known as amalgam separators, and the use of other Best Management Practices. Amalgam separators are devices designed to remove amalgam waste particles from dental office wastewater.

As proposed the rule would allow dentists to demonstrate compliance by installing, operating and maintaining amalgam separators. The rule also provides that dental practices whose existing separators do not remove the percentage of amalgam in the proposed requirements as meeting the proposed requirements for the life of the existing separator. The rule also proposes to limit dental dischargers’ reporting requirements to annual certification and recordkeeping in lieu of wastewater monitoring. EPA estimates the annual cost of the proposed rule would be $44 to $49 million.

In response to the proposed rule the American Dental Association said that the “the Association has consulted with the EPA as it developed the rule and supports a reasonable national pretreatment standard for amalgam waste so long as it is not unduly burdensome on dental professionals.” ADA News Release, September 26, 2014.

A public hearing on the proposed rule is scheduled for November 10, 2014, at 1 p.m. ET, in the William J. Clinton East Building, Room 1153, 1201 Constitution Avenue NW., Washington, DC. Comments may be submitted to Docket No. EPA–HQ–OW–2014–0693.

Webinar on Ebola: Workplace Liability Challenges

Posted in Emergency Planning, International, OSHA Compliance

On Friday, October 24th at 12:00 PM CT, Brent Clark, James Curtis, Mark Lies, Meagan Newman, and William Schurgin will present the webinar: Ebola: Workplace Liability Challenges.

There is no doubt that U.S. employers are affected by the recent news of Ebola infections within our borders.  There is also no doubt that anxiety among employers and employees has risen along with that of the general public.  In this webinar our safety and health lawyers will offer insight and guidance regarding the impact of Ebola—covering the real workplace safety and health impacts as well as employment law issues and associated liability concerns including:

  • OSHA and CDC Guidance
  • EEOC and ADA Issues
  • Workers Compensation
  • FMLA
  • Civil Liability

While there is no cost to attend this program, registration is required.

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. Because of the fact that EHV has resulted in a significant mortality rate, even though it is temporary in nature, it is very conceivable that it would be considered 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.


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.