Environmental Compliance

By Mark A. Lies, II, Adam R. YoungJames L. Curtis, and Benjamin D. Briggs

Seyfarth Synopsis:  It is imperative that employers develop and implement organized and clearly communicated procedures for responding to a disaster. A well-planned and executed emergency response program will provide orderly procedures and prevent panic, thereby minimizing employee injuries and damage to property.

Please see the entire Alert, After the Rain: Disaster Recovery and Employee Safety Following Hurricane Harvey, for the full article and recommendations.

By Andrew H. Perellis and Craig B. Simonsen

Seyfarth Synopsis: Pursuant to President Trump’s Executive Order (EO) on “Restoring the Rule of Law… by Reviewing the “Waters of the United States” Rule, the Agencies have scheduled ten teleconferences to collect stakeholder recommendations on the revision of the Waters of the United States (WOTUS) rule.

We had previously blogged on the WOTUS rulemaking. See EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”, EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water Act, Proposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

The EPA and the Corps of Engineers have now issued an Announcement of Public Meeting Dates, 82 Fed. Reg. 40742 (August 28, 2017).  In the Announcement, the Agencies note that they intend to propose a new definition for WOTUS that would replace the approach in the 2015 Clean Water Rule with one that is consistent with the approach outlined in the EO.  The Agencies recently completed consultation processes with tribes and state and local governments on the rulemaking.

Now the Agencies seek to provide other interested stakeholders an opportunity to provide pre-proposal “feedback” on the rule to revise the definition of the WOTUS.

The teleconferences will be held on a weekly basis beginning September 19, 2017, and will continue each Tuesday thereafter for ten weeks.  Each session will run from 1:00 p.m. to 3:00 p.m., eastern time.  Information on how to register for the meetings is available on the EPA Web site.

Persons or organizations that wish to provide verbal recommendations during the teleconference will be selected on a first-come, first-serve basis. Individuals will be asked to limit their oral presentation to three minutes.

Note that each of the ten sessions will be geared to particular entities and organizations (such as small businesses and small government jurisdictions), and business segments (such as construction, transportation, and mining).  So it is importatant that you attend the session that most matches your particular interests in the rulemaking.

In addition, the Agencies are also planning an in-person meeting with small entities, to be held on Monday, October 23, 2017.  Check the Announcement for attendance information.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Jinouth Vasquez Santos

Seyfarth SynopsisMarijuana businesses must properly label their products if they contain chemicals that can cause cancer, birth defects, or other reproductive health problems.  Failure to do so will result in a civil penalty or civil lawsuit.

Entrepreneurial Plaintiff’s attorneys have now set their sites on marijuana businesses.  Since January 1, 2017, Plaintiff’s firms have issued approximately 800 violation notice letters to marijuana businesses alleging that producers of cannabis infused edibles and vape cartridge manufacturers failed to warn consumers about specific fungicides and pesticides associated with their products.

California’s Proposition 65, or the Safe Drinking Water and Toxic Enforcement Act of 1986, requires cannabis business owners to provide customers with warning of the chemicals contained in their products which can cause cancer, birth defects, and other health problems.  Among the substances “known to the state of California” to cause cancer, birth defects and other health problems are marijuana smoke itself, and the chemicals myclobutanil (also a fungicide), carbaryl, and malathion, commonly-used pesticides.

Failure to comply with the warning requirement can result in a civil penalty up to $2,500 per violation per day in addition to other penalties established by law. The Attorney General may bring an action in the name of the people or the Act allows individuals to bring a private action to obtain the civil penalty against marijuana businesses for failure to warn.

Before filing a lawsuit, the individual seeking a private action must provide a 60-day notice to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.  If, after 60 days, none of the referenced individuals/entities take action, then the individual may proceed with his or her private claim so long as he or she complies with the 60-day notice requirements.

In order for the 60-day notice to be compliant, the notice must include a copy of Prop 65, a description of the violation, the name of the individual seeking an action, the time period of the violation, the listed chemicals involved, the route of exposure (ingestion, dermal contact or inhalation), and a certificate of merit.  The individual bringing the action must certify that they have “consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action.”

Marijuana businesses may avoid such 60-day notices and potential litigation by becoming familiar with the various chemicals that require warning labels, placing warning labels on their products, and ensuring that the pesticide levels in the products are compliant with California regulations. A comprehensive list of the 800 chemicals identified by the State can be found here.

California’s ever changing cannabis regulations can be difficult to maneuver. If you would like to review your policies for compliance, you may contact one of Seyfarth Shaw’s attorneys for assistance.

By Craig B. Simonsen and  Jeryl L. Olson

Seyfarth Synopsis: Businesses and industries that had been impacted by the EPA’s HFCs rule may wish to monitor EPA’s response to this opinion carefully.

The DC Circuit Court of Appeals this week, by a split three-judge panel, vacated part of a 2015 EPA rule intended to target greenhouse gas emissions, saying that while Section 612 of the Clean Air Act (CAA) does require manufacturers to replace ozone-depleting substances with safe substitutes, hydrofluorocarbons (HFCs) do not deplete ozone, so the agency never had the power to enforce the replacement provision of the rule.  “The fundamental problem for EPA is that HFCs are not ozone-depleting substances, as all parties agree.”  Mexichem Fluor, Inc. v. EPA, No. 15-1328, — F.3d —-, 2017 WL 3389376 (DC Cir. Aug 8, 2017).

This case was filed because in 2013, President Obama announced that EPA would work to reduce emissions of HFCs because HFCs contribute to carbon emissions. “Plan to Cut Carbon Pollution and Address Climate Change” (June 25, 2013). The Climate Action Plan indicated that “… the Environmental Protection Agency will use its authority through the Significant New Alternatives Policy Program” of Section 612 to reduce HFC emissions. Consistent with the Climate Action Plan, EPA promulgated its Final Rule in 2015 that moved certain HFCs from the list of safe substitutes to the list of prohibited substitutes (Change of Listing Status for Certain Substitutes Under the Significant New Alternatives Policy Program, 80 Fed. Reg. 42870, July 20, 2015).

Th DC Circuit Court concluded this week that “EPA’s novel reading of Section 612 is inconsistent with the statute as written.  Section 612 does not require (or give EPA authority to require) manufacturers to replace non-ozonedepleting substances such as HFCs.  We therefore vacate the 2015 Rule to the extent it requires manufacturers to replace HFCs, and we remand to EPA for further proceedings consistent with this opinion.”

For businesses and industries that had been impacted by the EPA’s HFCs rule, it is time to watch for what the Agency does in response to the Court’s opinion.  Whether it appeals to the Supreme Court, or begins rulemaking to revise the current rules, you may wish to monitor this carefully.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

EPA SignSeyfarth Synopsis: The EPA and Army Corps of Engineers have proposed to rescind the 2015 Clean Water Rule defining “Waters of the U.S.,” and recodify the pre-existing rule, then engage in a subsequent rulemaking to re-evaluate and revise the definition of WOTUS presumably intended to decrease in the number of water bodies subject to EPA permitting obligations.

The U.S. Environmental Protection Agency and the Army Corps of Engineers have published a proposed rule on the “Definition of “Waters of the United States” – Recodification of Pre-Existing Rules.”

We had previously blogged about the EPA’s monumental final rule, in June 2015, expanding the definition of “Waters of the United States” (WOTUS) under the Clean Water Act, thereby increasing the number of water bodies subject to protection by the EPA through permitting obligations. The final rule was based on EPA’s Science Advisory Board’s draft scientific report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence.” EPA/600/R-11/098B (September 2013).

In commenting on the proposed rule to rescind the WOTUS rule, EPA Administrator Scott Pruitt said, “we are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses …. This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

The proposed rescission follows President Trump’s February 28, 2017, Executive Order on “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  The effect of the rescission would be to recodify the regulatory text that was in place prior to the 2015 Clean Water Rule and that is currently in place as a result of a U.S. Court of Appeals for the Sixth Circuit’s stay of the 2015 rule. Therefore, according to the EPA press release, this action, when final, “will not change current practice with respect to how the definition applies.”

EPA also notes that the agencies have begun deliberations and outreach on the second step of the rulemaking involving a reevaluation and revision of the definition of WOTUS in accordance with the Executive Order.

The regulated community — industry, municipalities, developers, builders, and a host of others — should watch and monitor this rulemaking effort closely.  While this initial step will recodify the pre-existing rule, the subsequent rulemaking to re-evaluate and revise the definition of WOTUS presumably is intended to reduce the number of regulated water bodies constituting “waters of the United States,” thereby decreasing permitting obligations, or subjecting fewer entities to permitting requirements as a result of a narrower definition of WOTUS.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

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

Seyfarth Synopsis: Last week Administrator Scott Pruitt signed a final rule to further delay the effective date of EPA’s Risk Management Program (RMP) Amendments an additional 20 months to allow the agency to conduct a reconsideration proceeding.

The U.S. Environmental Protection Agency’s new rules to strengthen the Clean Air Act’s Risk Management Program (RMP), 40 C.F.R. Part 68, were first adopted on January 13, 2017 (82 Fed. Reg. 4594), after the proposed regulations were published for notice and comment on March 14, 2016 (81 Fed. Reg. 13638).

However, Administrator Pruitt has now signed a rule changing the effective date of the amendments to February 19, 2019 (82 FR 27133).

For an analysis on the proposed rules see our previous blog on U.S. EPA To Require Stronger Chemical Safety Regulation.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

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

Photo from CSB YouTube page video capture: https://www.youtube.com/watch?v=MCEErm18T2k
Photo from CSB YouTube page video capture: https://www.youtube.com/watch?v=MCEErm18T2k

Seyfarth Synopsis: The CSB found deficiencies in the facility’s design and labeling of the chemical loading stations, and failure to follow the company’s written chemical unloading procedures.

The U.S. Chemical Safety Board recently released preliminary findings from its ongoing investigation of the toxic chemical release that occurred at a processing plant in Atchison, Kansas.  The investigation has identified several deficiencies in the design and labeling of the loading stations, and failure to follow the company’s written chemical unloading procedures.

In the Atchison case, a chemical tanker truck arrived at the facility to deliver sulfuric acid.  A facility operator escorted the driver to a locked loading area.  The operator unlocked the gate to the fill lines and also unlocked the sulfuric acid fill line.  The Board findings indicate that the facility operator likely did not notice that the sodium hypochlorite fill line was also already unlocked before returning to his work station.  The driver accordingly connected the sulfuric acid discharge hose from the truck into the sodium hypochlorite fill line.  The line used to transfer sulfuric acid looked similar to the sodium hypochlorite line, and the two lines were located in close proximity.

As a result of the incorrect connection, allegedly thousands of gallons of sulfuric acid from the tanker truck entered the facility’s sodium hypochlorite tank.  The resulting mixture created a dense cloud of poisonous gas, which traveled northeast of the facility until the wind shifted the cloud northwest towards a more densely populated area of town.  The Board’s investigation preliminary findings have concluded that “emergency shutdown mechanisms were not in place or were not actuated from either a remote location at the facility or in the truck.”

The Board indicated that a number of design deficiencies increased the likelihood of an incorrect connection.  These included “the close proximity of the fill lines, and unclear and poorly placed chemical labels.”  In addition, neither the facility operator of the tanker truck driver followed internal procedures for unloading operations.

This incident illustrates the necessity of maintaining both safety procedures, and regular training on those safety procedures.  Process safety management reviews and periodic reviews of operating procedures can also assist employers to find process areas that have potential weaknesses or issues that can be corrected, before incidents occur.

Human factors such as the chance of operator confusion appears to have played a role in this incident. Employer’s should continue to evaluate human factors as part of their hazard assessments.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

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

iStock_000011623330_MediumSeyfarth Synopsis: In a significant proposal, EPA moves to ban the use of TCE in aerosol degreasing and spot cleaning at dry cleaning facilities, as part of a larger effort to ban TCE in other industrial uses.

The U.S. Environmental Protection Agency is proposing to ban certain uses of Trichloroethylene (TCE) – one of the most commonly used solvents – because of alleged health risks from its use as an aerosol degreaser and for spot cleaning in dry cleaning facilities. 91 Fed. Reg. 91592 (Dec. 16, 2016). The proposed rule was issued under the recently-amended Section 6(a) of the Toxic Substances Control Act.

This is a significant and controversial step. Not only is this EPA’s first use of Section 6(a) in 25 years, it is EPA’s first use of the “new” Section 6(a), which was revised in June 2016. In addition to the current proposed ban, EPA has indicated it intends to issue a proposal to ban TCE in vapor degreasing, and will publish one final rule banning TCE use in aerosol degreasing, spot cleaning at dry cleaning facilities, and vapor degreasing.

TCE is a volatile organic compound (VOC) that is both produced and imported into the United States, with use estimated to be around 250 million pounds per year. TCE is a clear, colorless liquid with a sweet odor and it evaporates quickly. TCE is used industrially as a solvent, a refrigerant, and in dry cleaning fluid. The majority of TCE is used (about 84 percent) in a closed system as an intermediate chemical for manufacturing refrigerant chemicals. Much of the remainder (about 15 percent) is used as a solvent for metals degreasing. Only a small percentage accounts for other uses, including use as a spotting agent in dry cleaning and in consumer products.

While the use of TCE in aerosol degreasing and spot dry cleaning constitute the least common use of the solvent in the United States, under this current proposal, EPA will prohibit the manufacture (including import), processing, and distribution in commerce of TCE for use these limited uses. However, EPA has indicated it is also developing a proposal to ban the use of TCE in other industries and in other operations with higher volume uses of the chemical (i.e., vapor degreasing). EPA’s final rule will includes the current proposed ban on aerosol use and spot cleaning in dry cleaning facilities, as well as the upcoming proposed ban on vapor degreasing.

The proposed ban on aerosol and dry cleaning uses includes requirements that manufacturers, processors, and distributors of TCE notify retailers and others in their supply chains of the prohibitions on use in aerosol degreasing and spot dry cleaning, and it is presumed the ban on vapor degreasing will have similar notification requirements.

Comments will be received on the proposed rule, Docket No. EPA–HQ–OPPT–2016–0163, until February 14, 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis and Craig B. Simonsen

Dentist or dental officeSeyfarth Synopsis: In another rule aimed at small business, the EPA has just issued a rule for Effluent Limitations Guidelines and Standards for the Dental Category. The rule will add more federal compliance costs to already tight dental office budgets.

The U.S. Environmental Protection Agency issued last week its pretreatment standards to reduce discharges of mercury from dental offices into publicly owned treatment works (POTWs).  We had blogged previously when the rules were proposed in October 2014.

Dental offices discharge mercury present in amalgam used for fillings. According to the Agency, “amalgam separators are a practical, affordable and readily available technology for capturing mercury and other metals before they are discharged into sewers that drain to POTWs.” EPA anticipates that once captured by a separator, mercury may be recycled.

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 expects compliance with this final rule will annually reduce the discharge of mercury by 5.1 tons as well as 5.3 tons of other metals found in waste dental amalgam to POTWs.

EPA indicated that the rule will apply to offices, including large institutions such as dental schools and clinics, where dentistry is practiced that discharge to a POTW. “It does not apply to mobile units or offices where the practice of dentistry consists only of the following dental specialties: oral pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics, periodontics, or prosthodontics.”

The final rule purports to ease administrative burdens from those initially proposed. “Administrative burden was a concern of many of the commenters on the 2014 proposed rule and EPA has greatly reduced that burden through streamlining the administrative requirements in this final rule.” The Agency claims that to simplify implementation and compliance for the dental offices and the regulating authorities, the final rule establishes that dental dischargers are not Significant Industrial Users (SIUs) as defined in 40 CFR part 403, and are not Categorical Industrial Users (CIUs) or “industrial users subject to categorical pretreatment standards” as those terms and variations are used in the General Pretreatment Regulations, unless designated such by the Control Authority.

“While this rule establishes pretreatment standards that require dental offices to reduce dental amalgam discharges, the rule does not require Control Authorities to implement the traditional suite of oversight requirements in the General Pretreatment Regulations that become applicable upon the promulgation of categorical pretreatment standards for an industrial category.” This, the EPA asserts, will significantly reduce the reporting requirements for dental dischargers that would otherwise apply by instead requiring them to demonstrate compliance with the performance standard and BMPs through a one-time compliance report to their Control Authority.

The approach will also eliminate additional oversight requirements for Control Authorities that are typically associated with SIUs, such as permitting and annual inspections of individual dental offices. “It also eliminates additional reporting requirements for the Control Authorities typically associated with CIUs, such as identification of CIUs in their annual pretreatment reports.”

In its proposal EPA estimated that there 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 at that time, “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 requires 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.

In response to the proposed rule the American Dental Association said that it believes the “new federal regulation represents a fair and reasonable approach to the management of dental amalgam waste…. The rule includes reasonable exemptions, a phase-in period and considerations for dental practices that have already installed the devices.”

The compliance date for existing facilities is three years from the rule publication in the Feedral Register.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

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

Blog - Fracking WaterSeyfarth Synopsis: With significant objection from Industry, EPA has issued its Final Report on whether hydraulic fracturing activities can impact drinking water resources under certain circumstances.

The U.S. Environmental Protection Agency published its controversial final report on “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States.” In the report, which has already been subject to great objection from Industry, EPA issued its finding that hydraulic fracturing (fracking) activities in the U.S. may have impacts on the water lifecycle, affecting drinking water resources. The Agency had put out a draft of the report for public comment in June 2015, which we blogged on at that time. 80 Fed. Reg. 32111.

The report was prepared at the request of Congress. Its purpose was to follow water resources used for fracking through the entire water cycle from water acquisition, to chemical mixing at the well pad site, to well injection of fracking fluids, to the collection of fracking wastewater (including flowback and produced water), and finally, to wastewater treatment and disposal. EPA claimed that the study “identified conditions under which impacts from hydraulic fracturing activities can be more frequent or severe.” The report also identified “data gaps [that] limited EPA’s ability to fully assess impacts to drinking water resources both locally and nationally.” The final conclusions were based on review of over 1,200 cited sources.

In response to EPA’s report, the American Petroleum Institute (API) blasted the EPA’s “abandonment of science in revising the conclusions to the Assessment Report….” API and the fracking industry requested changes to EPA’s Draft Report that EPA did not incorporate in the Final Report. As a result, API Upstream Director Erik Milito said, “the agency has walked away from nearly a thousand sources of information from published papers, technical reports and peer reviewed scientific reports demonstrating that industry practices, industry trends, and regulatory programs protect water resources at every step of the hydraulic fracturing process.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.