Environmental Compliance

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

Seyfarth Synopsis: The U.S. Environmental Protection Agency (EPA) announced that it will not issue a final rule for the Obama-era’s proposed regulations for financial responsibility requirements for certain hardrock mining (HRM) facilities. 83 Fed. Reg. 7556 (Jan. 21, 2018).

EPA Administrator Scott Pruitt announced that “after careful analysis of public comments, the statutory authority, and the record for this rulemaking, EPA is confident that modern industry practices, along with existing state and federal requirements [sufficiently] address risks from operating hardrock mining facilities.”  “Additional financial assurance requirements are unnecessary and would impose an undue burden on this important sector of the American economy and rural America, where most of these mining jobs are based.”

EPA was under a court ordered deadline to take final action on this rulemaking by December 1, 2017.

EPA’s actions confirm the Trump Administration’s hostility toward regulation. Specifically, EPA concluded that the “degree and duration of risk” associated with the modern hardrock mining industry “does not present a level of risk of taxpayer funded response actions that warrant imposition of financial responsibility requirements under CERCLA for this sector.” According to the Agency, the determination reflected EPA’s interpretation of the statute, EPA’s evaluation of the record for the proposed rule, and the approximately 11,000 public comments received by EPA on this proposed rulemaking.

EPA published proposed HRM financial responsibility regulations under section 108(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund) on January 11, 2017. The public comment period on the docket closed on July 11, 2017. The proposed rule was intended to “increase the likelihood that owners and operators will provide funds necessary to address the CERCLA liabilities at their facilities, thus preventing owners or operators from shifting the burden of cleanup to other parties, including the taxpayer.”

The U.S. Chamber of Commerce’s comments on the proposed rule, filed July 11, 2017, called upon EPA to make a determination that no rule was necessary.

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, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) proposed a rule that would add an applicability date two years in the future to the Obama-era Waters of the United States (WOTUS) rule. 82 Fed. Reg. 55542 (Nov. 22, 2017).

The WOTUS rulemaking has been frought with controversy, and has generated well over a million public comments.

We have previously blogged on the WOTUS rulemaking. See Executive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, 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 November 22, 2017 proposed rule would extend the applicability date of the Obama-era 2015 WOTUS Rule by two years beyond the comment period, which closes on December 13, 2017. Should the November 22, 2017 proposed rule become “final” on that same day, which is unlikely, the earliest the 2015 WOTUS Rule could be “applicable” is December 13, 2019.

EPA claims that this applicability extension “would give the agencies the time needed to “fully reconsider” the definition of ‘waters of the United States’.”

EPA Administrator Scott Pruitt said of this proposal that it “shows our commitment to our state and tribal partners and to providing regulatory certainty to our nation’s farmers, ranchers and businesses…. This step will allow us to minimize confusion as we continue to receive input from across the country on how we should revise the definition of the ‘waters of the United States’.”

EPA also reiterated that the November 22, 2017 proposed rule is separate from the ongoing two-step process the Agencies are currently undertaking to reconsider and potentially revise the 2015 WOTUS Rule. The comment period for Step 1 of the reconsideration closed in September, receiving just under 700,000 comments. Meanwhile, the agencies are still reviewing the 1.1+ million comments received from the public for the 2015 Obama-era WOTUS Rule. The Agencies are also in the process of holding “listening sessions” with stakeholders to assist the Agencies in developing a proposed Step 2 rule that would again revise the definition of “waters of the United States.”

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 Ilana R. Morady and Andrew H. Perellis

Seyfarth Synopsis: The Cleaning Product Right to Know Act makes California the first state to require ingredient labeling both on product labels and online for consumer cleaning products.

On October 15, 2017, California Governor Jerry Brown signed California Senate Bill (S.B.) 258, the Cleaning Product Right to Know Act of 2017. The new law requires manufacturers of certain cleaning products, i.e. “designated products,” to disclose certain chemical ingredients on the product label by 2021.

Designated products are “a finished product that is an air care product, automotive product, general cleaning product, or a polish or floor maintenance product used primarily for janitorial, domestic, or institutional cleaning purposes.” Exceptions apply, such as referencing that the ingredient information is available on a website, or providing a toll-free phone number.

Under the new law, product information – such as the CAS numbers, the functional purposes of certain ingredients, and a link to the safety data sheets for the products – must also be made available on the manufacturers’ website by 2020. In light of the new law, chemical manufacturers of cleaning products should review their inventory of products sold in California and determine if such products are covered.

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 Andrew H. Perellis and Mike Radcliffe

Seyfarth Synopsis:  This blog welcomes Mike Radcliffe, for our guest author’s thoughts on the up and coming deadline for organizations to come into compliance with the new ISO 14001:2015 environmental management system (EMS) standard.

The new ISO standard brings significant change that will require considerable time and thought to implement. Due to the timing, the strategy should focus on implementing the EMS to address the greatest “gaps” and developing the “hard proof” of its effectiveness within your organization.

While it’s not too late to start with an ISO 14001:2015 installation, there should be little delay.  The deadline for recertification of your ISO 14001 EMS is September 15, 2018. After that, certificates issued under the ISO 14001:2004 standard will no longer be valid.

Some companies have the time and expertise to implement needed changes internally.  However, many companies will need to rely on outside assistance. Knowledgeable consultants are busy and will increasingly be in tight supply.  Radcliffe , an independent consultant already assisting several companies with the recertification process, cautions that the project lifecycle for a well-crafted EMS can require up to a year from design to full implementation. Not all of this time is spent developing and writing procedures and work instructions.

In fact, a majority of the time will involve collaboration between the consultant and the company’s internal staff to implement the EMS, by testing the procedures, developing proof that the EMS is functioning, and confirming that the EMS will be able to fulfill its strategic purpose. In addition, under the new ISO 14001:2015 requirements, the organization needs to formulate an approach for including its interested parties and stakeholders (e.g., suppliers) in its contextual analysis (e.g., how, where and with whom does it operate) and in its life cycle thinking. Such strategic thinking will obviously be impaired by tight deadlines.

Other significant changes to the EMS also require advance planning and thoughtful implementation. According to Radcliffe, some of the thematic differences between the two standards are:

  1. EMS aligned with the organization’s strategic direction.
  2. Top management more engaged and subject to nine specific accountabilities.
  3. Consideration of strategic threats and opportunities.
  4. Focus on Life Cycle thinking.
  5. Integrating EMS functionality into business operations.

In sum, the new ISO standard is a significant change that will require time and thought to implement. Companies are urged to look at their EMS systems soon, and bring them into compliance.

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.  Information on Mike Radcliffe can be found on his LinkedIn page, and he can be contacted at michael.radcliffe@gmail.com.

By James L. Curtis and Craig B. Simonsen

Seyfarth Synopsis:  A recent active shooter incident at an international airport illustrates both how quickly an incident may be over, yet how ancillary impacts take much longer to resolve. While the shooter was apprehended in less than two minutes, the international airport was shut down for most of a full day, impacting over 500 employees and 10,000 customers, and 20,000 personal items were lost.  The after-action report offers some lessons learned.

At the World Safety Organization International Environmental and Occupational Safety and Health Symposium this week, William G. Thompson, IV, the Occupational Safety & Health Manager and Safety Management System Administrator at Broward County Aviation Department, including the Fort Lauderdale-Hollywood International Airport (Airport), presented the findings from the January 6, 2017 active shooter incident at the Airport.  Fort Lauderdale-Hollywood International Airport Active Shooter Incident and Post-Event Response January 6, 2017 After-Action Report (August 15, 2017) (Report or Findings).  Thompson was at the Airport that day, watched the events unfold, and cooperated in the resolution and the preparation of the Report.

The Report indicates that “on January 6, 2017, a lone gunman intentionally discharged a firearm at the Fort Lauderdale-Hollywood International Airport killing five and wounding six innocent bystanders.  Approximately 90 minutes after the initial incident, speculation of additional firearms discharged in other areas within [the Airport] caused panic and led to a chaotic self-evacuation of persons throughout the airport.”  The Report states that it was developed in accordance with the U.S. Department of Homeland Security’s Homeland Security Exercise and Evaluation Program.  Specifically, the Report analyzes the response, the emergency and operational coordination, and the facility recovery and post event activities.

Factually, the Report shows that the actual shooting event, in the Terminal 2 baggage area,  lasted less than 80 seconds and ended when the “perpetrator ran out of ammunition, laid down on the ground, and surrendered to law enforcement officers at the scene.”  Of the eleven people who were shot, six (6) were wounded, and five (5) were killed.  Approximately 40 others were injured in the panic during the initial shooting event (First Incident). Terminals 1, 3, and 4 remained operational at this time.

The Second Incident started at approximately an hour and a half later, when radio communications indicated unsubstantiated reports of additional shots fired in Terminal 1, and one of the parking garages. As a result, the “response among passengers, tenants, and airport employees triggered uncontrolled and unmanaged self-evacuation of personnel, many of whom ran into secured areas and onto active aprons. Some received minor injuries during the self-evacuation.”  Because of the breach of restricted areas on the airfield during the self-evacuation, and the ongoing investigation of the actual crime scene in Terminal 2, law enforcement began sweeping and clearing each of the four (4) terminals at the Airport to ensure that all areas were clear of any threats and to re-establish secure areas.

Because of the incurrence into secure zones, the FAA issued a ground stop notice closing the Airport to all but emergency flights.  Subsequently, airport operations were officially terminated and all airport roadways were closed to incoming traffic.  Law enforcement continued clearing the rest of the airport until approximately 8:30 PM, over seven hours later. The airport remained closed for the remainder of the day, but reopened to commercial flights early the following day.

This incident provides a good reference for business to consider in developing their own corporate active shooter programs.  For instance, in this case responding airport employees were initially denied access to areas to which access was required to support response operations.  In addition, while the actual shooting incident was over in ninety seconds, during the subsequent response approximately 500 airport employees were interrupted in their jobs, and 10,000 passengers were bused to a nearby facility for food and shelter, and to assist them in connecting to other means of transportation “As result of the chaos that ensued following the shooting, more than 20,000 personal items were left unclaimed at the airport.”  The active shooter incident response must be planned for as well as the incident itself.

The Report provides “Lessons Learned,” including several points to support preparedness within the aviation sector and among aviation stakeholders.  Many of their recommendations are well placed in any industry:

  • Ongoing periodic incident command system training and exercises, support capabilities-based planning, coordination with airport stakeholders, and development of competencies among airport personnel to support critical incident response.
  • Airport emergency plans should be updated and reviewed at least annually or when changes in resources, personnel, or threats occur.
  • Airport emergency plans and/or companion response plans should address a full range of hazards and threats, identify a concept of operations in an incident command system context, and address all areas of the airport including public areas and auxiliary properties, such as rental car facilities.
  • Building relationships with external response partners through advanced planning, training and exercises is vital to support a common understanding of roles, responsibilities, resources, facility design and layout, and communication procedures under single or unified command conditions.
  • Coordination between airports and jurisdictional (city/county/state) emergency management agencies supports emergency response operations through effective communications, resourcing and resource management.
  • Airports should consider developing a written description of airport operations and airport physical layout specifically for external emergency responders who may respond to airport emergencies. Periodic tours for external emergency responders are also recommended to support an effective understanding of resources, evacuation plans, and other potential response needs.
  • Exercises conducted at airports should include active shooter scenarios as well as other locally-relevant hazard and threat scenarios identified local emergency management agencies).

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 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.