NPDES Permit Pre-Empts RCRA?

An interesting case involving the interplay of the Clean Water Act (CWA) and RCRA highlights the complexity of sites that trigger multiple environmental statutes.  The U.S. District Court of Maryland in Sherrill, et al. v. The Mayor and the City Council of Baltimore, 2014 WL 3555956 ruled that an NPDES Construction Storm Water Permit preempted a RCRA enforcement action.  The Court ruled that the RCRA action sought remedies which would duplicate what had already been required under the NPDES permit.

Facts

The case involves property associated with the City of Baltimore's effort to revitalize its waterfront. The site in question was a former chemical manufacturing plant with historical solvent contamination.  

The City has a redevelopment agreement with a casino operator to construct a new casino on the property.  The City has also placed the property into Maryland's Voluntary Action Cleanup Program (Maryland's brownfield cleanup program) which resulted in the development of a voluntary cleanup plan for the property.

The casino operator complied with Clean Water Act requirements by securing a NPDES General Construction Storm Water Permit for the site.  The storm water permit contains requirements to manage soil and runoff from the property.  A key term of the permit was that the storm water management plan (SWP3) incorporated requirements from the Voluntary Cleanup Plan for the property.

Local residents opposed the casino and brought suit challenging the development plan.  Residents claimed that construction of the casino exacerbated pre-existing contamination on the property in violation of Section 6972 of RCRA.  

The casino operator argued that the RCRA action was preempted by the existence of the NPDES General Construction Storm Water permit under RCRA's anti-duplication provision which states:

nothing in [this Act] shall be construed to apply to (or to authorize any State, interstate, or local authority to regulate) any activity or substance which is subject to the [Clean Water Act]...except to the extent that such application (or regulation) is not inconsistent with the requirements of such Acts.  See, 42 U.S.C. 6905(a)

At issue was whether the existence of the NPDES permit terms requiring management of soil and storm water runoff rendered any potential relief available under RCRA duplicative.

Ruling 

The District Court held that the CWA storm water discharge permit triggered the "anti-duplication" provisions of RCRA and therefore shielded the casino operator from any RCRA liability.  The Court held that the storm water permit legally required implementation of the casino operator's storm water management plan (SWP3).  The SWP3 incorporated that Voluntary Cleanup Plan. Therefore, the cleanup plan, in reality, was no longer voluntary.

The Court held that the SWP3 activities to manage soil and runoff were the same remedies that would be available to plaintiffs under RCRA.  Therefore, RCRA's anti-duplication provision was triggered.  

Discussion

The Court's ruling is interesting in its conclusion that the remedies available under RCRA would be the same type of remedies currently required under the NPDES storm water permit.  SWP3 govern management of surface soils to protect surface waters.  RCRA can require cleanup of contaminated soils at depth and protection of ground water. 

The incorporation of the Voluntary Action Program cleanup plan is a unique fact to this case.  The court only discusses the incorporation of the cleanup plan in cursory fashion.  Was the court stating that if the casino operator failed to address soil contamination at depth or contaminated groundwater as called for under the cleanup plan it would be in violation of its NPDES storm water permit?  

It would appear that the answer must be "yes" in order to support the Court's ruling that the RCRA anti-duplication provision was triggered.

Overview of the Ohio EPA Enforcement Process

The Ohio EPA enforcement process can appear to be a mystery, especially to companies that find themselves the subject of an EPA visit for the first time.  This post provides a general overview of the Ohio EPA civil enforcement process.

Step 1:  The Inspection

The enforcement process starts with the inspection.  The inspections can be announced or unannounced.  (A prior post discusses EPA's inspection authority).

Typically, an inspector assigned to one regulatory area will perform the inspection. (i.e. air, surface water, drinking water, hazardous waste or solid waste).  Most time, the inspector will limit their inspection to compliance with their assigned regulatory area.

If you find multiple inspectors at your door (called a "multi-media inspection") then there is probably cause for concern.  Typically, the Agency will not perform multi-media inspections unless they suspect there is an issue at your facility.

Here are some tips regarding handling an EPA inspection:

  • Listen closely to the inspector- Accompany them during the inspection. If they point out concerns that can easily be addressed, fix them. Also, follow up in writing telling the inspector what you have done. EPA appreciates pro-active companies who listen and respond to Agency concerns. This can go a long way toward establishing a good reputation.
  • Debrief with the inspector- Don't be shy about asking for an oral report of the inspector's findings during or after the inspection. Take notes of any concerns or requests for information made by the inspector. Then follow up if possible. Don't wait for the inspector to provide a letter if you can easily address some of the issues. If you are able to provide information not available during the inspection that demonstrates compliance, you may avoid seeing these issues in a formal notice or letter from EPA.

If the violations are not corrected after the first inspection, the inspector will more than likely return in the near future to document the ongoing nature of the violations.

Step 2:  Notice of Violation (NOV)

If the inspector believes that the company or facility is not in full compliance with applicable environmental regulations, they will issue a formal letter called a "Notice of Violation' or NOV.  The NOV will specifically identify the regulation(s) that the inspector believes have been violated.  The NOV will also contain the facts observed during the inspection that the inspector believes supports their conclusion a violation has occurred.  

If you or the company receives an NOV, respond in writing. (Note:  This may be the appropriate time to consult with an environmental attorney to help craft an appropriate response)  Failing to respond will more than likely ensure the matter proceeds to Step 3 discussed below.  

When responding, make sure you gather all appropriate information.  Inspectors can be wrong in stating a violation has occurred.  However, you must be prepared to refute their finding(s) with supporting documents or information.  

Relatively minor violations can often be addressed without escalated enforcement.  However, make sure you respond as to how and when the issue will be addressed.  

It is mostly up to the discretion of the inspector to decide when to recommend escalated enforcement (Steps 3 through 5).  If violations are serious, the inspector could recommend further enforcement after only one NOV.  For less serious violations, it may take a few NOVs before an inspector recommends further action.

Step 3:  Enforcement Committee

If the inspector believes the Agency should take more formal action beyond a NOV, he/she will put together an enforcement referral from the District Office to Central Office.  The referral package will include a memorandum summarizing the issues and inspector's recommendations.

The referral package will typically be reviewed by the Central Office Enforcement Committee.  The Committee is made up of enforcement coordinators from the Division as well as an attorney from the Legal Office.  The committee will review and discuss the recommendation and decide whether to: a) proceed to Step 4; b) jump to Step 5 or; c) take no action at the present time.

Step 4:  Director's Final Findings & Orders (DFFOs)

If the Enforcement Committee decides further enforcement is necessary, in most instances they will begin with administrative orders- Director's Final Findings & Orders (DFFOs).  DFFOs contain findings of fact which set forth the basis for the Agency's conclusion that violations have occurred.

The DFFOs also contain an orders section.  The orders includes deadlines for correcting the violation  as well as proposed civil penalties.  Ohio EPA does not have unilateral civil penalty authority, therefore, any civil penalty contained in DFFOs must be agreed upon by the company.  

If the company and Agency cannot agree on terms of DFFOs, including but not limited to a civil penalty, Ohio EPA can refer the matter to the Ohio Attorney General's Office (AGO).  Once a case has been referred to the AGO, it almost never will be sent back to Ohio EPA for resolution.

You should discuss with your attorney an legal advantages to resolving a matter at the DFFO stage versus the Attorney General's Office.  

Step 5:  Referral to the Attorney Generals Office

This is the final step in the escalated enforcement process.  Once a matter is referred to the AGO, an Assistant Attorney General will be assigned to the case.  The attorney will send an initial letter asking whether the person/company would like to try and settle the matter without litigation in court.  This stepped is called an "invitation to negotiate" or ITN.  

If a settlement can be reached it will be in the form of a formal judicial consent order that is filed in court.  In order to file a consent order, a complaint (lawsuit) must be filed which contains the specific violations alleged by the State.

If the parties cannot reach agreement on the terms of a consent order, the AGO will file a complaint and proceed with litigation in court.  The AGO will typically indicate that higher penalties will be requested if the AGO is forced to proceed with litigation.

Conclusion

This meant only as a basic overview of the typical Ohio EPA enforcement process.  The specific facts of a case may result in the Agency taking different action.  

The best defense to Agency enforcement is to be well prepared and have a good team in place (technical and legal advisors).  Gather all the facts and respond strategically.  Keep in mind that no matter how the case is finally resolved, EPA will visit your facility again in the future and the process can start all over again.

EPA's Inspection Authority

An EPA inspector shows up at your facility unannounced and requests access to inspect your facility.  Do you have to let them in?  If you deny access, how likely is it that EPA will quickly gain access?  What is the downside of making EPA  go through the step of legally gaining access by obtaining a search warrant?

Criminal Searches

In responding to the questions above, we are assuming this is an administrative inspection, not a criminal.  Typically, the EPA will have already secured a criminal search warrant before showing up on your property.  Less common, EPA could request your consent to perform a criminal search of your facility.  Under either circumstance, due to the serious nature of criminal inspections, you should contact your attorney immediately.

Here are some things you should do in addition to immediately contacting your attorney:

  • Do not answer any questions without your attorney present;  
  • Employees may, but are not required to answer questions of the inspectors, they have the right to the presence of their own attorney during any interview (the rights of employees during a criminal search warrant is a complicated issue that you should discuss with your attorney);
  • Request a copy of the search warrant as well as the inventory of seized items (if any);
  • Do not consent to the the search of an area or the seizure of materials not identified in the search warrant; 
  • Do not interfere with the government agents if a search warrant is provided;
  • If the warrant allows sampling, request a split sample of any material tested; and
  • Listen to what the inspectors are saying and take notes.

Administrative Searches

EPA, as an administrative agency, is authorized by law to conduct inspections of any property or facility under their jurisdiction.  

Can you deny EPA access for an administrative inspection?

Generally speaking, unless the inspector has obtained an administrative search warrant, you have the right to refuse the inspection and ask the inspector to leave.  The inspector can either try and negotiate a more convenient time to perform the inspection or obtain an administrative search warrant from a court.

While generally you have the right to refuse access when the EPA inspector does not have an administrative search warrant, the standard for obtaining such warrant is not that high.  When EPA is enforcing laws with health, safety, or welfare standards, or enforcing regulatory schemes, EPA only need demonstrate their inspection is supported by "reasonable legislative or administrative standards" (i.e. administrative probable cause).  See, U.S. v. M/V Sanctuary, 540 F.3d 295, 299 (4th Cir. 2008).

Here are some of EPA's specific statutory inspection authority that provides the agency the right to obtain an administrative search warrant:

  • CERCLA-  EPA is authorized to enter at reasonable times any property where hazardous substances may be or has been generated, stored, treated, disposed of, or transported from.  Even properties where a release is only threatened.  EPA has the authority to collect samples, but must provide the results to the owner.  See, 42 U.S.C. Section 9604(e)
  • RCRA- Similar to EPA authority under CERCLA, EPA may perform inspections at reasonable times and collect samples of any facility where hazardous wastes are or have been generated, stored, treated, disposed of, or transported from.  See, 42 U.S.C. Section 6927(a)
  •  Clean Water Act- Relative to NDPES permitting, EPA has the right to enter any facility which is an effluent source or which is required to maintain records under the Act.   EPA can enter at reasonable time and get access to and copy any records, inspect any monitoring equipment or any other compliance method.  They also can sample effluent. See, 33 U.S.C. Section 308
  • Clean Air Act-   If you own or operate an air emissions source regulated under the Clean Air Act, EPA has broad authority to inspect the facility, monitoring equipment and records. EPA can also sample emissions. See, 42 U.S.C. Section 7414
  • TSCA-  Regulates "chemical substances."  A typical chemical substance subject to regulation under TSCA are PCBs.  EPA has broad inspection authority of any facility that is subject to regulation under TSCA.  EPA may inspect any establishment, facility, or other premises in which chemical substances, mixtures, or products subject to TSCA regulation are manufactured, processed, stored, or held.  See, 15 U.S.C. Section 2610

Note: Courts have found limited exceptions when EPA can perform a warrantless administrative search with regard to enforcement of environmental regulations.  As an example, the New Jersey Supreme Court held the State EPA did not need a warrant before inspecting a property that was subject to the terms of a wetland permit.  See, New Jersey Department of Environmental Protection v. Robert and Michelle Huber

Should you deny access if the EPA inspector does not have an administrative search warrant?

It depends, it is always worth consulting with your attorney to review the particulars of the situation. Also, when the inspector arrives try and gain more information as to the purpose of the inspection. Before contacting your attorney, you should ask the inspector:

  • What they are seeking to inspect or issues are they concerned with?
  • What program are they from? (hazardous waste, air, water or multi-media inspections)
  • Did they receive a complaint or is this a routine inspection?  

As discussed above, the EPA will generally be able to secure a warrant from court to perform an administrative search.  Therefore, if you simply deny access without discussing the situation with your attorney, you run the risk the inspector will conclude you have something to hide.  

When the inspector secures the warrant, they could be inclined to perform a more intense inspection of your facility.  Furthermore, it is more than likely that the EPA inspector requesting access is assigned to your facility and will visit again in the future.  It is important to try and maintain a good working relationship with your inspector.

In conclusion, inspections are routine with regard to environmental regulation.  An inspection can simply confirm your facility is in compliance or it can be the first step in a lengthy and costly enforcement action.  If you are subject to an inspection, it is important to talk with your attorney.
 

Five Things to Review in Your Environmental Consultant's Contract

So you have decided to retain an environmental consultant to assist with sampling, cleanup or compliance assistance.  Many times businesses have the tendency to review the terms of the proposal itself without paying much attention to the "standard terms & conditions" that are often attached to the proposal.  These standard terms & condition make up the consultant's contract.  

There are aspects of any consultant's contract that are definitely worth reviewing.

The bigger the project, the more risk that the contract terms could become a major issue.  Here are some clauses that may appear in a environmental consulting contract that are worth close review:

  1. Limitations on Liability-  Most contracts will place a cap on potential recoverable damages if a claim is made under the contract. Not all such caps are unreasonable. However, I regularly see caps that state the recoverable damages cannot be any greater than the fees paid under the contract.  With environmental work, claims related to negligence or breach of the standard of care can result in hundreds of thousand or even millions in damages.  Limiting recoverable damages to the fees paid is unreasonable.
  2. Indemnity-  Similar to caps on liability, many contracts include "one way" indemnity clauses. Meaning the client must reimburse for damages the consultant suffers as a result of client's negligence, but no indemnification is provided it the consultant is negligent.
  3. Ownership/Use of Document-Many contracts state that any documents prepared by the consultant remain the sole property of the consultant.  Such language can be broad enough even to include drawings and sampling.  If you pay for the documents, you should have rights to use the documents.  It is fair for the consultant to include a disclaimer that reuse without their consent is at the client's sole risk, but an absolute prohibition on reuse is problematic.
  4. Payment-  Pay close attention to the terms related to payment.  It is not uncommon for a consultant to quote a price for services, but the contract terms allow them to exceed the quote without getting prior approval.  Also, if you expect the consultant to be paid from grants or a special fund, pay close attention to terms the govern submissions for reimbursement.
  5. Termination-  Standard consultant contract language can try and limit the client's right to terminate the consultant.  Sometimes the language limits a client's right to terminate only if there is a breach of the agreement.  The client should have the right to terminate the contract without cause.  If you are unhappy with the consultant's performance for any reasons, you need the right to get out of the contract.

As an example of recent litigation involving an environmental consulting contract, consider the case involving a clause in a consulting contract that limited the right to bring an action to one year from the date of the contract. Shahin v. I.E.S., Inc., 2013 Mass. App. LEXIS 93 (May 31, 2013) In this case a Massachusetts Appellate Court struck down the contractual provision as unreasonable.  The Court noted a contract can place limits on when a claim can be brought, but those limits must be reasonable.

The Court noted that the "discovery rule" should be allowed to operate.  Under the discovery rule, a claim is tolled if the claimant didn't have information, with reasonable due diligence, necessary to bring the suit.  In other words, if the client didn't know they had a claim an issue didn't appear until two years after the consultant performed their work, the Court found it would be unreasonable to bar such a claim.

Such litigation is an example of how the terms and conditions of an environmental consultant's contract can potentially have significant impacts.  

 

U.S. Supreme Court Unanimously Tells EPA its Orders Can be Reviewed

On March 20, 2012, the U.S. Supreme Court handed down the much anticipated decision in Sackett v. EPA.  The Court rejected U.S. EPA's claims that its administrative enforcement orders were not subject to pre-enforcement review.  The Court's decision provides a new tool to challenge EPA administrative compliance orders. 

Synopsis of the Case

The Clean Water Act prohibits filling of wetland without a permit.  The Sacketts own a .63 acre parcel of land on which they hoped to construct a home.  EPA said that the Sacketts had filled wetlands as part of their development without a permit. 

EPA decided to take enforcement by issuing an administrative compliance order directing the Sacketts to remove the fill.  If the Sacketts failed to comply with EPA's order they could potentially be liable for penalties of $37,500 for each day of non-compliance with the order and potentially an additional $37,500 per day for the underlying Clean Water Act violation.

The Sacketts attempted to appeal the administrative order in Court to challenge EPA's determination they filled regulated wetlands.  EPA argued that the Sacketts were not entitled to any pre-enforcement review of the administrative order. 

Lower Courts Ignore the Legal Presumption of a Right of Appeal

The Administrative Procedure Act ("APA") sets the standards for when administrative actions of federal agencies are subject to review or judicial appeal.  The APA contains a presumption that  federal statutes allow for judicial review of agency actions.  That presumption can be overcome if: 1) there is an explicit bar to pre-enforcement review in the statue; or 2)  the presumption "may be overcome by inferences of [congressional] intent drawn from the statutory scheme as a whole." 

The Clean Water Act does not contain an explicit bar to pre-enforcement review (such a bar does exist under CERCLA- the federal Superfund law).  Therefore, EPA had to argue the bar can be inferred from congressional intent.

Both the District Court and Appeals Court sided with EPA holding that a bar to review could be inferred from the congressional record and the language in the the Clean Water Act.

Supreme Court Unanimously Disagrees

Before determining whether there was a bar to appeal, the Court had to determine whether the administrative action amounted to a final order.  The Court found that the order issued by EPA had all the hallmarks of a final order, including:

  • It determined the rights of the party- in this case, the Sacketts were required to restore the wetland;
  • Legal consequence flow from the order- the Sacketts were subject to penalties if they failed to comply;
  • The order is final- EPA did not provide the Sacketts a meaningful opportunity to challenge the order

After finding the order was final, the Court then rejected the lower courts finding that the history and language of the Clean Water Act suggested there should be no pre-enforcement review of orders.  The Court held:

"APA's presumption of judicial review is a repudiation of the principle that efficiency of regulation conquers all." and

There is "no reason to think that the [Clean Water Act] was uniquely designed to enable the strong-arming of regulated parties into 'voluntary compliance' without the opportunity for judicial review- even judicial review of the question whether the regulated party is within the EPA's jurisdiction."

It is interesting that both lower courts sided with EPA, but yet the Supreme Court unanimously sided with the Sacketts.  Its difficult to understand how such a split could occur.

Implications

Clearly, the Courts ruling gives attorneys representing regulated parties who are the subject of an EPA unilateral compliance order a tool to challenge the merits of those orders.  Certainly, allowing such a review is a clear victory and certainly seems to comport with logic.  The right to challenge EPA orders also likely extends to other environmental statutes that do not contain an explicit bar to pre-enforcement review, including orders issued related to hazardous waste (RCRA) and the Clean Air Act.

However, the standard for overturning an EPA order is very difficult to meet.  In addition, the Supreme Court's decision is unclear as to whether penalties continue to amass while litigation proceeds.

Under the APA, an EPA action is entitled to deference and can only be overturned if it is demonstrated that the EPA acted in an "arbitrary and capricious" manner or "otherwise in violation of the law."  That is a pretty tough hurdle to clear. 

Also, the Court didn't address whether EPA could be entitled to penalties for non-compliance during the appeal let alone whether EPA could be entitled to double penalties-  one set of penalties for failing to comply with the EPA's order at $37,500 per day and a second for violating the Clean Water Act (also at $37,500 per day).   Therefore, a party could be risking up to $70,000 per day to continue its challenge of the EPA's action. 

Until another court rules EPA is not entitled to collect such large penalties during the appeal, the deck is still pretty much stacked in EPA's favor or in the Court's words, EPA can still "strong arm" regulated parties.

Part 1 on U.S. EPA's Audit Policy: The:Basics

U.S. EPA's Environmental Audit Policy encourages companies to self-evaluate their compliance with environmental requirements and disclose any violations to EPA.  As an incentive to disclose violations to EPA, the Audit Policy provides up to 100% forgiveness of gravity-based civil penalties if certain conditions are met. 

U.S. EPA's audit policy contains nine (9) conditions that must be met in order to qualify for the penalty reduction incentive for self-disclosure.  Those nine conditions include:

1. Systematic Discovery-  There are two ways to qualify under this condition – perform an environmental audit or utilize a compliance management system to review compliance. If a company fails to meet this condition, EPA's policy still may provide a 75% reduction in gravity-based civil penalties if the other eight conditions are satisfied.
2. Voluntary Discovery- The violations disclosed must not have been otherwise legally required to be disclosed.  (Example: Title V Air Permits require covered facilities to certify compliance on an annual basis with all requirements in the Title V air permit.  Therefore, a Title V facility would not qualify for the incentives under the EPA Audit Policy if it disclosed non-compliance with permitting requirements with its Title V permit.  Note:  EPA does have a limited exception for new owners of Title V facilities.)
3. Prompt Disclosure-  If you decide to disclose violations uncovered to try and secure gravity-based penalty reductions, the company must disclose all violations within 21 days of discovery
4. Independent Discovery and Disclosure- The audit cannot have been performed and/or the violation cannot have been discovered after a federal, state or local investigation, etc.
5. Correction and Remediation-  The violations must have been corrected within 60 days.
6. Prevent Recurrence-  The company must take steps to prevent recurrence of the violations. 
7. No Repeat Violations-  The same violations must not have occurred within 3 years at the same facility or within 5 years if EPA determines there is corporate pattern of violations.
8. Certain Violations Excluded-  The two types of violations are excluded from any penalty forgiveness– violations that have the potential to cause serious harm or if the company violates an order or agreement with EPA.
9. Cooperation-  The company must provide requisite or requested information to EPA.

Why Consider Using EPA's Audit Policy?

If s company can successfully establish all the conditions under EPA's audit policy for forgiveness of gravity-based civil penalties, the company may be able to avoid very large civil penalties that otherwise would have been paid if an EPA inspector detected the violations first.

One common area of environmental compliance that companies audit is Emergency Planning and Community Right to Know Act (EPCRA) reporting requirements.  As a prime example of the benefits that may flow from using the U.S. EPA's Audit Policy:

This February U.S. EPA entered into a settlement with a New Cingular Wireless PCS LLC.   The company found violations at 642 sites in 35 different states through two separate environmental audits.  According to the settlement, the company avoided $6.7 million in projected gravity based civil penalties that EPA otherwise may have pursued if the violations were discovered through EPA inspections versus an audit.  

While there are strong incentives to utilize EPA's audit policy, there are many issues to navigate. Some of these issues will be the subject of future blog posts on this topic.  Those issues include:

  • Confidentiality of the audit;
  • Establishing the nine conditions;
  • The requirement to report all violations within 21 days
  • Gravity-based penalties versus the potential for assessment of economic benefit penalties

 

When Do I have to Report a Chemical/Oil Spill or Other Release

There are a myriad of federal statutes that require your company to report a spill to any of the following:

  • National Response Center
  • State Emergency Response Center (SERC)
  • Local Emergency Planning Committee (LEPC)
  • Local Fire Department

Failure to report a spill can lead to an enforcement action as well as civil penalties.  Also, failure to respond appropriately following a spill can lead to serious ramifications for your company in terms of exposure to greater clean up costs, property damages, or environmental harm. 

Due to the liability exposure associated with managing and reporting spills appropriately, its wise for all corporations to have prepared an internal corporate policy for spill response.  The policy would not only cover when you have a legal obligation to report a spill to regulators, but also how to communicate about a spill internally within the company.

Depending on the facts and circumstances surrounding the spill event, you are not always under a legal obligation to report a spill to the authorities.  Its wise to know your regulatory obligations before making the decision to report.  Otherwise, you may be inviting teams of regulators to your facility unnecessarily. (Click here for U.S. EPA's Website on Spill Reporting)

The facts of each event are different.  Therefore, each must be analyzed independently to determine your regulatory obligations.  However, its wise to get familiar with the triggers for mandatory reporting.

Attached is a series of power point slides which contains information regarding the most commonly applied federal regulations that may trigger mandatory reporting to federal or state regulators.  The spreadsheet shows the event, regulation, trigger level and reporting requirement. 

These charts were based upon a more limited spreadsheet prepared by Region VII of U.S. EPA called the Fact Sheet on Emergency Release Reporting Requirements.  They are meant for reference only and cannot substitute for analysis of each regulation and the facts surrounding your particular event.  However, I hope they are useful to you in getting familiar with the mandatory reporting obligations that exist.

Five Tips to Help Reduce the Risk of EPA Enforcement Actions

I have been on all sides of the fence relative to environmental enforcement actions.  I have represented the State, managed Ohio EPA enforcement program and now I represent companies who find themselves the subject of enforcement.  These experiences have given me valuable insight into what things to do and not to do when dealing with compliance oversight.

When speaking on the topic of enforcement, I am asked to provide practical advice on how to reduce the chances that your business will be a target of EPA enforcement.  In this post I provide five tips regarding your early interactions with EPA.

Much of my advice may be viewed as simple common sense.  However, I am consistently surprised how many times companies don't follow these simple steps. 

Relationship with Inspector-

Most inspectors are assigned a Division (air, water, hazardous waste, etc.) and a geographic territory.  This means you are likely to see this same person again and again at your facility. 

  • If possible, try and develop a good relationship with the inspector.  Cooperation at this lowest level can often prevent communication issues that sometimes lead to enforcement. 
  • Also, while not true in all cases, developing a good reputation with inspector assigned to your facility may lead to additional flexibility when addressing Agency concerns or issues.
    • Ask yourself-  Which report or permit application will get more scrutiny- one submitted by a company with a good reputation/relationship or a bad one....

The EPA Inspection- 

The Agency has the ability to perform both announced and unannounced inspections of your facility.  It is understandable that companies are frustrated by the disruption that an EPA inspection causes at their facility.  Just don't let that frustration carry over to your interactions with the inspector. 

  • Listen closely to the inspector- Accompany them during the inspection. If they point out concerns that can easily be addressed, fix them. Also, follow up in writing telling the inspector what you have done. EPA appreciates pro-active companies who listen and respond to Agency concerns. This can go a long way toward establishing a good reputation.
  • Debrief with the inspector- Don't be shy about asking for an oral report of the inspector's findings during or after the inspection. Take notes of any concerns or requests for information made by the inspector. Then follow up if possible. Don't wait for the inspector to provide a letter if you can easily address some of the issues.  If you are able to provide information not available during the inspection that demonstrates compliance, you may avoid seeing these issues in a formal notice or letter from EPA.

Respond to Requests for Information or Notice of Violations

If you receive a notice of violation (NOV) or a request for information, respond within the time frame requested or write and ask for additional time.  ALWAYS WRITE A RESPONSE.  It is far better to write a letter formally disputing findings, then to not respond at all. 

  • Silence will quickly lead to more NOVs and escalated enforcement.  Companies have learned time and again, simply ignoring the situation will not make it go away.  Also, the higher you go up the enforcement chain the more likely you will see a demand for civil penalties.

In the Early Stages of Interaction Involve an Attorney to Help Respond-

This may come across as a blatant advertisement, but its not intended as one.  The fact of the matter is the difficult compliance issues often arise due to the complexity of the environmental regulations. 

  • How your respond or what information you choose to provide in this early stage can significantly impact the likelihood or severity of escalated enforcement.  Make sure you are putting your company in the best defensive position possible, particularly on issues that carry significant risk of liability.

Try and Resolve Issues at Lowest Level Possible-

A common reaction of companies who find themselves in a major disagreement with EPA or subject to enforcement, is the to call senior management and complain.  Some may think if they just get management involved they will see it their way and the issued will be resolved. 

  • Due to the number of issues that arise, senior manager constantly push decision making down to the lowest possible level.  Usually the first question you will get when you call is "have you talked through these issues with staff assigned?"   Even if you don't hear that question, the first thing they will do when the hang up the phone is to call the inspector to hear "their side of the story." 
  • Remember, you are trying to build a relationship with your inspector.  It is human nature to not like it when someone tries to "go over your head."  Sometimes the situation demands such action be taken, but be prudent when choosing to utilize that option.

Of course every situation is different.  The five pieces of practical advice are meant to be general guidelines on conduct rather than legal insight.  The more significant the dispute or compliance issue, the more cautious you should be in your interactions with the Agency.  Hire a good supporting team to assist on those issues. 

 

Clean Tech Face Pitfalls in Environmental Insurance Coverage

I was interviewed for a good story appearing in Law360 (subscription or free trial required) about environmental insurance coverage for businesses.  The emphasis of the story were recent lawsuits where businesses were denied coverage under for environmental claims even though the companies thought they had purchased coverage.  As reported in the story:

  • Headwaters Inc., a company that re purposes coal combustion and other energy byproducts, was denied coverage by Ace American Insurance Co. for nuisance suits against Headwaters over coal byproduct-based fill material used for a golf course, citing pollution provisions and other exclusions
  • Changing World Technologies Inc., converts agricultural waste into biodiesel, have been hit with legal claims associated with a class action suit related to odors from a biodiesel production facility.  Their insurer denied coverage for the claims.

Companies still don't realize most general liability insurance policies will not provide coverage for environmental claims even if they do, the coverage will be limited.   Companies must either negotiate special endorsements on those policies or buy special pollution liability insurance policies to cover these types of claims.

As reported in the story in Law 360, companies either fail to purchase coverage or don't pay close attention to the language in their policies to make sure it will cover the risks associated with their product or operations.

“We would argue that generally it’s an underinsured marketplace,” Anderson said, adding that environmental liability coverage makes up just half of one percent of the roughly $450 billion in commercial property and casualty premium volume each year...Sometimes the problem stems from companies failing to conduct enough upfront risk analysis, including evaluating whether indemnification agreements from other companies are secure, or whether they are buying adequate insurance, attorneys and brokers said...

“I believe a lot of times insureds don't see the big picture with regard to their exposures,” said Stephanie Story, senior vice president in the environmental practice at insurance brokerage Marsh. “What they should probably focus on first is sitting down and being honest with themselves, and having discussions internally with their real state folks, or their legal counsel, or their operations teams.”

Remember, Insurance companies have attorneys as well who are paid to think of ways exclusions will apply to prevent paying out claims.  Spending time up-front to analyze your risks is prudent.

Example:  Suppose you own a business that recycles wastes into a new product that is distributed to multiple sites.  Perhaps the product is used as fill, insulation or ground cover.  What happens if you are sued by people who claim your product has released chemicals at sites where your product was used. 

Even if you purchase pollution liability insurance, you must make sure coverage will extend to locations where your product has been utilized.  Policies can often be limited to the production facility.

Also, if you are going to purchase pollution liability insurance make sure you review the actual language of the policy.  Just because its special environmental insurance coverage does not mean it will cover all environmental claims. 

Property Transactions: When is "All" Environmental Liability Assumed?

While the credit crisis has cooled of the commercial and industrial real estate market, transactions continue to occur at a slower pace.  Allocation of risk and liability for environmental contamination is an important consideration in transactions that involve properties in which manufacturing, transportation or other commercial businesses operated. 

In allocating responsibility for environmental clean up costs and damages, carefully crafted contract language can determine who will be responsible for hundreds of thousands if not millions of dollars in liability.  A federal case from this summer shows Courts will look closely for language demonstrating liabilities are "assumed" during the sale before assigning responsibility for costs or damages to buyers of contaminated property:

Indemnity versus assumption of liability-  Carefully drafted indemnity clauses are important consideration in transactions involving environmental liabilities.  These clauses are used to allocate the risks associated with liability based upon past and future activities that occur on the property.  Recently, the District Court for the Eastern District of Pennsylvania distinguished between indemnity and assumption of liability.  The Court decided their was no direct action available against the purchaser of contaminated property based upon the indemnity clause of a settlement agreement between the seller and buyer Here is what the Court found:

[T]he parties chose to never use the terms "liabilities" or "obligations" and only use the word "assume" in reference to assuming defenses.  There is no language in the settlement agreement that implies that Sunoco agreed to be AR's legal successor...The contracting parties specifically chose the language "shall defend and hold harmless," and did not elect to include any language regarding assumption of liabilities or successor liability.  United States v. Sunoco, Inc. (No. 05-633) (E.D. Pa 2009)

Based on this finding the Court said the United States could not sue Sunoco directly to compel clean up.  The indemnity clause was only triggered by a suit against AR as a prerequisite. 

Going Beyond a Warranty Disclaimer- Land sale contracts will sometimes include "as is" clauses.  Courts will look to interpret the meaning of the clause based upon the contractual language used in the agreement.  An "as is" clause without language demonstrating the buyer "assumes" all environmental liabilities could be interpreted by Courts to be only a disclaimer of any warranties regarding the condition of the property.  In Niecko v. Emro, the Court found assumption of liability had occurred because the contract included the following language:

[Seller] makes no "warranties or reps" as to soil conditions, and that [buyers] assume all responsibility for any damages caused by the conditions on the property upon transfer of title. Niecko v. Emro 973 F.2d 1296 (6th Cir. 1992)

These cases demonstrate that for an assumption of all environmental liabilities to occur, Courts will expect to see express language demonstrating clear intent to transfer that liability. 

 

"Greenwashing"-Business Eco-Friendly Claims Get Increased Legal Scrutiny

Businesses are increasingly trying to market their products as “green.” Common eco-friendly labels or claims can be found on many products, including labels like “recycled content”, “biodegradable”, and “safe for the environment.” Before making any such claims, businesses should be able to substantiate their claims or risk legal action.

How frequent are false or misleading eco-friendly claims being made on products? A 2007 survey performed by Terrachoice, an environmental marketing agency, gained national attention.  The survey found that of 1,018 common consumer products ranging from toothpaste to printers, 99% were guilty of stretching the eco-truth regarding their products. This practice is commonly referred to as “greenwashing.”

Here are just two examples of what could be considered misleading:

Example 1: A box of aluminum foil is labeled with the claim “recyclable,” without further elaboration. Unless the business establishes whether the claim refers to the foil or the box, the claim is deceptive if any part of the box or the foil cannot be recycled.

Example 2: A product is advertised as “environmentally preferable” which is likely to convey to consumers that this product is environmentally superior to other products. If the manufacturer cannot substantiate this broad claim, the claim would be deceptive.

The Federal Trade Commission can take legal action against unfair or deceptive marketing practices under Section 5 of the FTC Act. To assist businesses in determining how to stay in compliance with the law, the FTC issued the Guide for the Use of Environmental Marketing Claims, commonly referred to as the “Green Guides.” The “Green Guides” provide the following general guidance on substantiating environmental claims:

Any party making an express or implied claim that presents an objective assertion about the environmental attribute of a product, package or service must… rely upon a reasonable basis substantiating the claim…such substantiation will often require competent and reliable scientific evidence, defined as tests, analyses, research, studies or other evidence…

Because of the proliferation of green claims in the marketplace, last year the FTC has decided to perform a formal review of the "Green Guides" which were last updated in 1998.  A final version of the update guide is expected in 2009.  

As an alternative to filing a complaint with the FTC, businesses can take action against their competitors for unsubstantiated or misleading claims by filing a complaint with the National Advertising Division of the Council of Better Business Bureaus, Inc. (NAD).  Between 1988 and 2008, NAD issued nearly 30 decisions pertaining to "green" marketing claims.  While compliance with NAD decision are voluntary, they often lead to the claims being modified or discontinued to prevent a referral to the FTC for more formal action. 

As a recent example, this month GP Plastics Corp. accepted a NAD determination that the company modify or discontinue certain advertising claims related to its plastic bags. Advertising by GP Plastics was challenged by a competing provider of plastic bags for the newspaper industry.
NAD did not agree that the claims ‘100 percent oxo-biodegradable’ and ‘completely recyclable’ were substantiated.

One way manufacturers and suppliers can reduce their risk of being the target of a “greenwashing” claim is by obtaining third party verification that their claims are valid. Non-profit organizations and government programs such as EcoLogo, Green-e and U.S. EPA’s Energy Star program offer independent ecolabelling programs that provide some protection.

EcoLogo describes their process as follows:

Provides a Type I eco-label, as defined by the International Organization for Standardization (ISO). This means that the Program compares products/services with others in the same category, develops rigorous and scientifically relevant criteria that reflect the entire lifecycle of the product, and awards the EcoLogo to those that are verified by an independent third party as complying with the criteria.

Green-e describes is more of niche toward carbon offsets and renewable energy:

Green-e is the nation's leading independent consumer protection program for the sale of renewable energy and greenhouse gas reductions in the retail market. Green-e offers certification and verification of renewable energy and greenhouse gas mitigation products.

(Photo: davidgljay/everystockphoto.com)

Ohio EPA and ODNR Propose Major Fee Increases in Upcoming State Budget

During Governor Strickland's State of the State he made the "no new taxes" pledge.  However, the Governor did mention that to balance the budget he will propose "new fees, fines and penalties."  No specifics were provided, however, now that details are beginning to take shape the Governor Strickland has been criticized for his roll out of the nearly 120 fee increases.

While there are more significant fee increases on vehicle registration and other health care related services, this being an environmental blog, I will focus on the new ODNR and Ohio EPA fee increases.  As discussed below, it is going to be more costly for businesses (and residents) to get rid of their waste.  This should create even a greater incentive for businesses to look at their practices and see if there are ways to reduce the amount of waste that has to be disposed of in solid waste landfills.   This could be through process changes that reduce the amount of waste generated or it could be recycling/re-use of waste materials generated.

However, the ability to recycle or re-use solid waste generated as part of business operations is dependent upon Ohio EPA's beneficial re-use rules.  Unfortunately, those rules have not come forward which makes it more difficult for businesses to evaluate their options.  While the fee increases may push evaluation of "greener" alternatives to disposal, businesses face uncertainty as long as clear re-use standards are not established.

Here is a link to a spreadsheet put together by the Ohio Office of Budget Management which shows all the fee increases and the projected revenue (which reaches over $1 billion dollars). Here is a breakdown of the proposed fee increases as it relates to the environment:

Municipal Solid Waste (MSW)
While I was at Ohio EPA, the agency moved from general revenue (GRF) to fees to pay for its programs.  The municipal solid waste tipping fee was chosen because it was a broad based fee that touches residents and businesses.  Due to its broad based application, the Agency could use the funding to support various programs outside of the Division of Solid and Infectious Waste.  Sort of like a tax...right.

The proposed state budget will build upon past fee increases and further increase the MSW tipping fee by $1.25 a ton. This will bring the MSW tipping fee from $3.50 a ton to $4.75 a ton. Of the proposed $1.25 increase,  Twenty-five cents would go to ODNR for the Soil and Water Conservation Districts. The remaining $1.00 will go to Ohio EPA to support various programs.

Construction and Demolition Debris (CDD)
The proposed budget will increase the CDD tipping fee by $2.70 a ton. This will bring the CDD tipping fee from $1.70 a ton to $4.40 a ton. This amounts to an 60% increase in the fees for CDD.  The $2.70 increase would be divided as follows:  $2.25 will go to ODNR for the Soil and Water Conservation Districts and .45 will got to Ohio EPA for operation costs throughout the agency.

Green building practices under the U.S. Green Building Council's LEED program award points for recycling and reuse of construction waste.  With this significant fee increase contractors and project owners should seriously contemplate recycling this material versus disposal even if they are not working on a green building project.

New E-Check Fee
Ohio EPA has proposed an increasing the fee for purchasing new tires by $2.30 per tire.  This fee is projected to generated $15 million in new revenue.  The previous tire fee was used to pay for programs to eliminate tire dumps around the State.  This has been one of the greatest success stories in Ohio.  This increase would be devoted to an entirely new purpose-paying for Ohio's automobile emission testing program (E-check).

Energy Extraction Fees

ODNR for its part has proposed a new fee on oil, coal and natural gas extraction.  Together these fees are projected to generate over $7 million in new revenue.  The energy extraction fees have not been warmly received by industry who argue that raising costs on these energy related resources will simply result in increased costs for individuals and businesses around the state.  

As fees go up for use of resources and disposal of waste, businesses have further incentive to examine green alternatives.  This could be improved energy efficiency. establishment of a co-gen facility that could reduce electric fees, recycling, and reduction of waste streams.

(Photo:D'Arcy Norman/everystockphoto.com)

Day One of EUEC Conference- The Challenge and Opportunity Ahead

I am attending the 12th annual EUEC (Energy and Environment Conference) in Phoenix for the early part of this week.  I guess they had to move the conference from previous venues to the Phoenix  Convention Center to accommodate the large number of registrants.  There are over 450 different speakers and presentations. 

My observations from the first day have been as follows:

1)  Despite the terrible economy the interest in environmental, green energy and climate change continues to grow.  It is truly amazing to see the number of companies and organizations in attendance.  There is also a distinct feeling in the air that the change in Administration will mean explosive growth and new opportunities. 

2) The most interesting presentation on the first day was from U.S. EPA's Frank Princiotti. He discussed the prospect of global climate change and the implications for the planet.  But even more interesting was his assessment of the world's ability to meet this challenge.  Despite the many statements that we have the technology right now to address global climate change, his assessment was much more dire.  For example, he said carbon sequestration would not be ready until at least 2020 or 2030 saying his "DOE colleagues would back him on that statement." 

His basic theme was "we need a technology revolution" and even if that happens it will not  be enough to avoid significant impacts from global warming.   We are at best trying to avoid catastrophic impacts from global warming even with very significant mitigation efforts. 

He indicated that efforts to reduce greenhouse gas emissions should be supplemented with other efforts.  Namely man made engineering to reduce the impacts of climate change.  Such as seeding clouds or creating a reflective layer in the earth atmosphere to deflect the suns effects on a warming planet-Now that is a scary proposition.  Man trying to effect the global temperature through quick fix engineering.  But he put up a slide of leading scientists from around the globe that say this must be under serious consideration.

3)  Another interesting presentation was made by Roger Martella, who is no with the law firm of Sidley Austin,  Prior to that he was EPA's general counsel during the Mass v. EPA litigation.  His perspective was that despite the knocks on the Bush Administration the EPA had done a tremendous amount of work on climate change.  In essence, his perspective was the foundation was laid during the Bush Administration EPA for President Obama to move quickly on climate change. He predicted that April 2nd of this year (the 2nd anniversary of Mass. v. EPA) may be the date of a major announcement by the Obama Administration on Climate Change.  Perhaps the endangerment finding will move forward which will trigger regulation under the Clean Air Act of greenhouse gases. 

I look forward to the next couple days.  My first certainly has been enlightening.  My conclusion from the first day is that if President Obama is serious about addressing climate change (and I think he is) most still do not comprehend the magnitude of change that is upon us.

Between the Lines of the EPA Administrator Memo

Today, EPA Administrator-designate Lisa P. Jackson distributed a memo to all employees of EPA.  The memo outlines her and President Obama's philosophy of environmental protection.  The memo is an interesting demarcation of the major changes that are coming in the realm of environmental protection. 

Some priorities Ms. Jackson is very upfront about, such as addressing Climate Change (which notably was identified as the number 1 priority in her memo).  Other policy perspectives are a little less straightforward, but inferences can be made.  Here are my take aways from the memo.

  1. Climate Change is a major priority-  The President made reference to it in his inaugural speech.  It is no mistake that its the first bullet on EPA-designate Jackson's list of priorities.  Notably, she includes the following statement:  "As Congress does its work, we will move ahead to comply with the Supreme Court's decision recognizing Pea's obligation to address climate change under the Clean Air Act"  STAY TUNED ON THIS ONE>>>
  2. Science will be at the forefront-  Many environmental groups felt that the Bush Administration put science secondary to their end regulatory goals.  The memo is a clear statement that this will change.  What could be the impact?  For one, look for even stronger federal air quality standards (NAAQS) for ozone and fine particles. 
  3. Resurgence in Environmental Justice- A very thorny issue and one difficult to address through regulation.  However, the memo mentions making  "people disproportionately impacted by pollution" a priority.  Perhaps they will try to tackle this more aggressively.
  4. CAIR-  I may be out on a limb on this one.  In the "improving air quality" priority, Jackson states "we will plug the gaps in our regulatory system as science and the law demand."  I think this is a vague reference to a much stronger CAIR program.
  5. Brownfield Redevelopment-  U.S. EPA may put even more emphasis on brownfield programs as a means to accelerate clean up of contaminated sites.  Jackson was criticized in New Jersey for the slow clean ups.  I think the statement -"turning these blighted properties into productive parcels and reducing threats to human health and the environment means jobs and investment in our land" -can't be anything other than a reference to a strong brownfield program.
  6. Money for the Great Lakes?-  In the memo, Jackson says the "Agency will make robust use of our authority to restore threatened treasures such as the Great Lakes and the Chesapeake Bay."  I am intrigued at the term "robust use of our authority" in connection with the Great Lakes.  Is this a reference to enforcement rather than the Great Lakes Restoration Plan?
  7. Don't underestimate the amount of change coming-  President Obama's buzz word was change.  I don't think there is any area that is about to see more change than environmental regulation in the next four years.  Fasten your seat belts...

 

Bill Introduced to Extend Ohio Audit Privilege for Environmental Violations

Senator Tom Niehaus has introduced S.B. 372 bill to extend the effectiveness of Ohio's Environmental Audit Privilege law for another five years.  The law is set to expire on January 1, 2009.  It was a hard fought battle for businesses to get the Audit Privilege law on the books in the late 90's.  While the law was watered down to address U.S. EPA concerns, it remains a valuable tool for some businesses. The law is intended to reward those companies that proactively evaluate their compliance with environmental requirements. 

What is the Ohio Environmental Audit Privilege law?  It is provides immunity from civil penalties if a company voluntarily discloses environmental violations to the appropriate State Agency that were uncovered as a result of an environmental compliance audit.  Note: a civil penalty can still be assessed even after a valid disclosure if the company enjoyed a "economic benefit" as a result of the violation, meaning delayed compliance gave it a competitive advantage.

As a further incentive to utilize the law, the content of an environmental audit report is privileged and not admissible as evidence in a civil or administrative proceeding. (See R.C. §3745.71(C) for exceptions to the privilege provisions)  This provision is meant to reduce exposure to third party suits as a result of environmental violations.

How frequently do businesses use the Audit Privilege Law?  In my experience the law has been used infrequently by Ohio businesses.  During my time at the Ohio EPA, I oversaw the processing of Audit Privilege disclosures.  I would estimate that the Agency received, on average, around four or five disclosures per year during my tenure. 

Why isn't the Audit Privilege Law used more frequently?  I was always puzzled why more companies did not take advantage of the Audit Privilege law.  Some may believe it is better to correct the violation and wait and see if it is discovered by the Agency.  With so many entities to inspect, some companies think it is better to take this risk the violation is discovered than have their disclosure denied for a technical flaw and face an enforcement action.

Other companies may think the administrative costs of performing an audit are too high.  Or some may be under the mistaken belief that Ohio's five year statute of limitations on environmental enforcement actions provides a better shield from penalties.  Just keep in mind that the trigger for the statute of limitations in R.C. §3745.31 is when the Agency "actually knew or was informed" of the violation.  So the Agency must be aware of the violation for the clock to run.

What are some of the reasons a request for coverage is denied?  The disclosure must be voluntary, which means it must not be required by some environmental law.  During my time at Ohio EPA, by far the most frequent reason a company was denied coverage was the disclosure of the violation was required by some other environmental law.  Of those companies denied coverage for this reason, most were Title V permitted sources under the Clean Air Act.   Title V sources are required to disclose violations as part of their permit terms and conditions.  However, even in these cases, the Agency frequently reduced penalties to reward the early disclosure of violations.

Here are additional requirements to be deemed a voluntary disclosure (See R.C.§3745.72(B)):

  1. Prompt disclosure
  2. Reasonable effort to achieve compliance as quickly as practicable
  3. Cooperate with the State Agency who is charged with investigating the disclosure
  4. Disclosure not required by law, prior litigation, or a prior order
  5. The company disclosing has no knowledge or reason to know of an Agency had previously commenced an investigation or enforcement action regarding the violations

What is involved in filing a disclosure to the appropriate state agency?  Unlike environmental permitting or grant applications, the submission to Ohio EPA to receive coverage under the Audit Privilege law is actually pretty minimal. R.C. §3745.72(C) requires that all disclosures must be in writing, dated, and hand delivered or sent by certified mail to the Director.  The written disclosure must include the following information: 

  1. the name, address, and telephone number of the owner or operator of the business making the disclosure;
  2. the name, title, address, and telephone number of one or more persons associated with

    the owner or operator who may be contacted regarding the disclosure;

  3. a brief summary of the alleged violation of environmental laws, including, without

    limitation, the nature, date, and location of the alleged violation to the extent that the

    information is known by the owner or operator; and

  4. a statement that the information is part of an environmental audit report and is being

    disclosed under R.C. §3745.72 in order to obtain the immunity provided by that section.

Are there good reasons to use Ohio's Environmental Audit Privilege Law if it is renewed?  Yes.  During my tenure, I was not aware of any enforcement action that was pursued against a company that made a valid and voluntary disclosure.  Just make sure you are not required to report by some other environmental law. 

I think the law may be ideal for companies that recently purchased a new facility or company.  Performing an environmental audit after such an acquisition is an excellent way to ensure your house is order. 

Also, the audit is a good way to have a third party to evaluate your compliance status.  You can always choose to not file the disclosure if you think its not to your advantage for some reason.

Missing Hazardous Waste Paper Work Can Be Costly

Federal hazardous waste regulations (RCRA) have long been referred to as management from "cradle to grave."  In order meet this management principle, the regulations require detailed paper work and reporting from both small and large businesses. 

Failure to maintain the proper paper work can result in significant penalties or even change your regulatory status which will have even greater implications.  Just in 2008, Ohio EPA Division of Hazardous Waste Management (DHWM) has taken 24 formal enforcement actions that included assessment of civil penalties.  Those penalties have ranged from $4,000 to $75,000.  Many of the actions were against small to medium sized businesses.

In addition, hazardous waste enforcement cases will often be reported in the newspaper, even in the small town local newspaper.  If you want to avoid the bad publicity and a costly fine, it pays to review your company's paper work practices. 

A recent EHS blog post provided a good example of the dangers of missing paperwork. 

But in the absence of any documentation that showed the facility never generated more than 2200 lbs of waste in a calendar month, the inspector assumed incorrectly that the facility generated all the wastes that were shipped out in August of 2001 in that month. [shipped out more than 2200 lbs in the month] The reality was that the wastes in the two shipments made in August had been accumulated over the past several months.

The fact the company did not maintain good records resulted in the inspector citing them for being a Large Quantity Generator (LQG) even though in reality the company was a Small Quantity Generator (SQG).  Without the proper records, the inspector's conclusion becomes difficult to refute.

Ohio EPA has identified the most frequently cited RCRA violations in Ohio.  Reviewing the following list of frequent  categories of violations is a good place to start in determining if your company is property managing hazardous waste. 

  • Waste Determination- The regulations require all waste to be evaluated.  This is often an area overlooked by businesses. Failing to evaluate just one barrel of waste can result in a citation. Ohio EPA developed a handy fact sheet that is worth reviewing to get yourself familiar with these requirements.
  • Annual Reports-  All LQG must submit a report by March 1st for the preceding year.  Review your files to makes sure you have submitted annual reports. 
  • Container Management- Must inspect your hazardous waste storage areas at least once a week and maintain a log documenting those inspections.  Ohio EPA has provided a hazardous waste storage inspection log sheet that can be used to maintain your records.
  • Emergency Equipment Inspections- SQG and LQG must maintain a log of inspections showing all emergency equipment (fire suppression, spill containment, alarms) were inspected as recommended by the manufacturer or supplier of the equipment.  Ohio EPA also has a emergency equipment inspection log sheet you can use to maintain these required records.
  • Used Oil Storage-  All containers use to store used oil must be properly labeled with a sign that says "used oil."  Using terms like "hazardous waste" or "waste oil" is not sufficient.
  • Large Quantity Tank Systems-  All LQG's that use tanks to store hazardous waste must inspect the tank once "each operating day."  A log of inspections must be maintained. According to an Ohio EPA fact sheet, this means each day the tank is in use.  Even if workers are not on-site seven days a week.

(photo from flickr: Ashe-Villian)

(August 08) Ohio Environmental Regulatory and Incentive Update

PTIO Program is Launched-  Effective June 30, 2008 Ohio EPA finalized this new permit program which combines the Permit to Install (PTI) and Permit to Operate (PTO) into a single permit for non-Title V facilities.  Facilities will no longer have to apply for a separate PTO.  This program is intended to deal with Ohio EPA's backlog of PTOs which is in the thousands.  Ohio EPA's new PTIO application is up and must be used for new permits.

Electronic Reporting through Air Services- Effective June 30, 2008 Ohio EPA transitioned from its STARship electronic air reporting software to Air Services.  Air Services is part of Ohio EPA's larger effort to transition to more web based business interaction with the regulated community.  Following the release of the Air Services software, both Title V and Synthetic Minor Title V facilities will be required to use the eBusiness Center: Air Services for all emissions reporting, Title V Annual Compliance Certifications, Title V and other permitting applications.

Electronic Reporting of Surface Water Reports-  If you are using paper reporting or SWIMware to submit monthly-operating-reports (MORs) for NPDES permit compliance you need to quickly transition to Ohio EPA's new electronic reporting system.  Ohio EPA indicates it expects to cease accepting MORs by "end of the  summer". SWIMware has been replaced by the new online system called e-DMR, Electronic Discharge Monitoring Reporting System. The term, MORs (Monthly Operating Reports) is now being referred as DMRs (Discharge Monitoring Reports). The new reporting system is entirely web-based and accessible via any internet connection.

Ohio Diesel Grant Awards Announced-  On July 29th the Ohio Department of Development announced the recipients of the grants for diesel retrofit and repower projects for vehicles and fleets.  The award recipients originally submitted applications back in February.  The implementation of the Diesel Emission Reduction Grant (DERG) program was plagued with a number of issues that resulted in the rejection of a large number of applications and delay in announcing awards.  The Ohio Diesel Coalition is working in conjunction with the various State agencies to improve the grant process in the second round.  The Department of Development is expected to release the second request for proposals (RFP) in August. 

Brownfield Redevelopment- Clean Ohio Assistance Fund (COAF)-  As of July 1, 2008 the Ohio Department of Development has begun accepting applications for COAF grants to pay for Phase II site assessments (up to $300,000) and clean ups (up to $750,000) of brownfield properties.  ODOD has approximately $11.4 million to award.  To qualify the property must be in a designated priority investment area (see map).

Contractors be aware of asbestos regulations

In the most recent issue of Builder's Exchange, a construction attorney in my office (Jim Dixon) and I wrote an article discussing asbestos regulations as they pertain to contractors working at a job site. 

The article was intended to raise awareness in the construction industry that contractors can be liable for asbestos violations even if they do not perform asbestos remediation activities.  If you are the the prime contractor on a job or even a contractor given supervisory authority, the asbestos notification requirements could apply to both you and the owner of the building equally.  Failure to perform the requisite survey or provide the required notice in advance of demolition or renovation work is the most common enforcement action taken by Ohio EPA.  As set forth in the article, make sure you verify the owner has complied with the asbestos regulations before starting work at the site.

(Photo: Ktheory/everystockphoto.com)

Paperwork Penalties Waived for Small Business...Maybe

On June 17, 2008 Governor Strickland signed H.B. 285 which requires agencies to waive fines and penalties for paperwork violations that are first time offenses committed by a small business.  I certainly agree that that this is welcome relief for the small business owners that must navigate a myriad of federal, state and local paperwork requirements.  However, be careful if you are a small business owner, the bill doesn't give a free pass for all paperwork violations.

First, you better make sure you are considered a small business.  You may think you are, but under the bill a series of federal government regulations really decides whether you are classified as a small business.  (Isn't it somewhat ironic that a bill trying to address paperwork requires you to consult a forty-four page table of industrial classifications to determine whether your business constitutes a small business)  Small business classifications are based upon the North American Industry Classification System (NAICS) and the cutoffs are either annual revenue or the number of employees

Second, was it really a paperwork violation?  The bill says a "paperwork violation" is the violation of a law that mandates the collection of information by a state agency.  Sounds simple enough, but as a lawyer I think this is a vague definition. 

CAUTION:  I doubt a violation of permit or needed authorization is going to be considered paperwork under this definition.  As an example, the most common violation Ohio EPA takes enforcement against is for failure to provide notice of demolition or construction activities for purposes of asbestos compliance.   In 2007, Ohio EPA imposed 13 fines against companies for failure to file the notice.  Better make sure you keep filing those notices whether you are the owner of the property or a primary contractor for the project.

Third, even if you get by the first two steps, if your paperwork violations are related to environmental compliance you may still be in hot water.  The bill allows Agency's to still impose fines if, among other exceptions, the following apply to your situation:

  • The violations is considered to present a direct danger to public health or safety....or presents "the risk of severe environmental harm", as determined by the head of the state agency
  • The violation is a failure to comply with a federal requirement for a program that has been delegated to a state agency for enforcement and the state is required to impose a fine
  • Also, a fine may be reinstated if you have subsequent violations

When I was at Ohio EPA all enforcement actions had to come across my desk prior for approval.  In my experience, it was uncommon to impose a fine for purely paperwork violations if a small businesses was at fault.  In the instances we did impose a fine, it certainly could fall within one of the exceptions discussed in this post.