A series of recent criminal prosecutions stemming from workplace fatalities in connection with OSHA’s worker safety laws underscore the Justice Department’s willingness to charge OSH Act crimes, even in the absence of other Title 18 offenses or other criminal charges.
Partner
| 09.08.2022 |
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| 06.20.2022 |
Drinking water systems that supply tap water need to begin preparing for how they will meet new National Drinking Water Standards set for proposal in Fall 2022 based on EPA’s recently issued Interim Health Advisory for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) near zero. On June 15, 2022, EPA announced a new Interim Lifetime Health Advisory for PFOA at 0.000000000000004 g/L (4 parts per quadrillion) and for PFOS at 0.000000000000020 g/L (20 parts per quadrillion) in tap water. EPA’s new advisory level is thousands of times more stringent than EPA’s 2016 Health Advisory of PFOA and PFOS at 70 parts per trillion and the Agency for Toxic Substances and Disease Registry’s current risk levels for PFOA: 78 ppt (adult) and 21 ppt (child), and PFOS: 52 ppt (adult) and 14 ppt (child). And the new levels are significantly below any current laboratory detection or quantification limits, currently around 2 ppt. Consequently, it defies logic how EPA expects drinking water supply systems to even currently assess PFAS levels in relation to the newly released levels. |
| 04.11.2022 |
With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA. On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41. OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting. |
| 03.21.2022 |
Publicly traded companies will be required to disclose climate-related risks to investors under a newly announced U.S. Securities and Exchange Commission (SEC) proposed rule. On March 21, 2022, the SEC announced proposed rule amendments regarding disclosure of climate-related risks and impacts from greenhouse gas emissions (GHG). Citing the growing demand from investors regarding environmental, social, and governance (ESG) issues, and what the SEC calls “fragmented and inconsistent” disclosure requirements, the SEC’s proposed rule amendments will be issued in the Federal Register in the coming weeks for public comment. |
| 02.28.2022 |
Companies that manage chemicals in warehousing, distribution, and logistics facilities remain a high-priority enforcement focus of the U.S. Environmental Protection Agency, as reflected in the recently issued Enforcement Alert. Citing the agency’s current National Compliance Initiative entitled “Reducing Risks of Accidental Releases at Industrial and Chemical Facilities,” the Enforcement Alert reminds businesses that process, formulate, blend, re-package, store, transport, and market chemical products must adhere to a variety of federal EPA rules and the consequences for the failure to do so. |
| 12.23.2021 |
Late on Wednesday, December 22, the United States Supreme Court announced that it will hear oral arguments on January 7, 2022, on several consolidated cases challenging the Emergency Temporary Standard (“ETS”) issued by the Occupational Health and Safety Administration (OSHA) requiring that employers with 100 or more employees adopt vaccine mandate and testing policies, as well as the vaccine mandate imposed on certain health care facilities under the Interim Rule issued by the Centers for Medicare & Medicaid Services (CMS). |
| 12.20.2021 |
Employers with 100 or more employees have until January 10, 2022, to implement the obligations required under the mandatory vaccinate or test requirements in OSHA’s Emergency Temporary Standard issued on November 4, 2021, as published in the Federal Register at 86 Fed. Reg. 61402 (Nov. 5, 2021). Even though the ETS is now effective, the agency is granting a short time period for companies to satisfy the requirements. |
| 08.11.2021 |
OSHA’s Kansas City Area Office recently cited three employers for allegedly exposing workers and residents to asbestos hazards and failing to ensure safe removal of the known carcinogen during a flooring replacement project at a Monett, Missouri, nursing facility. Proposed penalties for the three employers totaled approximately $240,000. |
| 08.02.2021 |
Companies that store hazardous waste liquids with organics or other volatile and light vapors should ensure that the tanks, containers, and equipment used at those facilities satisfy the RCRA Organic Air Emission Standards in Subparts AA, BB, and CC under 40 CFR Parts 264 and 265. Over the past month, EPA has announced at least five separate penalty enforcement actions for air emission violations under the Subpart BB and Subpart CC standards. EPA promulgated the RCRA hazardous waste air emission standards to reduce the release of air emissions and organic vapors into the atmosphere from hazardous waste tanks, containers, equipment, and process vents, to prevent ozone precursors and other air toxics. |
| 03.11.2021 |
Harris County Steps up Inspections and Enforcement of Industrial Permitting and Fire Code ComplianceBusinesses that own and operate industrial facilities in Harris County, Texas, should be aware of recent efforts by the Harris County Fire Marshal’s Office (HCFMO) to ensure that these facilities have obtained proper permits and certificates of compliance for construction and development projects for energy infrastructure and related operations. Failure to obtain the necessary permits and certificates of compliance presents the attendant risk of an enforcement case with the issuance of a notice of violation and potential shutdown of all operations. |
| 02.15.2021 |
On December 16, 2020, a cold storage warehouse and ice manufacturing facility in East Providence, Rhode Island, entered into a guilty plea with the Justice Department for a “knowing” criminal violation of Clean Air Act section 112(r)(7), 42 USC 7412(r)(7), in connection with EPA’s Chemical Accident Prevention Program and requirement to submit a risk management plan (RMP) under 40 CFR Part 68. The facility used a refrigeration system to manufacture and store ice and other frozen products, with 19,000 pounds of anhydrous ammonia in the refrigeration process. |
| 02.02.2021 |
On Friday, January 29, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a new comprehensive worker safety guidance to protect workers against COVID-19, entitled: “Protecting Workers – Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” |
| 01.22.2021 |
On January 21, 2021, President Biden issued the “Executive Order on Protecting Worker Health and Safety,” available here, along with numerous other executive orders addressing COVID-19. The order directs the Occupational Safety and Health Administration (OSHA) to:
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| 01.19.2021 |
Fines and penalties issued by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) are set to increase in 2021 as a result of annual inflationary adjustments. |
| 11.17.2020 |
Despite widespread commentary regarding the lack of COVID-specific regulatory rules in the workplace, the Occupational Safety and Health Administration (OSHA) continues to cite employers for a wide variety of health and safety violations arising from COVID-related investigations. On November 6, 2020, OSHA issued guidance summarizing which safety standards the federal agency most frequently cites during COVID-related inspections: Respiratory Protection, Recording and Reporting Occupational Injuries and Illnesses, Personal Protective Equipment (PPE), and the General Duty Clause. |
| 10.29.2020 |
Chemical plant owners and operators need to carefully review a recent federal appellate court decision that could substantially expand process safety management (PSM) considerations and related chemical safety and accidental release regulatory requirements under EPA’s Risk Management Plan (RMP) program. |
| 09.28.2020 |
If your business sells or distributes products or devices by claiming that the products work against or kill COVID-19, beware that such claims are subject to regulatory oversight by a variety of governmental agencies, such as the Environmental Protection Agency, Federal Trade Commission, and the Food & Drug Administration. Unsuspecting companies in the sale and distribution of these products, such as disinfectants, sanitizers, or cleaners,[1] must ensure their labels and marketing claims satisfy regulatory requirements. |
| 08.27.2020 |
On August 26, 2020, the U.S. Securities and Exchange Commission (SEC) announced significant changes to the disclosure requirements for publicly traded companies under Regulation S-K. Businesses that receive monetary sanctions from the EPA and other governmental authorities involving violations of environmental laws will want to carefully review the new Item 103 Legal Proceedings rules as it may substantially alter disclosure obligations. |
| 08.07.2020 |
Facility owners and operators with air permits will want to pay close attention to a recent Fifth Circuit ruling on a private citizen’s ability to seek penalties for/and defenses against alleged violations of the Clean Air Act. Following a bench trial, an appeal, and another bench re-trial, this decade-old case has again gone up to the appeals court and had the trial court’s judgment vacated and remanded, this time to decide the Plaintiffs’ standing to bring the case in the first place and to judge the viability of two key affirmative defenses. Environment Texas Citizen Lobby, Inc. v. Exxon Mobil Corp., 66 F.Supp.3d 875 (S.D. Tex. 2014), vacated and remanded, 824 F.3d 507 (5th Cir. 2016), on remand, No. H-10-4969, 2017 WL 2331679 (S.D. Tex. Apr. 26, 2017), vacated and remanded, slip op. No. 17-20545, 2020 WL 4345337 (5th Cir. Jul. 29, 2020), as revised (Aug. 3, 2020). According to the majority opinion, the panel gave both the lower court and the regulated community guidelines for when each CAA violation is “fairly traceable” to a plaintiff’s alleged injury to support standing under Article III of the U.S. Constitution. According to the concurrence, the Fifth Circuit’s standing precedents are “a mess” that are trending toward the unconstitutional elimination of “but-for” causation; a paradox that should be clarified by the full court en banc to stop a continuing loop of confusion. |
| 07.27.2020 |
Employers beware, particularly those in healthcare sectors. If you provide a NIOSH-approved N95 “respirator” to protect employees from COVID-19, there are a number of OSHA respiratory protection standards that must be followed in a comprehensive Respiratory Protection Program. The Department of Labor OSHA’s July 21, 2020, national press release makes clear that OSHA will seek the maximum possible penalties for serious violations against companies that do not fully satisfy the respiratory protection standards. |
| 07.07.2020 |
In a one paragraph, unsigned order issued July 6, 2020, the U.S. Supreme Court reinstated most uses of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for pipeline and utility trenching and construction, dredge and fill, and maintenance, inspection, and repair activities in or adjacent to wetlands and other waters of the United States. The Court’s order carves out and continues to disallow use of NWP 12 for the Keystone XL pipeline (the actual target of plaintiffs’ lawsuit). For our earlier alerts on this fast-moving litigation see here, and here, and here. |
| 06.29.2020 |
Accidental chemical releases in the workplace and offsite into the environment continue to be a high-priority enforcement area for both the U.S. Environmental Protection Agency and the U.S. Department of Labor’s OSHA, including releases of anhydrous ammonia and other toxic and flammable substances under the agencies’ RMP and PSM programs. |
| 05.28.2020 |
The partial vacation of Nationwide Permit 12 (NWP 12) will remain in place for now as the Ninth Circuit today denied emergency motions for a partial stay pending appeal. In its May 28, 2020, Order (available here) the Ninth Circuit held that appellants “have not demonstrated a sufficient likelihood of success on the merits and probability of irreparable harm to warrant a stay pending appeal.” |
| 05.20.2020 |
On May 19, OSHA issued two enforcement memos regarding COVID-19. The first of these memos revised OSHA’s requirements for employers as they determine whether individual cases of COVID-19 are work-related. The second enforcement memorandum OSHA issued on May 19 revised OSHA’s policy for handling COVID-19-related complaints, referrals, and severe illness reports. These two memos are summarized below. |
| 05.15.2020 |
This week the U.S. District Court for the District of Montana restored use of the U.S. Army Corps of Engineers’ Nationwide Permit 12 for some utility line construction and maintenance activities (primarily for non-pipeline projects) by restricting the scope of its earlier vacation of the permit, while the Ninth Circuit ruled on an initial round of briefings in the government’s request for an emergency stay. The District Court’s April 15 decision has been the source of significant disruption because it not only blocked application of the popular nationwide permit to the Keystone XL pipeline (the subject of the litigation), but also barred any and all other uses of the permit. See our earlier alert here. |
| 04.23.2020 |
US Supreme Court Says Superfund Statute Allows Landowners to Seek Additional Remediation in State Court, but Delays Additional WorkOn April 20, 2020, the United States Supreme Court issued its long-awaited decision allowing 98 private landowners in Montana to pursue a restoration damages claim against Atlantic Richfield Co. (as successor to the Anaconda Copper Mining Co.) based on Montana common law nuisance, trespass, and strict liability claims. Atlantic Richfield Co. v. Christian, et al, slip op., 590 U.S. ___ (April 20, 2020). After giving with one hand however, Chief Justice Roberts (writing for the Court) took with the other, and held that on remand, if the landowners persuade a Montana jury of their entitlement to restoration damages, absent EPA’s consent, they still may not use that right until after EPA’s approved cleanup is completed and the site is delisted from the NPL. |
| 04.22.2020 |
On April 21, 2020, the U.S. Army Corps of Engineers (“Corps”) and the Environmental Protection Agency published the finalized Navigable Waters Protection Rule in the Federal Register, ushering in significant changes to the definition of Waters of the United States (“WOTUS”), those waters federally regulated under the Clean Water Act. The rule affects multiple Clean Water Act programs, including Section 404 (wetlands), Section 402 (end-of-the-pipe discharges), and Section 311 (oil and hazardous substance spills). The rule is available here, and an EPA fact sheet regarding the rule is available here. For more background information, our latest article regarding the WOTUS saga is available here. |
| 04.20.2020 |
Pipeline companies, utilities, engineers, builders and land developers, and other construction companies that rely on Nationwide Permit (NWP) 12 for utility line and trenching activities in and around potential wetland areas will need to carefully re-evaluate their ability to conduct work under this general permitting tool. This is because on April 15, 2020, a federal district court vacated NWP 12 and determined that the U.S. Army Corps of Engineers (USACE) had not adequately considered impacts in issuing the 2017 permit under the federal Endangered Species Act. As a result of this court ruling, pipeline and utility infrastructure projects that rely on NWP 12 may be impacted. |
| 04.16.2020 |
Over the past week, OSHA has issued three separate enforcement-related guidance memos to its regional offices and field staff regarding how and when to bring enforcement actions against employers for failing to protect worker health and safety amidst the COVID-19 pandemic. The first guidance covers workplace reporting and recording of injury and illnesses associated with exposure to COVID-19, while the other two OSHA guidance documents provide a roadmap to employers on how the agency will enforce violations of the OSH Act. |
| 04.08.2020 |
On March 30, 2020, the federal district court for the Southern District of Indiana weighed in on what it really takes for a property owner to claim the bona fide prospective purchaser (BFPP) defense to Superfund liability based on a Phase I Environmental Site Assessment (ESA). And in so doing, the court gave additional support to those of us who pay attention to not just whether a Phase I ESA report does or does not find a Recognized Environmental Condition (REC) at a property, but also when and how the environmental professional (EP) reached his or her conclusions. |
| 03.31.2020 |
The Minnesota Pollution Control Agency (“MPCA”) has announced a process for regulated entities seeking regulatory flexibility that may have an unavoidable noncompliance situation that is directly due to an impact from the COVID-19 Peacetime Emergency, declared by Governor Walz in Emergency Executive Order 20-01. |
| 03.27.2020 |
Consistent with Governor Kelly’s March 17, 2020, directive, the Kansas Department of Health and Environment (KDHE) offices are closed for the two weeks between March 23 and April 3, 2020, as part of the state’s response to COVID-19. KDHE continues its essential functions and the Bureau of Environmental Remediation (BER) has provided several updates for the regulated community. The agency has indicated it is uncertain that mail will be logged in daily and parties should expect some delay in communications. Electronic communications are preferred where possible. |
| 03.26.2020 |
Today the Environmental Protection Agency’s Enforcement and Compliance Assurance Program announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. The policy is available here and is retroactive to March 13, 2020. EPA makes clear that the policy is temporary and the agency will give seven days’ notice before terminating the policy. |
| 03.25.2020 |
At a Wednesday, March 25, conference Missouri Department of Natural Resources (MDNR) division director Ed Galbraith said MDNR will take a flexible approach to enforcing environmental requirements during the COVID-19 outbreak. Galbraith also said that MDNR has discontinued environmental inspections for the time being and that he understands EPA Region 7 has done so, as well. MDNR is conducting certain field work, however. |
| 03.23.2020 |
Over the weekend and Monday morning, Missouri and the major local jurisdictions that comprise the St. Louis and Kansas City metropolitan areas issued emergency orders directing business and individual responses to the COVID-19 (coronavirus) outbreak by imposing social distancing requirements. Kansas had issued a statewide order on March 17, and Illinois had issued a statewide order on Friday, March 20. Generally speaking, these orders close schools except for distance learning, ban activities inside bars and restaurants, ban social gatherings of more than 10 people, and encourage social distancing. The Illinois state order and many of the city and county orders require businesses and organizations to close their workplaces and workers to stay home unless they are deemed “essential” or qualify for another exemption. Some businesses have been obtaining favorable determinations that they are “essential” from their local jurisdictions on a case-by-case basis. Grounds for exemptions can include food manufacturing and processing, manufacturing and supply chain services for other essential businesses, construction, services to help businesses comply with laws, and many others. |
| 03.10.2020 |
According to recent OSHA guidance, COVID-19 (i.e., the coronavirus) is subject to the agency’s Injury and Illness Recordkeeping and Reporting Requirements at 29 CFR 1904. This means that employers who are subject to the OSHA recordkeeping and reporting rules must include and log employee illnesses related to the coronavirus when an employee is infected on the job. So while the common cold and Flu are exempt from work-related exposures, the coronavirus is not. |
| 03.04.2020 |
The Missouri Department of Natural Resources faces a potential funding shortfall for Missouri’s Hazardous Waste Program following the General Assembly’s March 4 disapproval of a stopgap funding measure. On that date, the Missouri House of Representatives adopted Senate Concurrent Resolution 38 disapproving an increase in Hazardous Waste Program fees previously passed by the Missouri Hazardous Waste Management Commission. The Missouri Senate had passed SCR 38 on February 24. Accordingly, the fee increases will not take effect. |
| 02.21.2020 |
Companies and facilities that experience an accidental release have a new regulation to consider for releases of regulated substances or extremely hazardous substances. On February 21, 2020, the U.S. Chemical Safety and Hazard Investigation Board (CSB) issued its new final rule governing reporting of accidental releases subject to the Board’s investigatory jurisdiction. The new rule requires the owner or operator of a stationary source to report to the CSB any accidental release resulting in a fatality, serious injury (defined as resulting in death or inpatient hospitalization), or substantial property damages (defined as damage of $1,000,000 or more). A copy of the rule in today’s Federal Register is available here. |
| 11.07.2019 |
The Oklahoma Environmental, Health and Safety Audit Privilege Act is now effective as of November 1, 2019, and available to manufacturers and industrial businesses in Oklahoma that undertake voluntary environmental audits, such as those companies involved in aircraft manufacturing, chemicals, oil and gas processing, plastics, cement, food and meat processing, and paper products . Oklahoma is the 30th state, by EPA’s count, to enact an audit program, providing privilege and enforcement benefits to parties that voluntarily undertake an environmental audit, disclose the findings and conduct corrective actions. |
| 10.28.2019 |
Effective October 1, 2019, Region VII OSHA (Kansas, Missouri, Nebraska, and Iowa) announced a combination of Regional Emphasis Programs, along with state-led local emphasis programs. |
| 07.15.2019 |
Continuing its focus on cooperative federalism under the current Administration, EPA issued its final policy on Enhancing Effective Partnerships Between the EPA and the States in Civil Enforcement and Compliance Assurance Work on July 11, 2019. EPA’s guidance memorandum follows review of comments from the draft policy published in May 2019 and replaces the January 2018 interim guidance on enhancing partnerships. EPA’s final policy expands and clarifies earlier direction on communication planning between EPA and its state counterparts with authorized or delegated programs under various federal statutes such as the federal Clean Air Act, Clean Water Act, and RCRA. |
| 06.11.2019 |
Facilities that own and operate air emissions sources in the State of Missouri, such as manufacturing plants, chemical plants, and similar industrial air sources, will want to take note of recent proposed changes to the notification obligations involving certain excess emission events. |
| 03.05.2019 |
Mitigation bank credits may become more readily available to builders, developers and other permittees following new guidance issued in late February. The U.S. Army Corps of Engineers issued Regulatory Guidance Letter 19-01, developed in collaboration with the U.S. Environmental Protection Agency, on February 22, 2019. (Available here) |
| 01.29.2019 |
Lenders, borrowers, purchasers, sellers, and even contractors sometimes get annoyed with environmental lawyers when we insist on reviewing Phase I Environmental Site Assessment (ESA) draft reports, looking at the underlying regulatory files, checking title reports, real property records, and contract terms, counting days to make sure that the Phase I report is not stale or expired at closing, and documenting which parties do, should, or do not have reliance rights under that report. |
| 08.10.2018 |
As someone who frequently helps businesses buy and sell commercial and industrial properties, I frequently encounter misunderstandings about Phase I Environmental Site Assessments (ESAs) and their role in a property transaction. Although not an exhaustive list, these 10 items are among the most important you should know about for your next property transaction. |
| 11.20.2017 |
A high-ranking Environmental Protection Agency (EPA) enforcement official in the Trump Administration recently cited a 1994 memorandum by Earl Devaney, then Director of EPA’s Office of Criminal Enforcement, as presenting guiding principles to select cases for criminal enforcement of environmental violations. The January 12, 1994, memorandum, “Exercise of Enforcement Discretion,” is often referred to as the “Devaney Memorandum,” and it is available at this link: https://www.epa.gov/sites/production/files/documents/exercise.pdf. This may signal that criminal enforcement of environmental laws under the Trump Administration will be limited to situations in which there has been significant actual or threatened environmental harm and truly culpable conduct. |
| 09.11.2017 |
OSHA recently published a guidance document to help petroleum refineries comply with OSHA’s Process Safety Management (PSM) standard, 29 CFR 1910.119, distilling lessons learned by OSHA over the past ten years from the Petroleum Refinery PSM National Emphasis Program (NEP). The OSHA guidance serves as a road map for process safety professionals to understand specific areas that OSHA will focus on during a PSM audit and areas most likely for OSHA to find gaps in PSM programs. |
| 07.27.2017 |
Companies that beneficially reuse hazardous secondary materials by recycling or reclaiming those materials rather than discarding them as hazardous waste need to be aware of a new federal court ruling that may provide additional flexibility in the reuse and recycling of those materials. In its July 7, 2017, opinion in Am. Petroleum Inst. v. EPA, No. 09-1038, slip op. (D.C. July 7, 2017), the U.S. Court of Appeals for the District of Columbia struck down two key elements of the EPA’s 2015 Final Rule aimed at revising EPA’s “Definition of Solid Waste”: Factor 4 of the legitimacy test (i.e., “toxics along for the ride”) and, in pertinent part, the Verified Recycler Exclusion pertaining to reclamation under RCRA. |
| 03.12.2017 |
Construction companies, general contractors, developers, and property owners involved in land clearance and disturbance activities will want to take note of the new Stormwater Construction General Permit (“Construction General Permit”) issued by the United States Environmental Protection Agency (“EPA”) on February 17, 2017. As with earlier Construction General Permits, the 2017 permit applies to land clearance and disturbance activities greater that one acre and requires site operators to comply with best management practices (“BMPs”), effluent limits, and other permit requirements, including developing a Stormwater Pollution Prevention Plan (“SWPPP”). |
| 02.05.2017 |
In January 2017, both EPA and OSHA increased civil penalties for new enforcement cases. While the increases became effective just days before the new Administration took office, the increases are a result of Congressional action in 2015 to annually adjust civil penalties for inflation by January 15 of each new calendar year. |
| 09.18.2016 |
Retail and Consumer Product Hazardous Waste – Update on Reverse Distribution and Aerosol Cans by EPAOn September 12, 2016, EPA issued its “Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework.” The strategy document sets forth three actions the agency is expected to finalize in the short-term to help ease the RCRA burden on managing retail and consumer products that may trigger RCRA hazardous waste characteristics or RCRA listings once a decision to discard is made. |
| 08.21.2016 |
Effective July 1, 2016, buyers of industrial and commercial properties in Kansas may qualify for a Certificate of Environmental Liability Release (CELR) under the state’s new Contaminated Property Redevelopment Act. This liability release for pre-existing contamination is important for prospective purchasers of industrial and commercial properties by helping to facilitate those transactions and allow the buyer to avoid state cleanup responsibility. But not only buyers benefit, as sellers can also demonstrate a framework that allows the transaction to proceed and maximize the property value without the buyer or seller taking on unnecessary risk if the proper steps to obtain the CELR are followed. |
| 03.27.2016 |
New OSHA Silica Dust Rule to Impact Over 675,000 Workplaces, Biggest Impact on Construction IndustryOn March 25, 2016, 81 Fed. Reg. 16286, OSHA issued a new final rulemaking to reduce silica dust exposure that will directly affect more than 2 million construction workers who drill, cut, crush, or grind silica-containing materials such as concrete and stone, and 300,000 workers in general industry operations such as brick manufacturing, foundries, and hydraulic fracturing. OSHA explains that silica dust exposure occurs in common workplace operations involving cutting, sawing, drilling, and crushing of concrete, brick, block, rock, and stone products (such as construction tasks), and operations using sand products (such as in glass manufacturing, foundries, sand blasting, and hydraulic fracturing). |
| 03.26.2016 |
Businesses that store and use flammable and toxic chemicals that are regulated under EPA’s Risk Management Plan (RMP) Program at 40 CFR Part 68 need to be aware of recent actions by the U.S. Environmental Protection Agency aimed at curtailing chemical accidents and releases through new proposed regulations and also enforcement. Facilities potentially subject to EPA’s initiatives include chemical plants and refineries, POTWs that use chlorine as a disinfectant, as well as those companies that use and store bulk anhydrous ammonia as an industrial refrigerant (dairy operations, food and pharmaceutical manufacturing, cold storage warehousing) or as fertilizer (agricultural cooperatives, fertilizer distribution). |
| 03.22.2016 |
On February 18, 2016, the U.S. Environmental Protection Agency announced its new National Enforcement Initiatives aimed at protecting public health and national pollution challenges for FY 2017-2019. These new initiatives, coupled with other recent significant announcements by the U.S. Department of Justice regarding a new emphasis for individual accountability for corporate malfeasance (“Yates Memo”) along with an expanded focus on DOJ’s and OSHA’s worker endangerment initiative, underscore a new paradigm shift for businesses and individuals in how EPA and the DOJ intend to enforce the nation’s environmental, health and safety (“EHS”) laws over the coming years. |
| 02.27.2016 |
Earlier this month, OSHA Region VII announced that it was launching a new Region-wide Local Emphasis Program in Kansas, Missouri, and Nebraska designed to address certain industries viewed by OSHA as high-hazard manufacturing industries because the injury and illness rates exceed the average for the private sector. |
| 02.27.2016 |
Beginning October 1, 2016, the U.S. Environmental Protection Agency (EPA) will target its enforcement efforts in seven different focused areas, including three areas designed to protect water quality, two initiatives aimed at reducing toxic air pollutants and reducing air pollution, an initiative to reduce accidental chemical releases from industrial facilities, and an enforcement initiative geared at energy extraction activities. |
| 01.02.2016 |
Businesses and companies seeking to qualify for penalty mitigation and relief by submitting voluntary self-disclosures under EPA’s Audit Policy need to be aware of significant changes and modifications that took effect in December 2015. |
| 12.19.2015 |
On December 17, 2015, the U.S. Department of Justice (DOJ) announced a major new initiative to increase the number of criminal charges in worker endangerment and worker safety cases. Although the DOJ and the Occupational Safety and Health Administration (OSHA) have had a worker endangerment initiative for a number of years, the new changes are intended to bolster the likelihood and number of criminal prosecutions which historically have languished, according to DOJ, due to the OSH Act’s misdemeanor criminal provisions. |
| 07.01.2015 |
On June 29, 2015, the United States Supreme Court announced its decision in Michigan v. Environmental Protection Agency, holding that EPA unreasonably interpreted a provision of the Clean Air Act regarding the regulation of power plants under the EPA’s Mercury and Air Toxics Standard (MATS) (also referred to as the Utility MACT). |
| 06.13.2015 |
A residential home builder, Garden Homes, has agreed to resolve alleged stormwater violations with the EPA and U.S. Department of Justice, according to a June 8, 2015, Federal Register Notice. The settlement involves a civil penalty of $225,000 and a Supplemental Environmental Project valued at $780,000 involving the acquisition of 108 acres of land for preservation. |
| 06.06.2015 |
On June 2, 2015, the U.S. EPA and DOJ announced a $3 million dollar settlement with Millard Refrigerated Services, a company specializing in refrigeration and distribution services to retail, food service, and food distribution companies. The settlement resolves alleged violations of the EPA’s Risk Management Program, the Clean Air Act’s General Duty Clause, and CERCLA and EPCRA release reporting requirements stemming from three releases of the industrial refrigerant anhydrous ammonia from the facility’s Mobile Marine Terminal in Alabama. Among the release incidents was an August 2010 release involving hospitalization and medical treatment of individuals who were offsite working on decontaminating ships in response to the 2010 oil spill in the Gulf of Mexico. |
| 04.07.2015 |
On March 10, 2015, EPA issued a new revised 2015 Update to its Supplemental Environmental Project (SEP) Policy, thereby superseding prior SEP policies. |
| 03.30.2015 |
In a recent Midwest Real Estate News guest column, Spencer Fane Partner Andrew Brought shared his knowledge and insight on Phase I Environmental Site Assessments (ESAs) with readers. The article outlines the role and common misconceptions of environmental site assessments in property transactions and provides 10 important facts on ESAs as well as their impact on buyers and sellers involved in real estate transactions. |
| 01.19.2015 |
Last week, on January 13, 2015, EPA issued its new “Definition of Solid Waste” Final Rule in the Federal Register at 80 Fed. Reg. 1694. This new rulemaking will have significant impacts regarding how secondary hazardous materials are recycled and exempted from the hazardous waste regulations. Unless challenged (and by all accounts it appears at least certain aspects may be litigated based on initial comments by various industrial sectors) the rule becomes effective on July 13, 2015, where EPA is the authorized implementing agency (Iowa, Alaska, American Samoa, and Puerto Rico and the U.S. Virgin Islands). Because RCRA is a federally delegated program, other states will have to adopt the more stringent aspects of the rule discussed below. |
| 01.04.2015 |
On January 1, 2015, new OSHA regulations took effect that broaden the scope of work-related injuries that employers must now report to OSHA. |
| 09.03.2014 |
On September 9, 2014, Andrew Brought of Spencer Fane will be one of the panelists in the ABA’s Presentation Environmental Compliance Certifications: What Your Clients Need to Know Before They Sign. |
| 06.23.2014 |
Earlier today, June 23, 2014, the United States Supreme Court dealt a blow to EPA’s current approach to regulating greenhouse gas emissions (GHGs) through its air permitting program for new or expanding stationary sources. Utility Air Regulatory Group v. Environmental Protection Agency. No. 12-1146, ___ U.S. ___, June 23, 1014. The Court said it left intact EPA’s ability to regulate 83 percent of such GHG emissions, compared to the 86 percent EPA championed under its approach. Nevertheless, in its ruling the Court undercut key foundations of EPA’s current GHG regulatory approach. This ruling will require EPA to re-think many aspects of its approach to GHGs and will give opponents increased leverage in the upcoming discussions. |
| 06.18.2014 |
On June 17, 2014, EPA issued a proposed rule in the Federal Register, 79 Fed. Reg. 34480, proposing to amend the standards and practices for satisfying All Appropriate Inquiries (AAI) under CERCLA. In particular, EPA is proposing to remove references to the 2005 Phase I ESA Standard ASTM E1527-05 as satisfying AAI. |
| 12.07.2012 |
In an effort to encourage brownfield site redevelopment and renewable energy development on contaminated sites, on December 5, 2012, EPA issued a guidance document designed to clarify the scope of enforcement discretion the agency will provide to tenants who undertake steps to avoid liability under CERCLA’s Bona Fide Prospective Purchaser (“BFPP”) provisions. In conjunction with the guidance memorandum, EPA also issued three new model comfort/status letters for lessees involved in renewable energy development on contaminated property. |