Audit, Compliance and Risk Blog

On May 17, the Environmental Protection Agency (EPA) issued a proposed order registering the pesticide sulfoxaflor, using authority under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). This proposal is the latest action in a long-running and controversial review of that potential pesticide, and continues to consider how toxic this active ingredient is to bees, and therefore how and if it can be used. Coming after a recent court decision vacating EPA’s previous attempt to register sulfoxaflor, the answer is not clear (I provided a basic discussion of FIFRA registration here).

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Section 404 of the Clean Water Act (CWA) authorizes the U.S. Army Corps of Engineers (Corps) to regulate the “discharge” of “dredged material” or “fill material” into “navigable waters.” Section 404 provision applies if someone wants to dredge a waterway, put fill (or a constructed feature such as a pier or berm) into a waterway, or fill a wetland that occupies a waterway, if that waterway is regulated by CWA as a “water of the United States.” That definition is subject to extreme controversy at the moment – several U.S. Supreme Court decisions struck down a century of agency interpretations, which the Corps and the Environmental Protection Agency (EPA) sought to readjust by changing rules that have now been stayed pending litigation that’s certain to reach the Supreme Court again (I blogged about the rules here).

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Most of the laws and regulations discussed in these blogs exist to ensure proper management of hazardous chemicals and products, in ways designed to minimize environmental and human exposures. Pesticide management provides important variations on these themes, since pesticides are used for the very purpose of killing targeted organisms in the environment … and are regulated to target those uses to protect humans and other non-target species. Within the United States, the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) provides the national framework for regulation of pesticides, including registration of active ingredients and mixtures, licensing of applicators, and requirements for the application and use of these hazardous materials. FIFRA provides the U.S. Environmental Protection Agency (EPA) with overall responsibility, although different elements of pesticide regulation are subject to different balances of federal (EPA) and state control.

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When it comes to hospitals we all expect the highest standard of cleanliness and yet, we want every part of our lives to be more sustainable. Of course, when hospitals are faced with a choice that puts hygiene up against sustainability, hygiene always wins. But I wonder if it’s possible to find ways for both to win?

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The Clean Water Act’s (CWA’s) national water quality purview includes National Pollutant Discharge Elimination system (NPDES) provisions for “stormwater” that may contain pollutants such as oil, industrial contaminants, and sediment. This means run-off of rain or snow melt containing pollutants from manufacturing, processing, or raw material storage areas at an industrial site, that passes through a “conveyance” (such as a storm drain) into waters of the United States. The Environmental Protection Agency (EPA) administers or delegates permit programs covering discharges from the following:

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The Occupational Safety and Health Administration (OSHA) recommends that all employers create and maintain plans for dealing with emergency conditions. In particular, some OSHA standards require employers to create an emergency action plan (EAP) as part of their compliance programs.

Even if your organization is not required to do so, you should consider the benefits or being prepared to conduct emergency responses and evacuations. Well-developed emergency plans and proper employee training (so employees understand their roles and responsibilities) likely will result in fewer and less severe employee injuries and less structural damage to the facility during emergencies. A poorly prepared plan, on the other hand, likely will lead to a disorganized evacuation or emergency response, exacerbating confusion, injury, and property damage.

Which Employers Require An EAP?

The following OSHA Standards require you to prepare an EAP as part of your compliance with their requirements:

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Efforts to prevent and respond to chemical disasters are undergoing their first thorough review since many were created decades ago after December 1984’s catastrophe in Bhopal, India. President Obama triggered these reviews in August 2013, when he issued an Executive Order directing federal regulatory agencies to review specified regulatory programs that are designed to prevent such disasters: Occupational Safety and Health Administration’s (OSHA) Chemical Process Safety Management Standard (PSM); Environmental Protection Agency’s (EPA) Accidental Release Prevention (ARP) program and Emergency Planning and Right-to-Know Act (EPCRA) program; and Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program (I blogged about the EO here, OSHA’s consideration of PSM changes here, EPA’s call for comments on possible ARP revisions here, one of the agencies’ joint reports here, and about subsequent revisions to CFATS here and here). On February 25, 2016 EPA proposed ARP revisions, which I describe below.

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Federal laws (commonly referred to as RCRA, after the Resource Conservation and Recovery Act of 1976) provide comprehensive management requirements for parties involved in hazardous waste management, from “cradle to grave” covering generators, transporters, and offsite management facilities. Among these many provisions are requirements that “large quantity generators (LQGs)” submit biennial reports to the Environmental Protection Agency (EPA) or delegated states in March of every even-numbered year. March 2016 is the next such deadline, so now is a good time to review biennial report requirements.

Who Must File Biennial Reports?

A facility that was an LQG during calendar year 2015 must file a biennial report. LQGs are defined as a facility that generates either of the following during a calendar month:

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On December 11, 2015, representatives of 195 countries agreed to continue to expand global efforts to combat climate change. The new Paris Agreement breaks a longstanding impasse with a clever mixture of binding but unenforceable commitments, and present agreements and ongoing agreements-to-agree. It creates a structure that might, or might not, evolve fast enough to prevent the catastrophic climate changes otherwise predicted by most scientific experts.

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In May 2015, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) completed a decade-spanning joint rulemaking, and issued new definitions of “waters of the United States” that are subject to these agencies’ regulatory authority (under the Clean Water Act (CWA) and related federal laws) (I wrote about these rules here). These rules parse ambiguities in several US Supreme Court decisions to re-establish predictable controls over water-affecting actions.

The rulemaking was highly publicized, including intense efforts by EPA and the Corps to solicit public involvement and comments. The agencies made unprecedented use of social media, including Twitter, Facebook, YouTube, and Thunderclap. These included encouragement to recipients to re-post the EPA information to others. When issuing the final rules, the agencies reported that they had conducted more than 400 public meetings and received more than one million public comments (many through social media).

These publicity efforts were also caught up in intense partisan political sparring between the Republican-led Congress against high profile (Democratic) Obama administration environmental initiatives. In part to restrict support building efforts, the 2014 federal budget prohibited expenditures “for publicity or propaganda purposes, and for the preparation, distribution or use of any kit, pamphlet, booklet, publication, radio, television, or film presentation designed to support or defeat legislation pending before the Congress, except in presentation to the Congress itself.” Republicans subsequently charged that the EPA and Corps efforts violated these restrictions, adding those charges to efforts to repeal the new rules. The agencies have defended themselves with claims that their efforts amounted to authorized use of publicity and media to develop or promote their own policies.

Senator James Inhofe, Chairman of the Committee on Environment and Public Works, requested the Government Accountability Office (GAO, an independent research and reporting entity under Congressional authority) to investigate this disputed issue, and offer a formal opinion whether agency efforts violated the budgetary restrictions. On December 14, GAO issued its formal reply concluding that some of EPA’s efforts had indeed violated the restrictions. Although EPA had never directly invited the public to comment to Congress or to lawmakers, some of EPA’s postings provided hyperlinks to advocacy group pages that did so; for example, EPA provided links to Natural Resources Defense Council (NRDC) and Surfrider Foundation webpages that took positions on the issues and encouraged viewers to provide responses to Congress. In addition, other advocates had reposted the EPA information along with their own messages including encouragement to political action. GAO concluded that these links did violate restrictions.

As of this writing, EPA had acknowledged but rejected GAO’s conclusions. However, practitioners are cautioning agencies and non-governmental advocates to review their use of hyperlinks to consider whether “secondhand” advocacy or informational campaigns are attributable to the original source. For EPA and other agencies these considerations will affect use of appropriated funds, and for others they will affect use of hyperlinks in political contexts.

Self-Assessment Checklist

Does my organization routinely provide information via social media?

If so, does this information include advocacy as well as factual statements or advertisements?

If so, does the organization have policies or approaches to inclusion of hyperlinks to third parties in its postings, and to inclusions of hyperlinks to its postings by third parties?

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