Environmental disputes can turn costly quickly: samples, more samples, experts, attorneys, more experts. In my experience, few environmental disputes are worth the expense of going to trial.
I recently completed a 40-hour mediation training class and was reminded how cost-effective mediation can be. I wanted to share these thoughts while they were still fresh in my mind.
Mediation isn’t always the answer. But, not only can it provide an important reality check, it can also encourage more creative resolutions than anything available in a courtroom. Continue reading Mediation Can Be an Effective Solution to Costly Disputes
In the aftermath of the 2017 hurricanes, black mold has become one of the most critical issues encountered during building repair and reconstruction. You need to know:
1) what regulations are applicable for your location,
2) what is required and what is not, and,
3) what you can control. Continue reading Understanding Black Mold Assessment and Remediation – Don’t Get Duped
I attend the Offshore Technology Conference (OTC) last week in Houston. After walking more than 11 miles and visiting almost every booth (thank goodness for the best conference app I have used), here are the coolest things I saw and the best swag I received:
- AbTech makes Smart Sponge that adsorbs oil rather than absorbing it. The result is that oil doesn’t drip from the sponge when squeezed. They sell it for socks and in square blocks to put in subfloor drains. I found it ironic that AbTech is located in arid Scottsdale, AZ
- Mont demonstrated a neat Bristle Blaster that removed corrosion from pipes without using grit. Pretty cool.
- Noke makes bluetooth-enabled locks that you can open with an app on your phone.
- Gaston Mille sells anti-slip and steel-toed slip on shoe covers. This would be more convenient for visitor shoes, and easier to carry yourself if visiting a plant. They are new to the US.
Most booths had the usual pens, coozies, mints, and beer (well, isn’t beer is always a a cool swag?). Among the thousands of booths, I found a couple of cool swag items:
- Draeger do rag. Who doesn’t want to look like a cool “gansta” with a do rag emblazoned with the Draeger logo?
- Moscow Mule copper cup. Although I’m not a fan of the drink (too sweet), the cup is still cool. From Copper State Rubber.
- A keychain with a flashlight AND three small tools to fix your eyeglasses. Provided by TTS Group ASA
As a bonus for those who have read down this far, the best slogan was from a company that makes hydraulic and pneumatic wrenches: “tools for studs with big nuts”
Did I get any business or prospects from OTC? Probably not, but it was quite an experience and worth attending once.
I’ve been to a lot of “deal maker” networking events lately. These are the ones with lenders, private equity folks, M&A attorneys and other people who help put deals together. When I introduce myself, many are perplexed about why I am there. “Do you do Phase I’s?” they ask. “No. I review Phase I’s to make sure they are done properly and resolve issues identified in those reports.” I reply, adding “I also make sure the business has the proper environmental permits, authorizations and registrations and that they are in compliance with those requirements.” Then, they get a look that says they didn’t consider those issues in their last deal. Oops.
Environmental Due Diligence is so much more than doing a Phase I on real property. I had a client come to me after he purchased a business. TCEQ inspected the business not long after the deal closed and found that they were operating in excess of their permitted limits. TCEQ shut down the business until they could get the proper registration. Had the client reviewed the permit conditions before closing, he would have seen the noncompliance and could have made the seller remedy it.
Don’t underestimate the environmental requirements of a deal. For example, do your deals involve food distribution businesses? Keep in mind that commercial refrigeration units are regulated by the Clean Air Act. In early 2016 Trader Joe’s agreed to pay EPA a $500,000 penalty for failing to inspect and repair leaks in its refrigeration units.
Environmental due diligence should be more than checking a box. The consequences can be devastating.
How long has lead in soil and groundwater been regulated? Since environmental regulations first came out. So, imagine my surprise when I learned that in December (yes – last month), the FDA issued GUIDANCE for the lead concentration in lipstick.
FDA has suggested that lipstick contain no more than 10 ppm lead, stating “[w]e determined that exposure to 10 ppm lead from incidental ingestion of cosmetic lip products is very small and cannot be measured in routine blood testing.”
Compare that to environmental regulations for lead. TCEQ has set the residential lead concentration in soil to protect leaching into groundwater at 3 ppm.
So, explain to me why it’s okay to have 10 ppm in lipstick that will be ingested, but it is not okay to have 3 ppm lead soil that could leach and then get diluted in groundwater? Is 10 ppm too high or is 3 ppm too low?
Effective August 1, 2016, EPA implemented significant civil penalty increases. These changes will apply to all pending and future cases relating to violations occurring after November 2, 2015. In addition, EPA said it intends to do additional inflation adjustments annually, beginning on or shortly before January 15, 2018.
For example, the maximum RCRA (solid and hazardous waste) penalty increased from $37,500 to $40,779 per violation. EPCRA Section 313 (Form R) maximum penalties increased roughly 63% from 2001 levels.
My takeaway from this is that it is more important than ever to have a solid environmental management program in place and conduct periodic audits to ensure the program is effective. EPA’s e-disclosure policy provides various levels of penalty relief for self-discovered, self-reported, and self-corrected violations. Contrary to recent rumors, the program is alive and well and not being discontinued.
Here’s a link to the EPA memo detailing all of the increases. The specific adjustments are in Table A. Note that OSHA is implementing a similar penalty increase. Link
Congress passes bill to modernize nation’s primary chemical management law
The last time the U.S. Congress passed a major environmental law relating to chemicals, Gerald Ford was president, the Dow was around 1000 and Apple Computer was just a few months old.
Now, 40 years later, that law – the Toxic Substances Control Act (TSCA) — is finally getting a much-needed update. On June 7, the Senate passed changes to the TSCA, which the House of Representatives had already approved. President Obama is expected to sign the bill into law soon, making it the first major new environmental law since 1990. Bill Summary and Text Continue reading New Changes to TSCA – Blessing or Curse?
I’ll post hot topics on environmental law in Texas and throughout the nation. Feel free to comment and add to the discussion.