Compliance | Bishop's Blog

2019 Environmental Resolutions

Happy New Year!

What will be your company’s resolutions for 2019?

Here are some resolutions for 2019 that can help you avoid environmental surprises:

Resolve to commission a Phase I Environmental Site Assessment when buying or leasing real property – Yes, even for leases. Yes, even for raw land. For a few thousand dollars, you can get peace of mind and ensure that there are no hidden environmental surprises, such as indoor air issues from an old dry cleaner that got regulatory closure before indoor air was an issue. In addition to supporting a defense if contamination is later discovered, it makes good business sense. Also be aware of my Top 10 Due Diligence Mistakes.
Resolve to do more than a Phase I Environmental Site Assessment when buying a company – Make sure the acquired company has the necessary environmental permits and that the company is in compliance with those permits.
Resolve to be aware of trending environmental issues – You don’t have to be an expert. Just be aware of trending environmental issues, such as PFAS and greenhouse gas reporting. Read only the headlines if you are busy and just want to know the lingo. Then, ask your favorite environmental attorney for more information.
Resolve to use consultants for data gathering and interpretation and use lawyers for legal questions – Especially for the second resolution above, a consultant can gather data but should not make legal conclusions about whether a facility is in compliance or needs a permit. That opinion should come from an environmental attorney. Consultants and lawyers should work as a team.
Resolve to look at internal practices – Like stepping on the scale, it is hard to realize that your company should improve its practices. But it is better to catch issues yourself than have a regulatory agency catch it in an inspection. Take advantage of programs such as the Texas Audit Privilege Act or EPA’s e-disclosure program to self-disclose and correct problems with potential immunity.

Need assistance? Contact me at cbishop@cbishoplaw.com

Wishing you a prosperous New Year

Hot Topic Update – EPA Solicits Comments on Draft PFAS Toxicity Assessment and Validates Test Method

This summer, I posted about a group of emerging contaminants: poly- and perfluoroalkyl substances (PFAS). There’s recent news from EPA on PFAS. On November 14, EPA posted draft toxicity assessments for two members of the PFAS group – GenX and perfluorobutane sulfonic acid (PFBS). Comments are due January 22, 2019.

Continue reading Hot Topic Update – EPA Solicits Comments on Draft PFAS Toxicity Assessment and Validates Test Method

What’s Hot at EPA and the Texas Railroad Commission

Typically, the dogs days of summer are a slow news time for environmental issues, but this summer has been an exception.

EPA Update

Hot on the heels (pun intended) of my last post on emerging claims to watch, EPA announced renewed interest in regulating per- and polyfluoroalkyl substances (PFAS). EPA held a National Leadership Summit in May to discuss how to regulate and remove PFAS in the soil and groundwater from historical releases.

At that summit, EPA announced a 4-step action plan:

Evaluate the need for a maximum contaminant level for various PFAS in drinking water;
Propose designating PFAS as “hazardous substances” under CERCLA (also known as Superfund);
Develop groundwater cleanup recommendations; and
Work with state and federal agencies to develop toxicity values for specific PFAS.

These steps most likely will increase the list of contaminants identified at cleanup sites. This means that investigation and cleanup costs could increase because additional chemicals will need to be addressed. In addition, Superfund sites will have additional contaminants identified, leading to additional responsible parties identified as the sources of PFAS.

Texas Railroad Commission Initiative

In June, the Texas Railroad Commission (RRC) released its 2019 Oil & Gas Monitoring and Enforcement Plan. As part of this plan, the RRC set a goal to maintain its 158 oil and gas field inspectors, and these inspectors have been tasked to meet new, increased inspection targets. Specifically, all inland wells will be inspected at least once every five years, and wells in bays and offshore will be inspected at least once every two years. To put this in perspective, in 2017, 155,880 wells were inspected, and the RRC projects 176,000 to be inspected in 2019 – a roughly 13 percent increase.

With this increased emphasis on inspections, I encourage well operators to take advantage of the Audit Privilege program (Tex. Health & Safety Code Ch. 1101) and conduct a self-audit to identify and correct violations before the RRC does. Under the Audit Privilege program, operators who conduct self-audits can claim immunity from administrative penalties that are voluntarily discovered during the audit, reported to the RRC, and then promptly corrected.

Do you have questions or need assistance? I am here to help. I have a great deal of experience with self-audits in Texas and elsewhere and also can provide oversight of environmental consultants during site investigations and cleanups. I also can guide you through the self-audit process, which includes specific notification requirements. Contact me at cbishop@cbishoplaw.com

Stay cool and watch for those school zones as classes begin in August.

Another Good Use for Your Environmental Counsel: Bad Cop

When should you call your environmental lawyer? Some reasons are obvious: when you get sued or to review the environmental provisions of a contract, for example.

But here’s another good reason, based on a recent project I worked on: Environmental attorneys can provide oversight of your environmental consultant and be the “bad cop” with the government agency.

I have many friends who are environmental consultants. They do great work but are sometimes reluctant to take an adversarial stance with the government agency or offer cleanup alternatives that are contrary to the agency’s recommendation. Consultants work almost daily with the government agency project managers and want to stay on good terms with them.

But, sometimes, a bit of toughness is required. And that’s where your lawyer can come in handy. Nobody expects us to be nice.

Recently, I worked on a project where the Texas Commission on Environmental Quality (TCEQ) wanted my client to install additional monitoring wells and conduct more sampling to prove that the contamination was sufficiently low to close the file.

I didn’t support their reasoning. There were other businesses nearby with similar contamination, so how would we ensure that we weren’t detecting their contamination? Moreover, TCEQ had granted closure on those similar properties in the neighborhood with higher contamination levels than my client’s.

Our consultant wanted to propose some limited sampling to satisfy TCEQ, but I wanted to push back and say the data were sufficient to support closure. I found TCEQ guidance to back me up and, after a few emails and letters, TCEQ finally agreed with me and closed the file.

Nobody likes to spend money on lawyers, but spending a few hours of my time cost significantly less than installing the additional wells requested.

Attorneys are ethically obligated to act in their client’s best interest, and sometimes that means playing Bad Cop. I’m not saying that consultants are not similarly ethically obligated, but sometimes they are hesitant to push back to a project manager they deal with on a regular basis.

Bringing in a lawyer to play hardball lets the consultants maintain the camaraderie they need to do their jobs without sacrificing the client’s goals or needs.

Be Prepared When the Inspector Shows Up

Most businesses get inspected. Whether it’s EPA, OSHA, IRS, TCEQ, the city health inspector or the fire marshal, the general principles are the same: to be as prepared as possible. I’ve represented a lot of companies during and after inspections, and I’ve seen it all – the good, the bad, and the ugly. In this post, I’ll provide tips on being prepared for and properly responding to inspections.

(Note- this doesn’t necessarily apply to criminal inspections or search warrants) Continue reading Be Prepared When the Inspector Shows Up

You Can’t Make This Stuff Up

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?

Rant over.

Get Your Checkbooks Ready!

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

New Changes to TSCA – Blessing or Curse?

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?