Electric utilities, pulp and paper mills, and manufacturers of all types are subject to a wide range of environmental requirements. Other businesses—like retail facilities, warehouses, and property management companies—are less comprehensively regulated, but penalties for noncompliance with environmental laws that apply to them can nevertheless be substantial. Below are some of the recent compliance issues for these relatively “less regulated” businesses.
Products that are marketed as disinfecting or removing mold and mildew are considered pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) and must be registered with the U.S. Environmental Protection Agency (EPA). In 2007, an employer agreed to pay more than $650,000 for selling unregistered household cleaning products at its Hawaii and California stores.
FIFRA has very specific labeling requirements for registered products, and a product is considered mislabeled if its label is not identical to the EPA-approved label. A company recently agreed to pay more than $600,000 to resolve allegations that it had sold mislabeled antimicrobial bleach products.
Of course, businesses that sell products in California must take care to comply with California’s Proposition 65 warning requirements.
The two most common compliance issues are associated with the use of ozone-depleting substances and ammonia. EPA has promulgated emission standards and record-keeping requirements for ozone-depleting substances under the authority of Title VI of the Clean Air Act. In a recent case, EPA and the U.S. Department of Justice alleged that a grocery store chain failed to promptly repair leaks of a hydrochlorofluorocarbon, which it used as a coolant in its refrigerators, and failed to keep adequate records of when it serviced its refrigeration equipment. In September 2013, the parties lodged a settlement in which the company agreed to pay a $600,000 civil penalty and implement a corporate-wide plan to significantly reduce its emissions of ozone-depleting substances from refrigeration equipment at hundreds of its stores nationwide.
The Clean Air Act and the Emergency Planning and Community Right-to-Know Act (EPCRA) may apply to facilities that use ammonia refrigeration systems. Companies with more than 10,000 pounds of anhydrous ammonia in a process are required to prepare and follow a Risk Management Plan, which is required by the Clean Air Act (and a process safety management program required by the Occupational Safety and Health Administration (OSHA)). Additionally, EPCRA requires certain reports if the amount of ammonia at the facility is 500 pounds or more. A settlement earlier this year with a food production company following accidental ammonia releases resulted in a $3.95 million civil penalty and a $300,000 Supplemental Environmental Project.
Management of Hazardous Materials Returned by Customers
Although products containing hazardous substances are not regulated by the Resource Conservation and Recovery Act (RCRA), products that are returned to a retailer and discarded may be hazardous waste. If those materials are pesticides, then they may also be regulated by FIFRA. In May 2013, the U.S. Department of Justice announced that a company had pleaded guilty in three criminal cases and had reached a civil settlement with EPA to resolve allegations of improper handling and disposing of hazardous materials at its retail stores. Criminal fines and civil penalties were substantial.
On-Site Fuel and Lead-Acid Batteries
Additionally, any facility with more than 1,320 gallons of petroleum products in above-ground containers or 42,000 gallons in underground containers must prepare and implement a Spill Prevention, Control, and Countermeasures (SPCC) plan.
In January 2013, a company agreed in an administrative settlement to pay more than $700,000 in penalties and to spend an additional $600,000 on supplemental environmental projects to resolve allegations of failure to comply with notification requirements for sulfuric acid and diesel fuel, SPCC requirements for diesel fuel, and minor source air permit requirements.
Construction and Renovation Projects
Facilities engaged in land-disturbing activities of one acre or more must obtain coverage for stormwater under either an individual National Pollutant Discharge Elimination System permit or a General Permit. (If construction includes placing fill material in wetlands, coverage under a nationwide or individual “Section 404” permit under the Clean Water Act may also be required.) National retailers paid settlements of more than $1 million in 2005 and 2008 to resolve allegations of failure to comply with construction stormwater requirements.
Facilities with renovation or demolition projects should also ensure that they are complying with EPA’s asbestos regulations. Facilities (except residential buildings with four or fewer dwelling units) scheduled for renovation or demolition must be surveyed for the presence of asbestos. If asbestos over a threshold amount is present, prescribed work practices, including use of a licensed abatement contractor, must be followed. In a recent settlement, EPA noted that an improper demolition resulted not only in a $21,000 civil penalty, but also a cleanup and disposal bill of $55,000.
Facilities should be aware that OSHA also has a set of rules for occupational exposure to asbestos. Among other requirements, these rules require building and facility owners to notify employers (and employers to notify potentially exposed employees) of the presence, location, and quantity of asbestos-containing materials. “Potentially exposed employees” may include, for example, building maintenance workers who repair ceilings or wallboard after a water leak.