A lot of attention has been spent explaining the impacts of the 16-day U.S. federal government shutdown, which ended on October 17^th. Although the shutdown did slow rulemaking efforts at the U.S Environmental Protection Agency (EPA) as federal employees were furloughed, the shutdown has now ended and these activities are proceeding as scheduled. This article highlights a few of EPA’s new and changing rules and explains how companies can prepare to ensure compliance with the changes.

Solvent Wipes Exemption

Starting in January 2014, solvent-contaminated industrial wipes will be conditionally excluded from the definition of solid waste under the Resource Conservation Recovery Act (RCRA). The proposal to adopt this conditional exclusion has been around since 2003. It took a few years, but the EPA finally adopted the conditional exclusion.

In order to be conditionally excluded, generators will have to comply with accumulation and storage requirements. Under the rule, solvent-contaminated wipes cannot be accumulated for longer than 180 days. After 180 days, generators have to make sure the wipes are sent for cleaning or disposal. Generators would also have to store disposable solvent-contaminated industrial wipes on site in non-leaking covered containers. Generators would also have to maintain documents that show they are managing excluded solvent-contaminated wipes and keep that documentation at their sites.

Because it took a few years for the EPA to adopt this conditional exclusion, many companies may have already started preparing for the exclusion. However, to ensure compliance, companies should determine if any of its industrial processes generate solvent-contaminated wipes, and if they do generate the wipes, they should ensure that employees are trained appropriately and that they establish clear procedures on the storage and handling of solvent-contaminated wipes.

Toxic Chemical Release Reporting

Since 1986, industrial facilities in the United States have been required to report emissions to the Toxic Release Inventory (TRI) program. Currently, the EPA accepts paper submissions of TRI reports that contain confidential or non-confidential information. Starting in January 2014, companies will be required to submit all non-confidential TRI reports using the EPA’s online TRI-ME web application.

Companies will still be able to submit paper TRI reports to the EPA if the information is a trade secret. EPA considers information, which the company can report using paper submissions, a trade secret if:

• the facility has not disclosed the identity of the substance to anyone other than the local emergency planning committee;
• the facility is not compelled to disclose the identity of the chemical under another federal or state law;
• disclosure of the information is likely to cause substantial harm to the facility’s competitive position; and
• the chemical identity is not readily discoverable through reverse engineering.

While EPA estimates that the majority of companies reporting are using the online electronic reporting tool, a company can best prepare for this change by identifying what information it currently submits to the TRI using paper submissions and online submissions. The company should then determine what information might be considered a trade secret. The company will have to submit its TRI reports using EPA’s online tool for any non-trade secret information.

Conflict Minerals

This deadline is one that may not fall in the traditional category of EHS, but it deserves to be mentioned because it is a product related issue impacting a lot of companies. On 23 July 2013, the U.S. District Court of the District of Columbia updated the legality of the Conflict Mineral Rule. The Court rejected all of the challenger’s claims against the rule. The Court concluded that no statutory directive obligated the SEC to reevaluate and independently confirm that the adopted rule would actually achieve the humanitarian benefits Congress intended. Rather, the SEC appropriately deferred to Congress’ determination on this point, and its conclusion was not arbitrary, capricious, or contrary to law.

As a result, companies that use certain minerals in their products and file reports to the U.S. Securities and Exchange Commission (SEC) are still required to disclose in annual reports whether the conflict minerals originated in the Democratic Republic of the Congo (DRC) or an adjoining country beginning on 31 May 2014.

Many companies have started preparing for the Conflict Mineral Rule by creating tools internally or using third party tools to conduct an inquiry regarding the origin of its conflict minerals that is reasonably designed to determine whether any of its conflict minerals originated in the DRC or an adjoining country. No matter what tools a company decides to use (internal or external), it should start to prepare for this complex rule as earlier as possible.

There are now 8 months until affected companies have to initially report to the SEC. Companies using conflict minerals should continue developing the appropriate tools and procedures to effectively analyze the supply chain of their products. These tools and procedures should effectively:

• determine whether conflict minerals are necessary to the functionality or production of a product manufactured;
• determine whether conflict minerals originated in the Democratic Republic of the Congo (DRC) or an adjoining country by making a reasonable country of origin inquiry; and
• comply with conflict minerals report content and supply chain due diligence requirements.

GHG Reporting Program Proposed Amendments

In September 2013, the EPA proposed amendments to reporting and recordkeeping requirements and an alternative verification approach for the Greenhouse Gas Reporting Program (GHGRP) to the existing practice of reporting inputs to emission equations. Under the proposed amendments, certain companies using inputs to equation data elements to calculate reported GHGs under 24 subparts would have to use an EPA-provided electronic input verification tool including Subpart C (Stationary Fuel Combustion Sources) and Subpart TT (Industrial Waste Landfills). The input verification tool would be deployed within the GHGRP’s electronic greenhouse gas reporting tool (e-GGRT) and would be used as part of the annual reporting process. The tool would conduct verification checks using the inputs to emission equation data elements for which disclosure concerns have been identified, but these inputs to emission equation data elements would not be reported to the EPA.

If the amendments are adopted, the company would have an alternative process to submit this data to the EPA and the company would have to train employees on how to use the proposed alternative verification tool. EPA estimates a cost of approximately $66 per facility, or $379,000 for the first year for all affected facilities related to learning the new procedures for the inputs verification tool.

Conclusions

Despite the 16-day government shutdown, federal rulemaking is continuing, and there is plenty for companies to do to ensure compliance with EHS regulations. Companies should prepare for those deadlines that are looming in the future as there is no indication that these deadlines will be extended or modified.

Being aware of deadlines is an important step, but preparation is critical as well. Most companies can ensure effective compliance with these deadlines by:

• understanding new or revised regulatory changes;
• analyzing industrial processes, emissions, or products to determine the impacts of regulatory changes;
• determining whether new tools or procedures are needed to comply with changing requirements; and
• training and validating that employees understand how to comply with changing requirements.

About the Author

Jonathan Nwagbaraocha, Esq. is an EHS Consultant at Enhesa, a global EHS regulatory consultancy firm based in Brussels, Belgium. At Enhesa, he focuses on environmental and occupational health and safety laws and regulations in the U.S. and Nigeria. Prior to joining Enhesa, he worked as a family advocate attorney at the Coalition to End Childhood Lead Poisoning where he represented families with lead-poisoned children and assisted in researching and drafting legislation related to unsafe residential and occupational exposure to lead. He holds a B.A. in Environmental Science and Policy from Duke University and a joint J.D. and master’s in public policy from the University of Maryland with a concentration in environmental law and policy. He has been a member of the Maryland Bar since December 2005.

Photograph: Angeles by Marcelo Gerpe, Buenos Aires, Argentina.

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