OSHA 2 WK 3

OSH 2302, Introduction to Regulatory Compliance 1

Course Learning Outcomes for Unit III Upon completion of this unit, students should be able to:

3. Describe the regulation promulgation process. 3.1 Discuss state regulations and programs being implemented to solve environmental issues.

5. Discuss the various roles states play in implementing laws and regulations.

5.1 Summarize environmental issues in a specific state. 5.2 Analyze the effectiveness of specific state environmental programs. 5.3 Recommend solutions to environmental issues in a specific state.

Required Unit Resources In order to access the following resource, click the link below. U.S. Environmental Protection Agency. (2013). EPA in your state. https://www.epa.gov/home/epa-your-state Unit Lesson

State Environmental Regulatory Agencies In this unit, we will discuss jurisdictional issues and relationships with environmental regulatory agencies. Rulemaking of environmental laws at the state level follows a similar process to that of federal law. When it comes to aligning federal and state environmental laws, the Environmental Protection Agency (EPA) gives states the option to implement and administer federal environmental law with oversight from the EPA. An obvious question is to ask why a state would be willing to take on the expense and staffing requirements for administering a federal law. The answer has to do with the severe consequences related to enforcement. There is a strategic advantage for states in the way that noncompliance is addressed. States that administer the federal programs can work with their industrial manufacturing base and take steps to remediate issues while protecting jobs and the tax base for local communities. They also have the option to decide how assessed fines are used—whether they go into state coffers or back to the company to be used to fix the problems and issues that led up to the noncompliance. When the federal government manages enforcement, the funds often go into federal coffers, resulting in some industries closing down and relocating out of the area or country. A second benefit is how audits are done at the facility. The federal government only looks at federal requirements. They follow the letter of the law, they have their own interpretation on how regulatory provisions are interpreted, and they are more willing to let the consequences fall where they will. When states own the audit process, they can control how compliance is defined when the requirements are ambiguous for the situation, and they also have the opportunity to view state specific requirements in addition to those of federal legislation. States have the right to customize and add provisions to the federal legislation. What states cannot do is to take away from the federal requirements. The provisions they add can be functional equivalents of federal regulations that fit better into regional practices and the way that business is conducted in the state. This serves as a reminder to consultants looking to come into a state to perform an environmental audit (e.g., ISO audits and responsible care audits). It is important to check both the statutes and regulatory requirements of federal and state agencies when preparing audit protocols for industrial sites. Some states have taken steps to add provisions that establish a separate list of chemicals of concern requiring special attention. For example, California has developed regulations around Proposition 65 requiring companies to notify customers

UNIT III STUDY GUIDE The Process of Developing State Environmental Laws and Regulations

OSH 2302, Introduction to Regulatory Compliance 2

UNIT x STUDY GUIDE Title

using container labels that the product contains a carcinogen or a reproductive toxicant (California Office of Environmental Health Hazard Assessment [OEHHA], 2014). A notification can be made about any level, and no level is too small. Even if the substance to be notified is in the product as an impurity at 0.001%, a Proposition 65 warning label is required. The state of California chooses not to make an interpretation for citizens on what level is significant leaving it to the consumer to decide if this level is relevant. For a limited number of chemicals where test data is available, California is willing to use this information to establish a level of significance, but they will not do so using read-across or structure-analysis models (OEHHA, 2014). The Proposition 65 requirement allows citizens to bring litigation against companies who place products on the market without a Proposition 65 warning label. There are many lawyers who have made a healthy living filing lawsuits against noncompliant companies. It is not uncommon for a company to sell a product to a customer in Michigan only to have them repurpose the product and send it to their customer in California. If the container sold in Michigan does not have a Proposition 65 warning, the manufacturer of the product may get sued in California. The defendant will often end up settling out of court, as it is often cheaper to do a buyout than to litigate the noncompliance in court. States like New Jersey have extra provisions enforcing regulations that they believe are important to their population involving “right-to-know” provisions for products sold in their jurisdiction (State of New Jersey, Department of Health, n.d.). Companies selling hazardous products in New Jersey have to meet specific labeling and notification requirements beyond that required by federal regulations. Multiply this by 50 states, and it is not hard to see the challenges that manufacturers face selling products in the 50 states where each state has a slightly different set of rules. The EPA watches state initiatives to identify regional concerns and trends. While each requirement has its own merits and justification, the EPA is the great unifier. When multiple states have aligned on an issue and they begin to implement special regulations ahead of EPA, the agency will seek to align these interests and incorporate them in a future regulation. Once the EPA publishes their unification rule, states are required to sunset their requirements and align with the federal rule. However, until the time comes when the EPA writes a rule for a specific issue, states are free to move forward on their own issuing regulations and requirements to satisfy their citizens and special interest groups. This process shows one way that states and the EPA communicate on issues and priorities that the EPA is requested to take to Congress to consider the merits of the rule for the nation. Each state has its own regulatory processes for passing legislation into law and then into regulations to be administered by designated agencies responsible for protecting the environment. One of the most active is the State of Washington’s Department of Ecology. In Washington, environmental statutory authority is given by the legislature when it gives permission to a state agency to write and adopt a rule on an environmental subject (Washington State Department of Ecology, n.d.). As with most states, the state of Washington has its own list of definitions for key terms. These do not always align among the 50 states. Certain phrases and vocabulary common to Washington may not be the same as used in other states. This makes it challenging to compare requirements and to extrapolate regulatory interpretations about the rules in Washington to other states like California and New York. Washington state has a three-step process for turning a law into a functional regulation. The first phase is to make an announcement to the public that the agency is intending to amend, repeal, or adopt a new regulation. A brief description of the legislative intent is given as is the contact information of the lead agency (Washington State Department of Ecology, n.d.). The second phase proceeds to publish the proposal at least 30 days after the announcement is formally made. The proposal is a draft of the rule giving a brief overview of the rule, a copy of the proposed text, identification of the lead agency, the proposed enter-into-force date, and information about planned public hearings. During this time, all rules start to receive an economic analysis looking at the cost-benefit analysis and an analysis of the least-burdensome alternative. These are published on the state website. The impact on small businesses is also a part of the analysis as is determining the maximum net benefit to the environment (Washington State Department of Ecology, n.d.). Formal public comments are considered by the lead agency. Except for public hearings, written responses are necessary for a concern to be considered. For rules where substantial issues are raised, regulators can set up committees to work through the issues to reach a resolution. Lead agencies prepare a formal written

OSH 2302, Introduction to Regulatory Compliance 3

UNIT x STUDY GUIDE Title

response to key comments explaining the issue, how they were considered and the final determination made by the regulators. Should the regulation ever be litigated in state courts, these comments are valuable source documents for lawyers and the courts. The final step in the legislative process is to officially adopt the rule after the agency director signs the document. The rule will enter into force 31 days after the rule is signed. However, in special cases, emergency rules immediately become effective, and rules that are expedited have a 45-day comment period after which the rule comes into effect 31 days later (Washington State Department of Ecology, n.d.). Some states have set up alliances to address regional concerns. One of these groups is the Great Lakes Commission (GLC), which includes Canadian provinces and the states surrounding the Great Lakes. The GLC has established a set of priorities intended to restore the water quality of the lakes and to prevent further deterioration of water quality. One of the biggest issues is the runoff of fertilizers from surrounding farmland. The runoff contains phosphorus that promotes algal blooms that cover the surface of the lake (Great Lakes Commission, 2019). While alive, some species of algae will produce toxic substances. After they die, the bacteria in the lakes begin to feast on the algae, consuming the dissolved oxygen (DO) in the water to support their feeding frenzy. When the DO levels go from 7.0 ppm to a value <0.5 ppm, the fish die and the water quality of the lakes is further degraded. That is not the end. During the time that the algae is being degraded, a portion of the phosphorus is released into the water where it will remain to support algal growth in the next season. This issue is starting to have an impact on industrial products where states limit the use of products containing phosphorus. Permit writers are setting very low phosphorus discharge limits for manufacturing facilities. Companies are now reviewing their raw materials to ensure that they purchase products free of phosphorus. The problem is that phosphorus has a defined function and products that use an alternative in their product formulation do not function as well. This raises manufacturing costs and occasionally will result in manufactured goods being produced that are of lower quality and less in demand than the products made by their competitors. Great Lakes states are participating in a restoration bipartisan initiative that addresses a variety of issues. Algae, invasive Asian carp, and the leaching of toxics from contaminated waste sites near rivers and the shores of the Great Lakes allowing harmful chemicals to flow into the lakes are a few of these issues. The GLC states are working in conjunction with federal agencies including the EPA, National Oceanic and Atmospheric Administration (NOAA), U.S. Fish and Wildlife Service, and the Army Corp of Engineers on special projects. The commission is seeking to implement a farm bill to support agricultural conservation programs. Other programs being set up include establishing a fishery preserve and projects to protect drinking water (Great Lakes Commission, n.d.). In summary, the federal-state partnerships are strong and aligned. As budgets get tighter and the EPA remains bound on their role and influence, the success of compliance and pollution prevention programs will require more and more states to step up to take on the administration of federal programs.

References California Office of Environmental Health Hazard Assessment. (2014). Proposition 65.

https://oehha.ca.gov/proposition-65 Great Lakes Commission. (n.d.). Our work: Advocacy. https://www.glc.org/work/advocacy/ Great Lakes Commission. (2019, March). Investing in a national asset. https://www.glc.org/wp-

content/uploads/GLC-Federal-Priorities-2019-FINAL.pdf State of New Jersey, Department of Health. (n.d.). Right to know.

https://www.nj.gov/health/workplacehealthandsafety/right-to-know/

OSH 2302, Introduction to Regulatory Compliance 4

UNIT x STUDY GUIDE Title

Washington State Department of Ecology. (n.d.). Rulemaking frequently asked questions. https://ecology.wa.gov/About-us/How-we-operate/Laws-rules-rulemaking/Rulemaking-FAQ

Suggested Unit Resources In order to access the following resource, click the link below. The following website looks at how citizens in each state feel about environmental regulations. Take some time to analyze differences and similarities seen from state to state. Pew Research Center. (2016). Public support for environmental regulations varies by state.

https://www.pewresearch.org/short-reads/2016/02/25/public-support-for-environmental-regulations- varies-by-state/

OSH 2302, Introduction to Regulatory Compliance 1

Course Learning Outcomes for Unit III Upon completion of this unit, students should be able to:

3. Describe the regulation promulgation process. 3.1 Discuss state regulations and programs being implemented to solve environmental issues.

5. Discuss the various roles states play in implementing laws and regulations.

5.1 Summarize environmental issues in a specific state. 5.2 Analyze the effectiveness of specific state environmental programs. 5.3 Recommend solutions to environmental issues in a specific state.

Required Unit Resources In order to access the following resource, click the link below. U.S. Environmental Protection Agency. (2013). EPA in your state. https://www.epa.gov/home/epa-your-state Unit Lesson

State Environmental Regulatory Agencies In this unit, we will discuss jurisdictional issues and relationships with environmental regulatory agencies. Rulemaking of environmental laws at the state level follows a similar process to that of federal law. When it comes to aligning federal and state environmental laws, the Environmental Protection Agency (EPA) gives states the option to implement and administer federal environmental law with oversight from the EPA. An obvious question is to ask why a state would be willing to take on the expense and staffing requirements for administering a federal law. The answer has to do with the severe consequences related to enforcement. There is a strategic advantage for states in the way that noncompliance is addressed. States that administer the federal programs can work with their industrial manufacturing base and take steps to remediate issues while protecting jobs and the tax base for local communities. They also have the option to decide how assessed fines are used—whether they go into state coffers or back to the company to be used to fix the problems and issues that led up to the noncompliance. When the federal government manages enforcement, the funds often go into federal coffers, resulting in some industries closing down and relocating out of the area or country. A second benefit is how audits are done at the facility. The federal government only looks at federal requirements. They follow the letter of the law, they have their own interpretation on how regulatory provisions are interpreted, and they are more willing to let the consequences fall where they will. When states own the audit process, they can control how compliance is defined when the requirements are ambiguous for the situation, and they also have the opportunity to view state specific requirements in addition to those of federal legislation. States have the right to customize and add provisions to the federal legislation. What states cannot do is to take away from the federal requirements. The provisions they add can be functional equivalents of federal regulations that fit better into regional practices and the way that business is conducted in the state. This serves as a reminder to consultants looking to come into a state to perform an environmental audit (e.g., ISO audits and responsible care audits). It is important to check both the statutes and regulatory requirements of federal and state agencies when preparing audit protocols for industrial sites. Some states have taken steps to add provisions that establish a separate list of chemicals of concern requiring special attention. For example, California has developed regulations around Proposition 65 requiring companies to notify customers

UNIT III STUDY GUIDE The Process of Developing State Environmental Laws and Regulations

OSH 2302, Introduction to Regulatory Compliance 2

UNIT x STUDY GUIDE Title

using container labels that the product contains a carcinogen or a reproductive toxicant (California Office of Environmental Health Hazard Assessment [OEHHA], 2014). A notification can be made about any level, and no level is too small. Even if the substance to be notified is in the product as an impurity at 0.001%, a Proposition 65 warning label is required. The state of California chooses not to make an interpretation for citizens on what level is significant leaving it to the consumer to decide if this level is relevant. For a limited number of chemicals where test data is available, California is willing to use this information to establish a level of significance, but they will not do so using read-across or structure-analysis models (OEHHA, 2014). The Proposition 65 requirement allows citizens to bring litigation against companies who place products on the market without a Proposition 65 warning label. There are many lawyers who have made a healthy living filing lawsuits against noncompliant companies. It is not uncommon for a company to sell a product to a customer in Michigan only to have them repurpose the product and send it to their customer in California. If the container sold in Michigan does not have a Proposition 65 warning, the manufacturer of the product may get sued in California. The defendant will often end up settling out of court, as it is often cheaper to do a buyout than to litigate the noncompliance in court. States like New Jersey have extra provisions enforcing regulations that they believe are important to their population involving “right-to-know” provisions for products sold in their jurisdiction (State of New Jersey, Department of Health, n.d.). Companies selling hazardous products in New Jersey have to meet specific labeling and notification requirements beyond that required by federal regulations. Multiply this by 50 states, and it is not hard to see the challenges that manufacturers face selling products in the 50 states where each state has a slightly different set of rules. The EPA watches state initiatives to identify regional concerns and trends. While each requirement has its own merits and justification, the EPA is the great unifier. When multiple states have aligned on an issue and they begin to implement special regulations ahead of EPA, the agency will seek to align these interests and incorporate them in a future regulation. Once the EPA publishes their unification rule, states are required to sunset their requirements and align with the federal rule. However, until the time comes when the EPA writes a rule for a specific issue, states are free to move forward on their own issuing regulations and requirements to satisfy their citizens and special interest groups. This process shows one way that states and the EPA communicate on issues and priorities that the EPA is requested to take to Congress to consider the merits of the rule for the nation. Each state has its own regulatory processes for passing legislation into law and then into regulations to be administered by designated agencies responsible for protecting the environment. One of the most active is the State of Washington’s Department of Ecology. In Washington, environmental statutory authority is given by the legislature when it gives permission to a state agency to write and adopt a rule on an environmental subject (Washington State Department of Ecology, n.d.). As with most states, the state of Washington has its own list of definitions for key terms. These do not always align among the 50 states. Certain phrases and vocabulary common to Washington may not be the same as used in other states. This makes it challenging to compare requirements and to extrapolate regulatory interpretations about the rules in Washington to other states like California and New York. Washington state has a three-step process for turning a law into a functional regulation. The first phase is to make an announcement to the public that the agency is intending to amend, repeal, or adopt a new regulation. A brief description of the legislative intent is given as is the contact information of the lead agency (Washington State Department of Ecology, n.d.). The second phase proceeds to publish the proposal at least 30 days after the announcement is formally made. The proposal is a draft of the rule giving a brief overview of the rule, a copy of the proposed text, identification of the lead agency, the proposed enter-into-force date, and information about planned public hearings. During this time, all rules start to receive an economic analysis looking at the cost-benefit analysis and an analysis of the least-burdensome alternative. These are published on the state website. The impact on small businesses is also a part of the analysis as is determining the maximum net benefit to the environment (Washington State Department of Ecology, n.d.). Formal public comments are considered by the lead agency. Except for public hearings, written responses are necessary for a concern to be considered. For rules where substantial issues are raised, regulators can set up committees to work through the issues to reach a resolution. Lead agencies prepare a formal written

OSH 2302, Introduction to Regulatory Compliance 3

UNIT x STUDY GUIDE Title

response to key comments explaining the issue, how they were considered and the final determination made by the regulators. Should the regulation ever be litigated in state courts, these comments are valuable source documents for lawyers and the courts. The final step in the legislative process is to officially adopt the rule after the agency director signs the document. The rule will enter into force 31 days after the rule is signed. However, in special cases, emergency rules immediately become effective, and rules that are expedited have a 45-day comment period after which the rule comes into effect 31 days later (Washington State Department of Ecology, n.d.). Some states have set up alliances to address regional concerns. One of these groups is the Great Lakes Commission (GLC), which includes Canadian provinces and the states surrounding the Great Lakes. The GLC has established a set of priorities intended to restore the water quality of the lakes and to prevent further deterioration of water quality. One of the biggest issues is the runoff of fertilizers from surrounding farmland. The runoff contains phosphorus that promotes algal blooms that cover the surface of the lake (Great Lakes Commission, 2019). While alive, some species of algae will produce toxic substances. After they die, the bacteria in the lakes begin to feast on the algae, consuming the dissolved oxygen (DO) in the water to support their feeding frenzy. When the DO levels go from 7.0 ppm to a value <0.5 ppm, the fish die and the water quality of the lakes is further degraded. That is not the end. During the time that the algae is being degraded, a portion of the phosphorus is released into the water where it will remain to support algal growth in the next season. This issue is starting to have an impact on industrial products where states limit the use of products containing phosphorus. Permit writers are setting very low phosphorus discharge limits for manufacturing facilities. Companies are now reviewing their raw materials to ensure that they purchase products free of phosphorus. The problem is that phosphorus has a defined function and products that use an alternative in their product formulation do not function as well. This raises manufacturing costs and occasionally will result in manufactured goods being produced that are of lower quality and less in demand than the products made by their competitors. Great Lakes states are participating in a restoration bipartisan initiative that addresses a variety of issues. Algae, invasive Asian carp, and the leaching of toxics from contaminated waste sites near rivers and the shores of the Great Lakes allowing harmful chemicals to flow into the lakes are a few of these issues. The GLC states are working in conjunction with federal agencies including the EPA, National Oceanic and Atmospheric Administration (NOAA), U.S. Fish and Wildlife Service, and the Army Corp of Engineers on special projects. The commission is seeking to implement a farm bill to support agricultural conservation programs. Other programs being set up include establishing a fishery preserve and projects to protect drinking water (Great Lakes Commission, n.d.). In summary, the federal-state partnerships are strong and aligned. As budgets get tighter and the EPA remains bound on their role and influence, the success of compliance and pollution prevention programs will require more and more states to step up to take on the administration of federal programs.

References California Office of Environmental Health Hazard Assessment. (2014). Proposition 65.

https://oehha.ca.gov/proposition-65 Great Lakes Commission. (n.d.). Our work: Advocacy. https://www.glc.org/work/advocacy/ Great Lakes Commission. (2019, March). Investing in a national asset. https://www.glc.org/wp-

content/uploads/GLC-Federal-Priorities-2019-FINAL.pdf State of New Jersey, Department of Health. (n.d.). Right to know.

https://www.nj.gov/health/workplacehealthandsafety/right-to-know/

OSH 2302, Introduction to Regulatory Compliance 4

UNIT x STUDY GUIDE Title

Washington State Department of Ecology. (n.d.). Rulemaking frequently asked questions. https://ecology.wa.gov/About-us/How-we-operate/Laws-rules-rulemaking/Rulemaking-FAQ

Suggested Unit Resources In order to access the following resource, click the link below. The following website looks at how citizens in each state feel about environmental regulations. Take some time to analyze differences and similarities seen from state to state. Pew Research Center. (2016). Public support for environmental regulations varies by state.

https://www.pewresearch.org/short-reads/2016/02/25/public-support-for-environmental-regulations- varies-by-state/