OSHA Enacts Sweeping Silica Rule

 

Thank you to my colleague Bob Melvin for his contributions to the post below. Bob is a partner in the Environmental & Utilities Practice Group whose practice focuses on representing manufacturers with enforcement, compliance, and permitting issues.

On March 25, 2016, the Occupational Safety and Health Administration (“OSHA”) issued its final rule cutting in half the Permissible Exposure Limit (“PEL”) for respirable crystalline silica down to 50 micrograms per cubic meter (μg/m3) of air, averaged over an 8-hour shift. If upheld, the rule will require Construction and General Industry and Maritime employers to:

  • Perform exposure assessments and inform employees or post the results;
  • Repeat air sampling and commence worker medical surveillance if the assessment identifies levels above either the new Action Level of 25 μg/m3 or the revised PEL of 50 μg/m3;
  • Use engineering controls and work practices (such as special equipment and methods utilizing water or ventilation) to limit worker exposure to concentrations above the PEL;
  • Provide respirators when such measures can’t achieve those exposure levels;
  • Designate and limit worker access to high exposure areas;
  • Develop and update written exposure control plans;
  • Train workers on silica risks and exposure limitation methods;
  • Provide more highly exposed workers with medical exams, monitoring and lung health information; and
  • Make changes to hazard communication programs and recordkeeping systems.

OSHA developed its new crystalline silica rule following a series of studies, proposals, and debate, resulting in 14 days of public hearings and 34,000 pages of comments. OSHA estimates that the total annualized cost of the new rule will be more than $1 billion. Despite this high cost, OSHA asserts that, because the rule potentially affects 2.3 million workers and 676,000 establishments, the costs are spread over a large number of establishments and workers. OSHA projects that the rule could “save over 600 lives and prevent more than 900 cases of silicosis each year, once its effects are fully realized,” producing annual net benefits of $3.8 to $7.7 billion over the next 60 years.

But industry associations like the U.S. Chamber of Commerce point out that silica-related mortality has already declined by 93 percent since 1968 and argue that “the remaining cases are due to long term exposures above the current OSHA limit, not because the exposure limit was set too high.” The U.S. Chamber notes that silica is “one of the most common materials on earth (e.g. sand)” and “a critical component in construction, manufacturing, and transportation.”

OSHA responds to these concerns by emphasizing that its rule will regulate respirable crystalline silica comprised of “very small particles typically at least 100 times smaller than ordinary sand found on beaches or playgrounds” and “generated by high-energy operations like cutting, sawing, grinding, drilling and crushing stone, rock, concrete, brick, block and mortar” or “when using industrial sand.” OSHA adds that respirable dust is generated by activities such as: “abrasive blasting with sand; sawing brick or concrete; sanding or drilling into concrete walls; grinding mortar; manufacturing brick, concrete blocks, or ceramic products; and cutting or crushing stone.”

The rule is being challenged as too stringent by construction and manufacturing interests and too lenient by labor interests. Six petitions for review have been consolidated in the D.C. Circuit of the U.S. Court of Appeals. As of now, the rule becomes effective on June 23, 2016. Unless the wave of litigation undermines OSHA’s remodeled silica program, employers in the Construction sector will have an additional year (until June 23, 2017) and those in General Industry and Maritime will have two additional years (until June 23, 2018) to comply with most of the revised PEL requirements.  Hydraulic fracturing operations (aka “fracking”) will have five additional years (until June 23, 2021) to develop and implement the engineering controls required to limit exposures to the new PEL.

Employment Law Developments for Manufacturers:  Predictably Unpredictable!

Manufacturers should take note of two recent developments in the human resources world.  One expected.  The other not.

Frequent readers of this blog may recall that in January I predicted the United States Department of Labor (“DOL”) would make good on its goal of updating the “Persuader Rule.”

By way of background, the Persuader Rule interprets the 1959 Labor-Management Reporting and Disclosure Act (“LMRDA”).  That law mandated that unions and employers file certain annual disclosures.  When a manufacturer hires a third-party to directly persuade its employees, or to offer alternatives to a union’s promise of benefits, both the manufacturer and the third-party have to file an annual disclosure reporting the services provided and the amount paid for those services.  Soon after its adoption, however, the DOL adopted a Rule exempting from these reporting and disclosure requirements “advice and counsel” provided by consultants, so long as those third-parties did not directly advocate or “persuade” employees.  That interpretation remained “on the books” for over forty years.  Broadly speaking, employers could lawfully hire consultants (usually law firms) to provide purely advice and counsel to assist those manufacturers in lawfully opposing a union’s efforts to organize workers.  So long as the consultant did not directly advocate employees against unionization, the contractual arrangements did not have to be disclosed.

Organized labor has long objection to this blanket exemption – believing that workers are entitled to know how much their employer was spending for such third-party consultants.

In March 2016, the last year of the Obama Administration, the DOL finally published the revised Rule.  Effective April 25 and applying to any arrangement entered into on or after July 1, 2016, the new rule requires both manufacturers and their consultants to disclose all financial arrangements directly or indirectly impacting on advice as to how to stay “union free.”  Almost immediately following the publication of the Rule at least three separate lawsuits were filed by employer associations and their law firms seeking to prevent its implementation.  If implemented in its present form, the broadly written Rule will require law firms and their client manufacturers to meet the reporting and disclosure requirements under a host of circumstances.  For example, law firms and their clients must comply if the law firm (1) prepares an employment handbook where any aspect of the handbook is intended or used to advocate that employees remain “union free,” (2)  provides labor compliance training to supervisors and managers, (3) reviews employee communications for legal compliance, and (4) reviews and edits materials to be used in a union organizing campaign.

Read the Rule here.

Of course, we will be monitoring the progress of these cases.

The second development was far less predictable.  In March, the Second Circuit Court of Appeals issued a surprising decision, holding that an individual human resources manager could be held personally liable for a violation of the federal Family and Medical Leave Act.  Read R+C’s Client Alert here.  While individual HR managers could previously be held personally liable for intentional discrimination and retaliation under applicable laws, holding individuals liable under the FMLA opens an entire new area of concern.  Unlike most laws prohibiting intentional discrimination and retaliation, the FMLA in essence is a “no fault” statute – meaning a “discriminatory” or “evil” intent is not required to impose liability.  Given the complexity of assessing an employee’s medical issues, often two reasonable people can look at the same set of facts and reach (in good faith) different answers.  HR managers making these difficult choices must now do so in the backdrop of possible personal liability.

Whether read separately or together, these two significant developments reinforce Bob Dylan’s epic lyrics, “The Times they are a Changin.’”

 

 

How Passage of Trade Secrets Act Will Help Manufacturers

We welcome a guest post this week from Nuala Droney and James Nault, who are members of Robinson + Cole’s Intellectual Property Litigation Practice Team.

This week, the United States Senate passed the Defend Trade Secrets Act of 2016, which, if passed by the House and signed into law by President Obama, would give trade secret owners, including manufacturers, a federal private right of action for theft of trade secrets for the first time.  The law provides for the award of damages for trade secret theft as well as injunctive relief.  It even includes a provision allowing a court to grant ex parte expedited relief to trade secret owners under extraordinary circumstances to preserve evidence or prevent dissemination of the trade secret.  The ex parte provision, as DuPont’s Chief Intellectual Property Counsel put it in a Senate hearing, “enables a trade secret owner under limited, controlled conditions, to proactively contain a theft before it progresses and the trade secret is lost.”

Trade secrets are a form of intellectual property that are of increasing importance to many manufacturers for a variety of reasons.  A trade secret can be any information that is (i) valuable to a company, (ii) not generally known, and (iii) not readily ascertainable through lawful means, as long as the trade secret holder has taken reasonable precautions to protect it.  A classic example of a trade secret is the formula for Coca-Cola.  A more recent example is DuPont’s innovative Kevlar product, which was the subject of a large scale trade secret theft in 2006.  Trade secret theft is a huge problem; a recent Pricewaterhouse-Coopers study showed that trade secret theft costs American businesses $480 billion a year.

To sue someone for trade secret theft, a trade secret owner must prove that (i) the information stolen qualifies for  trade secret protection (i.e. it meets the above definition), (ii) the trade secret owner took reasonable precautions to protect the information, and (iii) the alleged thief misappropriated the trade secret, i.e. took it unlawfully, or as one legal textbook puts it, “through deception, skullduggery, or outright theft.”  Robert P. Merges, Peter S. Menell, and Mark A. Lemley, Intellectual Property in the New Technological Age, Revised Fourth Edition 2007.  And while there are federal claims for the theft of other forms of intellectual property, such as claims for patent or copyright infringement, traditionally trade secret theft has been the exclusive domain of state law.  This is despite the fact that interstate or international trade secret theft has been a federal crime since 1996.  If it becomes law, the Defend Trade Secrets Act of 2016, would give manufacturers a direct route to federal court to defend their trade secrets.

 

OSHA’s Reporting and Recordkeeping Rule: One Year Later

OSHA’s updated reporting and recordkeeping rule, found at 29 C.F.R. 1904, went into effect in January 2015. We summarized these new requirements on the blog, which require employers to report severe workplace injuries, including inpatient hospitalization, amputation, or loss of an eye, within 24 hours. OSHA implemented these new requirements to help it target enforcement and compliance assistance efforts and ultimately reduce serious hazards. A year after implementation, OSHA has released an Impact Evaluation to assess the effectiveness of the program and make recommendations for the future.

Year One by the Numbers

In 2015, OSHA received 10,388 reports of severe work-related injuries, or about 30 per day (coming only from the 24 states that do not operate their own OSHA-approved health and safety programs). These injuries included 7,636 hospitalizations and 2,644 amputations. The report categorizes these numbers by industry sector and by specific industry. A broad view shows that, among the approximately 20 industry sectors, reports from the manufacturing sector accounted for 26 percent of the hospitalizations and 57 percent of the amputations. A complete list of the 2015 reports by industry provides greater detail on the reporting break down.

Implementation

In the report, OSHA states that the program “is guided by the principle that when employers engage with OSHA after a severe injury…they are more likely to take action to prevent future injuries.” OSHA addressed the majority of reports—62 percent of the overall reports and 69 percent of hospitalizations—with a Rapid Response Investigation (RRI). In a RRI, employers are tasked with conducting their own investigations and proposing a remedy, assisted by OSHA and National Safety Council guidelines and reviewed by the local OSHA field office. The RRI process is meant to be a collaborative, problem-solving approach that reduces the use of OSHA resources while still resulting in a safer work environment. OSHA only conducted a full inspection when deemed necessary based on the severity of the hazard condition. Amputations seem to be a priority for a full inspection—in 2015, OSHA conducted a full inspection for about one third of all reports, but about 58 percent of amputation reports.

Room for Improvement

Despite the successes highlighted in the report, the new program is not yet functioning as it should. The report suggests that, even after a reportable incident, some employers are not motivated to eliminate the hazards that caused it, and some go so far as attempting to hide the hazards from OSHA inspectors. Further, OSHA estimates that 50 percent or more of the severe work-related injuries are not being reported. OSHA believes some smaller employers may just not be aware of the new requirements, while others may not report because the cost of non-reporting is seen to be low. To the latter, OSHA offers a reminder that unadjusted penalties for failing to report an injury range from $1,000-$7,000 and will increase once the new rule  regarding adjustment for inflation goes into effect. Additionally, OSHA warns that the penalty for a willful decision not to report can be as high as $70,000, as one employer has already discovered.

While OSHA believes that the reporting program was successful in accomplishing its goals in the first year, the program will continue to evolve in an effort increase its effectiveness. Chief among these changes will be guidance regarding whether a RRI or inspection is an appropriate response to a specific report and ways to make sure more small companies are aware of and participating in the program.

Recent NLRB Decision Gives Manufacturers Another Reason to Update Policies

As I have commented in this space multiple times, under the Obama Administration, government agencies (particularly the U.S. Department of Labor, the Equal Employment Opportunity Commission and the National Labor Relations Board) have given manufacturers great incentives to review and update employment policies in light of an aggressive enforcement environment.  The National Labor Relations Board (“NLRB” or “Board”) has now given manufacturers even more reason to do so.

In Blommer Chocolate Company of California, LLC, 32-RC-131048 (unpublished), a divided NLRB overturned the results of a representation election in which the employer prevailed by nearly a three-to-one margin because the employer maintained what the Board characterized as “overbroad” rules in the employee handbook.  In that case, following a secret-ballot election in which the employees voted against unionization 18 to 50, the union filed election objections contending that three work rules contained in the employment handbook “tainted” the election results.  The challenged rules were those which many manufacturers typically include in handbooks.  One prohibited employees from using the employer’s name or logo without permission.  A second permitted an employee occasionally to use the company’s phones, email system and computers for personal use, so long as the employee did not use those means of communication to advocate personal opinions.  The third rule prohibited employees from disseminating “confidential information,” and included within the definition of “confidential” information regarding employees, including lists of employees.  Consistent with the NLRB’s current interpretation of such rules, a two-to-one Board majority found the rules to be unlawfully broad and invalided the election results.  Surprisingly, the Board conducted no analysis and rejected any obligation to show that the maintenance of the rules impacted any employee in any way.  (The Hearing Officer conducting the underlying hearing noted that there was no evidence at all the company ever tried to enforce the rules in a way to prevent employee pro-union activity.)  The Board ignored the evidence of non-enforcement.  Indeed, there was no evidence cited by the Board as would show the employees were even aware of the rules in question.

The lesson from Blommer Chocolate seems clear.  Mere maintenance of a rule found by the Board to be overly broad, without regard to whether the employer attempted to enforce it and notwithstanding an overwhelming employee vote against representation, will be sufficient to overturn a pro-employer election.

Manufacturers would be well served to periodically review and update handbooks, work rules and policies to take into account the ever changing legal landscape.  Failure to do so could result in a permanent union election “do over,” with the corresponding uncertainty, disruption and expense.

Considerations For Manufacturers/Distributors Who Are Negotiating Contracts Without Any Leverage

Negotiating contracts in the supply chain are certainly challenging.  As a lawyer, there is a temptation to want to change every term that is not to your liking.  And, for that reason, a lot of lawyers will receive a contract to review from their client and immediately red-line every provision.  Now, if your client is on the top of the supply chain, such an approach might work.  But, for many of our clients, who are in the middle or even towards the bottom of the supply chain, such changes are often not effective or well received.  Because of this reality, some manufacturers /distributors will simply sign the supply chain contracts without seeking legal advice because it is a “take it or leave it” situation.

The ultimate question then is whether there are ways that a manufacturer/distributor can attempt to minimize or eliminate risks even if the company has no leverage and the typical risk shifting clauses cannot be used (e.g., indemnification).  The answer is Yes.

For example, assume that you are selling a component part that is then being incorporated into a larger product or apparatus.  The contract states that you are responsible for any alleged problem with the component even if the installation by the OEM into the larger product was faulty.  I often encourage clients to ask as part of negotiations that it be allowed to offer training guidance about how installation should be done.  Something as simple as a few on-site sessions a year can help minimize risk.

I also often tell manufacturers/distributors to be mindful of the contract term.  While Long-Term Agreements (LTAs) are often sought after and surely are better from a business perspective than a purchase order by purchase order arrangement, shorter terms are often preferable in a “no leverage” situation.  Simply stated, it allows a manufacturer/distributor to assess what types of liabilities are being created in the marketplace.  This information allows for potential tweaks in the contract the next time it is renewed.  It is often easier to negotiate changes when there is concrete evidence to support them.  This is in contrast to the situation I described above where legal counsel changes every term in a contract without assessing business realities.

Are there ways that you have addressed “no leverage” situations?  If so, email me at jwhite@rc.com and I will share them in my next post.

 

 

How Secure is that Government Order? Recent Case Law Says Not Very

Many manufacturers have found themselves in the position of negotiating an order with an environmental agency over environmental conditions at a site. Oftentimes, these orders are the result of extensive negotiations, and they set the regulated entity on a long and detailed path of investigation and/or remediation. The environmental agency issuing the order often wants assurances from the regulated entity that it will complete the work and be able to pay for it. But what assurances does the regulated community get from the environmental agency that the work conducted will be sufficient?

A recent Connecticut case demonstrates the lack of security provided by government orders, perhaps to a greater degree than previously thought. The facts of Commissioner v. BIC Corporation detail a scenario where an environmental agency – the Connecticut Department of Energy and Environmental Protection (“DEEP”) – revoked a consent order a decade after its issuance.

DEEP issued a consent order to BIC Corporation (“BIC”) in 2003, which was modified in 2004, for the investigation of certain properties. Over the course of the next decade, BIC installed 30 groundwater wells and analyzed 786 soil samples as part of the investigation. BIC submitted numerous reports to DEEP detailing the investigation, all of which were approved.

In 2011, DEEP obtained notes from interviews with past BIC employees and, on the basis of those notes, revoked its prior approvals of the reports submitted by BIC. DEEP requested that BIC conduct additional studies and, when BIC refused, DEEP filed a lawsuit alleging that BIC failed to comply with the order. BIC counterclaimed against DEEP, alleging that DEEP breached the order.

Three years after filing its suit, DEEP revoked the order and withdrew its complaint against BIC, denying BIC the opportunity to demonstrate to the court that it complied with the order. The court dismissed the action for lack of jurisdiction, leaving BIC to deal with DEEP on an administrative level. While the court determined it did not have jurisdiction over BIC’s counterclaim, it did have some cautionary words for DEEP, stating:

One wonders whether the commissioner’s tactics may have the undesired and surely unintended consequence of precluding resolution of other cases in the future.

While the DEEP has the power to revoke an order, the facts in Commissioner v. BIC Corporation leave a regulated entity with little certainty that its hard work to investigate a site – with input and approvals from an environmental agency – will result in any sort of certainty or finality. When an entity commits to investigate the environmental conditions at a site under an order, it is making a commitment of time and money to do so. This recent case law may leave the regulated community questioning whether such a commitment is prudent.

EEOC Retaliation Guidance Ups the Stakes for Manufacturers

I ended my January 21 “employment law predictions” post by writing, “One thing I can count on as these ‘Years of Change’ continue, [I]  expect something unexpected.”  The EEOC made that prediction come true the same day when it published for comment a wholesale revision of its policy guidance on retaliation claims under federal civil rights statutes.  Read the EEOC press release and the Guidance here.

The comprehensive 73-page draft is an impressive work product, summarizing hundreds of federal cases in 222 footnotes and explanatory text, offering 32 examples of permitted and prohibited conduct, and outlining fifteen “best practices” for manufacturers.  Along the way, the EEOC’s Guidance expands the reach of the anti-retaliation provisions of the statutes the agency enforces.  While not binding on litigants or the courts, the Guidance likely will be broadly cited for its expansive interpretation of the law.

Among its more significant provisions, the Guidance:

  • Reminds manufacturers that internal complaints of poor or unfair treatment by employees, even if vaguely worded, may nevertheless constitute protected activity.
  • Cautions that even if an employee makes a complaint in bad faith or for an improper purpose, a manufacturer acts at its peril if it takes action against that employee.
  • Suggests that an employee engages in protected activity by making public statements against a manufacturer’s practices, merely accompanying a co-worker to human resources so the co-worker can lodge a complaint, or refusing to follow instructions or orders which are reasonably believed to be unlawful.
  • Advises manufacturers that any conduct which discourages employees from exercising their rights (regardless of its tangible impact on the employee) could be found to be unlawful, such as making disparaging comments about the employee, refusing to invite the employee to attend a company lunch or providing a negative employment reference.
  • Cautions employees that their unlawful acts would not be protected regardless of the motivation for those acts.

Among the list of “best practices,” the EEOC Guidance urges manufacturers to adopt comprehensive “anti-retaliation” written policies (akin to the now common anti-harassment policies and complaint procedures), train managers and supervisors on the manufacturer’s policies, create an avenue to support and encourage employee complaints, and proactively communicate with employees and others whenever an EEO charge or investigation is launched to aggressively remind individuals of the manufacturer’s policies against retaliation.

While reasonable people may legitimately argue over the scope of the EEOC’s recommendations and legal interpretations, the Guidance clearly signals the agency’s intent to make “retaliation” a “hot topic” for 2016 and beyond.

 

Legal Issues for Manufacturers To Consider When Selling Into New Markets

Manufacturers continue to look for ways to increase sales revenue without a massive infusion of capital.  Many companies have been successful in adapting current products for new uses and markets.  For instance, a company that makes aerospace components might use certain core competencies to develop products that can be sold in other markets without investing significant resources in a re-design.  As a general principle, this is good business and the legal risks can be managed with proper planning.

The following are some considerations when doing this type of business planning:

  1. Product Development:  Don’t be overconfident.  Just because a product has had a perfect safety and/or quality record in one line of business does not mean that such results will follow when the product is used in a different way.  It is important to review the designs to ensure that there is no additional testing that needs to be done to account for these new uses.
  2. Document Such Analyses:  Even if no new testing needs to be done, it is useful to document the process that is undertaken prior to the product hitting the market.  If something does go wrong, both the regulators and the plaintiff’s lawyers will be looking for evidence that the manufacturer considered certain risks that were associated with selling products that would be used in a different way than originally intended.
  3. Review Warnings/Instructions/Warranties:  Often, when it is anticipated that the design/product will be used in a different manner, the warnings and/or instructions need to be changed significantly.  There may be new risks that had never arisen before.  In addition, the failures may be different and might require different oversight from the quality department.
  4. Research the Regulatory/Litigation Landscape:  Not suprisingly, there are certain uses of products that are more dangerous and/or risky than others.  If you are selling products in a heavily regulated space (e.g., aerospace or transportation), it is important to consider whether the costs of regulatory compliance outweigh any potential revenues.  In addition, if competitors in these markets are constantly involved in litigation, it is important to assess the risk and expense of that particularly when it relates to insurance coverage.

In sum, all of these considerations can be overcome with sound business / legal advice.  The key is to perform due diligence up front as opposed to when the first lawsuit arrives.

Environmental, Health & Safety – What to Watch in 2016

To round out our series on industry and legal outlooks for 2016, I have compiled some of the many things for manufacturers to be aware of in the Environmental Health & Safety world for 2016.

1. Expansion of CERCLA Liability

The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) is always a concern for manufacturers who handle hazardous substances because of its broad imposition of liability. Every year brings with it a number of new developments under CERCLA, but one case that stands to shake up the CERCLA legal landscape is Pakootas, et al. v. Teck Cominco Metals Ltd. This case involves the question of whether air emissions that ultimately settle on land or water can be considered a disposal subject to CERCLA liability. A district court in Washington held that they could, but the issue is now before the Ninth Circuit on appeal. The case is set to be argued in April 2016, and, if the district court holding is upheld, it will widen the net of potentially responsible parties under CERCLA to anyone who emits hazardous substances into the air.

2. Revisions to RCRA Generator Rules

EPA published a proposed rule in the Fall of 2015 that would overhaul regulations applicable to hazardous waste generators under the Resource Conservation and Recovery Act (“RCRA”). Public comment on the proposed rule closed at the end of 2015, so we can expect to see a final rule in 2016. If the final rule looks like the proposed rule, hazardous waste generators can expect to see some benefits as well as drawbacks. For example, starting with good news, Conditionally Exempt Small Quantity Generators, which would now be called Very Small Quantity Generators, would be permitted to send waste to Large Quantity Generators under the control of the same person. This move will allow for waste consolidation and efficiencies in managing wastes across properties. The proposed rule also potentially increases the burden on generators, however, particularly with regard to documentation and reporting requirements, directing more specificity in recording the date and materials accumulated and increased reporting for Large Quantity Generators. All hazardous waste generators need to be aware of and tracking the EPA’s ultimate issuance of the final rule.

3. TSCA Reform

2016 may bring a whole new era in toxic substances regulation. The Toxic Substances Control Act (“TSCA”) has not seen reform in almost 40 years , but in 2015, both the House and Senate passed historic bills to reform TSCA. The two bills, which had a number of differences, must be reconciled, but the stage is set for a major overhaul TSCA. Stay tuned.

4. Increased Penalties and Enforcement to Protect Worker Safety

The Occupational Safety and Health Administration (“OSHA”) is doing its best to put more bite in its bark in 2016. With the end of 2015 came legislation that will increase OSHA’s civil penalties by about 80 percent in 2016. In addition, the Department of Labor and the Department of Justice recently announced that they are teaming up to increase criminal prosecution for worker safety violations. These prosecutions are likely to rely on a combination of worker safety and environmental violations, and resources are being deployed to make sure the initiative is carried forward. Employers need to be vigilant in addressing workplace safety, but also in identifying other potential violations as well as behaviors (witness tampering, obstruction of justice) that could allow for criminal penalties.

5. NextGen Compliance

It is 2016, and time to move into the digital age. The Environmental Protection Agency (“EPA”) is in the process of rolling out Next Generation Compliance, or NextGen, in an effort to make its programs more effective and facilitate compliance in the regulated community. We can expect to see increased electronic reporting, but along with that will likely come increased public availability of the data and reporting submitted to EPA. We can also expect EPA to use that data to evaluate industry compliance and ultimately drive enforcement priorities. NextGen brings with it new monitoring techniques, such as fence-line and drive-by monitoring, which will allow EPA (and others) to conduct monitoring more frequently and less conspicuously. And, perhaps most importantly, NextGen is focused on creative enforcement strategies that attempt to expand an alleged offender’s response to a violation. It is important to keep on top of NextGen as EPA continues to formalize and solidify its goals.

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