INDUSTRY ISSUES AND UPDATE JEFFREY L. LEITER, ESQ.

Transcription

1 INDUSTRY ISSUES AND UPDATE JEFFREY L. LEITER, ESQ.

2 OVERVIEW OF TODAY S PRESENTATION UST 2015 My thoughts on issue areas USDA Biodiesel Infrastructure Partnership Stage II Decommissioning Renewable Fuels Standard Waters of the U.S. Rule HCS 2012 Labor Law Update All in 30 minutes..

3 UST 2015 October 13, 2015 Effective Date Recognized technology improvements since 1988 Recognized more than 200 codes of practice since 1988, particularly PEI s RP1200 and RP900 Changes create period of confusion for regulated community, state regulators and PEI contractor members My deferrals EPA presentation at next session Lori Grainawi on ULSD corrosion issue

4 UST 2015 Final Rule Generally Fair and Balanced Implementation Provides Greatest Challenges Costs remain an issue despite EPA changes Can t view in a vacuum with other business challenges Generational shift both regulated community and regulators Approved state programs updating and filling gaps Three years to update state regulations Then, how long to implement these updated state regulations? Looking at 2015 from 2020 or longer? Business decisions by UST owners and operators Does everyone operate in tri-state area? What do I do in my window approved state or nonapproved?

5 UST 2015 Issue Areas EPA backing off from periodic tests of secondarilycontained USTs and piping Testing of sumps Revisions to PEI s RP1200 and RP900 Approved State implementation Address state-specific issues Clarify some vague or ambiguous EPA language Testing secondarily-contained USTs and piping Regulation of previously-deferred USTs (e.g., airport fueling systems) and leak detection for emergency generator tanks Operator retraining Non-approved state conflicts with EPA regulations?

6 UST 2015 Issue Areas (cont.) Marinas (e.g., higher alcohol levels and PEI RP 1000) SIR for high-volume locations Reporting of interstitial alarms as unusual operating condition Owner notification when switching to greater than 10% ethanol or 20% biodiesel

7 USDA BIOFUEL INFRASTRUCTURE PARTNERSHIP State Estimated Number of Pumps Colorado 28 Florida 892 Illinois 428 Indiana 110 Iowa 187 Kansas 174 Louisiana 110 Michigan 89 Minnesota 620 Missouri 171 Nebraska 80 North Carolina 190 North Dakota 90 Ohio 148 Pennsylvania 308 South Dakota 74 Texas 763 Virginia-Maryland 191 West Virginia 107 Wisconsin 120 TOTAL 4880

8 STAGE II DECOMMISSIONING STATES WITH NO STAGE II (19): AL, AK, AR, CO, HI, ID, IA, KS, MN, MS, MT, NE, ND, OK, SC, SD, UT, WV and WY STATES ALLOWING SOME FORM OF DECOMMISSIONING (21): AZ, CT, DE, FL, GA, IL, IN, ME, MD, MA, MI, MO, NH, NY, NC, OH, RI, TX, VT, VA, WI STATES STILL REQUIRING STAGE II (9): CA, DC, KY, LA, NJ, NM (one county), NV, OR & WA Tennessee pending; Pennsylvania suspended enforcement Northeast has moved most aggressively to eliminate Stage II

9 RENEWABLE FUEL STANDARD In May, EPA Proposed Its RFS Program Volumes for 2014, 2015 & 2016 Used waiver authority to set 2014 and 2015 volumes at actual use of corn-based ethanol Proposal for 2016 would still bust E-10 blend wall for refiners Refiners Want EPA to Limit Its Ethanol Mandates to No More than 9.7% of Total U.S. Gasoline Demand 90% of U.S. vehicles not compatible with E-15? Legislation: Repeal RFS vs. Clarification of EPA s Waiver Authority EPA Decision on May Proposal in November?

10 WATERS OF THE U.S. Why Does Jurisdiction Matter? Enforcement/Likelihood for potential illegal discharges Type of permit? General or specific Federal action triggers NEPA, ESA, 401 water quality certification Mitigation Third-party litigation and citizen suits Numerous lawsuits Enforcement stayed only in 13 western states

11 HCS 2012 Effective Date Requirements Who 12/31/2013 Train employees on new label elements and SDS formar Transition Period June 1, 2015 December 1, 2015 But May comply with new standard, former standard, or both Compliance with all modified provisions of final rule Distributor must ship HCS 2012-compliant products (label and SDS) Employers Chemical manufacturers, importers, distributors, and employers Chemical manufacturers and importers Distributors

12 HCS 2012 July 9, 2015 Compliance Directive Roadmap to compliance assurance OSHA using its enforcement discretion in limited instances Downstream manufacturer or importer did not receive hazard classification information by June 1, 2015 Time periods Must prepare HCS 2012 SDS within three months of receiving hazard classification information from upstream supplier Must prepare HCS 2012 labels within three months of date HCS 2012 SDS authored After June 1, 2017, all containers must be HCS 2012-compliant labeled (manufacturer) and December 1, 2017 (distributor)

13 HCS 2012 Small Package Labeling Label elements must be affixed to immediate container holding the chemical Key or numbering system NOT acceptable labeling Tags, pull-out labels or fold-back labels allowed if legible Includes lab samples Practical accommodations: Product identifier Appropriate pictogram(s) Signal word(s) Manufacturer s name and phone number Where full label information is available

14 HCS 2012 Secondary Container Labeling (In-House, Workplace) OSHA maintains approach that allows employers to use workplace-specific labeling systems, provided they contain the required information Need to be updated to be consistent with new hazard classifications

15 HCS 2012 Joint Employer Responsibilities Both employers are joint employers of worker If use staffing agency, temporary workers afforded same protections under OSH Act Both employers must communicate, coordinate, and collaborate in their efforts Although host generally has the primary responsibility for identifying hazards and complying with worksite specific health and safety requirements, the other employer also has general duty to ensure a safe workplace

16 HCS 2012 Handling Sealed Containers (e.g., warehousing) Labels on incoming containers must not be removed or defaced Maintain incoming SDS or obtain, if requested by employee Remember: Must be readily accessible Employees provided information and training to the extent necessary to protect them in the event of a spill or leak Oh, yes, OSHA recordkeeping proposal July 2015 proposed rule to require retention of incident records for five years

17 LABOR LAW 2015 Obama Administration Assault on Employers Proposed DOL overtime rule DOL guidance on misclassification of employees Minimum Wage ($10.10 to $15 per hour) ERISA employee investment advice Executive Orders on Federal contractors Oh yes, the NLRB Ambush election rule Multi-employer Social media Recent Court Decisions on Interns

18 LABOR LAW 2015 DOL Overtime Questions: Whether the minimum salary requirement for the executive, administrative, and professional (EAP) exemptions should increase more than twofold from the current minimum requirement of $455 per week ($23,660 per year) to an estimated $970 per week ($50,440 per year) Whether nondiscretionary bonuses and other forms of compensation should count toward some portion of the EAP minimum salary requirement Whether the EAP minimum salary requirement should be indexed so that it is subject to automatic annual increases, and if so, what methodology should be used for indexing Whether the total compensation level for the highly compensated employee (HCE) exemption should increase from the current minimum requirement of $100,000 per year to $122,148 per year Whether the total compensation level for the HCE exemption should be subject to annual increases Whether any changes should be made to the job duties requirements for the EAP exemptions.

19 LABOR LAW 2015 DOL Guidance on Misclassification of Employees Try to find employer-employee where possible Economic realities test The degree to which the person is independent or is controlled by the employer with respect to the way the work is done The individual s opportunities for profit or loss The individual s investment in the facilities and equipment of the business The permanency and length of the relationship between the business and the individual The degree of skill needed to do the person s work, and If, and how much, the work performed by the individual is a major part of the employer s business

20 THANK YOU YOUR QUESTIONS AFTER LORI