G&K attorney Todd Rallison authored this article for the October 2022 issue of InBusiness Magazine. Click here to download a PDF of his article and read the October issue online.
Comprehensive U.S. laws to protect the environment and worker health and safety (collectively EHS laws) date from the 1970s and 1980s, with numerous state or industry-specific antecedents. Most of those original laws have since been amended or expanded in the 1990s and beyond, the most recent being the 2016 revision to the Toxic Substances Control Act (TSCA, which despite its name, regulates almost all chemicals in use in the U.S.). Most of these environmental laws, such as the Clean Air Act, Clean Water Act, and the Resource Conservation and Recovery Act (RCRA, which regulates hazardous and solid wastes), were initially designed to regulate large industries that posed a particular threat to the environment. Similarly, the Occupational Safety and Health Act (OSHA) was designed primarily to protect workers in certain hazardous industries or carrying out hazardous activities, such as energized electrical work or working in confined spaces. The majority of these laws are implemented at the state level in conjunction with minimum standards set by the Environmental Protection Agency (EPA) for environmental laws and the Occupational Safety & Health Administration for health and safety laws.
Most environmental laws are implemented through permits, which specify maximum discharge limits and require regular monitoring and reporting. However, some laws, like RCRA and OSHA, are implemented through regulations that apply regardless of whether the business requires an environmental permit. These regulations focus on the activities engaged in by the business or industry. Moreover, OSHA includes a “general duty” on businesses to ensure worker and workplace safety. Essentially, OSHA focuses on the environment within the business perimeter; environmental laws focus on the environment outside of the business perimeter, which may be adversely affected by the business activity.
While EHS laws generally apply to large industries, over time the types of businesses potentially impacted by EHS laws have expanded, and that expansion continues today. For example, in the 1980s Congress enacted and amended the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or Superfund) to cleanup inactive hazardous waste sites. CERCLA retroactively created liability for past and current owners of facilities where hazardous substances were disposed and anyone who arranged for and transported hazardous substances. Moreover, CERCLA requires reporting of hazardous substance releases. As a result, many small businesses that managed hazardous substances in accordance with the standards of the day became liable for their past activities.