Enacted in 1986 at the same time that the Superfund law was substantially amended (as SARA Title III), EPCRA was a reaction to the Bhopal disaster. EPCRA requires industrial plants to work with local emergency responders and state officials to prepare coordinated plans for responding to releases of hazardous chemicals. In addition, the statute imposes numerous annual reporting requirements on manufacturing plants to ensure that state and local authorities are aware of the types and quantities of hazardous substances stored on the premises as well as the types and amounts of toxic chemicals released into the environment from these facilities. In 1995, President Clinton issued Executive Order No. 12969, entitled "Federal Acquisition and Community-Right- to-Know." The Order requires federal agencies to contract for supplies and services only with companies publicly reporting on Toxic Chemical Release Inventory Reporting Forms ("Form Rs") the toxic chemicals they release into the environment, where the amount of the contract equals or exceeds $100,000. The statute requires plants to report immediately accidental releases into the environment of designated chemicals exceeding certain threshold amounts established by EPA. The 1990 Pollution Prevention Act (PPA) added reporting on recycling activities, actual reductions achieved from year-to-year, and projections of future reductions in waste generation. EPA has expanded the Form R program to certain mining, electric utilities, hazardous waste treaters and recyclers, bulk petroleum terminals and chemical wholesalers and repackagers.

Morgan Lewis Community Right-To-Know Activities

• Advice on spill reporting requirements.
• Assistance with reporting annual releases of toxic emissions.
• Assistance in preparation of hazard communication plans.

Morgan Lewis Spill Reporting Procedures Manual sets forth the precise requirements of this statute. Robert Collings and Kenneth Rubin counsel several clients on questions arising under EPCRA, including how best to substantiate confidentiality claims, so that reports made to state and local authorities do not inadvertently release trade secrets but nonetheless provide these government officials with the information required under the statute.

The Occupational Safety and Health Administration s (OSHA) requirements were once entirely separate from EPA s regulatory programs. In recent years, however, many important OSHA standards have become interwoven with EPA regulatory requirements. This is particularly true with respect to the OSHA standards dealing with hazard communication and the preparation and distribution of material safety data sheets (MSDSs), and OSHA s process safety management and hazardous waste operations (HAZWOPER) standards.

The many examples of the close interrelationship of the EPA and OSHA regulatory schemes include the OSHA standards setting permissible exposure levels for a wide range of chemicals in the workplace and OSHA s establishment of several hazard categories for classifying all hazardous chemicals in the workplace. Much of this regulatory framework is now the basis for reporting requirements imposed under EPCRA, discussed earlier in this Deskbook. In addition, OSHA has issued worker protection standards for RCRA hazardous waste facilities, and EPA has adopted similar rules for cleanup personnel working at Superfund sites. Moreover, OSHA has now assumed responsibility for investigating "whistleblower" claims under certain federal environmental and energy-related statutes.

• Counsel on the conduct of OSHA inspections and compliance with OSHA standards, including advice on OSHA s new Cooperative Compliance Programs (CCPs) and Performance Evaluation Profiles (PEP).
• Representation in contesting OSHA citations.
• Representation in contesting OSHA citation alleging violations of the Process Safety Management (PSM) Standard.
• Preparation of comprehensive corporate health and safety plans.
• Advice with respect to preserving the confidentiality of corporate safety documents.
• Advice with respect to recordkeeping and OSHA s newly proposed revisions to recordkeeping requirements.
• Conduct and/or assistance with the conduct of corporate safety and health compliance audits.
• Representation in challenging or seeking variances from OSHA standards.
• Representation in administrative and judicial proceedings involving the air contaminant standards.
• Representation before occupational safety and health enforcement agencies in "state plan" jurisdictions, including Arizona, California, Maryland, Michigan, Nevada, South Carolina, Virginia, and Washington.
• Defense of "whistleblower" claims under various safety and health, environmental and energy-related statutes.
• Counsel and representation in matters involving such "cutting-edge" issues as workplace violence, ergonomics and the interplay among OSHA, the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA) and Workers Compensation.

Dennis Morikawa, Frank Casey, Brad Coupe, Eric Tilles, Jim Philbin, Vicki Houck, Kathy Houlihan and John Urban of the Firm s Labor Section devote much of their time to OSHA law matters. Mr. Morikawa recently served as Management Co-Chair of the ABA Committee on Occupational Safety and Health Law. The Firm s OSHA law specialists have undertaken a wide variety of litigation and counseling assignments. For example, they have defended numerous clients in administrative proceedings challenging OSHA citations, including "egregious" cases with fines totaling over $1 million, alleged willful death cases, and recent cases involving alleged ergonomics and confined spaces violations. They also have counseled clients on developing health and safety programs to implement OSHA s hazard communication/right-to-know, bloodborne pathogens, hazardous waste operations (HAZWOPER), personal protective equipment (PPE) and process safety management standards. Further, the Firm s OSHA law practitioners have advised clients on developing policies to protect the confidentiality of corporate safety documents and responding to OSHA s recent voluntary compliance initiatives.