Using Your Manager Skill Essays Example
President-Simply Green Product Inc.
RE: External legal opinion for probable environmental law violations by Simply Green Products (the “Company”)
I would like to draw your attention to certain issues concerning probable environmental law violations that has been bought to the notice of Risk Advisory Department over the course of last week. After having reviewed the factual matrix in detail and on the basis of analysing the provisions of the applicable statutes vis-à-vis the alleged breaches of the statutes, I am of the view that this matter merits reference to an external legal counsel for the sake of seeking legal opinion setting out a detailed analyses of potential violation and the legal recourse to reduce the exposure and mitigate the adverse legal consequences. Please find below, the rationale behind the above proposition. In order to enable you to understand and appreciate the rationale, I will set out, for your ease of reference, the relevant facts of the matter under consideration.
The Company has been manufacturing and supplying biodegradable packing materials known as “SafePack” that are utilized by various orchards in the Shenandoah Valley for the purpose transporting various fruits like peaches, pears, apples across the country. As you are aware, the reason why we have an edge over our competitors is because these bio-degradable packing materials are more eco-friendly apples, peaches, and pears nationwide. Biodegradable materials are more eco-friendly consequently giving us a distinct marketing edge over those suppliers who supply non-biodegradable material. Over the course of last one month, an environmental group, namely, “Go Green-Save the Earth” has launched a campaign through which they are seeking to assert that the SafePack materials cannot be categorized as bio-degradable. In order to substantiate their proposition, they are claiming that they have conducted research and as per their findings, they have reliable data and evidence to prove that SafePack materials are not bio-degradable and that a great degree of damage and hazard has been caused to the environment on account of seepage into a stream from the local landfill. Aside to this, the environmental group has launched an internet campaign with the purpose of convincing fruit sellers to stop buying the packing material.
Issue & Analysis
Whether the act under consideration violates the Clean Water Act33 U.S.C. §1251 et seq. (1972) (“CWA”)? If yes, what are the potential consequences? How can this be remedied?
The United States Environmental Protection Agency of the United States of America (“EPA”) explains on its official portal that the CWA provides for a structure that regulates pollutant discharge into various water bodies within the country. The CWA is concerned with regulating surface water standards.
Under the CWA, EPA has implemented pollution control programs such as setting wastewater standards for industry. We have also set water quality standards for all contaminants in surface waters. The CWA provides for regulations that governs the discharges into the water bodies through a permit system known as “National Pollution Discharge Elimination System (NPDES”) (EPA, “Clean Water Act”. ) regulates discharges to waters of the United States through permits issued under the National Pollutant Discharge Elimination System (NPDES) permitting program.
CWA’s Section 301 sets out the statutory restriction that prohibits any kind of discharge of pollutants in the United States water bodies in the absence of NPDES. To this end, the NPDES permit necessitates prior treatment of the pollutants so as to ensure its compliance with the prescribed standards of water quality. The NPDES permits require treatment of the pollutants to a degree that will comply with established water quality standards. Further, the Water Treatment Section, being the statutory body, is concerned with ensuring validity of the necessary technical data while assessing the pollutant and issuing necessary administrative orders/penalty orders and/or making references to the Department of Justice for the purpose of ensuring effective implementation of the NPDES programs. Furthermore, there are provisions in the CWA that entitles citizen groups to enforce various civil provisions of CWA by approaching the Federal courts. As regards the NPDES NPDES permits, they are issued individually or generally. To this end, individual permits are location specific are issued as individual permits or general permits. Individual permits are written for a specific facility location. On the other hand, general permits are issued for certain type of industrial discharge. One of the reasons why it is advisable to ensure strict compliance with the CWA is to avoid the penalties imposed under the CWA. To this end, as of March 15, 2004, the CWA penalties stands revised to USD 32,500 under Class I category and USD 157,500 for class II Penalties. Penalty per violation is USD 11,000 per day. In my view, in light of the above, the Company is exposed to potential action under the CWA as it has not obtained any NPDES and the environmental group can seek the assistance of federal court systems to bring necessary action against the Company.
External Counsel Opinion: In light of the above, in light of the potential exposure, it is necessary to seek external counsel’s opinion on the following issue: (a) Whether the SafePack material discharge violates section 301 of the CWA; (b) Whether the Company is required to obtain NPDES permits; (c) Whether the Company will require an individual permit in light of the nature of discharge? (d) Will the conduct of the Company until date attract the penal provision under the CWA? If yes, what are the potential exposure and how can it be mitigated? (e) Can the Company start necessary court proceedings against the environmental group to prevent it from running the internet campaign prior to obtaining the NPDES permit or is it advisable to first obtain the NPDES permit and subsequently initiate the action?
(a) Whether the act under consideration violates the Solid Waste Disposal Act of 1965 (“SWDA”)? If yes, what are the potential consequences? How can this be remedied?
The EPA states that the SWDA primarily regulates the waste disposal technology. The EPA further states that waste disposal is primarily a local issue. A large number of amendments related to SWDA, including the “Resource Conservation and Recovery Act” have led to the increased deliberation by federal government in the entire process. The EPA explains that subsequent amendments to the Solid Waste Disposal Act, such as the Resource Conservation and Recovery Act (RCRA), have substantially increased the federal government's involvement in solid waste management. The SWDA provides for a definition of what amounts to solid waste, process for hazardous waste recycling, methods for hazardous waste identification, specific exclusions, and provisions for treatment, storage and disposal facilities. The EPA has published a draft rule that sets out detailed legal provision for the proposed definition of the term “solid waste” under the SWDA as amended by RCRA from time to time. (EPA “Definition of Solid Waste: Final Rule”). These rules are still at a stage of draft and have yet not been finalized. An external legal opinion will be required on the basis of case law analysis and the analysis of proposed rule for the purpose of ascertaining whether the alleged non-biodegradable material falls within the definition of solid waste as proposed by the rule or whether there are any specific exclusion that may avoid the application of SWDA. The online encyclopaedia on Reference for Business explains that the EPA has set out extensive standards for issues concerning handling and storage of hazardous waste. Further, there are licensing requirement for disposal and transportation of such waste as well. There are extensive permit requirements under the SWDA act as amended and modified from time to time.
In light of the above, in my view, this issue merits seeking an external counsel opinion on the following issue: (a) Whether the SafePack material would attract the definition of “Solid Waste” as per the proposed rule? (b) In the event solid waste definition is applicable, will there be a necessity to design and implement a solid waste management system? (c) What are the penal consequences under the SWDA for the action of the Company until date? (d) What steps should the Company undertake to reduce/mitigate the penal consequences under the SWDA? (e) Can a citizen body like an environmental group bring any adverse action against the Company under the provisions of the SWDA? If so, what are the probable defences available with the Company? (f) Can the Company take advantage of the exclusions under the SWDA? If yes, what are the potential exclusions? (g)Is there any specific licensing requirement under the SWDA that the Company will have to comply with in light of the definition of the term “solid waste”? (h) Is there any possibility that the SafePack material be labelled as a non-hazardous industrial waste?
In light of the rationale set out in point (a) and point (b) above, it is necessary to seek opinion of an external legal counsel, fundamentally to (i) confirm applicability of the above statutes; (ii) to assess the exposure under the statues for the action of the company until date; and (iii) to assess the steps and way forward by seeking advice upon the necessary permits/license and compliance programs that are required to be implemented with immediate effect.
_____________ (Risk Manager)
The United States Environmental Protection Agency “Summary of Clean Water Act” Retrieved from: http://www2.epa.gov/laws-regulations/summary-clean-water-act N.P. N.D
The United States Environmental Protection Agency “Clean Water Act” EPA Region 6 Office. Retrieved From: http://www.epa.gov/region6/6en/w/cwa.htm N.P. N.D
The United States Environmental Protection Agency, “Solid Waste Management of Tribal Land” http://www.epa.gov/region9/waste/tribal/reg.html N.P.N.D.
Environmental Protection Agency “Definition of Solid Waste: Final Rules” Federal Register / Vol. 80, No. 8 / Tuesday, January 13, 2015 / Rules and Regulations http://www.gpo.gov/fdsys/pkg/FR-2015-01-13/pdf/2014-30382.pdf N.P.
Reference for Business “Resource Conservation and Recovery Act” Encyclopaedia for Business. 2ed. http://www.referenceforbusiness.com/encyclopedia/Res-Sec/Resource-Conservation-and-Recovery-Act.html N.P. N.D.
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