Month: August 2013

Employees’ right to privacy when using electronic communications has become a major workplace issue within the last decade. What constitutes an invasion of privacy? When does an employer have the right to monitor electronic communications? And does monitoring bring up the Orwellian image of Big Brother?

The Electronic Communications Privacy Act  (ECPA) of 1986 is the only federal statute that deals directly with the interception of e-mail. The ECPA was enacted to extend an earlier legislation’s protection against the unauthorized access of wire and oral communications to include electronic communications. Although the Act doesn’t expressly mention e-mails, courts have interpreted the term “electronic communications” to include emails.

The ECPA does not, however, guarantee an employee’s right to email privacy in the workplace. There are three specific instances when an employee’s protection under the ECPA does not apply:

• The Consent Exception – Section 2511(2)(d) indicates that an interception of an electronic communication is considered legal if the person doing the intercepting is a party to the communication, or if one of the parties involved in the communication consents. The only exception to this proviso is if the purpose of intercepting the communication is to use it to commit a crime or tort. If an employer asks their employees to sign an employment agreement stating that their electronic communications will be monitored, the agreement will nullify the protection of the ECPA. 
• The Provider Exception – Section 2511(2)(a)(i) allows an officer, employee, or agent of a provider of wire or electronic communication service, whose equipment is used in the transmission of an electronic communication, to intercept, disclose, or use that communication in the normal course of employment if that person is involved in an activity which impacts upon the normal course of operations or upon the protection of their property rights. This means that intercepting emails to conduct quality checks is permissible as is intercepting them if you believe an employee is “stealing” the service by sending emails to friends on company time.
• The Business Extension Exception – Section 2510(5)(a) exception also covers interception done in the ordinary course of business.  It is similar in intent to the provider exception.

What all of these exceptions boil down to is that employers are justified in intercepting email messages as long as they have a valid business reason for doing so. However, if the business takes physical action to protect the privacy of email by installing a system that allows messages to be marked as confidential or by using passwords; or if the business tells employees that their email is private, the employer’s right to intercept may be considered voided unless one of the above stated exceptions can be proven.

Although there are still accusations that intercepting email is an outright invasion of a worker’s privacy even though the message may be written on company time and using company equipment, intercepting emails is becoming increasingly necessary. As the number of employees who sue because of harassment that occurred via email increases, businesses will find that limiting risk will depend upon knowing when you can legally intercept.

The term “stormwater” refers to any runoff after rain or snow from a barren piece of land, an area with vegetation, or constructed areas like paved streets and rooftops. Stormwater discharges can contain pollutants in large enough quantities to contaminate a water supply. If your construction project will disturb one or more acres of land, you may need a stormwater permit. If your project will disturb less than one acre, but its part of a larger development plan that will disturb one or more acres, you may also need a stormwater permit.

However, the determination of what the appropriate compliance is for your particular construction project is far more intricate than just a “yes” or “no” answer to the above scenarios. There are four criteria, which must be met to determine a permit is needed:

• Will your construction project disturb one or more acres of land?
• Will your construction project disturb less than one acre of land but is part of a larger development plan that will disturb one or more acres?
• Has your construction project been designated by the National Pollutant Discharge Elimination System (NPDES) permitting authority either on the state or federal level as one that must be regulated even though it will disturb less than one acre of land?
• Will stormwater from your construction site flow into a separate municipal storm sewer system or a body of water within the United States?

If you answered “yes” to any of the first three questions and “yes” to the last question, then you definitely need a stormwater permit. Keep in mind that in addition to state and federal regulatory agencies, some municipalities are also required to implement stormwater control programs. You need to check with your municipality for its requirements before beginning work on the project.

Your next step is determining whether to apply on the federal or state level. If your project is located in an area requiring a federal permit, you must apply for the EPA Construction General Permit (CGP). If your location necessitates getting a state permit, then you must meet the state’s general permit requirements. You can apply for an individual state or federal permit instead of the general one; however, the individual permit process can be much longer. One of the requirements of the EPA CGP is to assess the potential affects your project will have on federally protected endangered species and on any designated critical habitat on or near your site.

While state permit requirements may vary, the EPA has established some very specific criteria:

1.      Develop and implement a Stormwater Pollution Prevention Plan. It has to include:

• A description of the site that lists sources of pollution
• A description of methods that will be used to prevent pollutants from contaminating stormwater
• A description of controls for stormwater flow
• Documentation that supports that you are not in violation of the Endangered Species Act
• Documentation that supports that you are not in violation of local Total Maximum Daily Load requirements
• Clearly outlined roles of different operators
• The methodology you will use to inspect your site

2.      Submit a Notice of Intent (NOI) – This notice begins coverage under the general permit and includes a certification that the activity will not impact upon endangered species or historic places.

3.      Submit a Notice of Termination(NOT) – You need to submit this to EPA within 30 days after one or more of the following:

• Final stabilization has been accomplished on all portions of the site, for which the recipient of the permit is responsible
• Another operator assumes control over the parts of the site that have not achieved final stabilization      
• The operator has obtained an individual or alternative NPDES permit

In 1980, Congress passed The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) to address the issue of cleaning up hazardous substances at inactive or abandoned sites. The law is sometimes referred to as the “Superfund” because the cleanup program it established includes a Trust Fund used by the EPA and other agencies to clean up hazardous waste sites when the original polluter cannot be identified. CERCLA also requires the immediate reporting of any releases of hazardous substances at a construction site if the amount released meets or exceeds the level designated by the law as a reportable quantity.

The Emergency Planning and Community Right-to-Know Act (EPCRA), originated from CERCLA. This law requires the use of emergency planning, and provides citizens, local governments, and local response authorities with information regarding the potential hazards in their community. Before beginning the bidding process, the owner or developer needs to research the history of the construction site to find out if there was any hazardous substance use or disposal at the site. This review will give contractors a better understanding of potential risks and liabilities.

There is the likelihood that your project will be subject to Superfund or EPCRA requirements if hazardous substances are discovered during construction activities such as grading, digging or demolition. If your site was previously used for industrial or commercial activities that may have created hazardous substances, or there is the possibility that waste was disposed at the site, you should test the soil, surface water, and groundwater before beginning.

To determine if your construction site is subject to EPCRA emergency planning requirements, you need to determine if it meets both of the following criteria:

• An extremely hazardous substance or any substance regulated by your state or local authority is stored on site.
• A substance above the designated Threshold Planning Quantity is stored on site. The quantity varies by substance.

You can find additional information at: http://yosemite.epa.gov/oswer/ceppoweb.nsf/content/epcraOverview.htm

As for responsibility for meeting CERCLA requirements, if hazardous substances are discovered during construction, the contractor or subcontractor who first discovers it is responsible for notifying the general contractor, developer or owner. Because the hazardous substance was at the site before construction began, the developer or owner is responsible for seeing that the hazardous substances are handled and disposed of properly.

However, if you excavate or spread soils containing a hazardous substance, you may be responsible under CERCLA as an operator, arranger, or transporter:

• You may be an operator if you spread soil that contains a hazardous substance on the land.
• You may be an arranger if you dispose of a hazardous substance or arrange to have it removed from the construction site.
• You may be a transporter if you move hazardous substance from one location to another.

If there is a hazardous substance release above the reportable quantity for CERCLA, you must immediately notify the National Response Center at 1-800-424-8802 and your State Emergency Response Commissions (SERC) and Local Emergency Planning Committees (LEPC). If there is an extremely hazardous substance release above the reportable quantity for EPCRA, you must immediately notify your SERC/LEPC. If no notification occurs, the owner, contractor and subcontractor may all be held responsible.

The penalties for non-compliance are stringent. EPA has the power to impose administrative, civil, and criminal sanctions on a property owner and/or contractor. Administrative penalties and civil penalties can reach $32,500 per violation per day. In addition to fines, you may need to cover legal fees. If legal action is taken against your construction site, you could also be the recipient of increased scrutiny by regulatory agencies at all the construction sites that you operate.

Necessity is clearly the mother of invention, especially when it comes to language. As each new event causes a civilization to be at a loss for words to describe it, the civilization invents the words it needs. Hazardous waste management has certainly contributed its share of new words. Take, for example, the term “bioremediation.” This is the processof using microorganisms or their enzymes to return an environment that has been by polluted by contaminants to its original state. Bioremediation can be used alone to attack specific contaminants that can be degraded by bacteria, or it can be one step in a multi-pronged approach.

The first words in the lexicon associated with bioremediation that you need to be aware of are “in situ” and “ex situ.”  These are not strictly new words; they are actually Latin phrases dating back to the Romans, but they have taken on a new usage in the 21^st century world of hazardous waste management. In situ, or literally “in place” means treating the contaminated material on site while ex situ, or “away from the place” means  the contaminated material is removed and treated elsewhere.

Biomremediation can often be accomplished by biostimulation. This means that the contaminated environment is altered to stimulate the growth of  bacteria that already exist there that are capable of degrading those contaminants. This is usually accomplished by adding various forms of nutrients, such as phosphorus, nitrogen, or carbon. However, the problem with this process is that while the good bacteria is growing, so is the undesirable bacteria. These bad bacteria can cause what is known as biofouling. This can result in the clogging of pumps, which are used to remove the contaminants.

Another process that is sometimes confused with biostimulation is bioaugmentation. This usually involves studying the types of bacteria present in the area to determine if they are capable of degrading the contaminants. If there is no indigenous variety of bacteria that is capable of performing the job, then a new bacteria is introduced into the area that can do the degrading. In this process a sufficiently high dose of the desired bacteria is introduced into an area so they become dominant. There is no fouling; and when the job is done, the bacteria die and turn into carbon dioxide and water, which can be pumped out and removed.

Some other types of bioremediation include bioventing and biosparging. Bioventing is a technology that provides oxygen to existing soil microorganisms that have been deprived of oxygen in order to stimulate them to degrade any aerobically degradable compounds in the soil. Aerobically degradable means they can be degraded by the use of oxygen. The oxygen is introduced as part of the air that is directly injected into the contamination in dry soil. Bioventing uses low airflow rates to provide only enough oxygen to sustain the microorganisms’ activity.

Biosparging is a remediation process that also uses microorganisms that already exist in a contaminated area to degrade the contaminants. In biosparging, air and sometimes nutrients are injected into saturated or wet soil to increase the microorganisms’ activity. In addition, biosparging can be used to reduce concentrations of contaminants that are dissolved in groundwater, or adsorbed in the soil below the water table.

As industrial chemical processes become more sophisticated, the contaminants that are released from these processes will become more complex requiring more innovative ways of removing them from the environment. The technologies mentioned in this article are the beginning of the movement toward righting the wrongs done to the environment. Understanding what they are can help business owners look for the right kind of products and services that can keep them in compliance with the regulations established to maintain a green America.