Setting Up Shop: EHS Concerns for Getting a License to Operate in the U.S.

You’re planning on opening a facility in the United States—and you’ve hired every kind of specialist you can think of to help you do it the right way. You’ve got a lawyer, a real estate agent, a human resources team, and a marketing firm. But what about environment, health, and safety (EHS)?

You might think you know United States regulations, but without local experts, it’s difficult to understand how regulations apply (or don't apply) to your business. From stormwater permitting to emergency preparedness, we’ve put together a list of the top regulatory concerns you’ll need to address to obtain your license to operate and start doing business in the United States.

Environmental Regulations

Environmental regulations in the United States dictate what you can build, where, and how, as well as waste discharge limits, water treatment requirements, and other environmental impacts related to your new facility. While environmental regulations are incredibly important for all industries, they are especially important for any facility producing hazardous waste or discharging anything into the environment, such as chemical, manufacturing, and oil and gas.

It’s critical to address environmental regulations long before you start building your new facility—if they are overlooked, they can set back your facility opening, costing you money and time. When setting up U.S. operations, consider the following:

Federal

• Superfund and Historical Site Use – If you are purchasing land in the U.S., one of the most significant potential liabilities originates from historical use of the property. Under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), regardless of your own use of the property, you can be held liable for the complete history of the land and the remediation of any activities that took place. Completion of a Phase I Environmental Site Assessment (ESA) before a property purchase can enlighten you on past site operations and support legal defenses in the future if needed.
• Air Permitting and Emissions – The Clean Air Act sets the requirements for air permits for emissions of criteria pollutants and hazardous air pollutants. In addition, many states have their own rules that further define toxic air pollutants, like North Carolina, New York, Pennsylvania, and California to name a few.
• Waste Water and Stormwater – The Clean Water Act sets the requirements for wastewater discharge to waters of the U.S. and sewer collection systems. The U.S. requires stormwater permits for construction and for facility runoff discharge and pollution prevention, as well as for spill control for hazardous substances and oils.
• Hazardous Waste – The Resource Conservation and Recovery Act (RCRA) sets the requirements for the management and disposal of hazardous waste.
• Aboveground Storage Tanks (ASTs) – If your facility has aboveground storage tanks (ASTs) or bulk containers with an total capacity exceeding 1,320 gallons of oil of any kind, you may be subject to Environmental Protection Agency’s (EPA) Spill Prevention, Control, and Countermeasure (SPCC) regulations under 40 CFR Part 112. The SPCC rule sets bulk oil container storage, containment, management and inspection requirements for facility owners and operators.

State and Local

• Hazardous Waste – 48 states manage programs at least as stringent as federal RCRA standards. States can also have unique rules that are more protective than the federal standard. For example, California includes a broader spectrum of waste that is considered hazardous and requires additional site management plans and reporting requirements.
• Air – the states manage air permitting programs under their individual State Implementation Plans (SIPs). The SIPs detail how each state will implement the Clean Air Act regulations. With every modification of a state air regulation, a revised SIP must be presented to the EPA for approval before implementation. Your company is responsible for understanding how regulations apply to your facility and acquiring the appropriate air operating permit that dictates air emissions limits.
• Underground Storage Tanks (USTs) – All 50 states have UST leak prevention, release detection, and cleanup regulations; however, in states without an approved state implementation program, the EPA works with state regulators to coordinate enforcement.
• Emergency Planning – Although the Emergency Planning and Community Right-to-Know Act (EPCRA) is a federal standard, it impacts all levels, down to the local fire department. The purpose of Tier 2 reporting is to notify emergency professionals of the hazardous chemicals stored on site, so in case of an emergency or fire, they may respond appropriately and safely.
• International Fire Code (IFC) – Local fire departments typically regulate the storage of hazardous material. Local regulations usually defer to the 2009 International Fire Code or International Building Code for guidance.

Health & Safety Regulations

Health and safety encompasses everything from training, process safety management, and ergonomics. Most health and safety regulations fall under the Occupational Health and Safety Administration’s (OSHA) purview, with a smaller number coming from states and other local governments. Most health and safety regulations focus on maintaining a safe work environment and managing and reducing risks.

To set up operations following U.S. safety rules, consider these regulations:

Federal

• Chemicals – OSHA’s Hazard Communication Standard requires employers to classify all chemicals imported or produced. Information concerning the classified hazards must be transmitted to employers and employees. Employers must develop, implement, and maintain a written hazard communication program at each workplace. The program must contain a list of all the hazardous chemicals known to be present, and Safety Data Sheets (SDSs) must be compiled at the workplace.
• Hazardous Waste – OSHA’s Hazardous Waste Operations and Emergency Response (HAZWOPER) rule requires that employers follow specific work policies, practices, and procedures to protect their workers who are or could be exposed to hazardous substances. This includes training for employees on how to handle hazardous waste, emergency response, and cleanup operations involving hazardous substances.
• Emergency Action Plans – Under OHSA’s Means of Egress Standard, all employers with more than 10 employees must have a written emergency action plan. Any site with fewer than 10 employees must implement a plan, but it can be communicated orally to employees. The plan must include procedures for reporting emergencies, emergency evacuation routes, procedures for accounting for employees after an evacuation, and more.
• First Aid – If a facility is in an area without an infirmary, clinic, or hospital nearby, a person at the facility must be adequately trained in first aid, and first aid supplies must be available and accessible under OSHA’s Medical and First Aid Standard.
• Recordkeeping – Most operations must maintain injury and illness records using the OSHA 300 Log. There are exceptions for organizations with fewer than 10 employees, as well as organizations who operate in low-risk industries.
• Health and Safety System Management – An Occupational Health and Safety Management System (OHSMS) is a framework that can help you manage health and safety risks, reduce the potential for further risks, and help you stay in compliance. One of these optional frameworks is ISO 45001, which emphasizes proactive risk management practices and on-going assessment.
• Industrial Hygiene – The Occupational Safety and Health Act of 1970 outlines the rights of employees to understand their work-related risks, requiring that employers implement training on workplace hazards, allow employees to confidentially make complaints to OSHA, and provide documentation about work-related injuries and illnesses available in the workplace.

State and Local

• Injury and Illness Prevention Programs – In California, employers with more than 10 employees are required to implement a written Injury and Illness Prevention Program (IIPP). The IIPP must include a system for communicating with employees on matters relating to occupational safety and health. Employers who elect to use a labor/management safety committee to comply with the communication requirements must meet the requirements of the IIPP. A few other states, including Alaska, Hawaii, North Dakota, and Texas, have similar rules.
• Ergonomics – California and Washington are the only states with their own ergonomics rules. In California, businesses are required to meet the health and safety requirements of both OSHA, and the California Ergonomics Standard (which is stricter than the OHSA standard). Employers in California are required to provide ergonomics training to employees that includes information on exposures, symptoms, and consequences of repetitive motion injuries (RPIs), as well as the importance of reporting symptoms and injuries to the employer and methods used to minimize injuries. Even in states where ergonomics is not a requirement, it can be a good idea to understand how ergonomics impacts health at your location.
• Safety Committees – Some states, including Oregon, Washington, Connecticut, and Minnesota, require safety committees. In Minnesota, under MR 5208, all employers of more than 25 employees must establish and administer a joint labor-management safety committee chosen by the employees. Employers with 25 or fewer employees must also have a committee if their lost workday case rate is in the top 10% for their industry or if their workers' compensation premium rate is in the top 25%.

Local Experience Can Make the Difference

As you can see, there is no shortage of regulatory considerations for companies looking to get their license to operate in the United States. Figuring out the applicability of these regulations to your facility—and implementing them—can be time-consuming, expensive, risky, and stressful. However, having the right local contacts can save you a lot of heartache. Our experts can support your transition, from translation support to explaining regulation applicability and even helping you talk with stakeholders to facilitate a smooth move and successful operations.

If you need support in understanding environmental and/or health and safety regulations and their applicability to your operations, contact us today.

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