November 22, 2021
Congress enacted the Clean Water Act in 1972 with the statutory objective “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” One of the Act’s principal tools in achieving that objective is a prohibition on the discharge of pollutants from a point source to “navigable waters” unless otherwise authorized under the Act. “Navigable waters” are defined in the Act as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” (WOTUS) is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term “waters of the United States” is not defined by the Act but has been defined by EPA and the Army in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.
On June 9, 2021, EPA and the Department of the Army announced their intent to revise the definition of WOTUS to better protect our nation’s vital water resources that support public health, environmental protection, agricultural activity, and economic growth. Upon review of the 2020 Navigable Waters Protection Rule, the agencies determined that the rule is significantly reducing clean water protections.
On November 18, the EPA and U.S. Department of the Army announced a proposed rule to re-establish the pre-2015 definition of “waters of the United States” (WOTUS) which had been in place for decades, updated to reflect consideration of Supreme Court decisions. This action advances the agencies’ goal of establishing a durable definition of WOTUS that protects public health, the environment, and downstream communities while supporting economic opportunity, agriculture, and other industries that depend on clean water. This proposed rule would support a stable implementation of “waters of the United States” while the agencies continue to consult with states, Tribes, local governments, and a broad array of stakeholders in both the implementation of WOTUS and future regulatory actions.
“In recent years, the only constant with WOTUS has been change, creating a whiplash in how to best protect our waters in communities across America,” said EPA Administrator Michael S. Regan. “Through our engagement with stakeholders across the country, we’ve heard overwhelming calls for a durable definition of WOTUS that protects the environment and that is grounded in the experience of those who steward our waters. Today’s action advances our process toward a stronger rule that achieves our shared priorities.”
“The Army recognizes the importance of our nation’s water resources and the role water plays in our communities across the nation,” said Acting Assistant Secretary of the Army for Civil Works Jaime A. Pinkham. “We remain committed to working with EPA to develop a rule that is informed by our experience and expertise, as well as that of our co-regulators, is mindful of implementation practices, and is shaped by the lived experience of local communities and stakeholders.”
Recent court decisions have reinforced the need for a stable and certain definition of WOTUS. The U.S. District Courts for both Arizona and New Mexico have vacated the Navigable Waters Protection Rule. In light of the court actions, the agencies have been implementing the pre-2015 regulatory regime nationwide since early September 2021. Today’s action is an important step because it would solidify the rules of the road for a stable implementation of “waters of the United States” while the agencies continue to consult with stakeholders to refine the definition of WOTUS in both implementation and future regulatory actions.
The proposed rule would maintain the longstanding exclusions of the pre-2015 regulations as well as the exemptions and exclusions in the Clean Water Act on which the agricultural community has come to rely.
EPA and Army conducted extensive pre-proposal engagement, including Federalism and Tribal consultation, to help inform the content of the proposed rule. The agencies are taking comment on this proposed rule for 60 days beginning on the date it is published in the Federal Register.
For more information on submitting written comment on the proposal or to register for the virtual public hearings on the proposed rule, see www.epa.gov/wotus
New DOT Regulations Add More Than 400,000 Miles of Gas Gathering Pipelines Under Federal Oversight
The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) issued a final rule
that expands Federal pipeline safety oversight to all onshore gas gathering pipelines. The rule, initiated over 10 years ago, expands the definition of a “regulated” gas gathering pipeline that is more than 50 years old. It will—for the first time—apply federal pipeline safety regulations to tens of thousands of miles of unregulated gas gathering pipelines. The final rule will—also for the first time—require pipeline operators to report safety information for all gas gathering lines, representing more than 425,000 additional miles covered by Federal reporting requirements.
“After years in development, these new regulations represent a major step to enhance and modernize pipeline safety and environmental standards” said U.S. Transportation Secretary Pete Buttigieg. “This rule will improve safety, reduce greenhouse gas emissions, and result in more jobs for pipeline workers that are needed to help upgrade the safety and operations of these lines.”
Gas gathering lines typically transport natural gas from production facilities to interstate gas transmission pipelines. Historically, gathering lines have been lower-pressure, lower risk, smaller-diameter lines, typically situated in lesser-populated, rural areas. With the increase in hydraulic fracturing (fracking) over the last 15 years, the volume of gas extracted and transported through gathering lines has increased significantly. Gathering lines with diameters, operating pressures, and associated risk factors similar to larger interstate transmission lines have become more common.
A number of incidents have occurred on these high pressure, unregulated lines—tragically leading to fatalities, injuries, and large amounts of greenhouse gas (methane) emissions. For example on June 8, 2010, a bulldozer struck a 14-inch gas gathering line in Darrouzett, Texas, causing an explosion that killed two workers and injured three others, including one worker who was critically injured and required medical evacuation by helicopter. On June 29, 2010, three men working on a 24-inch gas gathering line in Grady County, Oklahoma, were injured when it exploded; one worker was airlifted to a nearby hospital with burns covering half of his body.
On August 9, 2018, corrosion on a 10-inch gas gathering line resulted in another explosion in Midland, killing a three-year-old girl and badly burning three other members of her family. On September 10, 2018, a pipeline exploded shortly before 5 a.m. in Center Township, Pennsylvania, destroying one home about 500 feet from the blast, prompting evacuations of neighbors, damage to powerlines, and closing the nearby interstate.
More than 1,000 metric tons of high-global-warming-potential methane gas are emitted, on average, with each pipeline rupture. A single rupture from a large, high-pressure gas pipeline can release more than 1,300 metric tons of methane emissions into the atmosphere.
All together, PHMSA estimates that there are at least 425,000 miles of onshore gas gathering lines that have not been subject to PHMSA oversight but will be after this rule takes effect. The rule establishes a new category of regulated onshore gathering lines covering higher-pressure lines that pose a heightened risk in rural areas—and applies existing pipeline safety requirements to tens of thousands of miles of these pipelines. The rule also requires all onshore gas gathering pipeline operators to begin filing incident reports and comprehensive annual reports. Currently, without this data, estimates for the greenhouse gas impacts of highly potent methane pollution are uncertain. . The Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011
required PHMSA to review existing regulations for gas gathering lines. The draft of this rule was first proposed [more than five years ago] on April 8, 2016. PHMSA is currently working to develop additional regulations that will enhance the safety oversight of gas gathering pipelines.
Crude Oil and Natural Gas Air Emission Rule Revisions Proposed
EPA has proposed
three distinct groups of actions under the Clean Air Act (CAA) which are collectively intended to significantly reduce emissions of greenhouse gases (GHGs) and other harmful air pollutants from the Crude Oil and Natural Gas source category. First, the EPA proposed to revise the new source performance standards (NSPS) for GHGs and volatile organic compounds (VOCs) for the Crude Oil and Natural Gas source category under the CAA to reflect the Agency's most recent review of the feasibility and cost of reducing emissions from these sources. Second, the EPA proposed emissions guidelines (EG) under the CAA, for states to follow in developing, submitting, and implementing state plans to establish performance standards to limit GHGs from existing sources (designated facilities) in the Crude Oil and Natural Gas source category. Third, the EPA is taking several related actions stemming from the joint resolution of Congress, adopted on June 30, 2021 under the Congressional Review Act (CRA), disapproving the EPA's final rule titled, “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review,” Sept. 14, 2020 (“2020 Policy Rule”). This proposal responds to the President's January 20, 2021, Executive order (E.O.) titled “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” which directed the EPA to consider taking these proposed actions.
Connecticut Chemical Manufacturer Cited for Hazardous Waste Violations
EPA recently finalized a settlement with MacDermid Enthone Inc. (MacDermid), a chemical manufacturer, to resolve alleged violations of the Resource Conservation and Recovery Act (RCRA
) at the company's facility in West Haven, Conn.
"It's important that companies that generate hazardous wastes during their manufacturing operations follow federal and state regulations in order to reduce potential risks to human health and the environment," said EPA New England Acting Regional Administrator Deborah Szaro. "Because of EPA's action, this facility has substantially improved its hazardous waste storage and handling practices."
MacDermid's West Haven facility specializes in producing plating chemicals for the semiconductor industry. The production processes generate various liquid hazardous wastes. EPA performed an inspection of the facility and found several RCRA regulatory violations, including the failure to determine if some of its waste chemicals were hazardous, the failure to properly label hazardous waste containers and a hazardous waste tank, and the failure to provide adequate aisle space in the facility's hazardous waste storage area for employees and emergency personnel.
Under the settlement, MacDermid agreed to pay a penalty of $86,769 for alleged violations of RCRA regulations
at its chemical manufacturing facility. The company has certified that it corrected its violations and will maintain compliance with federal and state hazardous waste laws.
As a result of EPA's enforcement action, MacDermid corrected its RCRA violations and established new compliance procedures, including new procedures to ensure that the facility's hazardous wastes are properly identified and handled. MacDermid also permanently closed and removed a 500-gallon underground hazardous waste storage tank from the facility. The company was cooperative during EPA's enforcement investigation and the case settlement negotiations.
Owner of a Tanker Company Sentenced to Prison for Lying to OSHA, Violating DOT Safety Standards
A Pocatello man was sentenced to a month in federal prison, five months of home confinement, three years of supervised release, and a $15,000 fine for lying to the Occupational Safety and Health Administration (OSHA) and for making an illegal repair to a cargo tanker in violation of the Hazardous Materials Transportation Act. The crimes came to light through the investigation of an explosion.
On May 20, Loren Kim Jacobson, 65, of Pocatello, an owner of a tanker testing and repair company, KCCS Inc., pleaded guilty to the above offenses. The case arose from an explosion that occurred at KCCS during a cargo tanker repair on Aug. 14, 2018, which severely injured a KCCS employee. According to the plea agreement, the KCCS employee’s welder flame pierced the skin of the tanker, and ignited residual flammable material inside. After the explosion, an OSHA investigator interviewed Jacobson about the circumstances surrounding the accident, as part of an investigation into whether Jacobson had violated OSHA safety standards for cargo tanker repair work. Jacobson made a materially false statement to the OSHA investigator during that interview, namely that the welder was merely an “observer,” not an employee, and that KCCS did not have any employees, as OSHA requirements only apply to “employers.”
Jacobson lied about not having employees to try to evade legal repercussions and penalties for his violation of various Occupational Safety and Health Act safety standards during the repair that resulted in the explosion. According to the sentencing memorandum, Jacobson also lied about several other points, including telling the OSHA inspector that he had used a lower explosive limit meter to test the tank for explosive fumes prior to welding. Using such a meter could have detected the fumes that resulted in the explosion.
Jacobson also admitted in the plea agreement that he did not possess the necessary certification to conduct cargo tanker repairs, which he regularly conducted at KCCS. Under the Hazardous Materials Transportation Act, all repairs to the skin of a cargo tanker require that the repairperson hold an “R stamp,” which can be obtained only after meeting extensive training requirements. The purpose of this requirement is to ensure that those conducting repairs on cargo tankers (which often haul flammable materials) have adequate training and expertise to do so safely. Jacobson admitted that he had a regular practice of making repairs requiring an R-stamp despite knowing he did not have one, and that he would send employees into cargo tankers to weld patches from the inside so that the illegal repairs would not be visible from the outside. Jacobson did not follow OSHA safety standards for protecting employees from such dangerous “confined space entries.” According to the plea agreement, Jacobson directed his employee to conduct a hidden repair of this type on the tanker that subsequently exploded, in violation of both OSHA safety standards and the R-stamp requirement.
According to the government’s sentencing memorandum, Jacobson also had a routine practice of falsifying results for pressure testing that he conducted on behalf of cargo tank owners. Pressure testing is required under law and is intended to make sure that cargo tanks will automatically vent gases if pressure inside the tank gets too high, thereby preventing explosions. Instead of actually testing tank valves, Jacobson merely wrote plausible numbers on the test result forms. When confronted about this practice, Jacobson lied to a Department of Transportation inspector about it, attempting to hide the practice by producing fake test result forms with passing values. He later admitted his practice of falsifying pressure test results.
“This tragic accident could have been prevented had the defendant adhered to OSHA workplace safety requirements,” said Acting U.S. Attorney Rafael M. Gonzalez, Jr. “It is vital that companies follow all health and safety guidelines and ensure a safe workplace for its employees. By callously focusing on financial gain, the defendant created the conditions that led to the explosion,” Gonzalez added before commending the investigators at OSHA, the Department of Transportation, and the Environmental Protection Agency for uncovering the evidence in this case.”
“Playing cat and mouse with inspectors, rather than complying with legal requirements that keep workplaces safe, is a dangerous game that can ruin lives,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “The Department of Justice will hold accountable those who mock the law this way.”
“Loren Jacobson made materially false statements to OSHA investigators regarding his failure to take safety precautions to protect his employees,” said Special Agent-in-Charge Quentin Heiden of the U.S. Department of Labor Office of Inspector General's Los Angeles Region. “His actions put his employees at extreme risk and resulted in the explosion of a cargo tanker they were repairing. Today’s sentencing affirms the U.S. Department of Labor Office of Inspector General’s commitment to bring to justice those who lie to OSHA officials.”
Acting U.S. Attorney Gonzalez commended the cooperative efforts of the Department of Transportation Office of the Inspector General, the Department of Labor Office of the Inspector General, and the EPA which led to charges. He also praised the assistance from the Justice Department’s Environmental Crimes Section trial attorney.
E-Waste Business Owner Unlawfully Stored Hazardous Waste
A Greenville man pleaded guilty to knowing storage of hazardous waste without a permit, in violation of Title 42, United States Code, Section 6928(d)(2)(A). According to the Criminal Information, and information provided in open court, Lee Vann Crawford, 51, of Greenville, owned and operated Eastern Electronics Recycling, USA in eastern North Carolina. Eastern Electronics was a company that purported to be engaged in the responsible collection and disposal of e-waste, such as televisions, computer monitors, and other electronic equipment.
Old televisions and computer monitors contain cathode ray tubes (CRTs) which, when improperly maintained and stored, can release toxic levels of lead. Waste containing lead content of five milligrams per liter is considered “hazardous waste.”
As early as 2012, Crawford began collecting and storing large volumes of e-waste, including large amounts of CRTs, at 800 W. Green Street in Robersonville, NC, within Martin County. Much of the waste at this location had been scrapped or otherwise broken down into smaller parts. CRTs had also been shattered, releasing lead. Crawford did not obtain or maintain a permit from the EPA, or from the State of North Carolina, to store the CRTs at this location. Crawford also did not recycle or otherwise properly dispose of the CRTs.
In June of 2019, the EPA executed a search warrant at Crawford’s storage location found a large quantity of shattered CRTs. Samples of waste were extracted from various locations on the property, yielding findings of hazardous amounts of lead -- 102 to 188 milligrams per liter.
The maximum punishment for Knowing Storage of Hazardous Waste Without a Permit is up to 5 years in prison and a fine of up to $50,000 per day of the violation. The sentencing for the Crawford is scheduled to occur in February of 2022.
“The illegal storage and disposal of Cathode Ray Tube waste (CRT) containing hazardous amounts of Lead contamination needlessly put the lives of the resident of Martin County, NC, and general public at an increased risk to Lead exposure,” said Special Agent in Charge Charles Carfagno of EPA’s Criminal Investigation Division in Atlanta, GA. “Today’s plea agreement related to that illegal activity demonstrates that anyone who intentionally violates the law and puts the public at risk will be held responsible for their actions.”
- Norman Acker, III, Acting U.S. Attorney for the Eastern District of North Carolina made the announcement. The investigation was conducted by the United States Environmental Protection Agency Criminal Investigative Division and the North Carolina State Bureau of Investigation. Assistant United States Attorney William M. Gilmore represents the United States.
Houston Crane Company Ordered to Pay Nearly $24k To Worker Who Refused to Violate FMCSA Rules
A federal whistleblower investigation led OSHA to order a Houston mobile crane rental company to pay a former employee nearly $24,000 in back wages, interest and damages after firing the worker in June 2020 for refusing to drive in excess of federal limits and reported fatigue.
“Crane Masters Inc. punished a driver who refused to jeopardize their safety and that of others on the road by violating federal laws that restrict how many hours a truck driver may operate a commercial vehicle each day,” said OSHA Regional Administrator Eric Harbin in Dallas. “Commercial truck drivers, mechanics and other workers are critical to our nation’s transportation infrastructure and our economy, but they should never be forced to put themselves or others at risk because of an employer’s concern for profit, or fear retaliation for exercising their legal rights.”
Crane Masters provides hydraulic truck cranes and rigging services to several industries, including construction, oil and gas, freight transportation and chemical manufacturing. It has operated for 20 years and serves the greater Houston area.
OSHA’s Whistleblower Protection Program enforces the whistleblower provisions of more than 20 whistleblower statutes
protecting employees from retaliation for reporting violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and for engaging in other related protected activities. For more information on whistleblower protections, see OSHA’s Whistleblower Protection Programs webpage
Truck Manufacturer Fired Worker Concerned About Coronavirus Safety at Texas Facility
As the coronavirus began to spread rapidly across the nation in March 2020, an employee of one of the world’s largest manufacturers of light, medium and heavy-duty trucks told a supervisor of their concerns about exposure to the virus at the Denton facility.
In response, a representative of PACCAR Inc. – doing business as Peterbilt Motor Co. – told the employee that the company planned to clean work spaces and continue work as usual. After Paccar later learned the employee expressed concerns publicly about the company’s response and their concern for the safety of other employees, the company fired the employee.
A subsequent OSHA investigation found the employee engaged in protected activity by raising their workplace safety concerns, and that the company’s retaliation violated federal whistleblower protections.
On Nov. 17, the department’s Office of the Solicitor filed suit against PACCAR Inc. in the U.S. District Court for the Eastern District of Texas. In its action, the department asks the court to order the company to comply with anti-retaliation provisions in the Occupational Safety and Health Act; reinstate the employee to his former employment position with the company, pay the employee back wages, interest, compensatory and punitive damages and other remedies; and expunge the employee’s personnel record.
“Our investigation found that PACCAR terminated a worker for reporting their concerns that the company’s response to the dangers of the coronavirus would not prevent its spread,” said Regional OSHA Administrator Eric S. Harbin in Dallas. “Every worker has the right to report safety concerns of any kind without fear of retaliation.”
“The U.S. Department of Labor will hold employers accountable when they retaliate against workers who raise safety concerns for themselves and their co-workers,” said Regional Solicitor of Labor John Rainwater in Dallas. “At the same time, the department will work vigorously to ensure a worker’s legal right to a safe and healthy workplace is protected as the law provides.”
Headquartered in Bellevue, Washington, PACCAR Inc. is one of the world’s largest manufacturers of medium- and heavy-duty trucks. It also designs and manufactures trucks under the Kenworth, Peterbilt, Leyland Trucks and DAF brands.
APlus Cited for Diesel Truck Emissions Tampering
EPA has reached a settlement with APlus Truck Sales, Inc. of Windham, Maine, resolving EPA allegations that from 2017 to 2019, the company tampered with emission controls on diesel vehicles by selling and installing aftermarket parts known as "defeat devices," in violation of the federal Clean Air Act. Under the terms of the settlement, APlus Truck Sales will pay a penalty of $75,000.
In its Complaint against APlus, EPA identified over 60 instances over a two-year period in which the company illegally tampered with vehicles. APlus has now certified to EPA that it has ceased the sale and installation of such defeat devices.
"EPA is committed to protecting peoples' health by protecting air quality in our communities. Emission control systems on vehicles reduce pollution, meaning we all have cleaner and healthier air to breath. It's important that pollution control systems are not altered so they continue to work as intended," said EPA New England Acting Regional Administrator Deb Szaro. "This action sends a clear message that tampering with emission controls on vehicles will not be tolerated. To ensure that we all have access to clean air, it is critical that vehicle repair facilities and truck owners comply with the Clean Air Act."
The penalty amount considers the effect of the penalty on the company's ability to continue in business as well as the financial impacts of COVID-19, based on detailed financial data provided to EPA.
Tampering with a vehicle's emissions control system is illegal under the Clean Air Act (CAA) and results in excess emissions of a variety of pollutants including nitrogen oxides and particulate matter. The CAA prohibits manufacturing, selling, offering for sale, and installing aftermarket devices that disable, bypass, or reduce the effectiveness of emission control systems.
As a result of EPA requirements
, cars and trucks manufactured today emit far less pollution than older vehicles. To meet EPA's emission standards, engine manufacturers have carefully calibrated their engines and installed sophisticated emissions control systems. EPA testing has shown that aftermarket defeat devices can increase vehicle emissions substantially, which can contribute to a variety of public health problems typically associated with exposure to air pollution. These health effects can include premature death in people with heart or lung disease, heart attacks, irregular heartbeat, aggravated asthma, decreased lung function, and respiratory symptoms such as irritation of the airways, coughing, or difficulty breathing.
Because vehicles that have been tampered with contribute excess dirty emissions to communities located adjacent to highways and freight facilities, EPA New England regards tampering as a key issue in working toward environmental justice.
Company Must Dispose of Existing Hazardous Waste Before Accepting More Waste at its Facilities
EPA announced a settlement with US Technology Media (UST Media) to resolve alleged violations of hazardous waste environmental laws at UST Media’s facilities in Georgia, Ohio, and Utah. Under this settlement agreement, UST Media will pay a $200,000 civil penalty. This settlement resolves alleged violations of the Resource Conservation and Recovery Act (RCRA) and related state laws and regulations.
“US Technology Media placed the communities around its facilities at increased risk of exposure by failing to properly manage its hazardous waste” said Acting Assistant Administrator Larry Starfield for the EPA’s Office of Enforcement and Compliance Assurance. “This settlement agreement will ensure all future handling of hazardous waste by US Technology Media is done in compliance with environmental regulations.”
The alleged RCRA violations include improper management and storage of hazardous waste without a RCRA permit. UST Media generated a spent blast media (SBM) that is toxic for cadmium, chromium and lead and accumulated it at all three of UST Media’s facilities. As part of this settlement, UST Media will cease receipt of SBM at all facilities until the company disposes of the 3.4 million pounds of this material currently on site in compliance with the Consent Agreement. If the company chooses to accept hazardous SBM in the future, it will do so in compliance with all applicable hazardous waste laws.
The Consent Agreement and Final Order became effective on November 15, 2021.
Stellantis Cited for Air Emissions
The Michigan Department of Environment, Great Lakes, and Energy (EGLE), Air Quality Division (AQD) announced it is taking escalated enforcement
action against Stellantis. The enforcement action will address several violation notices
issued to the Detroit Assembly Complex Mack and the Warren Truck Plant, including odor violations and not installing pollution control equipment required by their air permits to collect, control, and reduce emissions.
"Escalating enforcement in a case where pollution control equipment was not installed properly, causing odors and health concerns from the community, is vital. The requirements in an air permit are necessary to protect the community. If the permit is not followed, companies must be held accountable." said Chris Ethridge, AQD field operations supervisor.
The enforcement action will contain a monetary penalty, a compliance plan and may include a Supplemental Environmental Project
. The public will have an opportunity to view and submit comments before the enforcement action is finalized. Further information about the public's involvement will be provided at that time.
The results of escalated enforcement can take time. During this time, Stellantis will continue to fix the ductwork and any other issues with the equipment installation. AQD staff will be vigilant in inspecting and monitoring the source as well as responding to any complaint which may come in.
Additionally, EGLE has requested the help of the United States Environmental Protection Agency in conducting some air monitoring in the area around the Detroit Assembly Complex with their mobile lab. This monitoring was done on Nov. 16 and 17. Results of the monitoring will be provided once it is complete. Additional air monitoring also is planned.
Information about this enforcement action, such as violation notices and the company's response to those violation notices may be found online. Current permits, inspection reports, stack tests, and how to contact EGLE with a complaint, comment, question or concern can be found at EGLE's Stellantis webpage
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