Regulatory Environment for Colored Mulch Industry

By: Michael Chase, Corporate Counsel, ChromaScape Inc.

Running a business is hard enough – you have to deal with competition, finances, employees and customers. Today there’s also the challenge of red tape. In the past, certain businesses and companies polluted the environment, ran unsafe operations that injured workers, and did other things that made the public cry out for government to take action. This has led to a regulatory web of restrictions that is difficult for attorneys to keep up with, let alone for business owners. This article will highlight a few of the regulations that the colored mulch industry should be aware of.

Common Law Torts: Before the early 1900s, common law principles were the main legal protection for people. If your neighbor was doing something harmful to you, you sued him under a recognized claim called a “tort” and the court had the power to make him stop and to make him repay you for damages. If his ox escaped and caused damage to your home, you could sue him under the tort claim of negligence for allowing the ox to get loose. If he deliberately came and hit you, he could be sued for the tort of battery. There are several others.

Common-law tort principles were simple in some ways – you had a clearly identified “victim,” a clearly identified “problem causer” (called a “tortfeaser”) and damages were the amount of money necessary to make the injured party whole again. But there was a big problem – the common law didn’t get active until someone was actually injured. If your neighbor bought a few tons of dynamite and liked to play with matches, you couldn’t sue until after the explosion. A more pro-active set of rules was necessary.

Government Agencies: In the late 1800’s and early 1900’s, the government allowed Congress to delegate entire areas of law to administrative agencies that specialized in one area. Congress passed legislation authorizing many agencies to regulate business activities in order to prevent harm. Each agency has the power to regulate a certain area of commerce, and no one coordinating group decides regularly which agency controls what. Therefore, there are many agencies and many rules to comply with.

Mulch producers should be aware that the Federal Trade Commission has authority to regulate truth in packaging – including quantities in a bagged product – so if your two cubic-foot bags of mulch don’t contain two cubic feet of mulch, there can be penalties.

The Occupational Health and Safety Administration (OSHA) has a variety of regulations aimed at keeping workers safe from accidents and injuries. Punishments for failing to adhere to the OSHA rules include warnings, fines, and in extreme cases, immediate shut down until an operation’s problems are corrected.

The NPDES – National Pollutant Discharge Elimination System - requires that anyone who discharge pollutants into the watershed must obtain permits from the EPA - which has the authority to regulate how much (if any) of each pollutant is permitted to go into the water supply. This law also has clauses prohibiting the outside storage of equipment that was not specifically designed for outdoor operation and of inoperable equipment.

There are, of course, other federal laws, including RCRA, CERCLA, TSCA, wetland regulations and even the Endangered Species Act that may affect particular producers in particular locations. In addition to the federal laws, many state agencies and local governments have their own agencies and regulations that must be followed under penalty of law.

With so many laws in place, it’s easy for someone to get frustrated and to say, “Well, I’ll worry about that when they find out, and I’ll tell them I didn’t know.” Remember, ignorance of the law is no excuse. The fact that someone doesn’t know it’s illegal to rob a bank doesn’t let him off the hook for robbing it. That same philosophy is in place with all these regulations. Amerimulch advises its’ customers to be proactive in learning about local, state, and federal regulations that affect their businesses. One good way is to join business associations such as the local chamber of commerce and the Mulch and Soil Council (MSC). These groups help you to learn what’s being looked at by the regulatory bodies in order to comply with the rules and operate profitably, safely, and legally.