Audit, Compliance and Risk Blog

EPA responds to coronavirus by offering compliance waivers

Posted by Jon Elliott on Tue, Apr 07, 2020

On March 26, 2020 the Environmental Protection Agency (EPA) issued a temporary enforcement policy, effective retroactively to March 13 and continuing until repealed or revised. The agency cites the overarching need for public health and safety, and anticipates that “the pandemic may affect facility operations and the availability of key staff and contractors and the ability of laboratories to timely analyze samples and provide results.” In particular, EPA references likely personnel shortages, and proliferating travel and social distancing restrictions. Accordingly, EPA’s new policy sets out conditions under which an entity can reduce or suspend its compliance activities, including monitoring and reporting, for the duration of a period during which “compliance is not reasonably practicable.”

Because the new policy does not provide useful thresholds or criteria for coronavirus-induced impracticality, there’s no realistic way to anticipate its impacts. Regulated entities and their organizations have generally expressed appreciation, while environmental and other organizations that distrust the contemporary EPA have generally expressed outrage. The remainder of this note will summarize the scope and organization of the new policy, leaving the reader to judge how it may be implemented.

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Tags: Coronavirus, Protecting employees, Safety and Health at Work, Pandemic

US Employers: It’s Time For New I-9 Forms

Posted by Jon Elliott on Wed, Apr 01, 2020

North American employers are required to verify new employees’ identities and eligibility to work in the country. In the United States, employers’ inquiries must confirm eligibility to work in the U.S. when an employee is actually being hired (not just applying), using Form I-9 (Employment Eligibility Verification), which is issued and administered by the U.S. Citizenship and Immigration Services (USCIS) unit of the federal Department of Homeland Security (DHS). USCIS has revised the I-9 form – the new form is dated October 21, 2019 but was only formally published on January 31, 2020. The new version includes minor changes from the preceding one (which was dated July 17, 2017 and set to expire August 31, 2019 but subject to extended viability by USCIS pending approval of the newest version).

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Tags: Business & Legal, Employer Best Practices, Health & Safety, Employee Rights

Protecting employees against coronavirus at operating workplaces

Posted by Jon Elliott on Wed, Mar 25, 2020

How can employers protect workers against coronavirus exposures? In expanding parts of the county, most employers do so by complying with applicable Shelter in Place orders. Workplaces still in operation face more complicated occupational health situations. 

The Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC; directly and through its subsidiary National Institute for Occupational Safety and Health (NIOSH)) and other occupational health agencies issue guidelines for workplace safety, which can be used in locations that are still open. (This approach is typical; I wrote about their Zika Virus guidelines HERE). In addition, the Equal Employment Opportunity Commission (EEOC) provides interpretive guidance on how to apply disabilities and anti-discrimination laws to the design and implementation of protective programs.

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Tags: OSHA, EEOC, Coronavirus, Protecting employees, CDC, Safety and Health at Work, Pandemic

EPA and the Corps of Engineers Finish Redefining “Waters of the United States”

Posted by Jon Elliott on Wed, Mar 18, 2020

On January 23, 2020 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) finalized revisions to narrow their joint regulatory definitions of “waters of the United States”, applying authority under the Clean Water Act (CWA). The agencies characterize this narrowing as an increase in certainty for stakeholders, accomplished by eliminating some of the site-specific discretion that the 2015 rules provided to permit writers.

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Tags: Business & Legal, Environmental risks, Environmental, EPA, clean water

Chemical Safety Board Finalizes Chemical Incident Reporting Rule

Posted by Jon Elliott on Fri, Feb 28, 2020

The federal Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB –conducts independent investigations of major chemical accidents, issues accident-specific findings, and offers specific or general recommendations for improved chemical handling and regulation (I wrote about one set of proposals here). For the thirty years since its authorization in the 1990 Clean Air Act (CAA) Amendments, CSB was also directed to establish chemical accident reporting regulations, but instead relied on forwarded reports from the National Response Center (NRC) and Occupational Safety and Health Administration (OSHA), and on media reports of chemical releases, as the starting point for determining when and how to investigate.

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Trump Administration Proposes to “Modernize” Federal Environmental Impact Assessments by Narrowing Them

Posted by Jon Elliott on Tue, Feb 25, 2020

The federal Council on Environmental Quality (CEQ) has proposed to revise its regulations administering the National Environmental Policy Act (NEPA) of 1969. NEPA requires federal agencies to assess the environmental effects of their proposed actions, and incorporate this information into their decisions. Government-wide guidance is provided by the White House’s CEQ, established by NEPA and appointed by the President. CEQ issues formal regulations that agencies must follow, and guidance documents that provide additional advice.  CEQ also reviews agencies’ NEPA implementation programs, and publishes annual national Environmental Quality Reports.

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Tags: Business & Legal, Environmental risks, Environmental, EHS, EPA, clean water, site auditing, greenhouse

Trump Administration 2021 Budget Proposal Would Cut EPA

Posted by Jon Elliott on Wed, Feb 19, 2020

On February 10, the Trump Administration issued its budget proposal for federal Fiscal Year (FY) 2021 (October 1, 2020 through September 30, 2021), entitled “A Budget for America’s Future.” The drastic changes in budgeting for environmental health and safety (EH&S) regulation are consistent with previous proposals from this administration. They have no chance of adoption, particularly given the Democrats’ control of the House of Representatives, but still represent a fair summary of the President’s continuing priorities.

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Tags: Business & Legal, Environmental risks, Environmental, EPA

Appeals Court Affirms OSHA’s Approach to Workplace Air Testing and Respiratory Protection

Posted by Jon Elliott on Tue, Feb 11, 2020

The Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. (I wrote about recent revisions here). Late last year, a federal appeals court upheld OSHA’s approaches to workplace testing requirements under the Respiratory Protection Standard (Standard) (Secretary of Labor v. Seward Ship's Drydock, Inc.).

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Tags: Business & Legal, Employer Best Practices, Health & Safety, OSHA, Employee Rights

Ontario Courts Reaffirm the Weave of the Corporate Veil

Posted by Jon Elliott on Fri, Feb 07, 2020

One of the enduring benefits of the corporate form is the treatment of corporations as separate “people,” distinct from their owners when questions of legal rights, responsibilities and liabilities arise. This separation extends not just to individual investors and shareholders, but in most circumstances to the corporate directors and officers who decide what their corporation does. Common law courts and federal and provincial corporation statutes define the exceptions – usually based on what are called “piercing the corporate veil” between the company and its controlling minds, or by deciding that those controllers run the corporation as an “alter ego” rather than as a distinct legal person. In recent months, two cases in Ontario have given courts the opportunities to review and reaffirm these traditional approaches.

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Tags: Corporate Governance, Business & Legal, International, Canadian, directors, directors & officers

Northeastern States Propose Regional Cap-and-Trade Program to Reduce Greenhouse Gases From Transportation

Posted by Jon Elliott on Tue, Feb 04, 2020

After nearly a decade of talking and planning, most of the northeast and middle Atlantic states (plus the District of Columbia) in the Transportation and Climate Initiative (TCI) have proposed a cap-and-trade program intended to reduce greenhouse gas (GHG) emissions from transportation. On October 1, TCI issued a “Framework for a Draft Regional Policy Proposal,” and on December 17 a formal “Draft Memorandum of Understanding (MOU)” that jurisdictions can sign to formalize their participation. If things go well, the formal program should begin in 2020.

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Tags: Business & Legal, Environmental risks, Environmental, Greenhouse Gas, ghg, cap-and-trade