Audit, Compliance and Risk Blog

Jon Elliott

Recent Posts

Are My Machines Guarded To Prevent Injuries?

Posted by Jon Elliott on Tue, Nov 06, 2018

The Occupational Safety and Health Administration (OSHA) and state worker protection agencies require employers to “guard” moving portions of machines and powered equipment, to prevent entanglements, pinches and amputations. OSHA sets general requirements for machine guarding under its Machine Guarding Standard, plus specific requirements for six different types of equipment in separate standards.

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

Finding and Correcting Workplace Mold Infestations

Posted by Jon Elliott on Tue, Oct 23, 2018

Summer brought its inevitable share of rain, and even flooding and hurricanes in some places. Residual moisture increases the possibility of mold infestations, which might endanger people in your workplace. The Occupational Safety and Health Administration (OSHA) and state worker protection agencies have longstanding information and recommendations to employers for finding, evaluating and eradicating mold infestations in their workplaces. Recently, the Environmental Protection Agency (EPA) has just updated its mold cleanup as part of its broader initiatives to help employers plan for floods and hurricanes (I wrote about updated hurricane information here). EPA’s approach is narrower than OSHA’s, since it focuses on post-incident activities.

Organizations with facilities that may be subject to routine water infiltration or leaks, or sudden flooding from hurricanes or other events – should consider both sets of information.

Mold Basics

Molds and other fungi are both ubiquitous and plentiful--they have been estimated to make up a quarter of all the biomass on the planet. Molds are found almost everywhere, and can grow on just about any surface, as long as moisture and oxygen are available.

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Tags: Employee Rights, Employer Best Practices, Environmental risks, Environmental, mold, Health & Safety

EPA Proposes To Replace Obama-Era Rules For Coal Fired Power Plants

Posted by Jon Elliott on Tue, Oct 16, 2018

The Trump-era Environmental Protection Agency (EPA) has proposed to repeal and replace another of the Obama-era EPA’s signature efforts to reduce greenhouse gas (GHG) emissions. EPA has now proposed an “Affordable Clean Energy Rule”, to replace the “Clean Energy Plan” adopted in 2015 but stayed by litigation. The new rule softens the mandates in the earlier rule, and offers states more flexibility to design their own efforts to control greenhouse gas (GHG) emissions from existing fossil fuel-fired electricity generating units (EGUs) by eliminating Clean Power Plan requirements that states consider operational changes “outside the fenceline” of the regulated EGUs.

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Tags: EPA, ghg, Greenhouse Gas, Environmental, Environmental risks

Court Reinstates Delayed Accidental Release Prevention Revisions, While EPA Moves To Rescind Them

Posted by Jon Elliott on Tue, Oct 09, 2018

The ongoing administrative battle over the Environmental Protection Agency’s (EPA’s) Accidental Release Prevention (ARP) program requirements has had another skirmish. On August 17, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) lambasted EPA’s latest deferral of ARP requirement revisions as outside the agency’s Clean Air Act (CAA) authority, and otherwise “arbitrary and capricious,” and vacated that deferral. However, the Court did nothing about EPA’s pending proposal to rescind most of those changes and reinstate longstanding requirements that many see as inadequate.

What’s the Current Status of ARP Requirements?

ARP rules specify “regulated substances” and threshold quantities for which onsite incidents could produce harmful offsite consequences, “risk management plan (RMP)” requirements to be instituted by facilities in order to manage those risks, and associated procedural and reporting requirements. In the last week before President Obama left office, EPA completed a multi-year review of its ARP program, responding to his Executive Order Number 13650 from 2013 (I wrote about these revisions here). Then, when President Trump took office, EPA reversed course, repeatedly deferring the effective date of those revisions while the agency reviewed them. In June 2017 EPA issued the latest of these deferrals, citing pending petitions for review by industry groups, and the agency’s need to reconsider the matter to justify deferring the effective date of the (Obama era) revisions for 20 months.

In May 2018 EPA completed its review, and published a proposal in the Federal Register to rescind almost all these expansions and return ARP requirement to those in place before 2017 (I summarized the proposal here). EPA also included an alternative proposal that retained a few more elements, and requested public comment on both versions no later than July 30, 2018.

What Has the DC Circuit Just Decided?

The DC Circuit case was brought by environmental and health groups, supported by a number of state governments. They claimed that EPA’s 20 month deferral exceeded the three month limit provided the agency by the CAA. They also noted that the agency had offered no substantial justification for overturning a final decision (the January 2017 revisions) after a multi-year rulemaking.

The case was heard by a 3 judge panel of the DC Circuit (interestingly, the panel include Judge Brett Kavanaugh, whose nomination to the US Supreme Court is pending and who took no part in this decision). The remaining judges agreed with the plaintiff’s arguments, found EPA’s delay to be “arbitrary and capricious”, and vacated the deferral rule.

Now What?

With the deferrals gone, the 2017 revisions take effect as issued in the waning days of the Obama administration. After the first two Trump Administration deferrals, the revisions would have been effective in June 2017 with staggered compliance deadlines. Facilities were to ensure coordination of their onsite activities with offsite response agencies by March 2018, institute enhanced RMP activities by March 2021, and formally revise their RMPs by March 2022. On September 21, the Court issued another order directing EPA to begin enforcing the 2017 rules immediately. This means that the coordination requirements identified above are active, and other elements remain on their original phase-in schedule..

But EPA’s May 2018 proposal to rescind most of the January 2017 amendments was not part of this case, and so is unaffected. As of this writing EPA has not made any statement about further appeal of the August 2018 court decision, but it’s safe to assume that the agency is proceeding with its own May 2018 proposal – presumably paying attention to the procedural flaws highlighted in the court order. I expect EPA will eventually issue some version of its proposed regulatory roll-back, which will trigger further litigation about whether the dramatic change is justified by the rulemaking record.

Self-Assessment Checklist

Does the organization own or operate any facility with any “stationary source” subject to ARP requirements?

  • If so, has the organization considered the impacts on its operations and compliance position under potential revisions?

Where Can I Go For More Information?

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Tags: EPA, Environmental, Environmental risks, clean water

EPA is Considering a Regulatory Roadmap For Additional Uses of Asbestos

Posted by Jon Elliott on Tue, Oct 02, 2018

The Environmental Protection Agency (EPA) is expanding its attention to asbestos and its associated hazards, including both existing uses and possible new uses. EPA is undertaking these initiatives under the aegis of extension of its authority under the Toxic Substances Control Act (TSCA), enacted in 2016 Amendments to TSCA -- the “Frank R. Lautenberg Chemical Safety for the 21st Century Act.” (I wrote about provisions relating to existing chemical here, and for new chemicals and new formulations of existing chemicals here).

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Tags: EPA, Hazcom, Environmental, Environmental risks, tsca

OSHA Provides Planning and Response Advice Addressing Hurricanes

Posted by Jon Elliott on Tue, Sep 25, 2018

Federal agencies have marked the beginning of Atlantic hurricane season by reminding employers and the public of the risks from hurricanes, and how to plan for and respond to events. These include a compilation of advisory documents on the Occupational Safety and Health Administration (OSHA) website, which also includes links to additional information by the Federal Emergency Management Agency (FEMA), Centers for Disease Control and Prevention (CDC), and the National Hurricane Center. This information is too late to help people in the Carolinas who’ve been inundated by Florence, but does provide useful reminders.

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Tags: Environmental, Environmental risks, OSHA, EPA

Circuit Court Ends a Decade of Delay by Ordering EPA to Cancel a Hazardous Pesticide

Posted by Jon Elliott on Tue, Sep 18, 2018

The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA) empowers the Environmental Protection Agency (EPA) to define and regulate pesticides meeting statutory qualifications, providing extensive procedural directions how to do so. In addition, the Federal Food, Drug, and Cosmetic Act (“FFDCA”) authorizes EPA to regulate the use of pesticides on foods according to specific statutory standards, and grants EPA limited authority to establish tolerances for pesticide residuals on foods. These directions govern EPA’s analyses of applications for registration, ongoing evaluations of evolving scientific understanding and practical experience with pesticides that have been registered, and response to public comments and petitions (I provided a basic summary of FIFRA registration procedures here).

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Tags: EPA, Hazcom, Health & Safety, Environmental risks, Environmental

Are My Workers Protected Against Carcinogens?

Posted by Jon Elliott on Tue, Sep 11, 2018

The Occupational Safety and Health Administration (OSHA) and state worker protection agencies require employers to identify regulated carcinogens in their workplaces, to protect workers against hazardous exposures, and to provide information and training to reinforce those protections. OSHA regulations apply to dozens of chemical agents and other substances known to be human carcinogens, including 13 covered by a single “Regulated Carcinogen Standard.” Employers should also be aware that hundreds of additional chemicals are suspected carcinogens that should be considered.

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Tags: OSHA, Environmental, Environmental risks, Health & Safety, Employee Rights, Employer Best Practices, Hazcom

California Returns Statewide Greenhouse Gas Emissions to 1990 Levels

Posted by Jon Elliott on Tue, Sep 04, 2018

California is one of many jurisdictions around the planet attempting to reduce greenhouse gas (GHG) emissions to 1990 levels. Globally, this goal appears in the United Nations Framework Convention on Climate Change (UNFCCC) – signed in 1992 when the 1990 goal translated roughly into a goal to keep GHG emissions flat. California adopted its own 1990 goal in “AB 32” legislation enacted in 2006, by which time annual statewide emissions had increased significantly, and when business-as-usual emissions growth was projected to continue. As later quantified by the California Air Resources Board (ARB), AB 32 amounted to a commitment to reverse the state’s path, reducing GHG emissions by 15% instead of allowing them to rise by 15%. In July, ARB announced that the state has reached this 2020 goal, two years early.

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Tags: ghg, Greenhouse Gas, Environmental, Environmental risks, California Legislation

Federal Enforcement Falls in President Trump’s First Year

Posted by Jon Elliott on Tue, Aug 28, 2018

President Trump and his agency heads have been clear about their intent to reduce regulatory “burdens” on individuals and organizations. Meanwhile, however, they have tended to talk tough on crime. However, a new report shows that civil and criminal enforcement against corporations fell dramatically during their first year in office, compared with enforcement during President Obama’s term. In July, the nonprofit advocacy group Public Citizen published “Corporate Impunity – ‘on Crime’ Trump Is Weak on Corporate Crime and Wrongdoing.”

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Tags: EPA, Environmental, Environmental risks, Business & Legal, corporate social responsibility