2012 has been a relatively quiet one for environmental health and safety (EH&S) compliance personnel. Fewer new laws are enacted in election years, because some or all of the lawmakers are busy running for election or re-election.
Rule-making also tends to be scarcer, and less controversial too, when the President or Governor is running for re-election. It just makes sense not to risk causing trouble for your boss by promulgating something contentious. If your folks win you can do the Big Thing next year and, if you do have a new boss, calculations will have changed. I can’t say with certainty that’s what has happened to our federal government this year, but the facts fit those patterns. Most noticeably, federal agencies simply skipped their deadlines to issue Semi-Annual Regulatory Agendas during 2012…
So what did happen in 2012?
National Legislation – Much Ado About Nothing
With Congress split between Senate Democrats and House Republicans, Congress enacted very little environmental legislation in 2012:
- In September, Congress extended EPA’s authority to charge fees for pesticide re-registration through September 2014.
- In October, Congress revised RCRA to direct EPA to develop and implement an electronic manifest system within 3 years.
EPA – Slower Progress, Mostly on Small Things
The U.S. Environmental Protection Agency (EPA) has been a political lightning rod throughout President Obama’s first term. It started by reversing a number of the Bush Administration’s major revisions to environmental laws—particularly those involving climate change and air quality. Then it pressed forward…but at a much slower pace in 2012.
- In April, EPA revised secondary National Ambient Air Quality Standards (NAAQSs) for NO2 and SO2 (in July, the Court of Appeals for the District of Columbia Circuit upheld 2010 changes to the primary NAAQS for NO2).
- In June, the D.C. Circuit confirmed EPA’s Clean Air Act authority to regulate greenhouse gases, validating rulemakings from recent years (Coalition for Responsible Regulation v. EPA).
- In August, the D.C. Circuit struck down EPA’s Cross-State Air Pollution Rule (CSAPR), invalidating EPA’s second major attempt to regulate upwind states to reduce downwind pollution (EME Homer City Generation, L.P. v. EPA).
- In December EPA responded to an earlier court order by revising its fine particle pollution (PM2.5) NAAQS.
- In October, EPA and the National Highway Transportation Safety Administration (NHTSA) issued GHG emission and CAFE standards for light duty vehicles for 2017 and subsequent model years.
- In February, EPA issued a revised Construction General Permit (CGP) for stormwater releases, replacing its 2008 version.
Emergency Planning and Community Right-to-Know Act
- In April, EPA gave Indian tribes primary authority for Form R reporting for facilities within their boundaries, taking that authority from states.
- In July, EPA revised Tier I and II reporting requirements, effective January 1, 2014, to revise required chemical storage and facility emergency contact information, and to require disclosure as to whether the facility is also subject to extremely hazardous substance (EHS) and/or accidental release prevention (ARP) requirements.
Federal Trade Commission – More Rigorous Guidelines for Environmental Marketing
In October, FTC revised its “Guides for the Use of Environmental Marketing Claims” (“Green Guides”) for the first time since 1998. As I wrote in my blog earlier this year, these guides formalize administrative standards, practices, and interpretations FTC developed while investigating questionable environmental representations made by marketers. They are composed of general principles and specific guidelines, followed by examples that generally address a specific deception concern. The latest revisions strengthen longstanding guidance governing claims of “compostability,” “degradability,” and others. They also add new guidance, for claims such as “carbon offset” and “made with [contains] renewable materials.”
OSHA – One Big Thing
The Occupational Safety and Health Administration (OSHA) issued one hugely important rule in 2012—massive revisions to its Hazard Communication Standard (HCS or Hazcom). As I discussed in my earlier blog, these revisions are the culmination of six years of domestic rulemaking, and an attempt to catch up with twenty years of international work alongside other countries on the Globally Harmonized System of Classification and Labeling of Chemicals (GHS). OSHA's revised HCS conforms to provisions GHS issued in 2002.
The revised Hazcom is replacing guideline-driven MSDSs, with standard-driven Safety Data Sheets (SDSs) designed to provide more detailed and rigorous descriptions of chemical hazards and how to protect workers against them. Accompanying changes to Hazcom also tighten labeling and worker training requirements. OSHA is trying to make the change universal by targeting complementary requirements to manufacturers and importers, distributors, and end-use employers. Compliance is required no later than staggered deadlines in 2013-16, but manufacturers and other employers could have begun as early as May 25, 2012.
In addition, OSHA issued technical revisions and updates to a number of its rules. Since many employers follow the latest editions of professional standards (e.g., from the American National Standards Institute) these revisions have little impact aside from easing enforcement.
What’s Ahead in 2013?
As Congress remains split between the parties, statutory changes seem unlikely, unless the Democrats agree to roll back some regulations as trade-offs in fiscal or budgetary negotiations. In contrast, federal administrative agencies are already announcing plans to move ahead on new rules, including some that were side-tracked during 2012. Although past rhetoric is never a guarantee of future performance, the following actions have been announced:
EPA says it will move forward with delayed rules, particularly CAA rules governing greenhouse gas emissions.
OSHA says it will issue national Injury and Illness Prevention Program (I2P2) rules, making mandatory voluntary guidelines it issued in 1989 (and which a handful of states already require). See my blog for more.
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 25 years. He was involved in developing 16 existing products, including Environmental Compliance: A Simplified National Guide, Greenhouse Gas Auditing of Supply Chains and The Complete Guide to Environmental Law.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: email@example.com.