The Clean Air Act (CAA) directs the Environmental Protection Agency (EPA) to define “hazardous air pollutants (HAPs)” that may pose acute health hazards, and to impose regulations to reduce those hazards. EPA requires permits for “major sources” of HAPs based on “Maximum Achievable Control Technologies (MACT),” and lesser controls for non-major “area sources.” Since the Trump Administration took office, EPA has pursued several initiatives to make it easier for sources to reclassify from “major” to “area” in order to reduce their regulatory responsibilities. For example, in January 2018 EPA ended a decades-old policy declaring that every emission source that met major source criteria at the time a MACT became effective was “once in, always in” and could not requalify as a less-regulated area source by accepting legally binding controls that reduce its “potential to emit (PTE).” (I wrote about this change here).Read More
Audit, Compliance and Risk Blog
Although an ever-expanding range of laws prohibit workplace harassment, the Court of Appeal for Ontario has now ruled that harassment is not a free-standing common law tort in that province. This ruling reverses a trial court ruling by the by the provincial Superior Court of Justice that shocked employment law in 2017. This ruling returns workplace harassment to the realm of statutory and regulatory requirements and prohibitions, which certainly isn’t unambiguous, but at least offers more structured frames of reference. The case is Merrifield v. Canada (Attorney General), and it litigates a complaint between a member of the Royal Canadian Mounted Police (RCMP) and his employers.Read More
Since the Trump Administration reversed the federal government’s agreement with California for joint motor vehicle greenhouse gas (GHG) standards, federal and state agencies have moved steadily to assert their respective authorities and to sue their counterparts. However, on July 25, 2019 California and 4 major vehicle manufacturers announced a voluntary agreement that eases the state requirements somewhat while making the looser federal standards irrelevant for those companies – and for any additional manufacturers that might join later.Read More
Although workplace air quality concerns usually focus on contaminants produced by workplace activities, this summer’s wildfire season provides a reminder that unsafe workplace air may also enter from outside and offsite. On July 18, California’s Occupational Safety and Health Standards Board adopted an emergency rule (8 CCR 5141.1) requiring worker protection from wildfire-produced bad air, which the state’s Division of Occupational Safety and Health (Cal/OSHA) began to enforce effective July 29. In California, you should prepare to comply; if you work someplace else but could be affected by wildfires then this rule provides a useful basis for approaching the issue.Read More
The Environmental Protection Agency (EPA) has just issued rules that repeal and replace one of the Obama-era EPA’s signature efforts to reduce greenhouse gas (GHG) emissions. Effective September 6, EPA’s new “Affordable Clean Energy Rule” (ACE) will replace the “Clean Power Plan” adopted in 2015 but stayed by litigation (I wrote about the proposed CPP here). As anyone who has compared the Obama and Trump Administrations' approaches to climate change would expect, the new rule reduces the old rule’s requirements. It softens the mandates in the earlier rule, and offers states more flexibility to design their own efforts to control GHG emissions from existing fossil fuel-fired electricity generating units (EGUs) by eliminating CPP requirements that states consider operational changes “outside the fenceline” of the regulated EGUs.Read More
In the last few years, and particularly with the advent of the #MeToo movement, some employers may have seen a rise in the number of harassment complaints in the workplace, including sexual harassment complaints. Employers under federal jurisdiction have been affected as well.
However, the current legal framework surrounding harassment and violence in federally regulated workplaces is fragmented. The results of many public consultations have shown that this framework is not currently designed to adequately address occurrences of sexual harassment and sexual violence.
In that context, in the past 18 months, significant changes have been proposed to the current legislation to address workplace harassment situations.
“I AGREE.” Anyone who engages in online commerce has likely had to click on that button countless times. The question is whether contracts made under these and similar circumstances are enforceable. The typical lawyer’s answer would likely be “it depends,” but those drafting online agreements, such as privacy policies, terms and conditions (T&C), and end-user license agreements (EULA), can take certain measures to make certain such agreements are ultimately enforceable.Read More
Among its many provisions, the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA, in this case Section 304) requires facilities to report releases of specified hazardous and extremely hazardous substances, if the release exceeds an applicable threshold reportable quantity (RQ). The Environmental Protection Agency (EPA) administers these requirements, and has just approved an exemption for emissions from animal wastes at farms (this exemption tracks one amended into the Superfund law (CERCLA) in 2018). Other types of facilities and activities are still subject to these reporting requirements, so it’s a good time to review them.Read More
Since President Trump took office, the Environmental Protection Agency (EPA) has taken a number of steps to narrow benefit-cost analyses, reversing expansive approaches used during the Obama Administration and narrowing the scope of “justifiable” environmental and health regulations. The latest such step appears in a May 13 memorandum from EPA Administrator Wheeler to his Assistant Administrators.Read More
Since President Trump took office, I’ve written in this space a number of times describing specific executive and regulatory initiatives to freeze or reverse environmental regulations. They’ve largely conformed with the President’s antipathy for such regulations, and his appointees’ vigor. Environmental and health advocates have challenged all these changes, continuing to yield court decisions confirming the limits of executive and administrative authority to impose changes (In January 2017 I summarized the limits on various approaches here).Read More