Audit, Compliance and Risk Blog

On October 7, 2023, California’s governor Gavin Newsom signed two important bills expanding climate-related reporting requirements for targeted organizations doing business in the state – SB 253 (Wiener) (Climate Corporate Data Accountability Act) and SB 261 (Stern). These requirements will be administered by the California Air Resources Board (ARB), which already includes most state greenhouse gas (GHG) regulatory requirements within its extensive air quality and climate authority (centered on the Global Warming Solutions Act of 2006 (AB 32). The remainder of these note discusses these new requirements.

On October 24, 2023, WorkSafeBC, British Columbia’s provincial occupational health and safety (OHS) regulator and workers’ compensation overseer, issued a reminder to employers to address the hazards of workplace slips, trips and falls. The reminder began with a recitation that approximately 20 percent of all workplace injuries in the province relate to slips, trips, and falls. The agency also reported that “in the past six years, almost 41,000 workers in B.C. suffered slip-trip-and-fall injuries, including fractures, sprains, and dislocations.” The agency notice follows these statistics with reminders of what employers can and should do to reduce the likelihood and severity of these injuries. The remainder of this note summarizes this information.`

Throughout North America, Canadian occupational health and safety (OHS) agencies and US occupational safety and health (OSH) agencies administer and enforce worker protection laws. These laws require extensive employer efforts to protect employees – although in some situations it’s unclear which employer(s) are responsible for which workers. These complex situations include construction sites where one or more landowners or property occupiers hire one or more contractors to performer work. In November 2023 the Supreme Court of Canada deadlocked four-to-three-to-one in a case involving liability for a municipal “owner” that had attempted to contract all responsibilities (and potential liabilities) to the contractor (“constructor”) hired to repair a municipal water main, after a worksite death. (R. v. Greater Sudbury (City)) Because the Supreme Court deadlocked, the Ontario Court of Appeal decision finding the city liable becomes the law of the case, overturning many years of practice in which owners contracted-out OHS responsibilities to their constructors.

Regulatory and market-based programs are steadily increasing opportunities for entities to contract with projects that reduce emissions of carbon dioxide and other greenhouse gases (GHGs), and to claim credit for those “carbon offsets.” Some such claims are used to satisfy formal air quality and GHG reduction requirements, while others are touted to enhance entities’ “green” credentials. Programs around the globe compile such claims, and some provide third party validations – but possible “greenwashing” of unjustified claims remains a significant concern. To address these concerns, California has just enacted legislation to regulate Voluntary Cabon Market Disclosures and penalize noncompliance (Assembly Bill (AB) 1305, Gabriel). These requirements synthesize the most thorough voluntary disclosure programs, and are intended not only to protect California consumers but to codify disclosure standards. The rest of this note summarizes carbon offsets, and AB 1305 requirements.

On October 31, 2023 the US Environmental Protection Agency (EPA) tightened its reporting requirements for per- and polyfluoroalkyl substances (PFAS) – frequently called ‘forever chemicals” because they biodegrade very slowly – under its Toxic Release Inventory (TRI) program. These changes finalize a proposal issued in (which I wrote about HERE), and reflect EPA’s agency-wide efforts to tighten controls on PFASs proposed in December 2022 (I wrote about these efforts HERE). The new TRI revisions apply to reports beginning in calendar year 2024. The remainder of this note summarizes these changes.

On October 19, 2023, the US Environmental Protection Agency (EPA) proposed to establish requirements for the management of hydrofluorocarbons (HFCs) potentially released from equipment during maintenance or other services, and manage spent HFCs.. These rules support US efforts to implement the 2016 Kigali Amendment to the United Nations-sponsored Montreal Protocol on Substances that Deplete the Ozone Layer (which I wrote about HERE), and codified in the December 2020 coronavirus relief bill (American Innovation and Manufacturing Act of 2020 (AIM Act; which included dozens of unrelated provisions within its 5,593 pages). EPA adopted its over-arching HFC phase-down rules in September 2021 (I wrote about them HERE), and continues to adjust and refine their requirements. The remainder of this note summarizes EPA’s new proposal, which would impose requirements using authority under the Clean Air Act (CAA) and the Resource Conservation and Recovery Act (RCRA).

On September 13, the US Environmental Protection Agency (EPA) added to its website a portal with information about the agency’s many regulatory, research and informational efforts addressing carcinogen hazards and controls. This information supports the Biden Administration’s “Cancer Moonshot.”  EPA undertakes carcinogen control efforts by applying legal authority under many of the environmental protection statutes it administers. The remainder of this note summarizes the agency efforts identified on EPA’s new web portal.

The Canadian Environmental Protection Act of 1999 (CEPA) provides a variety of federal environmental protection provisions throughout Canada. The Minister of the Environment and Climate Change (the Minister; who oversees Environment and Climate Change Canada (ECCC), and to which I attribute CEPA authorizations in this note) prepares regulations (including lists of chemicals regulated in different circumstances), and conducts additional planning, regulatory and enforcement activities. In particular, CEPA authorizes the Minister to issue Pollution Prevention Notices (P2 Notices) directing targeted entities to prepare P2 Plans to improve management of any listed “Toxic Substance” in order to reduce environmental impacts. The rest of this note summarizes P2 requirements, which will be revised to conform with CEPA amendments adopted this summer by Bill S-5, the “Strengthening Environmental Protection for a Healthier Canada Act” (S-5), which received Royal Assent on June 13, 2023.

Several national laws empower the US Environmental Protection Agency (EPA) to set standards for the cleanup of contamination that resulted from accidental or deliberate releases of chemicals and other materials onto land or into water. EPA’s actions include direct requirements for cleanup by responsible parties, and also inform other parties’ evaluations of if and how to prepare contaminated areas for reuse – often referred to as “brownfields” since they’re assumed to be dirtier than never-used “greenfields.” The remainder of this note discusses EPA’s 73 page “Climate Smart Brownfields Manual,” issued by the agency in 2021

On September 8, 2023, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted revised definitions of “waters of the United States” (WOTUS) which is a critical but undefined term in the Clean Water Act (CWA). As I’ve discussed repeatedly, the agencies, potentially regulated entities, and others have disputed possible definitions for decades. Most recently, in May 2023 the US Supreme Court adjusted its own precedent to over-rule definitions adopted by EPA and the Corps in January 2023 (I discussed the January rules HERE, and the Supreme Court decision (Sackett v. EPA) HERE). The rest of this note identifies the newest regulatory (re)definitions, adopted to conform the agencies’ regulations to the latest Supreme Court guidance restricting the types of wetlands potentially considered to be WOTUS subject to CWA regulation.