Audit, Compliance and Risk Blog

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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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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In the last week before President Obama left office, the Environmental Protection Agency (EPA) completed a multi-year review of its Accidental Release Prevention (ARP) program for toxic catastrophe prevention, and adopted significant expansions of ARP requirements (I wrote about them here). EPA proposed ARP revisions in March 2016 (I blogged about them here). Then, when President Trump took office, EPA reversed course, repeatedly deferring the effective date of those revisions while the agency reviewed them. 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. 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.

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There are no national ergonomics requirements for employers, but California has just expanded its longstanding requirements, to add specific protections for hotel housekeepers. These new requirements complete review and rulemaking triggered in 2012 by a petition by a labor advocacy group, and are consistent with other requirements already administered by the state Division of Occupational Safety and Health (CalOSHA). The state’s efforts are also consistent with general guidance provided US Occupational Safety and Health Administration (OSHA). (OSHA has enforced its General Duty Clause against employers found to have ignored known hazards to their employees, since President Bush signed legislation in 2001 repealing OSHA’s own national ergonomics standard.).

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Automated External Defibrillators (AEDs) are appearing in more and more public spaces and workplaces. These electronic devices are designed to deliver an electric shock to a victim of sudden cardiac arrest, and could save thousands of lives every year:

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Although Environmental Health and Safety (EH&S) requirements target hundreds of micro-organisms (primarily viruses and bacteria), important hazards remain unregulated. Many await definitive scientific conclusions, but others need testing and control methodologies that would allow requirements to be designed and administered, sufficient regulator and regulated entity resources, and/or high enough political priorities. Until recently, one of these unregulated pathogens has been the legionella bacterium, first identified in 1976 as the cause of “Legionnaire’s disease,” which appears as a form of pneumonia.

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Since 1991, Safe Drinking Water Act’s (SDWA) Lead and Copper Rule (LCR) has required public water systems (PWSs) to take steps to protect their customers from hazardous levels of lead in drinking water. Even before the highly-publicized crisis in Flint, Michigan, the Environmental Protection Agency (EPA) has been working toward LCR revisions that would update and expand these protective measures (continuing ongoing efforts that produced revisions in 2000 and 2007).

In October 2016, EPA produced a White Paper announcing the “urgent need” for revisions, describing key issues and possible revisions, and projecting to propose extensive LCR revisions during 2017. However, since President Trump assumed office, EPA’s priorities are shifting and its resources are being reduced (for example, I wrote about EPA’s Back-to-Basics Agenda here). Most recently, EPA’s formal agency-wide regulatory agenda now postpones the issuance of a Notice of Proposed Rulemaking (NPRM) until January 2018 and a final rule until June 2019. While we await action, it’s worth considering how PWSs can reduce lead exposures, particularly since building owners and employers might consider improvements to plumbing and fixtures that could improve workplace water quality.

What Does LCR Require?

The LCR divides PWSs into three groups based on the numbers of customers served, and assigns tailored responsibilities for testing, corrosion control, source water treatment, and pipe replacement. The three groups are:

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One of California’s longstanding amplifications of national environmental health and safety (EH&S) programs is provided by “Proposition 65.” I summarized these provisions here. As I described, the main thrust of this 1986 state enactment is to provide warnings about potentially hazardous chemicals, to customers, workers, and other “potentially exposed individuals." Prop 65 provides sample texts for warnings, including “safe harbor” text for product labels and in-store signage. After 30 years, the state is revising these safe harbors to be more informative. Revised safe harbor text became available for use August 30, 2016 and replace their expiring predecessors on August 30, 2018. Since we’re half way through this two year transition, it’s a good time to review.

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The presence of “hazardous” materials in your workplace can trigger a wide variety of environmental health and safety requirements. The Occupational Safety and Health Administration (OSHA) and state worker protection agencies issue standards to protect workers during occupational handling and storage. The US Environmental Protection Agency (EPA) and state environmental agencies issue requirements governing the management of hazardous wastes, and emissions to a variety of environmental media (air, water and land).

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Nearly all regulatory laws provide for civil – and sometimes even criminal – penalties for noncompliance. Penalty amounts (“XXX dollars per day of violation” for example) are typically adopted as part of the original legislation. But over time, the relative sting of these penalties declines with inflation. To counteract the possibility that less painful penalties will be less effective incentives for compliance, U.S. federal law has directed most agencies to make periodic “cost of living” adjustments to maximum available civil penalty levels (there are no provisions for standing periodic adjustments to criminal penalties).

How Did These Requirements Work During 1990-2016?

The first version of this approach was enacted by the Federal Civil Penalties Inflation Adjustment Act of 1990, which directed the President to report annually on any adjustments made under existing statutory authority, and to calculate what such adjustments would have been if more agencies had the authority to make them.

Congress amended the Act in 1996 to require most agencies to make inflation adjustments every four years, but precluding adjustments to penalties under the following:

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