Audit, Compliance and Risk Blog

Last weekend’s disastrous earthquakes in Nepal are a reminder that natural disasters can strike anywhere. Employers can and should plan for a broad range of events, and can apply guidance from occupational safety and health agencies standards when doing so. The U.S. Occupational Safety and Health Administration (OSHA) requires employers with specified activities to prepare and implement emergency action plans (EAPs), provides guidance for EAPs, and recommends that all employers prepare these plans. Employers can use this structure to prepare for earthquakes.

As most readers know, employers have very broad responsibilities to provide their employees with a workplace that is “free from recognized hazards.” To meet this Employer’s General Duty, employers must do more than just identify and comply with applicable safety standards issued by the Occupational Safety and Health Administration (OSHA) and its equivalent (I discussed this general provision here). Employers also must take other – unspecified – steps to identify and “recognize” unregulated hazards. One important version of these steps is to watch for non-binding recommendations from OSHA, the National Institute for Occupational Safety and Health (NIOSH), and other credible organizations in industry, government and academia,

Recent U.S. Presidents have issued a series of executive orders (EOs) that steadily expand federal agencies’ responsibilities to conduct their own activities in environmentally sound ways. President Clinton issued a number of EOs during 1993-1999 as part of “Greening the Government,” which were expanded upon and superseded by President George W. Bush’s 2007 EO Number 13423 “Strengthening Federal Environmental, Energy, and Transportation Management.” Since taking office, President Obama has continued these expansions. Last month, he issued EO Number 13693 to require “Planning for Federal Sustainability in the Next Decade.” This EO also revokes a number of President Obama’s own relevant EOs, and President Bush’s EO Number 13423.

Although the pace of fracking projects rises and falls with changes in oil prices, regulation of fracking develops at slower and steadier rates. This month, the U.S. Bureau of Land Management (BLM) has completed nearly five years of rulemaking by revising its rules for oil and gas production from federal and Indian lands, to add requirements for hydraulic fracturing projects. These rules update and expand drilling permit rules in place for three decades. BLM reports that production from over 100,000 onshore oil and gas wells on federally-managed land accounts for 11 percent of U.S. natural gas supply and five percent of its oil, and that over 90% of wells currently being drilled on these land involve hydraulic fracturing.

My most recent blog provided a short summary of chemical evaluation and reporting requirements under the Toxic Substances Control Act (TSCA) of 1976. These requirements apply when a manufacturer or importer is preparing to introduce a “new chemical substance” into commerce in the U.S., to provide the Environmental Protection Agency (EPA) with information to evaluate whether chemical hazards require regulatory restrictions (up to and including outright bans) to provide adequate protections to human health and the environment. TSCA does not include any blanket requirement for ongoing studies or updated evaluations of an “existing chemical substance” after it has entered commerce—including those already in commerce when TSCA took effect, so some chemicals have never undergone a regulatory review of their hazards.

Although day-to-day environmental regulations tend to focus on water quality, water quantity is also an issue … and can be a critical one. Here in California, we’re experiencing the third year of a drought of historic proportions; our Sierra Nevada snowpack is at 18% of average as winter ends. As the drought continues, state and local agencies are taking stronger and stronger measures to limit water use. The State Water Resources Control Board SWRCB) has just proposed to expand emergency regulations adopted in July 2014.

Although it’s been in the 70’s here in California, employers in most parts of the continent should be worrying about protecting workers against the extremely cold weather. Occupational safety and health regulators include “environmental” hazards as those that may require employers to provide their employees with personal protective equipment (PPE), and employers also bear a “general duty” to protect workers against recognized hazards. These requirements cover potential harm from extreme temperatures including cold. The U.S. Occupational Safety and Health Administration’s (OSHA) PPE standards address cold, and U.S. and Canadian guidelines apply general worker protection principles to "cold stress" hazards.

A wide variety of federal, state and even local laws apply environmental, health and safety (EH&S) protection requirements to chemicals. EH&S compliance personnel are accustomed to complying with chemical management requirements imposed by the Environmental Protection Agency (EPA), Occupational Safety and Health Administration (OSHA), and their state equivalents.

Adopted half a century ago, the Solid Waste Disposal Act (SWDA) of 1965 is one of the first federal statutes in the modern era of environmental protection. SWDA focused originally on worries that a “landfill crisis” combined predictions that landfills would soon be too full to provide disposal capacity, and longstanding concerns that poorly designed municipal and industrial landfills might not protect public health. The Environmental Protection Agency (EPA) has applied SWDA authority to adopt landfill standards, which are administered by state and local governments nationwide.