Audit, Compliance and Risk Blog

Important Clean Air Act (CAA) elements direct the US Environmental Protection Agency (EPA) to reduce emissions of hazardous air pollutants (HAPs). Unlike the conventional pollutants associated with regional problems such as smog or acid rain, HAPs represent a list of 187 specific air toxics that can be harmful in low concentrations in much smaller areas. HAPs are subject to tighter controls and lower permitting thresholds.

The Clean Water Act (CWA), as amended after the Exxon Valdez spill by the Oil Pollution Act of 1990, imposes oil spill planning requirements on onshore and offshore facilities involved in the handling and transport of oil. These facilities may be required to prepare and implement a Spill Prevention, Control and Countermeasure (SPCC) Plan (and perhaps a more detailed Facility Response Plan). During 2001-2011, EPA adopted a series of significant changes to its SPCC Plan regulations, requiring compliance by most facilities no later than November 10, 2011.

In August 2013, President Obama issued an Executive Order directing federal regulatory agencies to review specified regulatory programs that are designed to prevent catastrophic releases of toxics: Occupational Safety and Health Administration (OSHA) Chemical Process Safety Management Standard (PSM); Environmental Protection Agency (EPA) Accidental Release Prevention (ARP) program and Emergency Planning and Right-to-Know Act (EPCRA) program; and Department of Homeland Security (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program (I blogged about the EO here, OSHA’s consideration of PSM changes here, and about one of the agencies’ joint reports on progress here). EPA has just issued a request for information on the possible revisions to ARP requirements, which are described below.

On July 31, President Obama issued Executive Order (EO) Number 13673, establishing a series of reporting and procedural requirements for federal contractors, inducing them to provide “Fair Pay and Safe Workplaces” to their employees. Beginning in 2016, these new requirements will apply to contracts and subcontracts to provide more than $500,000 in services and/or non-standard goods to federal agencies. Some requirements are specific in the EO, while others will become clearer after revisions to the contracting standards codified as the Federal Acquisition Regulation (FAR).

On July 21, President Obama issued Executive Order (EO) Number 13672, expanding anti-discrimination responsibilities of federal agencies, federal contractors, and federal grant recipients, to cover “sexual orientation” and “gender identity.” Once implemented, employment practices in these workplaces will match private employers’ responsibilities under a growing number of state laws, and under some federal court cases interpreting Title VII of the Civil Rights Act of 1964 (Title VII). These changes are potentially very important to large numbers of lesbian, gay, bisexual, and transgender (LGBT) workers.

Is your employer hiring "temp" workers this summer—to serve tourists, meet cascading production deadlines, tend crops, or maybe just to fill in while permanent workers take vacations? Most employers recognize that occupational safety and health laws throughout North America assign them an Employer's General Duty to protect their own employees from workplace hazards. Some don’t remember that this duty also applies to shared employees, and even to other employers’ employees while they’re at your workplace. This month, the US Occupational Safety and Health Administration (OSHA) is re-emphasizing ongoing efforts to ensure protections for temporary workers ("temps"), extending the Temporary Worker Initiative it started in 2013.

One of the many national anti-discrimination laws administered by the US Equal Employment Opportunity Commission (EEOC) is the Pregnancy Discrimination Act of 1978 (PDA). PDA prohibits discrimination against women on the basis of “pregnancy, childbirth or related medical conditions.” EEOC receives about 6,000 complaints alleging this form of sex discrimination each year, which amounts to 6-7% of all complaints it receives. Last month EEOC issued its first stand-alone Enforcement Guidance for its staff to address PDA and related issues under the Americans with Disabilities Act (ADA), superseding discussions in the agency’s general Compliance Manual.

Since the US Supreme Court affirmed in 2007 that the Clean Air Act (CAA) provides the Environmental Protection Agency (EPA) with authority to regulate carbon dioxide (CO₂) and other greenhouse gases (GHGs), EPA has pursued a growing set of regulatory initiatives. In each, EPA has attempted to fit GHGs into statutory and regulatory programs originally designed for more conventional pollutants – and the entities it targets have sued the agency claiming the stretch to GHGs exceeds EPA’s authority. Each court decision has adjusted the contours of EPA’s CAA authority, legitimizing some stretches and vacating others.

On June 23, President Obama issued a Presidential Memorandum to federal agencies, specifying steps they must take to enhance workplace flexibility for federal workers, and specifying timelines for the federal Office of Personnel Management (OPM) and each federal agency to complete those steps. The Memorandum establishes OPM as the hub of these activities, with assignments to create guidance, synthesize information being provided by other federal agencies, and provide ongoing inter-agency advice. The Memorandum is careful not to create any new rights for federal employees, but it is intended to ensure that agencies expand their interpretations and applications of those rights to the maximum extent feasible.

Section 10(b) of the Securities Exchange Act of 1934 prohibits use of “any manipulative or deceptive device” in connection with purchases or sales of securities. Since its adoption, this provision has provided SEC with an important enforcement tool. Beginning in 1975, the US Supreme Court also empowered aggrieved shareholders to use this Section to support private lawsuits against alleged violators (Blue Chip Stamps v. Manor Drug Stores). The substantive and procedural contours of this private right have continued to evolve in the subsequent four decades, as courts address arguments by plaintiffs and defendants. In 1988, the Supreme Court ruled that plaintiffs who buy or sell shares through an “efficient market” are entitled to a presumption that they relied on that market’s price, not knowing that the market was tainted by manipulative or deceptive information (Basic, Inc. v. Levinson).