Audit, Compliance and Risk Blog

With legislation action on climate change deadlocked by partisan divisions in Congress, the Obama Administration is pursuing a growing set of administrative and regulatory initiatives under existing authority. Many of these involve actions by the Environmental Protection Agency (EPA) applying Clean Air Act (CAA) authority, but some involve other EPA authority and/or other agencies.

The Occupational Safety and Health Administration’s (OSHA’s) Standard for Process Safety Management of Highly Hazardous Chemicals (usually referred to as “PSM”) in 1992, requires extensive risk assessments and reduction efforts by facilities where a significant incident involving these chemicals might have catastrophic consequences. OSHA adopted PSM in 1992, and has made only minor technical revisions in the ensuing two decades. However, several federal and state initiatives are developing recommendations and may lead to significant changes in 2014.

December 1, 2013 marked the first major compliance deadlines for most employers to comply with revisions to the Occupational Safety and Health Administration's (OSHA's) Hazard Communication Standard (HCS or Hazcom) adopted by OSHA effective May 25, 2012. Hazcom provides basic chemical information in millions of workplaces in the U.S. (Canadian readers will be familiar with analogous Workplace Hazardous Materials Information System (WHMIS) requirements).

Employers in the United States must verify that new hires are eligible to work in the U.S. This responsibility was created by the Immigration Reform and Control Act (IRCA) of 1986, which drafted employers—on pain of being prosecuted themselves—into partnership with the federal government to deny job opportunities to unauthorized workers. Employers' compliance responsibilities are based on use of the I-9 Form ("Employment Eligibility Verification") issued by U.S. Citizenship and Immigration Services (USCIS). As information technology develops, USCIS has expanded electronic reporting and data management tools, the most important of which is called E-Verify. Both I-9's and E-Verify continue to evolve, and have received recent revisions.

The Occupational Safety and Health Administration (OSHA) requires employers to prepare and maintain records of occupational injuries and illnesses (I&Is), and to provide employees with annual summaries of I&I statistics for their "establishment." At present, OSHA and/or the Department of Labor's Bureau of Labor Statistics (BLS) can demand that selected employers report this information to them. BLS uses this information for statistical analyses of factors that cause workplace injuries and illnesses, and OSHA uses it to set rulemaking and enforcement priorities. In addition, OSHA requires all employers to report work-related accidents that result in one or more serious injuries or deaths (what OSHA calls "catastrophes").

Most laws include penalty provisions, for assessment against people who fail to comply with legal responsibilities created by the laws. Back in 1996, Congress noticed that inflation was steadily reducing the deterrent effects of the penalties set forth in statutes, and that Congress itself was not reliably adjusting the maximum penalties assessable by enforcement personnel. Rather than burden itself with a responsibility to amend laws to keep up with inflation, Congress enacted the passed Debt Collection Improvement Act (DCIA) of 1996 to assign that responsibility to administrative agencies. DCIA requires most federal agencies to issue rules at least every 4 years, adjusting most penalties for inflation. In the ensuing 17 years, most agencies have made these periodic adjustments—larger in times of high inflation and lower in times of low inflation.

Advances in field techniques have recently made hydraulic fracturing— “fracking”—a major part of energy production in the United States and Canada. Frackers pump high-pressure fluids into rock formations to expand cracks and create pathways for valuable hydrocarbons to flow out. The stimulant fluids are usually water-based, with additional chemicals (acids, surfactants, biocides, etc.) to improve effectiveness and solid ‘proppants’ to prop open the expanded openings (sand, etc.). Read my earlier blog here

On October 28, British Columbia, California, Oregon and Washington signed the Pacific Coast Action Plan on Climate and Energy, committing themselves to align efforts to control greenhouse gas (GHG) reductions to combat climate change, and to promote clean energy. The Action Plan is adopted under the aegis of the Pacific Coast Collaborative, which encompasses these four jurisdictions plus Alaska.

Workers throughout the United States and Canada are protected by occupational health and safety laws, administered by federal, and state or provincial worker safety agencies—such as the U.S. Occupational Safety and Health Administration and the Workers' Compensation Board of British Columbia (WorkSafeBC). Most of these agencies recognize workplace violence as a potential hazard, although regulatory requirements associated with this hazard vary considerably among jurisdictions. Effective November 1, 2013, British Columbia supplements its longstanding workplace violence prevention requirements with requirements for "all reasonable steps to prevent where possible, or otherwise minimize, workplace bullying and harassment." BC provides separate, complementary rules for: