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.
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Jon Elliott
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EPA and Corps of Engineers redefine “Waters of the United States” in response to Supreme Court
Posted by Jon Elliott on Tue, Sep 19, 2023
Tags: EPA, clean water, CWA, Clear water, water pollutants, environmental law, water, WOTUS
On August 17, the US Environmental Protection Agency (EPA) issued a memorandum announcing its National Enforcement and Compliance Initiatives and continuing enforcement priorities for the upcoming fiscal years 2024-2027 (NECI memo). This announcement specifies existing initiatives that EPA will extend, and additional new ones. The NECI memo explains that EPA selected its priorities based on the following three criteria:
- the need to address serious and widespread environmental issues and significant violations impacting human health and the environment, particularly in overburdened and vulnerable communities
- a focus on areas where federal enforcement authorities, resources, and/or expertise are needed to hold polluters accountable and promote a level playing field
- alignment with EPA’s Strategic Plan.
The remainder of this note summarizes the enforcement priorities expressed in the NECI memo.
Read MoreTags: Environmental, EPA, Environmental Policy, NECI
The Occupational Safety and Health Administration (OSHA) is authorized to inspect regulated workplaces, although it generally limits its inspections to workplaces deemed highly hazardous (often targeted sector-wide through National Emphasis Programs (NEPs) or their regional or state equivalents), or in response to complaints or reported incidents of injury or illness (I&I). OSHA regulations include inspection procedures (29 CFR 1903), which OSHA proposed on August 30, 2023 to clarify and revise slightly. The rest of this note summarizes OSHA’s procedures briefly, including the proposed changes.
Read MoreTags: Employer Best Practices, OSHA, Employee Rights, Employment, workplace safety
EPA proposes non-detect lead contamination standards after residential abatement
Posted by Jon Elliott on Tue, Aug 29, 2023
Lead and lead-containing materials are among the longest-used materials in construction and industry. Lead has been used in commercial, residential, and ceramic paint; in electric batteries and other devices; as a gasoline additive; for weighting; and other purposes. It also has been recognized as toxic to human health and the environment at least since the Romans, although understanding of the extent and severity of lead hazards has improved greatly in recent decades. Accordingly, environmental, occupational and public health agencies have progressively tightened standards to reduce lead exposures. On August 1, 2023, the Environmental Protection Agency (EPA) proposed to tighten post-remediation clearance levels as low as “non-detect.” The rest of this note discusses EPA’s latest proposal, and provides some context and background.
Read MoreTags: EHS, EPA, tsca, Hazardous Waste, ESG
EPA to reconsider management of containers that held hazardous waste
Posted by Jon Elliott on Tue, Aug 22, 2023
The Environmental Protection Agency (EPA) applies its authority under the Resource Conservation and Recovery Act (RCRA) to set national requirements for containers – such as drums – that may be contaminated after use to accumulate hazardous chemicals and wastes. These rules include the “empty container rule” first promulgated in 1980. On August 11, 2023 EPA published in the Federal Register a “Used Drum Management and Reconditioning Advance Notice of Proposed Rulemaking” (ANPRM), setting forth the agency’s thinking about existing container management requirements and possible enhancements and regulatory and non-regulatory alternatives to its existing approaches. The rest of this note summarizes EPA’s ruminations, which may lead to a formal rulemaking.
Read MoreTags: EPA, RCRA, Hazardous Waste
Mexico adopts workplace safety rules covering teleworkers
Posted by Jon Elliott on Wed, Aug 09, 2023
On June 8, Mexico’s Ministry of Labor and Social Welfare (Secretaría del Trabajo y Previsión Social (STPS)) published Official Mexican Standard (Norma Oficial Mexicana (NOM)) NOM-037-STPS-2023 Telework-Safety and Health Conditions at Work (“NOM-037” or "Standard"), which will take effect on December 5. The new Standard will require employers to take specific measures to protect workers who spend at least 40% of their worktime operating in what the Standard calls the “teleworking modality.” The remainder of this note summarizes these new requirements.
Read MoreTags: workplace safety, STPS, Mexico
This summer is again bringing record-breaking heat to parts of North America. Outdoor work in the summer sun can lead to heat illness, as can indoor work in spaces that aren’t sufficiently insulated or cooled. Since 2008, Washington state has required employer actions to protect employees from extreme heat during summer months, through rules administered by the Department of Labor & Industries’ (L&I’s) Division of Occupational Safety and Health (I discussed the pre-2023 rules HERE). Effective July 17, 2023, L&I has updated its Outdoor Heat Exposures rules, revising and expanding the requirements and making them applicable year-round. The remainder of this note summarizes the changing requirements.
Read MoreTags: Protecting employees, Heat, Be Heat Smart, heat illness, Labor & Industries
OSHA revises Injury and Illness reporting requirements for some large employers
Posted by Jon Elliott on Tue, Aug 01, 2023
The Occupational Safety and Health Administration (OSHA) requires most employers with 10 or more employees at an “establishment” to prepare and maintain records of occupational injuries and illnesses (I&I) as they occur (I&I Logs). OSHA also requires employers to post an annual I&I Summary in each workplace “establishment” by February 1, summarizing that workplace’s I&Is during the previous calendar year. In addition, OSHA requires some employers to submit some of this I&I information electronically to the agency. (I wrote about the initial electronic reporting requirements HERE). On July 21 OSHA updated and revised these electronic reporting requirements (finalizing a proposal I wrote about HERE). The remainder of this note summarizes these changes.
Read MoreTags: OSHA, Protecting employees, workplace safety, Injury, Illness
EPA adds Diisononyl Phthalate Category to Toxics Release Inventory chemical list
Posted by Jon Elliott on Mon, Jul 24, 2023
Effective September 12, 2023, the US Environmental Protection Agency (EPA) has added a new chemical category to its Toxic Release Inventory (TRI) program - Diisononyl Phthalates (DINP). EPA administers TRI as one of the distinct [programs created by the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA, also referred to as SARA Title III). This is the latest step in EPA’s review and updating of TRI, underway since President Biden assumed office. (I’ve discussed TRI several times, most recently HERE). The rest of this note discusses this latest change, which will require TRI reporting by subject facilities beginning with 2024 data.
Canada identifies possible provisions for a Federal Plastics Registry
Posted by Jon Elliott on Thu, Jul 20, 2023
Environment and Climate Change Canada (ECCC) is developing a Federal Plastics Registry, in support of the government’s goal of zero plastic waste by 2030. The proposed Registry will create a consistent national framework of reporting requirements. On April 23, 2023, ECCC published a Technical Paper with “technical details and reporting requirements” for the Registry, reflecting several years of development –a discussion paper published in October 2020, a “What We Heard” summary of comments received on that paper, a Consultation Paper published in July 2022, and comments received on that document. ECCC intends to formally propose requirements for the Registry by the end of 2023, and to require reporting beginning in 2025.
Read MoreTags: Environmental, Environment, pollutants, plastics, ECCC