Audit, Compliance and Risk Blog

As our world becomes increasingly connected, companies will continue to seize opportunities for expanding their businesses to new geographies. However, many challenges remain when it comes to understanding local regulations, cultural nuances, and legal applicability considerations. To overcome these challenges, EHS leaders need to gain in-depth knowledge and understanding of the regulatory environment and cultural landscape.  

For an EHS manager or even a small EHS team, building and maintaining this knowledge can overwhelm your time and resources. This is where utilizing an EHS regulatory register can change the game. Not only can a register help save time, but it can also ensure accurate, up-to-date information all in one place. If your organization is considering an expansion into new territory, a register to understand the organization’s compliance obligations should be the first task for a smooth, successful operation expansion.  

Although the Occupational Safety and Health Administration (OSHA) has been forced by court action to convert its would-be “emergency temporary standard (ETS)” under which large employers would have been required to protect unvaccinated employees from COVID-19 infections into a proposal (I wrote about the initial ETS HERE), some states can and are moving ahead with similar requirements. Notably, California’s Division of Occupational Safety and Health (DOSH, but universally called Cal/OSHA) recently revised and renewed its own COVID-19 ETSs. The remainder of this note summarizes these standards, which cover five sections of Title 8 of the California Code of Regulations (CCR):

 The US federal Occupational Safety and Health Administration (OSHA) administers “Voluntary Protection Programs” (VPPs) to encourage employers to establish and implement voluntary worker Safety and Health Programs that exceed minimal efforts to comply with applicable OSHA standards.  As its name states, participation in any VPP is voluntary.  They are designed to encourage employer/employee/OSHA cooperation, and to reward such cooperation by granting employers increased flexibility and reduced likelihood of inspection. VPP sets performance-based criteria for a managed safety and health system, invites sites (and discrete mobile workforces) to apply, and then assesses applicants against these criteria. OSHA provides for full participation (the “Star” program) for sites/workforces that meet all criteria, conditional participation where an employer claims to meet some VPP criteria by non-standard methods (the “Demonstration” program), and qualified participation where the employer fully meets some VPP criteria and has definite plans to meet others (the “Merit” program).

The remainder of this note summarizes VPP criteria and provides additional information about the status of the programs.

During the last decade, federal state authorities have sparred with themselves and with states over regulatory standards limiting greenhouse gas (GHG) emissions from automobiles. Nationally, the US Environmental Protection Agency (EPA) and the National Highway Traffic Safety Administration (NHTSA) share authority over fleetwide and individual vehicle standards. EPA applies authority under the Clean Air act (CAA) and NHTSA applies authority under the Energy Policy and Conservation Act of 1975 (EPCA) including Corporate Average Fuel Economy (CAFÉ) standards. In addition, the state of California has unique CAA authority over vehicle emission; in recent years, Democratic presidential administrations generally produce federal-state cooperation, whereas Republican presidential administrations produce conflicts. (I’ve written about these issues several times, most recently HERE). True to this pattern, on December 21, 2021 EPA issued tighter vehicle emission rules covering Model Years (MY) 2023 through 2026, and NHTSA rescinded its (Trump era) rule preempting California’s stricter GHG emission standards. The remainder of this note discusses these new rules, within the context of ongoing rulemakings.

Since 1990, the Clean Air Act (CAA) has defined a list of Hazardous Air Pollutants (HAPs), requiring the U.S. Environmental Protection Agency (EPA) to set emissions standards for many sources of these pollutants. HAPs include heavy metals, organics, and other airborne pollutants that are not otherwise regulated as “criteria” air pollutants (such as carbon monoxide, particulate matter, and ground level ozone). The 1990 CAA Amendments included a list of 189 HAPs (later corrected to 188), and empowered EPA to modify the list. In the intervening decades, EPA conducted rulemakings and deleted four initially-listed HAPs, but until 2022 had never added a new HAP. However, EPA has now added 1-bromopropane (1-BP) as a new HAP, effective February 4, 2022.

In October, the Ontario Superior Court of Justice granted summary judgment to an ex-employee suing her ex-employer for wrongful dismissal, aggravated damages for mental distress and punitive damages. In this case, Humphrey v. Menē, Inc., the Court found that the employer’s “bad faith” termination had invalidated the termination clause in the parties’ employment contract, and then rejected the employer’s change in argument from a termination for cause to termination without cause, and awarded 11 months’ wages at the salary of $90,000, aggravated damages of $50,000 due to mental distress, and $25,000 in punitive damages for 2.7 years of service.

Remembering that summary judgment is only available when the court decides there’s no genuine issue of fact that would justify a trial, this represents an extreme outcome. However, it still should remind employers to tread carefully when moving to terminate an employee.

The Clean Water Act (CWA) empowers federal agencies to regulate activities that may affect “waters of the United States”—sometimes called “navigable waters.” These activities include water quality planning and discharge regulation by the US Environmental Protection Agency (EPA) and delegated states, and regulation of projects that may lead to “dredge and fill” of waters, requiring permits from the US Army Corps of Engineers (Corps).

However, CWA does not define this critical term. For many years, agencies used regulatory definitions jointly developed by EPA and the Corps in rules that date primarily from 1986, which included ambiguities that increased agency discretion but also frustrated landowner aspirations in some cases. However, beginning in 2001 a series of decisions by the US Supreme Court frayed the expansive edges of the regulators’ interpretations. First, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court ruled that the Corps lacks jurisdiction over “isolated” waters and wetlands that are not “adjacent” to navigable waters—such as “prairie potholes,” mudflats, and freshwater seasonal ponds. Then, in Rapanos v. United States, the Court ruled in 2006 that the Corps can exert jurisdiction over non-adjacent wetlands where there is a “significant nexus” between the wetlands and navigable waters (in addition, the wetlands must be at least “relatively permanent”).

The US federal Occupational Safety and Health Administration (OSHA) has added a portal to its webpage compiling “Holiday Worker Safety” guidance. These cover obvious retail and delivery workplaces that are likely to be especially busy during the holidays, as well as links to generalized resources and guidance intended to be useful to all workplaces. The remainder of this note identifies and summarizes OSHA’s pointers.

In 1976, an important motivation for enactment of the Toxic Substances Control Act (TSCA) was to empower the Environmental Protection Agency (EPA) to control polychlorinated biphenyls (PCBs), which had been developed as superlative insulation fluids but had come to be recognized as persistent toxic contaminants that bioaccumulate in the environment. TSCA banned the manufacturing, processing and distribution of new PCBs effective January 1, 1978, except in a “totally enclosed manner” or with an express exemption from EPA (including a finding that the exempt activity does not pose an “unreasonable risk of injury to health or the environment”). Even enclosed activities were banned beginning in 1979, unless with an express exemption from EPA. Additional provisions apply to non-banned activities, and to the cleanup and disposal of PCB-containing wastes. PCBs remain in use in enclosed/exempt locations throughout the country, and new contamination is identified from new leaks and legacy sites.

While BLG’s recent article highlighted an employer’s successful defence of its COVID-19 vaccine policy in UFCW v. Paragon Protection, the outcome was different in Power Workers’ Union v. Electrical Safety Authority.

On November 11, 2021, Arbitrator John Stout found that the mandatory vaccination policy of the Electrical Safety Authority (ESA) was unreasonable to the extent that employees may be disciplined, discharged, or placed on unpaid leave for failing to get fully vaccinated; however, Arbitrator Stout emphasized that context is everything. As detailed below, his conclusion rested on a few factors specific to this workplace. He emphasized that the outcome may be different elsewhere or at another time.