Audit, Compliance and Risk Blog

The federal Council on Environmental Quality (CEQ) has proposed to revise its regulations administering the National Environmental Policy Act (NEPA) of 1969. NEPA requires federal agencies to assess the environmental effects of their proposed actions, and incorporate this information into their decisions. Government-wide guidance is provided by the White House’s CEQ, established by NEPA and appointed by the President. CEQ issues formal regulations that agencies must follow, and guidance documents that provide additional advice.  CEQ also reviews agencies’ NEPA implementation programs, and publishes annual national Environmental Quality Reports.

In September 2021, the US federal Occupational Safety and Health Administration (OSHA) announced its first steps toward nationwide enhancement of efforts to protect workers from heat illness. The effort will cover both outdoor work in the sun and ambient heat, and indoor work in hot areas or heat-retaining clothing and equipment. OSHA’s first step was to release new “Inspection Guidance for Heat-Related Hazards” on September 1. The remainder of this note discusses this policy, and identifies additional context that clarifies ambiguous points.

On September 23, 2021, the US Environmental Protection Agency (EPA) announced final rules to phase down production and consumption of specified hydrochlorofluorocarbons (HFCs) (I wrote about the proposal HERE). These HFCs are used in refrigeration and air conditioning and fire suppression, and as foam blowing agents and solvents. These rules are consistent with directives included in the 2016 Kigali Amendment to the United Nations-sponsored Montreal Protocol on Substances that Deplete the Ozone Layer (which I wrote about HERE). The US finally enacted statutory support for Kigali-like requirements in the December 2020 coronavirus relief bill (American Innovation and Manufacturing Act of 2020 (AIM Act)), which included dozens of unrelated provisions within its 5,593 pages.

Organizations around the world are responding to the latest climate-related risk assessment produced by the Intergovernmental Panel on Climate Change (IPCC), which replaced earlier cautionary information with an urgent warning that climate change is “widespread, rapid, and intensifying.” On August 31, the US Federal Insurance Office (FIO), an element of the Department of the Treasury, published a “Request for Information on the Insurance Sector and Climate-Related financial Risks” (RFI) in the Federal Register, posing 19 questions it will use to focus its application of climate-related risks to the domestic insurance sector. Insurers should obviously be interested in these questions and their answers, but any entity that buys insurance should consider them as well. The remainder of this note summarizes FIO’s questions.

The Occupational Safety and Health Act of 1970 provides the national framework for worker protections and empowers the Occupational Safety and Health Administration (OSHA) to create and enforce worker protection standards. The OSH Act authorizes states to apply to OSHA for delegation of this authority (referred to as “state plan states”). In addition to these agency actions, however, the OSH Act also empowers the workers themselves to stand up for these rights, and to complain to agencies when they believe their rights are being violated. Beginning in 1973, OSHA has promulgated regulations formalizing employee rights to be free of adverse actions by their employers – “discrimination” in the language of the law and regulations – for exercising their rights to self-protection (codified in 29 Code of Federal Regulations (CFR) part 1977). Effective September 3, 2021, OSHA has updated these part 1977 regulations to track US Supreme Court decisions that tend to narrow employee rights somewhat. The remainder of this note summarizes OSHA’s part 1977 regulations and discusses the latest revisions.

British Columbia moved into Step 3 of the BC Restart Plan on July 1, 2021, and one of the main implications for employers is a shift from COVID-19 safety plans to general communicable disease prevention. WorkSafeBC has released its guidance on communicable disease prevention, and employers should be adapting their COVID-19 safety plans to communicable disease prevention with this guidance in mind.

In June, the Ontario Court of Appeal issued a decision addressing two issues that should interest corporate directors – certainly in the province, and probably throughout Canada. The case is O’Reilly v. ClearMRI Solutions Ltd., and the issues it addresses are:

• when might two companies be considered “common employers” of a single individual employee, sharing responsibilities for compliance with applicable labour laws; and

• when might corporate directors, including directors of “common employers,” become personally liable for their company’s non-compliance with those laws.

The rest of this note discusses these issues, and the O’Reilly case decision.

In recent years, governments around the world have extended solid waste management efforts to support—and in some cases require—recycling and resource recovery efforts to divert more solid wastes from landfills, and to substitute reused materials or raw materials. Increasingly, specialized stewardship programs target particular types of hazardous wastes – used oils, spent batteries, etc. – the national advocacy group Product Stewardship Institute identifies more than 120 such programs spread among 34 US states (I introduced these efforts HERE). Maine already has a number of these programs.

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers. On August 13, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for workplace COVID-19 risk management. The remainder of this note summarizes OSHA’s newly-revised “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.” (I wrote about the initial January 2021 version HERE and the June 2021 revisions HERE). This revision responds to “breakthrough” infections among vaccinated people by incorporating the latest the Centers for Disease Prevention and Control (CDC) recommendations for masking of employees who are fully vaccinated but work in “areas of substantial or high community transmission” – which as of this writing covers nearly 95% of US counties.
The remainder of this note summarizes the guidance (including unchanged elements) and then highlights the new masking guidance.

Solid waste management has come a long way since enactment of the Solid Waste Disposal Act (SWDA) of 1965 to address the national “landfill crisis.” The Environmental Protection Agency (EPA) applies SWDA authority to adopt landfill standards, which are administered by state and local governments. EPA also empowers these state and local governments to do more, not just through additional disposal standards, but through expanded requirements for recycling and resource recovery efforts designed to keep more solid wastes out of landfills. In addition, extended management programs impose “product stewardship” and “extended producer responsibility” on manufacturers. This note discusses these introduces these ideas, and summarizes the extent of state programs that apply them.