Audit, Compliance and Risk Blog

The COVID-19 pandemic has impacted all industries to some degree over the past year. With offices shut down, and some workforces working remotely, many offices have been left vacant. At the beginning of the pandemic, food and beverage and consumer goods manufacturing facilities were temporarily shut down or production was significantly reduced. Restaurants and retail facilities were closed or transitioned to online ordering and pick-up. Only critically essential services and operations managed to stay open. 

At many of these facilities, Aboveground Storage Tanks (ASTs) and/or Portable Containers (drums/totes) are used for oil or fuel storage critical to operations. If these facilities meet the criteria indicated below, then the facility must prepare and implement a Spill Prevention, Control, and Countermeasure (SPCC) Plan according to the Federal Oil Pollution Prevention regulation 40 CFR part 112.

The Occupational Safety and Health Administration (OSHA) is conducting a formal public review to consider whether to update its Mechanical Power Presses Standard (29 CFR section 1910.217). OSHA issued the Standard in 1971, and adopted the only formal revision in 1988 (to recognize and guide use of sensers to protect press operators). OSHA has also included these devices in a series of “National Emphasis Programs” intended to focus on safety and compliance. OSHA published a request for public comments in the July 28, 2021 Federal Register, seeking suggestions by October 28. The remainder of this note summarizes the longstanding existing requirements, and questions raised by OSHA in this first general review in half a century.

On May 28, the Biden Administration issued its budget proposal for federal Fiscal Year (FY) 2022 (October 1, 2021 through September 30, 2022). As anticipated based on statements from Mr. Biden while a candidate and since his inauguration, the proposal includes many dramatic changes from former president Trump’s proposed budgets. The administration proposes a 21.6 % ($2 billion) increase in the budget for the Environmental Protection Agency (EPA) budget above EPA’s adopted 2021 budget of $9.2 billion. Roughly 90 percent of this increase is related to climate controls and environmental justice, broadly defined.

Public health and worker safety agencies have issued and re-issued directions to employers for coping with the evolving COVID-19 pandemic. Most of these directives have been non-binding recommendations, although the Occupational Safety and Health Administration (OSHA) and state OSH agencies have reminded employers that their “General Duty Clause(s)” requires protective responses to recognized hazards. (most recently, in June OSHA revised its generally-applicable guidelines “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace”; I wrote about these HERE). Several states have taken the additional step and issued COVID regulations, beginning with Virginia in July 2020 (I wrote about it HERE).

The federal Clean Air Act (CAA) requires the U.S. Environmental Protection Agency (EPA) to establish and maintain national air quality standards, including criteria for permits and other authorizations issued to (potential) emission sources by state or local air quality management agencies (with EPA itself as the default regulator if other agencies fail). Forms of authorization include permits for specified stationary emission sources, and equipment/emission standards for mobile sources and some components of stationary sources. Almost all requirements apply to “direct sources” – the equipment or activity that directly produces emissions.

As the COVID-19 pandemic has progressed, public health and worker safety agencies have issued and re-issued directions to employers for copying with evolving situations. On June 10, 2021, the Occupational Safety and Health Administration (OSHA) revised its benchmark guidance for management of workplace COVID-19 risks. 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).

Summer has arrived, bringing record-breaking heat to parts of North America. It's time to remember that outdoor work in the summer sun can lead to heat illness, as can indoor work in spaces that aren’t sufficiently insulated or cooled.

In the United States, the federal Occupational Safety and Health Administration (OSHA) and most state OSH programs provide guidance to employers and their workers. California's Division of Occupational Safety and Health (Cal/OSHA) administers detailed regulatory requirements for outdoor first promulgated in 2005, and Washington has enforced state-level rules since 2007. Canadian occupational health and safety agencies also recognize “thermal stress” as a workplace hazard, with attention to both heat and cold. California has been working on standards for indoor workplaces since 2017.

If you have outdoor workers in California you must comply with the following requirements, while if you're anywhere else you should at least consider them. 

The many overlaps and disjunctions in environmental protection laws mean that many situations are potentially subject to multiple laws and their associated enforcement provisions. On May 24, the US Supreme Court decided the latest incarnation in a long-running dispute between the federal government and the territory of Guam over contamination at a landfill, which included an earlier round involving the Clean Water Act (CWA) and the latest round involving the Superfund law (Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)) (Guam v. United States). The court decided that a 2004 settlement in a CWA enforcement case did not – and could not – affect Guam’s latest search for financial contributions to cleanup under CERCLA. This decision provides not just specific clarification of the relationship between two CWA and CERCLA cost recovery provisions, but also a general reminder about the need to craft settlements carefully.

The Occupational Safety and Health Administration (OSHA) is proposing several corrections to handrail and stair rail requirements it adopted in 2017 as part of major revisions to its Walking-Working Surfaces Standard (I wrote about those revisions HERE and HERE). The present proposal identifies several typographical errors and ambiguities in the 2017 revision, which OSHA states have led to confusion and questions from employers around the country. The proposal would create a transition period for employers that made plausible interpretations of the provisions to be corrected.