Audit, Compliance and Risk Blog

On December 11, 2018 the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed to revise their regulatory definitions of “waters of the United States”, applying authority under the Clean Water Act (CWA). CWA does not define this term clearly, so after decades of rulemakings and litigation, it remains in dispute. Generally, Democratic presidents and the judges they appoint tend to support geographically and semantically broad applications, while with Republican presidents and the judges they appoint tend to take narrower views. The latest proposal would narrow the definition, reversing Obama-era rules adopted in June 2015, and presently in effect in 22 states based on the present status of ongoing judicial appeals (I summarized the 2015 rules, and the litigation leading up to them here and the Trump-era EPA’s 2017 proposal to roll back the 2015 revisions here). The agencies characterize this narrowing as an increase in certainty for stakeholders, accomplished by eliminating some of the site-specific discretion that the 2015 rules provided to permit writers. Because of the government shutdown, this latest proposal was not published in the Federal Register until February 14, 2019.

When companies claim they’re reducing their environmental impacts, how does anyone distinguish actual improvements from greenwashing? A growing number of national and international nonprofits and industry trade associations offer benchmarks and standards that companies can subscribe to, and third parties offer their services to evaluate and validate claims. Effective October 1, 2018 the state of Delaware has added a governmental layer, which Delaware companies can use to submit information and claims under penalty of perjury in order to gain formal state acknowledgement. The state claims this is the first such law.

Even if the latest polar vortex has ended by the time you read this, employers in most parts of the continent should be worrying about protecting workers against winter weather. Occupational safety and health regulators include “environmental” hazards as those that may require employers to provide their employees with personal protective equipment (PPE), and employers also bear a “general duty” to protect workers against recognized hazards. These requirements cover potential harm from extreme temperatures including cold, as well as slippery surfaces and other hazards from frozen and melting snow or other precipitation.

The Occupational Safety and Health Administration (OSHA) requires employers to prepare and maintain records of occupational injuries and illnesses (I&I Logs) as they occur. OSHA also requires employers to post an annual I&I Summary in each “establishment” within their workplace by February 1, summarizing that workplace’s I&Is during the previous calendar year. In states that administer federal standards within state-run programs, employers follow the comparable state requirements. Establishments with 250 or more workers must file electronic summaries by March 2.

Beginning January 1, 2019, a new California law establishes extensive requirements for proper management of waste pharmaceuticals and “sharps.” These new provisions complement – but aren’t actually well-connected to -- medical waste management requirements (I outlined typical state-based requirements here), and workplace provisions to protect workers from “bloodborne pathogens” that may be present because of health and medical procedures and the wastes they generate (I discussed OSHA’s “BBP” Standard here). The rest of this note summarizes these new requirements, adopted by Senate Bill (SB) 212 (Jackson).

Sexual harassment in Canadian workplaces can trigger a variety of laws and regulations:

If you’re contemplating significant changes at a facility that’s regulated as a “major source” under the Clean Air Act (CAA), you’d better figure out whether those changes will “modify” the source enough to trigger significant pre-construction review and permitting by the US Environmental Protection Agency (EPA) or its state or local delegee. The likely answer to questions like yours has changed with CAA amendments and regulations over the decades. EPA has just changed them again, after ending a decade long year delay of a regulatory “interpretation” published in the last week of George W. Bush’s presidency, and stayed by the Obama-era EPA throughout his presidency, and now reaffirmed and activated by the Trump-era EPA.

When someone receives occupational direction and/or compensation from more than one entity, who’s the boss? Sometimes it’s obviously one or the other, sometimes it’s not clear which one is, and sometimes the answer may be “both.” The answer has important implications, not just for who writes a paycheck but for who is subject to legal requirements and prohibitions under applicable laws.

On October 29, a large multi-sector group of organizations announced a major initiative to eliminate plastic waste and pollution - the New Plastics Economy Global Commitment. The group is sponsored by the Ellen MacArthur Foundation, and intends to respond to dire projections of the environmental implications of plastic waste with. Informational materials highlight a projection from the United Nations Environment Program (UNEP) that more than 8 million tons of plastics end up in the world’s oceans annually, and that if present trends continue there will be more plastic than fish in the oceans by 2050.

Although carbon dioxide (CO₂) is the most common and most-discussed greenhouse gas (GHG), it is by no means the only one. And on a per-unit basis, it is by no means the most potent GHG either. Air quality agencies and climate change scientists also focus attention on so-called “short-lived climate pollutant (SLCP)” means an agent that has a relatively short lifetime in the atmosphere, from a few days to a few decades, and a warming influence on the climate that is more potent than that of carbon dioxide. Individual jurisdictions have addressed individual SLCPs, but comprehensive approaches have been limited.In 2014, California legislation assigned that state’s Air Resources Board (ARB) to adopt a SCLP Reduction Strategy (I wrote about the legislation and 2016’s draft strategy here).