Audit, Compliance and Risk Blog

On February 7, the Occupational Safety and Health Administration (OSHA) issued a reminder to employers to protect employees from workplace carbon monoxide (CO) risks, particularly those associated with wintertime use of portable generators and heating equipment inside enclosed spaces. That reminder includes links to OSHA’s “Carbon Monoxide Fact Sheet,” which outlines hazards and appropriate employer responses. The rest of this note discusses OSHA’s explanation of these risks and how to manage them.

On January 18, 2023, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (Corps) adopted revised definitions of “waters of the United States.” 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 EPA and delegated states, and regulation of projects that may lead to “dredge and fill” of waters, requiring permits from the Corps. The remainder of this note offers a brief summary of the last 20 years of judicial reinterpretations and regulatory responses, and discusses the latest revisions.

On January 24, the US Environmental Protection Agency (EPA) published tighter standards for emissions from “heavy-duty” engines and vehicles, beginning with model year 2027. These new standards form the important first step toward implementation of EPA’s Clean Truck Plan, which has the ultimate goal of zero emissions from motor vehicles. The new standards are more than 80% stronger than current standards, which have been in place more than 20 years. These changes therefore continue the recent trend toward tighter federal emission standards for motor vehicles, including light-duty vehicles (automobiles and light trucks; I discussed the latest rules for light-duty vehicles, covering greenhouse gas (GHG) emissions for model years 2023-2026 HERE). The remainder of this note discusses the latest heavy-duty vehicle standards.

Since 2021, occupational safety and health agencies have enacted a variety of rules addressing the workplace hazards of the COVID-19 pandemic. Agencies have generally used their emergency authority, which allow more administrative leeway to speed enactment but then require automatic expiration within months (although re-enactments are possible). I’ve written about a number of these efforts, including the federal Occupational Safety and Health Administration (OSHA) “emergency temporary standard (ETS),” which was stymied by litigation (see HERE). Some states have enacted their own ETSs; California adopted its own ETS and then readopted it every 180 days in order to keep rules in force (see HERE).

The many orders and rules issued by public and occupational health agencies in response to the COVID-19 pandemic create massive disruptions to employment relationships at organizations worldwide. The Supreme Court of British Columbia recently considered a wrongful dismissal lawsuit following one employer’s response to BC provincial health orders affecting the place of employment. The court acknowledged the significant disruptions to ongoing activities, but refused to apply the doctrine of “frustration” to relieve he employer of notice and severance duties to its employees. The remainder of this blog discusses this case (Fanzone v 516400 B.C. Ltd., 2022 BCSC 2089 (CanLII)).

The US Environmental Protection Agency (EPA) has taken two actions to expand chemical release reporting under its Toxic Release Inventory (TRI) program. 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). EPA has finalized its previously-proposed addition of 12 chemicals, and separately has proposed to tighten existing requirements for two more. (I’ve discussed TRI several times, including HERE. The rest of this note discusses these changes.

The Federal Trade Commission (FTC) administers longstanding protections against advertising that uses “false” or “misleading” advertising to induce consumers to buy products that do not perform as advertised, or that produce consequences different from those advertised. FTC’s rules include its “Guides for the use of environmental marketing claims” – generally called “Green Guides” (16 CFR part 260). FTC first issued the Green Guides thirty years ago in 1992 and revised them in 1996, 1998, and 2012. (I most recently discussed the Guides, and the FTC Act of 1914, HERE ). On December 14, 2022, FTC voted to seek public comment on the content and interpretation of meaning of the existing Guides, and the sorts of changes and updates that would enhance their ongoing value to consumers. The remainder of this note summarizes the existing Green Guides, and FTC’s questions for public comment.

On November 22, the US Environmental Protection Agency (EPA) announced the success of its ongoing National Compliance Initiative for “Reducing Significant Non-Compliance (SNC) with NPDES Permits,” addressing high levels of non-compliance with individual permits to discharge water pollutants under the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination system (NPDES). EPA started the Initiative in fiscal year (FY) 2018, in cooperation with delegated state water quality agencies, after compiling and evaluating permit holders’ data showing significant non-compliance by over 20% of the 46,000 permitted facilities around the country. The Initiative’s goal has been to cut non-compliance in half by the end of FY 2022. EPA’s November 22 report claims that this goal has been exceeded, with significant non-compliance rates down to 9%.

The federal Occupational Safety and Health Administration (OSHA) provides additional non-regulatory guidance for the evaluation and reduction of workplace hazards that aren’t directly regulated by its standards. For example, OSHA provides a resource webpage on Seasonal Flu, which it recently updated with provide additional guidance and links to other health agencies’ resource pages.

On November 10, the Biden Administration announced a proposal to amend the Federal Acquisition Regulation (FAR) to require “major federal suppliers” and “significant federal suppliers” to disclose their greenhouse gas (GHG) emissions and assessments of climate-related risks, and to set targets for GHG emission reductions. The rest of this note summarizes this proposal.