Audit, Compliance and Risk Blog

On February 10, the Trump Administration issued its budget proposal for federal Fiscal Year (FY) 2021 (October 1, 2020 through September 30, 2021), entitled “A Budget for America’s Future.” The drastic changes in budgeting for environmental health and safety (EH&S) regulation are consistent with previous proposals from this administration. They have no chance of adoption, particularly given the Democrats’ control of the House of Representatives, but still represent a fair summary of the President’s continuing priorities.

The Occupational Safety and Health Administration (OSHA) requires employers to evaluate whether air quality in their workplaces requires respiratory protection for workers, and to establish comprehensive evaluation and respiratory protection programs where necessary. (I wrote about recent revisions here). Late last year, a federal appeals court upheld OSHA’s approaches to workplace testing requirements under the Respiratory Protection Standard (Standard) (Secretary of Labor v. Seward Ship's Drydock, Inc.).

One of the enduring benefits of the corporate form is the treatment of corporations as separate “people,” distinct from their owners when questions of legal rights, responsibilities and liabilities arise. This separation extends not just to individual investors and shareholders, but in most circumstances to the corporate directors and officers who decide what their corporation does. Common law courts and federal and provincial corporation statutes define the exceptions – usually based on what are called “piercing the corporate veil” between the company and its controlling minds, or by deciding that those controllers run the corporation as an “alter ego” rather than as a distinct legal person. In recent months, two cases in Ontario have given courts the opportunities to review and reaffirm these traditional approaches.

After nearly a decade of talking and planning, most of the northeast and middle Atlantic states (plus the District of Columbia) in the Transportation and Climate Initiative (TCI) have proposed a cap-and-trade program intended to reduce greenhouse gas (GHG) emissions from transportation. On October 1, TCI issued a “Framework for a Draft Regional Policy Proposal,” and on December 17 a formal “Draft Memorandum of Understanding (MOU)” that jurisdictions can sign to formalize their participation. If things go well, the formal program should begin in 2020.

Although a major focus of the Clean Air Act (CAA) is the definition, attainment and maintenance of national ambient air quality standards (NAAQSs), the statute doesn’t define the term “ambient air.” This gap leaves the Environmental Protection Agency (EPA) to develop regulatory and policy definitions that delimit the reach of CAA authority. Since 1971, EPA’s definition defines “ambient air” as “that portion of the atmosphere, external to buildings, to which the general public has access.” EPA also provides additional details in a series of policy documents, which have just been updated with a  memorandum from EPA Administrator Wheeler to expand the exclusions for onsite air.

On September 12, 2019, the Québec Court of Appeal rendered its ruling in the case of Singh c. Montreal Gateway Terminals Partnerships¹, upholding the decision rendered in first instance by the Honourable Justice André Prévost of the Superior Court. This case opposed the right to freedom of religion and the requirements of health and safety in locations like marine terminals, where safety is a major issue.

On November 20, 2019, the Environmental Protection Agency (EPA) completed its latest review and revisions to the Accidental Release Prevention (ARP) program for toxic catastrophe prevention under the Clean Air Act (CAA). These changes complete the Trump Administration’s review and repeal of most changes enacted during the Obama Administration, returning ARP requirements to roughly the point they were at before 2016. The remainder of this note summarizes these changes.

If it’s true that “there’s safety in numbers,” it’s just as true that employees working in isolation risk more severe consequences from most incidents.  Worker protection laws have long recognized this truism in industrial settings where medical emergencies, accidents, or even “bad air” can be fatal to a lone worker who could readily be rescued by co-workers were any present. In recent years, worker protection agencies in most Canadian provinces have adopted requirements to protect “workers working alone or in isolation.” The movement has spread to the United States, including a special focus on hotel workers. Because of these trends, now is a good time to review requirements and compliance programs.

The most basic principle of corporate directorships is that the directors have a fiduciary duty to act in the best interests of their corporation. It has followed closely that directors should serve the best interests of the shareholders – in most circumstances this means all the shareholders, not the majority or some faction to which a director might owe allegiance. Although it’s not so clear how expansively directors should interpret those corporate interests, the trend is toward consideration of more groups of “stakeholders.” The past year has seen important reinforcements for that trend.

As we approach the winter holidays, retailers everywhere are planning their biggest cycles of annual sales. One doesn’t have to be a grinch to notice that these events can introduce additional hazards for retail employees – and for others who may be shopping. It’s therefore a good time to review guidance for managing these hazards, which was promulgated by the Occupational Safety and Health Administration (OSHA) in 2012. This guidance followed a national review after a highly-publicized incident during which a worker at a Long Island Walmart was trampled to death by a crowd mobbing the store’s Black Friday (day after Thanksgiving) sales event in 2008. OSHA determined that Walmart should have anticipated crowd-related hazards, and fined the company for a violation of the Employer’s General Duty Clause (I wrote about this here)