Audit, Compliance and Risk Blog

The Canadian Council of Ministers of the Environment (CCME) has issued Excess Soil Reuse Guidance, with individual elements and an over-arching framework that jurisdictions can consider (and perhaps adopt, as published or with local variations) when establishing their own excess soil reuse regimes, and for landowners and consultants to consider when designing and implementing construction and remediation projects that generate excess soil. The remainder of this note summarizes this 51 page guidance document. 

On March 12, the US Environmental Protection Agency (EPA) issued a memorandum announcing significant revisions to the agency’s enforcement policies, entitled “Implementing National Enforcement and Compliance Initiatives Consistently with Executive Orders and Agency Priorities.” The memo directs EPA’s civil and criminal enforcement staffs, revising existing Biden-era policies (which I last wrote about HERE) to conform with President Trump’s executive orders (EOs) and policy statements by new EPA administrator Zeldin. The remainder of this note summarizes this new direction. 

What are Canadian agencies doing to evaluate and control the hazards of perfluoroalkyl and polyfluoroalkyl substances (PFAS) – often referred to as “forever chemicals”? The short answer is “More all the time, directed at more types of PFAS.” On March 5, Environment and Climate Change Canada (ECCC) and Health Canada issued their joint “State of Per- and Polyfluoroalkyl Substances (PFAS) Report” (Report), a 289 page status and plan report on research, information and regulatory efforts directed at PFAS hazards in Canada. The report completes a process that began in 2021, producing a draft Report In May 2023 and an updated draft in July 2024. 

The US Bureau of Labor Statistics (BLS) compiles data about occupational injuries and illnesses (I&I), and issues annual reports about occupational injuries, illnesses and fatalities. BLS cooperates with Occupational Safety and Health Administration (OSHA) requirements that employers record occupational I&I as they occur, and compile annual I&I logs to inform workers and regulators of overall rates.  BLS issued its report for calendar year 2023 in December 2024, highlighting causes and distributions of workplace deaths, and noting that they were lower than in 2022. The rest of this note summarizes how these occupational incidents are reported and counted. 

Incoming President Trump and the Republican majorities in Congress have begun sweeping plans to reverse many of the outgoing Biden Administration’s environmental policies. The timing and practicality of these reversals depends very much on each of the targeted activity’s legal form – law, regulation, Executive Order (EO), or guidance document. They also depend on where each particular target is in the governmental process: a non-binding policy, a proposed regulation subject, a final regulation subject to administrative appeals or court attacks, and a final regulation. President Trump has taken early executive action under each of these sets of situations. I will write about some separately, but the remainder of this note summarizes each general type of situation, with examples of each set out in order ranging from quickest/easiest to most time consuming/difficult. 

Lead and lead-containing materials are among the longest-used materials in construction and industry. Lead has been used in commercial, residential, and ceramic paint; in electric batteries and other devices; as a gasoline additive; for weighting; and other purposes. It also has been recognized as toxic to human health and the environment at least since the Romans, although understanding of the extent and severity of lead hazards has improved greatly in recent decades. Accordingly, environmental, occupational and public health agencies have progressively tightened standards to reduce lead exposures. On August 1, 2023, the Environmental Protection Agency (EPA) proposed to tighten post-remediation clearance levels as low as “non-detect.” The rest of this note discusses EPA’s latest proposal, and provides some context and background.

Most regulatory laws provide for civil – and sometimes even criminal – penalties for noncompliance. New legislation typically sets penalty levels (“XXX dollars per day of violation” for example), at levels intended to provide meaningful deterrence and punishment for noncompliance. But over time, the relative sting of these penalties declines with inflation. To counteract the possibility that less painful penalties provide less effective incentives for compliance, U.S. law directs most federal agencies to make annual “cost of living” adjustments to maximum available civil penalty levels (there are no provisions for standing periodic adjustments to criminal penalties).

On October 19, 2022 the US Environmental Protection Agency (EPA) and the United Parcel Service (UPS) settled a massive enforcement case covering violations of hazardous waste management requirements under the Resource Conservation and Recovery Act (RCRA) at 1,160 UPS facilities across forty-five (45) states and the territory of Puerto Rico. Most of the identified violations resulted from UPS’ misclassification of the quantities of hazardous waste generated at its facilities, and resulting failures to meet the additional requirements actually applicable at the mis-classified facilities. The national prosecution followed an investigation and subsequent Consent Agreement and Final Order (CAFO) in EPA’s Region 6 (Arkansas, Louisiana, New Mexico, Oklahoma, Texas and 66 Tribal Nations), which developed after enforcement at a single UPS site in Arkansas. The new nationwide settlement also appears in a CAFO, in which UPS agrees to pay more than $5 million in fines and to undertake enhanced compliance programs. The settlement is a good reminder to all organizations generating hazardous waste, that failures to meet RCRA-related administrative requirements can create enforcement liability even if wastes are managed responsibly.

As our world becomes increasingly connected, companies will continue to seize opportunities for expanding their businesses to new geographies. However, many challenges remain when it comes to understanding local regulations, cultural nuances, and legal applicability considerations. To overcome these challenges, EHS leaders need to gain in-depth knowledge and understanding of the regulatory environment and cultural landscape.  

For an EHS manager or even a small EHS team, building and maintaining this knowledge can overwhelm your time and resources. This is where utilizing an EHS regulatory register can change the game. Not only can a register help save time, but it can also ensure accurate, up-to-date information all in one place. If your organization is considering an expansion into new territory, a register to understand the organization’s compliance obligations should be the first task for a smooth, successful operation expansion.  

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.