Audit, Compliance and Risk Blog

The US Occupational Safety and Health Administration (OSHA) regulates thousands of chemicals, through regulatory standards directing employers to reduce worker exposures. At the broadest level, employers must evaluate basic information about every potentially hazardous chemical, and provide information to employees in compliance with OSHA's Hazard Communication Standard (I’ve blogged about changing HCS requirements here, and here). OSHA’s Air Contaminants Standard provides ambient workplace air limits for hundreds of listed contaminants. OSHA also provides more tailored requirements for classes of chemicals (such as flammables), and for types of activities that pose chemical hazards (such as welding). For a small number of especially hazardous chemicals, OSHA provides a detailed standard applicable to a single chemical—examples include asbestos, benzene, and lead. On March 25, 2016, OSHA established another single-chemical standard, for respirable crystalline silica (29 CFR section 1910.1053). Most affected employers must comply by June 23, 2018; a few provisions are phased in later, and construction employers must meet most requirements by June 23, 2017.

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You might ask how it is possible that there is no direct mention of the shipping industry in the Paris Agreement at COP21. Many people wonder just how much air pollution is created by the shipping industry and who is working to improve this mysterious source of greenhouse gas emissions?

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Federal hazardous materials transportation laws assign the Department of Transportation’s (DOT’s) Pipeline and Hazardous Materials Safety Administration (PHMSA) general authority to designate hazardous materials and prescribe regulations for the “safe transportation of hazardous materials in intrastate, interstate, and foreign commerce.” PHMSA also prescribes criteria for handling hazardous materials, including training of personnel, inspections, and standards for operating and monitoring equipment.

These laws also authorize PHMSA and other DOT units to issue "special permits" that allow variances from federal requirements for up to two years. These special permits may be renewed for up to two years each time (and up to four years for variances from transport routing requirements). In 2012 “MAP-21” (Moving Ahead for Progress in the 21st Century Act) directed PHMSA to review special permits that had been in place for at least 10 years, and to adopt regulatory revisions by October 1, 2015. PHMSA was to apply the following factors to determine the suitability for adopting a special permit into its hazardous materials regulations (HMR):

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The Occupational Safety and Health Administration (OSHA) recommends that all employers create and maintain plans for dealing with emergency conditions. In particular, some OSHA standards require employers to create an emergency action plan (EAP) as part of their compliance programs.

Even if your organization is not required to do so, you should consider the benefits or being prepared to conduct emergency responses and evacuations. Well-developed emergency plans and proper employee training (so employees understand their roles and responsibilities) likely will result in fewer and less severe employee injuries and less structural damage to the facility during emergencies. A poorly prepared plan, on the other hand, likely will lead to a disorganized evacuation or emergency response, exacerbating confusion, injury, and property damage.

Which Employers Require An EAP?

The following OSHA Standards require you to prepare an EAP as part of your compliance with their requirements:

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Efforts to prevent and respond to chemical disasters are undergoing their first thorough review since many were created decades ago after December 1984’s catastrophe in Bhopal, India. President Obama triggered these reviews in August 2013, when he issued an Executive Order directing federal regulatory agencies to review specified regulatory programs that are designed to prevent such disasters: Occupational Safety and Health Administration’s (OSHA) Chemical Process Safety Management Standard (PSM); Environmental Protection Agency’s (EPA) Accidental Release Prevention (ARP) program and Emergency Planning and Right-to-Know Act (EPCRA) program; and Department of Homeland Security’s (DHS) Chemical Facility Anti-Terrorism Standards (CFATS) program (I blogged about the EO here, OSHA’s consideration of PSM changes here, EPA’s call for comments on possible ARP revisions here, one of the agencies’ joint reports here, and about subsequent revisions to CFATS here and here). On February 25, 2016 EPA proposed ARP revisions, which I describe below.

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California is a persistent exception to states’ limited abilities to create long-lasting effects on national environmental health and safety (EH&S) programs. One example, well-known here in California but relatively invisible to EH&S professionals outside the state, is Proposition 65.

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Federal laws (commonly referred to as RCRA, after the Resource Conservation and Recovery Act of 1976) provide comprehensive management requirements for parties involved in hazardous waste management, from “cradle to grave” covering generators, transporters, and offsite management facilities. Among these many provisions are requirements that “large quantity generators (LQGs)” submit biennial reports to the Environmental Protection Agency (EPA) or delegated states in March of every even-numbered year. March 2016 is the next such deadline, so now is a good time to review biennial report requirements.

Who Must File Biennial Reports?

A facility that was an LQG during calendar year 2015 must file a biennial report. LQGs are defined as a facility that generates either of the following during a calendar month:

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The 2012 Jumpstart Our Business Startups (JOBS) Act enacted a number of changes to national securities laws intended to make it easier for small companies to raise capital privately, before having to confront the possibilities of initial public offerings or acquisition. One important piece directed the Securities and Exchange Commission (SEC) to enact rules to allow “crowdfunding” of qualifying small capital issues without requiring registration of the securities or issuer with SEC itself. The JOBS Act directed SEC to issue its rules by January 2013, but SEC only completed the task in November 2015, with rules that will become effective in May 2016. (I blogged about the proposal here) SEC’s new Regulation Crowdfunding (codified as 17 Code of Federal Regulations (CFR) part 227) defines requirements for issuers, and a new category of registered entities called “intermediaries”, who must register with SEC as brokers (using pre-existing rules) or as a new category of party called “funding portals.”

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On December 11, 2015, representatives of 195 countries agreed to continue to expand global efforts to combat climate change. The new Paris Agreement breaks a longstanding impasse with a clever mixture of binding but unenforceable commitments, and present agreements and ongoing agreements-to-agree. It creates a structure that might, or might not, evolve fast enough to prevent the catastrophic climate changes otherwise predicted by most scientific experts.

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