Audit, Compliance and Risk Blog

As I’ve discussed in recent blogs, President Trump’s executive agencies, including the Environmental Protection Agency (EPA), are dramatically reducing federal attention to “climate change.” Obama-era initiatives are being terminated or reversed, and planning and communication are being reduced or eliminated. (For example, I noted in my recent discussion of EPA’s draft Strategic Plan, here, that the draft does not mention the phrases “climate change” or “greenhouse gas” even once).

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Although Environmental Health and Safety (EH&S) requirements target hundreds of micro-organisms (primarily viruses and bacteria), important hazards remain unregulated. Many await definitive scientific conclusions, but others need testing and control methodologies that would allow requirements to be designed and administered, sufficient regulator and regulated entity resources, and/or high enough political priorities. Until recently, one of these unregulated pathogens has been the legionella bacterium, first identified in 1976 as the cause of “Legionnaire’s disease,” which appears as a form of pneumonia.

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Since 1991, Safe Drinking Water Act’s (SDWA) Lead and Copper Rule (LCR) has required public water systems (PWSs) to take steps to protect their customers from hazardous levels of lead in drinking water. Even before the highly-publicized crisis in Flint, Michigan, the Environmental Protection Agency (EPA) has been working toward LCR revisions that would update and expand these protective measures (continuing ongoing efforts that produced revisions in 2000 and 2007).

In October 2016, EPA produced a White Paper announcing the “urgent need” for revisions, describing key issues and possible revisions, and projecting to propose extensive LCR revisions during 2017. However, since President Trump assumed office, EPA’s priorities are shifting and its resources are being reduced (for example, I wrote about EPA’s Back-to-Basics Agenda here). Most recently, EPA’s formal agency-wide regulatory agenda now postpones the issuance of a Notice of Proposed Rulemaking (NPRM) until January 2018 and a final rule until June 2019. While we await action, it’s worth considering how PWSs can reduce lead exposures, particularly since building owners and employers might consider improvements to plumbing and fixtures that could improve workplace water quality.

What Does LCR Require?

The LCR divides PWSs into three groups based on the numbers of customers served, and assigns tailored responsibilities for testing, corrosion control, source water treatment, and pipe replacement. The three groups are:

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In December 2015, representatives of 195 countries agreed to continue to expand global efforts to combat climate change. The new Paris Agreement broke a longstanding impasse with a clever mixture of binding but unenforceable commitments, contemporary agreements, and ongoing agreements-to-agree (I wrote about the Agreement here). Since then, analysts have estimated that full implementation of these national targets would reduce greenhouse gas (GHG) emissions by about half the amounts necessary to accomplish the Agreement’s stated goal by holding average global temperature increases below 2 ^o C. Incomplete national successes – President Trump’s decision to back off U.S. commitments is the first and most obvious example – would leave even more to be done.

The Paris Agreement anticipated that sub-national governments and private organizations would contribute to global progress, by meeting and often exceeding national requirements (I wrote about formal United Nations programmatic expectations here).

One of the non-governmental efforts is the Science Based Targets Initiative, through which individual companies can set GHG-reduction goals. At latest report, over 300 companies participate.

What is the Science Based Targets Initiative?

The Initiative is a multi-sector collaboration among the following international organizations: CDP (formerly called the Carbon Disclosure Project), World Resources Institute (WRI), the World Wide Fund for Nature (WWF; formerly World Wildlife Fund), and the United Nations Global Compact (UNGC). Participation in the Initiative is also identified as one of the commitments under the We Mean Business Coalition, which is another international business initiative. The Initiative defines “science-based targets” by reference to the Initiative’s effort to support the 2^o C target (which the Initiative refers to as the “2°C pathway”):

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EPA Administrator Scott Pruitt has, by word and individual action, been moving the Environmental Protection Agency (EPA) away from President Obama’s aggressive agenda and toward President Trump’s preference for reduced activity. These have included a less-regulatory “Back-to-Basics Agenda,” which I described here. Now the agency is proposing to formalize these priorities in its strategic plan for the next four fiscal years, 2018-2022.

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One of new Environmental Protection Agency (EPA) administrator Scott Pruitt’s many initiatives has been to change his agency’s approaches to cleanups under the national Superfund law. He announced several basic policy changes in May, and convened a Superfund Task Force to develop detailed recommendations. The task force issued its report late in July, offering 42 recommendations. These are summarized below.

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One of California’s longstanding amplifications of national environmental health and safety (EH&S) programs is provided by “Proposition 65.” I summarized these provisions here. As I described, the main thrust of this 1986 state enactment is to provide warnings about potentially hazardous chemicals, to customers, workers, and other “potentially exposed individuals." Prop 65 provides sample texts for warnings, including “safe harbor” text for product labels and in-store signage. After 30 years, the state is revising these safe harbors to be more informative. Revised safe harbor text became available for use August 30, 2016 and replace their expiring predecessors on August 30, 2018. Since we’re half way through this two year transition, it’s a good time to review.

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Although environmental health and safety (EH&S) regulations focus primarily on safe handling of materials and wastes during routine operations, reports following hurricanes Harvey and Irma, and the major earthquake in Mexico, should remind us to plan to prevent releases from non-routine situations, up to an including natural disasters. Press reports include the following:

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The presence of “hazardous” materials in your workplace can trigger a wide variety of environmental health and safety requirements. The Occupational Safety and Health Administration (OSHA) and state worker protection agencies issue standards to protect workers during occupational handling and storage. The US Environmental Protection Agency (EPA) and state environmental agencies issue requirements governing the management of hazardous wastes, and emissions to a variety of environmental media (air, water and land).

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Nearly all regulatory laws provide for civil – and sometimes even criminal – penalties for noncompliance. Penalty amounts (“XXX dollars per day of violation” for example) are typically adopted as part of the original legislation. But over time, the relative sting of these penalties declines with inflation. To counteract the possibility that less painful penalties will be less effective incentives for compliance, U.S. federal law has directed most agencies to make periodic “cost of living” adjustments to maximum available civil penalty levels (there are no provisions for standing periodic adjustments to criminal penalties).

How Did These Requirements Work During 1990-2016?

The first version of this approach was enacted by the Federal Civil Penalties Inflation Adjustment Act of 1990, which directed the President to report annually on any adjustments made under existing statutory authority, and to calculate what such adjustments would have been if more agencies had the authority to make them.

Congress amended the Act in 1996 to require most agencies to make inflation adjustments every four years, but precluding adjustments to penalties under the following:

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