Audit, Compliance and Risk Blog

Congress Accelerates And Expands Civil Penalty Inflation Adjustments

Posted by Jon Elliott on Thu, Jan 28, 2016

Laboring under a host of compliance requirements, a weary environmental health and safety professional might be tempted to mutter “Well, what if I don’t?” Of course the answer is that the organization–and maybe the EH&S professional–could face civil and even criminal sanctions from regulators and prosecutors. These sanctions are written into the laws and regulations in order to encourage compliance and punish non-compliance, and they’ve just been revised…but how effective is such encouragement?

Activists and politicians have long argued that potential punishments might be treated as a cost of doing business, and if that cost is low enough compared with the cost of compliance that some organizations may choose to ignore the requirements and take their chances. This possibility grows over time, if nominal penalty levels are left unchanged while inflation effectively reduces them.

To counteract inflationary erosion of these the effects of inflation, for the past quarter century 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). 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.

How Has The Act Worked Since 1996?

Congress amended the Act in 1996 to authorize and require most agencies to make inflation adjustments every four years. The exceptions precluded cost of living adjustments to penalties under the following:

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Tags: Health & Safety, OSHA, EHS, EPA

EPA Adopts Rules For Electronic Clean Water Act Reporting

Posted by Jon Elliott on Tue, Jan 26, 2016

The Clean Water Act (CWA) provides detailed national requirements, under which the U.S. Environmental Protection Agency (EPA) and states cooperate to establish water quality goals, and administer planning and discharge permit programs to preserve and enhance water quality nationwide. To improve the efficiency of these massive efforts, EPA has launched a series of initiatives to provide for electronic reporting and data management. Effective December 21, EPA has adopted extensive revisions to CWA rules to require electronic reporting instead of paper reporting under a wide variety of CWA provisions. These rules provide facilities with deadlines after 12 months (“Phase 1”) for high-priority discharger reports, and 5 years (“Phase 2”) for other discharger requirements. They also provide a series of deadlines for state regulators to share and report information electronically, ranging from 9 months to 6 years from now. EPA emphasizes that these revisions do not increase the amount of information reported by various entities, and so asserts that entities’ reporting burdens should actually diminish once they’ve managed their transition to the new methodologies. EPA also anticipates significant benefits from data sharing among agencies.

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Tags: Health & Safety, EHS, EPA, Hazcom, Stormwater

EPA Proposes To Revise Hazardous Waste Generator Requirements–Part 2

Posted by Jon Elliott on Wed, Jan 20, 2016

Separate Summaries For Generator Categories

In September, EPA published substantial regulatory revisions (which EPA entitles collectively as the Hazardous Waste Generator Improvements Rule) to its regulation of hazardous waste generators under the Resource Conservation and Recovery Act. In Part 1 of this series of blogs (click here), I summarized the principal revisions. In this Part 2 I recast the proposal to compile changes applicable to different categories of generators: 

  • “Conditionally exempt small quantity generators (CESQGs)” – which are being renamed as “very small quantity generator (VSQG)”.

  •  Small quantity generators (SQGs).

  • Large quantity generators (LQGs).

What Requirements Would Apply To VSQGs?

EPA’s proposes to rename Conditionally Exempt Small Quantity Generators (CESQGs) as Very Small Quantity Generators (VSQGs), and to offer these generators additional flexibility. Eligibility for this category continues to be determine based on the following monthly waste generation volumes: Read More

Tags: Health & Safety, OSHA, EHS, EPA, Greenhouse Gas, Hazcom

EPA Proposes To Revise Hazardous Waste Generator Requirements–Part 1

Posted by Jon Elliott on Mon, Jan 18, 2016

Summary Of Proposals

The U.S. Environmental Protection Agency (EPA) has spent the last decade considering revisions to its hazardous waste management regulations (issued under federal laws generally referred to as the Resource Conservation and Recovery Act (RCRA)), exploring opportunities to clarify and simplify the text of the regulations and the actions necessary for compliance. In September, EPA published substantial regulatory revisions (which EPA entitles collectively as the Hazardous Waste Generator Improvements Rule) in the Federal Register; comments were due by December 24, after which EPA will decide whether to finalize the changes. EPA calculates that these proposals will include more than 60 changes to specific requirements, and more than 30 additional technical clarifications and corrections. These revisions would clarify some existing provisions, remove some longstanding requirements, and also add some additional new requirements. Some requirements apply to nearly all generators, while others are targeted at one or more of three volume-based tiers.

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Tags: Health & Safety, OSHA, EHS, EPA, Hazcom

Environmental Justice: A Brief History

Posted by Rebecca Luman on Tue, Jan 12, 2016

Over the past two decades, society has grown increasingly conscious of pollution’s particular impacts on communities with minority and/or low-income populations. Awareness that these communities seem to bear a disproportionate amount of adverse health and environmental effects led to the multi-agency establishment of the National Environmental Justice Advisory Council in 1993 and issuance of Executive Order (EO) 12898 in 1994, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations. Since then, EPA, as the primary federal agency responsible for protecting human health and the environment, has taken a lead role in helping other federal agencies implement the EO.

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Tags: EHS, EPA

EPA Revises the Agricultural Worker Protection Standard

Posted by Jon Elliott on Wed, Nov 25, 2015

The US Environmental Protection Agency (EPA) administers a Worker Protection Standard (WPS) designed to protect workers exposed to agricultural pesticides. WPS is patterned after the Occupational Safety and Health Administration (OSHA's) Hazard Communication Standard (HCS) for workers in most other industrial and commercial settings. EPA adopted the WPS in 1992, and just adopted its first revisions late in September 2015. Some of these changes incorporate revisions to HCS adopted by OSHA in 2012 (see here), while others catch up on two decades of industrial hygiene and worker safety practices. The revisions will appear in the Federal Register (probably in November) and become effective 60 days later. Compliance deadlines extend for up to 2 years for the various changes.

What Does WPS Require Now?

I summarized longstanding WPS requirements when I blogged last year about EPA’s proposed revisions (click here ). To further summarize my summary, WPS requires employers whose employees work with or around pesticides to provide the following:

  • Pesticide safety training

  • Labeling information

  • Specific information including pesticide-specific training within 5 days after beginning work (“grace period”), supplementing immediate emergency information and a pesticide safety poster

  • Requirements to keep workers out of areas being treated with pesticides, within nurseries and greenhouses (“buffer”)

  • Requirements to keep workers out of areas during a restricted-entry interval (REI) set for each pesticide

  • Protect early-entry workers doing permitted tasks in pesticide-treated areas during an REI, including special instructions and personal protective equipment (PPE)

  • Required warning to nearby workers about pesticide-treated areas (oral and/or warning signs, depending on the chemical)

  • Monitor handlers using highly toxic pesticides, at least every 2 hours

  • Provide required PPE to handlers (e.g., clothing, respirators)

  • Provide decontamination supplies

  • Provide for emergency assistance.

Some requirements apply on behalf of all agricultural workers who may be exposed, plus additional requirements for pesticide handlers who work with regulated pesticides.

What Changes is EPA Adopting?

EPA has adopted a wide variety of revisions, including provisions that have changed significantly from last year’s proposal. Revisions include:

  • Training (compliance deadline delayed for 2 years):

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Tags: Employer Best Practices, Health & Safety, Employee Rights, Environmental risks, Environmental, EPA

EPA Proposes To Revise Hazardous Waste Import-Export Requirements

Posted by Jon Elliott on Wed, Oct 14, 2015

The U.S. Environmental Protection Agency (EPA) administers rules governing the import and export of hazardous waste regulated by the Resource Conservation and Recovery Act (RCRA). These rules implement requirements established by RCRA, and also ensure that the U.S. meets its international responsibilities as a member of the Organization for Economic Cooperation and Development (OECD) by creating national rules that meet agreed-upon OECD standards. The proposal should appear in the Federal Register soon, opening a 60 day comment period after which EPA will decide whether to finalize the changes.

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Tags: Health & Safety, Environmental risks, Environmental, EPA, Hazcom, RCRA, Canadian

EPA Catches Volkswagen Cheating On Emission Tests

Posted by Jon Elliott on Thu, Oct 01, 2015

In recent years, VW officials have sometimes been quoted touting their “clean diesel” vehicles by paraphrasing one of their competitors—“this isn’t your grandfather’s diesel.” This month VW finally admitted to the U.S. Environmental Protection Agency (EPA) and customers worldwide that it “isn’t your regulator’s diesel” either. The company had programmed the electronics in millions of vehicles to provide false data during required emissions tests.

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Tags: Health & Safety, Environmental risks, Environmental, EHS, EPA, Hazcom, CAA, Transportation

New York Targets Legionella

Posted by Jon Elliott on Thu, Sep 10, 2015

Although Environmental Health and Safety (EH&S) requirements target hundreds of micro-organisms (primarily viruses and bacteria), regulation of important hazards remain on the drawing boards, awaiting appropriate testing and control methodologies, sufficient resources … and 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” – named after an outbreak at an American Legion convention in Philadelphia traced to the hotel’s air conditioning system. This summer, however, an outbreak in New York has led state and local health agencies to adopt extremely ambitious testing and disinfection programs.

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Tags: Employer Best Practices, Health & Safety, Employee Rights, Environmental risks, Environmental, EHS, EPA

Divided Supreme Court Vacates EPA Fossil Fuel Power Plants Rule

Posted by Jon Elliott on Tue, Jul 28, 2015

Late in June the U.S. Supreme Court issued its latest ruling on the Environmental Protection Agency (EPA) efforts to implement the Clean Air Act (CAA). This time a sharply divided Court voted 5 to 4 to vacate EPA’s attempt to regulate hazardous air pollutant (HAP) emissions from fossil fuel-fired electricity power plants. The justices split over when during a decade-spanning, multi-phase rulemaking did CAA require EPA to calculate the costs and benefits of regulation—the Court majority ruled that this calculation should have occurred in the first round, rejecting EPA’s decision to do so later in the rulemaking sequence.

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Tags: Environmental risks, Environmental, EPA, Hazcom, Oil & Gas