Audit, Compliance and Risk Blog

Among nearly one thousand pages of expansions to Clean Air Act (CAA) requirements, the 1990 CAA Amendments legislation provided for the creation of a national agency to conduct independent investigations of major chemical accidents, to issue accident-specific findings and specific or general recommendations for improved chemical handling and regulation, and to establish chemical accident reporting regulations.  This agency’s formal name is the Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB. CSB was finally funded and began work in federal Fiscal Year (FY) 1997-1998.

On August 23, the federal Court of Appeals for the District of Columbia (DC Circuit) upheld most aspects of the National Ambient Air Quality Standards (NAAQS) for ground level ozone adopted by the Environmental Protection Agency (EPA) in 2015. The Clean Air Act (CAA) requires EPA to create a list of air pollutants based on emissions that cause or contribute to air pollution that may reasonably be anticipated to endanger public health or welfare (criteria pollutants), to establish NAAQS based on these criteria, and to review the NAAQS every 5 years.

The Clean Air Act (CAA) directs the Environmental Protection Agency (EPA) to define “hazardous air pollutants (HAPs)” that may pose acute health hazards, and to impose regulations to reduce those hazards. EPA requires permits for “major sources” of HAPs based on “Maximum Achievable Control Technologies (MACT),” and lesser controls for non-major “area sources.” Since the Trump Administration took office, EPA has pursued several initiatives to make it easier for sources to reclassify from “major” to “area” in order to reduce their regulatory responsibilities. For example, in January 2018 EPA ended a decades-old policy declaring that every emission source that met major source criteria at the time a MACT became effective was “once in, always in” and could not requalify as a less-regulated area source by accepting legally binding controls that reduce its “potential to emit (PTE).” (I wrote about this change here).

Although workplace air quality concerns usually focus on contaminants produced by workplace activities, this summer’s wildfire season provides a reminder that unsafe workplace air may also enter from outside and offsite. On July 18, California’s Occupational Safety and Health Standards Board adopted an emergency rule (8 CCR 5141.1) requiring worker protection from wildfire-produced bad air, which the state’s Division of Occupational Safety and Health (Cal/OSHA) began to enforce effective July 29. In California, you should prepare to comply; if you work someplace else but could be affected by wildfires then this rule provides a useful basis for approaching the issue.

In the last few years, and particularly with the advent of the #MeToo movement, some employers may have seen a rise in the number of harassment complaints in the workplace, including sexual harassment complaints. Employers under federal jurisdiction have been affected as well.

However, the current legal framework surrounding harassment and violence in federally regulated workplaces is fragmented. The results of many public consultations have shown that this framework is not currently designed to adequately address occurrences of sexual harassment and sexual violence.

In that context, in the past 18 months, significant changes have been proposed to the current legislation to address workplace harassment situations.

Among its many provisions, the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA, in this case Section 304) requires facilities to report releases of specified hazardous and extremely hazardous substances, if the release exceeds an applicable threshold reportable quantity (RQ). The Environmental Protection Agency (EPA) administers these requirements, and has just approved an exemption for emissions from animal wastes at farms (this exemption tracks one amended into the Superfund law (CERCLA) in 2018). Other types of facilities and activities are still subject to these reporting requirements, so it’s a good time to review them.

Since President Trump took office, I’ve written in this space a number of times describing specific executive and regulatory initiatives to freeze or reverse environmental regulations. They’ve largely conformed with the President’s antipathy for such regulations, and his appointees’ vigor. Environmental and health advocates have challenged all these changes, continuing to yield court decisions confirming the limits of executive and administrative authority to impose changes (In January 2017 I summarized the limits on various approaches here).

Section 313 of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA, also referred to as SARA Title III) requires selected facilities to file toxic chemical release inventory reports with EPA and their state, on one of two forms (Form R or Form A). This program is often referred to as the Toxics Release Inventory (TRI) program. Filings are due every July 1, so facilities that know or suspect they’re covered should be preparing their annual submissions. The remainder of this blog summarizes TRI requirements.

International controls on shipments of plastic waste will increase effective January 1, 2021. Parties to the 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention) have just adopted amendments to add “plastic waste” to the materials governed by the Convention. The European Union and 186 nations are parties to the Basel Convention; President George Bush signed it on behalf of the United States in 1989, but in the ensuing three decades the U.S. Senate has not yet ratified it. However, the U.S. is subject to requirements adopted by the Organization for Economic Cooperation and Development (OECD), which reflect Basel Convention requirements. Besides, most countries that might receive exports are Basel Convention signatories and should enforce its terms.

Among its many workplace health and safety standards, the Occupational Safety and Health Administration (OSHA) requires employers to protect employees during equipment servicing and maintenance, to prevent “unexpected” equipment energization, start up, or release of stored energy. OSHA’s Control of Hazardous Energy Standard—more often called the Lockout/Tagout or “LOTO” Standard after its primary compliance requirements—requires employers to establish and implement safety procedures to control such hazardous energy. The LOTO Standard has changed very little since OSHA adopted it in 1989, but the agency has just published a formal request for information – public comments – about two changes in workplace equipment over the past 30 years that might affect energy hazards and justify revisions to the LOTO Standard. The rest of this note summarizes existing requirements and discussed OSHA’s review of control circuits and workplace robotics.