Q1 EHS Regulatory Compliance Update

Q1 EHS Regulatory Compliance Update

It’s hard to believe that we’re already through the first quarter of 2017, but here we are.  A lot has happened during Q1 in regards to environmental, health and safety regulations and policy so I’ll do my best to cover the highlights in this blog post.

Topics:

▪     OSHA Update: New Rules and Deadlines

▪     The Trump Effect on EHS Regulations

▪     EPA Office of Small Business Hosts TX Environmental Regulations Stakeholder Meeting To Discuss Potential Roll-Backs

 

OSHA Update:

New Rules & Deadlines:

New Silica Exposure Rule:

Compliance & Enforcement for OSHA’s new Construction Silica exposure rule was originally scheduled to go into effect on June 23rd, 2017, but 2 weeks ago OSHA extended the deadline to September 23rd, 2017 to give companies more time to get prepared and achieve compliance.

Compliance and enforcement for General Industry and Maritime is still June 23, 2018.  For oil and gas/Hydraulic Fracturing, compliance is also required by June 23, 2018, except for the Engineering Controls portion which don’t go into effect until June 23, 2021.

For more information on OSHA’s website, click here

Walking & Working Surfaces & Personal Protective Equipment for General Industry:

This rule doesn’t impact Construction, only General Industry, but is apparently intended to align the two standards as much as possible.  It’s been in the works for many years and addresses hazards associated with ladders, ramps, floors, scaffold systems, platforms and walkways as well as falling objects.  It addresses prevention of slips, trips & falls and includes specific guidance for fall protection systems & personal fall protection systems.

For more information on OSHA’s website, click here.

Most of the new rule went into effect on 1/17/2017 and the training deadline for employees is fast approaching on May 17th, 2017 (note that not all employers are required to meet this training requirement or deadline, depending upon their operations and hazards).

OSHA 300 Log Injury & Illness Recordkeeping Update

In December of last year OSHA issued an updated rule to clarify that employers have an ongoing requirements to maintain injury and illness records. The new rule doesn’t add any new compliance obligations, but now makes clear that employers have an “ongoing obligation” to maintain recordable injuries and illnesses lasting 5 years.

Apparently the need for clarification arose when OSHA was sued and a judge ruled that an employer couldn’t be cited for a record keeping error that occurred over 6 months ago. OSHA standards state that an employer can’t be cited for a workplace HAZARD that was present over 6 months ago, but for some reason the judge attached the same 6 month deadline/period to the record keeping error. As a result OSHA issued the December clarification to ensure that employers know that there isn’t only a 6 month requirement for properly maintaining OSHA logs, it’s ongoing for 5 tears. This final rule went into effect on January 18th, 2017 and impacts OSHA 300, 301 and 300A logs.

**Read below to see how Trump is attempting to roll-back this new rule**

The Trump Effect on EHS Regulations:

As the owner of an environmental, health and safety consulting business, you can bet that I’ve been very focused on monitoring the Trump administration’s first few months in office to see how the administration might impact OSHA and EPA regulations.  As we all know, one of his major campaign platforms was his promise to “roll back regulations that bloat government and kill jobs.”   The term “regulations” is vast, and includes everything from healthcare, to banking, to payroll, to energy production, but obviously includes EHS regulations as well.  The big question for us is whether or not he will attack the EHS regulations that apply to small manufacturing, construction and industrial services (our client base and a very large portion of our economy), and if so, to what extent.

Legislative Realities: 

To begin with, it’s important to understand that despite Mr. Trump’s roll-back promises and agenda, he’s greatly limited as to what he can accomplish due to the confines of the legislative process.  To make a long story short, a sitting President can’t simply kill regulatory laws with the swipe of a pen.  The process of repealing laws is essentially the same process of creating those laws to begin with, but in reverse.  In other words, not only is repeal a very time consuming and resource intensive process, but it must also make legislative sense and pass objective legal criteria before being approved.  Courts can shoot down proposed changes that don’t meet these standards and have done so repeatedly in the past when politicians attempted to make “capricious“ changes.

Sure, the President could plow forth despite these obstacles, but powerful stakeholders would certainly respond with counter lawsuits that would take years to resolve.  Depending on the issue, those stakeholders could include strong, well funded environmental advocacy groups as well as labor unions (interestingly enough, the same labor unions who represent many of the same workers that Mr. Trump promised to advocate for during his campaign).

Despite these legislative hurdles, the President can make use of an obscure law called the Congressional Review Act to achieve part of his regulatory agenda.  This law allows the President and Congress to review and repeal recently passed executive orders and laws.   As you’ll see if you keep reading, Mr. Trump and Congress have already used this tool to roll back a couple of health and safety rules.

The bottom line is that the fundamental EHS laws that impact most small businesses are here to stay and won’t change.  On the OSHA side, employers are still required to provide health and safety training to their employees, conduct routine inspections to identify and correct workplace hazards, maintain OSHA 300 logs, develop and maintain written programs, and so on. And companies who fail to do so not only put their employees at risk, but also face stiff OSHA fines and penalties if they get inspected. On the EPA and TCEQ side, companies are still required to manage their storm water, air emissions, hazardous waste management and hazardous materials reporting requirements.  Only the recently passed EHS laws and rules are at risk for change or roll-back, and those are minimal.

To learn more about these issues, checkout this blog post that I wrote in February which dives into more detail on these 2 issues.

Appointees:

The first real clues regarding Trump’s intentions came in January when he announced his appointees to run the Environmental Protection Agency (EPA) and Department of Labor (DOL).  (For those who don’t know, OSHA is a department within the DOL).

His appointees proved to be consistent with his anti-regulation agenda.  Scott Pruitt, former Attorney General of Oklahoma, was appointed to run the EPA.  Mr. Pruitt has close ties to the oil and gas industry, and has sued the EPA on 14 different occasions. Trump originally appointed Andrew Puzder to run the DOL.  Mr. Puzder is the CEO of CKE Restaurants, operator of Hardies and Carl’s Jr., and has an anti-regulation record in regards to his opposition to over-time & payroll rules, but during the nomination process claimed to want to protect worker’s health and safety.  We’ll never know exactly where he stands on these issues because he wound up pulling himself from consideration prior to confirmation hearings due to major controversies over, among other things, very public accusations of domestic abuse from his former wife.     Trump later appointed Alex Acosta to run the DOL.  Mr. Acosta was formerly dean of the Florida International University College of Law., and is a much less controversial figure with no clear anti-regulation stance or record.  During his confirmation hearing on arch 22nd, Acosta dodged very direct questions surrounding OSHA’s updated Silica rules, leaving Democrats frustrated and unable to gauge his likely position on health and safety issues, however he enjoys Republican support and therefore will likely follow Trump’s anti-regulation stance.

Roll Backs:

Here’s what’s actually happened regarding EHS regulation changes since Trump & Pruitt took office.  It’s important to note that none of the environmental regulation changes directly impact small manufacturing, construction or industrial services businesses, while the OSHA changes do.  (See the final section of this email to learn more about how environmental regulations that impact both sectors might be changed in the future in Texas)

Environmental Roll Backs:

  • On March 28th Trump signed an executive order that rolled back rules designed to reduce carbon emissions, lifted a moratorium on federal coal leases and removed a mandate that federal officials must consider climate change impacts before making new laws.
  • Previously, Trump rolled back limits on extraction and burning of fossil fuels and eliminated a system requiring energy companies to pay federal emissions royalties.
  • Trump proposed to cut EPA’s budget by 31%. His budget hasn’t been finalized or approved but clearly shows his intentions. If approved, budget cuts would likely result in reduced environmental compliance enforcement efforts and resources.

Health and Safety Roll Backs:

This was a 2-part move and included Congresses repeal of a portion of OSHA’s new Injury & Illness Recordkeeping rule and Trump’s blocking of the Fair Pay and Safe Work Places Executive order.  Both parties utilized the rarely used Congressional Review Act which allows congress 2 months to repeal recently implemented regulations.

Injury & Illness Recordkeeping Rule:

The congressional move didn’t repeal the entire rule, just a portion of it.  This is a very important distinction.  The new rule included a requirement for employers to maintain injury and illness records for 5 years after the event, which therefore allowed OSHA the right to fine employers for up to 5 years, rather than just 6 months, which has now been eliminated.  Trump has yet to sign this move into law but probably will soon.

Keep in mind that this change doesn’t include the new provisions requiring employers to electronically submit their OSHA 300A summary logs beginning January 1st, 2017.  This was the major change in the new rule, and is still intact!

Fair Pay and Safe Work Place:

Trump, in a separate move, repealed the Fair Pay and Safe Work Place act.  This included a provision requiring contractors and sub-contractors to disclose labor and employment violations when submitting bids for Federal contracts worth at least $500,000.  This is why some referred to the rule as the “black-listing rule.”  Opponents claimed that the rule included a requirement to include even allegations of violations.  These disclosures would be used to determine which contractors were qualified to bid.

The Trump administration has been more focused on rolling back environmental regulations primarily having to do with energy production and emission reductions, but has now begun attacking health and safety regulations.  Will this trend continue?

EPA -TCEQ Environmental Regulations Stakeholder Meeting

Trump’s regulations roll back agenda has apparently made its way to Texas. TCEQ recently announced an EPA hosted webinar stakeholder meeting scheduled for this Thursday the 20th.  The meeting is hosted by the EPA Office of Small and Disadvantaged Business Utilization and is intended to allow concerned parties from industry and small business to submit environmental regulations they believe should be “repealed, replaced or modified, consistent with applicable law” (i.e. this last point is in accordance with the anti-capricious standard mentioned before).  Some of the more common applicable regulations impacting industry, including Texas manufacturers, include Storm Water Permits/Storm Water Pollution Prevention Plans, Spill Prevention Control & Counter Measure (SPCC), Air Emission Authorizations such as PBRs/Title V Air Permits/NSR Permits, Hazardous Waste Management Regulations, and Hazardous Materials reporting such as TRI and Tier II.

(I subscribe to a weekly TCEQ update email and found the meeting notification buried amongst a long list of other topics, with no particular highlight or attention grabbing headline.  For whatever reason, it doesn’t seem like TCEQ is going out of their way to promote the agenda nor the meeting.  If so, I would have expected TCEQ to have sent out a special notification.)

I registered and attended the event today.  Below is the list of stakeholders, and the regulations they chose to discuss.

1.)    Clean Power Plan – Ned Hutchinson

2.)    Beneficial Use of Sewage Sludge –  Chad Sledge

3.)    Water Systems Regulations in Texas- Bruce Motheral

4.)    NESHAP Autobody Rule – Tony Pendola

5.)    NSPS JJJ Drycleaning Rules – Tony Pendola

6.)    Overlap/redundancy between the EPA Title V Permit and the TCEQ NSR Permit-  Laura Rectenwald

7.)    NPDES/ 40 CFR 63 Limitations- Laura Rectenwald

8.)    Steele Tanks/Convenience Stores – Jack Burgess

9.)    National Ambient Air Quality Standards- Stephen Pavel

10.) Water Regulations – Nick Russo

11.)  Role of Clean Water, Air and Stable Climate – Eric S. Miller

Here are my notes and impressions from the meeting:

Each speaker was given 5 minutes to present their case and discuss their concerns.  The meeting was scheduled to go for 3 hours, but only lasted about 1.5 hours.

Recall that the purpose of the meeting was to allow presenters to  submit environmental regulations they believe should be “repealed, replaced or modified, consistent with applicable law.”  All of the speakers were from Texas, were very well informed, and most were EHS professionals, either consultants, company or government staff experts or environmental advocates.  It was interesting to note that in contrast to Trump’s harsh anti-regulation rhetoric, all of the speakers chose to either focus on requesting slight modifications to existing environmental regulations (as opposed to repealing or replacing them)  or advocated heavily in favor of environmental regulations and enforcement .  I had really expected some of the speakers to rail against certain regulations and demand their elimination, but that never happened.

The discussions were very technical and dug deep into the weeds of their chosen regulation.  For example, one speaker discussing Storm Water regulations requested that the quarterly SWPPP inspection requirements be eliminated for companies with less than X number of acres.  Another speaker bickered about the overlap between Title V and New Source Review air permits, and how this redundancy creates added and unnecessary costs for affected companies.  Another speaker discussed the coatings industry and applicable air regulations.  She requested modification to certain reporting requirements and spoke in detail about the new Ozone reduction standard that she believes will harm the industry, create unnecessary costs and reduce growth opportunities.  She requested that EPA revert back to the 2008 standard rather than enforcing the new reductions and give more time for review of such regulations before they’re implemented.

Other speakers chose to advocate in favor of environmental regulation and enforcement, and discussed the costs of failing to do so.  A couple of speakers discussed how failure to enforce existing air and water regulations could result in serious health hazards for affected residents, such as lead poisoning and premature births.  Another speaker talked about how a company who chooses to ignore environmental regulations, and pollutes a river with hazardous waste rather than pay for proper disposal for example, essentially ends up passing that cost to the local community and residents who ultimately have to pay for the cleanup, while at the same time losing the benefits from the polluted river.  He referenced an article from the 50’s published in Science Magazine called “The Tragedy of The Commons” which is “an economic theory of a situation within a shared-resource system where individual users acting independently according to their own self-interest behave contrary to the common good of all users by depleting or spoiling that resource through their collective action.”  I’d never  heard of the article, but it’s a powerful argument in favor of environmental regulation and how following and enforcing these regulations benefits everyone.

In summary, the meeting was originally intended to give stakeholders the opportunity to protest and push back against environmental regulations, but that never really happened.  I had expected that anti-regulation groups, or their members, would attend the meeting to voice their opposition to environmental regulations and push their agenda, but  none of those stakeholders chose to attend.  That was surprising for me, especially in a state like Texas!  Maybe it’s because EPA and TCEQ chose not to heavily promote the event (so these  stakeholders were unaware of the opportunity) or maybe it’s because there’s  more support for these regulations than the Trump administration believes? In any case, if similar stakeholder meetings in other states go like this one, it might make it a lot tougher for the Trump administration to push this agenda through.  I had hoped for the meeting organizer to talk about where the process goes from here, but she didn’t other than  to say that she “looks forward to continuing the dialogue.”  Only time  will tell,  but I promise to monitor the situation closely and post updates here as necessary.

Thanks for reading.

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