Will The Trump Administration Reduce OSHA Enforcement and Environmental-EPA Enforcement Efforts As Part of His “Regulation Roll-Back” Initiative?
In a recent blog post, I discussed how the Trump administration’s promise to “roll back regulation” could potentially impact the environmental, health and safety regulations that impact small businesses and industry. That blog post ended off with speculation that roll-back efforts would likely include reductions to both OSHA and EPA enforcement budgets as well as installation of less enforcement minded management. In other words, the new administration could more easily manipulate budgets and management as part of “roll back” efforts, than the more time and resource intensive costs associated with actually trying to change EHS regulations and laws. If this turns out to be true, what might reduced EHS enforcement efforts look like and how might that impact small businesses and industry? This blog post will briefly explore how reduced enforcement efforts might play out with OSHA (Federal & state plans), EPA and state environmental agencies.
The Current State of EHS Regulatory Enforcement
Let’s begin by briefly describing the current state of EHS enforcement in the US as a starting reference point for this discussion.
OSHA, EPA and state regulatory agencies are vastly under staffed and resourced to adequately inspect the many thousands of American companies impacted by EHS regulations, and follow through with enforcement actions when needed. That has been the status quo situation for decades, regardless of administration and will probably never change.
The point being that even if the Trump administration reduces OSHA and EPA enforcement efforts, the overall enforcement risk for any given company isn’t going to change that much, because it’s already relatively low. Don’t get me wrong, companies get inspected and fined every single day, especially those who completely ignore their EHS compliance obligations, but the overall risk of an inspection happening for any given company isn’t going to change much regardless of what the Trump administration does. The remainder of this blog post will support this viewpoint.
Approaches to Enforcement: OSHA vs. Environmental
Let’s continue by briefly comparing the underlying enforcement approaches/“philosophies” of health & safety vs. environmental agencies.
Of the EHS agencies, OSHA (both Federal and state agencies) are generally more aggressive in their enforcement efforts than EPA and state environmental agencies. At least that’s the case in Texas, where most of my experience lies. What I mean by this is that OSHA typically issues citations and stiff fines for any and all violations that an enforcement officer notes, regardless of the intent or best efforts of the offending company. Again, this applies to Federal OSHA states as well as for state run health and safety programs, such as Cal-OSHA.
On the other hand, environmental enforcement officers are more likely to reserve severe penalties for willful or repeat violators (companies who intentionally ignore or violate regulations, or repeatedly violate). As one TCEQ prosecutor explained to me, “We’re going after the bad actors. Companies and people who know that they’re breaking environmental laws but keep doing so for whatever reason.” In instances where it appears that a company is making reasonable efforts to comply, Environmental inspectors will often issue much lower cost fines and/or “administrative” citations, or even offer assistance to correct problems. Of course this isn’t always the case, but that’s been my general experience.
Regardless of funding reductions and management changes, I would expect that OSHA Federal and State agencies will continue to be more aggressive than EPA and state environmental agencies.
Now that we’ve briefly discussed the current state of EHS enforcement in the US, let’s move forward to explore how enforcement budgetary cuts and management changes could potentially change this situation.
OSHA (Federal & State):
OSHA enforcement budget cuts would likely result in a fewer number of compliance officers available to conduct enforcement inspections, and therefore a fewer number of enforcement inspections occuring each year. But the inspections that do occur could potentially be more “comprehensive” in nature. Comprehensive OSHA inspections scrutinize virtually all areas of health and safety compliance, including: written programs, employee training records, health testing, record keeping, etc. As you might expect, comprehensive inspections result in higher average fines and citations per inspection.
Why is this a likely outcome?
OSHA prioritizes inspections by severity. More severe “triggers” such as fatality investigations, high injury & illness records, & “Programmed Inspections” get priority and are more comprehensive in nature, as opposed to less severe “employee complaint” and “drive-by” inspections which typically only focus on certain hazards, thus resulting in less citations and fines.
In other words, OSHA might increase the # of comprehensive inspections in order to compensate for fewer # of overall of inspections. If that were the case, then yes, the average company would have lesser risk of being inspected, but if OSHA does knock on the front door, that company better be ready or face sever consequences.
Then again, maybe OSHA continues with it’s current overall inspection policy, and there’s just fewer inspections each year; comprehensive and otherwise. Only time will tell.
EPA & State Environmental Agencies:
On the environmental side, and as already discussed, companies who’re making reasonable efforts to comply with common environmental regulations such as storm water permitting and Storm Water Pollution Prevention Plans, hazardous waste management, air permitting and air authorizations, and the various Hazardous Materials regulations such as DOT, SPCC, TRI Reporting, EPCRA, don’t really face significant risk today and will face even less risk if any enforcement reductions are made. Since EPA and state environmental agencies have historically tended to focus their enforcement efforts towards “bad apples”, when faced with enforcement cuts will likely just direct whatever enforcement resources that are available towards those “bad apples.” In other words, I don’t see a major overall risk shift for any given company, except for companies who intentionally and repeatedly ignore their environmental and hazardous materials compliance obligations.
How Could EHS Enforcement Cuts Impact Individual States?
This is an important and complicated question and impacts health & safety regulation differently than environmental regulation.
Let’s begin with OSHA. For those who don’t know, 28 states operate under Federal OSHA whereas 22 states have their own “state health and safety plans.” For example, California, Oregon and New York have their own state run health and safety plans. All state run plans must “meet or exceed” Federal OSHA laws and standards. In other words, just because the Trump Administration cuts Federal OSHA enforcement funding and shifts management towards a more “business friendly,” anti-enforcement direction, this doesn’t necessarily mean that the state plans will follow their lead. In many cases, they probably won’t.
Again, the important point is that just because Federal OSHA cuts enforcement efforts, doesn’t necessarily mean that state plans will do the same.
On the environmental side, remember that EPA dictates Federal environmental and hazardous materials regulations, but each state has their own environmental compliance agencies who must meet or exceed federal EPA standards. Therefore the same principal applies: just because Federal EPA enforcement cuts are made, doesn’t necessarily mean that state agencies will follow suit.
The only exception would be Federal regulations that directly apply to individual states, such as Title V air permits, Superfund, etc.
EPA funds state agencies, so there will probably some impacts, but the overall effect is uncertain.
On a final note, it’s interesting to note that Scott Pruitt, Trump’s EPA administrator, is on record supporting state level regulation. In other words, he’s going to have a hard time pushing his federal level agenda down the throats of state regulators, given his stance on this issue. In other words, he could reduce Federal EPA enforcement, but given his position, couldn’t expect state environmental agencies to do the same.
I’ll end off by discussing another enforcement related issue, which is criminal prosecution of business owners and management for environmental, health and safety violations.
Criminal Prosecutions of Business Owners & Management for EHS Violations:
It’s important to note that whereas OSHA rarely includes criminal prosecutions in their enforcement efforts, EPA does. In other words, Federal environmental enforcement laws include provisions for stiff criminal penalties, including jail time and huge fines that can run into the $millions of dollars, whereas OSHA can only pursue criminal prosecution in cases where it can be proven that businesses owners willfully ignored safety hazards that directly lead to the death of an employee(s). In addition, OSHA fines are capped at $250,000. This situation may be changing.
In 2015 the Department of Justice and Department of Labor jointly created the “Worker Endangerment Initiative” which is aimed at adding the same, broader criminal liabilities for OSHA violations that currently exist with EPA. It’s still unclear how this initiative will play out over the long term, but early evidence shows that criminal prosecutions of business owners and management for health and safety issues are on the rise.
More information can be found here: https://www.justice.gov/enrd/worker-endangerment
Whether or not the Trump administration supports and expands this initiative remains to be seen, but it’s not hard to imagine that they won’t.
In summary, OSHA, EPA and state level EHS enforcement isn’t going away. Moreover, regardless of what the Trump administration does, the overall enforcement risk for any given company isn’t going to change significantly. This is a reminder that companies need to acknowledge their EHS compliance obligations and proactively implement and manage their OSHA and environmental compliance programs, not only to avoid costly enforcement actions, but to protect their employees, communities and their business interests.