The Washington State Department of Labor and Industries (L&I) issued a proposed rule updating process safety management (PSM) standards for petroleum refineries. Washington’s current PSM rule is identical to the federal standard issued by OSHA in 1992 – over 30 years ago. More recently, in late 2017, California revised their regulations on PSM for petroleum
OSHA Enhances Enforcement via “Instance-By-Instance” Citations and De-Grouping Violations
The Occupational Safety and Health Administration (OSHA) recently released two memos instructing enforcement officers on “instance-by-instance” citations and de-grouping violations to deter infractions.
OSHA’s prior policy on instance-by-instance citations, published in 1990, applied just to willful citations. The new guidance identifies several scenarios where such citations may be issued, including high-gravity serious violations specific to falls, trenching
Two reasons to expect little progress at COP27
We are not expecting further big climate reduction commitments from countries this year at COP27. The leaders of China and Russia (the world’s first- and fifth-largest climate polluters) are not attending the event, nor are officials from many of the largest economies, including India and Australia. U.S. President Joseph Biden will make only a short
EPA Proposes Expansive Changes to EPA RMP Rule
As anticipated, on Friday the U.S. Environmental Protection Agency (EPA) issued a proposed Risk Management Program (RMP) Safer Communities by Chemical Accident Prevention rule pursuant to the Clean Air Act. The proposed rule would reinstate certain provisions newly introduced to the RMP rule (originally promulgated in 1991) late in the Obama administration and subsequently removed by the Trump administration in 2019. The EPA has additionally added significant new requirements not originally in the 2017 draft RMP rule, including provisions aimed to further current policies on environmental justice and climate change. The proposed RMP rule also appears to draw influence from recommendations made by the Chemical Safety Board (CSB) as well as state updates to process safety regulations in the past decade, most notably the California Accidental Release Prevention Program (CalARP) and the California Refinery Process Safety Management (PSM) Standard.
These changes, including the addition of requirements regarding employee participation, public availability of information, inherent safety, third party auditing, facility siting and natural hazards consideration, as well as emergency response planning, will result in covered RMP facilities having to significantly revisit and revise their RMP programs and plans. Certain requirements also appear to be directly aimed at limiting stationary sources’ ability to privately manage their internal risk management decisions. For example, covered facilities would now be required to document any revisions between draft and final compliance audits and provide justifications for rejected RMP program recommendations.
According to EPA Administrator Michael Regan, “protecting public health is central to EPA’s mission, particularly as we adapt to the challenges of climate change, and the proposal announced today advances this effort, especially for those in vulnerable communities. This rule will better protect communities from chemical accidents, and advance environmental justice for communities that have been disproportionately impacted by these facilities.” EPA estimates the rule will cost approximately $77 million a year.
Comments on the proposed rule are due to EPA within 60 days of its publication in the Federal Register and may be submitted online, via mail, or hand-delivery.
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Cal/OSHA’s Proposed Workplace Violence Rule
Status
Last month, the California Division of Occupational Safety and Health (Cal/OSHA) released a revised discussion draft of a proposed regulation for workplace violence prevention (Proposed Rule). The Proposed Rule would expand existing health care industry workplace violence prevention requirements to all industries. The Proposed Rule includes new definitions with broad applicability and a “one-size-fits
RMP and PSM highly hazardous chemical regulations are back on the agenda
The agencies regulating industrial chemical processes are taking a second look at modernizing regulations aimed at preventing chemical accidents in the near future. The Occupational Safety and Health Administration’s (OSHA) Process Safety Management (PSM) standard and the Environmental Protection Agency’s (EPA) Risk Management Program (RMP) rule were practically identical for processes containing threshold levels of
Scope 1 and 2 Emissions Attestation Requirements under SEC’s Proposed Climate Disclosure Rule
We previously reported on requirements for Scope 3 emissions in the proposed climate disclosure rule released by the U.S. Securities Exchange Commission (“SEC”) on March 21, 2022 (“Proposed Rule”). In addition to Scope 3 emissions, the Proposed Rule would also require a registrant to disclose information about its direct GHG emissions (Scope 1) and indirect emissions from purchased electricity or energy sources (Scope 2). This post focuses on attestation requirements in the Proposed Rule for those Scope 1 and Scope 2 disclosures.
Who is subject to Scope 1 and Scope 2 attestation requirements and when is compliance required?
Section 229.1505 of the Proposed Rule would require a company that is an accelerated filer or large accelerated filer[1] to include an attestation report in its Scope 1 and 2 disclosures. The attestation requirement also applies to foreign private issuers.
The Proposed Rule does not make compliance with Scope 1 and 2 disclosure and attestation requirements immediate. Instead, subject companies are provided a grace period to achieve compliance with Scope 1 and 2 disclosure requirements. The Proposed Rule would also provide a transition period for the assurances required for the Scope 1 and 2 disclosure attestations (see further discussion below). The proposed compliance timeframes are as follows:
| Filer Type | Scopes 1 and 2 GHG Disclosure Compliance Date | Limited Assurance | Reasonable Assurance |
| Accelerated Filer | Fiscal year 2024 (filed in 2025) | Fiscal year 2025 (filed in 2026) | Fiscal year 2027 (filed in 2028) |
| Large Accelerated Filer | Fiscal year 2023 (filed in 2024) | Fiscal year 2024 (filed in 2025) | Fiscal year 2026 (filed in 2027) |
Who prepares the attestation report?
Under the Proposed Rule, a GHG emissions attestation provider would be required to prepare and sign the attestation report. The attestation provider would not need to be a registered public accounting firm. However, the Proposed Rule includes characteristics of acceptable attestation providers including:
- Expertise in GHG emission based on significant experience in measuring, analyzing, reporting, or attesting to GHG emissions.
- Independence from the reporting company and any of its affiliates.
According to the agency, the proposed expertise requirement is intended to ensure that the attestation provider is sufficiently competent to perform the attestation engagement. With respect to independence, SEC states that emissions disclosures by independent attestation providers should improve the reliability of the disclosure.
DOJ Officials Signal Increased Collaboration with DOL and Re-Implementation of Worker Endangerment
In the initial months of 2022, the Department of Justice (DOJ) has indicated that it will increasingly pursue cases relating to worker safety and safe working conditions through formal collaboration with the Department of Labor (DOL), as well as its subsidiary agencies including the Occupational Safety and Health Administration (OSHA).
In January 2022, former Reed
OSHA’s vaccine ETS has arrived for large private employers
On October 21, 2021, we published an article called “Waiting for OSHA: pending vaccine ETS and increased enforcement.” In the article, we discussed the then-pending Emergency Temporary Standard (ETS) regarding vaccinating the workforce OSHA was tasked with developing by President Biden in his “Path Out of the Pandemic” memorandum. The ETS is scheduled
Waiting for OSHA: pending vaccine ETS and increased enforcement
Since President Joe Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 on September 9, 2021, employers have had to navigate piecemeal instructions on vaccine mandates. For example, federal contractors and subcontractors received vaccine mandate guidance from the Safer Federal Workforce Task Force on September 24, 2021. However, employers should not grow too comfortable with the current status of pandemic regulations, which continue to change in various jurisdictions and will again on a federal level soon.
OSHA’s Emergency Temporary Standard
In his “Path Out of the Pandemic” memorandum, President Biden specifically tasked the Occupational Safety and Health Administration (OSHA) with developing a rule to encourage vaccinations among the workforce – the Emergency Temporary Standard (ETS). The ETS will require employers with over 100 employees to do the following:
- either (a) ensure all employees are fully vaccinated, or (b) require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work; and
- provide paid time off for any time to get vaccinated and/or to recover if they are ill post-vaccination.
State plans will be required to implement equally protective rules within 30 days. Though not yet available for review, the status of the pending ETS remains under review by the White House Office of Management and Budget.
Continue Reading Waiting for OSHA: pending vaccine ETS and increased enforcement