Enhesa - Global EHS & Product Compliance Assurance

Ask Enhesa 10: USA & Canada

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Contributions from James Olaleye, Christian Petrangelo, Edith Nagy, Caitlin O’Sullivan, Gillian Wener, Danyelle Barron, and Seong Won Hong

You asked and we answered!

Enhesa’s team of multilingual regulatory analysts are committed to providing quality insight and analysis around the latest EHS news and developments via our Enhesa Flash, webinar series, and blog posts. In response, our team often receives a variety of questions regarding the broad realm of the EHS topics we cover. To meet this demand, we launched “Ask Enhesa”, a reoccurring blog series where our senior thought leaders will take the lead in answering all of your most relevant and topical EHS questions.

What is the latest key EHS regulatory development in Canada?

James:

A lot has been happening in Canada, the following will touch base on a few of them.

Canada is seeking input on how manufacturers and suppliers of hazardous products, that are used in the workplace, display ingredient concentration and concentration ranges on safety data sheets. In the same vein, specific to carcinogens, mutagens, reproductive toxicants and respiratory sensitizers (CMRRs), Canada is seeking input on whether manufacturers, importers and suppliers of CMRRs should be able to claim the chemical names, Chemical Abstracts Service (CAS) registry numbers and any unique identifiers that are confidential business information (CBI). The ramifications of these developments are very broad in the display of CBIs as Canada balances confidentiality with worker safety.

I should also note that while not regulatory per se, Canada has been very proud of its role and global leadership in addressing climate change. The Government has repeatedly pointed out its strengthened resolve in filling the vacuum left by the United States Government in addressing the issue. Canada recently signed the Kigali Amendment to the Montreal Protocol and helped broker the ICAO agreement, a framework to help lower carbon emissions from international air transport, not covered by the Paris Agreement.

Do we expect OSHA to stress more industry cooperation through more emphasis on programs such as VPP?

Christian:

Generally speaking, Republican Administrations tend to prefer voluntary programs and compliance assistance over top-down mandatory enforcement measures in the area of occupational health and safety. President Trump’s proposed FY 2018 budget, which is still working its way through Congress, bears out this theory with cuts to OSHA. The current Republican-controlled Congress is likely to make even deeper cuts to OSHA’s enforcement budget. For example, a House Appropriations Committee bill from the past summer proposed to cut OSHA’s enforcement budget to $194.3 million in FY 2018 from $208 million and slightly increase federal compliance assistance to $72.4 million in FY 2018 from $71 million. While these figures will ultimately change upon final passage of the bill, they support the notion that OSHA will focus more on cheaper voluntary programs such as the VPP rather than on mandatory enforcement in the coming fiscal year.

Could you comment on current USEPA Enforcement trends, and budget or staffing. Are there specific target industries?

Edith:

Every three years, the USEPA selects National Enforcement Initiatives (NEIs) through which it focuses its resources on environmental problems in areas where there is significant non-compliance with laws. These enforcement initiatives target the main areas of EPA’s activity: reducing air pollution, protecting safe drinking water and reducing hazardous waste.

With respect to air, the USEPA is working on identifying and addressing illegal and excess emissions of these hazardous air pollutants and makes it a priority to continue implementing this initiative in the fiscal years 2017-2019.

A new USEPA initiative for the fiscal years 2017-2019 is focused on keeping industrial pollutants out of the waters of the United States, for example enforcement tied to this initiative would target facilities from industrial sectors like metal or chemical manufacturing, food processing or mining.

Beginning in fiscal year 2017, NEI will return to the base enforcement program level for hazardous waste. Some recent settlements address mineral processing facilities and provide a useful precedent for how to resolve such cases in the future.

The Trump Administration requested a 30 percent cut in the 2018 fiscal year budget for USEPA, which would give USEPA a budget of $5.655 billion. EPA’s budget for fiscal year 2017 was $8.058 billion and it is unlikely that the USEPA’s budget will be reduced by the amount requested by the President. Congress is still working to appropriate funds to various agencies for the 2018 fiscal year, we will update you when USEPA’s budget is finalized.

Currently, USEPA employs about 15,000 people. In January, the Trump Administration instituted a federal hiring freeze for most federal agencies, including USEPA. The freeze was technically lifted in April, however the Administration outlined hiring guidance that mirrors the President’s budget proposal in calling for a cut to the USEPA workforce. The number of full-time employees at USEPA is shrinking as the amount of workers retiring or accepting voluntary buyouts steadily increases, while hiring remains slow.

How is Climate change regulation being implemented/enforced in US and Canadian States?

Caitlin:

Since January, the Trump Administration has been systematically repealing previous climate change regulations put in place by the Obama Administration. For example, the USEPA proposed the repeal of Obama’s signature climate change legislation, the Clean Power Plan, which required states to slash carbon emissions from power plants. Additionally, various Executive Orders have been issued to dismantle the Obama Administration’s climate change policies, such as the “Energy Independence” Executive Order which reversed a ban on coal leasing on federal lands. Finally, in May, the President announced his intent to withdraw the U.S. from the 2015 Paris Climate Agreement. If the U.S. formally withdraws from the agreement, it would be the only country in the world not signed on to the deal. Nicaragua and Syria, the only two other holdouts, both recently announced their intentions to sign on to the agreement.

Several U.S. states are attempting to fill the void left by the current Administration in dealing with climate change. The United States Climate Alliance was formed by a bipartisan group of governors in response to the President’s decision to withdraw from the Paris Agreement. The Alliance is committed to upholding the objectives of the Paris Agreement within their borders, by achieving the U.S. goal of reducing greenhouse gas emissions 26-28 percent from 2005 levels by 2025. The U.S. Climate Alliance is comprised of: Colorado, Connecticut, Delaware, Hawaii, Massachusetts, Minnesota, New York, Oregon, Puerto Rico, Rhode Island, Vermont, Virginia and Washington. Some states have already taken steps towards fulfilling the goals of the Alliance. In June, Hawaii passed legislation aimed at expanding strategies and mechanisms to reduce greenhouse gas emissions statewide in alignment with the principles and goals adopted in the Paris Agreement. Some states have also been considering enacting carbon taxes of cap-and-trade programs. We expect that each of these states mentioned above, will seek to strengthen their climate change related regulations in the coming years.

Since 2009, several northeastern states have been members of the Regional Greenhouse Gas Initiative (RGGI) is the first mandatory market based program in the United States to reduce greenhouse gas emissions. Currently nine states are market members: Connecticut, Delaware, Maine, Massachusetts, Maryland, New Hampshire, New York, Rhode Island and Vermont. Virginia is considering joining the RGGI and New Jersey may re-join. The RGGI establishes a regional cap on the amount of CO2 pollution that power plants can emit by issuing a limited number of tradable CO2 allowances, and individual CO2 budget trading programs in each state create the regional market for the allowances. In August, the RGGI states agreed to updates to the cap-and-trade program that would accelerate emissions reductions over the next decade. The proposed changes would set a regional cap of 75,147,784 tons of carbon dioxide emissions in 2021 and then reduce that cap by about 3 percent per year, resulting in 2030 emissions 30 percent below 2020 levels.

Meanwhile in Canada, the federal government is continuing to act on climate change and has in the past year ramped up its efforts to reduce GHG emissions. Last December, the federal government released the ‘Pan-Canadian Framework on Clean Growth and Climate Change’, which outlines the federal government’s approach to growing the Canadian economy while at the same time reducing emissions and increasing resiliency efforts to adapt to a changing climate. The Framework outlines a benchmark for pricing carbon pollution by 2018. Under the benchmark, jurisdictions will choose a carbon pricing system, either a direct price on carbon or a cap-and-trade system. Revenues collected will stay within the province or territory of origin, which can decide how to use the revenue. Recently the federal government announced plans for a coordinated nation-wide carbon price, which is to start at $10 per ton in 2018 and rise to $50 per ton by 2022. Additionally, the Canadian federal government remains committed to meeting the principles and goals of the Paris Agreement.

At the provincial level, several Canadian provinces already have either a direct price on carbon or a cap-and-trade system in place. British Columbia has had a revenue-neutral carbon tax in place since 2008. The tax covers approximately 70 percent of British Columbia’s total GHG emissions. Currently, the tax is as $30CAD per ton of CO2e emissions. From 2007 to 2014, the province has seen a 5.5 percent decrease in emissions, despite an 8.1 percent increase in population. The revenue collected by the tax is returned to citizens through reductions in other taxes. Additionally, Manitoba recently published a proposed Climate and Green Plan that includes a carbon pricing policy of $25 per ton of CO2e emissions.

Early last year, Ontario began its own cap-and-trade program. The program caps emissions of GHGs and Certain companies are required to participate in the program such as facilities that emit more than 25,000 tons or more of GHGs, whereas other companies can elect to join as voluntary participants.

Are there any regulatory or policy measures in the USA or Canada looking at dealing with workplace stress, bullying or harassment?

Danyelle:

US: In the US, harassment is a form of employment discrimination which violates Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and the Americans with Disabilities Act of 1990. An unlawful act involves conduct that creates a work environment that would be intimidating, hostile, or offensive to reasonable people. Besides the employment discrimination laws, there are no regulations directly speaking to workplace harassment, bullying, or stress. It appears to be a policy that employers set forth in employment handbooks.

CANADA: Canada Labour Code: Every employee is entitled to employment free of sexual harassment and employers are required to make every reasonable effort to ensure that no employee is subjected to sexual harassment. Employers must issue a policy statement regarding harassment.

Several providences have their own policies as well:

  • Ontario: Employers must prepare and review a policy on workplace harassment at least annually. The policy is required regardless of the size of the workplace or the number of workers.
  • Manitoba: requires employers to develop and implement a written policy to prevent harassment in the workplace and ensure that workers comply with the harassment prevention policy. The policy must be developed in consultation with the committee or representative at the workplace, or the workers. The policy must also include several statements including every worker is entitled to work free of harassment, and that the employer will take corrective action respecting any person who subjects a worker to harassment. Several procedures must be included, such as how to make a complaint and how the complaint will be investigated.

To summarize, both the USA and Canada recognize workplace stress, but there are no policies in place to assist in decreasing workplace stress.

What is the status of ergonomics policy and regulation in the USA & Canada?

Gillian & Seong:

In the U.S., employers carry a general duty to provide a safe and healthful workplace for their workers under the General Duty Clause, Section 5(a)(1). However, there are no specific ergonomics legal requirements for the general industry at the federal level. Therefore, the implementation, scope, and detail of an ergonomics program is entirely voluntary. To aid employers, the Occupational Safety and Health Administration (OSHA), which is a federal agency that assures safe and healthful working conditions for working men and women, has published guidelines for specific sectors of the general industry which may be viewed online at: www.osha.gov/SLTC/ergonomics/index.html.

A majority of the guidelines cover sectors which are known to pose high risks of musculoskeletal disorders to employees such as: poultry processing, foundries, shipyards, and retail grocery stores. In addition, OSHA has identified correct training and assistance of employees as a key ingredient to battling ergonomics problems at the workplace and has provided some guidelines to establishing an effective training program which may be viewed here online: https://www.osha.gov/SLTC/ergonomics/training.html.

All other states, except for California, do not impose any specific ergonomics legal requirements for the general industry at the federal level. California requires facilities to implement a program to minimize repetitive motion injuries (RMI). RMI is a general term used to describe the pain felt in muscles, nerves and tendons caused by repetitive movement and overuse. The program must include a worksite evaluation, control of exposures that have caused RMI, and provision of training to employees that explains the program, exposures, symptoms, and other issues. The requirement to implement a program to minimize RMI only applies if a RMI has occurred to more than one employee and other conditions are met.

In Canada, ergonomics policy and regulation remain primarily driven by voluntary standards and non-binding guidance. The Canadian Centre for Occupational Health and Safety (CCOHS) continues to release fact sheets for employers to use to address ergonomics issues. CCOHS revised their Welding-Ergonomics factsheet in September 2017. Additional ergonomics factsheets released by the agency address back injury protection, office ergonomics, pushing and pulling, among other topics.

Although there is a lack of ergonomics specific regulations, subsets of the occupational health rules address workplace hazards that fall dually under the workplace safety and ergonomics considerations. For example, the Ontario regulation controlling Mines and Mining Plants (R.R.O, 1990, Reg. 854) imposes requirements on manual handling. On 26 October 2017, Ontario launched an enforcement drive that will focus on hazards that can lead to musculoskeletal disorders to address ergonomic risks in mining workplaces. Other such enforcement drives and information campaigns that address ergonomics issues are likely on the horizon in Canada.

What chemical regulations are on the horizon for USA & Canada?

James:

USA:

In the US, with the recent passage of the amended Toxic Substances Control Act (TSCA), called The Frank R. Lautenberg Chemical Safety for the 21st Century Act, the Environmental Protection Agency (EPA) is identifying chemicals actively in commerce, and establishing procedures to prioritize chemicals and evaluate high-priority substances. In addition, the EPA is responding to manufacturer or importer submitted notifications on a chemical-by-chemical basis. In the amended TSCA, the EPA has to propose risk management to address the risks of injury to health and the environment that are presented by persistent, bioaccumulation, and toxic (PBT) chemicals by 22 June 2019. The EPA is on this trajectory to meet its deadlines under the new TSCA.

As of the 13 November 2017, the EPA has completed reviews of 1,148 cases for Pre-Manufacture Notice (PMN), Microbial Commercial Activity Notice (MCAN)., Significant New Use Notice (SNUN), and Low-Volume and other Exemptions (Exemptions). PMNs are applicable prior notifications to the EPA when a manufacturer or importer of a new chemical substance intends to use it for a non-exempt commercial purpose. Any facility that intends to commercialize an intergeneric microorganism must submit an MCAN, and any manufacturer or processor wishing to engage in a designated activity to which Significant New Use Rule (SNUR) applies, must submit a SNUN before engaging in the new use.

Examples of chemicals which the EPA has promulgated a SNUR, and which a SNUN applies, include, 2,4-Benzenetricarboxylic acid, mixed decyl and octyl triester; Propanoic acid, iron (2+) salt (2:1); and 12-Hydroxystearic acid, reaction products with alkylene diamine and alkanoic acid (generic), and carbon nanotubes.

Canada:

Canada has been steadily evaluating, screening, and understanding the risks posed by new and existing chemicals and substances to determine the appropriate control measures needed throughout the life cycle of such chemicals and substances. As such, most of the regulatory developments coming out of Canada are a categorization of these substances, as they are placed on specific lists, eliciting specific notification, recordkeeping, and transfer requirements. These evaluations are all done under the Canadian Environmental Protection Act, and are very chemical specific. Examples of such recent chemicals include benzene, 1,1′-(1,2-ethanediyl) bis (2,3,4,5,6 pentabromo)-, and mitotane.

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