Regulatory Counseling

Subscribe to Regulatory Counseling

The odds of OSHA showing up at your worksite have increased for construction employers engaged in excavation and trenching.  OSHA recently announced an update to its National Emphasis Program (“NEP”) to prevent trenching and excavation collapses after a spike in construction fatalities.  The October 2018 update focuses on both increased enforcement and education activities by OSHA Area Offices.

The updated NEP instructs inspectors to initiate an investigation whenever they observe an open trench or excavation, regardless of whether or not a violation is readily observable.  These observations could be made during the course of the inspector’s work-day travels or during a routine inspection.  OSHA will also continue to conduct inspections based on employee complaints or referrals from third-parties, such as city inspectors or other governmental agencies.

The scope of the inspection will, in most cases, be limited to evaluating the hazards associated with the excavation.  However, if other violations are observed, the inspector can expand the scope of the inspection to address those other areas.

Pursuant to the updated NEP, OSHA Area Offices are required to develop and implement a “comprehensive excavation safety outreach program.”  The education outreach activities are likely to include:

  • News releases to disseminate information concerning the updated NEP;
  • Seminars on trenching and excavation safety for employer groups, trade associations and unions; and
  • Educational material on trenching and excavation safety for (i) licensing or other municipal agencies for distribution to employers when they request dig permits; (ii) utility and plumbing companies for distribution to employers; and (iii) industry association for distribution to members.

Employers are well advised to focus on maintaining a safe worksite by complying with OSHA’s standards on trenching as well as other applicable standards.  OSHA’s website has a wealth of information regarding trenching and excavation safety.

The Tax Cuts and Jobs Act of 2017 makes it harder to take tax deductions for some payments to governmental entities.  The change may impact settlements between private entities and federal, state and local environmental agencies.  In most cases, it will not affect environmental settlements between private parties.

Section 162(f) of the Tax Code has long prohibited deductions for fines and penalties paid to the government.  The new law makes the tests for deduction of certain payments to a governmental agency more stringent.  The amended Section 162(f) substantially limits the tax deduction available for (1) any settlement or other payments, (2) made to or incurred at the direction of a governmental entity, (3) related to a violation of any law or governmental investigation or inquiry into the potential violation of any law.

There is an exception to this rule, which allows a deduction for the following payments: (1) restitution, including remediation of property; or (2) an amount paid to come into compliance with a violated law or involved in an investigation or inquiry.  To be deductible, the payment has to be expressly identified under a court order or settlement agreement as a restitution or compliance payment.  This exception does not apply to amounts paid “as reimbursement to the government for the costs of any investigation or litigation.”

Under the statute, the limitation applies only to payments made to, or at the direction of, a governmental entity.  A deduction, therefore, remains available for remediation expenses paid to private parties without governmental direction.

Finally, a new provision under Sec. 6050X requires government agencies involved in settlements to report to the Internal Revenue Service (IRS) the portions of the settlement payment that are and are not deductible under Section 162(f).

Our tax and environmental groups can advise on the implications of the new law, including factoring into negotiations the potentially higher tax cost of government settlements and ensuring that the settlements reached are well-drafted and as tax-efficient as possible.

Last week, the New Jersey Department of Environmental Protection (NJDEP) announced a new Response Action Outcome (RAO) Notice, which allows Licensed Site Remediation Professionals (LSRPs) to issue an RAO for a site with contaminated sediment that migrated from an off-site source.  The new notice, entitled “Sediment Contamination From an Off-Site Source Not Remediated – General,” is the most recent addition to the growing list of RAO notices.

The notice can be used after a Preliminary Assessment and Site Investigation (PA/SI) confirms that the source of the sediment contamination is off-site and not related to the site being evaluated.  The off-site source must be reported to NJDEP and the resultant new incident number included in the Notice.  Furthermore, the LSRP can identify an existing NJDEP case if it is known to be the off-site source and is currently undergoing investigation or remediation.

Given that it is well-established law that you are not responsible for contamination coming from offsite, the primary purpose of this action appears to be to streamline the RAO process.  So, this is another tool in the LSRP toolbox for the often complicated sediment cases, which continue to garner regulator’s attention here in New Jersey and nationwide.

Read more on sediment contamination in these discussions:

JOIN THE CLUB: EPA Sizing Up Hackensack River for Superfund Listing

WE ARE JUST GETTING STARTED: EPA Issues Much Anticipated Cleanup Plan for the Lower 8.3 Miles of the Lower Passaic River

 

The Supreme Court on Monday dealt a setback to the Environmental Protection Agency’s regulation limiting mercury and other toxic emissions from power plants – the “mercury rule.” In Michigan v. Environmental Protection Agency, the Court held that EPA acted unreasonably by making its initial decision to regulate plant emissions without considering the cost of regulation. Although the ruling interrupted the Court’s much-publicized string of “liberal” rulings, in the end the decision may have more impact on the way EPA makes regulations than on whether EPA ultimately regulates emission of mercury and other pollutants from power plants.

The Clean Air Act directs EPA to study and decide whether it is “appropriate and necessary” to regulate power plant emissions. In 2000, EPA concluded that mercury and other toxic emissions from power plants pose a danger to human health and the environment and that regulation of power plants was therefore “appropriate and necessary.” In 2012, after years of further study, rule-making, and litigation, EPA issued its mercury rule. EPA considered costs of compliance in developing the regulations but not in deciding whether to regulate in the first place.

The Supreme Court disagreed with this process. In a 5-to-4 decision, Justice Scalia’s opinion for the majority interpreted the statutory term “appropriate” to require EPA to consider all pertinent factors, including the cost of regulation, in deciding whether to regulate at all. In the Court’s view, EPA’s consideration of cost in fashioning the regulations came too late in the process. The Court therefore held that the power plant regulations were improperly issued.

Justice Kagan’s opinion for the four dissenters agreed with the majority that EPA had to consider cost of any proposed regulations at some time in its rule-making process. But she disagreed that EPA had to do so in deciding whether to regulate power plant emissions in the first place. She argued that EPA reasonably determined that regulation was appropriate based on the finding that exposure to airborne mercury causes extensive health concerns and that EPA could properly consider costs in determining how to regulate, rather than whether to regulate.

The decision in Michigan v. EPA was a loss for environmental advocacy groups that supported the regulation, but it is a narrow ruling, hinging on the meaning of “appropriate.” EPA will have to re-review its decision to regulate emissions from plants and take costs into account, but the Court’s decision does not suggest that cost considerations will ultimately scuttle the mercury rule itself. In fact, industry had already begun to plan operations and investments based on the mercury rule. It remains to be seen how industry and the courts will treat the mercury rule while EPA’s re-review is pending – and what impact, if any, the ruling may have on the Obama EPA’s climate change agenda and other initiatives.

OSHA recently passed new rules requiring employers to notify OSHA of a fatality within eight (8) hours of the death.  The new rules also require employers to file a report with OSHA for each in-patient hospitalization of an employee or situations where an amputation or eye-loss has occurred.  The report must be made within 24 hours of the incident.  OSHA defines in-patient hospitalization as a “formal admission to the in-patient service of a hospital or clinic for care or treatment.”  Employers can make the report in person to the OSHA area office, by a toll-free number, 1-800-321-OSHA, or by electronic submission on OSHA’s website, www.osha.gov.  The reporting obligations apply to all employers, even those that are exempt from OSHA’s recordkeeping requirements.  The new rules will go into effect on January 1, 2015.

As a result of this change, OSHA will likely perform more inspections of establishments where serious injuries or fatalities occur.  As always, it is imperative for employers to be proactive in an effort to minimize unsafe conditions in the workplace.  At the same time, employers need to develop procedures to address serious injuries or fatalities that may occur in their establishment.  To this end, employers should educate their managers and supervisors of OSHA’s new reporting requirements.  By taking these steps, employers can protect their employees and minimize their liability resulting from workplace accidents.