Ehs Compliance: Managing Osha and Environmental Regulatory Risk

OSHA's general duty clause supplements the specific industry and hazard-specific standards that OSHA has promulgated by imposing a baseline obligation on employers to identify and abate workplace hazards even when no specific standard addresses the hazard, and OSHA compliance counsel advising on EHS compliance program design should confirm whether the company has conducted a current workplace hazard assessment that identifies all recognized hazards for each job classification and work area.

EHS compliance in the environmental context requires that industrial operations obtain and comply with Clean Air Act operating permits, Clean Water Act NPDES discharge permits, and RCRA permits for the storage, treatment, and disposal of hazardous waste, and environmental compliance and litigation counsel assisting companies with EPA EHS compliance obligations should assess whether the facility's current permits accurately reflect its actual operations and whether any process or equipment changes since the last permit issuance require a permit modification before the changed operations begin.

OSHA classifies violations as other-than-serious, serious, repeat, or willful, and the willful violation classification, which applies when the employer was aware of a hazardous condition and made no reasonable effort to eliminate it, carries civil penalties of up to $156,259 per violation and creates the factual basis for criminal referral to the DOJ in cases involving worker fatalities, and occupational safety and EHS compliance counsel representing employers after a workplace injury or fatality should immediately assess whether OSHA's inspection findings are likely to result in willful violation characterization and whether any EHS compliance program documentation can establish the employer's good faith efforts to address the cited condition before the incident.

Federal criminal liability for EHS compliance failures arises under the OSH Act's criminal provision, which makes it a misdemeanor punishable by up to six months' imprisonment for an employer to willfully violate a standard that causes a worker's death, and under the Clean Air Act, Clean Water Act, and RCRA criminal provisions, which impose felony penalties on any person who knowingly violates a permit condition, and criminal negligence defense counsel advising managers and executives facing potential criminal EHS compliance exposure should assess whether the individual had actual knowledge of the specific violation that caused the harm or was merely in a supervisory position without operational awareness of the conditions that led to the incident.

OSHA requires employers with ten or more employees in non-exempt industries to maintain OSHA 300 injury and illness logs, post the OSHA 300A summary annually, and electronically submit injury and illness data through OSHA's Injury Tracking Application, and employers must report any workplace fatality to OSHA within eight hours and any work-related amputation, loss of an eye, or hospitalization within twenty-four hours, and workplace safety and health and EHS compliance counsel advising on recordkeeping obligations should confirm whether the employer's injury classification practices accurately identify which incidents are work-related and recordable under OSHA's definitions.

EHS compliance under the major environmental statutes requires facilities to operate within the emission and discharge limits established in their permits, to maintain and submit periodic monitoring and compliance reports, and to notify the EPA and state environmental agencies when exceedances or spills occur within the regulatory notification windows, and environmental law compliance counsel advising on EHS compliance program design should assess whether the facility's continuous emissions monitoring systems, stormwater sampling programs, and hazardous waste manifesting records are generating the documentation evidence that EPA inspectors will examine during a compliance audit.

An effective EHS compliance program integrates hazard identification and risk assessment, written safety policies and procedures, worker training documentation, internal inspection and audit schedules, incident reporting and investigation protocols, and management review processes that verify the program's ongoing effectiveness, and compliance audit counsel designing an EHS compliance program should confirm whether the internal audit process generates written findings reviewed by management and translated into corrective action plans with defined completion timelines.

When OSHA opens an inspection or EPA initiates a compliance evaluation, the employer's response during the inspection, including decisions about whether to contest citations, execute settlement agreements, and what abatement commitments to accept, determines the enforcement outcome in ways that cannot be reversed after the employer has cooperated without legal guidance, and environmental liability and EHS compliance defense counsel representing employers during OSHA inspections and EPA enforcement actions should assess whether any employee interviews conducted during the inspection were conducted in a manner that preserved the employer's attorney-client privilege and whether the citations proposed by the agency accurately characterize the regulatory standard that was allegedly violated.