The Occupational Safety and Health Administration’s (OSHA) final rule to allow third-party employee representatives, including a union official at a non-organized facility, to be present during OSHA inspections has been officially published. The final rule changes a long-standing OSHA rule allowing only employees to be designated by workers as “walkaround representatives.”
Specifically, the agency’s text says “representative(s) authorized by employees may be an employee of the employer or a third party.” It would allow non-employee representatives to participate in a walkaround “if, in the judgment of the Compliance Safety and Health Officer [CSHO], good cause has been shown why their participation is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (e.g., because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills).”
The rule codifies a 2013 Obama-era OSHA guidance, the “Fairfax Memo,” which broadly interpreted the Occupational and Safety Health (OSH) Act of 1970 to allow union officials or community organizers to accompany CSHOs on walkaround inspections. That guidance was challenged by multiple parties in court before being rescinded by the Trump administration in 2017.
In comments on the proposed rule, One Voice along with coalition partners, argued that the rule is fatally flawed and fails to improve workplace safety and “undermines OSHA’s credibility by imposing workplace access to otherwise uninvited third parties.” One Voice will support coalition efforts to file legal challenges in the courts to the final rule.
The final rule takes effect on May 31, 2024.
SEC Climate Disclosure Rule Paused by Court
The U.S. Court of Appeals for the 5th Circuit has issued an “administrative stay” pausing the
Securities and Exchange Commission’s (SEC) recent corporate climate risk rule. The final rule, approved on March 6, 2024, by the Commission, mandates enhanced climate-related disclosures by public companies. The stay, issued by the court on March 15, 2024, temporarily blocks the rule as it undergoes legal challenges.
Under the new rule, public companies will be required to disclose information on issues like the oversight and management of climate risk, the impacts of climate-related risks, and current and historical greenhouse gas (GHG) emissions data, both direct and indirect.
The final rule scaled back the GHG reporting requirements included in the proposed rule first issued in 2022, eliminating the requirement to report Scope 3 (throughout a company’s value chain, including downstream suppliers) emissions, and limiting Scope 1 (direct), and Scope 2 (indirect, through the purchase and use of electricity or other energy) emissions reporting to only those a company deems “material”.
While the proposed rule issued in 2022 required companies to report Scope 1 (direct), Scope 2 (indirect, through the purchase and use of electricity or other energy), and Scope 3 (throughout a company’s value chain) GHG emissions, it is believed that the final rule will remove the Scope 3 disclosure requirements and may even scale back the Scope 1 and 3 emissions reporting requirements. The final rule also limits all emissions reporting requirements to large filers.
EPA Issues Final Car, Truck GHG Emissions Standards
The Environmental Protection Agency’s (EPA) has released regulations to curb emissions from passenger vehicles and heavy trucks.
The final rule covering passenger cars, light trucks, and some medium-duty vehicles, would set new multi-pollutant standards for model years (MY) 2027 to 2032 while the heavy-duty proposal imposes more stringent “Phase 3” greenhouse gas (GHG) emissions standards on trucks, such as delivery vehicles, school buses, dump trucks, and tractor trailers. It starts with revisions to certain MY27 standards, while also issuing new standards for MY28-32.
The final multi-pollutant rule for passenger vehicles, announced by EPA on March 20, 2024, eases near-term GHG limits and gives automakers more time to reach fine particle standards, in comparison to the proposed rule issued in April 2023. Additionally, the new standards are performance-based and technology neutral, so manufacturers will have a fleet-wide average standard that they must meet through any mix of emissions control technologies. The final “phase 3” heavy-duty truck GHG rule also eases the near-term limits proposed by the EPA in April 2023. The final rule includes softer top-line standards than it had proposed “for all vehicle categories” in MY27-30. The final rule’s MY31 standards are “on par” with the proposal for light- and medium-duty vocational vehicles and day cab tractors, and it codifies more-stringent MY32 standards than proposed for “light and medium heavy-duty vocational vehicles and day cab tractors,” the rule states. The final rule was announced by the EPA on March 29, 2024.
Commerce Finalizes Changes to Trade Remedy Regulations
The Department of Commerce finalized new regulations overhauling the administration by the International Trade Administration (ITA) of antidumping (AD) and countervailing duty (CVD) laws. The final rule, formally published in the Federal Register on March 25, 2024, aims to “improve, strengthen and enhance” the AD and CVD regulations by implementing several major policy changes. Antidumping is the mechanism by which domestic producers seek projection against goods sold into the U.S. below fair market value, while domestic manufacturers use Countervailing Duties to protect against foreign government subsidies.
The final rule eliminated the current transnational subsidy regulation, allowing Commerce to address cross-border subsidies, such as China’s Belt and Road Initiative, in CVD proceedings. The regulation also includes a new rule to address the determination of a “particular market situation” in antidumping investigations.
The regulations also allow Commerce to consider evidence of foreign governments’ “weak, ineffective, or nonexistent property, intellectual property, human rights, labor, and environmental protections and the impact that the lack of such protections has on the prices and costs of products” during AD and CVD investigations. This includes a change that allows Commerce to consider foreign governments’ inactions that benefit foreign producers. Under the new rule, Commerce will not only consider direct subsidies during CVD investigations but also subsidies “through inaction—when the government fails to enforce its regulations, requirements, or obligations by not collecting a fee, a fine, or a penalty that the government should have otherwise collected under those regulations, requirements, or obligations.”
Final Methylene Chloride Rule Expected Soon
The Environmental Protection Agency (EPA) is expected to release the final rule regulating methylene chloride under the Toxic Substances Control Act (TSCA) this month. The rule, titled “Methylene Chloride (MC); Regulation Under the Toxic Substances Control Act (TSCA),” is currently under review by the White House Office of Management and Budget’s Office of Information and Regulatory Affairs (OIRA).
During a recent industry conference, Eileen Murphy, director of the Existing Chemicals Risk Management Branch within EPA’s Office of Pollution Prevention and Toxics, said that the EPA anticipates the rule “coming out in a few weeks, in April.”
The rule would prohibit the manufacture or import, processing, and distribution in commerce of methylene chloride for consumer use; and prohibit most industrial and commercial uses of methylene chloride, which is used as a degreaser in metal manufacturing operations. EPA first proposed the rule on May 3, 2023.
The proposed rule would set a 15-month deadline to eliminate most uses of methylene chloride while a small set of “critical” uses would be subject to a 10-year deadline. These uses include the manufacture of the chemical, its roles as a feedstock for climate-safe refrigerants and as a degreaser for civilian aircraft, and various applications at the Department of Defense (DOD), NASA, and Federal Aviation Administration.
For the limited continued use, the proposed rule would require a workplace chemical protection program (WCPP) including inhalation exposure monitoring and limits, recordkeeping, and downstream notification requirements. Certain exemptions to the rule would be available for uses of methylene chloride that would “otherwise significantly disrupt national security and critical infrastructure.”