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    4. Staying Ahead of EHS Risks and Enforcement

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    Staying Ahead of EHS Risks and Enforcement

    May 28, 2025

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    By Chris Schlag, Melissa Peters , Eric Compere and Ted Wolff

    Stay informed on evolving environmental, health, and safety legal developments. Learn how evolving EHS laws impact your business and learn proactive strategies to reduce risk and ensure compliance.

    In today’s rapidly evolving regulatory environment, environmental health and safety (EHS) remains a pivotal and vital opportunity to manage risks and build business resilience. Continue reading for a summary of the evolving landscape, emerging challenges, and how businesses can stay prepared. 

    Understanding the current landscape of EHS enforcement

    EHS enforcement is often driven by federal statutes and corresponding regulations, including the Clean Air Act (CAA), the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), and the Occupational Safety and Health Act (OSHA). Many state and local laws also set EHS compliance expectations. 

    At a high level, these laws and regulations require businesses to manage pollution, protect workers, and maintain compliance programs and detailed records. However, to fully manage EHS risks and minimize potential liability, businesses must go beyond static checklists and programs to ensure evidence of an effectively implemented EHS program. Dynamic EHS systems, with effective training programs, hazard controls, and proactive EHS risk management incorporating comprehensive risk and hazard assessments and constructive communication, are also critical to compliance. 

    How regulatory agencies are evolving their enforcement strategies

    Over the years, federal and state agencies have also changed how they approach enforcement. Using advanced analytics, remote auditing tools, and increased data availability, agencies now have extensive information on the businesses they inspect.

    Increased access to information has even changed how agencies identify, prioritize, manage, and report on potential EHS noncompliance. For example, in fiscal year 2024, OSHA reported that 46% of its inspections were “programmed,” targeting industries with known hazards. Meanwhile, Cal/OSHA continues to focus more on inspections triggered by complaints and accidents, which consistently outnumber scheduled inspections each year.  

    Regardless of the reason for inspections, they can factor in community complaints, civil actions, liability insurance policies, and employee and customer relationships. How businesses prepare for, manage, and respond to EHS inspections can, therefore, impact their reputation, bottom line, and competitive advantage.  

    Federal EHS policy under the Trump administration

    The Trump administration’s policy and regulatory approach has already had a profound impact on environmental compliance considerations. With a clear emphasis on deregulation and industry flexibility, the new administration is making changes to a broad framework of environmental rules, including the definition of “waters of the United States” (WOTUS), climate-related regulations, and chemical safety.

    The Trump administration has also made weighty enforcement budget reductions, reorganized federal agencies, such as the US Environmental Protection Agency (EPA), and is focusing agency action on easing the compliance burden on businesses. For example, the EPA announced new enforcement and compliance initiatives, which convey that EPA will not take any enforcement action that would shut down energy production (i.e., “from exploration to distribution”) or power generation unless there is an imminent and substantial threat to human health or an explicit statutory or regulatory requirement. Additionally, while EPA has shifted its enforcement priorities with respect to the energy and oil and gas industries, the agency is maintaining an enforcement focus on air and chemical risks. 

    How federal enforcement strategies are changing

    While the full effect of the Trump administration’s approach to EHS matters remains to be seen, agency reorganizations, staffing gaps, and budget changes have already impacted federal agency enforcement. Some agencies are shifting to hybrid inspection models (virtual and onsite) or have increased reliance on data and document submissions.

    This shift means businesses must be more prepared for record reviews and document requests. Increasing desktop reviews and virtual inspections are also more likely to identify recordkeeping-related gaps and potential violations.

    OSHA’s role amid budget and policy changes

    There has been talk about how OSHA enforcement will evolve in the next few years, with the predominant theory being softer enforcement. However, on May 15, 2025, Secretary of Labor Chavez-DeRemer testified before the US Senate Subcommittee on Labor, Health and Human Services, and Education that the Trump administration’s proposed budget cuts would not impact OSHA enforcement. 

    With the administration’s nominee for Assistant Secretary David Keeling’s confirmation hearing still pending (as of May 28, 2025), it will be some time before OSHA’s enforcement policies come into view. What is clear is that OSHA enforcement, whether by federal OSHA or state regulators, will remain a part of the employer landscape and workplace safety enforcement.

    State EHS regulation and enforcement

    As federal agencies continue to evolve their approach to EHS, states are also reconsidering their regulatory policies and refining their enforcement strategies. State-level environmental and workplace safety laws are on the rise, with new bans and restrictions on perfluoroalkyl and polyfluoroalkyl (PFAS) substances and plastics, along with legislation and rulemaking focused on air emissions management, climate risks, heat illness prevention, wildfire smoke protections, and workplace violence prevention.

    Specific to environmental enforcement, state agencies are responding to federal enforcement priority and budget changes in different ways, with some increasing staffing, shifting priorities, adjusting budgets, or focusing on inspections and enforcement. Further, state environmental agencies are increasingly using data-driven analysis, technology integration, and enhanced monitoring tools to conduct inspections and assess potential harm.

    Businesses operating across state lines should be mindful of potential state variations in both regulatory compliance obligations and potential enforcement risks. They may also need to carefully balance compliance obligations from competing regulatory frameworks.

    Business impacts of EHS compliance changes

    For many businesses, recent developments have brought new operational pressures, such as supply chain disruptions, labor shortages, and fluctuating regulatory requirements. Some businesses are, therefore, looking to recent policy shifts as an opportunity to reassess their approach to EHS compliance and, in doing so, may consider staffing changes, reorganizations, or budget changes. 

    Businesses should, however, be cautious in making dramatic changes to their EHS staffing, programs, policies, or standard operating procedures. Because, despite the dynamic regulatory environment, changes to EHS compliance and oversight can lead to unintended and high-risk consequences, such as workplace accidents, chemical releases, and noncompliance. In the event of a workplace accident or release, a business that fails to meet the established standard of care can also face civil penalties, criminal liability, reputational damage, and even shareholder litigation. Moreover, compliance changes from the “norms” can expose businesses to stakeholder and other litigation risks.

    Now more than ever, companies must carefully consider how they manage EHS compliance, prepare for inspections, and evaluate EHS risks and opportunities. For most businesses, continuing to embed EHS into their operations strategy, investing in staff and training, and preparing effectively for EHS inspections will minimize risks and bring numerous benefits. Ongoing EHS focus, compliance, and improvement can, for example, result in improved workplace safety, reduced accidents and incidents, enhanced brand reputation, and stakeholder trust, as well as increased productivity, reduced liability, and insurance risks and costs.

    Key takeaways for building a resilient EHS program

    The inspection and EHS compliance landscape is rapidly changing. As environmental regulations change, enforcement priorities shift and agency practices evolve, businesses that treat EHS as a strategic function will be better positioned to adapt, respond, and thrive. Specifically, companies should consider the following EHS compliance checklist: 

    • Reassess your EHS team and program: Consider whether you have the right expertise in place and whether your EHS programs are effective. Cutting EHS roles and program requirements may save costs in the short term, but the long-term consequences can be severe. 
    • Stay current on policy shifts: Keep a close eye on federal enforcement trends and emerging state-level mandates. Even “old” rules may be enforced in new ways. 
    • Build a proactive inspection plan: Develop a playbook for how to handle inspections, including considerations for who will be the point person during the inspection, what information is shared, and how findings are addressed. 
    • Audit your facilities and programs: Consider conducting mock inspections, compliance reviews, or third-party audits (including those directed by attorneys) to identify and address potential gaps before regulators do. 
    • Retain legal support early: Legal counsel can help interpret evolving requirements, support internal investigations, and engage productively with regulators when inspections occur. In some circumstances, engagement of counsel can help establish legal privileges and protections.

    Now is the perfect time to consider whether you have correctly organized your EHS programs, prepared sufficiently for inspections, given the current regulatory environment, and have minimized EHS risks and potential liabilities. With legal insight and practical know-how to keep your operations safe, compliant, and ahead of the curve, our team is here to help. Nixon Peabody EHS attorneys can help businesses respond confidently and effectively to these developments.

    Practices

    Occupational Safety & Health (OSHA)Workplace Policies, Procedures & TrainingEnvironmental

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    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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