The Ninth Circuit Sends Climate Change Cases Back to State Court

Song

By Leah M. Song

EarthOn May 26, 2020, the Ninth Circuit agreed with plaintiffs that two climate change lawsuits—County of San Mateo v. Chevron Corp. et al. and City of Oakland v. BP p.l.c. et al.—had been improperly removed to the federal courts, continuing courts’ recent trend of remanding these types of cases back to state court.

A growing form of climate change litigation in the United States consists of lawsuits filed by states or municipalities against private industry, and more specifically, the fossil-fuel industry. States, cities and other units of local government have filed lawsuits alleging state common law theories, including nuisance, trespass, failure to warn of the known impacts of climate change, and unjust enrichment. The outcome of these cases thus far has hinged on whether or not the fossil fuel companies are able to successfully remove the litigation to federal court where they stand a much greater chance of getting the litigation dismissed. Generally, plaintiffs (including states, units of local government, and non-governmental organizations) asserting climate change claims against corporations prefer to be in state court where they can take advantage of perceived plaintiff-friendly common law or state statutes. On the other hand, defendants inevitably seek to remove such cases to federal court where they have had a higher level of success securing dismissals on the grounds that the issue is preempted by the Clean Air Act and/or addresses a “political question” which is better left to the discretion of Congress. See City of N.Y. v. BP P.L.C.. 325 F. Supp. 3d 466 (S.D.N.Y. 2018).

In County of San Mateo v. Chevron Corp. et al., six California municipalities and counties sued more than 30 fossil-fuel companies in California state court. The plaintiffs brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. In City of Oakland v. BP p.l.c. et al., the Cities of Oakland and San Francisco sued five fossil-fuel companies in state court under a theory of nuisance. The fossil-fuel companies removed both cases to federal court. The San Mateo district court remanded the case back to state court while the Oakland district court refused to remand the case back to state court, finding that plaintiffs’ public nuisance claims were governed by federal common law, but then proceeding to dismiss the lawsuit. Both cases were appealed to the Ninth Circuit.

On May 26th, the Ninth Circuit joined the Fourth Circuit (Mayor and City Council of Baltimore v. BP P.L.C., et al., No. 19-1644 (4th Cir. Mar. 6, 2020)) in concluding that these climate change cases alleging only state-common law claim belonged in state court. In County of San Mateo v. Chevron Corp. et al., the Ninth Circuit emphasized its limited authority to review an order remanding a case back to state court under 28 U.S.C. § 1447(d). The Ninth Circuit therefore limited its review to determining whether the district court erred in holding that the federal court lacked subject matter jurisdiction under the federal-officer removal statute.

In order to determine whether the district court erred in holding that it did not have subject matter jurisdiction, the Ninth Circuit examined whether the companies were “acting under” a federal officer’s directions. The companies argued that they were “persons acting under” a federal officer based on several agreements with the government. However, the Ninth Circuit concluded that the companies’ activities under these agreements did not give rise to a relationship where they were “acting under” a federal officer. Accordingly, the Ninth Circuit court held that the fossil fuel companies failed to meet their burden for federal-officer removal and therefore affirmed the district court’s remand order.

In City of Oakland v. BP p.l.c. et al., the Ninth Circuit considered whether “the district court erred in determining that it had federal-question jurisdiction under 28 U.S.C. § 1331” and ultimately held that plaintiffs’ state common-law public nuisance claims did not arise under federal common law. The court acknowledged that there are exceptions to the well-pleaded complaint rule for claims that arise under federal law, but concluded that none of those exceptions applied here.

The court reasoned that “[t]he question whether the Energy Companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels and be required to spend billions of dollars on abatement is no doubt an important policy question, but it does not raise a substantial question of federal law for the purpose of determining whether there is jurisdiction under § 1331.” Furthermore, evaluation of the public nuisance claim would require factual determinations which are “not the type of claim for which federal-question lies.” The fossil fuel companies argued that the plaintiffs’ public nuisance claim was completely preempted by the Clean Air Act, but the court was not persuaded.

In response to defendants’ argument that by amending their complaint to assert a federal common law claim, the district court properly had subject matter jurisdiction under 28 U.S.C. § 1331, the Ninth Circuit noted that plaintiffs only amended their complaint in response to the district court’s statements that plaintiffs’ claims were governed by federal common law. Moreover, the Ninth Circuit noted that since a party violates § 1441(a) “if it removes a cases that is not fit for federal adjudication, a district court must remand the case to state court, even if subsequent action conferred subject-matter jurisdiction on the district court.”

Notwithstanding these conclusions, the Ninth Circuit noted that the district court had not addressed alternative bases for removal raised by defendants and therefore remanded the case back to the district court. However, the Ninth Circuit specifically noted that if the district court concludes that there are no valid bases for federal jurisdiction, the case should be remanded back to state court.

Although these rulings did not address the merits of plaintiffs’ common-law claims, these cases will certainly pose challenges for defendants seeking to remove these types of cases to federal court, and will likely affect plaintiffs’ and defendants’ strategies in climate change litigation moving forward. Jenner & Block’s Corporate Environmental Lawyer will continue to update on those matters, as well as other important climate change litigation cases, as they unfold.

 

New Executive Order Presses Agencies to Continue to Seek Regulatory Flexibility in Response to the Covid-19 Pandemic

Song

By Leah M. Song

Covid-19On May 19, 2020, the President issued an executive order titled “Regulatory Relief to Support Economic Recovery” (“Executive Order”). The Executive Order seeks to “overcome the effects the virus has had on [the] economy”  and to that end, directs agencies and executive departments to "continue to remove barriers to the greatest engine ever known: the innovation, initiative and drive of the American people."  To do so, executive departments and agencies are encouraged and directed to take appropriate action.

The Executive Order directs agencies to respond to the economic consequences of COVID‑19 by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.”  Agencies are directed, "to use, to the fullest extent possible and consistent with applicable law, any emergency authorities” to support the economic response to COVID-19. Agencies are charged with identifying “regulatory standards that may inhibit economic recovery” and take appropriate action to promote job creation and economic growth. This includes issuing proposed rules, exempting persons or entities from requirements, exercising appropriate temporary enforcement discretion or temporary time extensions.

The Executive Order further instructs agencies to provide compliance assistance for regulated entities and to “accelerate procedures by which a regulated person or entity may receive a pre-enforcement ruling.” Agencies should consider enforcement discretion policies for those that “have attempted in reasonable good faith to comply with applicable statutory and regulatory standards.” Additionally, the Executive Order emphasized that agencies should “consider the principles of fairness” and “revise their procedures and practices in light of them.” The Executive Order recommends that agencies review regulatory standards and “determine which, if any, would promote economic recovery if made permanent.”

Consistent with this Executive Order, the Environmental Protection Agency (“EPA”) has previously issued a COVID-19-related policy regarding EPA's decision to exercise enforcement discretion with respect to non-compliance with certain environmental requirements (this enforcement policy was the subject of a prior Corporate Environmental blog).  Although EPA's enforcement discretion policy has been challenged by several states and environmental organizations, the Executive Order would seem to diminish the likelihood that EPA will rescind its enforcement discretion policy in the near term. 

Please feel free to contact the author with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.


Employers are Back in the Workplace: So is OSHA!

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

On May 19, 2020, in recognition of many more businesses opening their workplaces in response to governors modifying stay-at-home orders and the President’s urging businesses to reopen across the country, OSHA revised two of its prior COVID-19 enforcement policies, thereby informing employers that OSHA would no longer grant enforcement discretion regarding the recording of work-related COVID-19 exposure cases and that OSHA intended to conduct more onsite inspections of alleged workplace violations and complaints, particularly those focusing on COVID-19 issues. 

OSHA began its announced changes in enforcement policies by stating that, “The government and the private sector have taken rapid and evolving measures to slow the virus’s spread, protect employees, and adapt to new ways of doing business.”  The two revised policies are to “ensure employers are taking action to protect their employees” as workplaces reopen.  Both new policies go into effect on May 26, 2020.

OSHA’s first policy change is to its own enforcement procedures.  OSHA plans to increase in-person inspections of “all types of workplaces.”  OSHA stated that it can conduct more onsite inspections because the risk to OSHA inspectors is lower and the PPE that OSHA inspectors would need is “more widely available.” Thus, OSHA will rescind its April 13, 2020, Interim Enforcement Response Plan for COVID-19, which stated OSHA's temporary policy of suspending most onsite inspections in favor of written and telephonic communications with employers.  Under the May 26, 2020 Updated Interim Enforcement Response Plan, OSHA intends to return to its pre-pandemic approach for determining whether to respond to employee complaints by (a) in-person investigation; (b) non-formal telephonic investigations; and/or (c) requests that employers respond in writing to a complaint, such as through a Rapid Response Investigation in response to a reported fatality or work-related in-patient hospitalization.  However, in all cases, OSHA intends to “continue to prioritize COVID-19 cases.” 

OSHA’s updated policy also provides that in geographic areas with sustained or resurgent cases of community transmission, OSHA’s Area Directors have the discretion to prioritize onsite inspections for cases of fatalities and imminent danger exposures, particularly in “high-risk workplaces, such as hospitals and other healthcare providers treating patients with COVID-19 [and] workplaces with high numbers of complaints or known COVID-19 cases.”

OSHA’s second announced enforcement policy change concerns OSHA’s recordkeeping regulations, which obligates employers in many businesses with 10 or more employees to record certain cases of employee illness as a recordable case on OSHA-required logs of work-related injuries and illnesses.  The recordkeeping regulation provides that if the employee has a confirmed case of COVID-19, which is “work-related” as defined in OSHA regulation, 29 CFR § 1904.5, and for which the employee received medical treatment beyond first aid or days away from work (the latter almost always being the case), the employee’s illness is recordable. 

The challenge to employers in the case of a community-wide communicable disease is knowing whether the employee’s illness is “work-related.”  In OSHA’s April 10, 2020 enforcement discretion policy issued on this topic, OSHA recognized that for all workplaces except those with a high-risk of exposure to COVID-19-positive people (e.g., COVID-19 hospital wards and prisons), employers did not have to take action to determine whether an employee’s illness was due to a work-related exposure and thus recordable.  In the new OSHA policy, effective May 26, 2020, all employers, regardless of COVID-19 exposure risk levels, must determine whether an employee’s illness is work-related. 

However, OSHA recognizes that, “[g]iven the nature of the disease and ubiquity of community spread, … in many instances it remains difficult to determine whether a COVID-19 illness is work-related, especially when an employee has experienced potential exposure both in and out of the workplace.”  Thus, if the employer conducts a “reasonable and good faith inquiry” and the employer “cannot determine whether it is more likely than not that exposure in the workplace played a causal role…., the employer does not need to record that COVID-19 illness.” (Emphasis added.)

OSHA will consider whether an employer has made a “reasonable determination of work-relatedness” by evaluating:

  • The reasonableness of the employer's investigation into work-relatedness. OSHA states that employers should “not be expected to undertake extensive medical inquiries, given employee privacy concerns and most employers' lack of expertise in this area.” Instead, in response to known employee illness, the employer should “(1) ask the employee how he believes he contracted the COVID-19 illness; (2) while respecting employee privacy, discuss with the employee his work and out-of-work activities that may have led to the COVID-19 illness; and (3) review the employee's work environment for potential exposure,” including other cases in that environment.
  • The evidence available to the employer.“Available” evidence can be information both available at the time of the investigation and learned later by the employer.
  • The evidence that a COVID-19 illness was contracted at work. OSHA will evaluate “all reasonably available evidence… to determine whether an employer has complied with its recording obligation.” Such evidence can include clusters of cases in the work environment or whether the employee had “frequent, close exposure to the general public in a locality with ongoing community transmission” and in either case there is “no alternative explanation.”  On the other hand, a case is “likely not work-related,” if the employee had “close” and “frequent” exposure to someone outside the workplace who was infectious during the relevant time period.

Especially because OSHA can do its own post hoc determination of the reasonableness of the employee’s decision, employers should document their investigation of each case of an employee COVID-19 illness.

OSHA ends its revised policy by cautioning employers that, regardless of whether an employee’s illness is recordable, “as a matter of health and safety” [subtext: subject to potential OSHA enforcement], the employer should respond to protect other workers when it learns that one employee has become ill.  OSHA does not describe, however, what those next steps should be.

Please feel free to contact the author with questions or for further information.  For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.


U.S. EPA Extends Comment Period on PFAS Safe Drinking Water Act Regulatory Determination to June 10, 2020

Linkedin_Steven_Siros_3130By Steven M. Siros

Epa logoAs discussed in more detail in a previous blog, on February 20, 2020, the U.S. Environmental Protection Agency (“U.S. EPA”) announced that it was seeking public comments on its preliminary regulatory determination that seeks to implement regulatory limits for Per- and Polyfluoroalkyl Substances (PFAS) in public drinking water across the United States.  The regulatory determination is a key step in the creation of a Maximum Contamination Level (“MCL”) that will act to limit the quantity of PFAS permitted in public drinking water. 

In its preliminary regulatory determination, U.S. EPA proposes setting MCL levels for two PFAS substances, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which EPA has determined meet the statutory criteria to become regulated contaminants under the Safe Drinking Water Act.  To meet this criteria, U.S. EPA had to find that: (1) the consumption of PFOS and PFOA may result in adverse health effects; (2) PFOS and PFOA have been identified in public water supplies at frequencies and levels sufficient to cause a public health concern; and (3) that new regulation presents a meaningful opportunity to reduce the health risks posed by PFOS and PFOA.

The Association of Metropolitan Water Agencies and the American Water Works Association (collectively “AMWA”) submitted comments that were supportive of setting an MCL for PFOS and PFOA. In addition to targeting PFOA and PFOS, the AMWA recommended that U. S. EPA also include four other long-chain PFAS compounds in its regulatory determination. AMWA also recommended that U.S. EPA “thoroughly consider state standards and guidelines with significantly lower PFAS levels that [U.S. EPA’s] Health Advisory Level (HAL) of 70 parts per trillion (ppt) for combined concentrations of PFOA and PFOS.”

The AMWA also requested that U.S. EPA extend the comment period an additional 30 days to allow the AMWA to more fully engage with its members and to provide more meaningful and comprehensive comments on the proposal. To that end, U.S. EPA has now agreed to extend the comment period an additional 30 days May 10th to June 10th.

Illinois Judge Blocks Current and Future Extensions of Illinois Stay-at-Home Order

Lawson Headshot SongBy Matthew G. Lawson and Leah M. Song

PritzkerOn Monday, April 27, 2020, Illinois Circuit Court Judge Michael McHaney temporarily blocked enforcement of Illinois Governor JB Pritzker's March 20, 2020 stay-at-home order, which had been extended through April 30, by granting a temporary restraining order (“TRO”) sought by Illinois State Representative (R) Darren Bailey.  As issued, the judge’s decision prohibits Governor Pritzker from enforcing the pending stay-at home order—or any future executive orders that require home quarantine—against Rep. Bailey.

As background to the lawsuit, on March 9, 2020, in response to the COVID-19 pandemic, Governor Pritzker issued an Executive Order, declaring all counties within Illinois as disaster areas (the “Disaster Declaration”). Governor Pritzker’s Disaster Declaration was issued pursuant to the Illinois Emergency Management Agency Act, 20 ILCS 3305 et seq. (“Illinois Emergency Act”). On March 20, pursuant to the Governor’s authority under the Illinois Emergency Act, Governor Pritzker issued Executive Order 2020-10, which requires “individuals currently living within the State of Illinois…to stay at home or at their place of residence” (“the March Stay-at-Home Order”). The March Stay-at-Home Order provides an exception allowing individuals to leave the home to engage in an enumerated list of “essential activities,” including tasks essential to health and safety, certain approved outdoor activities, and to perform work for essential businesses. The March Stay-at-Home Order was originally set to end on April 7, 2020, but on April 1, Governor Pritzker issued an extension of the March Stay-at-Home Order through April 30, 2020, and on April 23, the Governor announced his intent to further extend the order through May 30, 2020.

On April 23, 2020, Rep. Bailey—whose district includes Clay County, Illinois—filed a complaint in the Clay County Circuit Court alleging that Governor Pritzker’s April 1 extension of the stay-at-home order exceeded the authority afforded to the Governor under the Illinois Emergency Act.  Specifically, the lawsuit alleges that the Illinois Emergency Act grants certain enumerated powers to the Illinois Governor following the proclamation of a “public health emergency,” but that Section 7 of the Illinois Emergency Act limits these authorities to “a period not to exceed 30 days” following the declaration.  Thus, Rep. Bailey alleges that any extension of the stay-at-home order beyond April 8, 2020—i.e, more than 30 days beyond the March 9 Disaster Declaration, is void and that the Governor’s publicly announced plan to extend the Executive Order through May 30, 2020 is “void ab initio”. The lawsuit further alleges that Governor Pritzker’s unauthorized use of the Illinois Emergency Act has impermissibly limited Rep. Bailey’s constitutionally protected freedoms to travel within the state of Illinois. The complaint requests a declaratory judgment that Governor Pritzker’s April 1 extension of the March Stay-at-Home Order is void, and seeks a permanent injunction enjoining Governor Pritzker, or anyone under his authority, from enforcing the March Stay-at-Home Order, at any time, against Rep. Bailey.

On the same date that he filed his complaint, Rep. Bailey filed a motion seeking a TRO to enjoin Governor Pritzker from enforcing the March Stay-at-Home Order against him or entering any further executive orders as a result of the Disaster Declaration that would limit Rep. Bailey’s ability to travel within the state. To obtain a TRO, under Illinois law, the movant must establish: (1) a protectable right; (2) irreparable harm; (3) an inadequate remedy at law; and (4) a likelihood of success on the merits. See ­­­­­­ Smith v. Dep't of Nat. Res., 35 N.E.3d 1281, 1287 (Ill. App. Ct. 5th Dist. 2015). In its order granting the TRO, the circuit court found that Rep. Bailey had “shown he will suffer irreparable harm if the [TRO] is not issued” and had “shown he has no adequate remedy at law or in equity in that absent a [TRO] being entered, plaintiff, will continue to be isolated and quarantined in his home.” The court’s order provided that the TRO will stay in effect until “a date to be agreed upon by the parties, not to exceed 30 days from [April 27] wherein [plaintiff’s motion for] a preliminary injunction will be heard on that date.”

On Tuesday, April 28, 2020, Governor Pritzker filed a notice of interlocutory appeal to the Appellate Court of Illinois, Fifth Judicial District, requesting that the court reverse and vacate Judge McHaney’s decision and dissolve the TRO. Both Bailey and Pritzker will have an opportunity to file briefs before the appellate court. A date for oral argument before the court has not been set. “We are certainly going to act in a swift action to have this ruling overturned,” Pritzker said in a press briefing following the original decision. “Representative Bailey’s decision to go to the courts is an insult to all Illinoisans who have been lost during this COVID-19 crisis. It’s a danger to millions of people who might get ill because of his recklessness.” 

While Judge McHaney’s ruling states that it only prohibits enforcement against Rep. Bailey, the lawsuit potentially opens the door for others in Illinois to file similar lawsuits or to resist compliance with the Governor’s Executive Orders issued since April 7, 2020.  In addition, the complaint seeks a declaration that the stay-at-home order is void which arguably could have state-wide effect. In a statement concerning the lawsuit, Rep. Bailey said that he filed the complaint “on behalf of myself and my constituents who are ready to go back to work and resume a normal life,” although the TRO and Complaint as written did not state that it applied to any person other than Rep. Bailey. In the meantime, Governor Pritzker vowed to continue issuing new public health directives, as he deemed necessary, while the case remained unresolved.


USEPA Warns E-Commerce Platforms to Scrub Fake Coronavirus Disinfectant Products

Lawson HeadshotBy Matthew G. Lawson

COVID-19 (2)As discussed in a prior post on Corporate Environmental Lawyer, on January 29, 2020, the United States Environmental Protection Agency (“USEPA”) activated its “Emerging Viral Pathogens Guidance for Antimicrobial Pesticides” (the “Guidance”) to help curb the spread of the novel coronavirus, the cause of COVID-19, in the United States.  The Guidance allowed manufacturers of disinfecting/antimicrobial products that are regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) to revise their FIFRA registration and promote their products’ effectiveness against specific “emerging pathogens,” including the Coronavirus.  Relying on the Guidance, manufacturers can revise their FIFRA registrations to provide a statement of their products’ efficacy against the pathogen “in technical literature distributed to health care facilities, physicians, nurses, public health officials, non-label-related websites, consumer information services, and social media sites.” 

As of April 23, 2020, USEPA’s expedited FIFRA review process has produced a list of nearly 400 different disinfectant products approved by USEPA as being effective against the Coronavirus.  “During this pandemic, it’s important that people can easily find the information they’re looking for when choosing and using a surface disinfectant,” said EPA Administrator Andrew Wheeler. “With this expanded list, EPA is making sure Americans have greater access to as many effective and approved surface disinfectant products as possible and that they have the information at their fingertips to use them effectively,” Wheeler continued.

In addition to providing the opportunity for an expedited review of disinfectant products, USEPA has taken the additional step of initiating enforcement actions against companies and individuals accused of selling illegal products that claim to protect again the Coronavirus.  For example, on March 25, 2020, USEPA announced that it had seized shipments of an illegal health product, “Virus Shut Out,” which claimed to protect users from the Coronavirus.  Because no effort was made to secure a proper FIFRA-registration for the product, USEPA stated that the untested product had the potential to be “harmful to human health, cause adverse effects, and may not be effective against the spread of germs.”

On April 23, 2020, USEPA took the additional step of warning numerous e-commerce companies, including Facebook Inc., eBay Inc., Alibaba Group Holding Ltd., and others, that their platforms were being used to sell unregistered disinfectant products that fraudulently claimed to be effective against the Coronavirus.  The e-commerce platforms were instructed by USEPA to “take action against these dishonest dealers and immediately take these illegal products off of their sites.”  USEPA’s warning indicated that any business failing to properly monitor its platform would be subject to enforcement proceedings under FIFRA.  USEPA’s threatened actions would not be the first time the agency brought enforcement actions against online retailers for selling unregistered products in violation of FIFRA.  In February 2018, USEPA entered into a settlement agreement with Amazon Services LLC (“Amazon”) for nearly 4,000 violations of FIFRA, dating back to 2013.  Under the terms of the agreement, Amazon was required to pay a civil penalty of approximately $1.2 million and implement more stringent controls to ensure unregistered products were not sold on its platform.

Please feel free to contact the author with questions or for further information about the FIFRA registration and recent USEPA warning.  For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.


Supreme Court Expands the Reach of Clean Water Act Permitting Authority

HawaiiTorrence_jpgBy Allison A. Torrence

On April 23, 2020, the U.S. Supreme Court issued an important decision on the reach of the Clean Water Act (“CWA”). The Court’s decision in County of Maui, Hawaii v. Hawaii Wildlife Fund, Case No. 18–260, addresses whether the CWA requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source such as groundwater. In a 6-3 opinion, the Court held that CWA permitting authority extended to indirect discharges that are the functional equivalent of a direct discharge from a point source into navigable waters. Justice Breyer delivered the opinion of the Court, joined by Justices Roberts, Ginsburg, Sotomayor, Kagan and Kavanaugh. Justice Kavanaugh also wrote a concurring opinion and Justices Thomas, Gorsuch and Alito dissented.

At issue in the case was the County of Maui’s wastewater reclamation facility located on the island of Maui, Hawaii. The County pumps partially treated sewage through four injection wells hundreds of feet underground. After injection, the effluent travels approximately a half mile through groundwater to the Pacific Ocean.

The case came up from the Ninth Circuit, which had ruled that a permit was required when “the pollutants are fairly traceable from the point source to a navigable water such that the discharge is the functional equivalent of a discharge into the navigable water.” Hawaii Wildlife Fund v. County of Maui, 886 F. 3d 737, 749 (9th Cir. 2018) (emphasis added). The Supreme Court took issue with the Ninth Circuit’s fairly traceable standard, explaining that “[v]irtually all water, polluted or not, eventually makes its way to navigable water” and thus, the lower court’s standard would give EPA broad new permitting authority not supported by the CWA’s statutory language or legislative history. Slip Op. at 5.

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Supreme Court issues Landmark CERCLA Ruling Finding that State Law Challenges to USEPA Cleanup Can Be Raised in State Court (But Plaintiffs Still Lose)

Siros Lawson HeadshotBy Steven M. Siros and Matthew G. Lawson

On Monday, April 20, 2020, the United States Supreme Court issued a key opinion regarding the preclusive effect of the Comprehensive Environmental Response, Compensation and Recovery Act (CERCLA), 42 U.S.C. Section 9601, on state common law remedies within Superfund Sites.  In Atlantic Richfield v. Christian, Case No. 17-1498, the Supreme Court affirmed in part and vacated in part a decision by the Montana Supreme Court that “restoration claims” asserted by private property owners could go forward against a potentially responsible party (PRP) that had previously settled its CERCLA liability with the United States Environmental Protection Agency (USEPA). 

The case involves the Anaconda Smelter Site, a Superfund site covering 300 square miles of property contaminated by historical smelter and ore processing operations.  In 1983, USEPA identified Atlantic Richfield Co. as a PRP for the site’s contamination and the parties entered into a settlement agreement that required Atlantic Richfield to investigate and remediate the site under the oversight of USEPA.  In the 37 years since, USEPA has managed an extensive cleanup at the site, which included the removal of 10 million cubic yards of contaminated soil and capping in place an additional 500 million cubic yards of waste over 5,000 acres.  Atlantic Richfield estimates that it has spent approximately $450 Million USD remediating the site and that its cleanup is nearly complete. 

However, the USEPA-mandated cleanup standards were deemed insufficient by a number of local landowners who allege that their properties remain damaged by Atlantic Richfield’s contamination.  The landowners asserted common law tort claims against Atlantic Richfield seeking funds to remediate their properties—located within the Superfund Site—beyond the levels required by the USEPA-approved remedy.  For example, the plaintiffs sought funding to remediate arsenic levels in their properties’ soil to a level of 15 parts per million, rather than the 250 parts per million limit approved by USEPA.  In total, the additional cleanup efforts sought by plaintiffs are estimated to cost Atlantic Richfield an additional $50 to $58 million in cleanup costs.  Following the Montana Supreme Court’s holding that the landowner’s restitution claims could proceed in spite of Atlantic Richfield’s settlement with USEPA and the ongoing cleanup effort, Atlantic Richfield appealed the issue to the Supreme Court.

Continue reading "Supreme Court issues Landmark CERCLA Ruling Finding that State Law Challenges to USEPA Cleanup Can Be Raised in State Court (But Plaintiffs Still Lose)" »

OSHA Promises Relaxed Enforcement during Pandemic if Employers Make “Good Faith Effort” to Comply with Non-Achievable Recurring Requirements

Sigel

 Song

By Gabrielle Sigel  and Leah M. Song

Covid-19

 

On April 17, 2020, OSHA posted an April 16, 2020 enforcement guidance, which, for the first time, recognized that due to COVID-19, employers were not able to feasibly comply with a wide-range of OSHA regulatory requirements.  In a memorandum titled, “Discretion in Enforcement when Considering an Employer’s Good Faith Efforts during the Coronavirus Disease 2019 (COVID-19) Pandemic” (“Good Faith Guidance”).  OSHA instructed its Compliance Officers that they should exercise enforcement discretion and not issue citations for regulatory violations if employers made a “good faith effort” but ultimately could not comply with regulations requiring “annual or recurring audits, reviews, training, or assessments” (collectively, “Recurring Requirements”).  The Good Faith Guidance takes effect immediately, applies to all OSHA-regulated industries, and continues “until further notice.”

In support of its enforcement discretion decision, OSHA found that, due to widespread business shutdowns in response to COVID-19, many employers were not able to perform certain mandatory Recurring Requirements, such as annual audiograms, Process Safety Management revalidations and reviews, respirator spirometry testing, annual training requirements, and inspection, certification, and relicensing activities.  As further support, OSHA noted that the American College of Occupational and Environmental Medicine had advised that all occupational spirometry testing for respirator use be suspended, and the Council for Accreditation in Occupational Hearing Conservation recommended that all audiometric evaluations be suspended. 

Given these circumstances, OSHA stated that an employer should not be cited for failure to comply with Recurring Requirements if the employer demonstrates that it made “good faith efforts,” as follows:

  • “Thoroughly explored all options” to comply with regulatory requirements, such as virtual or remote trainings;
  • Implemented any interim alternative protections, such as engineering or administrative controls;
  • Took steps to reschedule the required annual activity as soon as possible; and
  • Ensured that employees were not exposed to hazards from tasks, processes, or equipment for which they were not prepared or trained

If an employer was unable to comply with Recurring Requirements because the workplace was required to close entirely, the employer should demonstrate a “good faith attempt to meet the applicable requirements as soon as possible following the re-opening of the workplace.” 

Given the Good Faith Guidance, employers would be well-advised to document their good faith efforts to comply with Recurring Requirements and why it was not possible to comply.  Although OSHA Compliance Officers have been directed to take an employer’s good faith efforts into “strong consideration” before issuing a citation, the Compliance Officer must document the regulatory violation and the good faith efforts in its case file.  In addition, in a program to be developed “at a later date,” OSHA plans to conduct monitoring inspections of locations where violations occurred but were not cited to “ensure that corrective actions have been taken once normal activities resume.”

The Good Faith Guidance supplements other previously issued OSHA enforcement discretion guidance memos and enforcement directives arising out of the COVID-19 health emergency, which have been analyzed in Jenner & Block’s Corporate Environmental Lawyer blog.

For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s COVID‑19 Resource Center and the Corporate Environmental Lawyer blog.


White House Reopening Guidelines: How Will Workplaces Open Up Again?

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

On April 16, 2020, the White House issued “Guidelines:  Opening Up America Again”  (Guidelines), with criteria for how state and local officials, employers and individuals should approach reopening segments of their communities after various stay-at-home orders, essential-business regimens and other social distancing measures that Federal, State and local governments have issued in response to the coronavirus and COVID-19. 

The Guidelines recommend a three-phased approach to reopening, with “Gating Criteria” before States can begin Phase One.  An important component to the Guidelines are the directions to all employers and to industry-specific employers.  In general, until a state or locality is in Phase Two, when schools are allowed to reopen, burdens on employers and employees will not significantly diminish.  It is only in Phase Three that the workplace will begin to resemble “pre-COVID-19” conditions.

The “Gating Criteria” for States, before Phase One can begin, include 14-day downward trajectories in symptoms and cases, having non-crisis care treatment of all patients, and having a “robust program” for testing “at-risk” healthcare workers.  In addition, the Guidelines describe “Core State Preparedness Responsibilities” regarding testing, contact tracing, healthcare system capacity and other safety and health plans for the community, before Phase One can begin.  One of the “Core State Preparedness Responsibilities” is to “protect the health and safety of workers in critical industries.” 

The Guidelines include specific recommendations for employers in all phases of the reopening process, as follows: 

Develop and implement appropriate policies, in accordance with Federal, State, and local regulations and guidance, and informed by industry best practices, regarding:

  • Social distancing and protective equipment
  • Temperature checks
  • Testing, isolation and contact tracing
  • Sanitation
  • Use and disinfection of common and high-traffic areas
  • Business travel

Monitor workforce for indicative symptoms. 

Do not allow symptomatic people to physically return to work until cleared by a medical provider.

Develop and implement policies and procedures for workforce contact tracing following employee COVID+ test.

Compliance with these Guidelines can impose on employers significant costs, business interruptions and other burdens.  For example, due to personnel and supply chain shortages, many employers will have limited ability to conduct temperature and symptom checks or to provide protective equipment.  In addition, effective contact tracing within the workplace can be procedurally difficult, time-consuming and require additional, trained personnel.

The Guidelines also have more specific directions impacting employers for each phase of reopening.

Phase One

In Phase One, the Guidelines discourage gatherings of more than 10 people, such as trade shows, minimize non-essential travel and recommend that “vulnerable individuals” continue to shelter in place.  “Vulnerable individuals” are those who are “elderly” (an undefined term) or who have “serious underlying health conditions.”  The Guidelines remind individuals that if someone has a vulnerable individual in the household “by returning to work or other environments where distancing is not practical, they could carry the virus back home.” 

These precautions can make certain workers reluctant to return to work and may require additional flexibility or hiring criteria by employers.  In addition, in Phase One, schools and organized youth activities are to remain closed, which will place burdens and challenges on all businesses, whether they seek to remain open or to reopen anew. 

Under the Guidelines, all employers are to do the following in Phase One:

  • Continue to ENCOURAGE TELEWORK whenever possible and feasible with business operations.
  • If possible, RETURN TO WORK IN PHASES.
  • Close COMMON AREAS where personnel are likely to congregate and interact, or enforce strict social distancing protocols.
  • Minimize NON-ESSENTIAL TRAVEL and adhere to CDC guidelines regarding isolation following travel.
  • Strongly consider SPECIAL ACCOMMODATIONS for personnel who are members of a VULNERABLE POPULATION.

Reopening of restaurants is not generally addressed in the Guidelines, except in the context of “large venues,” which in Phase One “can operate under strict physical distance protocols.”  Examples of “large venues” are “sit-down dining, movie theaters, sporting venues and places of worship.”  Bars are recommended to remain closed, but gyms may re-open, with protections.  Senior Living facilities and hospital should remain on shut-down to outside visitors, but elective surgeries can resume with precautions.

Phase Two

Most importantly for employers, schools and youth activities can reopen in Phase Two.  However, precautions about protecting vulnerable individuals continue, including the concern about workers in the same household potentially affecting those individuals.

The concern about public gatherings and social settings is targeted to groups of more than 50 people, unless “precautionary measures are observed.”  Examples or a definition of “precautionary measures” are not provided.  In this phase, non-essential travel can be resumed for individuals and in the workplace. 

For all employers, the Phase Two Guidelines recommend:

  • Continue to ENCOURAGE TELEWORK whenever possible and feasible with business operations.
  • Close COMMON AREAS where personnel are likely to congregate and interact, or enforce moderate social distancing protocols.
  • NON-ESSENTIAL TRAVEL can resume.
  • Strongly consider SPECIAL ACCOMMODATIONS for personnel who are members of a VULNERABLE POPULATION.

“Large venues” can operate under “moderate physical distancing protocols,” another term which is undefined.  Bars can reopen “with diminished standing-room occupancy, where applicable and appropriate.”

Phase Three

Phase Three has limited directions or restrictions on the workplace.  “Vulnerable individuals can resume public interactions” but should practice physical distancing and undefined “precautionary measures.”  All other populations “should consider minimizing time spent in crowded environments.”  Employers, however, can “resume unrestricted staffing.”  Large venues are recommended to “operate under limited physical distancing protocols” and bars can increase standing room occupancy.

Some level of physical distancing and undefined “precautionary measures” are to be maintained throughout all three phases described in the Guidelines.  The Guidelines do not provide a marker for when the protections described in the last, Third Phase, can be lifted. 

Please feel free to contact the author with questions or for further information.  For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.


Illinois Environmental Protection Agency Releases Compliance Guidance for COVID-19 Pandemic

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By Steven M. Siros and Leah M. Song  Covid-19

The Illinois Environmental Protection Agency (“IEPA”) posted a Compliance Expectations Statement (the “Statement”) as guidance during the COVID-19 crisis. As discussed in the Jenner & Block Corporate Environmental Lawyer previous blog post, the United States Environmental Protection Agency (“U.S. EPA”) recently issued its own temporary guidance regarding exercise of its enforcement discretion during the COVID-19 situation. U.S. EPA acknowledged that the individual states should issue their own guidance based on each state’s specific COVID-19 situation. Consistent with that guidance, IEPA issued its Statement.

Importantly, IEPA’s Statement is not intended to be used as a “get out of jail” card. At the beginning, the Statement specifically notes that “[a]ll regulated entities are expected to take every possible step to ensure ongoing compliance with environmental requirements, including all terms and conditions contained in permits, so that all regulated facilities or activities are operated and maintained in a manner safe for human health and the environment.” However, if a regulated entity is unable to comply with environmental requirements because of Governor Pritzker’s Executive Order 2020-10 and disaster proclamations, IEPA acknowledges that enforcement discretion may be appropriate.

IEPA acknowledges that it will exercise enforcement discretion in “situations brought on by, and directly related to, responses to COVID-19 that will not create or result in harm or risk to human health or the environment.” These situations will be “considered on a case-by-case basis” and will involve “interaction between the regulated entity and the Agency prior to the potential noncompliance to allow full discussion of the circumstances.” Compliance will be expected as soon as possible following the easing of COVID-19 restrictions.

Notably, this approach does not extend to critical infrastructure, such as drinking water or wastewater facilities, nor will it allow for any practice, action, or event that could create or result in harm or risk to human health or the environment.

The key takeaway for regulated entities with respect to the IEPA Statement, U.S. EPA’s temporary guidance, and other similar state guidance relating to enforcement discretion in connection with the COVID-19 situation is to communicate early and often with the regulators. As a general matter, it has been our experience that most state regulators are willing to work with regulated entities to streamline reporting and/or other obligations so long as that streamlining process does not result in an increased risk of harm to human health or the environment.  

Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID-19 related guidance, as they unfold.


OSHA to Manufacturers: Coronavirus "Safety Tips” in an “Alert” to Manufacturing Employers

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19

On April 16, 2020, OSHA released an “alert” with “safety tips” that manufacturing employers “can follow to help protect manufacturing workers from.”  (“Manufacturers Alert”) (emphasis added).  Although the “alert” is not a regulation which OSHA can directly enforce, OSHA may attempt to use an alert as a basis for imposing liability on employers under the OSH Act’s General Duty Clause.  In any case, employers should expect that OSHA compliance officers will use the Manufacturers Alert to evaluate enforcement options in response to employee complaints about coronavirus exposure in the workplace.  In addition, employees may view the Manufacturers Alert as a checklist to evaluate their workplaces and for complaints to OSHA and their employers.  The full list of OSHA’s “tips” are provided at the end of this article.

OSHA’s Manufacturers Alert was issued on the same day that the White House issued its guidelines for “Opening Up America Again” (“the Guidelines”).  The Guidelines include recommendations specifically targeted to employers prior to a State or region reopening for business.  Notably, OSHA’s Manufacturers Alert did not include several precautions or directions to employers that were listed in the Guidelines, including directions to employers to conduct symptom monitoring, temperature checks, and contact tracing, and to obtain clearance by a medical provider before a symptomatic worker can return to the workplace.

According to the Guidelines, all employers should:

Develop and implement appropriate policies, in accordance with Federal, State, and local regulations guidance, and informed by industry practices, regarding:

  • Social distancing and protective equipment
  • Temperature checks
  • Testing, isolating, and contact tracing
  • Sanitation
  • Use and disinfection of common and high-traffic areas
  • Business travel

Previously, OSHA published “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.”  The Manufacturers Alert adds six-foot physical distancing to those “Ten Steps” and tells manufacturing employers to consider limiting closer work or taking “innovative approaches” to limit exposures during closer work.  Unlike the Ten Steps, the Manufacturers Alert also includes directions to allow workers to wear masks at work and to train workers on donning, doffing, and maintaining protective clothing and equipment.

OSHA’s Manufacturers Alert lists the following 12 “tips:”

  • Encourage workers to stay home if they are sick.
  • Establish flexible work hours (e.g., staggered shifts), if feasible.
  • Practice sensible social distancing and maintain six feet between co-workers, where possible.
  • For work activities where social distancing is a challenge, consider limiting the duration of these activities and/or implementing innovative approaches, such as temporarily moving or repositioning workstations to create more distance or installing barriers (e.g., plexiglass shields) between workstations.
  • Monitor public health communications about COVID-19 recommendations for the workplace and ensure that workers have access to and understand that information.
  • Train workers on how to properly put on, use/wear, take-off, and maintain protective clothing and equipment.
  • Allow workers to wear masks over their nose and mouth to prevent spread of the virus.
  • Encourage respiratory etiquette, including covering coughs and sneezes.
  • Discourage workers from using other workers’ tools and equipment.
  • Use Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus.
  • Promote personal hygiene. If workers do not have access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol. Provide disinfectants and disposable towels workers can use to clean work surfaces.
  • Encourage workers to report any safety and health concerns.

For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.


EPA Issues Guidance on COVID-19 Impacts for Ongoing Cleanups

 

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By Steven M. Siros and Leah M. Song

Covid-19Building on its  March 26, 2020 temporary enforcement policy, on April 10, 2020, the U.S. Environmental Protection Agency (“EPA”) issued its interim guidance regarding new or ongoing cleanup activities during the COVID-19 situation.

The interim guidance focuses on decision making at emergency response and longer term cleanups sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. This includes, but is not limited to, Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substance and Control Act PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions.

Discretion Vested With the Individual Regions

In general, the interim guidance vests each EPA Region with the authority to make site-specific decisions taking into consideration the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners. Importantly, at sites where the Region determines that work should move forward, the Region is charged with reviewing each site’s health and safety plan (“HASP”) to ensure that it appropriately incorporates CDC’s and other relevant COVID-19 guidelines.

Key Factors For Making Site Work Decisions

The interim guidance outlines a series of site-specific factors that should guide Region’s when making determinations as to whether field response actions will continue, be reduced, or be paused. When making this assessment, Regions are directed to consider all relevant site-specific factors, including but not limited to (i) the safety and availability of work crews, EPA, state or tribal staff; (ii) the critical nature of the work; (iii) logistical challenges (e.g., transportation, lodging, availability of meals, etc.); and (iv) other factors particular to a site.

Factors that would support continuing site work include where:

  • a failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is practical to continue such actions; and
  • maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months.

Factors that would support a pause in work include:

  • work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling of site work;
  • state, tribal or local health officials have requested a stoppage;
  • any workers have tested positive for or exhibited symptoms of COVID-19;
  • workers may closely interact with high-risk groups or those under quarantine;
  • contractors are not able to work due to state, tribal or local travel restrictions or medical quarantine; and
  • workers can't maintain proper social distancing.

According to EPA, as of April 1st, EPA has reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions, due to the evolving situation with COVID-19.

With respect to non-field work, given that much of the work to advance cleanup of sites is performed away from sites, to the extent possible, the interim guidance notes that this work should continue. Important work can be conducted virtually and represent opportunities to make progress on primary activities like investigation reports (including pre-NPL work), modeling, negotiations between the parties, decision documents, cleanup documentation, workplans, progress reports, and maintaining compliance with obligations such as financial assurance.

Interim Guidance Does Not Extend Compliance Deadlines

Importantly, the interim guidance does not excuse a parties’ compliance obligations under consent decrees or similar enforcement instruments. Instead, parties are directed to review the governing enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions, for directions on providing the requisite notice and other information described in the provisions. For further discussion regarding these types of provisions in enforcement instruments, please see our earlier blog titled “Does Environmental Investigation and Remediation Continue Despite COVID-19 Business Restrictions and Social Distancing.”

Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID-19 related guidance, as they unfold.

 

 


OSHA to Most Employers: Limited Exemption from Recording Requirement for Employees’ COVID 19 Cases

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19On April 10, 2020, US OSHA partially retracted its initial instructions to employers, which had required employers to evaluate employees who contracted COVID‑19 as potential recordable occupational illnesses under OSHA’s injury/illness recordkeeping rules, 29 CFR Part 1904.  According to its new “Enforcement Guidance for Recording Cases of Coronavirus Disease 2019 (COVID‑19),” (Recording Guidance), in most cases, OSHA will not enforce its recordkeeping rules that otherwise would have required all employers to make determinations as to whether “workers who contacted COVID‑19 did so due to exposures at work.”  However, OSHA did not retract its basic position that COVID‑19 “is a recordable illness,” which must be recorded as a work-related illness on OSHA 300 logs (or their equivalent) if:  (1) the employee has a “confirmed case of COVID‑19” based on at least one positive test for the virus; (2) the COVID‑19 is “work-related,” per 29 CFR § 1904.5, i.e., the disease is contracted from exposure in the work environment; and (3) the case meets recording criteria, including a significant illness diagnosed by a healthcare professional or days away from work.  Instead, OSHA recognized that in areas with community-spread of the coronavirus, most employers “may have difficulty” making determinations that COVID‑19 cases were due to exposures at work, so those employers would no longer have to affirmatively investigate whether the employee’s COVID‑19-positive diagnosis was work-related in order to avoid the risk of an OSHA enforcement action for a recordkeeping violation.

OSHA’s “enforcement discretion” towards an employer’s obligation to record COVID‑19 cases has several important caveats:

First, healthcare emergency response organizations, and correctional institutions (here, Non‑Exempt Employers) would continue to be required to determine whether an employee’s COVID‑19 diagnosis was due to workplace exposure.

Second, OSHA’s enforcement discretion apparently is limited to areas where there is community transmission of the virus.

Third, all employers would continue to be required to determine that an employee’s COVID‑19 diagnosis is a work-related case, if:

  1. “There is objective evidence that a COVID‑19 case may be work related [such as if] a number of cases develop[] among workers who work closely together without an alternative explanation” and
  2. The “objective evidence” is “reasonably available to the employer . . . [such as if] information [is] given to the employer by employees” or the employer learns information in the “ordinary course of managing its business and employees.”

If a case is recorded, the employer must keep the employee’s name confidential “if an employee voluntarily requests” that the employer do so.  Although OSHA’s Recording Guidance does not expressly address OSHA’s requirement to report serious and fatal illnesses to OSHA, because the reporting requirement is triggered by hospitalizations or fatalities due to a “work-related incident,” if, in reliance on the Recording Guidance, an employer does not determine that the illness is a work-related case, it follows that the case also would not be a reportable case. 

OSHA stated that it was granting this enforcement discretion in order to allow employers more time to focus on “good hygiene practices” and otherwise mitigating the effects of COVID‑19 in the workplace.  This Recording Guidance supplements OSHA’s general guidance on COVID‑19 preparedness in the workplace and OSHA COVID-19 enforcement guidances issued to address certain aspects of its respiratory protection rules, as well as OSHA’s new workplace poster, entitled “Ten Steps All Workplaces Can Take to Reduce Risk of Exposure to Coronavirus.”

For more information about the impact of COVID‑19 in the workplace and on business generally go to Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.


OSHA to Employers: Some Relief from Respiratory Protection Rules in the Face of N95 Shortages

Sigel

By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19On April 3, 2020, U.S. OSHA issued two Enforcement Guidance memos which, for the first time, provide guidance to all industries, including healthcare, regarding how to comply with OSHA rules in the face of N95 shortages.  The first document is entitled “Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to Coronavirus Disease 2019 (COVID-19) Pandemic” (N95 Shortage Guidance).  The N95 Shortage Guidance informs all employers whose employees are required to use, or permitted to voluntarily use, respiratory protection, the limited circumstances in which an OSHA inspector may, on a “case-by-case basis, exercise enforcement discretion” when an employer deviates from OSHA’s current respiratory protection standards, including OSHA’s principal rules at 29 CFR §1910.134 (the Respiratory Standard).  While offering some relief from the threat of an OSHA enforcement action, the N95 Shortage Guidance also serves to reemphasize employers’ continuing obligations under the Respiratory Standard despite the short, often non-existent, supply of respiratory protection equipment. 

Employers’ continuing obligations in the face of shortages include:

  1. Manage your respiratory protection program (RPP) in accordance with the Respiratory Standard and “pay close attention to shortages of N95s.”
  2. Identify and evaluate respiratory hazards.
  3. Develop, implement, and document worksite-specific procedures to address changes in use of N95s and other respiratory protection.
  4. Revise your written RPP to reflect changes in workplace conditions caused by the N95 shortage and COVID-19.

For the first step completing these obligations, “all employers should reassess their engineering controls, work practices, and administrative controls” to identify how to decrease the need for N95s.  OSHA suggests alternatives to use of N95s, e.g., use of wet methods or portable local exhaust systems and moving the task requiring use of respiratory protection outdoors.  More cautiously, OSHA states that “[i]n some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.”  However, OSHA does not require that employers stop performing tasks with respiratory hazards. 

Under the N95 Shortage Guidance, if N95 alternatives are not possible and “respiratory protection must be used” OSHA provides a series of decision-making options:

  • Use alternative classes of NIOSH-approved respirators if they “provide equal or greater protection” compared to N95s.
  • If NIOSH-approved alternatives are not available, or use of these alternatives create additional hazards, then employers may:
    • Implement extended use or reuse of N95s, with extended use preferred over reuse; or
    • Use NIOSH-approved N95s past the manufacturer’s recommended shelf life, but only if the equipment’s integrity has not been compromised.

OSHA then states further requirements for the use of any of these options, including documenting the use of options in written RPPs and providing additional training to employees on the new procedures.  In the health care industry only, OSHA refers employers to the CDC’s guidance on the hierarchy of decisions applicable in case of expired N95s, but states that its N95 Shortage Guidance is not intended to cover COVID-19 “crisis standard of care” scenarios.

In the second guidance document issued on April 3, 2020, entitled “Enforcement Guidance for Use of Respirators Protection Equipment Certified under Standards of other Countries or Jurisdictions” (Respirator Use Guidance), OSHA provides the hierarchy of decision-making that constitutes making a “good-faith effort” to provide appropriate respiratory protection:

  • Implement OSHA’s hierarchy of controls to eliminate or substitute out workplace hazards
  • Prioritize efforts to acquire and use equipment as follows:
    • NIOSH-certified
    • Foreign-certified, as listed by OSHA, other than by China
    • China-certified [without any NIOSH certificate]
  • Only use equipment beyond shelf life if in non-compromised condition
  • Extended use or reuse in accordance with CDC’s Strategies for Optimizing the Supply of N95 Respirators
  • Use homemade masks or other improvised face coverings “only as a last resort”

The Respirator Use Guidance also summarizes other requirements for respiratory protection, including training, documenting changes in procedures and conditions, and equipment inspection.

The two April 3 Enforcement Guidance documents accompany OSHA’s March 14, 2020 enforcement guidance regarding respirator fit-testing for health care employers only, previously discussed by the author here.  See Jenner & Block’s “Corporate Environmental Lawyer” blog and Jenner & Block’s COVID-19/Coronavirus Resource Center for frequently updated information for businesses and organizations worldwide.


EPA’s Temporary Enforcement Discretion Policy for COVID-19 Pandemic

Song By Leah M. Song and Steven M. SirosLinkedin_Steven_Siros_3130

Covid-19On March 26, 2020, the U.S. Environmental Protection Agency (“EPA”) announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. EPA Administrator Andrew Wheeler stated that the “EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.”

This temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. To clarify, the policy does not apply to: a) any criminal violations or conditions of probation in criminal sentences, b) activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments, and c) imports. Additionally, the policy does not relieve any entity from preventing, responding to, or reporting accidental releases.

The temporary policy makes it clear that the EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.

The policy addresses different categories of noncompliance differently and is broken into the following sections:

 

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Does the OSH Act Give an Employee the Right to Refuse to Work Due to Fear of Workplace COVID-19 Exposure?

Sigel

 Song

By Gabrielle Sigel  and Leah M. Song

Covid-19

Responding to COVID‑19, many state and local governments are issuing orders encouraging or requiring workers to stay at home (“Stay-At-Home Order”) unless their employment is deemed to be in an “essential business” or “critical infrastructure industry.” Whether working in an essential business or where no Stay-At-Home Order has been issued, employees may express concerns about, or refuse, coming to work due to fear of contracting COVID‑19 at work.  The federal Occupational Safety and Health Act (“OSH Act” or “the Act”) prohibits an employer from retaliating against an employee for exercising rights under the Act.  If an employer fires or takes other action against an employee who walks off the job due to COVID‑19 fears, is the employee exercising a right under the Act, such that the employer could face a government lawsuit for retaliating against the employee?  Although this discussion is limited to refusal to work rights and responsibilities under the OSH Act, as with many issues raised by the novel coronavirus, the answer will be fact-specific and may be unique to this public health crisis.  After analyzing the applicable law below, we provide practical suggestions for how employers and their counsel can analyze the issue if raised at their workplace.

I.  The OSHA Anti-Retaliation Provisions

Since the OSH Act’s enactment in 1970, Section 5(a)(1) of the Act states that “[e]ach employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654 (“the General Duty Clause”).  From its beginning, the OSH Act also has provided that an employer cannot “discharge or in any manner discriminate against any employee” because the employee complains about a safety issue to management or OSHA or “because of the exercise by [an] employee on behalf of himself or others of any right afforded by this Act.”  29 U.S.C. § 660(c) (“Section 11 of the OSH Act”); see also 29 CFR Part 1977.  If an employer takes discriminatory action in retaliation, the Secretary of Labor (“the Secretary”) can sue the employer, under Section 11 of the OSH Act, in federal district, to require reinstatement, back pay, and “all appropriate relief.”  29 U.S.C. § 660(c)(2).  However, the OSH Act does not expressly address how employees can exercise their rights when there is an imminent risk of death or serious bodily injury and a reasonable belief that there is not sufficient time or opportunity to seek redress from OSHA or the employer.

Interpreting Section 11 in 1973, OSHA issued its anti-retaliation regulation at 29 CFR § 1977 (the “OSHA anti-retaliation regulation”), addressing whether, under what circumstances, and how an employee could refuse to perform work under the Act.  Section 1977.12(b)(1) (emphasis added) states:

[A]s a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.

29 CFR § 1977.12(b)(1) (emphasis added).

Despite this initial statement that employees do not have the right to walk off the job, in the next paragraph the regulation acknowledges that exigent circumstances may exist that would trigger employee protections for refusing to work.  Section 1977.12(b)(2) states:  “[O]ccasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace,” and, on those occasions, an employer cannot take action against the employee.  29 CFR § 1977.12(b)(2).  Specifically, if:  (1) “the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition;” (2) “a reasonable person… would conclude that there is a real danger of death or serious injury;” (3) due to the urgency of the situation, there is insufficient time “to eliminate the danger through resort to regular statutory enforcement channels;” and (4) the employee “sought from his employer, and was unable to obtain, a correction of the dangerous condition,” an employer taking action against the employee refusing to work could be subject to a Section 11 lawsuit brought by the Secretary.  Id.; see also 29 U.S.C. § 660(c).

OSHA has published guidance on the issue, Workers’ Right to Refuse Dangerous Work, cautioning that “OSHA cannot enforce union contracts that give employees the right to refuse to work,” but explaining the steps that workers should take if they believe working conditions are dangerous, the employer fails to eliminate the imminent danger, and there is not enough time to address the condition through regular enforcement channels:

  1. Ask your employer to correct the hazard, or to assign other work;
  2. Tell your employer that you won’t perform the work unless and until the hazard is corrected; and
  3. Remain at the worksite until ordered to leave by your employer.

Notably, this OSHA guidance does not answer the question presented by COVID‑19:  an employer’s obligations and an employee’s rights when OSHA’s direction to “remain at the worksite” is at the root of an employee’s claim of a dangerous condition.  

II.  Caselaw and OSHA Guidance Interpreting Section 11 and the OSHA Anti-Retaliation Regulation

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Does Environmental Investigation and Remediation Continue Despite COVID-19 Business Restrictions and Social Distancing?

Bandza Linkedin_Steven_Siros_3130 SigelBy: Alexander J. Bandza, Steven M. Siros, and Gabrielle Sigel

DigAs the United States rapidly transitions to working from home (when possible) companies involved in environmental investigations or remediation work must determine whether such field or other work could, should, or must continue in the days, weeks, and months ahead. The world is pivoting to tackle COVID-19, a public health crisis, and many of the “essential services” exempted from stay-at-home/shelter-in-place orders (“Restriction Orders”) include work involving public health and safety, as well as critical infrastructure services. Therefore, any person with ongoing environmental investigation and remediation work (“environmental field work”) has to consider whether that work would be or should be included in the category of “essential services.”

From a policy standpoint, whether environmental field work should be considered “essential” requires an evaluation of the people and the environment potentially put at risk, the likelihood of that risk, and the resources the work uses. Continuation of environmental field work may benefit public health and the environment, but it also is occurring at some cost to public health and safety. For example, environmental projects use personal protective equipment (“PPE”) and laboratory equipment and personnel that may be able to be allocated to medical and other scientific research needs. Furthermore, some environmental field work requires close human contact and, at a minimum, will require travel to work and other activities that the Restriction Orders and federal and CDC guidelines are seeking to avoid. In addition, environmental contractors may not be able to perform work if key personnel are not available to work due to travel restrictions, health impacts, or family obligations. Thus, the consideration of whether environmental field work should continue during the COVID-19 crisis requires weighing complex public health and safety needs and risks.

To help those considering whether and how to continue environmental field work, evaluate the following:

(1)     Am I allowed to do the environmental field work under a state or local COVID-19 Restriction Order?

(2)     If I cannot continue under a Restriction Order or for other reasons, how do I protect my company’s interests to avoid penalties and other liabilities under the consent decrees, administrative orders, or various other agreements with or regulations imposed by state and federal environmental agencies; and

(3)     If I am allowed to or required to continue the work, what regulations pertain to how to do the work safely?

1.    AM I ALLOWED TO DO THE WORK UNDER A RESTRICTION ORDER?

As of the time of publication of this alert, there are no federal mandates or executive orders requiring business shutdowns or mandatory quarantines. However, many states, counties, and municipalities are issuing executive orders closing non-essential businesses and limiting gatherings of people.

    a.    State-Level COVID-19 Executive Orders

Each of these state and local mandates exempt “essential businesses” and the specific definition of an essential business varies from state to state. As a general rule, however, “essential businesses” are those that promote public safety, health, and welfare. Here are examples of several of the first state directives.    

California: On March 19, 2020, Governor Newsom issued Executive Order N-33-20 requiring California residents to remain at home unless they are involved in 16 critical infrastructure sectors. These 16 critical infrastructure sectors were designated by the Department of Homeland Security and include the water and wastewater systems sector that is responsible for ensuring the supply of safe drinking water and wastewater treatment and service.  

Illinois: On March 20, 2020, Governor Pritzker issued Executive Order 2020-10 requiring Illinois residents to remain in their homes to prevent the spread of COVID-19. The order specifically exempts “essential government functions”, “essential businesses and operations”, and “essential infrastructure activities.” Essential infrastructure activities include operation and maintenance of utilities, including water, sewer, and gas, and solid waste and recycling collection and removal and essential businesses and operations includes construction related activities.

New York: On March 20, 2020, Governor Cuomo issued an Executive Order (referred to as Pause, standing for Policies Assure Uniform Safety for Everyone), requiring that as of 8 p.m. on March 22, all non-essential businesses must ensure that their workforce works remotely. Exempt “Essential businesses” include essential infrastructure (including utilities and construction); essential services (including trash collection, mail, and shipping services; news media; banks and related financial institutions); sanitation and essential operations of residences or other essential businesses; and vendors that provide essential services or products (including services needed to ensure the continuing operation of government agencies and provide for the health, safety, and welfare of the public).

New Jersey: On March 21, 2020, Governor Murphy issued Executive Order 107 requiring that New Jersey residents remain in their homes and requiring that all “non-essential businesses” close. A previously issued executive order (Executive Order No. 104) defined “essential businesses” to include “grocery/food stores, pharmacies, medical supply stores, gas stations, healthcare facilities and ancillary stores within healthcare facilities.” All gatherings within the state are limited to 50 persons or fewer, except for “normal operations at airports, bus and train stations, medical facilities, office environments, factories, assemblages for the purpose of industrial or manufacturing work, construction sites, mass transit, or the purchase of groceries or consumer goods.”

In addition to these states, many other states have either implemented similar orders (including Connecticut, Delaware, and Louisiana) or likely will do so in the coming weeks. While expressly mentioning critical sectors such as health care, police and fire, and grocery stores, the orders do not squarely address whether environmental field work constitutes “essential businesses” subject to these exemptions. However, environmental field work logically could be included under the categories used to describe “essential business,” particularly because many of the environmental statutes requiring such work expressly state that the work is being ordered or conducted to protect human health and the environment.

    b.    Federal (U.S. EPA) Environmental Agency Guidance

The White House has issued Coronavirus Response Guidelines, “15 Days to Slow the Spread,” including a statement that if you work in one of the 16 “critical infrastructure industries” as defined by the Department of Homeland Security, you have a “special responsibility” to continue to work.

As of this publication, U.S. EPA has not released public guidance on whether ongoing or new site cleanups and/or site investigations would constitute “critical infrastructure industry.” At least to some degree, that determination is likely to be a site-specific, based on the unique circumstances of each site and, as further discussed below, the language of the agency orders or agreements which govern the environmental field work. It is likely that in the coming weeks, U.S. EPA will provide further guidance on assessing whether site cleanup activities constitute “critical infrastructure industry” exempt from the various Restriction Orders. One issue that may need to be resolved in the future relates to potential conflicts in federal and state guidance regarding what constitutes an “essential service.” Such issues could be addressed via federal and state cooperation agreements in the event of possible conflicts between federal and state directives.

    c.    State Environmental Agency Guidance

At least one state environmental regulatory agency has provided guidance directly on this issue. On March 20, 2020, the California State Resources Water Control Board, which generally has jurisdiction over impacted groundwater in California, published a Guidance Document that states:

Please be aware that timely compliance by the regulated community with all Water Board orders and other requirements (including regulations, permits, contractual obligations, primacy delegations, and funding conditions) is generally considered to be an essential function during the COVID-19 response. As a result, the Water Boards consider compliance with board-established orders and other requirements to be within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials.   

It is likely that similar guidance will be issued in the coming weeks by other state regulatory agencies.

2.    IF I CANNOT CONTINUE THE WORK UNDER A RESTRICTION ORDER OR OTHERWISE, HOW COULD I PROTECT MY COMPANY’S INTERESTS TO AVOID PENALTIES OR OTHER LIABILITIES?

Those responsible for ongoing environmental field work should carefully evaluate the governing consent decrees, administrative orders, or other agreements with state and federal environmental agencies, and private parties, under which they are performing environmental field work. The agreements may well have force majeure and other clauses addressing delays in the work.

For example, under the current federal model remedial design/remedial action (RD/RA) judicial consent decrees with potentially responsible parties (“PRPs”) under sections 106, 107 and 122 of CERCLA, PRPs have both covenanted not to sue the United States and agreed to indemnify the same for “claims on account of construction delays.” There are additional stipulated penalty provisions. Therefore, companies must act pursuant to the force majeure provisions to avoid these claims and stipulated penalties. Force majeure is defined as “any event arising from causes beyond the control of [PRPs], of any entity controlled by [PRPs], or of [PRPs]’ contractors that delays or prevents the performance of any obligation under this [consent decree] despite [PRPs]’ best efforts to fulfill the obligation.”

Relying on these provisions involves:

  • Notifying “EPA’s Project Coordinator orally or, in his or her absence, EPA’s Alternate Project Coordinator or, in the event both of EPA’s designated representatives are unavailable, the Director of the Waste Management Division” in that specific U.S. EPA Region within a stipulated period of days (the period of days may vary under each consent decree).
  • Providing in writing to U.S. EPA “an explanation and description of the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; [the PRP’s] rationale for attributing such delay to a force majeure; and a statement as to whether, in the opinion of [the PRP], such event may cause or contribute to an endangerment to public health or welfare, or the environment” within a stipulated period of days (the period of days likely varies under each consent decree).
  • Providing with the above writing “all available documentation supporting their claim that the delay was attributable to a force majeure.”

U.S. EPA is then to provide notice of its decision, which if U.S. EPA rejects the force majeure claim, the responsible parties must provide notice within 15 days of U.S. EPA’s decision to avail themselves of the model consent decree’s dispute resolution provision. The federal Model Administrative Settlement Agreement and Order on Consent for Removal Actions contains similar obligations and provisions.

It is thus plain that responsible parties conducting environmental field work should be prepared to contact U.S. EPA or state regulators orally as soon as practicable to determine their views on the necessity of the work and if there is disagreement about the same, begin to “paper the file” on the necessary force majeure documentation in the time frames provided in the governing consent decrees, administrative orders, or various other agreements with state and federal environmental agencies.

For sites that are in the early investigation stages, regulators may agree to a temporary pause in site investigations. For sites that are currently undergoing remedial measures, the determination on whether work should continue is again likely to be fact dependent. For example, a site with an ongoing groundwater treatment system that is being operated to protect a drinking water source is likely to be deemed an essential activity. For a site where the remedial measures involve excavating impacted soils that are not immediately affecting groundwater sources, it may be the case that the regulators determine that certain activities are not “essential” and can be temporarily paused or scaled back.

Even if the decision is made to proceed with the work, other circumstances may preclude or significantly impair the ability to do the work. For example, it may be difficult to obtain necessary supplies and/or vendors to perform these services. To the extent that wastes are generated in the course of doing this work, can these wastes be managed and disposed of in a timely manner? These are all issues that should be discussed with the regulators or private parties requiring the work.

3.    IF I CONTINUE THE WORK, HOW CAN I DO IT SAFELY?

Once a decision is made that environmental field work is “essential” and must proceed to at least some degree, special care must be taken to ensure that the work is performed safely given additional risks imposed by COVID-19.  On March 9, 2020, the federal Occupational Safety and Health Administration (“OSHA”) issued its Guidance on Preparing Workplaces for COVID-19 that was the subject of a previous client alert.  This OSHA guidance outlines recommended steps that employers should take to protect workers, using OSHA’s “hierarchy of controls” framework for addressing workplace risks (i.e., engineering controls, followed by administrative controls, safe work practices, and PPE.  It is also prudent for all entities at the site to consider what steps they will take if they learn that one of the workers has become exposed to the novel coronavirus or contracted COVID-19. On March 20, 2020, the CDC issued updated “Environmental Cleaning and Disinfection Recommendations.” 

OSHA has long-standing regulations for work at hazardous waste sites under its Hazardous Waste Operations and Emergency Response (“HAZWOPER”) standard (in general industry 29 CFR 1910.120 and in construction 29 CFR 1926.65), which establishes health and safety requirements for work at sites, as well as responses to emergencies involving releases of hazardous substances. Many environmental investigation and remediation sites have rigorous site-specific health and safety plans, and many are required to have such plans by a consent decree or other regulatory or contractual obligation. Many environmental contractors have such plans as part of their standard operating procedures. However, given COVID-19, special care should be taken to ensure that PPE that would ordinarily be used to prevent exposure to hazardous substances is not contaminated prior to being utilized in the field.  Moreover, ensuring feasible physical distancing, requiring diligent hygiene methods, and having appropriate cleaning equipment and chemicals in the field are also critical.  All entities with employees at the site should regularly check both the OSHA and CDC website for updated guidance on workplace health and safety best practices. It also is important to ensure that the protocols are being appropriately communicated and followed by all entities (including regulators) at a site; the best protocols and procedures are only as good as their actual implementation by all.

OSHA has reminded the regulated community that if employees contract COVID-19 as a result of performing their work-related duties, the employees who become ill could constitute recordable cases of illness under OSHA’s Injury and Illness Recordkeeping Standard, 29 CFR Part 1904.

Companies and their counsel also should evaluate existing master services agreements that govern the work of their vendors and contractors with a particular eye towards: (i) how indemnification provisions might apply in the event that a vendor’s or contractor’s employee is later determined to be infected with COVID-19 and such a latency period could plausibly extend to such an employee’s work at the company’s site and its employees, and vice versa; and (ii) payment delay provisions should the company or its vendors or contractors become concerned about solvency issues.

We will continue to provide updates on the impacts of COVID-19 on environmental, health and safety issues affecting our clients. Jenner & Block has established a COVID-19 resource center that provides updates on a variety of issues affecting our clients and we would encourage you to visit this resource center for timely updates on COVID-19 related issues.

White House and Congress Use Liability Immunity to Address the Shortage of Respirators in Healthcare Settings

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By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19Due to COVID-19, the nation’s healthcare industry is facing a severe shortage of respiratory protection equipment for healthcare workers. Both Congress and the White House have recently taken steps to try to address that shortage by enacting liability immunity under the Families First Coronavirus Response law, signed late on March 18, 2020. These provisions protect manufacturers, distributors, and others of U.S. Food and Drug Administration (“FDA”)-designated industrial respirators from any claims of liability arising from their use during the response to COVID-19. The intent is that this would increase the supply of NIOSH-approved small-particular filtering respirators from those who manufacture or have on-hand respirators that previously had not been FDA-approved as medical devices.

As explained in OSHA’s Hospital Respiratory Protection Program Toolkit: Resources for Respirator Program Administrators (May 2015), respirators are different from facemasks, including surgical masks. Fluid-resistant facemasks are loose-fitting devices that can protect the healthcare worker from larger droplets of infectious bodily fluids from patients, and vice versa. Facemasks “are not considered respiratory protection— facemasks do NOT provide the wearer with a reliable level of protection from inhaling smaller particles, including those emitted into the room air by a patient who is exhaling or coughing, or generated during certain medical procedures.” Id. at 5. Respirators, on the other hand, protect the hospital worker from both large and small infectious particles in the air (smaller particles are known as “aerosols”). An N95 respirator is a half-mask air-purifying device with NIOSH-approved N95 filters or filtering material. The “95” refers to the NIOSH specification that the respirator filter at least 95% of airborne particles. N95 respirators can be designed for single-use or in a mask that allows re-use after replacement of N95 filter or cartridges, and, in contrast with facemasks, they are designed to form a tight seal on the user’s face. Another type of respirator that protects against inhalation of aerosols is an “air-supplying respirator,” which provides clean air from a source other than the immediate ambient air. Self-contained breathing apparatus, commonly known as “scuba equipment,” is an example of an air-supplying respirator.

Although N95 respirators are generally used in all workplaces where control of inhalation of smaller-sized particles is required to reduce hazards, in order to use such respirators in a hospital, in general, the manufacturer must have its devices approved by the Food and Drug Administration (FDA) as a medical device. Certain N95 respirators can be outfitted with the additional splash protection of a surgical mask, and are called a “surgical respirator,” “medical respirator,” or “surgical N95.” Those devices are deemed a medical device, which must be approved by both the FDA and by NIOSH for their particle-filtering ability Non-surgical N95s are not typically used in a hospital setting and a manufacturer and others may be reluctant to supply them for hospital use, particularly given the potential liability risks from their use in that setting.

Faced with a shortage of surgical N95 respirators, the White House turned to manufacturers and users of industrial N95s as an additional source. On March 2, 2020, the FDA issued an Emergency Use Authorization (EUA), pursuant to section 564 of the Food, Drug, and Cosmetic Act (FDCA), that allows the emergency, COVID-19 use of designated NIOSH-certified N95 respirators in the health care setting. The EUA also stated that certain NIOSH-approved respirators that had passed the manufacturer’s recommended shelf-life also could be used in certain circumstances.

The March 2, 2020 EUA did not address protection of industrial manufacturers from liability for use of respirators in medical settings. On March 11, 2020, the FDA clarified the EUA by stating that the FDA had deemed general use N95 respirators as medical devices within the meaning of 201(h) of the FDCA and eligible for liability protections under the Public Readiness and Emergency Preparedness Act of 2005, 42 U.S.C. § 247d-6d (“the Public Readiness Act”). Under the Public Readiness Act, certain devices, called “countermeasures,” are entitled to broad liability immunity during their use in response to a public health emergency. Specifically, a “covered person” is forever immune from liability for any type of “loss” associated with the use of a designated “countermeasure,” including death, physical, mental, or emotional injury, fear of such injury, including medical monitoring, and damage to property including business interruption. 42 U.S.C. § 247d-6d(a)(1)-(2). A “covered person” includes the United States, manufacturers and distributors of the countermeasure, and all employees of a manufacturer or distributor of a designated countermeasure. 42 U.S.C. § 247d-bd(i)(2). Liability protection is provided regardless of whether the countermeasure is sold, donated or otherwise provided and used for medical services.

On March 14, 2020, the U.S. House of Representatives passed H.R. 6201, the “Families First Coronavirus Response Act,” which in Division F, Section 6005, designated personal respiratory protective devices approved by NIOSH (42 CFR part 84) and designated by the FDA in the March 2, 2020 EUA, as a “covered countermeasure” subject to all liability immunities under the Public Readiness Act.” The U.S. Senate passed the bill, without amendment, on March 18, 2020, and later that day, the bill was signed into law by the President. Industrial respirators will remain a liability-protected countermeasure if they are used to address COVID-19 anytime between January 27, 2020 and October 1, 2024, in response to the public health emergency declared by the Secretary of Health and Human Services Alex M. Azar II on January 31, 2020.

In the meantime, as supplies continue to be short, the CDC has issued guidelines for how medical providers should triage their use of respiratory protective equipment. The guidelines issued as of March 19, 2020 are here.

OSHA Issues Temporary Enforcement Guidance on Healthcare Employers’ Requirements for Fit-Testing of Respirators

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By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19One of the current Occupational Safety & Health Administration (OSHA) regulations on center stage as a result of the health crisis caused by the novel coronavirus and COVID-19 is OSHA’s Respiratory Protection Standard, 29 CFR § 1910.134 (“the Standard”).  On March 14, 2020, OSHA issued a Temporary Enforcement Guidance, entitled “Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak” (“Temporary Guidance”).  Although directly applicable only to the healthcare industry, the Temporary Guidance portends what may become the new normal for all industries that require respirator use and that are continuing to operate during the COVID-19 crisis. 

In general, the Standard requires employers to provide respirators at the appropriate level of protection when it is necessary to protect employees from workplace inhalation hazards.  The Standard also requires such employers to have a written program addressing respirator use, and to implement procedures including for start-up and annual medical evaluation and fit-testing, training, and cleaning of respirators.  Through the Temporary Guidance, OSHA Compliance Officers are provided instructions from OSHA headquarters regarding enforcement of the Standard in the healthcare industry in light of the supply shortages of N95 filtering facepiece respirators. 

The Temporary Guidance notes that the CDC recommends that healthcare providers who are providing direct care to patients with known or suspected COVID-19 to, among other things, use personal protective equipment (“PPE”), such as respirators.  In the Temporary Guidance, OSHA recommends that if N95 respirators are not available, healthcare employers should provide a respirator of “equal or higher protection,” e.g. N99 or N100 filtering facepieces, reusable elastomeric respirators, or powered air purifying respirators.  In addition, to conserve resources, OSHA recommends that fit-testing of filtering facepiece respirators continue, but that employers use a qualitative, non-destructive method, rather than a quantitative, destructive method for fit-testing.  The CDC has its own guidelines regarding what healthcare workers should do when they are facing a shortage of N95 respirators.

With respect to enforcement, OSHA directed all offices to “exercise enforcement discretion” concerning the annual fit-testing requirement, 29 CFR § 1910.134(f)(2), if employers take other actions to mitigate risks to employees, including:

  • Make a “good-faith effort” to comply with the Standard.
  • Use only NIOSH-certified respirators [see concerns regarding counterfeit respirators].
  • Perform initial fit-testing for employees using the same model, style, and size of respirator that the employee will actual use.
  • Train employees regarding how to perform a “seal check” each time a respirator is donned.

Other requirements that OSHA is relying on to mitigate risk and avoid non-compliance are listed in the Temporary Guidance.


U.S. OSHA Issues Guidance for Employers Regarding Preparing for COVID-19 Risks

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By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Covid-19On March 9, 2020, the federal Occupational Safety and Health Administration issued its “Guidance on Preparing Workplaces for COVID-19,” (“Guidance”) compiling best practices and existing regulatory standards for evaluating and preparing for risks to workers from exposure to the novel coronavirus and COVID-19. OSHA urges that “it is important for all employers to plan now for COVID-19.” (p. 3) The Guidance describes: (1) how a COVID-19 outbreak could affect workplaces; (2) steps employers can take to reduce workers’ risk of exposure; (3) classification of jobs into categories of risk and controls to protect workers in each category; and (4) how to protect workers living or traveling outside the U.S.

OSHA acknowledges that “[w]hile there is no specific OSHA standard covering SARS-CoV-2 exposure, some OSHA requirements may apply to preventing occupational exposure to SARS-CoV-2,” specifically, OSHA’s regulations regarding provision of personal protective equipment (“PPE”) [ 29 CFR 1910 Subpart I], respirator use [29 CFR 1910.134], and the all-encompassing General Duty Clause of the OSH Act, which requires employers to provide each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). (p.17) OSHA also suggests that the bloodborne pathogen standard [29 CFR 1910.1030] offers a framework for controlling exposures to respiratory secretions that may contain the virus.

In the Guidance, OSHA divides job tasks into exposure levels of “very high, high, medium, and lower risk” and then recommends steps employers should consider taking to protect workers in each risk category, using its “hierarchy of controls” framework for addressing workplace risks, i.e., engineering controls, followed by administrative controls, safe work practices, and PPE. (pp. 18-25) OSHA’s analysis is summarized below:

  • Very High Risk Workers: Workers in the health care and related professions (including autopsy and mortuary workers) performing aerosol-generating procedures on known or suspected COVID-19 patients or handling specimens or body parts from such patients.
    • Engineering Controls: Install and maintain air-handling systems in healthcare facilities; patients with suspected or known COVID-19 should be placed in airborne infection isolation rooms, “if available;” aerosol-generating procedures should occur only in isolation rooms; use Biosafety Level 3 precautions for handling specimens.
    • Administrative Controls: Follow all healthcare facility guidelines and standards for identifying and isolating infected individuals and protecting workers; “consider” offering enhanced medical monitoring of workers; train workers on preventing transmission; ensure psychological and behavioral support for employee stress. Safe
    • Work Practices: Provide emergency responders and others working outside of fixed healthcare facilities with hand rubs containing at least 60% alcohol. PPE: Provide respirators for those working within 6 feet of potential or known infected patients; PPE ensemble including gowns, fluid-resistant coveralls, aprons and other protective clothing; proper disposal of PPE, including training of those involved in disposal.
  • High Risk Workers: Other health care and mortuary workers who are exposed to known or suspected COVID-19 patients, but not those exposed to aerosol-generating procedures.
    • Engineering and administrative controls, safe practices, and PPE: Same as for Very High Risk Workers, adjusted based on somewhat lower risk.
  • Medium Risk Workers: Workers whose job requires frequent and/or close contact within 6 feet of those who may be infected with the virus, but are not known to have contracted COVID-19. “Medium risk” classification applies to those who work with the general public in communities with “ongoing community transmission,” such as in schools and “some high-volume retail settings.”
    • Engineering Controls: Physical barriers, such as sneeze guards, “where feasible.”
    • Administrative Controls: “Consider” offering facemask to ill employees and customers until they can leave the workplace; inform customers of COVID-19 symptoms; “where appropriate,” limit customer and public access to workplace areas; communicate availability of medical resources.
    • PPE: May need combination of gloves, own, face mask, face shield/goggles, depending on work tasks, hazard assessment, and types of exposures; need for respirator would be “rare.”
  • Lower Risk Workers: Workers whose jobs do not require frequent contact with the public and other coworkers.
    • Engineering Controls: None additional.
    • Administrative Controls: Monitor public health communications, including CDC’s website, and work with workers on effective communications.
    • PPE: None additional.

In addition to the steps above, OSHA’s Guidance provides “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to SARS-CoV-2.” (pp. 7-17) While not requiring employers take these measures, the Guidance states that “[a]s appropriate,” employers should implement “good hygiene and infection control practices”; “explore whether” employers can establish practices including physical and social distancing, and have cleaning equipment and chemicals that are EPA-approved for addressing viruses. (pp. 8-9) OSHA also states that employers should develop policies and procedures for “prompt identification and isolation of sick people, if appropriate.” (p.9) OSHA also encourages employers to “develop, implement and communicate about workplace flexibilities and protections” with the principal goal of allowing sick workers or those with illness in families to stay home. (p.11)

With respect to employers with workers working abroad, the Guidance advises that employers keep abreast of CDC and State Department announcements, tell workers that the State Department will not provide medications or supplies to Americans abroad, and be aware that travel in and out of a foreign country may be limited. (pp. 25-26) (The Guidance was issued before the President announced his ban of travel from Europe on March 11.)

Further and updated information about OSHA’s response and guidance about COVID-19 can be found at https://www.osha.gov/SLTC/covid-19/. California-OSHA also has published extensive “Guidance on Requirements to Protect Workers from Coronavirus.”


Supreme Court Agrees to Hear Key Endangered Species Act FOIA Case

HeadshotBy Matthew G. Lawson

Foia.govOn Monday, March 2, 2020, the United States Supreme Court granted certiorari to a petition from two U.S. federal agencies attempting to block the release of certain agency decision-making documents under the Freedom of Information Act (“FOIA”).  The agencies’ petition followed a determination by the Ninth Circuit that certain “draft” documents created by the agencies pursuant to Section 7 of the Endangered Species Act (“ESA”) were not exempt from public release under FOIA.  The Supreme Court’s resolution of the matter is expected to have far reaching impacts on the types of documents that federal agencies may hold back from public release under FOIA.

The case stems from an April 2011 regulatory proposal by U.S. EPA to modify standards related to certain “cooling water intake structures,” used by power plants and manufacturing facilities to dissipate heat.  Under Section 7 of the ESA, the United States Fish and Wildlife Service (“USFWS”) and National Marine Fisheries Service (“NMFS”) were required to provide U.S. EPA their “biological opinions” as to whether the regulatory proposal was “likely to cause jeopardy” for certain ESA-listed species or negatively impact critical habitat of threatened or endangered species.  Pursuant to this obligation, the USFWS and NMFS advised U.S. EPA of their preliminary determination that the proposed regulations would harm currently endangered species.  However, the agencies’ preliminary determinations were never published, and following further discussions with U.S. EPA, the agencies ultimately modified their conclusion and announced a finding that the proposed regulations would pose no “no jeopardy” to endangered species.  Following this determination, the Sierra Club subsequently issued a FOIA request for documents related to the ESA consultation process, but the agencies refused to turn over documents related to their draft preliminary determination.  Specifically, the agencies claimed that the documents were protected under the “deliberate process privilege” exception to the FOIA.  Following several years of litigation, the Ninth Circuit held in 2018 that the deliberate process privilege did not extend to block the draft documents created by the USFWS and NMFS and that the agencies were required to turn over the documents to the Sierra Club.

In its petition, the Government urged that the Ninth Circuit’s rulings must be overturned in order to protect the deliberate process privilege of FOIA, which is essential for “promoting a candid exchange within and between agencies before a final decision is made.” In its brief in response to the Government, the Sierra Club argued that the documents “conveyed the Services’ conclusion that a particular action proposed by…EPA would result in jeopardy to species protected by the ESA,” and that the agencies’ attempt to subsequently identify these documents as “drafts” did alter the conclusive nature of the documents.

The Supreme Court’s decision to hear the Government’s petition is likely an ominous indicator for the Sierra Club and other environmental groups supporting the Ninth Circuit’s holding.  Since 2007, the Supreme Court has overturned approximately 70% of the federal circuit decisions it agrees to review, and has overturned more than 77% of the decisions arriving from the Ninth Circuit. 


EPA Announces Regulatory Determination to Regulate PFAS in Drinking Water

Headshot By Matthew G. Lawson PFAS   

On Thursday, February 20, 2020, the U.S. Environmental Protection Agency (“EPA”) announced a preliminary regulatory determination that the agency will seek to implement regulatory limits for Per- and Polyfluoroalkyl Substances (PFAS) in public drinking water across the United States.  The regulatory determination is a key step in the creation of a Maximum Contamination Level (“MCL”) that will act to limit the quantity of PFAS permitted in public drinking water.  In its preliminary regulatory determination, EPA proposes setting MCL levels for two PFAS substances, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which EPA has determined meet the statutory criteria to become regulated contaminants under the Safe Drinking Water Act.  To meet this criteria, EPA had to find that: (1) the consumption of PFOS and PFOA may result in adverse health effects; (2) PFOS and PFOA have been identified in public water supplies at frequencies and levels sufficient to cause a public health concern; and (3) that new regulation presents a meaningful opportunity to reduce the health risks posed by PFOS and PFOA.

As part of its announcement, EPA will seek public comments on its preliminary findings for the next 60 days.  Critically, the preliminary regulatory determination offers no insight into the regulatory levels EPA anticipates setting for PFOS or PFOA.  Through its voluntary Health Advisory Level (“HAL”), EPA currently recommends that municipalities maintain a maximum limit of 70 parts per trillion of PFAS in drinking water served to the public.  While the HAL is referenced in EPA’s preliminary regulatory determination, it is unclear whether EPA will look to set PFOS or PFAS’ mandatorily MCL at a similar level.  EPA’s election to regulate PFOS and PFOA kicks off a two-year period for the agency to determine an appropriate MCL for the contaminants.  Following the formal proposal of an MCL, the agency has another 18 months to set its final drinking water requirements.  

The release of a preliminary regulatory determination marks a critical step in EPA’s implementation of its PFAS Action Plan.  Under the PFAS Action Plan, EPA has committed to “identifying and understanding PFAS, [ ] addressing current PFAS contamination, preventing future contamination, and effectively communicating with the public about PFAS.” The plan sets forth four overarching goals for regulating PFAS:

  1. Consider the creation of an MCL for PFOA and PFOA;
  2. Begin necessary steps to propose designating PFOA and PFOS as “hazardous substances” through available federal statutory mechanisms, including CERCLA, RCRA, TSCA and the CWA;
  3. Develop and implement groundwater cleanup recommendations for PFOA and PFOS at contaminated sites;
  4. Develop toxicity values or oral reference doses for various PFAS chemicals.

Under the Trump Administration, the EPA has repeatedly affirmed that addressing the emerging contaminant PFAS is a key and ongoing priority for the agency.  As stated in the PFAS Action Plan, “the EPA has heard clearly the public’s desire for immediate action to address potential human health and economic impacts from PFAS in the environment.”  In fact, despite proposing large cuts to EPA’s overall budget, the Trump Administration’s proposed budget for 2021 requests an additional $6 million dollars from Congress to carry out EPA’s PFAS Action Plan. “Under President Trump, EPA is continuing to aggressively implement our PFAS Action Plan – the most comprehensive cross-agency plan ever to address an emerging chemical,” stated EPA Administrator Andrew Wheeler. “With today’s action, EPA is following through on its commitment in the Action Plan to evaluate PFOA and PFOS under the Safe Drinking Water Act.”

White House Promises to Use “All Available Tools” to Implement Deep Cuts to EPA Funding in Fiscal Year 2021

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By Matthew G. Lawson

Epa On Monday, February 10, 2020, the Trump Administration released its proposed budget for Fiscal Year 2021. The proposal calls for sweeping cuts to a number of federal agencies and departments, including deep cuts to the United States Environmental Protection Agency (“USEPA”). If enacted, the proposed budget would grant $6.7 billion in funding to USEPA, a $2.4 billion or 26-percent reduction from the agency’s $9.1 billion budget in 2020. In the budget proposal’s preamble, the Administration promises to “call[] on the Government to reduce wasteful, unnecessary spending, and to fix mismanagement and redundancy across agencies.”

With respect to USEPA’s budget allocation, the proposal promises to “eliminate almost 50 wasteful programs that are outside of EPA’s core mission or duplicative of other efforts, saving taxpayers over $600 million.” Proposed major cuts include the reduction of nearly 50% of the agency’s research budget, including all funding for grants to independent universities and research institutes conducting air, water, and other environmental and health research. Another target for deep cuts is USEPA’s safe drinking water revolving funds. The revolving funds are used to help fund water infrastructure projects undertaken by state or municipal public water providers. Under the proposed budget, the available funds for such projects would be cut from approximately $2.77 billion down to $2 billion.

While the proposal primarily focuses on proposing cuts to USEPA’s fiscal budget, it does contain a few line item requests for additional funding. In particular, the proposal asks for an additional $6 million to carry out USEPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan. The additional funding is sought to continue research into the risk posed by PFAS compounds, address current contamination issues, and effectively communicate findings to the public. In addition, the budget requests $16 million into new research to help prevent and respond to the rising growth of harmful algal blooms. 

The budget proposal is not the first time the Trump Administration has sought to implement deep cuts into USEPA’s budget. In fact, the Trump Administration has now proposed nearly identical cuts to the agency’s budget in each of the last three fiscal years. As previously discussed by the Corporate Environmental Lawyer, the Trump Administration first proposed a $2.7 billion budget reduction for USEPA in fiscal year 2018. However, the proposal was rebuffed by congress and the final spending bill ultimately signed by Trump held the agency’s budget at $8.1 billion, even with its 2017 level. The following year, the Trump Administration again proposed cutting the agency’s budget by more than $2 billion, but ultimately agreed to a spending deal that increased the agency’s budget to $8.8 billion. Finally, during fiscal year 2020, the Trump Administration proposed approximately $2.7 billion in cuts to USEPA’s budget. As before, Congress rejected the proposal and ultimately approved a nearly record high budget for USEPA of $9.1 Billion.  Congress’ continued rejection of the spending cuts proposed by the Trump Administration is acknowledged in the Administration’s most recent 2021 budget proposal, which derides Congress for continuing “to reject any efforts to restrain spending” and “greatly contribut[ing] to the continued ballooning of Federal debt and deficits, putting the Nation’s fiscal future at risk.” The proposal promises that the Trump Administration will use “all available tools and levers” to ensure that the spending reductions outlined in the budget are finally implemented.

California Lowers Response Levels for PFAS Compounds

Linkedin_Steven_Siros_3130 By Steven M. Siros

Drinking water

On February 6, 2020, California’s Water Resources Control  Board (WRCB) announced that it would be dropping the response levels (RLs) for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) from 70 parts per trillion (ppt) to 10 ppt for PFOA and 40 ppt for PFOS. This announcement comes on the heels of the WRCB’s August 2019 decision to lower the notification levels (NLs) for these compounds to 5.1 ppt for PFOA and 6.5 ppt for PFOS. An exceedance of the NL requires that the drinking water provider notify their governing boards and the WRCB of the exceedance—this notification would need to occur within 30 days of receipt of the validated laboratory results. In the event of an exceedance of the RL, the water provider must either (1) take the source out of service immediately; (2) utilize treatment or blending; or (3) provide public notification of the exceedance within 30 days of receipt of the validated laboratory results. 

At the same time, the WRCB has asked California’s Office of Environmental Health Hazard Assessment (OEHHA) to proceed with the development of public health goals for both PFOA and PFOS which is a step in the process of establishing maximum contaminants levels for these contaminants. We will continue to monitor and provide updates with respect to these ongoing regulatory activities.