New York Sets PFAS And 1,4-Dioxane MCL

Linkedin_Steven_Siros_3130By Steven M. Siros

 

On July 30, 2020, New York’s Public Health and Planning Council voted to establish maximum contaminant levels (MCLs) for PFOA and PFOS, two of the more common per- and polyfluoroalkyl substances known as PFAS.    The MCL for both PFOA and PFOS was set at 10 parts per trillion (ppt) and once approved by the state’s Health Commissioner, public water systems serving 10,000 people or more will be required to start testing for these compounds within 60 days of the date the regulations are published in the New York State Register.  Systems serving between 3,300 and 9,999 person would have to begin testing within 90 days, while all other systems would need to begin testing within six months.  In conjunction with setting the PFAS MCL, New York also set a 1 part per billion MCL for 1,4-dioxane, another emerging contaminant.

The most immediate impact of the new MCLs will be the testing obligation it imposes on drinking water providers.  If these contaminants are detected in drinking water above the MCL, the drinking water provider will be required to notify its consumers and develop a plan to address the MCL exceedances.  Although New York has historically provided grants to assist municipalities in addressing these types of emerging contaminants, these grants are unlikely to be sufficient in light of the wide-spread testing that will now be required.  As such, one can likely expect a substantial increase in litigation as municipalities aggressively look to shift the burden of paying for these remedial measures from ratepayers to manufacturing and/or other industrial operations that may have contributed to the presence of these contaminants in the environment.  


Virginia Issues First COVID-19 Emergency Workplace Safety and Health Standard

SongSigel

 

By Leah M. Song and Gabrielle Sigel 

Covid-19

 

On July 27, 2020, Virginia became the first state to adopt an emergency workplace safety standard regarding exposure to COVID-19. Virginia is one of the 22 states which has jurisdiction to issue its own workplace safety and health regulations, which must be at least as stringent as regulations issued by U.S. OSHA, but can go beyond federal requirements. The Virginia regulation titled §16 VAC 25‐220, Emergency Temporary Standard, Infectious Disease Prevention: SARS‐CoV‐2 Virus That Causes COVID‑19 (“Emergency Standard”) was adopted during a meeting of the Virginia Safety and Health Codes Board on July 15, 2020. The Emergency Standard will expire “(i) within six months of its effective date, upon expiration of the Governor’s State of Emergency, or when superseded by a permanent standard, whichever occurs first, or (ii) when repealed by the Virginia Safety and Health Codes Board.” The Emergency Standard was available as of July 24, 2020, but will be formally published on July 27, 2020, and its legal effective date is July 27, 2020.

The Emergency Standard shall apply to every employer, employee, and place of employment in Virginia within the jurisdiction of the Virginia Occupational Safety and Health Program (“VOSH”), as described in §§ 16 VAC 25-60-20 and 16 VAC 25-60-30 for both public and private employers.

The “[a]pplication of this [Emergency Standard] to a place of employment will be based on the exposure risk level” (i.e., “very high,” “high,” “medium,” and “lower” of COVID-19 and “related hazards present or job tasks.” The Emergency Standard includes a minimum list of factors to be considered in determining exposure risk level, such as the work environment and employee contact, as well as employer requirements for each exposure risk level.

The Emergency Standard details mandatory requirements for all employers, regardless of exposure risk level, such as:

  • Exposure assessment and determination, notification requirements, and employee access to exposure and medical records
  • Return to work policies and procedures
  • Physical distancing
  • Limited access to common areas
  • Compliance with respiratory protection and personal protective equipment standards
  • Compliance with sanitation and disinfection standards

The Emergency Standard details additional requirements for each exposure risk level designated as “very high,” “high,” and “medium.” For all workplaces other than those with low exposure risk, the employer must develop and implement a written Infectious Disease Preparedness and Response Plan (“IDPR Plan”). The IDPR Plan, employers shall consider contingency plans for outbreaks, identify basic infection prevention measures, and address interaction with outside businesses.

In addition, the Emergency Standard requires that in workplaces in the “very high” and “high” exposure risk levels, the employer shall implement protective measures such as isolation facilities and physical barriers. For the “medium” exposure risk level, the employer shall consider protective measures such as flexible work arrangements and increasing physical distancing.

With regard to face coverings, the Emergency Standard defines “face covering” as not PPE. The Emergency Standard states: “Employee use of face coverings for contact inside six feet of coworkers, customers, or other persons is not an acceptable administrative or work practice control to achieve minimal occupational contact. However, when it is necessary for an employee to have brief contact with others inside the six feet distance a face covering is required.” §16 VAC 25‐220-30. At the “medium” exposure level, employers of "medium" exposure level workplaces are required, “to the extent possible,” to provide and have their employees wear face coverings where it is not feasible to physically distance between employees or in customer-facing jobs for the “medium” exposure level. Face coverings may not be required under certain circumstances, such due to the wearer’s medical condition and religious waivers.

To the extent that an employer actually complies with a recommendation contained in CDC guidelines, and those guidelines provide “equivalent or greater protection than provided by a provision of this [Emergency Standard], the employer’s actions shall be considered in compliance with this [Emergency Standard].” “An employer’s actual compliance with a recommendation contained in CDC guidelines … shall be considered evidence of good faith in any enforcement proceeding related to this [Emergency Standard].”

The Emergency Standard also expressly addressed the notification requirements when there is an employee with a positive COVID-19 case. Employers must notify (a) the building or facility owner if any employee in the building tests positive for COVID-19; (b) the Virginia Department of Health within 24 hours of the discovery of a positive case; and (c) the Virginia Department of Labor and Industry within 24 hours of the discovery of three or more employees who test positive for COVID-19 within a 14-day period.

Additionally, employers are prohibited from using antibody testing to “make decisions about returning employees to work who were previously classified as known or suspected to be infected” with COVID-19.

The Emergency Standard also confirms an employee’s right to “refus[e] to do work or enter a location that the employee feels is unsafe.” Section 16 VAC 25-60-110 provides requirements regarding the “discharge or discipline of an employee who has refused to complete an assigned task because of a reasonable fear of injury or death.” That provision states that such discharge or discipline will be considered retaliatory “only if the employee has sought abatement of the hazard from the employer and the statutory procedures for securing abatement would not have provided timely protection.”

Under Emergency Standard §16 VAC 25‐220‐80, covered employers will have until August 26, 2020, to train employees, covering topics such as the requirements of the Emergency Standard, COVID-19 symptoms and methods of transmission, safe and healthy work practices, and anti-discrimination provisions. It is important to note that training requirements for exposure risk levels “very high,” “high,” and “medium” differ from the less-comprehensive requirements for the “lower” risk level. Under subsection 16 VAC 25‐220‐70, if an employer is required to have an IDPR Plan, the employer must develop and train employees on their IDPR Plan by September 25, 2020.

Training and outreach materials, including training PowerPoints, FAQs, an IDPR Plan template, and an exposure risk level flow chart, are being developed by the VOSH Cooperative Programs Division, with some available here, as of July 24, 2020.

At the federal level, OSHA has come under scrutiny for its decision not to adopt a COVID-19 emergency temporary standard. The American Federation of Labor and Congress of Industrial Organizations’ (“AFL-CIO”) and other unions asked OSHA to issue an Emergency Temporary Standard (“ETS”), rather than have employers rely solely on existing OSHA regulations and new COVID-19 guidance to no avail. On May 18, 2020, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals to compel OSHA to issue an ETS within 30 days. However, on June 11, 2020, the court held that “OSHA reasonably determined that an ETS is not necessary at this time” given the “unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environment.” On June 18, 2020, the AFL-CIO filed for a rehearing en banc. Please see Jenner & Block’s analysis of the AFL-CIO lawsuit here. In addition, the U.S. House of Representatives introduced legislation, titled “The COVID-19 Every Worker Protection Act” (H.R. 6559), which would require OSHA to issue an ETS. The provisions of H.R. 6559, including the provisions relating to the ETS, were included in H.R. 6800, The Heroes Act. H.R, passed by the House on May 15, 2020, and which is set to be part of the upcoming political debates and votes by the House and the Senate on new COVID-19 economic stimulus and related legislation.

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.

Trump Administration Issues Final Rule Substantially Modifying NEPA Regulations

Lawson Headshot By Matthew G. Lawson

SealOn Wednesday, July 15, 2020, the Trump Administration announced the publication of comprehensive updates to federal regulations governing the implementation of the National Environmental Policy Act (NEPA).  The updated regulations—issued by the Council on Environmental Quality (“CEQ”)—are provided in the agency’s final rule titled “Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act” (the “Final Rule”), which is expected to be published in a forthcoming Federal Register publication.  The Final Rule significantly overhauls the responsibilities of federal agencies under NEPA, and represents the first major overhaul to NEPA’s regulations in over 30 years.  During his announcement, President Trump promised that the overhaul would remove “mountains and mountains of bureaucratic red tape in Washington, D.C.” and speed up the approval and construction of major projects such as interstate highways and pipelines. 

NEPA requires federal agencies to quantify and consider the environmental impacts of proposed actions “with effects that may be major and which are potentially subject to Federal control and responsibility.” The federal agency must conduct its NEPA review prior to “any irreversible and irretrievable commitments of resources” towards the proposed action.  To fulfill its obligations under NEPA, federal agencies much first complete an “Environmental Assessment” (“EA”) that analyzes whether a proposed action will have a significant impact on the environment.  If the EA concludes that an action could have significant environmental impacts, the agency is obligated to take the next step under NEPA and prepare a detailed “Environmental Impact Assessment” (“EIS”) that describes and quantifies the anticipated impacts.  Federal agencies are required to undertake an EA and potentially an EIS before commencing public infrastructure projects such as roads, bridges and ports, or before issuing permits to certain private actions that require federal approval, such as the construction of pipelines or commencement of mining operations. 

The Trump Administration has repeatedly voiced displeasure with the existing NEPA process, which the President has characterized as “increasingly complex and difficult to manage.”  Legal challenges initiated under the existing NEPA regulations have also stalled a number of energy projects publicly supported by the administration, including the Keystone XL, the Dakota Access pipelines.  The administration's new regulations are expected to reduce the obligations imposed on federal agencies under NEPA through a variety of measures, including reducing the types of environmental impacts that must be considered during a NEPA review; shortening the permitted time period for reviews; and exempting certain types of actions from the review requirements.

While the Final Rule provides numerous modifications to the language of the existing regulations, three changes expected to have substantial impact on the NEPA process include:

  • Narrowing of “Effects” that Agencies Must Consider: The Final Rule seeks to narrow the scope of the environmental consequences that must be considered during an agency’s NEPA review by striking from NEPA’s definition of “effects” references to “direct”, “indirect”, and “cumulative” effects. Instead, the new definition provides that federal agencies must only consider environmental “effects” that “are reasonably foreseeable and have a reasonably close casual relational to the proposed action…” According to CEQ, NEPA’s existing definition of “effects” “had been interpreted so expansively as to undermine informed decision making, and led agencies to conduct analyses to include effects that are not reasonably foreseeable or do not have a reasonably close causal relationship to the proposed action or alternatives.”  Under the Final Rule’s definition of “effects”, it is unclear whether agencies are ever required to consider a proposed project’s incremental contribution to “global” environment effects, such as Climate Change. Since global effects arguably do not have a “close causal relationship” with any single action, these impacts may now fall outside of NEPA’s purview.

By eliminating the reference to “indirect” emissions and requiring a “close causal relationship” between a project and its environmental effects, the Final Rule also appears to limit federal agencies’ obligation to consider indirect “upstream” and/or “downstream” impacts associated with a project. This issue is of particular significance to the ongoing legal debate regarding the scope of greenhouse gas (“GHG”) emissions that must be considered in NEPA reviews of interstate pipeline projects. Because the volume of GHG emissions caused by the burning of fossil fuels transported by a pipeline often far exceed the emissions directly associated with the pipeline’s construction, litigation can often arise as to whether these subsequent “downstream” emissions must be considered during the pipeline’s NEPA review. Under the Final Rule, it appears that upstream / downstream GHG emissions will often be excluded from NEPA’s requirements unless the emissions have a close relationship with the specific project. Ultimately, the manner in which federal agencies and courts interpret “close causal relationship” in the Final Rule has the potential to significantly reduce the scope of federal agencies’ evaluation of climate change impacts associated with federal projects.

  • Limitations on Review Period and Report Length: The Final Rule seeks to expedite the NEPA review process by requiring federal agencies to limit all NEPA reviews to a maximum of two years.  In addition, the final EIS issued by an agency may not exceed 150 pages of text or, for proposals of unusual scope of and complexity, 300 pages of text.  Exceptions from the review period and/or EIS page limitations may only be granted through specific written approval from a senior agency official.  The limitations imposed by the Final Rule appear to represent a significant departure from the existing NEPA process.  According to a CEQ Report issued on June 12, 2020, the average final EIS is currently 661 pages in length and takes approximately 4.5 years to complete.
  • Directive for Agencies to Expand Categorical Exclusions of NEPA Requirements for Certain Types of Projects: The Final Rule requires federal agencies to develop a list of actions that the agency does not expect to have a significant effect on the environment.  Outside of “extraordinary circumstances,” agencies will not be required to conduct an EA for any projects falling within these categorical exclusions.  Furthermore, the Final Rule clarifies that a NEPA review is not required where a proposed action would only have “minimal Federal funding or minimal Federal involvement,” such that the agency cannot control the outcome of the project.

The updated regulations are set to take effect 60 days after the publication of the Final Rule in the Federal Register.  CEQ has further clarified that federal agencies may apply the updated regulations to any ongoing NEPA reviews, including environmental reviews started before the effective date of the regulations.  However, environmental groups have already publicly stated that they intend to challenge the new rule, claiming at least in part that CEQ failed to respond to the more than one million comments that were submitted in response to the proposed new rules.

 

Lawsuits Challenging EPA’s Temporary Enforcement Discretion Policy for COVID‑19 Pandemic Hit Dead End

Song

By Leah M. Song

Covid-19As an update to our July 1st blog regarding EPA’s notice that its COVID-19 Temporary Enforcement Policy will end on August 31, 2020, there have been some new developments in the lawsuits filed challenging that policy.

On July 8, 2020, Judge McMahon of the United States District Court for the Southern District of New York ruled that the Natural Resources Defense Counsel and other environmental organizations (“Plaintiffs”) failed to show that they were injured by EPA’s purported “unreasonable delay” in responding to the petition. The Plaintiffs had petitioned EPA to publish an emergency rule requiring an entity to provide written notice if they were suspending monitoring and reporting because of COVID-19.

The court held that the Plaintiffs failed to establish the standing requirements. The Plaintiffs did not establish that they were “legally entitled to the information they seek” and lacked association standing as well. The Plaintiffs did not demonstrate that they “suffered a sufficiently concrete injury nor that that alleged injury is fairly traceable to EPA’s purported delay in responding to the Petition.”

The court said it was “perfectly obvious that, at the time Plaintiffs brought this lawsuit, the EPA had not ‘unreasonably’ delayed its response to the Petition.” Judge McMahon said that “the real litigation – over the legality of the [Enforcement Policy] itself – is presently being briefed in an action brought by nine State Attorneys General. That is where the action will – and should – take place.” Accordingly, the court granted summary judgment in favor of the EPA.

One day later on July 9, the State Attorneys General indicated that they will drop their lawsuit against EPA given the upcoming Enforcement Policy deadline. “EPA does not intend to extend the [Enforcement] Policy beyond August 31 and, should the policy terminate on (or before) August 31, Plaintiffs currently intend to voluntarily dismiss the Complaint without prejudice.” The parties prepared a “contingent, expedited briefing schedule” should EPA not terminate the Enforcement Policy by that date. This announcement this lawsuit will be is unlikely to cause Judge McMahon to revisit the summary judgment ruling since this decision doesn’t change that Plaintiffs lacked standing to bring the claims.

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.

The End for EPA’s Temporary Enforcement Discretion Policy for COVID 19 Pandemic

Song

By Leah M. Song

Covid-19On June 29, 2020, the U.S. Environmental Protection Agency (“EPA”) issued a termination addendum to the COVID‑19 temporary enforcement policy previously issued on March 26, 2020. As further discussed below, EPA’s temporary enforcement policy will now terminate no later than August 31, 2020. 

The temporary enforcement policy discussed EPA enforcement of environmental legal obligations during the COVID‑19 pandemic. The temporary policy made clear that the EPA expected 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 required facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID‑19 pandemic. The temporary enforcement policy was analyzed in Jenner & Block’s Corporate Environmental Lawyer blog here.

In the recent termination addendum, EPA pointed to various federal and state guidelines developed in response to the pandemic, but noted that as restrictions begin to be relaxed or lifted, so too are compliance obstacles. However, EPA also noted that in some states, the resurgence of COVID‑19 cases could result in a pause in reopening and EPA acknowledged that “there will be a period of adjustment as regulated entities plan how to effectively comply both with environmental legal obligations and with public health guidance.”

EPA therefore selected August 31, 2020, as the termination date for the temporary enforcement policy. EPA stated that the termination date reflects “the changing circumstances on facility operations, worker shortages, and other constraints caused by the public health emergency,” but “ensures that there is adequate time to adjust to the changing circumstances.”

EPA reminded entities that “[a]s stated in the temporary policy, entities should make every effort to comply with their environmental compliance obligations and the policy applies only to situations where compliance is not reasonably practicable as a result of COVID‑19” which “should become fewer and fewer.” EPA made clear that it “will not base any exercise of enforcement discretion on this temporary policy for any noncompliance that occurs after August 31, 2020.” However, EPA will still consider exercising its enforcement discretion on a “case-by-case basis regarding any noncompliance, including noncompliance caused by the COVID‑19 public health emergency, before or after the temporary policy is terminated.”

Finally, EPA floated the possibility that the temporary enforcement policy could terminate even before August 31, 2020. EPA will continue to assess national and state conditions, such as “the expiration or lifting of ‘stay at home’ orders” and “the status of federal and/or state COVID‑19 public health emergency guidelines.” In the event that EPA determines conditions warrant earlier termination of the policy, EPA will provide at least 7 days’ notice prior to termination of the policy. 

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.


Trends in Climate Change Lawsuits: State Common Law Issues

Song

By Leah M. Song

EarthAs we have discussed in our previous blog posts, 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 following cases are the primary cases that are currently ongoing: Rhode Island, Baltimore, Oakland, and San Mateo.

Defendants in these cases have universally tried to remove these cases to federal court where defendants presumably believe that 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).

As further discussed below, in most of these cases, the district courts have remanded the cases back to state court and those decision have been appealed to the appellate courts. At the same time, defendants have sought to stay the court’s remand orders while the appeals proceed in federal court. These efforts to stay these remand orders have universally been unsuccessful, with the U.S. Supreme Court refusing to stay these orders, as seen here.

The following provides a brief overview and status update on each of these cases:   

  • In Mayor and City Council of Baltimore v. BP PLC, Baltimore brought action against various fossil-fuel companies for public nuisance, private nuisance, strict liability failure to warn, strict liability design defect, negligent design defect, negligent failure to warn, trespass, and violations of Maryland’s Consumer Protection Act. As noted above, defendants sought to remove the case to federal court but the district court remanded the case back to the state court.

On March 6, 2020, the Fourth Circuit Court of Appeals affirmed the district court’s order remanding the case back to state court. The district court rejected each of the fossil-fuel companies’ stated grounds for removal, but the Fourth Circuit held that its appellate jurisdiction was limited to a review of the district court’s conclusion that it lacked subject matter jurisdiction under the federal-officer removal statute pursuant to 28 U.S.C. § 1447(d) and 28 U.S.C. § 1442. The Fourth Circuit found none of the three contractual relationships on which the fossil-fuel companies based their claims for federal officer removal were sufficient to justify removal from state court, either because the relationships failed to satisfy the requirement that the fossil-fuel companies were “acting under” the direction of a federal officer or because the contractual relationships were “insufficiently related” to Baltimore’s claims for purposes of the nexus prong.

On March 31, 2020, the fossil-fuel companies filed a petition for a writ of certiorari in the Supreme Court, seeking review of the question of whether the statutory provision prescribing the scope of appellate review of remand orders “permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court where the removing defendant premised removal in part on the federal officer removal statute… or the civil-rights removal statute.” Baltimore’s response was due by April 30, 2020, but has been extended to June 29, 2020 due to the COVID-19 pandemic.

  • Rhode Island v. Chevron Corp. et al. was the first climate change damages case to be brought by a In this case, Rhode Island brought action against 21 different fossil-fuel companies for nuisance, strict liability, failure to warn, design defect, trespass, impairment of public trust resources, and violations of the Rhode Island Environmental Rights Act. Rhode Island’s lawsuit asserts that the state’s extensive coastline will be damaged through rising sea levels, increased frequency and severity of flooding and ocean acidification. The fossil-fuel companies had removed to federal court and Rhode Island tried to remand back to state court. On July 22, 2019, the federal court ordered the litigation to be remanded back to Rhode Island state court. While acknowledging that at least two federal courts had reached opposite conclusions, the court held that Rhode Island’s climate change claims were not preempted by the Clean Air Act and did not implicate a substantial federal question such that removal to federal court was appropriate. With respect to the Clean Air Act, the court found that the statute did not act to preempt all state-law causes of action for air pollution, including Rhode Island’s claims against defendants for releases of greenhouse gases. In addition, the court held that Rhode Island’s claims did not implicate a substantial federal question because “[t]he rights, duties, and rules of decision implicated by the complaint are all supplied by state law, without reference to anything federal.”

Rhode Island promptly notified the First Circuit of the Fourth Circuit’s decision in Baltimore, noting that that the Fourth Circuit’s decision “rejects the exact arguments raised … as to the proper scope of … appeal” as well as the fossil-fuel companies’ “tenuous justification for federal officer removal.” In response, Chevron filed a letter seeking to distinguish the Baltimore decision on the grounds that the Fourth Circuit “considered itself bound by [c]ircuit precedent” and had based its holding that federal officer removal was inapplicable on an incorrect characterization of plaintiffs’ claims in that case.

  • On May 26, 2020, the Ninth Circuit joined the Fourth Circuit in Baltimore in concluding that these climate change cases alleging only state-common law claims (County of San Mateo v. Chevron Corp. et al. and City of Oakland v. BP p.l.c. et al.) belonged in state court. 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. Defendants sought to remove 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 its case, finding instead that plaintiffs’ public nuisance claims were governed by federal common law, but then proceeding to dismiss the lawsuit for failure to state a claim. Both cases were appealed to the Ninth Circuit.

The Ninth Circuit agreed with plaintiffs that two climate change lawsuits had been improperly removed to the federal courts, continuing courts’ recent trend of remanding these types of cases back to state court. These cases were recently analyzed on Jenner & Block’s Corporate Environmental Lawyer here.

Shortly after these rulings, both Rhode Island and Boulder filed letters informing the respective courts of the Ninth Circuit’s San Mateo and Oakland decisions.

Although San Mateo and Oakland 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 climate change litigation cases as they unfold.


PFAS SNUR Finalized Without “Safe Harbor” Provisions

Linkedin_Steven_Siros_3130By Steven M. Siros

Epa logoOn June 22, 2020, U.S. EPA issued a final TSCA significant new use rule (SNUR) for long-chain perfluoroalkyl carboxylate (LCPFAC) and perfluoroalkyl sulfonate (PFAS) chemical substances. Specifically, the SNUR designates as a significant new use manufacturing (including importing) or processing of (i) an identified subset of LCPFAC chemical substances for any use that was not ongoing as of December 15, 2015 and (ii) for all other LCPFAC chemical substances for which there were no ongoing uses as of January 21, 2015. 

The SNUR also makes inapplicable the exemption for persons who import LCPFAC chemical substances as part of the surface coating on articles (note that the SNUR narrows the scope of affected articles from all imported articles to only those articles that contain such a substance in a surface coating). The SNUR also makes inapplicable the exemption for persons who import PFAS chemical substances in carpets. Persons subject to this SNUR would be required to provide notification to U.S. EPA prior to manufacturing or importing these chemical substances which notification would trigger U.S. EPA’s TSCA review and evaluation of the intended use. 

The final SNUR did drop two controversial provisions that would have provided a “de minimis” exemption below which notification would not be required and a “safe harbor” provision that would have allowed article importers to avoid enforcement action if they could demonstrate that their use was ongoing prior to the rule’s effective date. 

In response to comments submitted on the proposed “safe harbor” provisions, U.S EPA noted that “[a] safe harbor approach undermines the regulatory process for what uses are allowed by permitting a manufacturer to claim a use was ongoing at the time the SNUR was issued” especially since manufacturers and/or importers were put on notice of the proposed SNUR five years ago. 

With respect to the proposed “de minimis” threshold for articles before the notification requirements would kick in, U.S. EPA  noted while it was not establishing a de minimis threshold in the final rule, U.S. EPA stated that it “will, however, continue to engage with interested stakeholders on this issue and continue to consider whether guidance for applying this standard may be appropriate in the future, whether as a general matter or, for instance, as applied to specific categories of substances or potential exposures.”

The SNUR will take effect 60 days after official publication in the Federal Register. 


U.S. OSHA Issues Guidance on Returning to Work

SongSigel

 

By Leah M. Song and Gabrielle Sigel 

Covid-19

 

On June 18, 2020, U.S. OSHA issued its “Guidance on Returning to Work,” (“Reopening Guidance”) compiling best practices and existing regulatory standards to assist employers and workers return to work and reopen businesses characterized as non-essential in the earlier weeks of the COVID‑19 pandemic. OSHA described the purpose of the Reopening Guidance as a supplement to OSHA’s first COVID-19 guidance for all employers, issued on March 9, 2020, titled “Guidance on Preparing Workplaces for COVID‑19,” and to the White House’s April 16, 2020 “Guidelines for Opening Up America Again,” both of which have been analyzed on the Jenner & Block Corporate Environmental Lawyer blog here and here, respectively.  In its news release introducing the Reopening Guidance, OSHA states that “[n]on-essential businesses should reopen as state and local governments lift  stay-at-home … orders, and follow public health recommendations from the Centers for Disease Control and Prevention and other federal requirements or guidelines.”

The Reopening Guidance states that it “focuses on the need for employers to develop and implement strategies. . .” for safe work after reopening. Although OSHA does not directly state that employers must have written reopening plans, OSHA’s Reopening Guidance provides the following “guiding principles” that employers’ reopening plans “should address”:

  • Hazard Assessment
  • Hygiene
  • Social distancing
  • Identification and Isolation of Sick Employees
  • Return to Work After Illness or Exposure
  • Controls
  • Workplace Flexibilities
  • Training
  • Anti-retaliation

(Reopening Guidance, pp. 6-10.) OSHA then provides suggestions on how to implement each of the “guiding principles.” Id. For instance, the Hazard Assessment guiding principle includes “practices to determine when, where, how, and to what sources of SARS-CoV-2 workers are likely to be exposed in the course of their job duties.” The Reopening Guidance provides several examples of how to implement hazard assessments, such as assessing job tasks to determine which involve occupational exposure to the virus and exposure to other members of the public or coworkers. In the discussion of the guiding principle of “Controls,” OSHA addresses PPE and makes clear, as it did in its Face Coverings guidance on June 10, 2020, that face coverings are not PPE. (Reopening Guidance, p. 8.) OSHA repeats this distinction regarding PPE in its discussion of the guiding principle of “Training.” OSHA states that although employers should train workers on how to don/doff, clean, store, maintain, and dispose of PPE, face coverings are not PPE, indicating that those training procedures are not for face coverings. (Reopening Guidance, p. 9.)  The CDC, however, has issued more comprehensive guidelines regarding use of face coverings.  OSHA concludes its discussion of the guiding principles by stating:  “Regardless of the types of infection prevention and control measures employers incorporate into their reopening plans, they should consider ways to communicate about those measures to workers, including through training … and providing a point of contact for any worker questions or concerns.”  

In the Reopening Guidance, OSHA reiterates what it states on its COVID‑19 webpage, that during the pandemic, employers continue to be responsible for complying with OSHA regulations. In the Reopening Guidance, OSHA provides an Appendix A organizing those regulatory requirements in table format. In addition, OSHA states that “[w]here there is no OSHA standard specific to SARS-CoV‑2, employers have the responsibility to provide a safe and healthful workplace that is free from serious recognized hazards” under the OSH Act’s General Duty Clause. 29 CFR 654(a)(1). (Reopening Guidance, p. 11.)

The Reopening Guidance (pp. 11-16) concludes with a series of Employer FAQs, addressing the following topics:

  1. OSH Act does not prohibit worksite COVID‑19 testing, but OSHA cautions that a negative result may not indicate no hazard;
  2. OSH Act does not prohibit worksite temperature checks or health screenings;
  3. OSHA requirements when performing tests and screening, including to protect employees who are performing screenings and to maintain records generating employee medical information;
  4. Referencing the sources of other equal employment laws, other than the OSH Act, pertaining to health and medical issues;
  5. Referencing the CDC as the source of guidelines for a sick employee’s safe return to work; and
  6. Advising, in general, how employers can determine whether OSHA-required PPE is needed.

As with all its published guidance, OSHA states that it is “not a standard or regulation, and it creates no new legal obligations.”

Please feel free to contact the authors 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. Court of Appeals Denies AFL-CIO’s Petition for OSHA COVID-19 Emergency Temporary Standard

SongSigel

 

By Leah M. Song and Gabrielle Sigel 

Covid-19

 

On June 11, 2020, the U.S. Court of Appeals for the D.C. Circuit denied the American Federation of Labor and Congress of Industrial Organizations’ (“AFL-CIO”) petition for a writ of mandamus to compel OSHA to issue an Emergency Temporary Standard for Infectious Diseases (“ETS”), providing regulations to protect workers against coronavirus exposure in the workplace.

The three-judge panel, consisting of Judges Henderson, Wilkins, and Rao, found that “OSHA reasonably determined that an ETS is not necessary at this time” given the “unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, see 29 U.S.C. § 654(a).” The statutory section referenced by the court, includes the General Duty Clause of the Occupational Safety and Health Act (“the OSH Act”), which states that each 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(a)(1). The statute also requires that each employer shall “comply with occupational safety and health standards promulgated under this Act.” 29 U.S.C. § 654(a)(2). The panel held that “OSHA’s decision not to issue an ETS is entitled to considerable deference.”

Following the Court’s ruling, Solicitor of Labor Kate O’Scannlain and OSHA Principal Deputy Assistant Secretary Loren Sweatt stated in a news release: “We are pleased with the decision from the D.C. Circuit, which agreed that OSHA reasonably determined that its existing statutory and regulatory tools are protecting America’s workers and that an emergency temporary standard is not necessary at this time. OSHA will continue to enforce the law and offer guidance to employers and employees to keep America’s workplaces safe.” The ALF-CIO has the right to ask for a rehearing, including en banc, i.e., by all the judges appointed to the D.C. Circuit Court of Appeals.

The lawsuit grew out of written requests that the AFL-CIO and more than 20 unions, including unions for healthcare workers, sent to OSHA in early March.  They asked OSHA to issue an ETS, rather than have employers rely solely on existing OSHA regulations and new COVID-19 guidance.  They requested an ETS that would include a requirement that all employers devise and implement an infection control plan and implement the necessary controls. After the AFL-CIO sent a letter on April 28, 2020, to the Secretary of Labor calling on the agency “to take immediate action to protect the safety and health of workers from exposure to COVID-19 on the job,” the Secretary responded two days later and stated that an ETS was not necessary.

On May 18, 2020, the AFL-CIO filed its petition for a writ of mandamus in the U.S. Court of Appeals to compel OSHA to issue an ETS within 30 days. The petition was based on Section 6(c) of the OSH Act, which states that OSHA “shall provide…for an emergency temporary standard to take immediate effect upon publication in the Federal Register if [it] determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29 U.S.C. § 655(c)(1). The AFL-CIO argued in its court petition that the COVID-19 pandemic is “exactly the type of workplace catastrophe that Congress intended an emergency temporary standard to address.” Given the risks facing essential workers and those returning to work, the AFL-CIO requested an expedited briefing and disposition of the petition and for OSHA to be given 10 days to respond.

On May 29, 2020, OSHA filed its response to the AFL-CIO’s petition, describing its efforts to protect workers during the pandemic through enforcing “existing rules and statutory requirements” and providing “rapid, flexible guidance.” OSHA emphasized the extreme nature of an ETS and how an ETS is rarely used as it “imposes a mandatory standard immediately without public input” and “stays in place…until a permanent rule informed by comment is put in place just six months later.” OSHA argued that 1) the AFL-CIO failed to demonstrate legal standing to bring the petition for a writ of mandamus; 2) an ETS is not “necessary” given OSHA’s existing specific rules, the general duty clause and would otherwise be counterproductive to OSHA’s COVID-19 efforts; and 3) “an ETS would foreclose ongoing policy assessments by the executive branch, Congress, and the states.” The National Association of Home Builders of the United States and other business associations filed amicus curiae briefs in support of OSHA’s position.

On June 2, 2020, the AFL-CIO filed its reply brief  defending its legal standing to bring the case based on its representation of workers in highly impacted industries and that at least 660 of its members have died as a result of COVID-19. The AFL-CIO continued to stress that an ETS is necessary given the “urgent situation” and “grave danger” that COVID-19 presents. Additionally, the AFL-CIO stated that “Congress required OSHA to issue standards despite inevitable scientific uncertainty,” and an ETS does provide flexibility navigating new scientific information since “an ETS can be issued and modified without notice and comment.” The AFL-CIO clarified that the OSH Act requires the agency to issue an ETS, “not that it requires a static, uniform, or all-encompassing ETS.”

In denying AFL-CIO’s petition, the court did not address OSHA’s standing argument, ruling solely on the substance of AFL-CIO’s petition.

Of note, OSHA regulations do not have direct application to the 22 states who have their own state occupational safety and health agencies and regulations governing private employers. One of those “state plan states” is California.  On May 20, 2020, the Labor & Employment Committee of the National Lawyers Guild and Worksafe, a California nonprofit “dedicated to ensuring occupational safety and health rights of vulnerable workers,” filed a petition for a temporary emergency standard before the California Occupational Safety & Health Standards Board (“the Board”). The petitioners requested that the Board create two new California safety regulations. First, the petitioners requested “a temporary emergency standard that would provide specific protections to California employees who may have exposure to COVID-19, but are not protected by the Aerosol Transmissible Diseases standards (Sections 5199 and 5199.1).” The petitioners recommended that the Board consider their draft emergency temporary standard for the Board’s consideration of language for an emergency standard. The petitioners’ draft parallels the framework of the Injury and Illness Prevention Program, but adding COVID-19 related provisions, such as identifying an employee representative, establishing various procedures, and analyzing job hazards and implementing preventative measures. Second, the petitioners requested that the Board enter into “a permanent rulemaking effort to protect workers from infectious diseases including novel pathogens,” such as COVID-19. As of June 11, 2020, the Board has not yet issued its decision on the petition.

Please feel free to contact the authors 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.

OSHA Faces FAQs on Face Coverings

Sigel

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

Covid-19

On June 10, 2020, in a series of six “frequently asked questions and answers” (Face Coverings FAQs), OSHA provided its first general guidance on the use of cloth face coverings in the workplace.  In announcing the FAQs, OSHA’s Principal Deputy Assistant Secretary, Loren Swett, stated that it was issuing the guidance because “millions of Americans will be wearing masks in their workplace for the first time” and “OSHA is ready to help workers and employers understand how to properly use masks so they can stay safe and healthy in the workplace.”

The Face Coverings FAQs document is the first COVID-19 guidance that OSHA has provided in a Q&A format.  In this format, OSHA’s guidance may not provide straightforward answers to many employers’ questions.  For most employers, the most important takeaway from the Face Coverings FAQs is: Cloth face coverings are not OSHA-required personal protective equipment (“PPE”), which must be provided and paid for by an employer; however, an employer may recommend or require cloth face coverings as a method of non-PPE virus “source control” and as part of a COVID-19 infection response plan.  OSHA does not address whether employer-required cloth face coverings, when required as non-PPE “source control,” must be paid for by the employer.

Here are some key points from the Face Coverings FAQs:

  • Cloth face coverings are used to “contain the wearer’s potentially infectious respiratory droplets produced when an infected person coughs, sneezes, or talks and to limit the spread of … the virus that causes … COVID-19, to others.” By “containing” droplets, rather than protecting the wearer against “droplets,” cloth face coverings are solely used for “source control”, not wearer protection.
  • “Source control” is to prevent people who are asymptomatic or pre-symptomatic “from spreading potentially infectious respiratory droplets to others.”
  • Cloth face coverings, whether homemade or commercially produced, “are not considered personal protective equipment (PPE)” under OSHA’s PPE regulations, 29 CFR 1910.132.
  • Cloth face coverings are different from PPE, such as medical face masks (surgical masks) or respirators, because the sole purpose of cloth face coverings is as source control.
  • Because face coverings are not PPE, “OSHA’s PPE standards do not require employers to provide them.” However, “OSHA generally recommends that employers encourage workers to wear face coverings at work,” as a method of source control.
  • Because cloth face coverings are not necessary PPE, an employer cannot be required under OSHA’s PPE standards to provide them at no cost to workers.
  • Employers can require cloth face coverings. Specifically, employers “may choose to ensure that cloth face coverings are worn as a feasible means of abatement in a control plan designed to address hazards from …the virus that causes COVID-19.” (emphasis added)  In those circumstances, employers are “choos[ing] to use cloth face coverings as a means of source control,” in combination with engineering and administrative controls, such as social distancing. 
  • Cloth face coverings cannot be a substitute for social distancing measures.
  • Cloth face coverings cannot be used by “those who have trouble breathing or are otherwise unable to put on or remove a mask without assistance.”
  • Employers “have discretion” as to “whether to allow employees to wear cloth face coverings…based on the specific circumstances present at the work site.” For example, an employer can determine that cloth face coverings cannot be used if they “present[] or exacerbate[] a hazard” or are incompatible with otherwise required PPE. 
  • If the employer determines that cloth face coverings are inappropriate, “employers can provide PPE, such as face shields and/or surgical masks,” instead of encouraging face masks. In a footnote, OSHA explains that when surgical masks are used solely for “source control,” they are not considered “PPE,” which would be required to be provided and paid for by the employer under the PPE regulations.
  • Neither cloth face coverings nor surgical masks can be used as a substitute for respirators, when respirators are required. Respirators prevent the wearer from inhaling small particles, and must be provided and used according to OSHA’s Respiratory Protection standard, 29 CFR 1910.134.
  • Per existing regulation, filtering facepiece respirators (FFRs), such as N95s, can be used by employees “voluntarily,” if they first receive certain required information regarding their use and hazards.
  • Even though cloth face coverings are not required pursuant to PPE regulations, OSHA twice refers to an employer’s statutory obligations under the OSH Act’s General Duty Clause to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In those references, OSHA refers to using cloth face coverings as source covering one “feasible method” to address hazards from the virus in the workplace.

OSHA makes important distinctions between a cloth face coverings and “medical face masks”, of which surgical masks are an example. A surgical mask is not necessarily approved by the FDA as a medical device.  Both medical face masks and cloth face coverings fail to protect the wearer against airborne transmissible agents because of their loose fit, and both can be used to “contain the wearer’s respiratory droplets”, i.e., “source control”. However, in contrast with cloth face coverings, surgical masks can be PPE if they are used to “protect workers against splashes and sprays (i.e., droplets) containing potentially infectious materials.”  However, a surgical mask also may not be considered PPE, when it is used solely as “source control.” Thus, with respect to surgical masks, OSHA is making the distinction between PPE and non-PPE based on the purpose for which the employer uses it—if the mask is used solely for purposes of “source control,” it is not PPE; if the mask is used for wearer protection against others’ droplets, it is PPE.  However, because “cloth face coverings” are defined to exclude protecting the worker from others’ infection, if an employer is stating that it is using a piece of equipment as a method of wearer protection, the employer will be required to show that, in fact, the device can provide that protection and treat it as PPE.

OSHA’s references to the General Duty Clause are worth repeating and analyzing.  In the Face Covering FAQs, OSHA makes a distinction between what is required by existing regulations, such as the PPE or Respiratory Protection standards, and what may be required under the General Duty Clause.  In other guidance, OSHA has stated that the General Duty Clause is one of the "OSHA requirements" that “apply to preventing occupational exposure to SARS-CoV-2.” In the first comprehensive guidance OSHA issued regarding COVID-19, at page 7, OSHA stated that developing an infectious disease response plan is a step that all employers can take to guard against the workplace risks of exposure to the virus.

In the context of the General Duty Clause, OSHA’s Face Covering FAQs guidance states that an employer’s “control plan designed to address hazards” from the virus and COVID-19 can include “control measures,” including engineering controls, administrative controls (such as social distancing), PPE, and different methods of virus “source control,” all as “feasible methods” to address the hazards. OSHA also describes non-PPE as a “means of abatement” under the General Duty Clause.  Thus, especially because of the potentially broad scope of the General Duty Clause, an employer would be well-advised to have a COVID-19 response plan, which should include an identification of the risk of workplace exposure (it may be low) and descriptions of engineering and administrative controls, PPE, and other controls for the risk of exposure to the virus in the workplace.  Consistent with the Face Coverings FAQs guidance, the response plan should carefully distinguish between equipment to be used as required PPE and equipment required or allowed to be used as “source control.”

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 Limits States’ Veto Rights on Infrastructure Projects

Linkedin_Steven_Siros_3130By Steven M. Siros

 

Under Section 401 of the Clean Water Act (“CWA”), projects requiring federal permits or licenses that have the potential to result in point source discharge into waters of the United States must obtain a Section 401 water quality certification evidencing compliance with applicable state water quality standards.  Until this state certification is received, a project can’t obtain its federal permit or license. 

 

In response to claims that the states are unreasonably delaying Section 401 certifications and/or imposing requirements that go beyond the mandates of the CWA, U.S. EPA has issued a final rule clarifying the time period for states these certification reviews and limiting the conditions that can be imposed on a project as part of this certification process.  In a press release accompanying the final rule, U.S. EPA Administrator Andrew Wheeler stated that “EPA is returning the Clean Water Act certification process under Section 401 from its original purpose, which is to review potential impacts from discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure.” 

 

Section 401 of the CWA requires certifying authorities to act on Section 401 certification requests within a “reasonable period of time” that shall not exceed one  year.  33 U.S.C. 1341(a)(1).  Federal licensing and permitting agencies are tasked in the final rule with establishing what constitutes a “reasonable period of time either categorically or on a case-by-case basis” but in no circumstances can the period exceed one year.  40 CFR § 121.6.    The final rule provides that the “reasonable period of time” starts to run once the certifying agency receives a “certification request” as opposed to running once the certifying authority deems the application or request “complete” as had been the historical practice.  

 

The final rule also clarifies that the state review is limited to ensuring compliance with water quality standards as opposed to addressing non-water quality related considerations  For example, U.S. EPA noted that certifying authorities have “on occasion required in a certification condition the construction of biking and hiking trails … and the creation of public access for fishing along waters of the United States.”  Certifying authorities have also attempted to address air emission and transportation effects as part of the certification process.  U.S. EPA's final rule specifically states that the Section 401 certification “is limited to assuring that a discharge from a Federally licensed or permitted activity will comply with water quality requirements.”  40 CFR  § 121.3.

 

Within this “reasonable time period” set by the permitting agency, certifying authorities can grant, grant with conditions or deny certification requests.  40 CFR § 121.7.  Certifying authorities may also waive the certification requirement, either expressly or by failing to act.  40 CFR § 121.9.  Section 401 certifications must include supporting information for each condition, including a statement explaining why the condition is necessary to assure that the discharge will comply with state water quality requirements.  Denials must state the reasons for denial, including the specific water quality requirements with which the discharge will not comply, and if the denial is for insufficient information, the denial must describe the specific information that would be required.  In the event that a certifying authority fails to comply with the procedural requirements governing the certification process, the final rule allows the permitting agency to deem that the certifying agency has waived its certification rights.  40 CFR § 121.9(a)(2). 

 

U.S. EPA's final rule has been praised by industry groups with the American Petroleum Institute issuing a statement that " the addition of a well-defined timeline and review process will provide certainty to operators as they develop infrastructure projects that meet state water quality standards."  The Natural Resources Defense Council, on the other hand, issued a statement claiming that the new rule "makes a mockery of this EPA's claimed respect for cooperative federalism." 

 

Please feel to contact the author with questions or for further information. For regular updates on breaking environmental, health and safety issues, please visit Jenner & Block’s Corporate Environmental Lawyer Blog.


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

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 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

Webres_Steven_Siros_3130

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

 

Webres_Steven_Siros_3130

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.