By Leah M. Song
As 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.
On 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.
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
- Social distancing
- Identification and Isolation of Sick Employees
- Return to Work After Illness or Exposure
- Workplace Flexibilities
(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:
- OSH Act does not prohibit worksite COVID‑19 testing, but OSHA cautions that a negative result may not indicate no hazard;
- OSH Act does not prohibit worksite temperature checks or health screenings;
- OSHA requirements when performing tests and screening, including to protect employees who are performing screenings and to maintain records generating employee medical information;
- Referencing the sources of other equal employment laws, other than the OSH Act, pertaining to health and medical issues;
- Referencing the CDC as the source of guidelines for a sick employee’s safe return to work; and
- 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.
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.
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
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.
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.