The chemical industry has received some relief from a November 30th deadline to submit information to U.S. EPA pursuant to the Chemical Data Reporting Rule (“CDR”). Section 8(a) of the Toxic Substances Control Act (“TSCA”) authorizes U.S. EPA to promulgate rules pursuant to which manufacturers and processors of chemical substances must maintain records and submit information to U.S. EPA. To that end, U.S. EPA promulgated the CDR that requires entities that manufacture certain chemicals listed on the TSCA inventory in excess of 25,000 pounds annually (lower thresholds apply for certain listed chemicals) to report basic production information to U.S. EPA every four years. The 2020 reporting deadline had been November 30, 2020.
U.S. EPA recently revised the CDR to comply with the 2016 TSCA amendments. These revisions were intended to improve the reliability and usefulness of the data collected and reduce the overall reporting burden on regulated entities. For example, the revised rule allows for the use of data and processing codes based on those already in use by the Organization for Economic Cooperation and Development. The rule also incorporates exemptions for certain byproducts and amends the requirements to claim that the submitted data constitutes confidential business information (“CBI”) (requiring the upfront substantiation of all CBI claims).
On October 26th, the American Chemical Council requested a 60-day extension from the November 30th deadline, noting significant technical issues with the electronic CDR submission platform. Notwithstanding objections from a variety of environmental groups, U.S. EPA has extended the CDR reporting deadline to January 29, 2021. The extension is good news for the regulated community as it works to compile the substantial information necessary to comply with the CDR requirements.
We will continue to track and provide updates on the CDR and other reporting obligations for chemical manufacturer on Jenner & Block’s Corporate Environmental Lawyer blog.
On November 2, 2020, Judge Cogan of the U.S. District for the Eastern District of New York dismissed the amended complaint of workers at Amazon’s Staten Island JFK8 fulfillment center (“JFK8”) against their employer over its alleged non-compliance with state and federal public health guidance and law during the COVID‑19 pandemic. Palmer. v. Amazon.com Inc., No. 20-cv-02468, U.S. Dist. Ct. E.D.N.Y., Doc. 73, Nov. 2, 2020 (“Op.”).
The workers alleged issues with the company’s productivity requirements preventing basic hygiene, limited air-conditioned break rooms impeding social distancing, inadequate contact tracing, and lack of communication and pay regarding COVID‑19 leave at the JFK8 facility. The amended complaint asserted claims for (i) public nuisance, (ii) breach of the duty to provide a safe workplace under New York Labor Law (“NYLL”) § 200, (iii) failure to timely pay COVID‑19 leave under NYLL § 191, and (iv) an injunction against future failure to timely pay COVID‑19 leave. Plaintiffs sought injunctive relief for their first, second, and fourth causes of action, and damages for their third cause of action.
On August 11, 2020, Amazon moved to dismiss the action based on the theory of primary jurisdiction, workers’ compensation law exclusivity, and other grounds. Judge Cogan granted Amazon’s motion to dismiss the public nuisance and workplace safety duty claims, without prejudice, based on the federal doctrine of primary jurisdiction, which “seeks to maintain a proper balance between the roles of courts and administrative agencies,” allowing a district court to choose not to rule in favor of having a matter addressed by an administrative agency. Op. at 8. Judge Cogan found that the “central issue in this case is whether Amazon’s workplace policies at JFK8 adequately protect the safety of its workers during the COVID‑19 pandemic,” which the court framed as a question of whether that issue is best handled by OSHA or the court. Id. at 10. The court noted that, although OSHA has not issued a regulatory standard specific to COVID‑19, this “does not mean…that OSHA has abdicated its responsibilities during the pandemic. Rather, the agency has exercised its discretion in determining how to proceed in the face of an evolving pandemic fraught with uncertainty.” Id. The court reasoned that it was “not expert in public health or workplace safety matters, and lack[s] the training, expertise, and resources to oversee compliance with evolving industry guidance.” Id. at 11. Furthermore, the court found that “[p]laintiffs’ claims and proposed injunctive relief go to the heart of OSHA’s expertise and discretion.” Id. The court further held that the “risk of inconsistent rulings further weighs in favor of applying the doctrine of primary jurisdiction” as “[c]ourts are particularly ill-suited to address this evolving situation” and OSHA would be able to impose more flexible and uniform policies across the industry. Id. Therefore, the court dismissed plaintiffs’ public nuisance and NYLL § 200 claims, “so that plaintiffs may determine whether to seek relief through the appropriate administrative and regulatory framework.” Id. at 12.
Moreover, the court held that, even if the court did not defer to OSHA’s primary jurisdiction, it would dismiss the public nuisance claim because New York law requires that a private action for public nuisance allege that the plaintiff sustained special injury not common to the public at large. Finding that an increased risk of contracting COVID‑19 is “common to the New York City community at large” and the JFK8 facility is “not the source of COVID‑19,” the court held that plaintiffs could not maintain a public nuisance claim. Id. at 13-14. The court also found that, although the state safe workplace claim under NYLL § 200 is not preempted by the OSH Act, plaintiffs’ claims for past injuries, even for injunctive relief, are precluded by the language of New York’s workers’ compensation law, which makes workers’ compensation the exclusive remedy for workers’ claims against employers “for any liability whatsoever.” Id. at 14-20.
The court also dismissed plaintiffs’ NYLL § 191 claims regarding failure to pay timely COVID‑19 sick leave, finding that the statute addresses claims for prompt payment of “wages,” not sick leave. In reaching that decision, the court rejected the NY State Department of Labor’s recent COVID‑19 guidance in which it stated that prompt payment of COVID‑19 sick leave was subject to NYLL § 191’s requirements. Id. at 21-24.
Another example of a case in which a court relied on the primary jurisdiction clause to dismiss COVID‑19 workplace safety claims against an employer is Rural Community Workers Alliance (“RCWA”) v. Smithfield Foods, Inc., No. 5:20-cv-06063 (N.D. Mo.) from May 5, 2020. In that case, the United States District Court for the Western District of Missouri granted Smithfield Foods’ (“Smithfield”) motion to dismiss pursuant to the primary jurisdiction doctrine. The RCWA plaintiffs alleged two common law claims: (1) Smithfield’s practices at the meat processing plant constituted a public nuisance; and (2) Smithfield had breached its duty to provide a safe workplace. The plaintiffs, an employee and a workers advocacy group, sought only injunctive relief to require Smithfield to comply with OSHA/CDC guidance issued for the entire meat processing industry, and importantly, did not allege that they or any of their members had contracted COVID‑19 at the plant.
The Missouri federal case dismissed the case with prejudice, based on the federal primary jurisdiction doctrine. The court found and deferred to OSHA’s primary jurisdiction to interpret and apply its guidance and to the rights, albeit limited, that plaintiffs can seek through OSHA’s administrative and judicial processes. Id. at 14-17. In addition, the court found that plaintiffs had not met their “extraordinary burden” of proving a right to preliminary injunctive relief. Id. at 17. The court found that, despite the prevalence of COVID‑19 in the community and in the plant, the plaintiffs had not suffered “irreparable harm” because they alleged only the possibility of death or serious illness in the future. Id. at 18-20. The court found that “unfortunately, no one can guarantee health for essential workers – or even the general public – in the middle of this global pandemic.” Id. at 19. Thus, because the employer was taking measures to control the spread and there no confirmed COVID‑19 cases currently, “the court cannot conclude that the spread of COVID‑19 at the Plant is inevitable or that Smithfield will be unable to contain it if it occurs.” Id. at 20. The court also noted, when balancing the harms of granting (or denying) the injunction that “no essential-business employer can completely eliminate the risks that COVID‑19 will spread to its employees through the workplace. Thus, it is important that employers make meaningful, good faith attempts to reduce the risk.” Id.
The court also found that plaintiffs were unlikely to prevail on the merits of their nuisance claim because the employer had taken “significant measures” and there were no occurrences of the disease. Id. at 21-22. Similarly, the court found that plaintiffs would not be able to prove that Smithfield had breached its duty to provide a safe place to work, because the company “has taken substantial steps to reduce the protection for COVID‑19 exposure” and appeared to be complying with the OSHA/CDC guidance. Id. at 22.
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.