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February 2021

Biden Administration Takes New Action to Ensure Increased Consideration of Climate Change Impacts by the Federal Government

HeadshotBy Matthew G. Lawson CEQ


On Friday, February 19, 2021, the Council on Environmental Quality (“CEQ”) rescinded prior draft guidance issued under the Trump Administration in 2019 (the “2019 Draft CEQ Guidance”), which had limited the degree to which federal agencies needed to consider and quantify climate change impacts under the National Environmental Policy Act (NEPA).  The rescission of the 2019 Draft CEQ Guidance is the latest step by the federal government to implement President Biden’s Executive Order 13990, which was signed on President Biden’s first day in office (the “Day 1 EO”).  In addition to directing CEQ to rescind its prior guidance, President Biden’s Day 1 EO set forth numerous directives implementing the administration’s new climate change policy, including an order reinstating the Interagency Working Group (IWG) and directing the IWG to develop an updated “Social Cost of Carbon” (“SCC”) valuation to  better quantify the economic harms associated with the emission of carbon dioxide and other greenhouse gasses (“GHGs”).  Under the Day 1 EO, the IWG was directed to publish its new interim SCC value within 30 days of the Order and publish a final SCC value by January 2022.  Together, the Day 1 EO’s rescission of the 2019 Draft CEQ Guidance and reinstatement of the IWG signal a clear intent from the Biden Administration to significantly increase the degree to which federal agencies must consider and account for climate change impacts when enacting future regulation or taking other agency actions.

Background

The origins of the SCC metric can be traced back to President Clinton’s 1993 Executive Order 12866, which required that federal agencies, to the extent permitted by law, “assess both the costs and the benefits of [their] intended regulation and…propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.”  Compliance with Executive Order 12866 poses a unique challenge for federal agencies where a proposed regulation is expected to cause a significant increase or decrease of carbon dioxide or other GHG emissions, as the benefits or costs associated with these emissions cannot easily be quantified or compared to other metrics used in the agency’s cost-benefit analysis.

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U.S. EPA Embraces Prior Administration’s PFAS Drinking Water Proposals

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BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

EpaOn February 22, 2021, U.S. EPA announced that it was moving forward with implementation of several regulatory proposals issued in the waning days of the Trump Administration.  First, U.S. EPA announced that it was finalizing its regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA).  A regulatory determination is the first regulatory step in setting a maximum contaminant level (MCL) for these contaminants.  The final regulatory determination, signed by Acting EPA Administrator Jane Nishida, reached the same conclusions as had been reached by former EPA Administrator Andrew Wheeler—(1) that these contaminants may have an adverse effect on the human health; (2) that the contaminants are known to be present in public water systems at a sufficient frequency and at levels that pose public health concerns; and (3) that regulation of these contaminants presents a meaningful opportunity to reduce health risks.  Interestingly, U.S. EPA’s regulatory determination specifically acknowledges that its 2016 Lifetime Health Advisory Levels of 70 parts per trillion for both PFOA and PFOS continue to represent the best available peer reviewed scientific assessment for these chemicals, notwithstanding that many comments were submitted encouraging U.S. EPA to update and revise its 2016 Lifetime Health Advisory Levels.  It is likely to take about four years to promulgate a final MCL for PFOS and PFOA.    

U.S. EPA also reissued its proposed Fifth Unregulated Contaminant Monitoring Rule (UCMR5). The reissued USMR5 is identical to the draft that was issued on January 14, 2021 at the tail end of the Trump Administration but was temporarily put on hold when the Biden Administration took office.  The proposed UCMR5 would require community water systems serving 3,300 people or more to monitor for a group of 30 chemicals (29 of which are PFAS substances) between 2023 and 2025.  The monitoring is intended to provide U.S. EPA with data on the national occurrence of these chemicals in drinking water that at least in part will guide U.S. EPA in promulgating regulatory determinations for other PFAS substances.  U. S. EPA will accept public comment on the draft UCMR5 for a period of 60 days following publication in the Federal Register. 

We will continue to provide updates on U.S. EPA’s efforts to regulate PFAS substances in the Corporate Environmental Lawyer

Virginia’s COVID-19 Workplace Safety Regulation Is Permanent: A National Model

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

Covid-19

In July 2020, we reported that Virginia, an OSHA State-plan State, was the first in the country to issue a workplace safety regulation specifically addressing COVID‑19. At that time, the Virginia standard was issued as a temporary emergency rule, which would expire by January 27, 2021, unless made permanent. On the expiration date, Governor Northam formally approved a revised version of the temporary emergency rule, 16VAC25-220, “Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID‑19, applicable to all regulated workplaces in the Commonwealth (the “Permanent Standard”). Although described as permanent, by its own terms, within 14 days of the expiration of the Governor’s temporary declaration for the COVID‑19 pandemic, the Virginia Department of Labor and Industry’s Safety and Health Codes Board must meet to determine whether there remains an ongoing need for the COVID-19 workplace safety regulation. § 20B.[1] The Permanent Standard is immediately effective, except that the program documentation and training requirements go into effect on March 26, 2021.  The Permanent Standard will be enforced by the Department of Labor and Industry, which operates the Virginia State Plan for Occupational Safety and Health (“VOSH”).

Like the temporary standard, the Permanent Standard requires all employers to implement certain basic protections and procedures and then increases the protective measures based on whether the “exposure risk level” for the workplace or specific job tasks should be classified as very high, high, medium, or lower. Outside the healthcare industry, first responders, mortuary services, and correctional and detention facilities, Virginia places of employment and job tasks are categorized as “medium” or “lower” exposure risk levels. The difference between “medium” and “lower” exposure risk levels is whether the work requires “more than minimal occupational contact within six feet with other employees, other persons, or the general public …”. § 30.

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Biden Administration Confirms COVID-19 Liability Protections for Federal Contractors, Employees and Volunteers

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

Covid-19

On February 16, 2021, Acting Secretary of the U.S. Department of Health & Human Services (“HHS”) Norris Cochran, published in the Federal Register the Sixth Amendment to the Declaration Under the Public Readiness and Emergency Act [“PREP Act”].  86 Fed. Reg. 9516-9520 (Feb. 16, 2021).  This is the second amendment to the Declaration issued since President Biden took office and continues the Trump Administration’s practice of providing broad liability protection for those responding to COVID‑19.

The Declaration originally was issued on January 31, 2020, by former HHS Secretary Azar.  Pursuant to the PREP Act, the Declaration allows the Secretary to extend liability immunity to “covered persons” for taking allowed actions with respect to “covered countermeasures,” in prescribed circumstances, all as declared by the Secretary.  A “covered person” is “immune from suit and liability under Federal and State law for all claims of loss caused by, arising out of, relating to, or resulting from the administration or use of a covered countermeasure,” which includes FDA-authorized COVID‑19 vaccines and tests.  See 42 U.S.C. § 247d‑6d(a)(1).  Under the PREP Act, “covered persons” include “manufacturers,” distributors,” “program planners,” “qualified persons,” and their “officials, agents and employees.”  42 U.S.C. § 247d-6d(i)(2). 

In the Sixth Amendment to the Declaration, the Acting Secretary augmented the “covered persons” protected from liability with an additional category of “qualified persons.”  Although the Unites States is, by statute, a “covered person,” the structure of the statutory provision defining “covered person” does not make clear that direct contractors and employees of the United States are similarly covered.  See 42 U.S.C. § 247d-6d(i)(2).  To clear up that ambiguity, the Sixth Amendment provides that a “qualified person” includes “any Federal government employee, contractor or volunteer who prescribes, administers, delivers, distributes or dispenses a Covered Countermeasure,” if the federal department or agency “has authorized or could authorize” that person “even if those authorized duties or responsibilities ordinarily would not extend to members of the public or otherwise would be more limited in scope than the activities such employees, contractors or volunteers are authorized to carry out under this declaration.”  86 Fed. Reg. at 9519 (Feb. 16, 2021).

This expanded liability protection is fully consistent with and will support President Biden’s National Strategy for the COVID‑19 Response and Pandemic Preparedness, which envisions federal vaccination sites and “deploy[ing] thousands of federal staff, contractors and volunteers to support state and local vaccination efforts.”  See National Strategy, pp. 9, 52.


EPA Approves Additional Pesticide Products to Use as COVID-19 Disinfectants

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

Covid-19

U.S. EPA recently has approved two new products for use on surfaces in the battle to kill SARS-CoV-2, the virus that causes COVID‑19.

On February 10, 2021, EPA announced that it had approved a copper alloy product, made of at least 95.6 % copper, as a product that kills the virus upon contact.  Thus, all products containing the copper alloy product can be sold as providing long-term disinfection against the virus.  Specifically, EPA’s approved use on surfaces of the copper alloy product registered to the Copper Development Association (“CDA”) [EPA Reg. No. 82012‑1].  CDA’s registration had previously been approved under the Federal Insecticide, Fungicide & Rodenticide Act (“FIFRA”), for more than a decade, albeit for other purposes.  Products using the approved antimicrobial copper alloys will be added to EPA’s List N appendix of supplemental antimicrobial products that can be used to kill SARS‑CoV‑2 virus particles that contact surfaces treated with the copper alloys.     

Perhaps anticipating EPA’s action, on February 1, 2021, New York State Senator Timothy Kennedy sponsored a bill, S3905, in the New York State Senate to require the use of EPA’s approved copper alloy product in all touch surfaces in new, publicly funded construction projects.  As of this writing, the bill is in committee for consideration.  On January 7, 2021, Assembly Member Marianne Buttenschon had introduced the same language in a bill, A998, in the New York Assembly, where it also is being considered in committee.

In addition to the copper alloy surface approval, on January 15, 2021, EPA issued a FIFRA Section 18 emergency exemption for an antiviral treatment of the air, Grignard Pure, which can be used in indoor spaces to kill SARS-CoV-2.  Section 18 of FIFRA allows EPA to approve, on an emergency basis, federal agencies’ and states’ petitions to allow the use of pesticides for previously unregistered uses.  The emergency exemption for public health reasons lasts only for a year.  To date, EPA has issued only two emergency exemptions to address SARS-CoV-2.

Most recently, on January 15, 2021, EPA granted emergency exemptions to Georgia and Tennessee for the use of Grignard Pure, which forms a mist that contains triethylene glycol (“TEG”) as the active ingredient that kills the virus upon contact in the air.  TEG is an ingredient commonly used in fog machines, but only for its theatrical effects, not as a pesticide.  EPA stated that, the product can be applied only by a “trained professional in certain indoor spaces in Georgia and Tennessee where high occupancy, prior ventilation or other factors make it challenging to follow public health guidance and maintain appropriate social distancing.”  Based on laboratory testing, Grignard Pure, when activated, “will continuously inactivate 98% of airborne SARS‑CoV‑2 particles,” EPA explained.  Using Grignard Pure does not eliminate the need for mask wearing and social distancing, EPA warned.

Prior to the Grignard Pure emergency exemption, the only other FIFRA Section 18 emergency exemption that EPA had granted in the fight against SAR-CoV‑2 was a product called SurfaceWise2, which was approved for the use in American Airlines airport facilities and airplanes in Texas, Oklahoma, and Arkansas, and in limited health facilities in Texas.  SurfaceWise2, manufactured by Allied BioScience, is a surface coating that can be used with electrostatic sprayers, that inactivates the virus within two hours of its application.  That one-year exemption currently expires in August 2021.


OSHA Issues Proposed Update to Hazard Communication Standard

HeadshotBy Matthew G. Lawson Osha

On February 5, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a proposed rule updating its Hazard Communication (“Haz Com”) Standard to align its rules with those in the seventh version of the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals (GHS), published in 2017.  OSHA’s proposed regulatory update is being issued as the United States’ major international trading partners, including Canada, Australia, New Zealand, and those in Europe, similarly prepare to align their own hazard communications rules with the seventh version of the GHS.

Originally established in 1983, OSHA’s Haz Com Standard provides a systematized approach to communicating workplace hazards associated with exposure to hazardous chemicals.  Under the Haz Com Standard, chemical manufacturers and/or importers are required to classify the hazards of chemicals which they produce or import into the United States, and all employers are required to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, safety data sheets, and information and training.  At an international level, the GHS provides a universally harmonized approach to classifying chemicals and communicating hazard information.  Core tenants of the GHS include universal standards for hazard testing criteria, warning pictograms, and safety data sheets for hazardous chemicals.

In a pre-published version of the proposed rule, OSHA’s proposed modifications to the Haz Com Standard include codifying enforcement policies currently in OSHA’s compliance directive, clarifying requirements related to the transport of hazardous chemicals, adding alternative labeling provisions for small containers and adopting new requirements related to preparation of Safety Data Sheets.  Key modifications included in the proposed rule, include:

  • New flexibility for labeling bulk shipments of hazardous chemicals, including allowing labels to be placed on the immediate container or transmitted with shipping papers, bills of lading, or by other technological or electronic means that are immediately available to workers in printed form on the receiving end of the shipment;
  • New alternative labeling options where a manufacturer or importer can demonstrate that it is not feasible to use traditional pull-out labels, fold-back labels, or tags containing the full label information normally required under the Haz Com Standard, including specific alternative requirements for containers less than or equal to 100ml capacity and for containers less than or equal to 3ml capacity; and
  • New requirements to update the labels on individual containers that have been released for shipment but are awaiting future distribution where the manufacturer, importer or distributer becomes aware of new significant information regarding the hazards of the chemical.  

OSHA last updated its Haz Com Standard in 2012, to align the standard with the then recently published third version of GHS.  In its newly proposed rule, OSHA clarifies that it is “not proposing to change the fundamental structure” of its Haz Com Standard, but instead seeking to “address specific issues that have arisen since the 2012 rulemaking” and to provide better alignment with international trading partners.  According to OSHA, its proposed modifications to the Haz Com Standard “will increase worker protections, and reduce the incidence of chemical-related occupational illnesses and injuries by further improving the information on the labels and Safety Data Sheets for hazardous chemicals.” 

OSHA is currently accepting comments on its proposed rule until April 19, 2021.  Comments may be submitted electronically to Docket No. OSHA-2019-0001at http://www.regulations.gov, which is the Federal e-Rulemaking Portal.

DOJ Rescinds Nine Trump Environmental Policies

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US Department of Justice

 

BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice

On February 4, 2021, in accordance with President Biden’s Executive Order 13,990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis), DOJ directed its ENRD Section and Deputy Section Chiefs to withdraw nine environmental policies that were put in place by the Trump Administration.  The February 4th memorandum identifies the following nine withdrawn policies:

  1. “Enforcement Principles and Priorities,” January 14, 2021;
  2. “Additional Recommendations on Enforcement Discretion,” January 14, 2021;
  3. “Guidance Regarding Newly Promulgated Rule Restricting Third-Party Payments, 28 C.F.R. § 50.28,” January 13, 2021;
  4. “Equitable Mitigation in Civil Environmental Enforcement Cases,” January 12, 2021;
  5. “Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings,” July 27, 2020;
  6. “Supplemental Environmental Projects (“SEPs”) in Civil Settlements with Private Defendants,” March 12, 2020;
  7. “Using Supplemental Environmental Projects (“SEPs”) in Settlements with State and Local Governments,” August 21, 2019;
  8. “Enforcement Principles and Priorities,” March 12, 2018; and
  9. “Settlement Payments to Third Parties in ENRD Cases,” January 9, 2018.

In support of rescission of these policies, DOJ’s Deputy Assistant Attorney General noted that these policies were inconsistent with longstanding DOJ policy and practice and inappropriately impeded DOJ’s exercise of its enforcement discretion.  Two of the more controversial policies rescinded by DOJ’s February 4th memorandum related to the prohibition on the use of supplemental environmental projects (SEPs) in settlement agreements.  Under the Trump Administration, DOJ had argued that the use of SEPS violated the Miscellaneous Receipts Act which requires that monies paid to the Government be deposited into the Treasury so that Congress could decide how the monies would be appropriated.  

DOJ noted that it would continue to assess the matters addressed by the withdrawn policies and might elect to issue new guidance on these matters in the future.  We will continue to track efforts by the Biden Administration the environmental policies of the Trump Administration at the Corporate Environmental Lawyer