By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice
The Trump administration continues its efforts to issue new regulations in advance of January 20, 2021, with the Department of Energy (DOE) issuing a final rule that will exempt certain liquefied natural gas (LNG) projects from National Environmental Protection Act (NEPA) review. The final rule, published in the Federal Register on December 4, updates DOE’s NEPA implementing procedures with respect to authorizations issued under the Natural Gas Act in accordance with the recent revisions to the NEPA regulations as further described below.
According to DOE, the focus of the new rule is to clarify the scope of DOE’s NEPA obligations with respect to LNG projects and more specifically, to eliminate from the scope of DOE’s NEPA review potential environmental effects that the agency has no authority to prevent. Because DOE’s discretionary authority under Section 3 of the Natural Gas Act is limited to the authorization of exports of natural gas to non-free trade agreement countries, the rule limits the scope of environmental impacts that DOE must consider to the impacts associated with the marine transport of the LNG commencing at the point of export.
To that end, the final rule revises DOE’s existing Categorical Exclusions (CATEX) to reflect that the only elements of LNG projects subject to NEPA review is the following:
B5.7 Export of natural gas and associated transportation by marine vessel.
Approvals or disapprovals of new authorizations or amendments of existing authorizations to export natural gas under section 3 of the Natural Gas Act and any associated transportation of natural gas by marine vessel.
Based on prior NEPA reviews and technical reports, DOE has determined that the transport of natural gas by marine vessel normally does not pose the potential for significant environmental impacts and therefore qualifies for a CATEX. As such, the only reason that DOE would be obligated to engage in a NEPA review of a LNG project would be if “extraordinary circumstances” were deemed to be present that could not be mitigated and therefore would preclude DOE's reliance on this CATEX.
The revised CATEX also removes the reference to import authorizations from CATEX B5.7 because DOE has no discretion with respect to such approvals. Finally, the final rule also removes and reserves CATEX B5.8 and classes of actions C13, D8, D9 because these actions are outside of the scope of DOE’s authority or are covered by the revised CATEX B5.7.
Interestingly, although the Federal Energy Regulatory Commission (FERC) has responsibility for approving the construction of LNG export terminals, it has previously declined to analyze the greenhouse emissions associated with such projects, noting that DOE is the appropriate agency to consider such impacts. However, with DOE now concluding that these projects are categorically excluded from such reviews, it remains to be seen if FERC will reconsider its approach to these operations.
The final rule is scheduled to take effect on January 4, 2021 and it remains to be seen what if any action a new Biden administration might take in response to this rule. Assuming that the Republicans retain control of the Congress, DOE would be required to go through the formal withdrawal process. Alternatively, if the Democrats take control of the Senate, the regulation could be repealed pursuant to the Congressional Review Act.
We will continue to track the Trump administration’s ongoing effort to finalize regulations in advance of January 20th as well as efforts by any new administration to rollback these regulations on the Corporate Environmental Lawyer.
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.
CDC Changes Definition of “Close Contacts” for Contact Tracing Purposes: What Does This Mean for Employers?
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
I. The New CDC Definition of Close Contacts
On October 21, 2020, the CDC published a new definition of “Close Contact” for contact tracing purposes. This new definition will affect how employers determine Close Contacts for purposes of internal contract tracing to limit and prevent exposures and spread of the coronavirus within the workplace. The new CDC definition can be found here: https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appendix.html#contact Quoting from the CDC link:
“Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.
* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE. At this time, differential determination of close contact for those using fabric face coverings is not recommended.”
Previously, CDC had defined “Close Contact” to mean someone who spent at least 15 consecutive minutes within six feet of a person confirmed to be have COVID-19, the disease caused by SARS-CoV-2.
II. What Does the New Definition Mean for Employers (Outside the Healthcare Industry)
Under CDC guidance, an employer should quarantine any Close Contact employee, i.e., the Close Contact employee should not be allowed on the worksite and should be told to quarantine per CDC guidance. If the Close Contact develops symptoms or tests positive, in which case the Close Contact becomes an infected person who is in isolation per CDC guidance. Notably, the CDC also states that, at this time, whether an infected person or the exposed person was wearing a mask during the exposure period does not affect the determination of a Close Contact for these purposes. However, the CDC does recognize that the determination of a Close Contact is “difficult to precisely define” and suggests that other factors may be considered, such as whether the infected person had symptoms at the time of exposure, whether the infected person was engaged in activities “likely to generate respiratory aerosols,” and environmental conditions, such as whether the exposure occurred indoors and the adequacy of indoor ventilation.
Per CDC guidance, the quarantine period is for 14 days, which typically means that the employee is not at the worksite, but can work remotely if their circumstances, including any labor agreement, so allows. The CDC recognizes, however, that a mandatory worksite quarantine period for Close Contacts could cause severe consequences for employers of “Critical Infrastructure Workers,” typically as defined by the Cybersecurity & Infrastructure Security Agency (“CISA”). Thus, the CDC provides an exception to the 14-day worksite quarantine for asymptomatic Critical Infrastructure Workers – they may continue to work at the standard workplace(s) if they adhere to protective measures prior to and during their work shift, including: pre-screening and regular monitoring for fever and other symptoms; wearing a face mask “at all times while in the workplace;” maintaining at 6-foot distance and practice social distancing “as work duties permit;” and working in areas that are frequently cleaned, including common areas and commonly shared equipment.
Although the CDC suggests that determinations of close contact can be affected by factors other than proximity and duration of exposure, it provides no guidance on how to account for those other factors in the course of the determination. Most employers are going to need to rely on clearly defined and easily understood rules, so that a workplace contact tracing program can be appropriately administered. Thus, most employers likely will continue to rely only on the more easily determined proximity and duration factors.
As a result of CDC’s change to the definition of Close Contact to include anyone in close proximity within a cumulative 15-minute period, rather than a consecutive 15-minute period, more employees may be designated as Close Contacts and, therefore, more employees may need to be precluded from working on-site, particularly those who cannot be classified as Critical Infrastructure Workers. Although an employer typically cannot prevent an exposure from occurring outside the workplace, an employer’s best “defense” to potential coronavirus exposure in the workplace, and the resulting Close Contact designation, is adherence to and enforcement of 6-foot distancing for all workplace activities, both during more social activities (such as in breakrooms, cafeterias, restrooms) and during job tasks.
Other Related CDC Sites:
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.
On August 30, 2020, the California legislature passed the Toxic Free Cosmetics Act making California the first state to ban certain chemicals from cosmetics. Governor Newson signed the bill into law on October 1, 2020. The new law amends existing regulatory programs in California and provides that cosmetics containing any of a specific list of 24 chemicals will be considered “adulterated” and therefore unable to be sold in California. The specific list of chemicals includes certain phthalates and formaldehyde. However, the chemicals that have received the most attention are various per- and polyfluoroalkyl (PFAS) substances. Although some states have previously implemented legislation banning certain chemicals in cosmetic products (Minnesota banned formaldehyde in certain children’s personal care products; Washington requires that certain chemicals in children’s products be reported), California has become the first state to implement such a broad ban on these listed chemicals in cosmetics generally.
The ban will take effect on January 1, 2025 providing companies with time to take the necessary steps to eliminate any of the 24 listed chemicals from their cosmetic products. Of course, many companies have already taken steps to eliminate these chemicals from their products especially since many of these chemicals are already on California’s Proposition 65 list. However, unlike with Proposition 65 where compliance can be demonstrated by the provision of the requisite warnings, the Toxic Free Cosmetics Act will require elimination of these chemicals (with the exception of unavoidable trace quantities).
We will continue to provide regulatory updates as more states are likely to follow California’s lead in regulating these chemicals in various personal care products.