By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On April 3, 2020, U.S. OSHA issued two Enforcement Guidance memos which, for the first time, provide guidance to all industries, including healthcare, regarding how to comply with OSHA rules in the face of N95 shortages. The first document is entitled “Enforcement Guidance for Respiratory Protection and the N95 Shortage Due to Coronavirus Disease 2019 (COVID-19) Pandemic” (N95 Shortage Guidance). The N95 Shortage Guidance informs all employers whose employees are required to use, or permitted to voluntarily use, respiratory protection, the limited circumstances in which an OSHA inspector may, on a “case-by-case basis, exercise enforcement discretion” when an employer deviates from OSHA’s current respiratory protection standards, including OSHA’s principal rules at 29 CFR §1910.134 (the Respiratory Standard). While offering some relief from the threat of an OSHA enforcement action, the N95 Shortage Guidance also serves to reemphasize employers’ continuing obligations under the Respiratory Standard despite the short, often non-existent, supply of respiratory protection equipment.
Employers’ continuing obligations in the face of shortages include:
- Manage your respiratory protection program (RPP) in accordance with the Respiratory Standard and “pay close attention to shortages of N95s.”
- Identify and evaluate respiratory hazards.
- Develop, implement, and document worksite-specific procedures to address changes in use of N95s and other respiratory protection.
- Revise your written RPP to reflect changes in workplace conditions caused by the N95 shortage and COVID-19.
For the first step completing these obligations, “all employers should reassess their engineering controls, work practices, and administrative controls” to identify how to decrease the need for N95s. OSHA suggests alternatives to use of N95s, e.g., use of wet methods or portable local exhaust systems and moving the task requiring use of respiratory protection outdoors. More cautiously, OSHA states that “[i]n some instances, an employer may also consider taking steps to temporarily suspend certain non-essential operations.” However, OSHA does not require that employers stop performing tasks with respiratory hazards.
Under the N95 Shortage Guidance, if N95 alternatives are not possible and “respiratory protection must be used” OSHA provides a series of decision-making options:
- Use alternative classes of NIOSH-approved respirators if they “provide equal or greater protection” compared to N95s.
- If NIOSH-approved alternatives are not available, or use of these alternatives create additional hazards, then employers may:
- Implement extended use or reuse of N95s, with extended use preferred over reuse; or
- Use NIOSH-approved N95s past the manufacturer’s recommended shelf life, but only if the equipment’s integrity has not been compromised.
OSHA then states further requirements for the use of any of these options, including documenting the use of options in written RPPs and providing additional training to employees on the new procedures. In the health care industry only, OSHA refers employers to the CDC’s guidance on the hierarchy of decisions applicable in case of expired N95s, but states that its N95 Shortage Guidance is not intended to cover COVID-19 “crisis standard of care” scenarios.
In the second guidance document issued on April 3, 2020, entitled “Enforcement Guidance for Use of Respirators Protection Equipment Certified under Standards of other Countries or Jurisdictions” (Respirator Use Guidance), OSHA provides the hierarchy of decision-making that constitutes making a “good-faith effort” to provide appropriate respiratory protection:
- Implement OSHA’s hierarchy of controls to eliminate or substitute out workplace hazards
- Prioritize efforts to acquire and use equipment as follows:
- Foreign-certified, as listed by OSHA, other than by China
- China-certified [without any NIOSH certificate]
- Only use equipment beyond shelf life if in non-compromised condition
- Extended use or reuse in accordance with CDC’s Strategies for Optimizing the Supply of N95 Respirators
- Use homemade masks or other improvised face coverings “only as a last resort”
The Respirator Use Guidance also summarizes other requirements for respiratory protection, including training, documenting changes in procedures and conditions, and equipment inspection.
The two April 3 Enforcement Guidance documents accompany OSHA’s March 14, 2020 enforcement guidance regarding respirator fit-testing for health care employers only, previously discussed by the author here. See Jenner & Block’s “Corporate Environmental Lawyer” blog and Jenner & Block’s COVID-19/Coronavirus Resource Center for frequently updated information for businesses and organizations worldwide.
Does the OSH Act Give an Employee the Right to Refuse to Work Due to Fear of Workplace COVID-19 Exposure?
Responding to COVID‑19, many state and local governments are issuing orders encouraging or requiring workers to stay at home (“Stay-At-Home Order”) unless their employment is deemed to be in an “essential business” or “critical infrastructure industry.” Whether working in an essential business or where no Stay-At-Home Order has been issued, employees may express concerns about, or refuse, coming to work due to fear of contracting COVID‑19 at work. The federal Occupational Safety and Health Act (“OSH Act” or “the Act”) prohibits an employer from retaliating against an employee for exercising rights under the Act. If an employer fires or takes other action against an employee who walks off the job due to COVID‑19 fears, is the employee exercising a right under the Act, such that the employer could face a government lawsuit for retaliating against the employee? Although this discussion is limited to refusal to work rights and responsibilities under the OSH Act, as with many issues raised by the novel coronavirus, the answer will be fact-specific and may be unique to this public health crisis. After analyzing the applicable law below, we provide practical suggestions for how employers and their counsel can analyze the issue if raised at their workplace.
I. The OSHA Anti-Retaliation Provisions
Since the OSH Act’s enactment in 1970, Section 5(a)(1) of the Act states that “[e]ach 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 (“the General Duty Clause”). From its beginning, the OSH Act also has provided that an employer cannot “discharge or in any manner discriminate against any employee” because the employee complains about a safety issue to management or OSHA or “because of the exercise by [an] employee on behalf of himself or others of any right afforded by this Act.” 29 U.S.C. § 660(c) (“Section 11 of the OSH Act”); see also 29 CFR Part 1977. If an employer takes discriminatory action in retaliation, the Secretary of Labor (“the Secretary”) can sue the employer, under Section 11 of the OSH Act, in federal district, to require reinstatement, back pay, and “all appropriate relief.” 29 U.S.C. § 660(c)(2). However, the OSH Act does not expressly address how employees can exercise their rights when there is an imminent risk of death or serious bodily injury and a reasonable belief that there is not sufficient time or opportunity to seek redress from OSHA or the employer.
Interpreting Section 11 in 1973, OSHA issued its anti-retaliation regulation at 29 CFR § 1977 (the “OSHA anti-retaliation regulation”), addressing whether, under what circumstances, and how an employee could refuse to perform work under the Act. Section 1977.12(b)(1) (emphasis added) states:
[A]s a general matter, there is no right afforded by the Act which would entitle employees to walk off the job because of potential unsafe conditions at the workplace. Hazardous conditions which may be violative of the Act will ordinarily be corrected by the employer, once brought to his attention. If corrections are not accomplished, or if there is dispute about the existence of a hazard, the employee will normally have opportunity to request inspection of the workplace pursuant to section 8(f) of the Act, or to seek the assistance of other public agencies which have responsibility in the field of safety and health. Under such circumstances, therefore, an employer would not ordinarily be in violation of section 11(c) by taking action to discipline an employee for refusing to perform normal job activities because of alleged safety or health hazards.
29 CFR § 1977.12(b)(1) (emphasis added).
Despite this initial statement that employees do not have the right to walk off the job, in the next paragraph the regulation acknowledges that exigent circumstances may exist that would trigger employee protections for refusing to work. Section 1977.12(b)(2) states: “[O]ccasions might arise when an employee is confronted with a choice between not performing assigned tasks or subjecting himself to serious injury or death arising from a hazardous condition at the workplace,” and, on those occasions, an employer cannot take action against the employee. 29 CFR § 1977.12(b)(2). Specifically, if: (1) “the employee, with no reasonable alternative, refuses in good faith to expose himself to the dangerous condition;” (2) “a reasonable person… would conclude that there is a real danger of death or serious injury;” (3) due to the urgency of the situation, there is insufficient time “to eliminate the danger through resort to regular statutory enforcement channels;” and (4) the employee “sought from his employer, and was unable to obtain, a correction of the dangerous condition,” an employer taking action against the employee refusing to work could be subject to a Section 11 lawsuit brought by the Secretary. Id.; see also 29 U.S.C. § 660(c).
OSHA has published guidance on the issue, Workers’ Right to Refuse Dangerous Work, cautioning that “OSHA cannot enforce union contracts that give employees the right to refuse to work,” but explaining the steps that workers should take if they believe working conditions are dangerous, the employer fails to eliminate the imminent danger, and there is not enough time to address the condition through regular enforcement channels:
- Ask your employer to correct the hazard, or to assign other work;
- Tell your employer that you won’t perform the work unless and until the hazard is corrected; and
- Remain at the worksite until ordered to leave by your employer.
Notably, this OSHA guidance does not answer the question presented by COVID‑19: an employer’s obligations and an employee’s rights when OSHA’s direction to “remain at the worksite” is at the root of an employee’s claim of a dangerous condition.
II. Caselaw and OSHA Guidance Interpreting Section 11 and the OSHA Anti-Retaliation Regulation
White House and Congress Use Liability Immunity to Address the Shortage of Respirators in Healthcare Settings
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
Due to COVID-19, the nation’s healthcare industry is facing a severe shortage of respiratory protection equipment for healthcare workers. Both Congress and the White House have recently taken steps to try to address that shortage by enacting liability immunity under the Families First Coronavirus Response law, signed late on March 18, 2020. These provisions protect manufacturers, distributors, and others of U.S. Food and Drug Administration (“FDA”)-designated industrial respirators from any claims of liability arising from their use during the response to COVID-19. The intent is that this would increase the supply of NIOSH-approved small-particular filtering respirators from those who manufacture or have on-hand respirators that previously had not been FDA-approved as medical devices.
As explained in OSHA’s Hospital Respiratory Protection Program Toolkit: Resources for Respirator Program Administrators (May 2015), respirators are different from facemasks, including surgical masks. Fluid-resistant facemasks are loose-fitting devices that can protect the healthcare worker from larger droplets of infectious bodily fluids from patients, and vice versa. Facemasks “are not considered respiratory protection— facemasks do NOT provide the wearer with a reliable level of protection from inhaling smaller particles, including those emitted into the room air by a patient who is exhaling or coughing, or generated during certain medical procedures.” Id. at 5. Respirators, on the other hand, protect the hospital worker from both large and small infectious particles in the air (smaller particles are known as “aerosols”). An N95 respirator is a half-mask air-purifying device with NIOSH-approved N95 filters or filtering material. The “95” refers to the NIOSH specification that the respirator filter at least 95% of airborne particles. N95 respirators can be designed for single-use or in a mask that allows re-use after replacement of N95 filter or cartridges, and, in contrast with facemasks, they are designed to form a tight seal on the user’s face. Another type of respirator that protects against inhalation of aerosols is an “air-supplying respirator,” which provides clean air from a source other than the immediate ambient air. Self-contained breathing apparatus, commonly known as “scuba equipment,” is an example of an air-supplying respirator.
Although N95 respirators are generally used in all workplaces where control of inhalation of smaller-sized particles is required to reduce hazards, in order to use such respirators in a hospital, in general, the manufacturer must have its devices approved by the Food and Drug Administration (FDA) as a medical device. Certain N95 respirators can be outfitted with the additional splash protection of a surgical mask, and are called a “surgical respirator,” “medical respirator,” or “surgical N95.” Those devices are deemed a medical device, which must be approved by both the FDA and by NIOSH for their particle-filtering ability Non-surgical N95s are not typically used in a hospital setting and a manufacturer and others may be reluctant to supply them for hospital use, particularly given the potential liability risks from their use in that setting.
Faced with a shortage of surgical N95 respirators, the White House turned to manufacturers and users of industrial N95s as an additional source. On March 2, 2020, the FDA issued an Emergency Use Authorization (EUA), pursuant to section 564 of the Food, Drug, and Cosmetic Act (FDCA), that allows the emergency, COVID-19 use of designated NIOSH-certified N95 respirators in the health care setting. The EUA also stated that certain NIOSH-approved respirators that had passed the manufacturer’s recommended shelf-life also could be used in certain circumstances.
The March 2, 2020 EUA did not address protection of industrial manufacturers from liability for use of respirators in medical settings. On March 11, 2020, the FDA clarified the EUA by stating that the FDA had deemed general use N95 respirators as medical devices within the meaning of 201(h) of the FDCA and eligible for liability protections under the Public Readiness and Emergency Preparedness Act of 2005, 42 U.S.C. § 247d-6d (“the Public Readiness Act”). Under the Public Readiness Act, certain devices, called “countermeasures,” are entitled to broad liability immunity during their use in response to a public health emergency. Specifically, a “covered person” is forever immune from liability for any type of “loss” associated with the use of a designated “countermeasure,” including death, physical, mental, or emotional injury, fear of such injury, including medical monitoring, and damage to property including business interruption. 42 U.S.C. § 247d-6d(a)(1)-(2). A “covered person” includes the United States, manufacturers and distributors of the countermeasure, and all employees of a manufacturer or distributor of a designated countermeasure. 42 U.S.C. § 247d-bd(i)(2). Liability protection is provided regardless of whether the countermeasure is sold, donated or otherwise provided and used for medical services.
On March 14, 2020, the U.S. House of Representatives passed H.R. 6201, the “Families First Coronavirus Response Act,” which in Division F, Section 6005, designated personal respiratory protective devices approved by NIOSH (42 CFR part 84) and designated by the FDA in the March 2, 2020 EUA, as a “covered countermeasure” subject to all liability immunities under the Public Readiness Act.” The U.S. Senate passed the bill, without amendment, on March 18, 2020, and later that day, the bill was signed into law by the President. Industrial respirators will remain a liability-protected countermeasure if they are used to address COVID-19 anytime between January 27, 2020 and October 1, 2024, in response to the public health emergency declared by the Secretary of Health and Human Services Alex M. Azar II on January 31, 2020.
In the meantime, as supplies continue to be short, the CDC has issued guidelines for how medical providers should triage their use of respiratory protective equipment. The guidelines issued as of March 19, 2020 are here.
OSHA Issues Temporary Enforcement Guidance on Healthcare Employers’ Requirements for Fit-Testing of Respirators
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
One of the current Occupational Safety & Health Administration (OSHA) regulations on center stage as a result of the health crisis caused by the novel coronavirus and COVID-19 is OSHA’s Respiratory Protection Standard, 29 CFR § 1910.134 (“the Standard”). On March 14, 2020, OSHA issued a Temporary Enforcement Guidance, entitled “Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak” (“Temporary Guidance”). Although directly applicable only to the healthcare industry, the Temporary Guidance portends what may become the new normal for all industries that require respirator use and that are continuing to operate during the COVID-19 crisis.
In general, the Standard requires employers to provide respirators at the appropriate level of protection when it is necessary to protect employees from workplace inhalation hazards. The Standard also requires such employers to have a written program addressing respirator use, and to implement procedures including for start-up and annual medical evaluation and fit-testing, training, and cleaning of respirators. Through the Temporary Guidance, OSHA Compliance Officers are provided instructions from OSHA headquarters regarding enforcement of the Standard in the healthcare industry in light of the supply shortages of N95 filtering facepiece respirators.
The Temporary Guidance notes that the CDC recommends that healthcare providers who are providing direct care to patients with known or suspected COVID-19 to, among other things, use personal protective equipment (“PPE”), such as respirators. In the Temporary Guidance, OSHA recommends that if N95 respirators are not available, healthcare employers should provide a respirator of “equal or higher protection,” e.g. N99 or N100 filtering facepieces, reusable elastomeric respirators, or powered air purifying respirators. In addition, to conserve resources, OSHA recommends that fit-testing of filtering facepiece respirators continue, but that employers use a qualitative, non-destructive method, rather than a quantitative, destructive method for fit-testing. The CDC has its own guidelines regarding what healthcare workers should do when they are facing a shortage of N95 respirators.
With respect to enforcement, OSHA directed all offices to “exercise enforcement discretion” concerning the annual fit-testing requirement, 29 CFR § 1910.134(f)(2), if employers take other actions to mitigate risks to employees, including:
- Make a “good-faith effort” to comply with the Standard.
- Use only NIOSH-certified respirators [see concerns regarding counterfeit respirators].
- Perform initial fit-testing for employees using the same model, style, and size of respirator that the employee will actual use.
- Train employees regarding how to perform a “seal check” each time a respirator is donned.
Other requirements that OSHA is relying on to mitigate risk and avoid non-compliance are listed in the Temporary Guidance.
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On March 9, 2020, the federal Occupational Safety and Health Administration issued its “Guidance on Preparing Workplaces for COVID-19,” (“Guidance”) compiling best practices and existing regulatory standards for evaluating and preparing for risks to workers from exposure to the novel coronavirus and COVID-19. OSHA urges that “it is important for all employers to plan now for COVID-19.” (p. 3) The Guidance describes: (1) how a COVID-19 outbreak could affect workplaces; (2) steps employers can take to reduce workers’ risk of exposure; (3) classification of jobs into categories of risk and controls to protect workers in each category; and (4) how to protect workers living or traveling outside the U.S.
OSHA acknowledges that “[w]hile there is no specific OSHA standard covering SARS-CoV-2 exposure, some OSHA requirements may apply to preventing occupational exposure to SARS-CoV-2,” specifically, OSHA’s regulations regarding provision of personal protective equipment (“PPE”) [ 29 CFR 1910 Subpart I], respirator use [29 CFR 1910.134], and the all-encompassing General Duty Clause of the OSH Act, which requires employers to provide each worker “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.” 29 U.S.C. § 654(a)(1). (p.17) OSHA also suggests that the bloodborne pathogen standard [29 CFR 1910.1030] offers a framework for controlling exposures to respiratory secretions that may contain the virus.
In the Guidance, OSHA divides job tasks into exposure levels of “very high, high, medium, and lower risk” and then recommends steps employers should consider taking to protect workers in each risk category, using its “hierarchy of controls” framework for addressing workplace risks, i.e., engineering controls, followed by administrative controls, safe work practices, and PPE. (pp. 18-25) OSHA’s analysis is summarized below:
- Very High Risk Workers: Workers in the health care and related professions (including autopsy and mortuary workers) performing aerosol-generating procedures on known or suspected COVID-19 patients or handling specimens or body parts from such patients.
- Engineering Controls: Install and maintain air-handling systems in healthcare facilities; patients with suspected or known COVID-19 should be placed in airborne infection isolation rooms, “if available;” aerosol-generating procedures should occur only in isolation rooms; use Biosafety Level 3 precautions for handling specimens.
- Administrative Controls: Follow all healthcare facility guidelines and standards for identifying and isolating infected individuals and protecting workers; “consider” offering enhanced medical monitoring of workers; train workers on preventing transmission; ensure psychological and behavioral support for employee stress. Safe
- Work Practices: Provide emergency responders and others working outside of fixed healthcare facilities with hand rubs containing at least 60% alcohol. PPE: Provide respirators for those working within 6 feet of potential or known infected patients; PPE ensemble including gowns, fluid-resistant coveralls, aprons and other protective clothing; proper disposal of PPE, including training of those involved in disposal.
- High Risk Workers: Other health care and mortuary workers who are exposed to known or suspected COVID-19 patients, but not those exposed to aerosol-generating procedures.
- Engineering and administrative controls, safe practices, and PPE: Same as for Very High Risk Workers, adjusted based on somewhat lower risk.
- Medium Risk Workers: Workers whose job requires frequent and/or close contact within 6 feet of those who may be infected with the virus, but are not known to have contracted COVID-19. “Medium risk” classification applies to those who work with the general public in communities with “ongoing community transmission,” such as in schools and “some high-volume retail settings.”
- Engineering Controls: Physical barriers, such as sneeze guards, “where feasible.”
- Administrative Controls: “Consider” offering facemask to ill employees and customers until they can leave the workplace; inform customers of COVID-19 symptoms; “where appropriate,” limit customer and public access to workplace areas; communicate availability of medical resources.
- PPE: May need combination of gloves, own, face mask, face shield/goggles, depending on work tasks, hazard assessment, and types of exposures; need for respirator would be “rare.”
- Lower Risk Workers: Workers whose jobs do not require frequent contact with the public and other coworkers.
- Engineering Controls: None additional.
- Administrative Controls: Monitor public health communications, including CDC’s website, and work with workers on effective communications.
- PPE: None additional.
In addition to the steps above, OSHA’s Guidance provides “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to SARS-CoV-2.” (pp. 7-17) While not requiring employers take these measures, the Guidance states that “[a]s appropriate,” employers should implement “good hygiene and infection control practices”; “explore whether” employers can establish practices including physical and social distancing, and have cleaning equipment and chemicals that are EPA-approved for addressing viruses. (pp. 8-9) OSHA also states that employers should develop policies and procedures for “prompt identification and isolation of sick people, if appropriate.” (p.9) OSHA also encourages employers to “develop, implement and communicate about workplace flexibilities and protections” with the principal goal of allowing sick workers or those with illness in families to stay home. (p.11)
With respect to employers with workers working abroad, the Guidance advises that employers keep abreast of CDC and State Department announcements, tell workers that the State Department will not provide medications or supplies to Americans abroad, and be aware that travel in and out of a foreign country may be limited. (pp. 25-26) (The Guidance was issued before the President announced his ban of travel from Europe on March 11.)
Further and updated information about OSHA’s response and guidance about COVID-19 can be found at https://www.osha.gov/SLTC/covid-19/. California-OSHA also has published extensive “Guidance on Requirements to Protect Workers from Coronavirus.”
Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA
Exploring the E-Suite with Elizabeth Anderson, Ph.D., Fellow ATS, Chief Science Officer and Senior Fellow, Exponent, Inc.; formerly, Carcinogen Assessment Group and Office of Health and Environmental Assessment, U.S. EPA
- I understand that you worked for U.S. EPA when it was first started as a federal agency in the early 1970s. What was your role at the “new” U.S. EPA?
I led the health sciences assessment work for the first 14 years after U.S. EPA was formed in December 1970. At the time, U.S. EPA was a very small agency. I was the only health scientist in an eight-person Office of Technical Analysis, reporting directly to U.S. EPA’s first Administrator, Bill Ruckelshaus. He is an extraordinary person—a terrific and committed leader, who also knew how to make hard work fun. The Administrator asked me to lead an intra-agency committee to write a cancer policy to address the zero risk tolerance expectation for substances with some evidence, often conflicting, of carcinogenicity, as indicated by tumors in animals or humans. Another challenge was that substances could be ubiquitous or important to our society. We knew a “zero tolerance” policy for all possible carcinogens would be unworkable, so my committee reported out a process rather than a cancer policy. That process was the first use of risk assessment to organize what is known and unknown about the likelihood that exposure to a particular agent might cause illness. On the assumption the agent might cause illness, the next step is to define what levels of risk and exposure would be acceptable and protective of public health. The concept of risk acceptance was novel at the time and was introduced in a social and political climate aimed at seeking the ideal, i.e., zero risk.
My office at U.S. EPA conducted and I co-authored more than 150 risk assessments between 1976 and 1983 as a basis for defining major regulatory policy. The National Academy of Sciences published its endorsement of this risk assessment process in 1983. The Academy’s report, referred to as “The Red Book,” inspired national and international adoption of the U.S. EPA’s approach to risk assessment started by my intra-agency committee. I led the effort to expand the health assessment program, which resulted in establishing the central risk assessment office for the Agency—the Office of Health and Environmental Assessment. This office reported directly to the Administrator, who granted us wide latitude to expeditiously conduct our assessments.
- What was your professional and academic background leading to your involvement in health risk assessment?
My academic background is in synthetic organic chemistry, the chemistry of making organic molecules, amongst other applications, to be biologically active. I was pre-med at the College of William and Mary, but I was strongly discouraged from pursuing medical school “because I would be taking the place of a man” (a quote from the Chairman of the Chemistry Department). Instead, I was granted a fellowship at the University of Virginia to pursue a master’s degree in synthetic organic chemistry. Next, I applied for a unique fellowship being granted by the U.S. Department of Defense and completed my Ph.D. work in synthetic organic chemistry. During those early years of U.S. EPA, my degree and training best fit the Agency’s needs. There were no degrees in toxicology, relevant applications in epidemiology were just emerging, and mechanism of action had received little attention. I was fortunate to be in the right place at the right time.
- What was it like to be part of the start of a new federal agency?
Most of all, it was challenging. Following the civil rights movement, the anti-Vietnam war movement, and 20 million people marching on the first Earth Day, the spirit of the time was that significant change can happen; every move at EPA was front-page news. We all felt a sense of urgency to make a difference and establish scientific credibility for all decisions that the Agency had to make. U.S. EPA inherited a rapidly cascading series of enabling legislation starting with the Clean Air Act in December of 1970, followed by amendments to the Federal Water Pollution Control Act; the Federal Insecticide, Fungicide, and Rodenticide Act; Radiation Authorities; the Drinking Water Act; “Superfund” (CERCLA); and the Resource Conservation and Recovery Act (RCRA). All compelled the Agency to be protective of public health. Implementing this Congressional directive was left to the Agency and, for our part, this meant meeting strict deadlines and establishing scientific foundations that defined protection and that could survive challenges from Congress and the scientific, private, public, and legal communities.
At a very young age, many of us at U.S. EPA inherited a great deal of responsibility. New areas of complexity seemed to develop on a daily basis. Looking back, a culture of committed, young professionals worked hard and achieved a great deal. We were inspired by the excitement and challenge of those times. Many of us have remained friends and colleagues until the present day. Some of us are still involved, as board members of the U.S. EPA Alumni Association.
- What were some of the accomplishments of which you were most proud that came out of your work for U.S. EPA?
I am proud of many things, but I am most proud of my role in co-authoring the first guidelines to establish risk assessment and risk management as the basis for setting public policy to protect public health and having the opportunity to found and direct U.S. EPA’s first health assessment offices, the Carcinogen Assessment Group, and the expanded Office of Health Environmental Assessment. In addition, I had the opportunity to found and direct the Agency’s expansion of health topics to include reproductive risk assessment, mutagen risk assessment, and exposure assessment groups; these offices conducted all risk assessments for the Agency’s program offices for many years.
I was fortunate to be a part of establishing the scholarship in this rapidly developing and complex field of health risk assessment. A small number of us founded the Society for Risk Analysis, a focal point for sharing scientific developments from all sectors, including engineering and the social sciences. I served as one of the early Presidents and, for 10 years, was Editor-in-Chief of the Society’s flagship journal, Risk Analysis: An International Journal. In addition, as U.S. EPA’s representative, I had the privilege of participating in the worldwide application of risk assessment first in Europe through the World Health Organization and subsequently through the Pan American Health Organization and other organizations.
- After you left U.S. EPA, you have had several professional engagements. Can you summarize those for us?
After spending 14 years being a part of U.S. EPA’s founding, I entered the private sector, initially as President and CEO of the first private health and environmental assessment consulting firm, Clement Associates. In addition to work for private clients, U.S. EPA contracted with me to oversee and direct the first risk assessments for all of its Superfund sites, as did the Agency for Toxic Substances and Disease Registry to direct and write the first Toxicity Profiles. Later, I founded my own company, Sciences International, and directed it for 13 years, during which we addressed a wide variety of interesting and challenging issues. Subsequently, Exponent asked me to serve as Vice President for Health Sciences, a post I served in for 10 years, then as Chief Science Officer. More recently, I am honored to accept the Exponent designation of Senior Fellow, a rare recognition by the Company. Presently, I continue my work in the field of health risk assessment. I know that the framework and process we created in the early years made it possible to identify gaps in knowledge and point to ways for improving the foundations for health risk assessment.
- What are the emerging policy issues in the area of human health risk assessment?
Without a doubt, the need to sensibly apply the science we know to separate the important from the unimportant issues. Often, I feel that we lose sight of the fact that health risk assessment has achieved endorsement worldwide as the premier way to address the complexity of issues involved in defining public health protection. Also, the outcomes of risk assessment now have challenging new applications, e.g., in toxic tort litigation or world trade decisions.
In the policy area, one important emerging issue is the use of health risk assessment to “prove safety.” Adopting ever-diminishing levels of possible protection to achieve this goal effectively creates a “zero tolerance” policy, the very policy that would have defeated U.S. EPA at its inception. I believe that little is gained by these controversial policies that create debate for years; under these approaches we can lose sight of what is important. For example, important EPA risk assessment documents may now take years to become final because of endless debates in areas of scientific uncertainty where societal impacts can be enormous but risk reduction uncertain and marginal. We accept risk in every other part of our society, so it is unrealistic to apply a zero-risk policy to our environmental decisions.
Secondly, I feel that it is most unfortunate that the sciences so essential to public health understanding are often caught in agendas that constrain even the most objective review and use of our public health documents. There is no question that science has become politicized. I contend that U.S. EPA would have been lost without access to all scientists of importance to our decisions, regardless of who had funded their work.
Finally, I see an increasing lack of understanding of the difference between science as applied to public health protection—to preempt and prevent disease—and the science of establishing causality. It is critical to use honest science, regardless of the setting, to avoid mistakes. Distortion of scientific foundations and fact to achieve economic or political gain is deplorable and should be rejected.
- What do you enjoy most about your work in the field of human health risk assessment?
The endless challenges. Risk assessment demands that we honestly express what is known and unknown. Exploring the unknowns and narrowing our knowledge gaps are endlessly rewarding endeavors.
- What do you find to be the most challenging aspect of your work?
It is very difficult to find a single answer to this question. Exploring new science will always be at the top of the list. The greatest non-scientific challenge is the fact that not all are in engaged in finding the truth. Trying to explain the known scientific facts in situations involving exploitation of scientific unknowns or distortion, whether in the courtroom or as a part of political debate, is challenging. The climate created by the spirit of the ’60s was to seek the truth. We were all essentially on the same page; we shared common goals even as we debated the best methods of scientific approach. Today, goals often do not converge; science in the age of polarization is challenging.
- What or who helped you succeed as a leader in the area of human health risk assessment?
I have been surrounded by thought leaders and gifted people throughout my career. The environmental movement attracted so many to the new U.S. EPA. One who contributed so much to my understanding was Dr. Roy Albert, the Deputy Director of the School of Environmental Medicine at NYU. He was blessed with an extraordinary intellect and excellent sense of balance. He was the outside Chair of our Carcinogen Assessment Group in the early years, a role that would not be possible in the bureaucracy today. And I must continue to give credit to U.S. EPA Administrator Ruckelshaus.
- What advice would you give a young person today who is considering starting out in your field?
Follow your dreams. Work is never work if you feel passionate about what you are doing. Achieve the best education you can get and keep your options open. You may need to help create your own opportunity. Have confidence in your capabilities to achieve your goals and set high ones.
Exploring the E-Suite with Joel Brammeier, President and CEO, Alliance for the Great Lakes
- Tell us about Alliance for Great Lakes, including what the organization does and your role.
The Alliance drives the local, state and federal policy reforms and implementation necessary to create a healthy Great Lakes for all people and wildlife, forever. We do this by communicating our thought leadership on issues, building powerful networks of influencers, and educating and activating tens of thousands of volunteers, advocates and donors each year who bring their voices to our priorities.
As President and CEO of the Alliance, I concentrate on three principal responsibilities. The first is making sure that the Alliance is focused on the most significant issues affecting clean water in the Great Lakes. That involves a lot of listening, reading, and prioritizing our work. Second, I focus on the financial viability of the Alliance. Fundraising is is my time to listen to what is important to our supporters and communicate to them how their investment in clean water is impacting the Great Lakes. Finally, I work to support the core components of the Alliance—our staff, our volunteers, and the Board of Directors. Everyone needs to be fully engaged, informed, and moving forward to advance the Alliance’s mission.
- What is your professional background that you led you to become involved in policy issues concerning protection of fresh water assets and related environmental issues?
After undergrad at Valparaiso University and grad school at University of Michigan, I moved to Chicago in the late 1990s to follow the person who eventually became my spouse. At that time, I began volunteering with a number of NGOs in the Chicago area in order to build my network of relationships and assess how I could become professionally involved. I carried a deep values commitment to non-profit service, mostly due to observing the work of my parents as a teacher and member of the clergy. I had decided on focusing on environmental work in high school after a variety of positive outdoor experiences with my family. After about a year volunteering in various capacities in Chicago, an entry-level position opened up with a group called the Lake Michigan Federation. The combination of my personal value for the Great Lakes that was imprinted on me in childhood, along with my expertise from my education and volunteering, was enough to get me the job. Since that time, I have advanced through the growth and expansion of the organization to become the president of the Alliance for the Great Lakes.
- What do you think are the emerging policy issues regarding fresh water assets and the environment of the Great Lakes and how do you think they should be addressed?
It is still all about clean water, but in a much more inclusive and equitable way than is traditional for the mainstream environmental movement. The greatest emerging challenge is how to ensure Great Lakes water is protected and restored in a way that matters personally to all the people of the Great Lakes. For example, drinking water protection is commonly a top reason the public cites as a reason to protect the Great Lakes. The Great Lakes Water Resources Compact & Agreement is a monumental agreement among the states and provinces to ensure water is not diverted to far-flung locations, and that the natural hydrology of the lakes is protected. But this policy doesn’t ensure people can actually access safe, clean and affordable drinking water. It is not credible to say a large natural source of drinking water is truly protected if millions of people who rely on that water cannot safely or reliably use it. And this is today’s unfortunate reality, from manure contamination in northeast Wisconsin, to toxic algae in Lake Erie, to lead and PFAS contamination across the region. Often those harms are falling on people who are already suffering an outsize burden in other parts of their lives.
On specific issues, I think the greatest challenges are 1) changing how we grow food so the agricultural economy does not pollute our water 2) restoring the vital water infrastructure that is the basis of people’s health and the Great Lakes regional economy and 3) preventing the continued influx of invasive species that threaten to torpedo our way of life. Solving these challenges depends on a broad and engaged public that is motivated to action to protect the Great Lakes.
- What do you enjoy most about your work at the Alliance for the Great Lakes?
The people I work with, the ability to protect something that is personally important to me and the fact that clean water for all people and wildlife is a hard cause to argue against.
- What do you find to be the most challenging aspect of your work?
Environmental advocacy works on big problems with many deeply embedded interests and motivations. Changing that system takes time and can be frustrating. The flip side of that is when you are successful, you are changing a system in a lasting way and you know it will benefit people now and well into the future.
- What or who helped you succeed as a policy maker and advocate?
I’m not the kind of person who needs or wants to be in the spotlight taking credit, I just want to work smart and get the result I’m looking for. I’ve relied on so many people because this work is by nature collaborative and I would miss many if I named names. But I will mention one. Cameron Davis, who is now a commissioner at Chicago’s Metropolitan Water Reclamation District, gave me my first real shot at being an environmental professional. I’m sure I screwed up plenty while working for him, but he still let me follow him around and listen to him for years. This was fundamental to me learning how environmental policy change happens. I’m truly thankful for that time. I’ve had five Board of Directors chairs in my time leading the Alliance, without whom I never would have been able to figure out how to run an organization. School does not train you for that and board leadership is vital. The Alliance is fortunate to have a large and diverse base of financial supporters, and I reflect constantly on my obligation to them to make sure our work is addressing their desire for clean and safe water.
- Describe those projects as an environmental policy advocate of which you are the proudest.
I’ve done some transformative work in invasive species prevention where I can look back at policies and decisions by elected officials and know that I was one of the people at the center of making those things happen. If you get to be part of one thing like that in a lifetime, it’s pretty great. I’ve been a core part of, though definitely not the leader, of a successful movement to make the Great Lakes a national priority in the United States. I’m also quite proud of dramatically expanding the reach of my organization and becoming a leader in engaging people in advocacy, as public support is critical for success.
- What advice would you give a young person today who is considering starting out in your field?
Looking back, I realize today that I received a privileged opportunity when I joined the Lake Michigan Federation. It was a relatively small group rebounding from a tough time in the right way, and I was fortunate to get that job. Today, the green & blue movement is pervasive in our economy and culture in a way that just did not exist twenty years ago. Young professionals can and should seek out careers with environmental organizations, but also remember that there are opportunities to shape systems change throughout the private sector. They should ask their future bosses to communicate their personal vision for change. Look for somewhere in your work where you can take the lead on at least one thing that is important to you and your career. Listen to understand how environmental choices affect the daily lives of people and build your work around that knowledge. And consider spending some time in politics early on – understanding what motivates our decision makers is absolutely critical to devising strategies to make sure the right decisions are made.
In a 2-1 decision on February 28, 2019, the full Occupational Safety and Health Review Commission (“OSHRC”) vacated the U.S. Secretary of Labor’s Occupational Safety and Health Administration’s (“OSHA”) citation charging a roofing contractor with a “general duty clause” violation for exposing employees “to the hazard of excessive heat from working on a commercial roof in the direct sun” and separately vacated a citation for failure to train employees regarding heat-related risks. Sec’y of Labor v. A.H. Sturgill Roofing, Inc., OSHRC Docket No. 13-0224. OSHA had issued the citations following the physical collapse and subsequent death of a temporary worker on the first day of his work for the roofing company.
Different from a violation based on an OSHA regulation, a general duty clause violation alleges that the employer has violated the federal Occupational Safety and Health Act’s provision stating: “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).
OSHA Rescinds Electronic Submission of Injury/Illness Logs and Incident Reports and Raises Penalties
On January 25, 2019, the U.S. Occupational Safety and Health Administration (OSHA) issued a Final Rule eliminating the requirement that certain employers electronically submit to OSHA information from their annual OSHA 300 log of workplace injuries and illnesses and their OSHA 301 incident reports, which are required to be created after each logged injury and illness. OSHA also announced that, pursuant to annual escalating requirements, penalties for OSHA violations in 2019 would increase to a maximum of $132,598 per willful or repeat violation and a maximum of $13,260 for all other types of violations.
Pursuant to a regulation issued in the final year of the Obama Administration, employers of establishments with 250 or more employees were to be required to submit information from their 300 logs and 301 reports annually to OSHA through an electronic portal. However, the portal was never established during the Obama or Trump Administrations, and the submission obligation was repeatedly suspended until, through the Final Rule, the electronic submission requirement was rescinded entirely.
OSHA described the Final Rule rescinding the submission requirement as primarily driven to “protect worker privacy,” because the OSHA 300 logs and 301 reports contain identifying information which “might be publicly disclosed” under Freedom of Information Act (FOIA) requests or otherwise. In the Final Rule’s preamble, OSHA stressed that its position is that data electronically submitted to OSHA regarding injuries and illnesses are exempt from FOIA public disclosure, both to protect OSHA’s enforcement efforts and to protect employees’ privacy. OSHA stated, however, that despite its position, it is concerned that “it still could be required by a court to release the data,” if it had not rescinded the broader submission requirements. OSHA also expressed concern that, if information from the 300 logs and 301 reports had been electronically collected pursuant to the regulation as issued in 2016, there were increased risks of cyber-security issues involved in protecting sensitive information. OSHA also stated that by rescinding the electronic submission requirement, OSHA can “focus its resources on initiatives that its past experience has shown to be useful … rather than on collecting and processing information from Forms 300 and 301 with uncertain value for OSHA enforcement and compliance assistance.”
Employers of establishments with 250 or more employees, or with 20-249 employees in designated high-hazard industries, remain obligated to annually, electronically submit information from OSHA Form 300A, which summarizes information from the annual OSHA 300 log and 301 reports. The OSHA Summary Form 300A for 2018 injuries and illnesses must be physically posted at each establishment by February 1, 2019, and submitted electronically to OSHA by March 2, 2019. The Form 300A electronic submission information also has been amended to require employers to include their Employer Identification Number (EIN). The requirement to electronically submit the 300A Summary and EIN applies nationwide, including to employers in the 28 State Plan States.
The January 25, 2019 Final Rule does not change the obligation of employers in most industries (unless specifically exempted) to maintain OSHA 300 logs and 301 reports at their establishments, for inspection by OSHA, employees, and their representatives. In addition, all employers continue to be required to report to OSHA, within prescribed time periods, when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. State requirements regarding injury reporting may be more stringent than those imposed by federal OSHA.
Exploring the E-Suite with Sharon Neal, Assistant General Counsel-EHS Counsel,
Exelon BSC, Law Department
- How did you get involved in environmental law?
My interest in the environment began when I was young, around 10‑12 years old. I recall hearing my parents talk of their concerns about the environment and that triggered my curiosity. In college, I began by focusing on environmental science. In my sophomore year, a single paragraph in an environmental studies text discussed environmental law as an up-and-coming field for those with an interest in protecting the environment and shaping policy. From that moment, I decided to become an environmental lawyer. I graduated from Loyola University Chicago School of Law in 1988. I became a lawyer for the Illinois EPA in 1990, and I have been practicing environmental law ever since.
- What do you enjoy most about your work in environmental law?
I have never stopped finding my work in this field interesting and meaningful. No two days mirror one another. There is always something new to learn and do in light of the vast, ever changing nature of the environmental field. Even after more than 20 years with Exelon, my knowledge of the Company’s broad range of operations continues to grow. I have also so enjoyed and appreciated the many talented, intelligent and committed people with whom I have worked over my entire career, who have a wide range of expertise, such as in environmental science, investigation, remediation, nuclear operations, utility operations, regulatory and governmental affairs, and law. They have truly enriched my practice and life.
- What do you find to be the most challenging aspect of environmental law?
As a field, environmental law is especially challenging in light of the seemingly endless and changing laws, regulations, and other requirements, at the federal, state and local levels, with separate requirements for air, land, and water. It is challenging to stay current and to understand the legal implications for a large company that has many different types of complex operations. As with all fast-paced work, deadlines and competition for time are always a challenge. Also, unique to environmental law, is the deep intersection of science, law, and policy. The longer I have practiced, the more I have come to understand that you cannot possibly be an expert in all aspects of environmental law; there just too much to know and to know well. However, I do feel that what makes this field challenging also makes it continually interesting.
- What or who helped you succeed as an environmental lawyer?
I have had the privilege of working with so many exceptionally bright and experienced environmental specialists, consultants, attorneys (in-house and outside counsel) since my start in environmental law, as well as great, supportive managers and company leaders, here at Exelon, who prioritize environmental compliance and stewardship. That has made all the difference. Much of what I do is as part of a team made up of persons with diverse expertise. We work together and rely on each other to succeed.
- What do you think are the emerging issues in the field of environmental law?
Climate change will be at the heart of much of environmental law and policy going forward. There will be great emphasis on efforts to limit the operations that impact and create climate change, along with more and continuing efforts to reduce those impacts. There also will be a focus on responding and adapting to the effects that we already are seeing and that we will increasingly see in the future. We cannot overstate the significance of climate change in environmental issues going forward.
- Describe those projects as an environmental lawyer of which you are the proudest.
Looking at my career as a whole, what stands out initially is the work I did when I was with the Illinois EPA. That was my first environmental position, so my learning curve was steep. Yet, within those first couple of years, I was able to negotiate and write state laws and regulations. I appreciate that I had the opportunity to do such important work so early in my career.
I have worked on so many interesting matters at Exelon. The focus of my work has changed many times over the years, depending on regulatory and operational/business developments. Some of the most fascinating work has been supporting Exelon Nuclear, including on Clean Water Act issues. I have spent much time at our nuclear stations, including at the Quad Cities Generating Stations, which, among other things, operates a successful fish hatchery that feeds into the Mississippi River. I also had the opportunity to attend a U.S. Supreme Court argument concerning federal regulations under the Clean Water Act, which affected Exelon, among other regulated entities. I have supported Exelon on many interesting projects over the years focused on evaluating, preventing and mitigating environmental impacts. I have especially enjoyed learning about and supporting Exelon’s many environmental stewardship projects.
- Which community service or pro bono matters have been the most meaningful to you and why?
Exelon has an extensive pro bono and volunteer network, which provides opportunities for employees to participate in numerous activities that benefit a wide range of organizations and individuals in the communities that Exelon serves. At our annual Exelon Law Department All Hands clinics, attorneys and support staff work together to help many persons in single day’s event. At a recent clinic, we assisted seniors with planning and preparing important end of life documents. Last year’s clinic focused on providing support for those seeking immigration relief. Exelon’s Law Department holds such clinics annually in each of its four main cities, Chicago, Philadelphia, Baltimore and Washington D.C.
In the past year, I have also participated in some especially rewarding events and projects focused on introducing children and young adults to the field of law. A few of these events have supported “Just the Beginning”, a pipeline organization that motivates young people in economically challenged communities to become part of the legal profession and future leaders. I have also worked with young students in the “Lawyers in the Classroom” program, sponsored by the Constitutional Rights Foundation Chicago. It is a pleasure to teach and talk with the students in these programs and encourage them to see the legal profession as meaningful and attainable.
Also, in the past year, at the recommendation of a friend and colleague within the Exelon/EHS legal group, I became a board member of Thresholds, one of the oldest and largest Illinois organizations supporting persons with mental illnesses and substance use disorders. Thresholds provides a wide range of support—from care to employment to housing—for thousands of people in the broader Chicagoland community. I have been deeply gratified by the support I have received from Exelon and other friends, such as Jenner & Block, for my work on behalf of Thresholds.
- What advice would you give a young person today who is considering starting out in your field?
I am confident that environmental law, and the field of environmental studies, in general, will continue to be important, fascinating work. If you have the opportunity to work for the government, especially early in your career, take that opportunity. Government service is an incredible place to learn, not only substantive environmental law, but many aspects of how policy comes to be law, how regulations are drafted and laws are enacted, interagency relationships, and the needs and role of the regulated community. I am grateful to have had that opportunity at the start of my career.
Ms. Neal was interviewed by Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice, Jenner & Block
OSHA’s Directorate of Enforcement Programs recently issued an enforcement memorandum to all OSHA Regional Administrators providing a new “Enforcement Policy for Respiratory Hazards Not Covered by OSHA Permissible Exposure Limits” (“Enforcement Policy”). OSHA’s 2003 policy on the same topic is now superseded and archived.
The Enforcement Policy explains how and when OSHA will cite an employer for respiratory hazards from an air contaminant under the OSH Act’s General Duty Clause (“GDC”). The GDC is the statutory requirement that an employer “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.” 29 U.S.C. § 654(a)(1). By regulation, OSHA has stated that “An employer who is in compliance with any standard in this part shall be deemed to be in compliance with the requirement of section 5(a)(1) of the Act, but only to the extent of the condition, practice, means, method, operation, or process covered by the standard.” 29 CFR 1910.5(f). There is an open question as to whether and when an employer is in violation of the law if either (a) OSHA has not set a regulatory exposure limit for a particular chemical; or (b) exposures are below OSHA’s regulatory Permissible Exposure Limit (“PEL”), but above another organization’s recommended occupational exposure limit (“OEL”) for the same chemical. An OEL can be issued by, for example, an industry group, U.S. EPA, the National Institute for Occupational Safety and Health, or the American Conference of Governmental Industrial Hygienists.
OSHA’s new Enforcement Policy states that a GDC violation for airborne chemical exposures cannot be alleged unless OSHA can meet the 4-element standard of proof imposed by the courts for any GDC violation:
On December 11, 2018, the U.S. EPA and the U.S. Army Corps of Engineers jointly issued a proposed rule to define the basic jurisdictional reach of the federal Clean Water Act (“CWA”), which applies to protection of the “navigable waters” of the U.S. The proposed rule defines the term “waters of the United States,” which establishes the scope of waters subject to the CWA (“the Proposed WOTUS Rule”). The definition of WOTUS has been the subject of decades of litigation, including at the U.S. Supreme Court, see Rapanos v. U.S., 547 U.S. 715 (2006), itself a divided opinion. The Trump Administration’s WOTUS rule, when issued in final, would replace the definitional rule issued in June 2015 by the Obama Administration. 80 Fed. Reg. 37054. Obama’s 2015 rule itself was the subject of litigation; including after the Trump Administration attempted to delay application of that rule. See, e.g., Puget Soundkeeper Alliance v. Wheeler, No. C15-1342-JCC (W.D. Wash. Nov. 26, 2018). As of now, 28 States are not subject to the 2015 rule, but to the definition of WOTUS pursuant to rules issued in 1977 and the 1980s, as well as decisions of the Supreme Court and the agencies’ guidance and practices.
The Proposed WOTUS Rule, which the Trump Administration states is consistent with the Rapanos plurality opinion written by Justice Scalia, purports to provide “clarity, predictability, and consistency” and, by limiting the scope of the CWA’s jurisdiction, “gives states and cities more flexibility to determine how best to manage waters within their borders.” By setting forth “six clear categories of waters” that are considered WOTUS, the Proposed WOTUS Rule seeks to ensure that the CWA applies only to those waters “that are physically and meaningfully connected to traditional navigable waters.” The six categories are, in general:
On May 12, 2016, the U.S. Occupational Safety and Health Administration ("OSHA") issued a final rule addressing employers' workplace injury and illness reporting and recording obligations. 81 Fed. Reg. 29624-94. One portion of the new rule addresses retaliation against employees who report a work-related injury or illness (collectively, "injury") to an employer. Specifically, new § 1904.35(b)(1)(iv) provides: "You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness." 29 CFR § 1904.35(b)(1)(iv). OSHA also added another new rule: An employer “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 CFR § 1904.35(b)(1)(i).
The new rule, particularly § (b)(1)(iv), was challenged in federal court, with plaintiffs seeking a nationwide preliminary injunction prohibiting the rule's enforcement. TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). On November 28, 2016, the court denied plaintiffs' request for an immediate injunction, but said that its decision on the preliminary injunction does not reflect its decision on the merits of plaintiffs' legal challenges to the rule. Without the preliminary injunction, OSHA may begin enforcing the new rule as of December 1, 2016.
On June 29, 2015, the U.S. Supreme Court reversed the U.S. Court of Appeals for the D.C. Circuit and invalidated U.S. EPA's 2012 regulation of mercury and other hazardous air pollutant ("HAP") emissions from coal and oil-fired power plants. Michigan v. Environmental Protection Agency, No. 14-46.
Earth Day 2015: Annual U.S. Greenhouse Gas Emissions Inventory Shows Increase Since Prior Year and Since 1990
As it has since 1994, on April 15 of this year, U.S. EPA published its annual Inventory of U.S. Greenhouse Gas Emissions and Sinks. The Inventory tracks greenhouse gas ("GHG") emissions from man-made sources, by year, starting in 1990. The Inventory began as part of the U.S.'s commitment to the United Nations Framework Convention on Climate Change ("UNFCCC") and uses the same methodologies as other UNFCCC members for developing and reporting data. Details on the 20th Annual Inventory can be found at http://www.epa.gov/ climatechange/ghgemissions/usinventoryreport.html.
The 2015 Inventory contains data from 2013 and in comparison to prior years. In 2013, U.S. GHG emissions totaled 6,673 million metric tons of CO2 equivalents ("MMTCO2e"). Those emissions are a 2% increase over 2012 emissions, although they remain lower than the peak amount (7,399.78 MMTCO2e), inventoried in 2007. The leading GHG emitted remains CO2, with its principal sources being electricity generation and transportation, followed by all other industrial sources.
U.S. EPA attributes the 2013 increase in GHG emissions largely to an increase in the use of coal to generate electricity. However, U.S. EPA also found that increased emissions occurred in virtually all sectors due to a cold winter leading to increased demand for heating, an increase in vehicle miles traveled, and an overall increase in vehicle fuel use. Overall, since 1990, GHG emissions have increased by 5.9%. Specifically, since 1990, emissions from electrical power plants have increased 11.4% and transportation-related emissions have increased by 16.4%.
The Inventory, which is submitted to the UN for further reporting and analyses with other countries' data, is different than the annual reports prepared by U.S. EPA pursuant to the GHG Reporting Program. The GHG Reporting Program was established by U.S. EPA rule on October 30, 2009. The Reporting Program accumulates emission data from years beginning with 2010 emissions and relies on reporting from 8,000 individual large sources of emissions (typically over 25,000 MMTCO2e/year). The Inventory, which EPA calculates based on national energy, agricultural, and other statistics, is meant to account for 100% of U.S. man-made sources, not just the largest sources. GHG Reporting Program data for 2013 was reported on September 30, 2014 and can be found at http://www.epa.gov/ghgreporting/ghgdata/mediacenter.html.
By: Gabrielle Sigel
On May 6, 2014, the U.S. Global Change Research Program released the Third U.S. National Climate Assessment, titled "Climate Change Impacts in the United States" ("the Assessment"). The Assessment was three years in the making and was based on the work of more than 300 experts from academia, government, business, and NGOs.
The 800-plus page Assessment contains twelve overall findings, which are incorporated into six chapters on various environmental or societal sectors, such as urban systems and Indigenous Peoples. The Assessment also evaluates climate change impacts by region of the country, including a discussion of effects on the coasts of ocean and internal waterways. The twelve key findings are:
- Global climate is changing and this is apparent across a wide range of observations.
- Some extreme weather and climate events have increased in recent decades, and new and stronger evidence confirms that some of these increases are related to human activities.
- Human-induced climate change is projected to continue, and it will accelerate significantly if emissions of heat-trapping gases continue to increase.
- Impacts related to climate change are already evident in many sectors and are expected to become increasingly disruptive across the nation throughout this century and beyond.
- Climate change threatens human health and well-being in many ways.
- Infrastructure is being damaged by sea level rise, heavy downpours, and extreme heat; damages are projected to increase with continued climate change.
- Water quality and water supply reliability are jeopardized by climate change in a variety of ways that affect ecosystems and livelihoods.
- Climate disruptions to agriculture have been increasing and are projected to become more severe over this century.
- Climate change poses particular threats to Indigenous Peoples' health, well-being, and ways of life.
- Ecosystems and the benefits they provide to society are being affected by climate change. The capacity of ecosystems to buffer the impacts of extreme events like fires, floods, and severe storms is being overwhelmed.
- Ocean waters are becoming warmer and more acidic, broadly affecting ocean circulation, chemistry, ecosystems, and marine life.
- Planning for adaptation…and mitigation…is becoming more widespread, but current implementation efforts are insufficient to avoid increasingly negative social, environmental, and economic consequences.
Key response steps recommended by the Assessment include adaptation, mitigation, additional research, and decision-making integrating adaptation and mitigation measures. This Assessment also recommends a "sustained assessment process," rather than developing reports periodically, as has happened in the past.
After detailing the significant negative impacts of climate change throughout the country, the Assessment's companion "Highlights" report concludes more optimistically that "the amount of future climate change and its consequences will still largely be determined by our choices, now and in the near future. There is still time to act to limit the amount of climate change and the extent of damaging impacts we will face."
The Assessment was prepared under the oversight of the National Climate Assessment and Development Advisory Committee, which was established at the end of 2010 by the U.S. Department of Commerce. A National Climate Assessment must be conducted every four years pursuant to the 1990 Global Change Research Act, which has resulted in prior assessment reports being released in 2000 and 2009.
EPA Proposes New and Differing Carbon Emission Limits for Future Natural Gas-Fired and Coal-Fired Power Plants
On September 20, 2013, U.S. EPA rescinded its first attempt and proposed new rules to establish New Source Performance Standards (NSPS), i.e., national emission limits, for carbon dioxide (CO2) emitted from new electric power plants. EPA's proposed approach is to set different limits, and different technology, depending upon whether the electric generating unit (EGU) is natural gas-fired or coal-fired plant. For coal-fired EGUs, EPA proposed a CO2 limit that requires the use of carbon capture and storage (CCS) technology for at least some CO2 emissions, and sets two different limits based on the averaging period used. Natural gas EGUs have two different limits based on their size, but CCS is not to be required for any of those EGUs. EPA's new proposed rule is a significant departure from its original proposed rule for the electric utility sector, so at the same time it proposed the new NSPS, it formally rescinded its original proposal.
As background, in April 2012, EPA proposed a single electricity output-based emission limit of 1,000 pounds (lb) of CO2 per megawatt-hour (MWh) of gross electrical output for all new fossil fuel-fired plants. This emission limit was reached by determining the CO2 emissions only from modern, newly constructed natural gas combined cycle facilities. However, no new coal-fired plant would be able to use feasible and proven technology and still meet the 1,000 lb. CO2/MWh limit. Thus, the 2012 proposed standard was based on an EPA calculation that no new coal-fired units would be built in the near future.
EPA received 2.5 million comments in response to its 2012 proposed rule, more comments than in response to any other regulation in its history. Many of those comments criticized EPA for its foundational assumption that no new coal plants would be built and accused EPA of plotting the end of coal as an energy source. In response to these comments, EPA rescinded its proposed rule. In doing so, EPA explicitly recognized that its prior modeling did not consider that (a) since April 2012, some coal-fired units had reached advanced stages of construction and development; and (b) several utilities may need to build additional coal-fired units either due to higher than usual electricity demand and/or higher than expected natural gas prices. Thus, EPA proposed to set the NSPS for coal-fired plants at a higher emission limit than for natural gas EGUs, but required coal-fired plants to use of CCS to control their emissions.
Under § 111(b) of the Clean Air Act, EPA is required to set NSPS to limit emissions of "air pollutants" from stationary sources. NSPS are established based on "BSER" – the best system of emission reduction for the particular emission source. EPA already has issued NSPS for other pollutants emitted by power plants, but not for CO2, which was recognized by the U.S. Supreme Court as an "air pollutant" in Massachusetts v. EPA, 549 U.S. 497 (2007).
The new proposed rule recognizes that BSER is different for natural gas-fired electricity generating units than it is for coal-fired units. Thus, EPA set different NSPS based on different BSER for different types of EGUs. Specifically, for natural gas EGUs, EPA proposes to limit emissions to:
- 1,000 lb. CO2/MWh for units generating greater than 850 mm BTu/hr (large units)
- 1,100 lb CO2/MWh for smaller units
All new natural gas-fired units would need to use the most current natural gas combined cycle (NGCC) technology in order to meet this limit, but EPA recognized that, even with this technology, smaller NGCC units are less efficient. EPA specifically rejected requiring CCS for any NGCC units because the technology is not used or proven effective to control emissions from those units.
For fossil fueled-fired utility boilers and integrated gasification combined cycle (IGCC) units, which primarily use coal or other solid high-carbon feedstock, EPA proposed two alternative limits:
- 1,100 lb. CO2/MWh over a 12-operating month period; or
- 1,000 lb - 1,050 lb. CO2/MWh over an 84-operating month period.
EPA provides the choice of a lower limit, but longer compliance period in order to encourage CCS technological advances and allow start-up time for that new technology. To meet either of these numerical limits, a new unit would have to use CCS to capture some of its emissions. EPA rejected requiring full CCS because of its cost, putting the price of electricity at almost three times the cost of natural gas-fired units. However, EPA estimated that partial CCS would allow prices to be within the range of other non-natural gas-fired electricity generated options, such as nuclear, biomass, and geothermal.
EPA estimates that a coal-fired unit meeting the 1,100 lb. CO2/MWh standard would emit 30-50% less CO2 than a coal-fired unit without CCS. Anticipating that its choice of CCS, even on a partial basis, will be criticized as impermissibly imposing an infeasible technology, EPA noted that two IGCC projects currently use partial CCS and two others are in advanced stages of development. EPA also stated that almost all coal-fired EGUs in planning stages intend to implement CCS on some level.
Unlike the 2012 proposed rule, EPA is planning to apply its new rule to all new power plants in the planning phase which have not yet begun construction, except for perhaps one facility that is in an advanced stage of planning, but which is not designed to meet the new emission standard. The new rule would not apply to existing EGUs or those undergoing modification or reconstruction. The new rule also would not apply to EGUs that sell less than one-third of their power to the grid; are liquid oil-fired stationary combustion turbine EGUs; or do not burn any fossil fuels, such as those burning only biomass.
EPA will be receiving public comments on this proposal for 60 days after its publication in the Federal Register, but stated its intent to issue a final rule "in a timely manner," as directed by the President's June 2013 Climate Action Plan. In the same announcement of its proposed rule for new power plants, EPA reiterated its intent to issue proposed and final rules for existing power plants by June 1, 2014 and June 1, 2015, respectively.
On September 18, 2013, the House Committee on Energy and Commerce's Subcommittee on Energy and Power held a hearing on "The Obama Administration's Climate Change Policies and Activities" in response to the President's Climate Action Plan released on June 25, 2013. The Subcommittee, chaired by Congressman Ed Whitfield (R-Ky), had invited thirteen federal agencies to attend the hearing. Energy Secretary Ernest Moniz and EPA Administrator Gina McCarthy appeared to testify on behalf of the Administration.
In the majority's memorandum announcing the Subcommittee's hearing, its purpose was described as part of the subcommittee's oversight of federal agencies' work on the issue of climate change. As background, the memorandum noted that the federal government had been spending billions on climate change related issues each year since 1993. The memorandum emphasized, however, the Obama Administration's increased focus on the issue.
In prepared remarks, EPA Administrator McCarthy stated that, "Responding to climate change is an urgent public health, safety, national security, and environmental imperative that presents an economic challenge and an economic opportunity." She described the President's plan as directing federal agencies to cut carbon pollution in America, prepare for climate change impacts, and lead international efforts, all within "existing executive authorities." Administrator McCarthy described EPA's role in all three activities, but primarily focused on EPA's role in addressing carbon pollution. She highlighted EPA's role in developing vehicle GHG emission standards and for controlling emissions from new and existing power plants.
In Secretary Moniz's prepared remarks, he began by emphasizing that the scientific basis for the "drivers of climate change" and the likely expected impacts. In describing the Department of Energy's role in the President's Climate Action Plan, he described the role of various methods of energy production in reducing CO2 emissions. He focused in particular on the need for energy efficiency and the development of technologies for a "low-carbon future." The principal action his agency has taken in the short term is to issue a draft solicitation for $8 billion in loan guarantees for advanced fossil energy technologies. He also stated that coal continued to play "a key role in our energy mix," and that his agency sought to invest in advancements in clean coal technologies. He concluded by describing the President's plan as "an all-of-the-above approach to ensure that thisenergy is used wisely and cleanly in a low carbon economy…."
The questioning of Secretary Moniz and Administrator McCarthy by Congressional members of the Subcommittee included the following topics:
- The Administration's commitment to coal and nuclear power, both of which the Administration's representatives agreed played important roles in the country's energy future.
- The effect of the upcoming proposed New Source Performance Standards for new power plants and the future rules for existing plants. Administrator McCarthy refused to discuss any details of the proposed rule to be released two days later. Chairman Whitfield later said that the Subcommittee would hold a hearing on the new proposed rule soon after it was released.
- Whether there was scientific support for the anthropogenic source of climate change. Both Republicans and Democrats stated their con and pro positions and submitted competing studies into the record.
- The President's emphasis on pursuing climate change strategies within his executive authority, which Republicans found offensive to their legislative powers.
The day before the hearings began, Senate Minority Leader Mitch McConnell (R-Ky) introduced legislation to prevent EPA from issuing rules regulating CO2 emissions from power plants unless the rules were "explicitly authorized by an Act of Congress." (S. 1514) Unlike Congress's relatively quiet response to the Administration's first-term regulations of CO2 under the Clean Air Act, Congress now promises to respond earlier in the regulatory process to President Obama's use of executive power to address climate change.
Gabrielle Sigel, Co-Chair of Jenner & Block's Climate and Clean Technology Law Practice, has written a comprehensive review of climate change law during President Obama's first term: Climate Change Law in Review, 2009-2012: Obama's First Term Changes the Climate on Climate Change. The article explores the changes and challenges in climate change law that occurred over the last four years. Ms. Sigel analyzes the actions taken by President Obama's EPA, and other federal agencies, ground-breaking legal decisions in the courts, and attempts by Congress to address these issues. Ms. Sigel also explores U.S. participation in climate action in the international sphere. The article begins:
"At the close of Barack Obama's first term as President, he was criticized by many for having done little to address climate change and by others for having done too much. Regardless of whether one thought it too much or too little, between 2009 and 2012, there was significant new government action attempting to address the effects of climate change. Notably, this climate action came primarily out of the Executive Branch, using statutes previously passed by the Legislative Branch, and challenged and defended – typically successfully – in the Judicial Branch."
On December 20, 2012, the U.S. Court of Appeals for the D.C. Circuit voted to deny rehearing of a June 26, 2012 panel decision of that court, which had upheld a series of U.S. Environmental Protection Agency ("EPA") Clean Air Act regulations for control of greenhouse gas ("GHG") emissions from mobile and stationary sources. Coalition for Responsible Regulation v. EPA, No. 09-1322, U.S. Ct. App. D.C. Cir., on petition for rehearing en banc (12/20/2012). In a 6-2 decision, with two judges writing dissents, the D.C. Circuit court denied petitioners' request for rehearing. The statements of three D.C. Circuit judges supporting the panel's original decision and of the two judges who disagreed and voted to grant the rehearing provide a preview of the parties' arguments in opposition to and in favor of an appeal being heard by the U.S. Supreme Court, particularly with respect to EPA's permitting program for stationary sources.
In June 2012, a panel of the D.C. Circuit court had approved EPA's Clean Air Act ("CAA") GHG regulations. Coalition for Responsible Regulation v. EPA, No. 09-1322, U.S. Ct. App. D.C. Cir. (6/26/12). The case was before the court after several States, led by Virginia and Texas, and industry groups, including the U.S. Chamber of Commerce, had filed petitions with the appellate court in response to EPA's series of GHG regulations. Those regulations included EPA's finding that GHG emissions constitute a danger to public health and environment, regulation of emissions from mobile sources, and requiring permits for GHG emissions from stationary sources, limited to the largest sources of GHGs. The D.C. Circuit court panel of three judges upheld all of EPA's regulations in a unanimous per curiam decision. (Id.) (A more detailed explanation of the panel's decision can be found at the Corporate Environmental Lawyer blog entry, "Federal Appellate Court Gives U.S. EPA Greenhouse Gas Regulatory Victory," June 27, 2012.)
In response to the loss before the panel, several of the petitioners filed petitions with the D.C. Circuit court for rehearing en banc, i.e.,for a review of the case by all eight of the judges sitting on the D.C. Circuit court. Two judges voted to grant the en banc petitions and, in their statements supporting their dissent, they focused on EPA's regulation of stationary sources. The contested EPA regulations subjected GHG stationary source emissions to permitting under the CAA's Prevention of Significant Deterioration ("PSD") program for emission sources located in attainment areas. "Attainment" under the CAA applies to facilities that operate in areas of the U.S. whose ambient air conditions meet National Ambient Air Quality Standards ("NAAQS") for six regulated air pollutants. Even though GHGs are not a NAAQS-regulated pollutant, EPA interpreted the CAA requirements such that the PSD program applied to GHG emissions. Specifically, EPA interpreted the CAA's statutory trigger for PSD permitting - emission of "any regulated pollutant" - to apply to GHGs, not just NAAQS-regulated pollutants. Because the PSD program is triggered by emission levels that are relatively very low for GHG emissions (albeit relatively high when applied to emissions of NAAQS pollutants), EPA issued its Tailoring Rule, which modifies the CAA's statutory triggers for sources of GHG emissions. Under the Tailoring Rule, PSD requirements initially only apply to sources emitting GHGs of at least 75,000 or 100,000 tons per year ("tpy"), rather than the statutory levels of 100/250 tpy that are applied to the NAAQS pollutants. EPA justified its Tailoring Rule on three grounds: (1) implementing the CAA's tpy triggers for GHGs would lead to "absurd results" not intended by Congress; (2) the administrative burden that would otherwise be imposed; and (3) the agency's authority to implement statutory requirements over time. Rather than addressing the substance of EPA's bases for the Tailoring Rule, the Circuit Court held that neither industry nor State petitioners had standing to address the Tailoring Rule. Basically, the D.C. Circuit panel found that petitioners failed to show that the Tailoring Rule caused "injury in fact" or that vacating the rule would redress the injury.
The dissenting judges took issue primarily with the substance of EPA's decision to apply the PSD program to GHG emissions. In her statement dissenting from the denial of rehearing, Judge Brown began by lamenting the Supreme Court's 2007 decision, Massachusetts v. EPA, 549 U.S. 497 (2007), in which the Court decided that the CAA's regulation of pollutants from automobiles included GHGs, if EPA determined that such emissions endangered public health. Specifically, she "engages Massachusetts's interpretive shortcomings in the hope that either Court or Congress will restore order to the CAA." (Brown dissent, slip op. 2.) Judge Brown also explored her view that, even after Massachusetts, EPA is not entitled to apply the PSD program to GHG emissions. She notes that EPA itself recognized and promoted the "absurdity" of applying the CAA as written to GHG emissions, and finds that EPA does not have the power to "preempt legislative prerogatives", which repeatedly failed to regulate GHGs. (Id., 13.) She pronounced that "[t]he real absurdity is that this unprecedented expansion of regulatory control, this epic overreach, may very well do more damage to the well being of Americans than GHGs could ever do." (Id.) Judge Brown also relied on Supreme Court precedent under the "major questions" doctrine, Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000), to urge that administrative agencies should not receive deference "on questions of great significance more properly resolved by the legislature." (Id., 14.) Finally, Judge Brown took issue with the panel's decision on standing, finding that petitioners' standing in this case was no more speculative than the petitioners' standing that the Supreme Court recognized as sufficient in Massachusetts. Judge Brown concluded, "In denying rehearing en banc, this Court has read Massachusetts to its illogical ends and it is American industry that will have to pay. That this Court did so is unsurprising, but certainly not fated." (Id., 22-23.)
Judge Kavanaugh, in his dissent, noted that "[t]his case is plainly one of exceptional importance…[with] massive real-world consequences." (Kavanaugh dissent, slip op. 1.) He reviewed the CAA's language and found that the CAA's PSD language should more logically and appropriately be interpreted to mean that it applied only to NAAQS pollutants and not to GHGs. He noted that this more "straightforward" interpretation avoided the "absurdities" that lead to EPA's Tailoring Rule. (Id., 6, 17.) Judge Kavanaugh concluded by finding that EPA's regulation of GHGs under the PSD program put "the bedrock underpinning of our system of separation of powers…at stake." (Id., 18.) Because "EPA went well beyond what Congress authorized for the [PSD] statute", it is the court's duty to enforce the statutory boundaries and require EPA to read the CAA in a manner that avoids its application to GHGs from stationary sources. (Id., 21.)
In response to the dissents, three Circuit court judges (Sentelle, Tatel, and Rogers) issued a statement in support of the denial of the en banc petition. They rejected Judge Brown's view that Massachusetts did not envision the far-reaching consequences leading to control of GHG emissions from stationary sources. They also disagreed with Judge Kavanaugh's limit of the PSD program to NAAQS pollutants, stating that "the panel's interpretation of the statute is the only plausible one." (Order denying pet. for rehrg., slip op. 3.) They agreed, however, with Judge Kavanaugh that separation of powers is an important issue, but found that "Congress spoke clearly, EPA fulfilled its statutory responsibilities, and the panel, playing its limited role, gave effect to the statute's plain meaning." (Id., 4.)
All of the judges issuing opinions in response to the petitions for en banc rehearing were speaking to the Supreme Court, which will decide whether to grant the expected petition for permission to appeal to that Court. The petition for writ of certiorari before the Supreme Court must be filed within 90 days after entry of judgment in the Circuit court.
On December 19, 2012, the U.S. Court of Appeals for the Seventh Circuit issued a panel decision that clarifies the law within that Circuit on issues left unresolved after several U.S. Supreme Court's decisions interpreting certain provisions of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"). In Bernstein v. Bankert, No. 11-1501 (U.S. Ct. App. 7th Cir., Dec. 19, 2012), the appellate court addressed the rights of parties, who settle with U.S. EPA, to pursue non-settling parties for payment of their costs. The court's decision revived CERCLA causes of action that a lower court had ruled were barred under CERCLA's statutes of limitations.
The Bernstein plaintiffs are trustees of a fund that had been established to pay costs of complying with two Administrative Orders on Consent ("AOCs") that potentially responsible parties ("PRPs") had signed with U.S. EPA ‒ one in 1999 and one in 2002 ‒ to address contamination of a property in Indiana known as Third Site. At Third Site, prior to 1982, the now defunct Environmental Chemical and Conservation Company ("Enviro-Chem") had conducted waste handling and disposal activities. The 1999 AOC, which had been executed by both de minimis and other PRPs, required an environmental investigation and engineering analysis at the Site and payment of government costs. In October 2002, U.S. EPA approved the settling parties' activities under that first AOC. In November 2002, U.S. EPA issued a second AOC, this one requiring PRPs to pay for the removal action that EPA selected for the Site. Although several PRPs paid into the trust established to fund the requirements of both AOCs, the alleged former individual owners of the Site ("the Bankerts"), their corporate entity Enviro-Chem, and their insurers did not pay.
In 2008, while the removal action was still ongoing, the trustees filed a complaint against the Bankerts in the Southern District of Indiana seeking CERCLA § 9607 cost recovery, a declaration of CERCLA liability, cost recovery under Indiana's Environmental Legal Actions statute ("ELA"), and recovery under other state law claims. In response to the Bankerts' summary judgment motion, the trial court first found that the trustees could not bring a § 9607 cost recovery claim, only a § 9613(f) contribution claim, and granted the Bankerts' motion for summary judgment on statute of limitations grounds with respect to the federal and state law claims, mooting claims for declaratory judgment and against the insurers. The trustee plaintffs appealed.
The appellate court first addressed the lower court's decision that the trustees could only bring a § 9613(f) contribution claim, and not a § 9607 cost recovery claim, each of which claim has a different statute of limitations. The court provided an overview of CERCLA rights of action, including when they can be triggered. The court found that "under the plain terms of the statute": (1) a person who has been sued under §§ 9606 or 9607 can bring a § 9613(f)(1) contribution action; (2) a person who has resolved liability to the federal or state government for all or some of its costs of a response action can bring a § 9613(f)(3)(B) contribution action; and (3) a person who does not fit into the qualifications for a contribution action, but still has incurred recoverable costs, can bring a § 9607 cost recovery action. (Slip op. 18-19.) The court then analyzed the trustees' rights under each of the AOCs individually, an approach which neither side had taken in their arguments before the court.
Specifically, the court first focused on the 1999 AOC, which it determined that U.S. EPA had approved as completed in October 2000. Thus, the court determined, in October 2000, the settling PRPs had resolved their liability to the government because the government's release of and covenants not to sue the settling PRPs only applied once the work was approved and completed. Because the settling PRPs had resolved their liability to the government, they could bring a contribution action under § 9613(f)(3)(B). The court rejected plaintiffs' claim to a § 9607 cost recovery action, even though they had sustained "necessary costs of response," holding that a plaintiff "is limited to a contribution remedy when one is available." (Slip op. 27.) However, the court then found that plaintiffs' contribution action, filed in 2008, was barred under CERCLA's statutes of limitations. The court did not, however, definitively determine which such statute applied. The Bankerts argued that the statute began running when the AOC was executed in 1999, based on CERCLA § 9613(g)(3), which provides a 3-year period to file contribution action after the signing of a de minimis settlement agreement. Trustees accepted that argument with respect to de miminis parties' claims, but not with respect to the claims of other settling PRPs. The trustees argued that, because there is a "gap" in the statutory language with respect to non-de miminis parties' claims, the § 9613(g) statute of limitations applicable to § 9607 cost recovery actions should apply. The court found that under either approach, the statute had run prior to the 2008 court filing – either in 2002, 3 years after the AOC was signed, or in 2003, 3 years after the completion of the removal action required in the first AOC.
The court next found that because the work under the 2002 AOC was still continuing, plaintiffs had not yet triggered their release and covenant not to sue from the government. Because their liability to the government was not yet resolved, they could not bring a § 9613 contribution action. Because a contribution action was not available, and because they allegedly had incurred response costs, plaintiffs were able to bring a § 9607 cost recovery action. Because the removal action was not yet completed, the 3-year statute of limitations following the completion of a removal action had not yet begun to run. The court rejected the Bankerts' argument that those "compelled" to incur response costs could not recover under § 9607, finding that neither Supreme Court precedent nor other legal authority required that result. Therefore, plaintiffs could pursue a § 9607 cost recovery action and a declaratory judgment action for costs incurred under the 2002 AOC. The court noted, however, that plaintiffs may not be able to impose joint and several liability because, based on the Supreme Court's decision in Burlington N. and Santa Fe Ry. Co. v. U.S., 556 U.S. 599 (2009), the Bankerts may be able to show a "reasonable basis for apportionment" of their liability. (Slip op. 37.)
The appellate court also found that Indiana's 10-year catch-all statute of limitations applied to the ELA claim and that the statute applies separately to each of the separate AOCs, because each had a separate obligation to pay and, hence, a separate "injury" for statute of limitations purposes, even though both AOCs, as well as prior orders issued by U.S. EPA, pertain to the same Site. In reaching this conclusion, the court rejected the Bankerts' request to certify questions about the state statute of limitations to the Indiana Supreme Court for decision.
Finally, the court found that the Bankerts' insurer was not entitled to summary judgment with respect to its coverge obligations for the Third Site. The insurer previously had won a defense to coverage with respect to a different Enviro-Chem site, and had sought to bar coverage here on claim preclusion or issue preclusion grounds. The court found that the facts concerning the Third Site were distinct so that the trial court needed to separately consider the insurer's coverage obligations at that site.
The Bernstein decision resulted in several important CERCLA and related holdings that, unless modified upon rehearing or en banc or by the Supreme Court, will govern environmental litigation within the Seventh Circuit. Those holdings include:
- A PRP who qualifies for a CERCLA § 9613(f) contribution action must use that cause of action to recover costs from other PRPs, and cannot use a CERCLA § 9607 cost recovery action.
- Each government settlement agreement at a single site invokes a distinct payment obligation, each of which can be the basis for a CERCLA cause of action and, therefore, a new running of the applicable statute of limitations.
- A PRP's right to bring a CERCLA § 9613(f)(3)(B) contribution action in response to its settlement with the government is not triggered unless and until the government issues a final release of the PRP's liability, typically upon acceptance of all work under the settlement agreement. Until that time, a PRP seeking to recover costs of response can only proceed under § 9607.
- A PRP who executed a settlement with the government and who was "compelled" to pay response costs is entitled to proceed under § 9607; however, that plaintiff PRP will not be able to impose joint and several liability if the defendant PRPR can prove a reasonable basis for apportioning liability.
On June 26, 2012, the U.S. Court of Appeals for the District of Columbia Circuit handed the Obama Administration's Environmental Protection Agency a significant victory in its attempts to regulate greenhouse gases ("GHGs") under the Clean Air Act ("CAA"). Coalition for Responsible Regulation v. EPA, No. 09-1322, U.S. Ct. App. D.C. Cir. (6/26/12). Several States, led by Virginia and Texas, and industry groups had petitioned the Circuit Court in response to EPA's series of regulations, beginning in 2009, that implemented CAA provisions with respect to GHGs. Those regulations included control of GHG emissions from vehicles, as well as from stationary sources. EPA's regulatory approach is highly controversial, particularly because it used non-statutory reasons to justify its approach to regulating GHGs from stationary sources. The Circuit Court upheld all of EPA's regulations in a unanimous per curiam decision.
The Occupational Safety and Health Administration ("OSHA") has issued its first official directive regarding OSHA's communications with a deceased worker's family after the occurrence of a workplace fatality. OSHA Directive No. CP: 02-00-153, effective April 17, 2012. The Directive provides guidance, not regulations, on how OSHA will communicate with the family from the point that OSHA begins its investigation of the accident through potential settlement of any citation that may be issued relating to the fatality. The Directive imposes obligations on OSHA personnel, not on an employer, but employers would be well-advised to be aware that OSHA will be initiating these ongoing communications.
The U.S. Court of Appeals for the Second Circuit has issued a mandate to the U.S. District Court for the Southern District of New York, requiring the lower court to determine whether contamination from the collapse of the World Trade Center buildings are subject to the "act of war" affirmative defense from liability under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601, et seq. ("CERCLA"). In re Sept. 11th Litigation: Cedar & Washington Assoc. LLC v. Port Authority of New York and New Jersey, No. 10-CV-9197 (U.S. Dist. Ct. S.D. N.Y. May 23, 2012).
The federal Occupational Safety and Health Review Commission ("OSHRC") recently clarified who can qualify as a "company executive" authorized to certify the accuracy of a company's annual summary of workplace injuries and illnesses. Secretary of Labor v. C.P. Buckner Steel Erection Inc., No. 10-1021, OSHRC, Apr. 25, 2012. The annual summary is required by regulations under the Occupational Safety & Health Act, 29 CFR 1904.32.