California Federal District Court Grants Preliminary Injunction in Proposition 65 Acrylamide Case

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BSteven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice Prop65

 

On the heels of a 2020 decision in National Association of Wheat Growers, et al. v. Becerra that barred the State of California from requiring Proposition 65 warnings for glyphosate-based pesticides because those warnings violated the First Amendment, another California District Court has thrown up a First Amendment roadblock for Proposition 65 claims relating to acrylamide in food and beverage products.  As explained in more detail below, on March 29, 2021, the District Court granted a preliminary injunction in favor of the California Chamber of Commerce (Chamber) barring future State and private party Proposition 65 lawsuits alleging a  failure to warn of acrylamide in food and beverage products. 

The Chamber filed its lawsuit in October 2019 alleging that because the State did not “know” that eating food with acrylamide causes cancer in people, Proposition 65 violated the First Amendment because it mandated that businesses place warnings on food and beverage products stating that acrylamide is known to the State to cause cancer.  The Council for Education and Research on Toxics (CERT)--a nonprofit organization that frequently files private party Proposition 65 lawsuits--intervened in the matter. 

The Chamber requested a preliminary injunction  to bar the State and any private litigant from filing new lawsuits to enforce Proposition 65 against businesses that do not warn consumers that acrylamide in food is “known to the State of California to cause cancer”.  Both the State and CERT opposed the request for a preliminary injunction, arguing that the Chamber had not met its burden.  CERT also argued that the preliminary injunction would be an unconstitutional prior restraint on its First Amendment right to bring Proposition 65 enforcement claims. 

The Court quickly dismissed CERT’s unconstitutional restraint argument noting that if the Chamber is correct that Proposition 65 lawsuits targeting acrylamide are violative of the First Amendment, then the lawsuit has an illegal objective and therefore can be enjoined without violating the First Amendment.  In considering whether the Chamber was likely to succeed on the merits of the complaint, the Court then proceeded to examine the Proposition 65 safe harbor warning which states as follows:  “Consuming this product can expose you to [acrylamide], which is … known to the State of California to cause cancer.”     After examining the scientific evidence presented to the Court, the Court found that the State had not shown that this warning was purely factual and uncontroversial. 

Although the Court acknowledged that high exposure animal studies showed an increased incidence of cancer, dozens of epidemiological studies had failed to tie human cancer to a diet of food containing acrylamide.  After considering the competing expert testimony, the Court concluded that the “safe harbor warning is controversial because it elevates one side of a legitimately unresolved scientific debate about whether eating goods and drinks containing acrylamide increases risk of cancer.”  The Court recognized California’s substantial government interest in protecting the health and safety of consumers but concluded that at this stage of the litigation, the Chamber had shown that the Proposition 65 warning that the State demands does not directly advance that interest and is more extensive than necessary. 

Finally, in evaluating whether the Chamber had demonstrated that it would suffer irreparable harm, the Court acknowledged the significant increase in Proposition 65 acrylamide pre-litigation notices and lawsuits over the past several years.  As the Court noted, irreparable harm is relatively easy to establish in a First Amendment case like this and this burden was met by the Chamber.   As such, the Court granted the Chamber's request for a preliminary injunction.  

Again, it is important to note that this is just a preliminary injunction that bars future State and private party Proposition 65 acrylamide lawsuits while the case proceeds on the merits.  However, this decision, along with the 2020 Wheat Growers decision noted above, may evidence a willingness on the part of California courts to give serious credence to First Amendment challenges to Proposition 65 warning requirements and may represent a light at the end of the Proposition 65 tunnel for entities that sell food and beverage products in California (and this time, it may not be the light from a train). 

 


Congressional Review Act Resolution Introduced to Revoke EPA Methane Rule—Does this Open the CRA Floodgates?

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

PipelineOn March 25, 2021, Democrats in the Senate and House of Representatives introduced joint resolutions pursuant to the Congressional Review Act (CRA) that if approved by Congress and signed by President Biden would rescind the Trump-era rollback of Obama-era regulations that (1) imposed methane-specific emission limits on “production and processing” segments of the oil and gas industry and (2) required that transmission lines and storage equipment be inspected for methane leaks and repaired in a timely manner in accordance with the New Source Performance Standards for the Oil and Natural Gas Industry.  The CRA resolution, if approved by Congress and signed by President Biden, would reinstate these Obama-era regulations for the oil and gas industry.

The CRA, which was enacted in 1996, is a tool that allows Congress to disapprove a range of regulatory rules issued by federal agencies by first approving a joint resolution of disapproval that then goes to the President for signature. If signed by the President, the disapproved rule either does not take effect or does not continue.  In addition, once a joint resolution of disapproval is enacted, the CRA provides that a new rule may not be issued in “substantially the same form” as the disapproved rule.  Congress has a limited window to act—the CRA requires that a joint resolution of disapproval must be introduced within 60 legislative working days of the date that the rule was submitted to Congress.

The CRA had not been widely used prior to the Trump administration and the Democrats had widely criticized President Trump's prior use of the CRA to rescind Obama-era regulations.  As such, there had been some uncertainty as to whether the Democrats would embrace this tool in light of their prior opposition and hostility to the use of the CRA by many environmental groups.  However, with this joint resolution and another March 23rd CRA resolution to disapprove of the Equal Employment Opportunity Commission’s conciliation rule, the CRA floodgates may have opened.  The resulting deluge will likely be of short duration, however, as the window for CRA disapprovals for Trump-era actions is expected to close on April 4th

EPA Finalizes Revised Cross-State Air Pollution Rule Update: Emissions Reductions Required at Certain Power Plants Beginning in May

Torrence_jpgBy Allison A. Torrence

Pexels-pixabay-257775On March 15, 2021, EPA finalized the Revised Cross-State Air Pollution Rule (“CSAPR”) Update for the 2008 ozone National Ambient Air Quality Standards (“NAAQS”). This final rule is issued pursuant to the “good neighbor provision” of the Clean Air Act and in response to  the D.C. Circuit’s remand of the previous version of the CSAPR Update in Wisconsin v. EPA on September 13, 2019. The previous version of the CSAPR Update was issued in October 2016, and was found to be unlawful because it allowed certain states to continue their significant contributions to downwind ozone problems beyond the statutory dates by which the downwind states were required to be in compliance with the NAAQS. The Revised CSAPR Update attempts to address the deficiencies identified by the D.C. Circuit.

Beginning in the 2021 ozone season (the ozone season is May 1 through September 30), the Revised CSAPR Update will require additional emissions reductions of nitrogen oxides (“NOX”) from power plants in 12 states: Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia. EPA determined that additional emissions reductions were necessary in these 12 states because projected 2021 ozone season NOX emissions from these states were found to significantly contribute to downwind states’ nonattainment and/or maintenance problems for the 2008 ozone NAAQS. NOX is an ozone precursor, which can react with other ozone precursors in the atmosphere to create ground-level ozone pollution (a/k/a smog). These pollutants can travel great distances, often crossing state lines and making it difficult for downwind states to meet or maintain the ozone NAAQS.

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Where is OSHA’s COVID-19 ETS? No Where the Ides of March.

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

Covid-19

On his first full day in office, President Biden issued an Executive Order on Protecting Worker Health and Safety, which required OSHA to “consider whether any emergency temporary standards on COVID‑19, including with respect to masks in the workplace, are necessary,” and if so, to issue such emergency temporary standards (ETS) by March 15, 2021. Executive Order 13999, § 2(b) (Jan. 21, 2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that employees are exposed to “grave danger” and that an emergency standard is “necessary” to protect them from the grave danger. 29 USC § 655(c).

March 15, 2021 came and went; no ETS was issued. As of this writing, OSHA has not made a public statement as to why it did not issue an ETS on March 15, or the agency’s considerations and future plans regarding an ETS. Why might OSHA have chosen not to act now? What has OSHA done instead? What ETS might be on the horizon?

Why Might OSHA Have Decided Not to Issue an ETS Now?

There is considerable legal risk that a COVID-19 ETS will not hold up in court. OSHA has not successfully issued an ETS since 1978. Its last attempt to issue an ETS would have regulated asbestos exposure and was invalidated by the US Court of Appeals in 1984. In Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984), the court rejected the ETS because OSHA did not  sufficiently support its conclusion of a “grave danger,” i.e., that 80 people would die in the next six months without the ETS and that OSHA could not show that an asbestos ETS was “necessary” given its existing respiratory standard.

As an additional legal hurdle, OSHA, in the last administration, has already gone on record that an ETS is unnecessary, and won that position in federal court. On June 11, 2020, the US Court of Appeals for the D.C. Circuit denied the AFL-CIO’s petition for a writ of mandamus to compel OSHA to issue an ETS for Infectious Diseases. The three-judge panel found that “OSHA reasonably determined that an ETS is not necessary at this time” given the “unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments, see 29 U.S.C. § 654(a).” The panel held that “OSHA’s decision not to issue an ETS is entitled to considerable deference.”

Continue reading "Where is OSHA’s COVID-19 ETS? No Where the Ides of March." »


OSHA Issues Immediately Effective COVID-19 National Enforcement Program and Updated Enforcement Guidance: No ETS Yet

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

Covid-19

On March 12, 2021, OSHA took two significant new actions to enhance its enforcement actions regarding COVID-19 workplace safety: (1) establishing the National Emphasis Program – COVID-19 (the NEP) targeting higher hazard industries for OSHA enforcement action; and (2) updating and replacing its former Interim Enforcement Response Plan for COVID-19 (the Enforcement Plan) to prioritize in-person worksite inspections by OSHA Compliance Safety and Health Officers (CSHO). This action is in response to President Biden’s January 21, 2021 Executive Order on Protecting Worker Health and Safety, in which he directed OSHA to “launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles.” Executive Order (EO) No. 13999, § 2(d), 86 FR 7211 (Jan. 26, 2021). Although the Executive Order (§ 2(b)) also required OSHA to consider whether to issue a COVID-19 Emergency Temporary Standard (ETS), and to do so by March 15, 2021 if determined necessary, these two new OSHA policy documents are not an ETS. Instead, OSHA has buried in the text of both the NEP and the Enforcement Plan that “in the event that” OSHA issues an ETS, the ETS will be used instead of a General Duty Clause violation as the basis for citations with respect to COVID-19 safety violations, which will be enforced through the new NEP and Enforcement Plan.

A National Emphasis Program is an OSHA enforcement policy procedure, developed in accordance with OSHA’s Directives System, through which OSHA decides how it is selecting sites for enforcement initiatives. An OSHA enforcement response plan informs CSHO how to conduct their enforcement activities, whether in regard to an NEP, a particular hazard, or otherwise. In this case, the NEP and the Enforcement Plan together tell employers the categories of workplaces and the types of enforcement procedures that are OSHA’s highest COVID-19 safety priorities.

In the NEP, OSHA is targeting those specified industries whose workers “have increased potential exposure to [a COVID-19] hazard, and that puts the largest number of workers at serious risk.” NEP, p. 1. The NEP also focuses on making sure that “workers are protected from retaliation,” including by referring allegations of retaliation to OSHA’s Whistleblower Protection Program. Id. OSHA makes clear that its NEP is to “augment” its continuing enforcement actions at all workplaces where it receives a complaint, severe incident report, or referral involving COVID-19 safety issues.

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Centers for Disease Control and Prevention Releases Updated Public Health Guidelines for Vaccinated Individuals, Including Recommendations for the Workplace

HeadshotBy Matthew G. Lawson CDC


On Monday, March 8, 2021, the Centers for Disease and Control and Prevention (CDC) released its first set of public health recommendations for individuals fully vaccinated against COVID-19, titled “Interim Public Health Recommendations for Fully Vaccinated People.”  The CDC’s newly published guidelines are intended to replace the CDC’s existing public health guidance specifically for those individuals fully vaccinated for COVID-19.  By “fully vaccinated”, CDC means ≥2 weeks after an individual has received the second dose in a 2-dose series (Pfizer-BioNTech or Moderna), or ≥2 weeks after an individual has received a single-dose vaccine (Johnson and Johnson [J&J]/Janssen).  The updated guidance includes specific recommendations for vaccinated individuals in the non-healthcare workplace, public spaces and private and/or family settings.  While the CDC guidance is only intended to provide recommended best practices, it is anticipated that the CDC’s newest guidance will be relied on by states, municipalities, school systems, and private employers as these entities continue to update and implement their own respective health guidance and COVID-19 policies and protocols. 

        According to the updated guidelines, vaccinated persons can now engage in a number of new activities, including:

  • Visiting with other fully vaccinated people indoors without wearing masks or physical distancing;
  • Visiting with unvaccinated people from a single household who are at low risk for severe COVID-19 disease indoors without wearing masks or physical distancing; and
  • Refraining from quarantine and testing following a known exposure to COVID-19 if asymptomatic.

Notably, the new guidelines leave in place many of CDC’s existing recommendations for both vaccinated and non-vaccinated individuals.  For example, the CDC recommends that fully vaccinated individuals continue to wear a mask in public, physical distance, avoid crowds and avoid poorly ventilated spaces.  In addition, the CDC is continuing to recommend that vaccinated individuals delay domestic and international travel, and, if they do travel, continue to follow all CDC requirements and recommendations when doing so.

        CDC’s guidelines for vaccinated individuals include a number of implications for private employers.  In the context of non-healthcare workplaces, the CDC is now recommending that fully vaccinated employees do not need to quarantine following a known or suspected exposure to COVID-19 in the workplace unless that the vaccinated individual develops “COVID-like symptoms.”  However, the guidelines still recommend that vaccinated persons receive testing “through routine workplace screening programs” following an exposure to COVID-19.  Notably, CDC’s no quarantine recommendation does not extend to vaccinated employees working in congregate settings or other high-density workplaces (e.g., meat and poultry processing and manufacturing plants), and as a result vaccinated employees in congregate work environments should continue to adhere to the quarantine requirements following exposure.  Employers should therefore evaluate their respective work environment to determine the appropriate quarantine procedures for employees who have received a vaccine.  Under the guidelines, vaccinated individuals also need to comply with any existing COVID-19 health and safety rules issued by their employer.  Thus, an employee’s vaccination status should not allow the employee to avoid his or her workplaces’ COVID-19 policies and procedures.  Finally, CDC’s new guidelines do not update the CDC’s prior recommendation (issued December 30, 2020) regarding business travel.  The CDC is continuing to recommend that employers “minimize non-essential travel” for all employees and, if resuming non-essential travel, ensure their employees continue to follow all state and local COVID-19 regulations and guidance regardless of their vaccination status.

       In the accompanying scientific brief to its newly released guidance, the CDC cites to existing studies demonstrating the highly effective nature of the approved mRNA COVID-19 vaccines against SARS-CoV-2 infection (including both symptomatic and asymptomatic infections).  Despite early evidence of the effectiveness of the approved vaccines, the CDC noted that only “approximately two-thirds of U.S. adults state that they [are] at least somewhat likely to receive a COVID-19 vaccine (or had received one already).”  Because maintaining requirements to continue COVID-19 prevention measures after vaccination “may disincentive vaccine uptake,” the CDC explained that its new guidance intends to communicate additional advantages, to the individual and the community, from vaccination.  The CDC advised that its guidance for vaccinated individuals will continue to be updated and modified “based on the level of community spread of SARS-CoV-2, the proportion of the population that is fully vaccinated, and the rapidly evolving science on COVID-19 vaccines.” 


10th Circuit Lifts Injunction in Colorado Challenge of Trump Waters of the United States Rule

Torrence_jpgBy Allison A. Torrence

Pexels-omer-havivi-4084714On March 2, 2021, the Tenth Circuit Court of Appeals reversed a ruling from the United States District Court for the District of Colorado in the case of Colorado v. EPA, et al., Nos. 20-1238, 20-1262, and 20-1263, that had issued a preliminary injunction blocking implementation of the Trump Administration’s Navigable Waters Protection Rule (“NWPR”) in the State of Colorado. Under the Tenth Circuit ruling, the NWPR was put back into force, and the State of Colorado’s case was remanded back to district court for further proceedings challenging the rule.

The NWPR is the latest attempt by EPA and the Army Corps of Engineers to define “Waters of the United States” and thereby define the jurisdiction of the Clean Water Act. The agencies have been grappling with this definition for nearly 50 years, and have faced nearly constant legal challenges along the way. In 2017, the Trump Administration rescinded the definition that had been promulgated under the Obama Administration, and in 2020, offered up its own definition in the NWPR. The NWPR narrows the definition of “Waters of the United States” from past definitions–notably by excluding certain wetlands and ephemeral streams from the definition and thus excluding them from the jurisdiction of the Clean Water Act.

A number of lawsuits were filed challenging the NWPR, including Colorado v.  EPA. The Colorado case was significant because Colorado sought, and was granted, a preliminary injunction blocking implementation of the NWPR in the State of Colorado. The State had argued that by reducing the reach of the Clean Water Act, the NWPR caused irreparable injury to the State because Colorado would be forced to undertake additional enforcement actions in place of the federal government to protect the quality of its waterways. While the district court had found this to be sufficient injury to support the State’s preliminary injunction, the Tenth Circuit found that it was too speculative and uncertain. Thus, the preliminary injunction was rejected and reversed because the State of Colorado could not show irreparable injury. Notably, the Tenth Circuit did not address the merits of the State’s challenge to the NWPR.

Additionally, prior to the Tenth Circuit’s ruling, EPA and the Army Corps of Engineers had requested the court hold the appeal in abeyance for 60 days in light of the new leadership at the agencies following the election of President Biden. The court denied the request and issued its ruling lifting the preliminary injunction the following day. The Biden Administration has indicated it is reviewing the NWPR and may want to make changes to broaden the definition of “Waters of the United States” once again. If that is the case, the agencies may look to settle the Colorado case and other similar litigation with a promise of changes to come. The Corporate Environmental Lawyer Blog will monitor and report on these matters as they develop.

OSHA under Deadline for a Nationwide COVID 19 Workplace Safety Rule: Four States’ Existing Laws and New Federal Guidance and Orders Foretell the Future

Sigel

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

Covid-19

On his first full day in office, President Biden issued an Executive Order on Protecting Worker Health and Safety, which required OSHA to “consider whether any emergency temporary standards on COVID‑19, including with respect to masks in the workplace, are necessary,” and if so, to issue such emergency temporary standards (ETS) by March 15, 2021. Executive Order 13999, § 2(b) (Jan. 21, 2021), 86 FR 7211 (Jan. 26, 2021). An ETS, which skips the initial notice and comment process before it is in effect, can be issued pursuant to Section 6(c) of the OSH Act if OSHA determines that employees are exposed to “grave danger” and that an emergency standard is necessary to protect them from the grave danger. 29 U.S.C. § 655(c).

Putting aside that OSHA has not successfully issued an ETS since 1978, including that the last attempt to issue an ETS, regulating asbestos exposure, was invalidated by the US Court of Appeals in 1984,[1] OSHA now has several models for a COVID‑19 ETS from which it may draw. Specifically, California, Michigan, Oregon, and Virginia are among the 22 states and territories that administer and enforce their own state-plan OSHA, rather than rely solely on federal standards and enforcement.[2] These four states have developed their own COVID‑19 safety regulations that apply to most, if not all, workplaces in their respective states, and have both distinctive features and commonalities. Employers would be well-advised to be aware of each of the states’ specific standards, not only to comply with regulatory requirements in that state, but to consider whether their workplace is ready for potential, nationwide regulations which may incorporate elements of these states’ approaches.

With OSHA under a Presidential deadline to issue a nationwide COVID-19 safety regulation, we review the current status of OSHA guidance; describe the basic elements of the four states’ regulations; and look at recent federal orders by other agencies to anticipate what employers nationwide may soon be facing.

US OSHA: COVID‑19 Regulation and Guidance in the Prior Administration

Continue reading "OSHA under Deadline for a Nationwide COVID 19 Workplace Safety Rule: Four States’ Existing Laws and New Federal Guidance and Orders Foretell the Future" »


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

HeadshotBy Matthew G. Lawson CEQ


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

Background

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

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

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

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

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

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

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

Sigel

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

Covid-19

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

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

Continue reading "Virginia’s COVID-19 Workplace Safety Regulation Is Permanent: A National Model" »


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

Sigel

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

Covid-19

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

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

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

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


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

Sigel

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

Covid-19

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

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

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

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

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

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


OSHA Issues Proposed Update to Hazard Communication Standard

HeadshotBy Matthew G. Lawson Osha

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

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

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

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

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

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

DOJ Rescinds Nine Trump Environmental Policies

Linkedin_Steven_Siros_3130

US Department of Justice

 

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

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

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

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

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

The Biden Effect: What to Expect from the New Administration’s Environmental Agenda--January 27th--1-2 pm CST

Transition Time

A Jenner & Block Series
The Biden Effect:  What to Expect from the New Administration’s Environmental Agenda

A key component of the Biden platform has been the promised rollback of many of the Trump administration’s environmental policies and a different future for environmental regulation. Please join us for a discussion of what to expect from the new Biden administration on environmental issues facing the regulated community. Topics to be discussed include: 

  • Procedural Mechanisms for Implementing Biden Administration Priorities
  • Clean Air Act 
  • Climate Change
  • TSCA
  • Safe Drinking Water Act
  • Clean Water Act 
  • RCRA and CERCLA 
  • NEPA & Endangered Species Act 

Presenters:
Steven Siros, Partner, chair of the Environmental Litigation Practice and co-chair of the Environmental Workplace Health and Safety Practice
Gay Sigel, Partner, co-chair of the Environmental and Workplace Health and Safety Law Practice and of the Climate and Clean Technology Law Practice
Allison Torrence, Partner
Andi Samuels Kenney, Of Counsel
Matt Lawson, Associate
Leah Song, Associate


Wednesday, January 27, 2021

2:00 – 3:00 pm EST / 1:00 – 2:00 pm CST / 11:00 am – 12:00 pm PST

  Click here to register  

 

Jenner & Block has been certified by the State Bar of California, the MCLE Board of the Supreme Court of Illinois and the New York State Continuing Legal Education Board as an accredited CLE provider.  The following CLE credit is being sought:  

  • California: 1.00 Credit (1.00 General, 0.0 Ethics)
  • Illinois: 1.00 Credit (1.00 General, 0.0 Professional Responsibility)
  • New York: 1.00 Transitional & Non-Transitional Credit (1.00 Professional Practice, 0.0 Ethics)

Please contact cletraining@jenner.com with any CLE related questions.

image from sites-jenner.vuturevx.com


U.S. EPA Issues Final Guidance on PFAS SNUR

Linkedin_Steven_Siros_3130 EpaBy Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice

On January 19, 2021, four days after the close of the comment period, U.S. EPA issued its final guidance document to aid in implementation of its Significant New Use Rule (SNUR) for long-chain perfluoroalkyl carboxylate and perfluoroalkyl sulfonate chemical substances (PFAS). Not surprisingly, in light of the short time between the close of comments and issuance of the guidance, the final guidance remained largely unchanged from the draft version. 

In July 2020, U.S. EPA finalized its PFAS SNUR that requires notice and U.S. EPA review before manufacturing and processing for use certain long-chain PFAS that have been phased out in the United States. In addition, articles containing these long-chain PFAS as part of a surface coating cannot be imported into the United States without submission of a Significant New Use Notice (SNUN).

The guidance provides examples of what would and would not be articles subject to the SNUR as well as clarification on what is meant as a “surface coatings.” Although U.S. EPA declined to provide a regulatory definition of “surface coating” in the PFAS SNUR, the guidance indicates that any long-chain PFAS meeting one of the following two criteria would be a surface coating covered by the SNUR:

  • Coating on any surface of an article that is in direct contact with humans or the environment during the article’s normal use or reuse, whether the coating is oriented towards the interior or exterior of the article; or
  • Coating on any internal component, even if facing the interior of the article, if that component is in contact with humans or the environment during the article’s normal use or reuse.

Many environmental groups noted that the “direct contact” standard and the refusal to consider potential exposures associated with the disposal and/or misuse of these articles was contrary to the provisions of the PFAS SNUR and these groups are urging the Biden Administration to revisit the guidance. Because the new guidance is not labeled as “significant”, it did not need to follow the formal notice-and-comment process but this would also arguably allow the incoming Biden administration to quickly rework and issue its own guidance for implementing the PFAS SNUR. 

We will continue to provide updates on efforts by the Biden Administration to implement the PFAS SNUR on the Corporate Environmental Lawyer blog.

EPA Issues New Guidance on Disposal and Destruction Methods for PFAS Waste

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By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice

Foam

On December 18, 2020, U.S. EPA issued its long awaited draft interim guidance on disposal and destruction methods for per- and polyfluoroalkyl substances (PFAS).  The guidance, which U.S. EPA was required to issue pursuant to the National Defense Authorization Act for Fiscal Year 2020, discusses three disposal/destruction technologies—thermal treatment, landfilling and underground injection. 

In discussing these technologies, the guidance acknowledges that it does not address what concentrations of PFAS in wastes, spent products, or other materials or media would necessitate destruction or disposal, noting that other regulatory mechanisms or risk based guidance are more appropriate for establishing such concentrations.  Instead, the guidance is intended to provide information and suggested considerations to assist in evaluating destruction and disposal options for PFAS waste. 

The guidance does not endorse any single technology—rather, the guidance generally discusses the following technologies in order of lower to higher uncertainty in terms of the ability to control the migration of PFAS into the environment during the disposal/destruction process. 

  • Interim Storage.  Acknowledging that this is not a destruction or disposal method, the guidance notes that interim storage may be an option if the immediate destruction of the PFAS materials is not necessary.  Interim storage (from two to five years) could be relied upon while research continues to minimize uncertainties associated with the other options. 
  • Permitted Deep Well Injection (Class I).  Underground injection would be limited to liquid-phase waste streams.  However, the guidance notes that there are a limited number of wells and logistical issues could limit the practicability of this option.

  • Permitted Hazardous Waste Landfills (RCRA Subtitle C).  The guidance notes that RCRA Subtitle C landfills have the most stringent environmental controls in place and therefore have a higher potential to prevent the migration of PFAS into the environment.
  • Solid Waste Landfills (RCRA Subtitle D) with Composite Liners and Leachate Collection.  These landfills can only receive non-hazardous wastes and therefore have less stringent environmental controls that vary from state to state.

  • Hazardous Waste Combustors. These consist of commercial incinerators and cement/aggregate kilns that can achieve temperatures and residence times sufficient to break apart the PFAS.  However, the guidance notes that emissions from these combustion sources haven’t been adequately characterized to confirm that the PFAS compounds are in fact destroyed.

  • Other Thermal Treatment.  These consist of carbon reactivation units, sewage sludge incinerators, municipal waste combustors, and thermal oxidizers.  However, the same uncertainties that were referenced in the previous bullet would also apply to these technologies.

The appropriate methodology for dealing with PFAS waste has been subject to controversy with environmental groups such as Sierra Club suing the Department of Defense (DoD) in an effort to prevent DoD from incinerating its stockpile of PFAS-based firefighting foams.  Although U.S. EPA set a 60-day comment period on the interim guidance, U.S EPA could certainly elect to delay issuance of any final guidance to give the new Biden Administration an opportunity to put its imprint on the guidance )especially considering the emphasis that the new administration has placed on PFAS).

We will continue to track this guidance as well other PFAS-related issues on the Corporate Environmental Lawyer blog.


EPA Retains Existing Air Quality Standards for Particulate Matter

Torrence_jpgBy Allison A. Torrence

On December 7, 2020, EPA completed its five-year review of the National Ambient Air Quality Standards (“NAAQS”) for Particulate Matter (“PM”), a criteria air pollutant under the Clean Air Act. In a final action set to be published in the Federal Register in the coming days, EPA decided to retain the current NAAQS for PM, which have been in place since 2012.

PM is measured in two categories:

  1. Fine particles, or PM2.5, which are particles with a diameter of 2.5 micrometers and smaller; and
  2. Coarse particles, or PM10, which are particles with a diameters between 2.5 and 10 micrometers.

PM2.5, emitted from numerous sources including power plants, vehicle exhaust, and fires, is generally the more significant health concern, as it has been linked to serious respiratory disease, increased mortality rates, and recent studies have even linked a history of PM2.5 exposure to increased COVID-19 mortality rates.

The Clean Air Act requires EPA to set both primary and secondary NAAQS for PM2.5 and PM10. Primary NAAQS must be set at levels that will protect public health and secondary NAAQS must be set at levels that will protect public welfare. All NAAQS must be reviewed by EPA every five years. EPA has regulated PM emissions through the NAAQS since 1971, and revised the PM NAAQS four times since then—in 1987,1997, 2006 and 2012.

The current primary and secondary NAAQS for PM are as follows:

PM NAAQS
According to EPA data, there are currently 16 counties in the U.S. currently in nonattainment of the primary PM2.5 NAAQS and 23 counties currently in nonattainment of the primary PM10 NAAQS.

EPA’s decision to keep the existing PM NAAQS comes despite warnings from its own scientists. Notably, in the Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter, one of the technical documents used by EPA in support of its final decision, EPA scientists concluded that:

“When taken together, we reach the conclusion that the available scientific evidence, air quality analyses, and the risk assessment…can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards.”

This Policy Assessment also states that under the current PM2.5 standards, long-term PM2.5 exposures are estimated to be associated with as many as 45,000 total deaths per year. However, the Policy Assessment also noted certain uncertainties and limitations in the evidence and risk assessments that could lead the agency to decide to keep the existing standards.

EPA received over 60,000 public comments on the PM NAAQS proposal, which was closely watched by environmentalists and industry alike. Because of this close public interest, this may be an issue that will be reviewed sooner than the normal five-year review once the Biden Administration begins in 2021. As always, we will keep you updated on any further developments at the Corporate Environmental Lawyer.


DOE Final Rule Seeks to Streamline NEPA Review of LNG Projects

Linkedin_Steven_Siros_3130

By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice

LNG_tanker_ship ela.govThe Trump administration continues its efforts to issue new regulations in advance of January 20, 2021, with the Department of Energy (DOE) issuing a final rule that will exempt certain liquefied natural gas (LNG) projects from National Environmental Protection Act (NEPA) review.  The final rule, published in the Federal Register on December 4, updates DOE’s NEPA implementing procedures with respect to authorizations issued under the Natural Gas Act in accordance with the recent revisions to the NEPA regulations as further described below.

According to DOE, the focus of the new rule is to clarify the scope of DOE’s NEPA obligations with respect to LNG projects and more specifically, to eliminate from the scope of DOE’s NEPA review potential environmental effects that the agency has no authority to prevent.  Because DOE’s discretionary authority under Section 3 of the Natural Gas Act is limited to the authorization of exports of natural gas to non-free trade agreement countries, the rule limits the scope of environmental impacts that DOE must consider to the impacts associated with the marine transport of the LNG commencing at the point of export.    

To that end, the final rule revises DOE’s existing Categorical Exclusions (CATEX) to reflect that the only elements of LNG projects subject to NEPA review is the following:

B5.7 Export of natural gas and associated transportation by marine vessel.

Approvals or disapprovals of new authorizations or amendments of existing authorizations to export natural gas under section 3 of the Natural Gas Act and any associated transportation of natural gas by marine vessel.

Based on prior NEPA reviews and technical reports, DOE has determined that the transport of natural gas by marine vessel normally does not pose the potential for significant environmental impacts and therefore qualifies for a CATEX.  As such, the only reason that DOE would be obligated to engage in a NEPA review of a LNG project would be if “extraordinary circumstances” were deemed to be present that could not be mitigated and therefore would preclude DOE's reliance on this CATEX.

The revised CATEX also removes the reference to import authorizations from CATEX B5.7 because DOE has no discretion with respect to such approvals.  Finally, the final rule also removes and reserves CATEX B5.8 and classes of actions C13, D8, D9 because these actions are outside of the scope of DOE’s authority or are covered by the revised CATEX B5.7.

Interestingly, although the Federal Energy Regulatory Commission (FERC) has responsibility for approving the construction of LNG export terminals, it has previously declined to analyze the greenhouse emissions associated with such projects, noting that DOE is the appropriate agency to consider such impacts.  However, with DOE now concluding that these projects are categorically excluded from such reviews, it remains to be seen if FERC will reconsider its approach to these operations.

The final rule is scheduled to take effect on January 4, 2021 and it remains to be seen what if any action a new Biden administration might take in response to this rule.  Assuming that the Republicans retain control of the Congress, DOE would be required to go through the formal withdrawal process.  Alternatively, if the Democrats take control of the Senate, the regulation could be repealed pursuant to the Congressional Review Act. 

We will continue to track the Trump administration’s ongoing effort to finalize regulations in advance of January 20th as well as efforts by any new administration to rollback these regulations on the Corporate Environmental Lawyer.

California OSHA Issues Comprehensive and Demanding COVID-19 Emergency Regulation

Sigel

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

Covid-19

On the afternoon of November 30, 2020, the California Office of Administrative Law (OAL) issued the final approval, allowing the emergency COVID‑19 regulation proposed by the California Division of Occupational Safety and Health (Cal-OSHA) and approved by the California Occupational Safety and Health Standards Board (Board) on November 19. The emergency regulation, establishing new sections 3205, 3205.1 through 3205.4 to Title 8, Division 1, Chapter 4 (General Industry Safety Orders) of the California Code of Regulations (CCR) is titled “COVID‑19 Prevention.” The COVID‑19 Prevention Rule is attached here as approved by the OAL. The COVID‑19 Prevention Rule is immediately effective on November 30, 2020. As an emergency regulation, it expires by October 21, 2021, unless it is extended or made permanent.

California, which as a “state-plan State,” can adopt workplace safety and health regulations more stringent than US OSHA regulations and guidance, has through its emergency regulatory process adopted a COVID‑19 regulation that applies to “all employees and places of employment” in California, except if the employees are working from home, the place of employment has only one employee “who does not have contact with other persons,” or employees when covered by California’s Aerosol Transmissible Diseases regulation, 8 CCR § 5199, which applies only to health care services, facilities, and operations. 8 CCR § 3205(a)(1). 

The basic construction of the COVID‑19 Prevention Rule follows the elements of California’s Injury and Illness Prevention Program (IIPP) rule, 8 CCR § 3203, and requires that all employers prepare and adopt a written program with the same elements of employee communication, hazard identification, inspections, hazard correction, training, controls, reporting, recordkeeping and access, but adds substantive requirements relating to COVID‑19 within each of those elements, and adds elements unique to an employer’s response to and control of COVID‑19. The COVID‑19 Prevention Rule also has provisions affecting aspects of an employer’s operations beyond its traditional safety and health scope, including an obligation to “continue and maintain an employee’s earnings, seniority and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job” for employees who are otherwise able to work, but are excluded from the worksite for work-related COVID‑19 exposures and quarantines. 8 CCR § 3205(10)(C).

Other notable aspects of the regulation include:

  • Definitions of COVID‑19 “exposure”, “symptoms”, “high-risk exposure period”, “exposed workplace”, periods of exclusion from the workplace (quarantine and isolation) and return-to-work criteria, that do not match the CDC’s current approach for essential workforces and which do not allow for any future changes in CDC guidelines regarding the length of isolation, quarantine, or return-to-work criteria.
  • Employers must provide viral testing for all employees excluded under Cal-OSHA’s broad definition of “exposed workplace,” up to twice weekly depending on the severity of an outbreak at the workplace.
  • Employers, with employee participation, must “conduct a workplace-specific identification of all interactions, areas, processes, equipment and materials that could potentially expose employees to COVID‑19 hazards.” 8 CCR § 3502 (c)(2)(D).
  • Specific requirements regarding controls, including physical distancing, face coverings, ventilation, disinfection, cleaning, hygiene, PPE and engineering controls.
  • Employers must provide notice within one business day of all COVID‑19 cases in the exposed workplace to employees “who may have had COVID‑19 exposures and [their union representative] and to all other employers/contractors in the workplace. 8 CCR § 3502 (c)(3)(B)3. (See also recently enacted revision to Labor Code § 6409.6 (AB 685).)
  • Employers must communicate hazards, policies and procedures to employees and all “other employers, persons, and entities within or in contact with the employer’s workplace.” 8 CCR § 3502 (c)(1)(D)
  • Specific requirements regarding COVID‑19 case investigation that must be documented and provided to any employee, employee representative, Cal-OSHA, or local health agencies.
  • Employers must have a documented procedure for investigation of COVID‑19 cases in the workplace, with many specific steps required in the COVID‑19 Prevention Rule.
  • Requirements for employer-provided transportation to and from the workplace and employer-provided housing. 8 CCR §§ 3205.3 and 3205.4.

Merely preparing the written program document, in addition to the required procedures and protocols, will be a significant undertaking for almost all California employers. In the public hearing before the Board, Cal-OSHA representatives minimized the additional burden placed on employers given its view that employers already should have already undertaken much of the effort to update their basic IIPP document. Cal-OSHA representatives stated, however, that it recognized that employers would have to take some time to get all the requirements in place and would exercise enforcement discretion given the regulation’s immediate effective date. Cal-OSHA also informed the Board that it planned to issue interpretive guidance and other materials, but did not specify a date by which it would do so. Cal-OSHA stated that it would hold Advisory Committee meetings with employers and employees regarding refining the Rule, but noted that the agency did not expect to propose any changes in the regulatory language in the near-term.

For more information or advice on how to comply and implement the COVID‑19 Prevention Rule, please contact the author.  Additional information regarding working during the COVID‑19 pandemic can be found on this blog and in Jenner & Block’s COVID‑19 Resource Center.


EPA Extends CDR Reporting Deadline

Linkedin_Steven_Siros_3130By Steven M. Siros Feds plan new guidelines on toxic algae in lakes, rivers | wgvu

The chemical industry has received some relief from a November 30th deadline to submit information to U.S. EPA pursuant to the Chemical Data Reporting Rule (“CDR”).  Section 8(a) of the Toxic Substances Control Act (“TSCA”) authorizes U.S. EPA to promulgate rules pursuant to which manufacturers and processors of chemical substances must maintain records and submit information to U.S. EPA.  To that end, U.S. EPA promulgated the CDR that requires entities that manufacture certain chemicals listed on the TSCA inventory in excess of 25,000 pounds annually (lower thresholds apply for certain listed chemicals) to report basic production information to U.S. EPA every four years.  The 2020 reporting deadline had been November 30, 2020.

U.S. EPA recently revised the CDR to comply with the 2016 TSCA amendments.  These revisions were intended to improve the reliability and usefulness of the data collected and reduce the overall reporting burden on regulated entities.  For example, the revised rule allows for the use of data and processing codes based on those already in use by the Organization for Economic Cooperation and Development.  The rule also incorporates exemptions for certain byproducts and amends the requirements to claim that the submitted data constitutes confidential business information (“CBI”) (requiring the upfront substantiation of all CBI claims).    

On October 26th, the American Chemical Council requested a 60-day extension from the November 30th deadline, noting significant technical issues with the electronic CDR submission platform.  Notwithstanding objections from a variety of environmental groups, U.S. EPA has extended the CDR reporting deadline to January 29, 2021.  The extension is good news for the regulated community as it works to compile the substantial information necessary to comply with the CDR requirements. 

We will continue to track and provide updates on the CDR and other reporting obligations for chemical manufacturer on Jenner & Block’s Corporate Environmental Lawyer blog.          

Amazon Workers’ COVID-19 Workplace Safety Lawsuit Dismissed

Sigel

 Song

By Gabrielle Sigel  and Leah M. Song

Covid-19

 

On November 2, 2020, Judge Cogan of the U.S. District for the Eastern District of New York dismissed the amended complaint of workers at Amazon’s Staten Island JFK8 fulfillment center (“JFK8”) against their employer over its alleged non-compliance with state and federal public health guidance and law during the COVID‑19 pandemic. Palmer. v. Amazon.com Inc., No. 20-cv-02468, U.S. Dist. Ct. E.D.N.Y., Doc. 73, Nov. 2, 2020 (“Op.”).

The workers alleged issues with the company’s productivity requirements preventing basic hygiene, limited air-conditioned break rooms impeding social distancing, inadequate contact tracing, and lack of communication and pay regarding COVID‑19 leave at the JFK8 facility. The amended complaint asserted claims for (i) public nuisance, (ii) breach of the duty to provide a safe workplace under New York Labor Law (“NYLL”) § 200, (iii) failure to timely pay COVID‑19 leave under NYLL § 191, and (iv) an injunction against future failure to timely pay COVID‑19 leave. Plaintiffs sought injunctive relief for their first, second, and fourth causes of action, and damages for their third cause of action.

On August 11, 2020, Amazon moved to dismiss the action based on the theory of primary jurisdiction, workers’ compensation law exclusivity, and other grounds. Judge Cogan granted Amazon’s motion to dismiss the public nuisance and workplace safety duty claims, without prejudice, based on the federal doctrine of primary jurisdiction, which “seeks to maintain a proper balance between the roles of courts and administrative agencies,” allowing a district court to choose not to rule in favor of having a matter addressed by an administrative agency. Op. at 8. Judge Cogan found that the “central issue in this case is whether Amazon’s workplace policies at JFK8 adequately protect the safety of its workers during the COVID‑19 pandemic,” which the court framed as a question of whether that issue is best handled by OSHA or the court. Id. at 10.  The court noted that, although OSHA has not issued a regulatory standard specific to COVID‑19, this “does not mean…that OSHA has abdicated its responsibilities during the pandemic. Rather, the agency has exercised its discretion in determining how to proceed in the face of an evolving pandemic fraught with uncertainty.” Id. The court reasoned that it was “not expert in public health or workplace safety matters, and lack[s] the training, expertise, and resources to oversee compliance with evolving industry guidance.” Id. at 11. Furthermore, the court found that “[p]laintiffs’ claims and proposed injunctive relief go to the heart of OSHA’s expertise and discretion.” Id. The court further held that the “risk of inconsistent rulings further weighs in favor of applying the doctrine of primary jurisdiction” as “[c]ourts are particularly ill-suited to address this evolving situation” and OSHA would be able to impose more flexible and uniform policies across the industry. Id. Therefore, the court dismissed plaintiffs’ public nuisance and NYLL § 200 claims, “so that plaintiffs may determine whether to seek relief through the appropriate administrative and regulatory framework.” Id. at 12.  

Moreover, the court held that, even if the court did not defer to OSHA’s primary jurisdiction, it would dismiss the public nuisance claim because New York law requires that a private action for public nuisance allege that the plaintiff sustained special injury not common to the public at large. Finding that an increased risk of contracting COVID‑19 is “common to the New York City community at large” and the JFK8 facility is “not the source of COVID‑19,” the court held that plaintiffs could not maintain a public nuisance claim. Id. at 13-14. The court also found that, although the state safe workplace claim under NYLL § 200 is not preempted by the OSH Act, plaintiffs’ claims for past injuries, even for injunctive relief, are precluded by the language of New York’s workers’ compensation law, which makes workers’ compensation the exclusive remedy for workers’ claims against employers “for any liability whatsoever.” Id. at 14-20.

The court also dismissed plaintiffs’ NYLL § 191 claims regarding failure to pay timely COVID‑19 sick leave, finding that the statute addresses claims for prompt payment of “wages,” not sick leave. In reaching that decision, the court rejected the NY State Department of Labor’s recent COVID‑19 guidance in which it stated that prompt payment of COVID‑19 sick leave was subject to NYLL § 191’s requirements. Id. at 21-24.

Another example of a case in which a court relied on the primary jurisdiction clause to dismiss COVID‑19 workplace safety claims against an employer is Rural Community Workers Alliance (“RCWA”) v. Smithfield Foods, Inc., No. 5:20-cv-06063 (N.D. Mo.) from May 5, 2020. In that case, the United States District Court for the Western District of Missouri granted Smithfield Foods’ (“Smithfield”) motion to dismiss pursuant to the primary jurisdiction doctrine. The RCWA plaintiffs alleged two common law claims: (1) Smithfield’s practices at the meat processing plant constituted a public nuisance; and (2) Smithfield had breached its duty to provide a safe workplace. The plaintiffs, an employee and a workers advocacy group, sought only injunctive relief to require Smithfield to comply with OSHA/CDC guidance issued for the entire meat processing industry, and importantly, did not allege that they or any of their members had contracted COVID‑19 at the plant.

The Missouri federal case dismissed the case with prejudice, based on the federal primary jurisdiction doctrine. The court found and deferred to OSHA’s primary jurisdiction to interpret and apply its guidance and to the rights, albeit limited, that plaintiffs can seek through OSHA’s administrative and judicial processes. Id. at 14-17. In addition, the court found that plaintiffs had not met their “extraordinary burden” of proving a right to preliminary injunctive relief. Id. at 17. The court found that, despite the prevalence of COVID‑19 in the community and in the plant, the plaintiffs had not suffered “irreparable harm” because they alleged only the possibility of death or serious illness in the future. Id. at 18-20. The court found that “unfortunately, no one can guarantee health for essential workers – or even the general public – in the middle of this global pandemic.” Id. at 19. Thus, because the employer was taking measures to control the spread and there no confirmed COVID‑19 cases currently, “the court cannot conclude that the spread of COVID‑19 at the Plant is inevitable or that Smithfield will be unable to contain it if it occurs.” Id. at 20. The court also noted, when balancing the harms of granting (or denying) the injunction that “no essential-business employer can completely eliminate the risks that COVID‑19 will spread to its employees through the workplace. Thus, it is important that employers make meaningful, good faith attempts to reduce the risk.” Id.

The court also found that plaintiffs were unlikely to prevail on the merits of their nuisance claim because the employer had taken “significant measures” and there were no occurrences of the disease. Id. at 21-22. Similarly, the court found that plaintiffs would not be able to prove that Smithfield had breached its duty to provide a safe place to work, because the company “has taken substantial steps to reduce the protection for COVID‑19 exposure” and appeared to be complying with the OSHA/CDC guidance. Id. at 22.

Please feel free to contact the authors with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.


CDC Changes Definition of “Close Contacts” for Contact Tracing Purposes: What Does This Mean for Employers?

Sigel

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

Covid-19

I.  The New CDC Definition of Close Contacts

On October 21, 2020, the CDC published a new definition of “Close Contact” for contact tracing purposes.  This new definition will affect how employers determine Close Contacts for purposes of internal contract tracing to limit and prevent exposures and spread of the coronavirus within the workplace.  The new CDC definition can be found here:  https://www.cdc.gov/coronavirus/2019-ncov/php/contact-tracing/contact-tracing-plan/appendix.html#contact  Quoting from the CDC link:

“Someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.

* Individual exposures added together over a 24-hour period (e.g., three 5-minute exposures for a total of 15 minutes). Data are limited, making it difficult to precisely define “close contact;” however, 15 cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation. Factors to consider when defining close contact include proximity (closer distance likely increases exposure risk), the duration of exposure (longer exposure time likely increases exposure risk), whether the infected individual has symptoms (the period around onset of symptoms is associated with the highest levels of viral shedding), if the infected person was likely to generate respiratory aerosols (e.g., was coughing, singing, shouting), and other environmental factors (crowding, adequacy of ventilation, whether exposure was indoors or outdoors). Because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.”

Previously, CDC had defined “Close Contact” to mean someone who spent at least 15 consecutive minutes within six feet of a person confirmed to be have COVID-19, the disease caused by SARS-CoV-2.

II. What Does the New Definition Mean for Employers (Outside the Healthcare Industry)

Under CDC guidance, an employer should quarantine any Close Contact employee, i.e., the Close Contact employee should not be allowed on the worksite and should be told to quarantine per CDC guidance.  If the Close Contact develops symptoms or tests positive, in which case the Close Contact becomes an infected person who is in isolation per CDC guidance. Notably, the CDC also states that, at this time, whether an infected person or the exposed person was wearing a mask during the exposure period does not affect the determination of a Close Contact for these purposes.  However, the CDC does recognize that the determination of a Close Contact is “difficult to precisely define” and suggests that other factors may be considered, such as whether the infected person had symptoms at the time of exposure, whether the infected person was engaged in activities “likely to generate respiratory aerosols,” and environmental conditions, such as whether the exposure occurred indoors and the adequacy of indoor ventilation.

Per CDC guidance, the quarantine period is for 14 days, which typically means that the employee is not at the worksite, but can work remotely if their circumstances, including any labor agreement, so allows.  The CDC recognizes, however, that a mandatory worksite quarantine period for Close Contacts could cause severe consequences for employers of “Critical Infrastructure Workers,” typically as defined by the Cybersecurity & Infrastructure Security Agency (“CISA”).  Thus, the CDC provides an exception to the 14-day worksite quarantine for asymptomatic Critical Infrastructure Workers – they may continue to work at the standard workplace(s) if they adhere to protective measures  prior to and during their work shift, including: pre-screening and regular monitoring for fever and other symptoms; wearing a face mask “at all times while in the workplace;” maintaining at 6-foot distance and practice social distancing “as work duties permit;” and working in areas that are frequently cleaned, including common areas and commonly shared equipment.

Although the CDC suggests that determinations of close contact can be affected by factors other than proximity and duration of exposure, it provides no guidance on how to account for those other factors in the course of the determination.  Most employers are going to need to rely on clearly defined and easily understood rules, so that a workplace contact tracing program can be appropriately administered. Thus, most employers likely will continue to rely only on the more easily determined proximity and duration factors.

As a result of CDC’s change to the definition of Close Contact to include anyone in close proximity within a cumulative 15-minute period, rather than a consecutive 15-minute period, more employees may be designated as Close Contacts and, therefore, more employees may need to be precluded from working on-site, particularly those who cannot be classified as Critical Infrastructure Workers.  Although an employer typically cannot prevent an exposure from occurring outside the workplace, an employer’s best “defense” to potential coronavirus exposure in the workplace, and the resulting Close Contact designation, is adherence to and enforcement of 6-foot distancing for all workplace activities, both during more social activities (such as in breakrooms, cafeterias, restrooms) and during job tasks. 

Other Related CDC Sites:

https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-manufacturing-workers-employers.html

https://www.cdc.gov/coronavirus/2019-ncov/php/open-america/non-healthcare-work-settings.html

https://www.cdc.gov/coronavirus/2019-ncov/community/critical-workers/implementing-safety-practices.html

Questions?  Please contact Gabrielle Sigel, 847-710-3700, GSigel@jenner.com

Jenner & Block’s Corporate Environmental Lawyer will continue to update on these matters, as well as other important COVID‑19 related guidance, as they unfold.


Lawsuit Filed Challenging DOJ’s Policy on Supplemental Environmental Projects

Linkedin_Steven_Siros_3130By Steven M. Siros

On October 8, 2020, the Conservation Law Foundation filed a lawsuit challenging a DOJ policy that barred the use of supplemental environmental projects (SEPs) in federal enforcement settlements with private parties.  SEPs have been used since the 1980s and typically involve a project intended to provide some tangible environmental or public health benefit that could not necessarily be compelled by U.S. EPA. 

DOJ, in a March 12, 2020 memorandum, announced that it was terminating its policy of allowing companies to agree to perform SEPs in exchange for reductions in civil penalties in environmental enforcement settlements.  According to DOJ, the practice of using SEPs in lieu of civil penalties violates the Miscellaneous Receipts Act, a statute that prevents cash from legal settlements being diverted from the Treasury to third parties.  As further described in the March 2020 DOJ memorandum, DOJ claims that the SEPs basically substitute payments to third parties for payments to the Treasury, circumventing Congress’ Constitutional power of the purse. 

The lawsuit claims that DOJ’s conclusion that the use of SEPs violates the Miscellaneous Receipts Act is arbitrary and capricious and otherwise lacks reasoned decision-making.  The lawsuit highlights U.S. EPA’s history of using SEPs and its various guidance documents encouraging the use of SEPs in environmental enforcement matters.  The lawsuit asks that the Court declare that DOJ’s March 2020 memo violates the Administrative Procedures Act, vacate the memo, and enjoin DOJ from implementing or relying on the memo in the future. . 

We will continue to provide updates on this lawsuit as well as other important environmental, health and safety issues on Jenner & Block’s Corporate Environmental Lawyer Blog.