January 24, 2022 WOTUS to Get The SCOTUS Treatment, Again

Torrence_jpgBy Allison A. Torrence

WetlandOn January 24, 2022, the U.S. Supreme Court agreed to hear a case on the scope and authority of the Clean Water Act (“CWA”). The Court granted certiorari in the case of Sackett v. U.S. Environmental Protection Agency, 19-35469, on appeal from the U. S. Court of Appeals for the Ninth Circuit.  

The question presented to the Court is, seemingly, straightforward: “Whether the Ninth Circuit set forth the proper test for determining whether wetlands are 'waters of the United States' under the Clean Water Act, 33 U.S.C. § 1362(7).” But, this question has wide-reaching implications. The definition of “waters of the United States” (“WOTUS”) sets the jurisdictional limits of the CWA. Under the CWA, the U.S. Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Army Corps”) have the power to regulate, among other things, the discharge of pollutants to navigable water from a point source (33 U.S.C. § 1362(12)) and the discharge of dredged or fill material into navigable waters (33 U.S.C. § 1344). “Navigable waters” are defined in the CWA as “the waters of the United States, including the territorial seas.” 33 U.S.C. §1362(7). “Waters of the United States” is not defined further under the Act, so the agencies have been left to try to craft a definition.

The Army Corps and EPA first proposed a WOTUS definition in 1977 and it has faced revisions and legal challenges ever since. The WOTUS definition has faced Supreme Court review in three previous cases:

  • U.S. v. Riverside Bayview, 474 U.S. 121 (1985)
  • Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001)
  • Rapanos v. U.S., 547 U.S. 715 (2006)

In the most recent Supreme Court treatment, the Court did not reach a majority opinion. Justice Scalia authored a plurality opinion, Justice Kennedy wrote a concurring opinion, and Justice Stevens wrote a dissenting opinion. Following the Rapanos decision, lower courts and the agencies have grappled with whether to follow the framework laid out by Justice Scalia or Justice Kennedy. The primary difference is how they dealt with bodies of waters on the fringe of jurisdiction, like wetlands. Justice Scalia would include in WOTUS: “only those relatively permanent, standing or continuously flowing bodies of water forming geographic features that are described in ordinary parlance as streams, oceans, rivers, and lakes…[and] only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right…” Id. at 739-42. Justice Kennedy went beyond wetlands with a “continuous surface connection” to include wetlands and other bodies of water that have a “significant nexus” to more traditional navigable waters. Id. at 759.

The WOTUS definition was revised in 2015 by the Obama Administration to expand the definition and then in 2020 by the Trump Administration to narrow the definition; with both definitions facing swift legal challenges, including vacatur of the Trump rule in 2021. Just recently, on November 18, 2021, EPA and the Army Corps announced that they were issuing a proposed rule to re-establish the pre-2015 definition of WOTUS. The current proposed rule includes the “significant nexus” standard for non-traditional navigable waters.

In the case currently before the Supreme Court, Petitioners Michael and Chantell Sackett purchased property in Idaho in 2004 intending to build a home. When the Sacketts began filling in the wetlands on the property, EPA issued an administrative compliance order stating the property contained wetlands subject to CWA authority. The Sacketts were ordered to restore the property or face daily penalties. The Sacketts sued EPA, challenging the compliance order. The case has wound through the courts for years, eventually landing in the Ninth Circuit, where that court applied Justice Kennedy's “significant nexus” test and held that “EPA reasonably determined that the Sacketts' property contains wetlands that share a significant nexus with Priest Lake, such that the lot was regulable under the CWA and the relevant regulations.” Sackett v. EPA, 8 F. 4th 1075, 1093 (9th 2021).

In their petition for certiorari, Petitioners asked the Court to take the case to clear up the deep confusion over what standard applies and how it is interpreted by lower courts and the agencies. EPA tried to resist certiorari by arguing that the decision below was correctly decided and not in conflict with any opinion of the Court or other courts of appeals. Now, EPA faces an uphill battle before a Court that is more conservative than in 2006 and, in all likelihood, will be receptive to adopting Justice Scalia’s “continuous surface connection” standard, thereby narrowing the scope of the CWA.

CATEGORIES: Real Estate and Environment, Water

PEOPLE: Allison A. Torrence

January 12, 2022 PFOA and PFAS Take Another Step Towards Becoming Full-Fledged Members of the CERCLA Family of Hazardous Substances

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

EpaOn January 10, 2022, U.S. EPA forwarded to the White House Office of Management and Budget (OMB) a proposed rule that seeks to designate perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  Although not unexpected since this was of the key elements of U.S. EPA’s PFAS Strategic Roadmap, U.S. EPA’s proposed rule is unique in that it represents one of the first times that U.S. EPA has by rule sought to designate a chemical as a CERCLA hazardous substance.  U.S. EPA's actions in sending the proposed rule to OMB may also be foreshadowing for a similar effort to designate PFOA and PFOS as "hazardous wastes" under the Resource Conservation and Recovery Act (RCRA) which would subject these substances to RCRA's cradle to grave regulatory scheme.     

The effect of listing PFOA and PFOS as CERCLA “hazardous substances” is significant for the following reasons:  

  • New Sites: By designating PFOA and PFOS as CERCLA “hazardous substances”, due to the ubiquitous nature of these contaminants in the environment, hundreds of sites could become CERCLA Superfund sites. For example, PFAS chemicals can be found in the soil and groundwater at sites that historically used firefighting foams, including airports, refineries, and military installations. It is also a contaminant of concern at manufacturing operations associated with cookware, stain-resistant clothing, and various packaging products. Finally, it may be a concern at municipal landfills and wastewater treatment facilities. There may also be trickle-down effects at the state level since many states automatically include federally-designated substances in the state definition of hazardous substances.  
  • Existing/Closed Sites: Moreover, at existing Superfund sites (including sites where a final remedy has been selected and is being  implemented), U.S. EPA can require that the sites be investigated for PFOA and PFOS.  If found, U.S. EPA can require that existing remedial strategies be modified to address these contaminants in the soil or groundwater.  Similarly, even at sites where remedial measures have been completed, U.S. EPA could still seek to reopen the sites and require that these newly designated hazardous substances be remediated.  
  • Cost-Recovery Claims:  Designation of PFOA and PFOS as CERCLA hazardous substances would open the door for both U.S. EPA and private-party PRPs to bring CERCLA cost recovery and/or contribution claims to pay for the costs to investigate and remediate these chemicals. In light of the increased scrutiny of these compounds in drinking water supplies, one could expect numerous CERCLA cost-recovery lawsuits by drinking water providers to recover the costs to treat public drinking water system. 
  • Reporting Requirements: Designation as a CERCLA hazardous substance also triggers release reporting under CERCLA. CERCLA § 103 (42 U.S.C.  § 9603) requires that releases of “reportable quantities” (RQ) of CERCLA hazardous substances be reported to the National Response Center. Until such time as U.S. EPA promulgates a specific RQ  for PFOA and PFOS, the default RQ for these chemicals will be one pound.  Although many states are moving towards banning the use of fire-fighting foam that contains per- and polyfluoroalkyl substances, if PFOA and/or PFOS are designated as CERCLA "hazardous substances", it is likely that any use of fire-fighting foam containing these substances would trigger CERCLA release reporting.    

Once U.S. EPA receives the review back from OMB  and publishes the proposed rule for comment in the Federal Register, U.S.EPA can expect to receive robust comments both against and in favor of the designation.  We will continue to follow U.S. EPA’s efforts to designate PFOA and PFOS as CERCLA “hazardous substances” at the Corporate Environmental Lawyer blog. 

CATEGORIES: Cercla, Contamination, Emerging Contaminants, Hazmat, Water

PEOPLE: Steven R. Englund, Steven M. Siros

January 11, 2022 EPA Plans to Improve Lead and Copper Drinking Water Rule While Facing Legal Challenge from States

Torrence_jpgBy Allison A. Torrence

Pexels-photo-2583028EPA faces continuing pressure to improve the way it protects communities from lead in drinking water. One focus of the current EPA has been the Lead and Copper Drinking Water Rule Revisions (“LCRR”), promulgated under the Trump administration. As it grappled with what to do with the LCRR, the Biden EPA delayed the LCRR’s effective date and compliance deadlines on two occasions, most recently making the LCRR effective on December 16, 2021 and pushing the compliance deadline back nine months, from January 16, 2024 to October 16, 2024. National Primary Drinking Water Regulations: Lead and Copper Rule Revisions; Delay of Effective and Compliance Dates, 86 FR 31939 (June 16, 2021). Then, in conjunction with the LCRR’s effective date, on December 16, 2021, EPA announced its plans to revise and strengthen the LCRR, while leaving the rule in place for now. Review of the National Primary Drinking Water Regulation: Lead and Copper Rule Revisions (LCRR), 86 FR 71574 (Dec. 17, 2021).

In response to the delays of the LCRR’s effective date and compliance deadlines, the states of Arizona, Louisiana, Ohio, Oklahoma, and Texas filed a challenge in the D.C. Circuit Court of Appeals, in the case of Arizona et al. v. U.S. EPA et al., Case No. 21-1159. On January 6, 2022, the states filed their opening brief, explaining that they wanted the court to vacate the recent EPA actions, which were, in their view, unlawful delays of the compliance deadlines in the LCRR.

The Lead and Copper Rule Revisions (“LCRR”)

Under the authority of the Safe Drinking Water Act, the purpose of the Lead and Copper Rule is to protect public health by minimizing lead and copper levels in drinking water, mainly by reducing water corrosivity because lead and copper enter drinking water primarily from corrosion of lead and copper in plumbing materials. The Trump-era LCRR was the largest change to the Lead and Copper Rule since the rule was promulgated in 1991 and has the most significant impact on Large Community Water Systems (“Systems”), which are water systems serving more than 10,000 customers.

The original Lead and Copper Rule established a Maximum Contaminant Level Goal (“MCLG”) of zero lead in drinking water, and an Action Level of 15 parts per billion (“ppb”). The LCRR maintains the current MCLG and Action Level, but introduces a lead Trigger Level of 10 ppb. If a System identifies water at the Trigger Level of 10 ppb, it is required to, among other requirements, (1) either conduct a corrosion control study (if it does not currently treat for corrosion) or re-optimize its existing corrosion treatment system, and (2) work with the State to set an annual goal for replacing lead service lines. Under the old Lead and Copper Rule, there was no requirement to replace lead service lines unless the System detected lead at the current Action Level of 15 ppb.

Additional new requirements in the LCRR include:

  • Systems are required to prepare and update a publicly-available inventory of lead service lines and “find-and-fix” sources of lead when a sample in a home exceeds the Action Level of 15 ppb.
  • Systems above the Action Level of 15 ppb would be required to fully replace a minimum of 3% of the number of known or potential lead service lines annually.
  • Systems with lead levels above the Trigger Level of 10 ppb are required to monitor annually or semi-annually, and all samples are required to be taken at homes with lead service lines.
  • Systems are required to annually conduct lead in drinking water testing at 20% of K-12 schools and licensed child care facilities built before January 1, 2014 in their service areas.

Biden EPA “Lead and Copper Rule Improvements”

In the Federal Register notice announcing its intent to publish a revision to the LCRR, EPA states that it “heard significant concerns from many drinking water stakeholders about the LCRR” including “whether the rule will adequately protect public health, the confusion it might create about drinking water safety, and the implementation burden that will be placed on systems and states.” 86 FR 71575. EPA notes the serious and significant health impacts from lead exposure—including brain and kidney damage—and that minority and low-income populations appear to be disproportionately exposed to the risks of lead in drinking water.

EPA hosted virtual engagements and collected public comments on the LCRR. According to EPA, most comments focused on lead service line replacement, the action level and trigger level, tap sampling, public education, and sampling for lead in schools and child-care facilities. EPA concluded:

EPA finds that although the LCRR improves public health protection in comparison to the previous version of the rule, there are significant opportunities to further improve upon it to achieve increased protection of communities from lead exposure through drinking water.

In light of this conclusion, EPA intends to immediately begin to develop a proposed National Primary Drinking Water Regulation: Lead and Copper Rule Improvements (“LCRI”) to address these issues. EPA intends to take final action on the LCRI proposal prior to the October 16, 2024 compliance date of the existing LCRR.

Focus areas for the proposed LCRI will be:

  • Replacing all lead service lines
  • Compliance tap sampling
  • Action and trigger levels
  • Prioritizing historically underserved communities

State Litigation

Meanwhile, Arizona, Louisiana, Ohio, Oklahoma, and Texas continue their legal challenge to EPA’s earlier action of delaying the effective and compliance dates of the LCRR. While the effective date issue is now moot—the LCRR is effective as of December 16, 2021—the petitioner states continue their challenge regarding EPA’s delay of the compliance deadline. Specifically, that EPA delayed the deadline for complying with the LCRR nine months, from January 16, 2024 to October 16, 2024. The states argue that the delay is harmful to public health and unlawful under the Administrative Procedure Act. EPA will have until March 7, 2022 to respond and petitioners have until April 22, 2022 to file a reply brief.

While the outcome of this case may have an impact on EPA’s (and other agencies’) ability to delay deadlines in rules, it will not impact the administrative process underway to promulgate the Lead and Copper Rule Improvements, other than to potentially add urgency to that process. The Corporate Environmental Lawyer Blog will continue to monitor both the litigation and regulatory developments and report on key developments.

CATEGORIES: Toxic Tort, Water

PEOPLE: Allison A. Torrence

December 21, 2021 U.S. EPA Finalizes Fifth UCMR—PFAS Remain in the Regulatory Bullseye

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

EpaOn December 20, 2021, U.S. EPA finalized its Fifth Unregulated Contaminant Monitoring Rule (UCMR) that will require public water systems (PWS) to collect monitoring data for 29 per- and polyfluoroalkyl substances (PFAS) and lithium in drinking water. Every five years, the Safe Drinking Water Act (SDWA) requires U.S. EPA to publish a new list of unregulated contaminants that will be monitored by PWS.  UCMR 5 focuses almost exclusively on PFAS and targets 29 of the more than 4,700 PFAS that have been identified to date. 

Starting in 2023, all PWSs serving more than 10,000 customers are obligated to monitor for these UCMR 5 contaminants while smaller PWSs (those serving less than 10,000 customers) must monitor subject to availability of appropriations (U.S. EPA is responsible for all analytical costs associated with PWSs serving less than 10,000 customers) and laboratory capacity. In response to comments on the draft UCMR 5 expressing concern about the lack of laboratory capacity to support the PFAS monitoring, the final rule notes that U.S. EPA expects laboratory capacity to quickly grow to meet UCMR demand. The final rule identifies applicable U.S. EPA test methods for each of the 29 targeted PFAS compounds. However, some commenters were critical that the final rule did not identify a testing technique to determine “total PFAS” in drinking water. The final rule acknowledges this issue but notes that U.S. EPA “has not identified a complete, validated peer-reviewed aggregate PFAS method” at this time. 

The data collected is expected to inform U.S. EPA as it evaluates whether to set a specific drinking water limit or treatment standard under the SDWA for perfluorooctanoic acid (PFOA) and perfluorooctane sulfonic acid (PFOS). U.S. EPA has committed to establishing a national drinking water regulation for PFOA and PFOS by the fall of 2023 and it is likely that additional PFAS will be in the SDWA regulatory pipeline in the near future. 

We will continue to track U.S. EPA regulatory agenda at the Corporate Environmental Lawyer blog.

CATEGORIES: Contamination, Emerging Contaminants, Groundwater, Sustainability, Water

PEOPLE: Steven M. Siros

December 17, 2021 New PFAS Additions to the Proposition 65 List

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

OEHHAOver the past week, several new per- and polyfluoroalkyl substances (PFAS) have been added to California’s Proposition 65 list. In March 2021, California’s Office of Environmental Health Hazard Assessment (OEHHA) selected perfluorooctane sulfonate (PFOS) and its salt and transformation and degradation precursors for evaluation by California’s Carcinogenic Identification Committee (CIC). OEHHA also selected perfluoronanoic acid (PFNA) and perfluoroundecanoic acid (PFDA) for evaluation by California’s Reproductive Toxicant Identification Committee (DARTIC). 

Several industry groups submitted comments in opposition to adding these PFAS chemicals to the Proposition 65 lists. For example, even though PFOS has been voluntarily phased out of production in the United States, the American Chemistry Council opposed listing PFOS as a carcinogen under Proposition 65, claiming that the available data doesn’t support a conclusion that PFOS presents a carcinogenic risk to humans. 

Notwithstanding this industry opposition, on December 6, 2021, the CIC voted 8-2 with one abstention to add perfluorooctane sulfonate (PFOS) and its salt and transformation and degradation precursors to the Proposition 65 list of chemicals known to the State of California as causing cancer. It is important to note that PFOS had previously been on the Proposition 65 list due to its alleged reproductive toxicity. 

On December 14, 2021, DARTIC voted to add PNFA to the Proposition 65 list of reproductive toxicants. However, DARTIC did not add PFDA to the list of reproductive toxicants. DARTIC relied in part on a recent assessment prepared by OEHHA that evaluated the reproductive effects of both PFNA and PFDA. 

Unlike PFAS, these particular PFAS chemicals have not been phased out and are used as processing aids in fluoropolymer manufacturing as well as in certain cosmetic products. As such, the inclusion of these chemicals on the Proposition 65 list will trigger new warning obligations.   

Once a chemical is added to the Proposition 65 list, companies have one year to provide the requisite Proposition 65 warnings and companies that fail to provide these warning are often the target of “claims” by private party Proposition 65 enforcers. It should also be noted that OEHHA has yet to develop “safe harbor” levels for any of these PFAS chemical and so any exposure to these PFAS chemicals will require a Proposition 65 warning. 

These particular PFAS chemicals are commonly found in firefighting foam, stain-resistant fabrics, and food packaging. Companies that distribute and sell these types of products in California would be well served to evaluate whether their products contain any of these chemicals and take steps to either eliminate these chemicals from their products or ensure that the products have the requisite Proposition 65 warnings in the next year. 

We will continue to provide updates regarding Proposition 65 at the Corporate Environmental Lawyer blog.

CATEGORIES: Climate Change, Emerging Contaminants, Prop 65, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

October 18, 2021 U.S. EPA Releases its PFAS Strategic Roadmap

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

EpaOn Monday, October 18, 2021, U.S. EPA released its PFAS Strategic Roadmap (Roadmap) outlining the agency’s three-year strategy for addressing per- and polyfluoroalkyl substances (PFAS). The Roadmap acknowledges that U.S. EPA cannot solve the problem of “forever chemicals” by tackling only one route of exposure or one use at a time. Instead, the Roadmap outlines a multi-pronged approach with specific emphasis on the following:

  • Accounting for the full lifecycle of PFAS, their unique properties, the ubiquity of their uses, and the multiple pathways for exposure;
  • Focusing on preventing PFAS from entering the environment in the first instance which is a foundational step in reducing the exposure and risks of PFAS contamination;
  • Holding polluters accountable for releases of PFAS into the environment;
  • Investing in scientific research to fill gaps in understanding PFAS to drive science-based decision making; and
  • Ensuring that disadvantaged communities have equitable access to solutions. 

In order to achieve these objections, U.S. EPA’s Roadmap identifies the following specific agency actions:

  • U.S. EPA’s Office of Chemical Safety and Pollution Prevention commits to:
    • Publish a national PFAS testing strategy to generate toxicity data on PFAS compounds (Fall 2021);
    • Ensure robust TSCA review for new PFAS chemical submissions (ongoing);
    • Review previous TSCA regulatory decisions to ensure that the those decisions were sufficient protective of human health and the environment (ongoing);
    • Enhance PFAS reporting under the Toxics Release Inventory (Spring 2022); and
    • Finalize new PFAS reporting under TSCA Section 8 (Winter 2022).
  • U.S. EPA’s Office of Water commits to:
    • Finalize the Fifth Unregulated Contaminants Monitoring Rule to require testing for 29 PFAS substances (Fall 2021);
    • Establish an MCL for PFOA and PFOS (Fall 2023);
    • Finalize the toxicity assessments for GenX and five additional addition PFAS compounds (Fall 2021);
    • Publish health advisories for GenX and PFBS (Spring 2022);
    • Set Effluent Limitations Guidelines to restrict PFAS discharges nine different industrial categories (2022); and
    • Leverage the National Pollutant Discharge Elimination System (NPDES) program to reduce the discharges of PFAS and obtain more comprehensive information on PFAS discharges (Winter 2022).
  • S. EPA’s Office of Land and Emergency Management commits to:
    • Designate PFOA and PFOS as CERCLA hazardous substances (Summer 2023);
    • Evaluate designation of other PFAS compounds as CERCLA hazardous substances (Spring 2022);  and
    • Issue updated guidance on the destruction of PFAS and PFAS-containing materials (Fall 2023). 

In addition to U.S. EPA’s Roadmap, the White House announced ongoing efforts by the following seven agencies to address PFAS pollution: the White House Council on Environmental Quality (CEQ), the Departments of Defense, Agriculture, Homeland Security, and Health and Human Services, Food and Drug Administration, and the Federal Aviation Administration. We will continue to track these ongoing efforts to regulate PFAS at the Corporate Environmental Lawyer blog.

CATEGORIES: Cercla, Climate Change, Emerging Contaminants, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

October 13, 2021 California Law Adds New Restrictions on Recyclability Claims

Torrence_jpgBy Allison A. Torrence

Chasing arrowsOn October 5, 2021, California Governor Newsom signed SB 343, addressing recyclability claims on products and in advertising. The Act amends existing sections of California’s Business and Professions Code as well as the Public Resource Code relating to environmental advertising. These laws collectively provide California’s version of recyclability consumer protection laws, similar to but going beyond the Federal Trade Commission Guides for the Use of Environmental Marketing Claims (“Green Guides”).

Prior to SB 343, existing California law made it unlawful for any person to make any untruthful, deceptive, or misleading environmental marketing claim, and required that environmental marketing claims be substantiated by competent and reliable evidence. Additionally, a person making any recyclability claims was required to maintain written records supporting the validity of those representations, including whether, the claims conform with the Green Guides.

Those requirements are generally left intact, with additional obligations added by SB 343. The first big change made by SB 343 is to specifically add the use of the chasing arrow symbol as a way that a person might make a misleading environmental marketing claim in marketing or on a product label. (Business and Professions Code § 17580(a).) Next, SB 343 requires the Department of Resources Recycling and Recovery, by January 1, 2024, to update regulations requiring disposal facilities to provide information on recycling data. Based on the information published by the department, a product or packaging is considered recyclable only if the product or packaging is collected for recycling by recycling programs for jurisdictions that collectively encompass at least 60% of the population of the state. (Public Resources Code § 42355.51(d)(2).) The new law also provides additional criteria related to curb-side recycling, that grow more stringent over time, and PFAS content of plastic material, among other provisions. (Public Resources Code § 42355.51(d)(3).) A person making recyclability claims must keep written records of whether the consumer good meets all of the criteria for statewide recyclability pursuant to these new provisions. (Business and Professions Code § 17580(a)(6).)

Recycling-symbol-for-type-1-plastics_2673Finally, while existing California law governed what resin identification code could be placed on plastic containers (i.e., #1 PETE, #2 HDPE), SB 343 states that resin identification code numbers cannot be placed inside a chasing arrows symbol unless the rigid plastic bottle or rigid plastic container meets the new statewide recyclability criteria discussed above. (Public Resources Code § 18015(d).)

This new law is another hurdle facing companies making environmental marketing claims. For companies selling products in California, it is not sufficient to simply follow the FTC Green Guides. Instead, companies must be aware of the specific nuances and requirements in California and developments in other states.

CATEGORIES: Consumer Law and Environment, Emerging Contaminants, Sustainability

PEOPLE: Allison A. Torrence

September 29, 2021 TSCA Articles Regulations—U.S. EPA Course Reversal?

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

In prepared remarks from U.S. EPA chemicals chief Michael Freedhoff that were presented at the Product Stewardship Society’s annual meeting, Freedhoff clearly articulated an intent by the Agency to reverse course and aggressively seek to regulate finished articles under the Toxic Substances Control Act (“TSCA”).  Historically, U.S. EPA has focused on the manufacture or import of chemicals and chemical mixtures as opposed to finished articles.  However, in her written remarks, Freedhoff focused on articles, stating that the “law is very clear that when a chemical enters the United States, or is distributed or processed in the United States—whether in bulk form or in an article—it can be subject to regulation under TSCA”. 

Recent U.S. EPA actions have evidenced an intent by U.S. EPA to begin to regulate articles under TSCA.  For example, in January 2021, U.S. EPA published final rules to regulate final persistent, bioaccumulative and toxic (“PBT”) chemicals under Section 6(h) of TSCA—these final rules prohibited the use of some of these PBT chemicals in finished articles.  Although U.S. EPA has indicated that it intends to initiate a new rulemaking for these five PBT chemicals and has extended the compliance deadline to March 8, 2022, Freedhoff’s remarks certainly indicate that U.S. EPA intends to rely on its TSCA authority to regulate these finished articles.   Another example of U.S. EPA's efforts to regulate articles can be found in the proposed TSCA reporting rule for manufacturers of per- and polyfluoralklyl substances (“PFAS”) compounds.  The proposed rule would require persons that manufacture (including import) or have manufactured PFAS chemical substances in any year since January 1, 2011 to report on PFAS uses, production volumes, disposals and hazards.  Specifically, there is no exemption in the proposed reporting rule for PFAS in articles and Freedhoff specifically noted that the proposed rule “is another example of the Agency’s use of its authority to propose regulatory requirements applicable to imported articles under TSCA”. 

Based on U.S. EPA recent regulatory actions coupled with Freedhoff’s prepared comments, it seems clear that U.S. EPA intends to focus its TSCA regulatory authority on articles.  We will continue to track these ongoing regulatory initiatives at the Corporate Environmental Lawyer blog.    

CATEGORIES: TSCA

PEOPLE: Steven R. Englund, Steven M. Siros

September 22, 2021 PFAS Linked to Climate Change According to Environmental NGO

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

In the latest attack on per- and polyfluoroalkyl substances (PFAS), a recent report issued by the environmental group, Toxic-Free Future (TFF), seeks to link PFAS utilized in the manufacture of food packaging to the release of greenhouse gases.  The report focuses on the use of PFAS in food packaging, and more specifically, releases of chlorodifluoromethane (HCFC-22 or R22) in connection with the manufacture of PFAS for use in food packaging.  HCFC-22 is an ozone depleting substance with a global-warming potential estimated at more than 1,800 times that of carbon dioxide.  HCFC-22 has been phased out in the United States in accordance with the Montreal Protocol and as of January 1, 2020, can no longer be produced, imported or used in the United States (except for continued servicing needs of existing equipment). 

According to the TFF report, however, because HCFC-22 is produced as an intermediate (a substance formed as part of a larger chemical reaction but that is then consumed in later stages of the production process) during the manufacture of PFAS, it is not subject to the above-referenced use prohibitions.   As such, according to the TFF report, facilities that are manufacturing these PFAS compounds are releasing significant amounts of HCFC-22 into the environmental (notwithstanding being classified as "intermediates") in contravention of the prohibitions in the Montreal Protocol.  Because of this loophole, the TFF report argues for “class-based” limits on PFAS chemicals at the federal and/or state level. 

U.S. EPA continues to assess regulation of PFAS compounds through a variety of regulatory regimes, including setting an MCL under the Safe Drinking Water Act and designating some or all PFAS-compounds as “hazardous substances” under CERCLA.  Efforts to link PFAS production to climate change will only increase the pressure on U.S. EPA to move forward with these regulatory efforts.  We will continue to provide timely updates with respect to these efforts on the Corporate Environmental Lawyer blog. 

CATEGORIES: Climate Change, Greenhouse Gas

PEOPLE: Steven R. Englund, Steven M. Siros

August 13, 2021 The Need to Be Green: Focus on Environmental Sustainability Can Inure to Bottom Line for Cannabis Industry

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

A recent article published in Politico highlights some of the potential impacts of cannabis production on the environment.   As the production of cannabis accelerates across the United States, it is becoming increasingly likely that the environmental impacts of cannabis production will become more regulated especially in the areas of energy use and water reliance.   Cannabis companies would be well served to ensure that they have effective environmental management strategies in place to not only ensure continued compliance but also to reduce the companies’ environmental footprint that could in turn result in significant cost savings.   

For example, according to the article, a typical growing operation can consume up to 2,000 watts of electricity per square meter for indoor growing operations as compared to 50 watts of electricity for growing other leafy greens such as lettuce.  According to a recent study, at least one expert estimates that cannabis production accounts for about one percent of electricity consumption in the United States.  Depending on the source of electricity, greenhouse gas emissions may be generated in the course of energy production that could be attributable to the cannabis operation’s carbon footprint.  President Biden is focused on reducing greenhouse gas emissions and one the key focus industries for President Biden is the agricultural industry.  Implementing an energy efficiency program with a focus on renewable energy sources may allow cannabis companies to be better positioned to comply with future regulations while at the same time reducing overall energy costs.       

Although not discussed in the article, cannabis production can be a fairly water intensive process with some studies estimating usage as high as six gallons per plant.  A recent study concluded that by 2025, total water use in the legal cannabis market is expected to increase by 86%.  As water scarcity issues become more prevalent especially in light of the changing climate, ensuring adequate sources of water will be critical to ensuring the ability to continue to grow cannabis plants.  At the same time, adopting effective water conservation procedures will allow facilities to reduce their environmental footprint with resulting cost savings. 

For more detailed insight on these issues, please click here for an article that was recently published in the Cannabis Law Journal. 

CATEGORIES: Air, Climate Change, Greenhouse Gas, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

August 12, 2021 Great Lakes Cleanup Part of Infrastructure Package?

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

GLRIAs part of the infrastructure package that was just approved on a bi-partisan basis by the Senate and is now moving on to the House, the Great Lakes Restoration Initiative (“GLRI”) could receive approximately $1 billion for the remediation of impacted site and waterways in the Great Lakes region.   

Since its inception in 2010, the GLRI has provided funding to 16 federal organizations to strategically target the biggest threats to the Great Lakes ecosystem and to accelerate progress toward achieving long term goals:

  • Fish safe to eat;
  • Water safe for recreation;
  • Safe source of drinking water;
  • All Areas of Concern delisted;
  • Harmful/nuisance algal blooms eliminated;
  • No new self-sustaining invasive species;
  • Existing invasive species controlled; and
  • Native habitat protected and restored to sustain native species.

One of the primary areas of focus of GRLI’s most recent action plan is the remediation of “Areas of Concern” (“AOCs”) that are defined as "geographic areas designated by the Parties where significant impairment of beneficial uses has occurred as a result of human activities at the local level."  There are currently more than 26 AOCs in the Great Lakes basin that could be cleaned up using monies appropriated in the current version of the infrastructure bill. 

We will continue to track the progress of the infrastructure bill and the availability of funds to address AOCs in the Great Lake basin at the Corporate Environmental Lawyer.

CATEGORIES: Contamination, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

July 9, 2021 EPA Issues Stop Sale Order for COVID-19 Disinfectant

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

On July 8, 2021, U.S. EPA issued a Stop Sale, Use or Removal Order (SSURO) for SurfaceWise2, one of only two “durable” disinfectants that had been previously approved for emergency use.  In August 2020, U.S. EPA issued the first ever Federal Insecticide, Fungicide and Rodentcide Act (FIFRA) public health emergency waiver for a surface disinfectant, approving SurfaceWise2 for use on surfaces when used as a supplement to a “List N” disinfectant in Arkansas, Oklahoma, and Texas.  Various environmental groups had challenged U.S. EPA’s emergency waiver over concerns that long-term exposure to SurfaceWise2’s active ingredient, quaternary ammonium, could have potential adverse human health effects.      

According to the press related that accompanied the SSURO, U.S. EPA claims that Allied BioScience, the manufacturer of SurfaceWise2, was marketing and selling, and distributing Surfacewise2 in a manner that was inconsistent with the terms and conditions of the FIFRA emergency authorization.  The SSURA requires Allied BioSciences to immediately stop selling and distributing SurfaceWise2 and will remain in effect unless revoked, terminated, suspended or modified in writing by U.S. EPA

Details regarding the alleged misconduct were not provided by U.S. EPA but according to a statement from Larry Starfield, U.S. EPA’s acting assistant administrator for the Office of Enforcement and Compliance Assurance, “Pesticides can cause serious harm to human health and the environment, which is why EPA requires their registration before being distributed for use” and “EPA is committed to holding companies accountable for not adhering to federal environmental laws.”  U.S. EPA’s issuance of the SSURO for SurfaceWise2 coupled its issuance of other SSUROs in connection with the sale of unregistered products making COVID-19 efficacy claims demonstrates that U.S. EPA is continuing to aggressively enforce compliance with FIFRA rules and regulations regarding pesticide products and especially pesticide products making efficacy claims with respect to COVID-19. 

July 1, 2021 Industry Organization Challenges EPA Cross State Air Pollution Rule

Torrence_jpgBy Allison A. Torrence

SmokeAs the saying goes, “no good neighbor rule goes unpunished.” Thus, the latest attempt by the U.S. Environmental Protection Agency (“EPA”) to promulgate a Revised Cross-State Air Pollution Rule (“CSAPR”) Update under 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 has been challenged in court. On June 25, 2021, Midwest Ozone Group—an affiliation of companies, trade organizations, and associations created to advance its members interests regarding national ambient air quality programs—filed a petition for review of the final rule of EPA published in the Federal Register at 86 Fed. Reg. 23,054 (April 30, 2021) entitled the “Revised Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS.” The petition does not provide any details at this point regarding the basis for the group’s challenge to the Revised CSAPR Update.

As we previously reported on this Blog, the Revised CSAPR Update became effective 60 days after it was published (effective on June 29, 2021), and has requirements that begin right away in the 2021 ozone season (the ozone season is May 1 through September 30). The rule requires 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 National Ambient Air Quality Standards (“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.

One part of the Revised CSAPR Update that may be of particular interest to the challengers is that EPA issued new or amended Federal Implementation Plans (“FIPs”) for these 12 states that replaces those states’ existing CSAPR emissions budgets for power plants. The revised emission budgets take effect immediately with the 2021 ozone season and will adjust through 2024. The 2021 emission budgets will require power plants in these states to take advantage of existing, already-installed selective catalytic reduction (“SCR”) and selective non-catalytic reduction (“SNCR”) controls. Emissions reductions in the 2022 budgets will require installation or upgrade of state-of-the-art NOX combustion controls at power plants. Emission budgets will continue to be adjusted, through 2024, until air quality projections demonstrate that the upwind states are no longer significantly contributing to downwind states’ nonattainment of the 2008 ozone NAAQS.

Midwest Ozone Group is required to submit a Statement of Issues to be Raised by July 28, 2021, which should shed more light on the strengths or weaknesses of the petitioner’s challenges to this rule. Stay tuned to the Corporate Environmental Lawyer Blog for additional analysis at that time and if any other significant developments arise in the meantime.

CATEGORIES: Air

PEOPLE: Allison A. Torrence

June 24, 2021 EPA to Revise or Replace Trump-Era Clean Water Act Rules, But Will Leave Existing Rules In Place For Now

Torrence_jpgBy Allison A. Torrence

1200px-Seal_of_the_United_States_Environmental_Protection_Agency.svgThe U.S. Environmental Protection Agency (“EPA”), under Administrator Michael Regan, has begun the process of reviewing and revising two key Clean Water Act (“CWA”) rules: The Navigable Waters Protection Rule and the CWA Section 401 Certification Rule. In recent court filings in cases where litigants have challenged both of these Trump-era rules, EPA has requested those cases be remanded because EPA has commenced new rulemaking processes that will revise or replace the challenged rules. However, if the courts grant EPA’s requests, EPA has requested that the existing rules remain in effect until EPA finalizes replacement rules through the formal notice and comment rulemaking process.

The first of the two key CWA rules at issue is the Navigable Waters Protection Rule, which defines “Waters of the United States”. This is a significant rule and definition because the jurisdiction of the CWA is limited to Waters of the United States. Thus, by setting the definition of Waters of the United States, EPA establishes the reach of the CWA. Due to the significance of this definition, it has been widely contested throughout the years and every attempt by EPA and the U.S. Army Corps of Engineers to promulgate a definition has faced legal challenges.  

In 2019, the Trump Administration rescinded the Obama-era Waters of the United States rule and in 2020, issued the Navigable Waters Protection Rule, narrowing the definition of Waters of the United States. The most significant change in the Trump rule is that the new definition excludes ephemeral waters (those flowing only in direct response to precipitation) and many wetlands that are near other jurisdictional waters but lack a physical or surface connection to them.

In several court filings in June, EPA has stated its plans “to commence a new rulemaking to revise or replace the [Navigable Waters Protection] rule.” Notably, EPA is not requesting vacatur of the existing rule during the rulemaking process.

The second CWA rule facing a similar fate is the CWA Section 401 Certification Rule. Under the CWA, a federal agency may not issue a permit or license for an activity that may result in a discharge into a Water of the United States unless a Section 401 Certification has been issued verifying compliance with water quality requirements. States and authorized tribes are generally responsible for issuing Section 401 Certifications, and they are required to act on a Section 401 Certification request “within a reasonable period of time (which shall not to exceed one year) after receipt” of such a request. 33 U.S.C. § 1341(a)(1).

The Trump EPA issued the final CWA Section 401 Certification Rule on July 13, 2020, with the goal of expediting infrastructure permitting by making the 401 Certification process quicker. The biggest changes made by this rule were limiting the scope of state and tribal certification review and limiting the imposition of conditions in the certifications. Just as with the Navigable Waters Protection Rule, EPA has now indicated in court filings (and on its website) that the Section 401 Certification Rule is under review and will be revised or revoked, but also will not be vacated in the interim.

EPA has a lot of work ahead to propose new versions of these rules for public review and comment. Promulgation of final rules will therefore be many months, if not more than a year away. In the meantime, environmental groups and other challengers have indicated they will continue to challenge the Trump-era rules still in effect. The Corporate Environmental Lawyer blog will keep a close watch and report on all key developments.

CATEGORIES: Climate Change, Real Estate and Environment, Sustainability, Water

PEOPLE: Allison A. Torrence

June 21, 2021 OSHA’s Healthcare Emergency Temporary Standard Is Promulgated: The Countdown to a Legal Challenge Begins

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

Covid-19

On June 21, 2021, the federal Occupational Safety and Health Administration (OSHA) had its Occupational Exposure to COVID-19, Emergency Temporary Standard (ETS) published in the Federal Register, making it immediately effective on that date. 86 FR 32377 (June 21, 2021). OSHA has the authority to issue an ETS, for immediate application upon publication in the Federal Register, without first proceeding through typical notice-and-comment rulemaking, if OSHA “determines” that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards,” and an ETS is “necessary to protect employees from such danger.” 29 USC §655(c)(1). 

Any person “adversely affected” by the ETS may raise a legal challenge in the U.S. Court of Appeals of their principal place of business or residence, within 60 days after the ETS’s publication, and the court could then issue a stay of the rule’s implementation. 29 USC §655(f)(1). By statute, the “determinations of [OSHA] shall be conclusive if supported by substantial evidence in the record considered as a whole.” Id.  OSHA has not successfully issued an ETS in more than four decades; the open legal issue is whether OSHA’s ETS will survive legal challenge, if any is raised. 

Despite its broad title in the Federal Register, the ETS, to be codified at 29 CFR §1910.502, is targeted to specific employment “settings,” i.e., “all settings where any employee provides healthcare services or healthcare support services.” 29 CFR §1910.502(a)(1). OSHA further narrows the scope of the ETS to apply to those employees who are licensed healthcare providers and likely to be involved in the care of people suspected or confirmed to have COVID-19 and certain fully vaccinated employees. See generally, id. at §1910.502(a)(2) and the OSHA decision tree “Is Your Workplace Covered by the ETS?” The ETS requires that affected employers (1) have a COVID-19 plan, typically in writing, with a designated person in charge of implementing the plan, and based on a risk assessment, providing policies and procedures for control of COVID-19 transmission; (2) institute patient screening and management; (3) implement policies and procedures for precautions, including regarding PPE, response to aerosol-generating procedures, cleaning/disinfecting, physical distancing, and barriers; (4) ventilation standards; (5) have health screening and paid medical removal of employees after illness and exposure; (6) have paid vaccination leave; (7) provide training and communication, including regarding anti-retaliation protections; (8) institute recordkeeping of all COVID-19 cases, regardless of work-relatedness; and (9) institute a “mini respiratory protection program” when use of respirators are not otherwise required, but the employee or employer chooses to upgrade a facemask to an N95 or similar respirator. Employers must comply with all provisions within 14 days, i.e., by July 5, 2021, except for the provisions regarding physical barriers, training, and ventilation, which have a July 21, 2021 compliance date. 

The ETS is accompanied by a preamble of more than 200 pages, much of it devoted to OSHA’s determinations regarding the grave danger and need for the ETS generally and each provision specifically. In the preamble, OSHA recognizes and addresses the most likely legal challenges to the ETS. OSHA begins by framing the ETS as an action which OSHA was required to take, because the OSH Act provides that OSHA “shall provide… for an emergency temporary standard” upon a finding of grave danger and need for the ETS. 29 USC §655(c)(1); 86 FR at 32380.

With respect to the grave danger element, OSHA’s position is that it need only show that the dangers to workers from COVID-19 are “incurable, permanent, or fatal…as opposed to easily curable and fleeting effects on their health.” 86 FR at 23280 quoting Fla. Peach Growers Ass'n, Inc. v. U.S. Dep't of Labor, 489 F.2d 120, 132 (5th Cir. 1974). OSHA begins by discussing the nature of the disease, including its health and “other adverse effects”, including “observed disparities in risk based on race and ethnicity,” and continues by addressing the transmission of the virus and the effect of vaccines on OSHA’s determination of grave danger, the effect on healthcare workplaces in particular. 86 FR at 32381, et seq. OSHA finds that “the advent of vaccines does not eliminate the grave danger …in healthcare workplaces where less than 100% of the workforce is fully vaccinated,” due to spread among unvaccinated workers, the risk of breakthrough infection among the vaccinated, and vaccine hesitancy among health care workers. Id. at 32398. OSHA hedges that ‘[i]f and when OSHA finds a grave danger from the virus no longer exists for the covered workforce (or some portion thereof), or new information indicates a change in measures necessary to address the grave danger, OSHA will update the ETS, as appropriate.” Id. at 32399. In the meantime, relying on “CDC guidance and the best available evidence, OSHA finds a grave danger in healthcare for vaccinated and unvaccinated HCP involved in the treatment of COVID-19 patients.” Id. 

Reflecting that OSHA’s last attempt at issuing an ETS was rejected by the court for failure to show the necessity of the rule, given already existing OSHA standard, OSHA spent most of the preamble addressing the necessity issue. See Asbestos Info. Ass'n/N. Am. v. OSHA, 727 F.2d 415, 425-26 (5th Cir. 1984). In this case, the necessity element is particularly difficult for OSHA to establish, including because of its own prior response to COVID-19 in the workplace. OSHA notes that since January 2020 and continuing through October 2020, it has received requests for an ETS. However, beginning in May 2020, OSHA rejected those attempts given its existing enforcement tools, including for PPE, respiratory protection, and the General Duty Clause. When sued by the AFL-CIO for failing to issue a COVID-19 ETS for all workers, the U.S. Court of Appeals for the D.C. Circuit found that “in light of 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, …OSHA reasonably determined that an ETS is not necessary at this time.” In re Am. Fed'n of Labor & Cong. of Indus. Orgs., No. 20-1158, 2020 WL 3125324 (D.C. Cir., June 11, 2020).

OSHA recognizes that, after it decided against issuing an ETS, some state and local governments issued their own requirements and guidelines, leading to a “patchwork of state and local regulations [providing] inadequate and varying levels of protection for workers across the country, and [causing] problems for many employees and businesses.” Id. at 32413. Thus, OSHA “does not believe its prior approach—enforcement of existing standards and the General Duty Clause coupled with the issuance of nonbinding guidance—has proven over time to be adequate to ‘reduce the risk that workers may contract COVID-19’ in healthcare settings.” Id.

To support this decision, OSHA critiques the inadequacy of several tools it has already used for its COVID-19 enforcement efforts, including its main weapon—the General Duty Clause. See, e.g., id. at 32415, et seq. OSHA finds several weaknesses in the use of the General Duty Clause, including because it imposes a “heavy litigation burden on OSHA.” OSHA would have to prove that the COVID-19 infection hazard was present at the particular workplace that was cited and that each abatement method that OSHA recommends would materially reduce the hazard at that particular workplace. Moreover, OSHA admits that it could not use the General Duty Clause to enforce the ETS’s requirements for paid time for vaccination, its side effects, and medical removal. Id. at 32420. OSHA also notes that an ETS is necessary for it to address willful violations of the law by clarifying “what exactly employers are required to do to protect employees,” implying that the General Duty Clause does not do so. Id. at 32420. OSHA notes that the Clause is further limiting because it would not permit it to cite the employer on a “per-instance basis” for each employee that OSHA determines was not adequately protected. OSHA also critiques the General Duty Clause for its “limited application to multi-employer worksites, like hospitals,” thus giving OSHA the ability to, for example, cite the hospital for exposing a non-employee to a COVID-19 hazard. Id. at 32420-21.

OSHA also critiques the efficacy of its voluntary guidance for protecting workers, including the lack of compliance and the need for a “more consistent national approach,” that “levels the playing field” among all employers. Id. at 32422. OSHA proceeds to show that its previous reasons for rejecting an ETS, issued “at an early phase of the pandemic,” do not preclude OSHA’s action now. The agency agrees with criticism, including that issued by the Department of Labor’s Office of Inspector General, that “the combination of guidance and General Duty Clause authority has done little to protect employees [and] will not protect employees covered by this ETS….” Id. at 32423. OSHA also rejects that availability of vaccines has made the ETS unnecessary, and finds that “the potential for higher immunity rates later on does not obviate the need to implement the ETS now.” Id. at 32424. OSHA’s position reflects that although the ETS is immediately effective, OSHA must now open a notice-and-comment procedure and either issue a permanent standard according to those methods within 6 months, or the ETS is no longer applicable. 29 USC §655(c)(3). 

OSHA’s justification for the ETS is hampered by both a lack of data and evolving data. OSHA admits that it does not have the data to conduct its typical risk assessment, and that it cannot state the number of healthcare workers that have contracted COVID-19.  OSHA asserts that such an assessment “is not necessary in this situation” because the
“gravity of the danger presented by a disease with acute effects like COVID-19…is made obvious by a straightforward count of deaths and illnesses….” Id. at 32411. OSHA estimates that the ETS will save 776 lives over the next 6 months, based on a seven-step estimating process, which OSHA also modifies in certain circumstances. 86 FR at 32537.

OSHA also has the data-based challenges of declining infections, hospitalizations, and death; the lack of data that any state-promulgated ETS had any effect on work-related transmission of the virus; declining worker complaints about COVID-19 related hazards; and the paucity of data showing that healthcare workers face greater risks at work than in the community at large. In addition, while declaring that its current enforcement methods are not effective, OSHA has sparse data showing that is the case. The Department of Labor’s Office of Inspector General found that it was OSHA’s tepid enforcement in 2020 that led to greater COVID-19 hazards in the workplace, and OSHA’s March 2021 National Emphasis Program addressing COVID-19 has barely gotten off the ground. Moreover, none of the agency’s COVID-19 General Duty clause cases have reached the point of decision by the Occupational Safety and Health Review Commission, which would indicate whether OSHA could effectively rely on the General Duty Clause, including as a deterrent to other employers who have not been cited. 

The time clock for a legal challenge to the ETS has started. If challenged, OSHA must show that its preamble provides “substantial evidence” such that “a reasonable mind might accept [it] as adequate to support a conclusion.” American Textile Mfrs. Inst., Inc. v. Donovan, 452 U.S. 490, 522 (1981). As the court noted in Asbestos Info. Ass'n, this standard requires that the court “take a ‘harder look’ at OSHA’s action than we would if we were reviewing the action under the more deferential arbitrary and capricious standard applicable to agencies governed by the Administrative Procedure Act.” 727 F.2d at 421. To protect the ETS from legal challenge, OSHA has included a severability clause in the regulation itself, stating that “each individual section and provision of the ETS can continue to sensibly function in the event that some sections or provisions are invalidated, stayed, or enjoined.” 86 FR at 32617. Whether this COVID-19 Healthcare ETS becomes OSHA’s first emergency rule in more than 40 years is now an active question, including whether there are parties who wish to take the public position of opposing protections for health care workers during a pandemic.

For information or advice on OSHA guidance, standards and enforcement during the pandemic, please contact the author. Additional information regarding working during the COVID-19 pandemic can be found in Jenner & Block’s Corporate Environmental Lawyer blog and in the Jenner & Block COVID-19 Resource Center.

CATEGORIES: COVID-19, OSHA

PEOPLE: Gabrielle Sigel