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May 28, 2020 The Ninth Circuit Sends Climate Change Cases Back to State Court

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By Leah M. Song

EarthOn May 26, 2020, the Ninth Circuit agreed with plaintiffs that two climate change lawsuits—County of San Mateo v. Chevron Corp. et al. and City of Oakland v. BP p.l.c. et al.—had been improperly removed to the federal courts, continuing courts’ recent trend of remanding these types of cases back to state court.

A growing form of climate change litigation in the United States consists of lawsuits filed by states or municipalities against private industry, and more specifically, the fossil-fuel industry. States, cities and other units of local government have filed lawsuits alleging state common law theories, including nuisance, trespass, failure to warn of the known impacts of climate change, and unjust enrichment. The outcome of these cases thus far has hinged on whether or not the fossil fuel companies are able to successfully remove the litigation to federal court where they stand a much greater chance of getting the litigation dismissed. Generally, plaintiffs (including states, units of local government, and non-governmental organizations) asserting climate change claims against corporations prefer to be in state court where they can take advantage of perceived plaintiff-friendly common law or state statutes. On the other hand, defendants inevitably seek to remove such cases to federal court where they have had a higher level of success securing dismissals on the grounds that the issue is preempted by the Clean Air Act and/or addresses a “political question” which is better left to the discretion of Congress. See City of N.Y. v. BP P.L.C.. 325 F. Supp. 3d 466 (S.D.N.Y. 2018).

In County of San Mateo v. Chevron Corp. et al., six California municipalities and counties sued more than 30 fossil-fuel companies in California state court. The plaintiffs brought a variety of claims under state common law including nuisance, negligence, failure to warn, and trespass. In City of Oakland v. BP p.l.c. et al., the Cities of Oakland and San Francisco sued five fossil-fuel companies in state court under a theory of nuisance. The fossil-fuel companies removed both cases to federal court. The San Mateo district court remanded the case back to state court while the Oakland district court refused to remand the case back to state court, finding that plaintiffs’ public nuisance claims were governed by federal common law, but then proceeding to dismiss the lawsuit. Both cases were appealed to the Ninth Circuit.

On May 26th, the Ninth Circuit joined the Fourth Circuit (Mayor and City Council of Baltimore v. BP P.L.C., et al., No. 19-1644 (4th Cir. Mar. 6, 2020)) in concluding that these climate change cases alleging only state-common law claim belonged in state court. In County of San Mateo v. Chevron Corp. et al., the Ninth Circuit emphasized its limited authority to review an order remanding a case back to state court under 28 U.S.C. § 1447(d). The Ninth Circuit therefore limited its review to determining whether the district court erred in holding that the federal court lacked subject matter jurisdiction under the federal-officer removal statute.

In order to determine whether the district court erred in holding that it did not have subject matter jurisdiction, the Ninth Circuit examined whether the companies were “acting under” a federal officer’s directions. The companies argued that they were “persons acting under” a federal officer based on several agreements with the government. However, the Ninth Circuit concluded that the companies’ activities under these agreements did not give rise to a relationship where they were “acting under” a federal officer. Accordingly, the Ninth Circuit court held that the fossil fuel companies failed to meet their burden for federal-officer removal and therefore affirmed the district court’s remand order.

In City of Oakland v. BP p.l.c. et al., the Ninth Circuit considered whether “the district court erred in determining that it had federal-question jurisdiction under 28 U.S.C. § 1331” and ultimately held that plaintiffs’ state common-law public nuisance claims did not arise under federal common law. The court acknowledged that there are exceptions to the well-pleaded complaint rule for claims that arise under federal law, but concluded that none of those exceptions applied here.

The court reasoned that “[t]he question whether the Energy Companies can be held liable for public nuisance based on production and promotion of the use of fossil fuels and be required to spend billions of dollars on abatement is no doubt an important policy question, but it does not raise a substantial question of federal law for the purpose of determining whether there is jurisdiction under § 1331.” Furthermore, evaluation of the public nuisance claim would require factual determinations which are “not the type of claim for which federal-question lies.” The fossil fuel companies argued that the plaintiffs’ public nuisance claim was completely preempted by the Clean Air Act, but the court was not persuaded.

In response to defendants’ argument that by amending their complaint to assert a federal common law claim, the district court properly had subject matter jurisdiction under 28 U.S.C. § 1331, the Ninth Circuit noted that plaintiffs only amended their complaint in response to the district court’s statements that plaintiffs’ claims were governed by federal common law. Moreover, the Ninth Circuit noted that since a party violates § 1441(a) “if it removes a cases that is not fit for federal adjudication, a district court must remand the case to state court, even if subsequent action conferred subject-matter jurisdiction on the district court.”

Notwithstanding these conclusions, the Ninth Circuit noted that the district court had not addressed alternative bases for removal raised by defendants and therefore remanded the case back to the district court. However, the Ninth Circuit specifically noted that if the district court concludes that there are no valid bases for federal jurisdiction, the case should be remanded back to state court.

Although these rulings did not address the merits of plaintiffs’ common-law claims, these cases will certainly pose challenges for defendants seeking to remove these types of cases to federal court, and will likely affect plaintiffs’ and defendants’ strategies in climate change litigation moving forward. Jenner & Block’s Corporate Environmental Lawyer will continue to update on those matters, as well as other important climate change litigation cases, as they unfold.

 

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

PEOPLE: Leah M. Song

May 21, 2020 New Executive Order Presses Agencies to Continue to Seek Regulatory Flexibility in Response to the Covid-19 Pandemic

Song

By Leah M. Song

Covid-19On May 19, 2020, the President issued an executive order titled “Regulatory Relief to Support Economic Recovery” (“Executive Order”). The Executive Order seeks to “overcome the effects the virus has had on [the] economy”  and to that end, directs agencies and executive departments to "continue to remove barriers to the greatest engine ever known: the innovation, initiative and drive of the American people."  To do so, executive departments and agencies are encouraged and directed to take appropriate action.

The Executive Order directs agencies to respond to the economic consequences of COVID‑19 by “rescinding, modifying, waiving, or providing exemptions from regulations and other requirements that may inhibit economic recovery.”  Agencies are directed, "to use, to the fullest extent possible and consistent with applicable law, any emergency authorities” to support the economic response to COVID-19. Agencies are charged with identifying “regulatory standards that may inhibit economic recovery” and take appropriate action to promote job creation and economic growth. This includes issuing proposed rules, exempting persons or entities from requirements, exercising appropriate temporary enforcement discretion or temporary time extensions.

The Executive Order further instructs agencies to provide compliance assistance for regulated entities and to “accelerate procedures by which a regulated person or entity may receive a pre-enforcement ruling.” Agencies should consider enforcement discretion policies for those that “have attempted in reasonable good faith to comply with applicable statutory and regulatory standards.” Additionally, the Executive Order emphasized that agencies should “consider the principles of fairness” and “revise their procedures and practices in light of them.” The Executive Order recommends that agencies review regulatory standards and “determine which, if any, would promote economic recovery if made permanent.”

Consistent with this Executive Order, the Environmental Protection Agency (“EPA”) has previously issued a COVID-19-related policy regarding EPA's decision to exercise enforcement discretion with respect to non-compliance with certain environmental requirements (this enforcement policy was the subject of a prior Corporate Environmental blog).  Although EPA's enforcement discretion policy has been challenged by several states and environmental organizations, the Executive Order would seem to diminish the likelihood that EPA will rescind its enforcement discretion policy in the near term. 

Please feel free to contact the author 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.

CATEGORIES: Air, COVID-19, Sustainability

PEOPLE: Steven M. Siros, Leah M. Song

April 30, 2020 U.S. EPA Extends Comment Period on PFAS Safe Drinking Water Act Regulatory Determination to June 10, 2020

Linkedin_Steven_Siros_3130By Steven M. Siros

Epa logoAs discussed in more detail in a previous blog, on February 20, 2020, the U.S. Environmental Protection Agency (“U.S. EPA”) announced that it was seeking public comments on its preliminary regulatory determination that seeks to implement regulatory limits for Per- and Polyfluoroalkyl Substances (PFAS) in public drinking water across the United States.  The regulatory determination is a key step in the creation of a Maximum Contamination Level (“MCL”) that will act to limit the quantity of PFAS permitted in public drinking water. 

In its preliminary regulatory determination, U.S. EPA proposes setting MCL levels for two PFAS substances, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), which EPA has determined meet the statutory criteria to become regulated contaminants under the Safe Drinking Water Act.  To meet this criteria, U.S. EPA had to find that: (1) the consumption of PFOS and PFOA may result in adverse health effects; (2) PFOS and PFOA have been identified in public water supplies at frequencies and levels sufficient to cause a public health concern; and (3) that new regulation presents a meaningful opportunity to reduce the health risks posed by PFOS and PFOA.

The Association of Metropolitan Water Agencies and the American Water Works Association (collectively “AMWA”) submitted comments that were supportive of setting an MCL for PFOS and PFOA. In addition to targeting PFOA and PFOS, the AMWA recommended that U. S. EPA also include four other long-chain PFAS compounds in its regulatory determination. AMWA also recommended that U.S. EPA “thoroughly consider state standards and guidelines with significantly lower PFAS levels that [U.S. EPA’s] Health Advisory Level (HAL) of 70 parts per trillion (ppt) for combined concentrations of PFOA and PFOS.”

The AMWA also requested that U.S. EPA extend the comment period an additional 30 days to allow the AMWA to more fully engage with its members and to provide more meaningful and comprehensive comments on the proposal. To that end, U.S. EPA has now agreed to extend the comment period an additional 30 days May 10th to June 10th.

CATEGORIES: Air, Climate Change, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

April 28, 2020 Illinois Judge Blocks Current and Future Extensions of Illinois Stay-at-Home Order

Lawson Headshot SongBy Matthew G. Lawson and Leah M. Song

PritzkerOn Monday, April 27, 2020, Illinois Circuit Court Judge Michael McHaney temporarily blocked enforcement of Illinois Governor JB Pritzker's March 20, 2020 stay-at-home order, which had been extended through April 30, by granting a temporary restraining order (“TRO”) sought by Illinois State Representative (R) Darren Bailey.  As issued, the judge’s decision prohibits Governor Pritzker from enforcing the pending stay-at home order—or any future executive orders that require home quarantine—against Rep. Bailey.

As background to the lawsuit, on March 9, 2020, in response to the COVID-19 pandemic, Governor Pritzker issued an Executive Order, declaring all counties within Illinois as disaster areas (the “Disaster Declaration”). Governor Pritzker’s Disaster Declaration was issued pursuant to the Illinois Emergency Management Agency Act, 20 ILCS 3305 et seq. (“Illinois Emergency Act”). On March 20, pursuant to the Governor’s authority under the Illinois Emergency Act, Governor Pritzker issued Executive Order 2020-10, which requires “individuals currently living within the State of Illinois…to stay at home or at their place of residence” (“the March Stay-at-Home Order”). The March Stay-at-Home Order provides an exception allowing individuals to leave the home to engage in an enumerated list of “essential activities,” including tasks essential to health and safety, certain approved outdoor activities, and to perform work for essential businesses. The March Stay-at-Home Order was originally set to end on April 7, 2020, but on April 1, Governor Pritzker issued an extension of the March Stay-at-Home Order through April 30, 2020, and on April 23, the Governor announced his intent to further extend the order through May 30, 2020.

On April 23, 2020, Rep. Bailey—whose district includes Clay County, Illinois—filed a complaint in the Clay County Circuit Court alleging that Governor Pritzker’s April 1 extension of the stay-at-home order exceeded the authority afforded to the Governor under the Illinois Emergency Act.  Specifically, the lawsuit alleges that the Illinois Emergency Act grants certain enumerated powers to the Illinois Governor following the proclamation of a “public health emergency,” but that Section 7 of the Illinois Emergency Act limits these authorities to “a period not to exceed 30 days” following the declaration.  Thus, Rep. Bailey alleges that any extension of the stay-at-home order beyond April 8, 2020—i.e, more than 30 days beyond the March 9 Disaster Declaration, is void and that the Governor’s publicly announced plan to extend the Executive Order through May 30, 2020 is “void ab initio”. The lawsuit further alleges that Governor Pritzker’s unauthorized use of the Illinois Emergency Act has impermissibly limited Rep. Bailey’s constitutionally protected freedoms to travel within the state of Illinois. The complaint requests a declaratory judgment that Governor Pritzker’s April 1 extension of the March Stay-at-Home Order is void, and seeks a permanent injunction enjoining Governor Pritzker, or anyone under his authority, from enforcing the March Stay-at-Home Order, at any time, against Rep. Bailey.

On the same date that he filed his complaint, Rep. Bailey filed a motion seeking a TRO to enjoin Governor Pritzker from enforcing the March Stay-at-Home Order against him or entering any further executive orders as a result of the Disaster Declaration that would limit Rep. Bailey’s ability to travel within the state. To obtain a TRO, under Illinois law, the movant must establish: (1) a protectable right; (2) irreparable harm; (3) an inadequate remedy at law; and (4) a likelihood of success on the merits. See ­­­­­­ Smith v. Dep't of Nat. Res., 35 N.E.3d 1281, 1287 (Ill. App. Ct. 5th Dist. 2015). In its order granting the TRO, the circuit court found that Rep. Bailey had “shown he will suffer irreparable harm if the [TRO] is not issued” and had “shown he has no adequate remedy at law or in equity in that absent a [TRO] being entered, plaintiff, will continue to be isolated and quarantined in his home.” The court’s order provided that the TRO will stay in effect until “a date to be agreed upon by the parties, not to exceed 30 days from [April 27] wherein [plaintiff’s motion for] a preliminary injunction will be heard on that date.”

On Tuesday, April 28, 2020, Governor Pritzker filed a notice of interlocutory appeal to the Appellate Court of Illinois, Fifth Judicial District, requesting that the court reverse and vacate Judge McHaney’s decision and dissolve the TRO. Both Bailey and Pritzker will have an opportunity to file briefs before the appellate court. A date for oral argument before the court has not been set. “We are certainly going to act in a swift action to have this ruling overturned,” Pritzker said in a press briefing following the original decision. “Representative Bailey’s decision to go to the courts is an insult to all Illinoisans who have been lost during this COVID-19 crisis. It’s a danger to millions of people who might get ill because of his recklessness.” 

While Judge McHaney’s ruling states that it only prohibits enforcement against Rep. Bailey, the lawsuit potentially opens the door for others in Illinois to file similar lawsuits or to resist compliance with the Governor’s Executive Orders issued since April 7, 2020.  In addition, the complaint seeks a declaration that the stay-at-home order is void which arguably could have state-wide effect. In a statement concerning the lawsuit, Rep. Bailey said that he filed the complaint “on behalf of myself and my constituents who are ready to go back to work and resume a normal life,” although the TRO and Complaint as written did not state that it applied to any person other than Rep. Bailey. In the meantime, Governor Pritzker vowed to continue issuing new public health directives, as he deemed necessary, while the case remained unresolved.

CATEGORIES: Air, COVID-19

PEOPLE: Matthew G. Lawson, Leah M. Song

April 13, 2020 EPA Issues Guidance on COVID-19 Impacts for Ongoing Cleanups

 

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By Steven M. Siros and Leah M. Song

Covid-19Building on its  March 26, 2020 temporary enforcement policy, on April 10, 2020, the U.S. Environmental Protection Agency (“EPA”) issued its interim guidance regarding new or ongoing cleanup activities during the COVID-19 situation.

The interim guidance focuses on decision making at emergency response and longer term cleanups sites where EPA is the lead agency or has direct oversight of, or responsibility for, the cleanup work. This includes, but is not limited to, Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substance and Control Act PCB cleanups, Oil Pollution Act spill responses, and Underground Storage Tank Program actions.

Discretion Vested With the Individual Regions

In general, the interim guidance vests each EPA Region with the authority to make site-specific decisions taking into consideration the possible impact of COVID-19 on sites, surrounding communities, EPA personnel, and response/cleanup partners. Importantly, at sites where the Region determines that work should move forward, the Region is charged with reviewing each site’s health and safety plan (“HASP”) to ensure that it appropriately incorporates CDC’s and other relevant COVID-19 guidelines.

Key Factors For Making Site Work Decisions

The interim guidance outlines a series of site-specific factors that should guide Region’s when making determinations as to whether field response actions will continue, be reduced, or be paused. When making this assessment, Regions are directed to consider all relevant site-specific factors, including but not limited to (i) the safety and availability of work crews, EPA, state or tribal staff; (ii) the critical nature of the work; (iii) logistical challenges (e.g., transportation, lodging, availability of meals, etc.); and (iv) other factors particular to a site.

Factors that would support continuing site work include where:

  • a failure to continue response actions would likely pose an imminent and substantial endangerment to human health or the environment, and whether it is practical to continue such actions; and
  • maintaining any response actions would lead to a reduction in human health risk/exposure within the ensuing six months.

Factors that would support a pause in work include:

  • work that would not provide near-term reduction in human health risk could be more strongly considered for delay, suspension, or rescheduling of site work;
  • state, tribal or local health officials have requested a stoppage;
  • any workers have tested positive for or exhibited symptoms of COVID-19;
  • workers may closely interact with high-risk groups or those under quarantine;
  • contractors are not able to work due to state, tribal or local travel restrictions or medical quarantine; and
  • workers can't maintain proper social distancing.

According to EPA, as of April 1st, EPA has reduced or paused on-site construction work at approximately 34 EPA or PRP-lead Superfund National Priority List sites, or 12% of all EPA sites with ongoing remedial actions, due to the evolving situation with COVID-19.

With respect to non-field work, given that much of the work to advance cleanup of sites is performed away from sites, to the extent possible, the interim guidance notes that this work should continue. Important work can be conducted virtually and represent opportunities to make progress on primary activities like investigation reports (including pre-NPL work), modeling, negotiations between the parties, decision documents, cleanup documentation, workplans, progress reports, and maintaining compliance with obligations such as financial assurance.

Interim Guidance Does Not Extend Compliance Deadlines

Importantly, the interim guidance does not excuse a parties’ compliance obligations under consent decrees or similar enforcement instruments. Instead, parties are directed to review the governing enforcement instrument, including provisions allowing for adjustments to schedules to be made at the discretion of EPA’s project manager and/or force majeure provisions, for directions on providing the requisite notice and other information described in the provisions. For further discussion regarding these types of provisions in enforcement instruments, please see our earlier blog titled “Does Environmental Investigation and Remediation Continue Despite COVID-19 Business Restrictions and Social Distancing.”

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.

 

 

CATEGORIES: Air, COVID-19

PEOPLE: Steven R. Englund, Steven M. Siros

March 27, 2020 EPA’s Temporary Enforcement Discretion Policy for COVID-19 Pandemic

Song By Leah M. Song and Steven M. SirosLinkedin_Steven_Siros_3130

Covid-19On March 26, 2020, the U.S. Environmental Protection Agency (“EPA”) announced a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. EPA Administrator Andrew Wheeler stated that the “EPA is committed to protecting human health and the environment, but recognizes challenges resulting from efforts to protect workers and the public from COVID-19 may directly impact the ability of regulated facilities to meet all federal regulatory requirements.”

This temporary enforcement discretion policy applies to civil violations during the COVID-19 outbreak. To clarify, the policy does not apply to: a) any criminal violations or conditions of probation in criminal sentences, b) activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments, and c) imports. Additionally, the policy does not relieve any entity from preventing, responding to, or reporting accidental releases.

The temporary policy makes it clear that the EPA expects regulated facilities to comply with regulatory requirements, where reasonably practicable, and to return to compliance as quickly as possible. To be eligible for enforcement discretion, the policy also requires facilities to document decisions made to prevent or mitigate noncompliance and demonstrate how the noncompliance was caused by the COVID-19 pandemic.

The policy addresses different categories of noncompliance differently and is broken into the following sections:

 

Routine Compliance Monitoring and Reporting by Regulated Entities

Facilities should use existing procedures to report noncompliance with routine activities, such as compliance monitoring, integrity testing, sampling, laboratory analysis, training, and reporting or certification. If reporting is not reasonably practicable due to COVID-19, facilities should maintain this information internally and make it available to EPA upon request. In general, the EPA does not expect to seek penalties for violations of such routine activities where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request.

Additionally, the EPA does not plan to ask facilities to “catch-up” with missed monitoring or reporting if the underlying requirement applies to intervals of less than three months. For other monitoring or reports, such as those required on a bi-annual or annual basis, when this policy is no longer in effect, the EPA expects facilities to take reasonable measures to resume compliance activities as soon as possible, including conducting late monitoring or submitting late reports, and encourages facilities to provide supporting documentation in the reporting form.

Given the online availability of trainings, the EPA does not think trainings will be affected. If training is not practicable due to COVID-19, the EPA believes that it is more important to keep experienced, trained operators on the job, even if a training or certification is missed.

EPA does expect continued submissions, certifications or required reports or other deliverables, but will exempt the requirement to obtain a “wet” signature, and will accept a digital or electronic signature. EPA strongly encourages use of approved electronic reporting mechanisms.

Settlement Agreement and Consent Decrees Reporting Obligations and Milestones

Parties to EPA administrative settlement agreements should utilize the notice procedures set forth in the agreement if the parties anticipate missing enforceable milestones. The notification should provide the information required by the agreement, which typically will include steps taken to minimize the effects and duration of any noncompliance caused by COVID-19.

Consent decrees entered into with the EPA and the U.S. Department of Justice (“DOJ”) remain under the jurisdiction of the courts. The EPA staff will coordinate with the DOJ to exercise enforcement discretion with regard to stipulated penalties for the routine compliance obligation. Again, parties should utilize the notice procedures set forth in the consent decree.

Facility Operations

The EPA expects all regulated entities to continue to manage and operate their facilities in a manner that is safe and that protects the public and the environment.

Facilities should contact the appropriate implementing authority if facility operations impacted by COVID-19 may create an acute risk or an imminent threat to human health or the environment. In response, the EPA will work with the appropriate authority to discuss measures to minimize or prevent the acute or imminent threat to health or the environment from the COVID-19-caused noncompliance and obtain a return to compliance as soon as possible.

If a facility suffers from failure of air emission control or wastewater or waste treatment systems or other facility equipment that may result in exceedances of enforceable limitations, the facility should notify the implementing authority as quickly as possible. The notification also should include information on the pollutants emitted, discharged, discarded, or released; the comparison between the expected emissions or discharges, disposal, or release and any applicable limitation(s); and the expected duration and timing of the exceedance(s) or releases.

If facility operations result in noncompliance are not already addressed by the EPA above, the facility should do its best to prevent or mitigate noncompliance and document such efforts.

If a facility is a generator of hazardous waste and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer the waste off-site within the time periods required under RCRA to maintain its generator status, the facility should continue to properly label and store such waste. If the facility does its best to prevent or mitigate noncompliance, the EPA will treat such entities to be hazardous waste generators.

Lastly, if a facility is an animal feeding operation, and, due to disruptions caused by the COVID-19 pandemic, is unable to transfer animals off-site and, solely as a result of the pandemic, meets the regulatory definition of concentrated animal feeding operation (“CAFO”), the EPA will not treat such animal feeding operations as CAFOs.

Public Water Systems Regulated Under the Safe Drinking Water Act

The EPA has heightened expectations for public water systems. The EPA expects operators of such systems and laboratories performing analysis for water system to continue normal operations, maintenance, and timely analysis of samples and results.

The EPA will consider continued operation of drinking water systems to be the highest priority. The EPA considers the following tiers of compliance monitoring: 1) National Primary Drinking Water Regulations, 2) nitrate/nitrite and Lead and Copper Rule, and 3) contaminants for which the system has been non-compliant.

The EPA strongly encourages public water systems to consult with the state and EPA regional offices without delay if issues arise that prevent the normal delivery of safe drinking water.

Critical Infrastructure

In situations where a facility is essential critical infrastructure, the EPA may consider, on a case-by-case basis, a more tailored short-term No Action Assurance if it is in the public interest. The EPA will consider essential the facilities that employ essential critical infrastructure workers as determined by guidance issued by the Cybersecurity and Infrastructure Security Agency.

EPA’s policy will apply retroactively beginning on March 13, 2020. EPA will assess the continued need for and scope of this temporary policy on a regular basis and will update it if EPA determines modifications are necessary. EPA will post a notification here at least 7 days prior to terminating this temporary policy.

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.

CATEGORIES: Air, Hazmat, Sustainability

PEOPLE: Steven M. Siros, Leah M. Song

March 23, 2020 Does Environmental Investigation and Remediation Continue Despite COVID-19 Business Restrictions and Social Distancing?

Bandza Linkedin_Steven_Siros_3130 SigelBy: Alexander J. Bandza, Steven M. Siros, and Gabrielle Sigel

DigAs the United States rapidly transitions to working from home (when possible) companies involved in environmental investigations or remediation work must determine whether such field or other work could, should, or must continue in the days, weeks, and months ahead. The world is pivoting to tackle COVID-19, a public health crisis, and many of the “essential services” exempted from stay-at-home/shelter-in-place orders (“Restriction Orders”) include work involving public health and safety, as well as critical infrastructure services. Therefore, any person with ongoing environmental investigation and remediation work (“environmental field work”) has to consider whether that work would be or should be included in the category of “essential services.”

From a policy standpoint, whether environmental field work should be considered “essential” requires an evaluation of the people and the environment potentially put at risk, the likelihood of that risk, and the resources the work uses. Continuation of environmental field work may benefit public health and the environment, but it also is occurring at some cost to public health and safety. For example, environmental projects use personal protective equipment (“PPE”) and laboratory equipment and personnel that may be able to be allocated to medical and other scientific research needs. Furthermore, some environmental field work requires close human contact and, at a minimum, will require travel to work and other activities that the Restriction Orders and federal and CDC guidelines are seeking to avoid. In addition, environmental contractors may not be able to perform work if key personnel are not available to work due to travel restrictions, health impacts, or family obligations. Thus, the consideration of whether environmental field work should continue during the COVID-19 crisis requires weighing complex public health and safety needs and risks.

To help those considering whether and how to continue environmental field work, evaluate the following:

(1)     Am I allowed to do the environmental field work under a state or local COVID-19 Restriction Order?

(2)     If I cannot continue under a Restriction Order or for other reasons, how do I protect my company’s interests to avoid penalties and other liabilities under the consent decrees, administrative orders, or various other agreements with or regulations imposed by state and federal environmental agencies; and

(3)     If I am allowed to or required to continue the work, what regulations pertain to how to do the work safely?

1.    AM I ALLOWED TO DO THE WORK UNDER A RESTRICTION ORDER?

As of the time of publication of this alert, there are no federal mandates or executive orders requiring business shutdowns or mandatory quarantines. However, many states, counties, and municipalities are issuing executive orders closing non-essential businesses and limiting gatherings of people.

    a.    State-Level COVID-19 Executive Orders

Each of these state and local mandates exempt “essential businesses” and the specific definition of an essential business varies from state to state. As a general rule, however, “essential businesses” are those that promote public safety, health, and welfare. Here are examples of several of the first state directives.    

California: On March 19, 2020, Governor Newsom issued Executive Order N-33-20 requiring California residents to remain at home unless they are involved in 16 critical infrastructure sectors. These 16 critical infrastructure sectors were designated by the Department of Homeland Security and include the water and wastewater systems sector that is responsible for ensuring the supply of safe drinking water and wastewater treatment and service.  

Illinois: On March 20, 2020, Governor Pritzker issued Executive Order 2020-10 requiring Illinois residents to remain in their homes to prevent the spread of COVID-19. The order specifically exempts “essential government functions”, “essential businesses and operations”, and “essential infrastructure activities.” Essential infrastructure activities include operation and maintenance of utilities, including water, sewer, and gas, and solid waste and recycling collection and removal and essential businesses and operations includes construction related activities.

New York: On March 20, 2020, Governor Cuomo issued an Executive Order (referred to as Pause, standing for Policies Assure Uniform Safety for Everyone), requiring that as of 8 p.m. on March 22, all non-essential businesses must ensure that their workforce works remotely. Exempt “Essential businesses” include essential infrastructure (including utilities and construction); essential services (including trash collection, mail, and shipping services; news media; banks and related financial institutions); sanitation and essential operations of residences or other essential businesses; and vendors that provide essential services or products (including services needed to ensure the continuing operation of government agencies and provide for the health, safety, and welfare of the public).

New Jersey: On March 21, 2020, Governor Murphy issued Executive Order 107 requiring that New Jersey residents remain in their homes and requiring that all “non-essential businesses” close. A previously issued executive order (Executive Order No. 104) defined “essential businesses” to include “grocery/food stores, pharmacies, medical supply stores, gas stations, healthcare facilities and ancillary stores within healthcare facilities.” All gatherings within the state are limited to 50 persons or fewer, except for “normal operations at airports, bus and train stations, medical facilities, office environments, factories, assemblages for the purpose of industrial or manufacturing work, construction sites, mass transit, or the purchase of groceries or consumer goods.”

In addition to these states, many other states have either implemented similar orders (including Connecticut, Delaware, and Louisiana) or likely will do so in the coming weeks. While expressly mentioning critical sectors such as health care, police and fire, and grocery stores, the orders do not squarely address whether environmental field work constitutes “essential businesses” subject to these exemptions. However, environmental field work logically could be included under the categories used to describe “essential business,” particularly because many of the environmental statutes requiring such work expressly state that the work is being ordered or conducted to protect human health and the environment.

    b.    Federal (U.S. EPA) Environmental Agency Guidance

The White House has issued Coronavirus Response Guidelines, “15 Days to Slow the Spread,” including a statement that if you work in one of the 16 “critical infrastructure industries” as defined by the Department of Homeland Security, you have a “special responsibility” to continue to work.

As of this publication, U.S. EPA has not released public guidance on whether ongoing or new site cleanups and/or site investigations would constitute “critical infrastructure industry.” At least to some degree, that determination is likely to be a site-specific, based on the unique circumstances of each site and, as further discussed below, the language of the agency orders or agreements which govern the environmental field work. It is likely that in the coming weeks, U.S. EPA will provide further guidance on assessing whether site cleanup activities constitute “critical infrastructure industry” exempt from the various Restriction Orders. One issue that may need to be resolved in the future relates to potential conflicts in federal and state guidance regarding what constitutes an “essential service.” Such issues could be addressed via federal and state cooperation agreements in the event of possible conflicts between federal and state directives.

    c.    State Environmental Agency Guidance

At least one state environmental regulatory agency has provided guidance directly on this issue. On March 20, 2020, the California State Resources Water Control Board, which generally has jurisdiction over impacted groundwater in California, published a Guidance Document that states:

Please be aware that timely compliance by the regulated community with all Water Board orders and other requirements (including regulations, permits, contractual obligations, primacy delegations, and funding conditions) is generally considered to be an essential function during the COVID-19 response. As a result, the Water Boards consider compliance with board-established orders and other requirements to be within the essential activities, essential governmental functions, or comparable exceptions to shelter-in-place directives provided by local public health officials.   

It is likely that similar guidance will be issued in the coming weeks by other state regulatory agencies.

2.    IF I CANNOT CONTINUE THE WORK UNDER A RESTRICTION ORDER OR OTHERWISE, HOW COULD I PROTECT MY COMPANY’S INTERESTS TO AVOID PENALTIES OR OTHER LIABILITIES?

Those responsible for ongoing environmental field work should carefully evaluate the governing consent decrees, administrative orders, or other agreements with state and federal environmental agencies, and private parties, under which they are performing environmental field work. The agreements may well have force majeure and other clauses addressing delays in the work.

For example, under the current federal model remedial design/remedial action (RD/RA) judicial consent decrees with potentially responsible parties (“PRPs”) under sections 106, 107 and 122 of CERCLA, PRPs have both covenanted not to sue the United States and agreed to indemnify the same for “claims on account of construction delays.” There are additional stipulated penalty provisions. Therefore, companies must act pursuant to the force majeure provisions to avoid these claims and stipulated penalties. Force majeure is defined as “any event arising from causes beyond the control of [PRPs], of any entity controlled by [PRPs], or of [PRPs]’ contractors that delays or prevents the performance of any obligation under this [consent decree] despite [PRPs]’ best efforts to fulfill the obligation.”

Relying on these provisions involves:

  • Notifying “EPA’s Project Coordinator orally or, in his or her absence, EPA’s Alternate Project Coordinator or, in the event both of EPA’s designated representatives are unavailable, the Director of the Waste Management Division” in that specific U.S. EPA Region within a stipulated period of days (the period of days may vary under each consent decree).
  • Providing in writing to U.S. EPA “an explanation and description of the reasons for the delay; the anticipated duration of the delay; all actions taken or to be taken to prevent or minimize the delay; a schedule for implementation of any measures to be taken to prevent or mitigate the delay or the effect of the delay; [the PRP’s] rationale for attributing such delay to a force majeure; and a statement as to whether, in the opinion of [the PRP], such event may cause or contribute to an endangerment to public health or welfare, or the environment” within a stipulated period of days (the period of days likely varies under each consent decree).
  • Providing with the above writing “all available documentation supporting their claim that the delay was attributable to a force majeure.”

U.S. EPA is then to provide notice of its decision, which if U.S. EPA rejects the force majeure claim, the responsible parties must provide notice within 15 days of U.S. EPA’s decision to avail themselves of the model consent decree’s dispute resolution provision. The federal Model Administrative Settlement Agreement and Order on Consent for Removal Actions contains similar obligations and provisions.

It is thus plain that responsible parties conducting environmental field work should be prepared to contact U.S. EPA or state regulators orally as soon as practicable to determine their views on the necessity of the work and if there is disagreement about the same, begin to “paper the file” on the necessary force majeure documentation in the time frames provided in the governing consent decrees, administrative orders, or various other agreements with state and federal environmental agencies.

For sites that are in the early investigation stages, regulators may agree to a temporary pause in site investigations. For sites that are currently undergoing remedial measures, the determination on whether work should continue is again likely to be fact dependent. For example, a site with an ongoing groundwater treatment system that is being operated to protect a drinking water source is likely to be deemed an essential activity. For a site where the remedial measures involve excavating impacted soils that are not immediately affecting groundwater sources, it may be the case that the regulators determine that certain activities are not “essential” and can be temporarily paused or scaled back.

Even if the decision is made to proceed with the work, other circumstances may preclude or significantly impair the ability to do the work. For example, it may be difficult to obtain necessary supplies and/or vendors to perform these services. To the extent that wastes are generated in the course of doing this work, can these wastes be managed and disposed of in a timely manner? These are all issues that should be discussed with the regulators or private parties requiring the work.

3.    IF I CONTINUE THE WORK, HOW CAN I DO IT SAFELY?

Once a decision is made that environmental field work is “essential” and must proceed to at least some degree, special care must be taken to ensure that the work is performed safely given additional risks imposed by COVID-19.  On March 9, 2020, the federal Occupational Safety and Health Administration (“OSHA”) issued its Guidance on Preparing Workplaces for COVID-19 that was the subject of a previous client alert.  This OSHA guidance outlines recommended steps that employers should take to protect workers, using OSHA’s “hierarchy of controls” framework for addressing workplace risks (i.e., engineering controls, followed by administrative controls, safe work practices, and PPE.  It is also prudent for all entities at the site to consider what steps they will take if they learn that one of the workers has become exposed to the novel coronavirus or contracted COVID-19. On March 20, 2020, the CDC issued updated “Environmental Cleaning and Disinfection Recommendations.” 

OSHA has long-standing regulations for work at hazardous waste sites under its Hazardous Waste Operations and Emergency Response (“HAZWOPER”) standard (in general industry 29 CFR 1910.120 and in construction 29 CFR 1926.65), which establishes health and safety requirements for work at sites, as well as responses to emergencies involving releases of hazardous substances. Many environmental investigation and remediation sites have rigorous site-specific health and safety plans, and many are required to have such plans by a consent decree or other regulatory or contractual obligation. Many environmental contractors have such plans as part of their standard operating procedures. However, given COVID-19, special care should be taken to ensure that PPE that would ordinarily be used to prevent exposure to hazardous substances is not contaminated prior to being utilized in the field.  Moreover, ensuring feasible physical distancing, requiring diligent hygiene methods, and having appropriate cleaning equipment and chemicals in the field are also critical.  All entities with employees at the site should regularly check both the OSHA and CDC website for updated guidance on workplace health and safety best practices. It also is important to ensure that the protocols are being appropriately communicated and followed by all entities (including regulators) at a site; the best protocols and procedures are only as good as their actual implementation by all.

OSHA has reminded the regulated community that if employees contract COVID-19 as a result of performing their work-related duties, the employees who become ill could constitute recordable cases of illness under OSHA’s Injury and Illness Recordkeeping Standard, 29 CFR Part 1904.

Companies and their counsel also should evaluate existing master services agreements that govern the work of their vendors and contractors with a particular eye towards: (i) how indemnification provisions might apply in the event that a vendor’s or contractor’s employee is later determined to be infected with COVID-19 and such a latency period could plausibly extend to such an employee’s work at the company’s site and its employees, and vice versa; and (ii) payment delay provisions should the company or its vendors or contractors become concerned about solvency issues.

We will continue to provide updates on the impacts of COVID-19 on environmental, health and safety issues affecting our clients. Jenner & Block has established a COVID-19 resource center that provides updates on a variety of issues affecting our clients and we would encourage you to visit this resource center for timely updates on COVID-19 related issues.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, Hazmat, OSHA, Sustainability

PEOPLE: Steven M. Siros, Gabrielle Sigel

March 20, 2020 White House and Congress Use Liability Immunity to Address the Shortage of Respirators in Healthcare Settings

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

Due to COVID-19, the nation’s healthcare industry is facing a severe shortage of respiratory protection equipment for healthcare workers. Both Congress and the White House have recently taken steps to try to address that shortage by enacting liability immunity under the Families First Coronavirus Response law, signed late on March 18, 2020. These provisions protect manufacturers, distributors, and others of U.S. Food and Drug Administration (“FDA”)-designated industrial respirators from any claims of liability arising from their use during the response to COVID-19. The intent is that this would increase the supply of NIOSH-approved small-particular filtering respirators from those who manufacture or have on-hand respirators that previously had not been FDA-approved as medical devices.

As explained in OSHA’s Hospital Respiratory Protection Program Toolkit: Resources for Respirator Program Administrators (May 2015), respirators are different from facemasks, including surgical masks. Fluid-resistant facemasks are loose-fitting devices that can protect the healthcare worker from larger droplets of infectious bodily fluids from patients, and vice versa. Facemasks “are not considered respiratory protection— facemasks do NOT provide the wearer with a reliable level of protection from inhaling smaller particles, including those emitted into the room air by a patient who is exhaling or coughing, or generated during certain medical procedures.” Id. at 5. Respirators, on the other hand, protect the hospital worker from both large and small infectious particles in the air (smaller particles are known as “aerosols”). An N95 respirator is a half-mask air-purifying device with NIOSH-approved N95 filters or filtering material. The “95” refers to the NIOSH specification that the respirator filter at least 95% of airborne particles. N95 respirators can be designed for single-use or in a mask that allows re-use after replacement of N95 filter or cartridges, and, in contrast with facemasks, they are designed to form a tight seal on the user’s face. Another type of respirator that protects against inhalation of aerosols is an “air-supplying respirator,” which provides clean air from a source other than the immediate ambient air. Self-contained breathing apparatus, commonly known as “scuba equipment,” is an example of an air-supplying respirator.

Although N95 respirators are generally used in all workplaces where control of inhalation of smaller-sized particles is required to reduce hazards, in order to use such respirators in a hospital, in general, the manufacturer must have its devices approved by the Food and Drug Administration (FDA) as a medical device. Certain N95 respirators can be outfitted with the additional splash protection of a surgical mask, and are called a “surgical respirator,” “medical respirator,” or “surgical N95.” Those devices are deemed a medical device, which must be approved by both the FDA and by NIOSH for their particle-filtering ability Non-surgical N95s are not typically used in a hospital setting and a manufacturer and others may be reluctant to supply them for hospital use, particularly given the potential liability risks from their use in that setting.

Faced with a shortage of surgical N95 respirators, the White House turned to manufacturers and users of industrial N95s as an additional source. On March 2, 2020, the FDA issued an Emergency Use Authorization (EUA), pursuant to section 564 of the Food, Drug, and Cosmetic Act (FDCA), that allows the emergency, COVID-19 use of designated NIOSH-certified N95 respirators in the health care setting. The EUA also stated that certain NIOSH-approved respirators that had passed the manufacturer’s recommended shelf-life also could be used in certain circumstances.

The March 2, 2020 EUA did not address protection of industrial manufacturers from liability for use of respirators in medical settings. On March 11, 2020, the FDA clarified the EUA by stating that the FDA had deemed general use N95 respirators as medical devices within the meaning of 201(h) of the FDCA and eligible for liability protections under the Public Readiness and Emergency Preparedness Act of 2005, 42 U.S.C. § 247d-6d (“the Public Readiness Act”). Under the Public Readiness Act, certain devices, called “countermeasures,” are entitled to broad liability immunity during their use in response to a public health emergency. Specifically, a “covered person” is forever immune from liability for any type of “loss” associated with the use of a designated “countermeasure,” including death, physical, mental, or emotional injury, fear of such injury, including medical monitoring, and damage to property including business interruption. 42 U.S.C. § 247d-6d(a)(1)-(2). A “covered person” includes the United States, manufacturers and distributors of the countermeasure, and all employees of a manufacturer or distributor of a designated countermeasure. 42 U.S.C. § 247d-bd(i)(2). Liability protection is provided regardless of whether the countermeasure is sold, donated or otherwise provided and used for medical services.

On March 14, 2020, the U.S. House of Representatives passed H.R. 6201, the “Families First Coronavirus Response Act,” which in Division F, Section 6005, designated personal respiratory protective devices approved by NIOSH (42 CFR part 84) and designated by the FDA in the March 2, 2020 EUA, as a “covered countermeasure” subject to all liability immunities under the Public Readiness Act.” The U.S. Senate passed the bill, without amendment, on March 18, 2020, and later that day, the bill was signed into law by the President. Industrial respirators will remain a liability-protected countermeasure if they are used to address COVID-19 anytime between January 27, 2020 and October 1, 2024, in response to the public health emergency declared by the Secretary of Health and Human Services Alex M. Azar II on January 31, 2020.

In the meantime, as supplies continue to be short, the CDC has issued guidelines for how medical providers should triage their use of respiratory protective equipment. The guidelines issued as of March 19, 2020 are here.

CATEGORIES: Air, Climate Change, Consumer Law and Environment, Hazmat, Sustainability

PEOPLE: Gabrielle Sigel

March 19, 2020 OSHA Issues Temporary Enforcement Guidance on Healthcare Employers’ Requirements for Fit-Testing of Respirators

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

One of the current Occupational Safety & Health Administration (OSHA) regulations on center stage as a result of the health crisis caused by the novel coronavirus and COVID-19 is OSHA’s Respiratory Protection Standard, 29 CFR § 1910.134 (“the Standard”).  On March 14, 2020, OSHA issued a Temporary Enforcement Guidance, entitled “Healthcare Respiratory Protection Annual Fit-Testing for N95 Filtering Facepieces During the COVID-19 Outbreak” (“Temporary Guidance”).  Although directly applicable only to the healthcare industry, the Temporary Guidance portends what may become the new normal for all industries that require respirator use and that are continuing to operate during the COVID-19 crisis. 

In general, the Standard requires employers to provide respirators at the appropriate level of protection when it is necessary to protect employees from workplace inhalation hazards.  The Standard also requires such employers to have a written program addressing respirator use, and to implement procedures including for start-up and annual medical evaluation and fit-testing, training, and cleaning of respirators.  Through the Temporary Guidance, OSHA Compliance Officers are provided instructions from OSHA headquarters regarding enforcement of the Standard in the healthcare industry in light of the supply shortages of N95 filtering facepiece respirators. 

The Temporary Guidance notes that the CDC recommends that healthcare providers who are providing direct care to patients with known or suspected COVID-19 to, among other things, use personal protective equipment (“PPE”), such as respirators.  In the Temporary Guidance, OSHA recommends that if N95 respirators are not available, healthcare employers should provide a respirator of “equal or higher protection,” e.g. N99 or N100 filtering facepieces, reusable elastomeric respirators, or powered air purifying respirators.  In addition, to conserve resources, OSHA recommends that fit-testing of filtering facepiece respirators continue, but that employers use a qualitative, non-destructive method, rather than a quantitative, destructive method for fit-testing.  The CDC has its own guidelines regarding what healthcare workers should do when they are facing a shortage of N95 respirators.

With respect to enforcement, OSHA directed all offices to “exercise enforcement discretion” concerning the annual fit-testing requirement, 29 CFR § 1910.134(f)(2), if employers take other actions to mitigate risks to employees, including:

  • Make a “good-faith effort” to comply with the Standard.
  • Use only NIOSH-certified respirators [see concerns regarding counterfeit respirators].
  • Perform initial fit-testing for employees using the same model, style, and size of respirator that the employee will actual use.
  • Train employees regarding how to perform a “seal check” each time a respirator is donned.

Other requirements that OSHA is relying on to mitigate risk and avoid non-compliance are listed in the Temporary Guidance.

CATEGORIES: Air, Hazmat, OSHA

PEOPLE: Gabrielle Sigel

March 12, 2020 U.S. OSHA Issues Guidance for Employers Regarding Preparing for COVID-19 Risks

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

On March 9, 2020, the federal Occupational Safety and Health Administration issued its “Guidance on Preparing Workplaces for COVID-19,” (“Guidance”) compiling best practices and existing regulatory standards for evaluating and preparing for risks to workers from exposure to the novel coronavirus and COVID-19. OSHA urges that “it is important for all employers to plan now for COVID-19.” (p. 3) The Guidance describes: (1) how a COVID-19 outbreak could affect workplaces; (2) steps employers can take to reduce workers’ risk of exposure; (3) classification of jobs into categories of risk and controls to protect workers in each category; and (4) how to protect workers living or traveling outside the U.S.

OSHA acknowledges that “[w]hile there is no specific OSHA standard covering SARS-CoV-2 exposure, some OSHA requirements may apply to preventing occupational exposure to SARS-CoV-2,” specifically, OSHA’s regulations regarding provision of personal protective equipment (“PPE”) [ 29 CFR 1910 Subpart I], respirator use [29 CFR 1910.134], and the all-encompassing General Duty Clause of the OSH Act, which requires employers to provide each worker “employment and a place of employment, which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). (p.17) OSHA also suggests that the bloodborne pathogen standard [29 CFR 1910.1030] offers a framework for controlling exposures to respiratory secretions that may contain the virus.

In the Guidance, OSHA divides job tasks into exposure levels of “very high, high, medium, and lower risk” and then recommends steps employers should consider taking to protect workers in each risk category, using its “hierarchy of controls” framework for addressing workplace risks, i.e., engineering controls, followed by administrative controls, safe work practices, and PPE. (pp. 18-25) OSHA’s analysis is summarized below:

  • Very High Risk Workers: Workers in the health care and related professions (including autopsy and mortuary workers) performing aerosol-generating procedures on known or suspected COVID-19 patients or handling specimens or body parts from such patients.
    • Engineering Controls: Install and maintain air-handling systems in healthcare facilities; patients with suspected or known COVID-19 should be placed in airborne infection isolation rooms, “if available;” aerosol-generating procedures should occur only in isolation rooms; use Biosafety Level 3 precautions for handling specimens.
    • Administrative Controls: Follow all healthcare facility guidelines and standards for identifying and isolating infected individuals and protecting workers; “consider” offering enhanced medical monitoring of workers; train workers on preventing transmission; ensure psychological and behavioral support for employee stress. Safe
    • Work Practices: Provide emergency responders and others working outside of fixed healthcare facilities with hand rubs containing at least 60% alcohol. PPE: Provide respirators for those working within 6 feet of potential or known infected patients; PPE ensemble including gowns, fluid-resistant coveralls, aprons and other protective clothing; proper disposal of PPE, including training of those involved in disposal.
  • High Risk Workers: Other health care and mortuary workers who are exposed to known or suspected COVID-19 patients, but not those exposed to aerosol-generating procedures.
    • Engineering and administrative controls, safe practices, and PPE: Same as for Very High Risk Workers, adjusted based on somewhat lower risk.
  • Medium Risk Workers: Workers whose job requires frequent and/or close contact within 6 feet of those who may be infected with the virus, but are not known to have contracted COVID-19. “Medium risk” classification applies to those who work with the general public in communities with “ongoing community transmission,” such as in schools and “some high-volume retail settings.”
    • Engineering Controls: Physical barriers, such as sneeze guards, “where feasible.”
    • Administrative Controls: “Consider” offering facemask to ill employees and customers until they can leave the workplace; inform customers of COVID-19 symptoms; “where appropriate,” limit customer and public access to workplace areas; communicate availability of medical resources.
    • PPE: May need combination of gloves, own, face mask, face shield/goggles, depending on work tasks, hazard assessment, and types of exposures; need for respirator would be “rare.”
  • Lower Risk Workers: Workers whose jobs do not require frequent contact with the public and other coworkers.
    • Engineering Controls: None additional.
    • Administrative Controls: Monitor public health communications, including CDC’s website, and work with workers on effective communications.
    • PPE: None additional.

In addition to the steps above, OSHA’s Guidance provides “Steps All Employers Can Take to Reduce Workers’ Risk of Exposure to SARS-CoV-2.” (pp. 7-17) While not requiring employers take these measures, the Guidance states that “[a]s appropriate,” employers should implement “good hygiene and infection control practices”; “explore whether” employers can establish practices including physical and social distancing, and have cleaning equipment and chemicals that are EPA-approved for addressing viruses. (pp. 8-9) OSHA also states that employers should develop policies and procedures for “prompt identification and isolation of sick people, if appropriate.” (p.9) OSHA also encourages employers to “develop, implement and communicate about workplace flexibilities and protections” with the principal goal of allowing sick workers or those with illness in families to stay home. (p.11)

With respect to employers with workers working abroad, the Guidance advises that employers keep abreast of CDC and State Department announcements, tell workers that the State Department will not provide medications or supplies to Americans abroad, and be aware that travel in and out of a foreign country may be limited. (pp. 25-26) (The Guidance was issued before the President announced his ban of travel from Europe on March 11.)

Further and updated information about OSHA’s response and guidance about COVID-19 can be found at https://www.osha.gov/SLTC/covid-19/. California-OSHA also has published extensive “Guidance on Requirements to Protect Workers from Coronavirus.”

CATEGORIES: Air, Hazmat, OSHA

PEOPLE: Gabrielle Sigel

February 11, 2020 White House Promises to Use “All Available Tools” to Implement Deep Cuts to EPA Funding in Fiscal Year 2021

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By Matthew G. Lawson

Epa On Monday, February 10, 2020, the Trump Administration released its proposed budget for Fiscal Year 2021. The proposal calls for sweeping cuts to a number of federal agencies and departments, including deep cuts to the United States Environmental Protection Agency (“USEPA”). If enacted, the proposed budget would grant $6.7 billion in funding to USEPA, a $2.4 billion or 26-percent reduction from the agency’s $9.1 billion budget in 2020. In the budget proposal’s preamble, the Administration promises to “call[] on the Government to reduce wasteful, unnecessary spending, and to fix mismanagement and redundancy across agencies.”

With respect to USEPA’s budget allocation, the proposal promises to “eliminate almost 50 wasteful programs that are outside of EPA’s core mission or duplicative of other efforts, saving taxpayers over $600 million.” Proposed major cuts include the reduction of nearly 50% of the agency’s research budget, including all funding for grants to independent universities and research institutes conducting air, water, and other environmental and health research. Another target for deep cuts is USEPA’s safe drinking water revolving funds. The revolving funds are used to help fund water infrastructure projects undertaken by state or municipal public water providers. Under the proposed budget, the available funds for such projects would be cut from approximately $2.77 billion down to $2 billion.

While the proposal primarily focuses on proposing cuts to USEPA’s fiscal budget, it does contain a few line item requests for additional funding. In particular, the proposal asks for an additional $6 million to carry out USEPA’s Per- and Polyfluoroalkyl Substances (PFAS) Action Plan. The additional funding is sought to continue research into the risk posed by PFAS compounds, address current contamination issues, and effectively communicate findings to the public. In addition, the budget requests $16 million into new research to help prevent and respond to the rising growth of harmful algal blooms. 

The budget proposal is not the first time the Trump Administration has sought to implement deep cuts into USEPA’s budget. In fact, the Trump Administration has now proposed nearly identical cuts to the agency’s budget in each of the last three fiscal years. As previously discussed by the Corporate Environmental Lawyer, the Trump Administration first proposed a $2.7 billion budget reduction for USEPA in fiscal year 2018. However, the proposal was rebuffed by congress and the final spending bill ultimately signed by Trump held the agency’s budget at $8.1 billion, even with its 2017 level. The following year, the Trump Administration again proposed cutting the agency’s budget by more than $2 billion, but ultimately agreed to a spending deal that increased the agency’s budget to $8.8 billion. Finally, during fiscal year 2020, the Trump Administration proposed approximately $2.7 billion in cuts to USEPA’s budget. As before, Congress rejected the proposal and ultimately approved a nearly record high budget for USEPA of $9.1 Billion.  Congress’ continued rejection of the spending cuts proposed by the Trump Administration is acknowledged in the Administration’s most recent 2021 budget proposal, which derides Congress for continuing “to reject any efforts to restrain spending” and “greatly contribut[ing] to the continued ballooning of Federal debt and deficits, putting the Nation’s fiscal future at risk.” The proposal promises that the Trump Administration will use “all available tools and levers” to ensure that the spending reductions outlined in the budget are finally implemented.

CATEGORIES: Air, Cercla, Climate Change, Consumer Law and Environment, OSHA, RCRA, Sustainability, TSCA, Water

PEOPLE: Matthew G. Lawson

February 4, 2020 EPA Issues Emergency Guidance to Mitigate Spread of Coronavirus in the United States

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By Matthew G. Lawson

  CoronavirusOn January 29, 2020, the United States Environmental Protection Agency (“USEPA”) activated its Emerging Viral Pathogens Guidance for Antimicrobial Pesticides (the “Guidance”) in an attempt to help curb the spread of the Novel coronavirus (2019-nCoV) (the “Coronavirus”) in the United States. Drafted pursuant to USEPA’s authority under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the Guidance sets forth a voluntary process by which companies holding FIFRA registrations for disinfecting/antimicrobial products can promote the use of their products against specific “emerging pathogens,” including the Coronavirus. While the Guidance was finalized in August 2016, it had remained inactive prior to USEPA’s recent announcement.

Under the typical FIFRA registration process, the manufacturer of a disinfecting product that wishes to promote the product’s use against a specific virus or bacteria must first submit testing data to USEPA that demonstrates the product’s efficacy against the microbe. Following USEPA’s approval of the submitted data, the manufacturer is then permitted to update its product’s labeling to include the use of the product against the microbe. However, as noted by USEPA, “

ecause the occurrence of emerging viral pathogens is less common and predictable than established pathogens,” it can be difficult “to assess the efficacy of EPA registered disinfectants against such pathogens in a timely manner and to add these viruses to existing product registrations…” For this reason, USEPA’s emergency Guidance allows manufacturers to receive special permission to advertise their products for use against emerging viral pathogens during public health outbreaks. The intent of USEPA’s guidance is to “expedite the process for registrants to provide useful information to the public” regarding products that may be effective against emerging pathogens.

To receive the benefit of the Guidance, a manufacturer must submit a “label amendment request” to USEPA with a statement explaining its product’s effectiveness against an emerging viral pathogen. This step is ideally completed prior to a public health outbreak. So long as the product meets certain eligibility criteria, USEPA will approve the amendment. Next, in the event a public health outbreak occurs and the Centers for Disease Control and Prevention (“CDC”) “identifie[s] [an] emerging pathogen and recommend[s] environmental surface disinfection to help control its spread,” approved manufacturers are permitted to start advertising the effectiveness of their products for controlling the pathogen. A manufacturer can provide a statement of their product’s efficacy against the pathogen “in technical literature distributed to health care facilities, physicians, nurses, public health officials, non-label-related websites, consumer information services, and social media sites.” However, the efficacy statement may not appear on the actual label of the product.

As of Tuesday, February 4, 2020, more than 20,500 cases of the coronavirus have been confirmed worldwide. While the vast majority of confirmed cases have occurred in mainland China, cases have been confirmed in more than two dozen other countries, including eleven confirmed cases in the United States. The CDC has warned that the Coronavirus poses an “unprecedented threat” to public health in the United States. USEPA’s Guidance notes that the agency will continue working closely with the CDC to identify and address Coronavirus in a timely manner and to monitor developments closely.

CATEGORIES: Air, Hazmat, Matthew G Lawson, Sustainability

PEOPLE: Matthew G. Lawson

February 4, 2020 EPA Issues Emergency Guidance to Mitigate Spread of Coronavirus in the United States

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By Matthew G. Lawson

  CoronavirusOn January 29, 2020, the United States Environmental Protection Agency (“USEPA”) activated its Emerging Viral Pathogens Guidance for Antimicrobial Pesticides (the “Guidance”) in an attempt to help curb the spread of the Novel coronavirus (2019-nCoV) (the “Coronavirus”) in the United States. Drafted pursuant to USEPA’s authority under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), the Guidance sets forth a voluntary process by which companies holding FIFRA registrations for disinfecting/antimicrobial products can promote the use of their products against specific “emerging pathogens,” including the Coronavirus. While the Guidance was finalized in August 2016, it had remained inactive prior to USEPA’s recent announcement.

Under the typical FIFRA registration process, the manufacturer of a disinfecting product that wishes to promote the product’s use against a specific virus or bacteria must first submit testing data to USEPA that demonstrates the product’s efficacy against the microbe. Following USEPA’s approval of the submitted data, the manufacturer is then permitted to update its product’s labeling to include the use of the product against the microbe. However, as noted by USEPA, “

ecause the occurrence of emerging viral pathogens is less common and predictable than established pathogens,” it can be difficult “to assess the efficacy of EPA registered disinfectants against such pathogens in a timely manner and to add these viruses to existing product registrations…” For this reason, USEPA’s emergency Guidance allows manufacturers to receive special permission to advertise their products for use against emerging viral pathogens during public health outbreaks. The intent of USEPA’s guidance is to “expedite the process for registrants to provide useful information to the public” regarding products that may be effective against emerging pathogens.

To receive the benefit of the Guidance, a manufacturer must submit a “label amendment request” to USEPA with a statement explaining its product’s effectiveness against an emerging viral pathogen. This step is ideally completed prior to a public health outbreak. So long as the product meets certain eligibility criteria, USEPA will approve the amendment. Next, in the event a public health outbreak occurs and the Centers for Disease Control and Prevention (“CDC”) “identifie[s] [an] emerging pathogen and recommend[s] environmental surface disinfection to help control its spread,” approved manufacturers are permitted to start advertising the effectiveness of their products for controlling the pathogen. A manufacturer can provide a statement of their product’s efficacy against the pathogen “in technical literature distributed to health care facilities, physicians, nurses, public health officials, non-label-related websites, consumer information services, and social media sites.” However, the efficacy statement may not appear on the actual label of the product.

As of Tuesday, February 4, 2020, more than 20,500 cases of the coronavirus have been confirmed worldwide. While the vast majority of confirmed cases have occurred in mainland China, cases have been confirmed in more than two dozen other countries, including eleven confirmed cases in the United States. The CDC has warned that the Coronavirus poses an “unprecedented threat” to public health in the United States. USEPA’s Guidance notes that the agency will continue working closely with the CDC to identify and address Coronavirus in a timely manner and to monitor developments closely.

CATEGORIES: Air, Hazmat, Sustainability

PEOPLE: Matthew G. Lawson

January 24, 2020 U.S. EPA Adds 160 PFAS Substances to TRI Reporting List

Linkedin_Steven_Siros_3130 PFOAPFOS

On January 16, 2020, U.S. EPA added 160 per- and polyfluoroalkyl substances (PFAS) to the Toxics Release Inventory (TRI). The addition of these 160 PFAS compounds to the TRI inventory means that as of January 1, 2020, companies will need to track releases of these compounds, and releases exceeding the threshold, which was set at 100 pounds, must be reported to U.S. EPA. Interestingly, there currently is an open Advance Notice of Proposed Rulemaking (ANPR) that seeks public comment on whether and how to include PFAS on the TRI inventory, but U.S. EPA noted that the 2020 National Defense Authorization Act (NDAA) required it to add these 160 substances to the inventory. Although the NDAA only specified 14 PFAS that needed to be added to the inventory, it did specify that PFAS that were the subject of a significant new use rule on or before December 20, 2019 under the Toxic Substances Control Act also needed to be added to the TRI inventory.

U.S. EPA’s actions have already triggered a number of questions. For example, how is the ANPR (which remains open through February 3, 2020) affected by U.S. EPA’s decision to add these chemicals to the inventory? How does one accurately measure PFAS air emissions since the methodology for measuring these emissions is currently being developed? Hopefully, further clarification on these issues will be forthcoming in the near future. 

CATEGORIES: Air, Climate Change, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

January 23, 2020 California Files Lawsuit Aimed at Halting Trump Administration Fracking Plans

HeadshotBy Matthew G. Lawson Bakersfield

On January 17, 2020, the State of California filed a new complaint against the United States Bureau of Land Management (“BLM”) seeking to block a BLM-issued resource management plan that proposes to open up more than one million acres of California land to hydraulic fracking and other forms of oil and gas drilling.  If enacted, the challenged BLM plan would end a five-year moratorium on leasing land in California to oil and gas development.

The federal lawsuit announced by California Attorney General Xavier Becerra asserts that the BLM’s review of environmental impacts associated with its resource management plan violates the National Environmental Policy Act (“NEPA”) and Administrative Procedure Act (“APA”).  Specifically, the lawsuit alleges that the BLM failed to sufficiently consider impacts to people who might live near newly drilled oil and gas wells and that the BLM underestimated the environmental impacts of new fracking wells that would become active as a result of the plan. In a news conference announcing the lawsuit, Becerra stated that “much of the federal oil and gas activity in the state happens near some of our most vulnerable communities, communities [that] are already disproportionately exposed to pollution and its health effects.” Finally, California’ lawsuit asserts that BLM failed “to consider conflicts with state plans and policies, including efforts by California to reduce greenhouse gas emissions and fossil fuel consumption to mitigate the devastating consequences of global climate change.”

The legal challenge is not the first made against the BLM’s resource management plan. In 2012, BLM issued a final environmental review supporting its decision to open up approximately one million acres of federal land in California for mineral leasing. At the time, BLM estimated that approximately 25% of the new wells on this land would be used for hydraulic fracturing.  However, in 2016, the California courts set aside the plan finding that the BLM’s environmental review had failed to comply with the full requirements of NEPA.  On May 3, 2017, BLM entered into a settlement agreement that required the agency to prepare additional NEPA documentation and issue a new decision amending or superseding its resource management plan, as appropriate.  The updated plan is the subject of the most recent lawsuit filed by the State of California.  In the current lawsuit, California now asserts that approximately 90% of new wells on the federal land will be utilized for hydraulic fracturing.

The recent lawsuit is only one of more than 65 lawsuits filed by the State of California against the Trump Administration.  California’s lawsuits include more than 25 challenges to policies and actions proposed by the United States Environmental Protection Agency and other federal agencies responsible for setting environmental and energy policies.

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

PEOPLE: Matthew G. Lawson