May 19, 2022 U.S. EPA Updates Regional Screening Levels to Add Five New PFAS Chemicals

Linkedin_Steven_Siros_3130

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


EPA logoOn May 18, 2022, U.S. EPA updated its Regional Screening Level tables to include five new per- and polyfluoroalkyl substances (PFAS).  The five new PFAS compounds added to the RSL tables are hexafluoropropylene oxide dimer acid and its ammonium salt (HFPO-DA – sometimes referred to as GenX chemicals), perfluorooctanesulfonic acid (PFOS), perfluorooctanoic acid (PFOA), perfluorononanoic acid (PFNA), and perfluorohexanesulfonic acid (PFHxS). U.S. EPA added its first PFAS substance, PFBS or perfluorobutanesulfonic acid, to the RSL tables in 2014 and updated that listing in 2021 when U.S. EPA released its updated toxicity assessment for PFBS.

The RSLs are risk-based screening values for residential and industrial soils and tap water that U.S. EPA relies upon to help determine if remediation is necessary.  Although U.S. EPA is quick to point out that the RSLs are not cleanup standards, regulators at both the state and federal levels rely on these RSLs to drive decision-making at contaminated sites.  The regulators also rely on these RSLs notwithstanding that U.S. EPA has yet to officially designate any PFAS as a CERCLA hazardous substance or RCRA hazardous waste (although efforts are ongoing on both fronts--CERCLA hazardous substances /  RCRA hazardous wastes).

U.S. EPA set the screening levels for PFOA, PFOS, PFNA, and PFHxS based on the Minimal Risk Levels from the Agency for Toxic Substances and Disease Registry’s toxicological profiles.  The screening level for HFPO-DA was set based on a final, peer-reviewed toxicity value.  For example, the screening level for PFOS is set at 38 parts per trillion for tap water and 1.6 parts per million for industrial soils and the screening level for PFOA is set at 60 parts per trillion for tap water and 2.5 parts per million for industrial soils   

As we await further U.S. EPA action with respect to regulating PFAS under RCRA and CERCLA, it is interesting to note that U.S. EPA is currently engaged in a significant information gathering exercise related to historical PFAS use.  Relying on its authority under CERCLA Section 104(e), U.S. EPA has recently issued scores of information requests seeking information regarding facilities’ past PFAS uses and practices.  The use of these information requests is consistent with the statements in U.S. EPA’s 2021 PFAS Roadmap where U.S. EPA indicated that it intended to rely on its various enforcement tools to identify and address PFAS releases. 

We will continue to provide timely updates on PFAS-related issues at the Corporate Environmental Lawyer blog. 

CATEGORIES: Cercla, Climate Change, Contamination, Emerging Contaminants, Groundwater, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

April 27, 2022 Vermont Joins Growing Number of States Allowing Medical Monitoring for Alleged Exposure to Chemicals

Linkedin_Steven_Siros_3130

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

black, stethoscope, eyeglasses, white, surface, ecg, electrocardiogram, heartbeat, heart, frequency, curve, cardiology, check-up, heart diseases, healthcare, medical, pulse, live, pulsating, drug, pills, tablets, glasses, healthcare and medicine, medical exam, doctor, medical equipment, studio shot, examining, healthy lifestyle, white background, medical supplies, medical instrument, medicine, indoors, diagnostic medical tool, occupation, people, beauty, pill, equipment, still life, care, pulse trace, doctor's office, healthcare worker, 5K, CC0, public domain, royalty freeOn April 21st, Vermont Governor Phil Scott signed into law Senate Bill 113 that provides a cause of action for medical monitoring for individuals exposed to toxic chemicals.  The new law specifically provides persons without a present injury or disease with a cause of action for medical monitoring if the following conditions are demonstrated by a preponderance of the evidence:

  • Exposure to a toxic substance at a rate greater than the general population;
  • The exposure is a result of tortious conduct of the defendant;
  • As a result of the exposure, plaintiff has suffered an increased risk of contracting a serious disease;
  • The increased risk makes it medically necessary for plaintiff to undergo periodic medical examinations different from that prescribed for the general population; and
  • Monitoring procedures exist that are reasonable in cost and safe for use.

The bill also provides for an award of attorneys’ fees and other litigation costs. 

The new law comes on the heels of a Vermont federal court's approval of a $34 million dollar class action settlement relating to alleged PFAS exposures that included a $6 million dollar medical monitoring fund. 

With its new law, Vermont joins Arizona, California, the District of Columbia, Florida, Massachusetts, Missouri, New Jersey, Ohio, Pennsylvania, Utah and West Virginia as states that specifically allow lawsuits seeking reimbursement for medical monitoring costs in the absence of present injury or disease.   However, unlike these other states where the right to medical monitoring is a right recognized by the courts, Vermont is one of first states in the nation to provide that right via statute.  Other states may well follow Vermont’s lead and there have been ongoing albeit unsuccessful efforts to create a federal cause of action for medical monitoring for exposure to certain toxic chemicals at the federal level.

We will continue to provide updates on federal and state efforts to codify the ability to bring claims seeking medical monitoring relief at the Corporate Environmental Lawyer blog.   

CATEGORIES: Climate Change, Consumer Law and Environment, Contamination, Emerging Contaminants, Sustainability, Toxic Tort

PEOPLE: Steven R. Englund, Steven M. Siros

April 20, 2022 “Silent Spring” and the Life Cycle of Emerging Contaminants

Linkedin_Steven_Siros_3130

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

Earth Week 2022

On the 60th anniversary of the publication of Rachel Carlson’s groundbreaking book “Silent Spring”, the world continues to struggle to manage the human health and environmental risks associated with newly discovered emerging contaminants.  Silent Spring focused on the challenges associated with managing the risks associated with pesticides (and more specifically DDT), and even today, many of the largest personal injury verdicts are associated with alleged exposure to pesticides. 

Over the many years since Silent Spring, numerous contaminants have moved through the emerging contaminant life cycle, including asbestos, dioxins, PCBs, MTBE, BPA, 1,4-dioxane, and most recently, per- and polyfluoroalkyl substances (PFAS) (although PFAS seems stuck in the middle of the life cycle).      

The life cycle journey of emerging contaminants has been influenced significantly by our improved ability to understand the potential impacts of these emerging contaminants on human health and the environment.  As new contaminants are identified, resources are devoted to better understanding the potential environmental and health risks associated with these contaminants and regulations generally evolve to mitigate identified risks.  In response to increased regulatory pressure, industry’s use of chemicals evolves and the risks are mitigated.  Of course, industry’s use of these chemicals also evolves and is influenced by lawsuits when the regulations and/or the enforcement of the regulations lags.  

In addition to improved understanding of the risks posed by some of these emerging contaminants, the fact that we are able to measure smaller and smaller quantities of these contaminants also impacts the life-cycle journey of these emerging contaminants.  When I started practicing environmental law in the dark ages, contaminants in soil and groundwater were measured in parts per thousand.  As science evolved to detect lower and lower levels, regulatory levels moved from parts per million to parts per billion, and then parts per trillion, and PCBs are now regulated in parts per quadrillion.   As detection levels drop, the number of new emerging contaminants will increase and the life-cycle journey for each of these contaminants begins.  

A lot can be said for the progress that has been made since the summer of 1962.  Although some will argue it should still be faster, the time from discovery of the contaminant to identification of risks and regulation of these identified risks has greatly improved since the 1960s.  This is due in part to the fact society has a much lower tolerance for risks posed by emerging contaminants and is much quicker to demand a response from the regulators now than was the case in the 1960s when environmental laws in the United States were in their infancy. A reformed TSCA is better situated to address both environmental and health and safety impacts of chemicals (both newly manufactured chemicals and new chemical uses).   U.S. EPA, working in collaboration with manufacturers, implemented a global stewardship program to eliminate the manufacture and import of long-chain PFAS compounds.  In October 2021, U.S. EPA announced its PFAS Strategic Roadmap intended to implement a whole-of-agency approach to addressing PFAS.

As our understanding of risks evolves and our detection levels drop, it is inevitable that we will continue to identify new emerging contaminants that need to be regulated.  However, I think Rachel Carlson would be proud of the progress we have made and continue to make to ensure that the world is a safer place for everyone. 

CATEGORIES: Climate Change, Consumer Law and Environment, Contamination, Emerging Contaminants, Groundwater, Sustainability, TSCA, Water

PEOPLE: Steven R. Englund, Steven M. Siros

April 19, 2022 Earth Week Series: The Future of Environmental Regulation

Torrence_jpgBy Allison A. Torrence

Earth Week
As we near Earth Day 2022, the United States may be headed toward a profound change in the way EPA and similar administrative agencies regulate the complex areas of environmental law. EPA began operating more than 50 years ago in 1970, and has been tasked with promulgating and enforcing some of the most complex regulations on the books. From the Clean Air Act to the Clean Water Act; to CERCLA and RCRA and TSCA; and everything in between.

EPA has penned voluminous regulations over the past 50 years to implement vital environmental policies handed down from Congress—to remarkable effect. While there is certainly progress left to be done, improvements in air and water quality in the United States, along with hazardous waste management, has been impressive. For example, according to EPA data, from 1970 to 2020, a period in which gross domestic product rose 272% and US population rose 61%, aggregate emissions of the six criteria pollutants decreased by 78%.

2020_baby_graphic_1970-2020

(source: epa.gov)

For the past 50 years the environmental administrative law process has worked mostly the same way: First, Congress passes a law covering a certain environmental subject matter (e.g., water quality), which provides policy objectives and a framework of restrictions, prohibitions and affirmative obligations. Second, EPA, the administrative agency tasked with implementing the environmental law, promulgates detailed regulations defining terms used in the law and explaining in a more comprehensive fashion how to comply with the obligations outlined in the statute. Depending on the subject matter being addressed, Congress may leave more details up to EPA, as the subject matter expert, to fill in via regulation. In some instances, there is a third step, where additional authority is delegated to the states and tribes to implement environmental regulations at the state-level based on the framework established by Congress and EPA. Occasionally someone thinks EPA overstepped its authority under a given statute, or failed to act when it was supposed to, and litigation follows to correct the over or under action.

Currently, this system of administrative law is facing challenges from parties that believe administrative agencies like EPA have moved from implementing Congress’s policy to setting their own. The most significant such challenge has come in the consolidated Clean Air Act (“CAA”) cases pending before the U.S. Supreme Court, West Virginia v. EPA, Nos. 20-1530, 20-1531, 20-1778, 20-1780.[1] In West Virginia v. EPA, challengers object to the Obama-EPA’s Clean Power Plan (“CPP”), which used a provision in the New Source Performance Standards (“NSPS”) section of the CAA to set greenhouse gas emission standards for existing power plants. The biggest issue with the CPP, according to challengers, is that the new standards would require many operators to shut down older coal-fired units and shift generation to lower-emitting natural gas or renewable units. Challengers, which include several states, power companies and coal companies, argue the CPP implicates the “major questions doctrine” or “non-delegation doctrine”. These doctrines provide that large-scale initiatives that have broad impacts can't be based on vague, minor, or obscure provisions of law. Challengers argue that the NSPS provision used as the basis for the CPP is a minor provision of law that is being used by EPA to create a large-scale shift in energy policy. EPA argues that, although it is currently revising its greenhouse gas regulations, the actions taken in the CPP were authorized by Congress in the CAA, are consistent with with the text of the CAA as written, and do not raise the specter of the major questions or non-delegations doctrines.

While this case will certainly dictate how EPA is permitted to regulate greenhouse gases under the CAA, it will likely have broader impacts on administrative law. On the one hand, the Court may issue a narrow opinion that evaluates the CPP based on the regulations being inconsistent with the text or intent of the CAA. On the other hand, the Supreme Court may issue a broader opinion that invokes the major questions or non-delegation doctrines to hold that based on the significant-impacts of the regulation, it is an area that should be governed by Congress, not an administrative agency. If the Supreme Court takes the latter route, it could set more limits on Congress’s ability to delegate regulatory authority to administrative agencies like EPA.

Indeed, in the Supreme Court’s recent decision on the OSHA emergency temporary standard on employer vaccine or test mandate (“the OSHA ETS”), Ohio v. Dept. of Labor, et al., 595 U.S. ____ (2022), the Court struck down an administrative regulation in a preview of what might be coming in the EPA CAA case. As everyone knows by now, the Supreme Court struck down the OSHA ETS, holding it was an overstep of the agency’s authority to regulate safety issues in the workplace. The Court’s opinion focused on the impact of the OSHA ETS—that it will impact 84 million employees and it went beyond the workplace—instead of the statutory language. The Court stated, “[i]t is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.” Slip op. at 8.  

Justices Thomas, Alito and Gorsuch invoked the major questions doctrine in their concurring opinion, stating that Congress must speak clearly if it wishes to delegate to an administrative agency decisions of vast economic and political import. In the case of OSHA and COVID-19, the Justices maintained that Congress did not clearly assign to OSHA the power to deal with COVID-19 because it had not done so over the past two years of the pandemic. Notably, the fact that when Congress passed the Occupational Safety and Health Act, it authorized OSHA to issue emergency regulations upon determining that “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful” and “that such emergency standard[s] [are] necessary to protect employees from such danger[s]”, was not a sufficient basis for the Court or the three consenting Justices. In their view, in order to authorize OSHA to issue this vaccine or test mandate, Congress had to do more than delegate to OSHA general emergency powers 50 years ago, but instead would have had to delegate authority specific to the current pandemic.

Applying this logic to EPA and the currently-pending CAA case, Justices Thomas, Alito and Gorsuch may conclude that provisions of the CAA written 50 or 30 years ago, before climate change was fully on Congress’s radar, should not be used to as the basis for regulations that impact important climate and energy policy. Of course, many questions remain: Will a majority of the court adopt this view, and how far they will take it? If Congress can’t delegate climate change and energy policy, what else is off the table—water rights? Hazardous waste? Chemical management? If Congress can’t delegate to EPA and other administrative agencies at the same frequency as in the past, how will Congress manage passing laws dealing with complex and technical areas of law?

All of these questions and more may arise, depending on how the Supreme Court rules in West Virginia v. EPA. For now, we are waiting to see what will happen, in anticipation of some potentially significant changes on the horizon.

 

[1] Jenner & Block filed an Amicus Curiae brief in this case on behalf of Former Power Industry Executives in support of EPA.

CATEGORIES: Air, Cercla, Climate Change, Contamination, COVID-19, Emerging Contaminants, Greenhouse Gas, OSHA, RCRA, TSCA, Water

PEOPLE: Allison A. Torrence

April 18, 2022 Earth Week Series: Imagine a Day Without Environmental Lawyers

Sigel

 

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

Earth Week
On this 52nd anniversary of Earth Day, I am not writing yet another, typically not very funny, riff on one of Shakespeare’s most famous lines.[1] Instead, I am inspired by one of the most popular of our blogs, written in 2017 by our talented former partner, E. Lynn Grayson, “Imagine a Day Without Water.” To start our Earth Week series of daily blogs by our firm’s EHS department, I offer words of hope and gratitude for the vast amount of work that has been done to improve and protect the environment – work done by lawyers, scientists, policy makers, and members of the public, to name a few.

Imagine what lawyers and scientists faced in 1970, the year of the first Earth Day. There was oppressive soot and polluted air throughout urban and industrial areas in the United States. The Cuyahoga River was so blighted it had caught fire. Although there was a new federal Environmental Protection Agency and two new environmental statutes – the National Environmental Policy Act and the Clean Air Act, one of the most highly complex and technical statutes ever written – both needed an entire regulatory structure to be created in order to be operationalized and enforced. This foundational work had to be done when there was not even an accepted method for determining, much less regulating, environmental and public health risk. Then two years later, in 1972, a comprehensively overhauled Clean Water Act was enacted, followed within the next decade by TSCA, RCRA, and CERCLA, to address the consequences of past waste and chemical use, and to control their future more prudently. Other laws were also passed in that time period, including the Safe Drinking Water Act and the Endangered Species Act.

Although Earth Day was created in the U.S. – the idea of Senator Gaylord Nelson (WI-D) and supported by Representative Pete McCloskey (CA-R) (both lawyers) and grass roots organizers – environmental consciousness also was growing worldwide. The 1972 Stockholm Declaration, from the first UN Conference of the Human Environment, recognized the importance of environmental protection amid the challenge of economic disparities. That work, including of the United Nations Environment Programme, led to the 1992 “Earth Summit” issuing the Rio Declaration on Environment and Development, which adopted a focus on sustainable development and the precautionary approach to protecting the environment in the face of scientific uncertainty, and creating the United Nations Framework Convention on Climate Change, which itself led to the 1997 Kyoto Protocol and the 2015 Paris Agreement, as well as other global efforts focusing on climate change and resource conservation.

Thus, within a split-second on our earth’s timeline, humans were able to tangibly improve and focus attention on the environment, through laws, agreements, governmental and private commitments, and public support. I note these developments, which were stimulated by lawyers on all sides, not to naively suggest that the global climate change, water accessibility, toxic exposure, and other environmental challenges that we face today can easily be solved, nor do I suggest that only lawyers can provide the solution. Instead, let’s take hope from the fact that in fewer years than the average for human life expectancy, there have been significant environmental improvements in our air, land, and water, and our collective focus on preserving the planet has been ignited.

These past efforts have improved the environment – not perfectly, but demonstrably. The legal structure that helped make these improvements happen has worked – not perfectly, but demonstrably. Hopefully, we will continue to work on these issues, despite their seeming intractability, under a system of national laws and global agreements. The alternative is too painful to contemplate.

Closing on a personal note, our firm’s Environmental Law Practice lost one of the best environmental lawyers in the profession, when Stephen H. Armstrong passed away last week. Steve was one of the first in-house environmental counsel I had the opportunity to work with when I began my focus on environmental law in the 1980s. He demonstrated how to respect the science, embrace the legal challenges, fight hard for your client, and always act with integrity. Although I was a young woman in a relatively new field, he consistently valued my opinions, supported my professional development, and with his deep, melodious laugh and sparkle in his eye, made working together feel like we shared a mission. And a ”mission” it was for him; I have never met any lawyer who cared more or wrestled harder about their clients’ position, while always undergirded by a deep reverence for doing the right thing. Once he joined our firm more than a decade ago, he continued being a role model for all of us. Our firm’s Environmental Law Practice, and all those who worked with him, will miss having him as a devoted colleague, friend, and mentor. Our earth has been made better for his life on it.

 

[1]“The first thing we do, let’s kill all the lawyers.” William Shakespeare, Henry VI, Part 2, Act Iv, Scene 2 (circa 1591).

CATEGORIES: Air, Cercla, Climate Change, Contamination, Emerging Contaminants, Greenhouse Gas, Groundwater, NEPA, RCRA, Sustainability, TSCA, Water

PEOPLE: Stephen H. Armstrong, Allison A. Torrence, Gabrielle Sigel

April 15, 2022 U.S. EPA’s Addition of 1-BP to CERCLA Hazardous Substance List Likely Precursor to Similar Actions on PFAS

Linkedin_Steven_Siros_3130

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

Epa

On April 8, 2022, U.S. EPA added the industrial solvent 1-bromopropane (1-BP) to its list of CERCLA hazardous substances; this listing was triggered by U.S. EPA’s decision to add 1-BP to the Clean Air Act’s list of hazardous air pollutants in January 2022. The addition of 1-BP to the Clean Air Act’s list of hazardous air pollutants may have come as a bit of a surprise since U.S. EPA hasn’t added a new pollutant to the hazardous air pollutant list since the list was originally promulgated in 1990. However, once on the Clean Air Act list of hazardous air pollutants, the pollutant automatically falls with the CERCLA definition of “hazardous substances”. In addition to adding 1-BP to the list of hazardous substances in Table 302.4 in the Code of Federal Regulations, U.S. EPA set a CERCLA reportable quantity for 1-BP at one pound (the CERCLA statutory default).

The manner in which U.S. EPA treats 1-BP at CERCLA sites may be illustrative as to how U.S. EPA will treat PFOS and PFOA, two PFAS compounds that are currently under consideration for listing as CERCLA hazardous substances. Will U.S. EPA add 1-BP to the CERCLA required analyte list at all Superfund sites or will U.S. EPA adopt a more selective approach by relying on Toxics Release Inventory (TRI) data to identify nearby sites or manufacturing facilities that may have used the industrial solvent? The more likely scenario is that U.S. EPA will utilize some screening criteria to determine whether to sample for 1-BP but how wide of a  1-BP net that U.S. EPA decides to cast remains to be seen.

1-BP is also a volatile substance so U.S. EPA could also rely on the new listing to reopen and investigate sites for potential vapor intrusion concerns. However, it is unlikely that a site would be reopened solely on the basis of 1-BP vapor intrusion risks.

We will continue to track how U.S. EPA elects to address 1-BP at Superfund sites in an effort to gain insight as to how U.S. EPA may approach future hazardous substance designations at the Corporate Environmental Lawyer.

CATEGORIES: Air, Cercla, Climate Change, Contamination, Emerging Contaminants, Hazmat, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

March 23, 2022 U.S. EPA Releases “ECHO Notify” to Increase Public Awareness of Enforcement Related Information

Linkedin_Steven_Siros_3130

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

Echo

On March 22, 2022, U.S. EPA released a new web tool designed to ensure that information regarding environmental violations and enforcement actions is more readily available to the public. The new tool, called ECHO Notify, allows users to sign up for weekly emails when new information is available with respect to violations of environmental statutes or enforcement actions in a specific geographic area or with respect to a particular facility. 

ECHO Notify provides information on both state and federal enforcement and compliance activities under the following programs: Clean Air Act (stationary sources), Clean Water Act (point sources), Resource Conservation and Recovery Act (hazardous waste handlers), and Safe Drinking Water Act (public water system). The tool provides U.S. EPA-specific enforcement-related information with respect to other environmental statutes. 

In a press release that accompanied the release of the new tool, U.S. EPA Administrator Michael Regan stated that “EPA is committed to empowering communities with the information they need to understand and make informed decisions about their health and environment.” Administrator Regan went on to state “EPA has developed ECHO Notify so that finding updates on environmental enforcement and compliance activities is as easy as checking your email.” 

This new tool is another example of U.S. EPA’s continued focus on environmental justice communities and its desire to ensure that information regarding environmental compliance and enforcement activities is readily available to those communities. We will continue to provide updates regarding U.S. EPA initiatives at the Corporate Environmental Lawyer.

CATEGORIES: Air, Climate Change, Contamination, Emerging Contaminants, RCRA, Sustainability, Water

PEOPLE: Steven R. Englund, Steven M. Siros

March 5, 2022 U.S. EPA Announces Plan to Tighten PFAS Reporting Requirements

Linkedin_Steven_Siros_3130

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

EpaIn connection with the release of its 2020 Toxics Release Inventory (TRI) National Analysis that evidenced a 10% decline in environmental releases of TRI chemicals between 2019 and 2020, U.S. EPA announced that it intends to initiate a rulemaking that will, among other things, remove the de minimis exemption for reporting the 172 per- and polyfluoroalkyl substances (PFAS) that were added to TRI by the 2020 National Defense Authorization Act. 

The TRI analysis report noted that 38 facilities reported managing 800,000 pounds of PFAS in 2020 but only 9,000 pounds of PFAS were reported as having been released. In response to what U.S. EPA claims to be a “seemingly limited scope of PFAS reporting”, U.S. EPA stated that it intends to “use existing data to generate lists of potential productions and recipients of PFAS waste, and has contacted facilities with potential reporting errors, as well as those that were expected to report but did not.” In addition, U.S. EPA claims that “the elimination of the de minimis exemption will result in a more complete picture of [PFAS] releases and other waste management quantities for these chemicals."

The de minimis exemption, which allows covered facilities to disregard certain minimal levels of listed toxic chemicals in mixtures or trade name products, has been strongly criticized by a number of environmental groups. The de minimis level for perfluorooctanoic acid is 0.1% and for all other TRI-listed PFAS is 1.0%. Litigation is currently pending in the U.S. District Court for the District of Columbia challenging U.S. EPA’s inclusion of the de minimis PFAS reporting threshold and this rulemaking may be an effort by U.S. EPA to respond to that litigation. 

We will continue to provide updates on U.S. EPA’s efforts to strip the de minimis TRI reporting exemption for PFAS as well as other PFAS-related issues on the Corporate Environmental Lawyer blog.

CATEGORIES: Climate Change, Contamination, Emerging Contaminants, Sustainability

PEOPLE: Steven R. Englund, Steven M. Siros

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

Linkedin_Steven_Siros_3130

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

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

Linkedin_Steven_Siros_3130

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

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

Linkedin_Steven_Siros_3130

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

May 25, 2021 Supreme Court Narrows Triggers for CERCLA Contribution Actions

Torrence_jpgBy Allison A. Torrence

In a unanimous decision authored by Justice Thomas, the Supreme Court of the United States ruled in the case of Guam v. United States, No. 20-382, 593 U.S. __ (2021), that a party must resolve “CERCLA-specific liability” in order to trigger contribution rights under § 113(f)(3)(B) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”).

The question before the Court was whether a settlement between Guam and the United States that resolved claims under the Clean Water Act could be the basis for a contribution claim under § 113(f)(3)(B) of CERCLA. In this case, Guam and the U.S. EPA had entered into a Consent Decree following a Clean Water Act lawsuit, settling the United States’ Clean Water Act claims against Guam and requiring Guam take actions to close and cover a dump site. Thirteen years later Guam sued the United States under CERCLA for cost recovery and contribution, claiming the United States’ earlier use of the dump site exposed it to liability. The district court, in a ruling affirmed by the court of appeals, ruled that Guam had a contribution claim at one point, based on its Clean Water Act Consent Decree because that Decree required remedial measures and provided a conditional release, which sufficiently resolved Guam’s liability for the dump site and triggered a CERCLA contribution claim under § 113(f)(3)(B). However, the Decree also triggered the three-year statute of limitations, which had expired, leaving Guam without any viable claims.

The Supreme Court reversed the lower courts, rejecting the notion that the Clean Water Act Consent Decree was sufficiently similar to a CERCLA settlement to trigger contribution liability. The Court focused on a textual analysis of the statute, which states in relevant part that:

A person who has resolved its liability to the United States or a State for some or all of a response action or for some or all of the costs of such action in an administrative or judicially approved settlement may seek contribution from any person who is not party to a [qualifying] settlement.

42 U.S.C. § 9613(f)(3)(B).

Of particular note to the Court was the reference in § 113(f)(3)(B) to “response action”, which is a term of art in CERCLA, and appears throughout the Act. The Court reasoned that this language “is best ‘understood only with reference’ to the CERCLA regime.” Guam, slip op. at 6, quoting United States v. Atlantic Research Corp., 551 U. S. 128, 135 (2007). Thus, according to the Court’s reasoning, to resolve liability for a “response action,” a party must engage in a CERCLA-specific settlement, not “settle an environmental liability that might have been actionable under CERCLA.” Id. at 7.

In conclusion, the Court held that “[t]he most natural reading of §113(f)(3)(B) is that a party may seek contribution under CERCLA only after settling a CERCLA-specific liability.” Id. at 9.

Like most major CERCLA decisions, the Court’s ruling answers one question but raises many more. We can expect future litigation on the precise bounds of how specific a settlement need be to qualify as “CERCLA-specific” under the Court’s holding. There will also likely be litigation regarding how this ruling may apply to other provision of CERCLA beyond §113(f )(3)(B). As always, the Corporate Environmental Lawyer Blog will be monitoring these important developments and reporting on what you need to know.

CATEGORIES: Cercla, Contamination, Groundwater, Hazmat, Real Estate and Environment

PEOPLE: Allison A. Torrence

May 7, 2021 EPA Announces Plans to Require Additional Chemical Reporting under its Toxic Release Inventory

LawsonBy Matthew G. Lawson

EpaOn Friday, April 30, 2021, the Biden Administration’s Environmental Protection Agency (EPA) announced significant steps the agency intends to take under the Toxics Release Inventory (TRI) Program to implement expanded reporting requirements for companies that store and utilize hazardous chemicals, including new obligations to report the storage, use and any releases of ethylene oxide, a commonly used industrial chemical and sterilant for medical equipment and supplies.  The TRI Program, which was established under Section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA), serves as a resource for the public to learn about annual chemical releases, waste management, and pollution prevention activities reported by nearly 22,000 industrial and federal facilities.  Under the TRI Program, U.S. facilities operating in various industry sectors must report annually the quantity of certain chemicals they release to the environment and/or manage through recycling, energy recovery and treatment.  A “release” of a chemical in the context of the TRI Program means that the chemical is emitted to the air or water, or placed in some type of land disposal.

A major component of EPA’s announcement is the agency’s intent to regulate ethylene oxide. The use and release of ethylene oxide by medical device sterilization companies have prompted a number of recent high-profile lawsuits alleging that releases of the chemical into the environment have caused increased cancer rates in communities adjacent to the facilities.  EPA’s announcement notes that many existing sterilization facilities “are located near areas with Environmental Justice concerns,” and that individuals living adjacent to these facilities may be at a heightened risk from exposure to ethylene oxide.  “Every person in the United States has a right to know about what chemicals are released into their communities,” EPA Administrator Michael S. Regan stated.  “By requiring new and more data on chemical releases from facilities, EPA and its partners will be better equipped to protect the health of every individual, including people of color and low-income communities that are often located near these facilities but have been left out of the conversation for too long.”  In the coming months, EPA will provide further details regarding the specific actions the agency intends to take to require sterilization facilities that use ethylene oxide to report under the TRI Program.

In addition to implementing new reporting requirements for companies utilizing ethylene oxide, EPA announced several other steps the agency plans to take that will increase reporting and public access to information under the TRI Program, including:

  • Finalizing a longstanding proposed rule that will add natural gas processing facilities to the industry sectors covered under the TRI Program thereby increasing the publicly available information on chemical releases and other waste management activities of TRI-listed chemicals from this sector;
  • Continuing to add new per- and polyfluoroalkyl substances (“PFAS”) to the list of chemicals that require reporting under the TRI Program, including the addition of perfluorobutane sulfonic acid (PFBS) following EPA’s toxicity assessment of the substance;
  • Proposing a new rule to add high-priority substances under the Toxic Substances Control Act (TSCA) and chemicals included in the TSCA workplan to the list of chemicals that require reporting under the TRI Program; and
  • Increasing public access to TRI data through improved search functionality and improved website interface.

EPA’s announcement marks the most recent step by the agency to implement the Biden Administration’s focus on environmental justice as a top priority of its environmental agenda.  On the same day that EPA announced the agency’s updated TRI policy, EPA circulated a memorandum to all EPA-staff, indicating the additional actions the agency intends to take to fulfill its environmental justice commitment.  These actions include: (1) increasing inspections of facilities that pose the most serious threats to overburdened communities; (2) focusing on implementing remedies that benefit communities, including through the incorporation of supplemental environmental projects; (3) increasing communications with overburdened communities to develop improved cleanup and non-compliance solutions; and (4) identifying locations where state regulators are not adequately protecting local communities and taking increased enforcement actions to “pick up the slack” if state regulators have not taken appropriate or timely actions.

The Corporate Environmental Blog will continue to follow developments on this issue in the coming months as EPA provides additional details on the specific actions it intends to take to expand the TRI Program.

CATEGORIES: Air, Climate Change, Contamination, Groundwater, Sustainability, Toxic Tort, TSCA, Water

April 5, 2021 Unexplained PFAS Contamination at Petroleum Spill Site Mystifies Environmental Regulators

Siros Lawson HeadshotBy Steven M. Siros and Matthew G. Lawson

The North Carolina Department of Environmental Quality (DEQ) is continuing to investigate an unexplained source of per-fluorinated compounds (PFAS) contamination that may be associated with the deployment of a fire-fighting compound in response to a major gasoline release by the Colonial Pipeline system on August 14, 2020.  The Colonial Pipeline, which spans 5,500 miles from Houston, Texas, to Linden, New Jersey, runs through a number of southern and mid-Atlantic states, including North Carolina.  The active pipeline delivers an average of 100 million gallons of liquid petroleum products each day.  On August 14, 2020, a leak in the pipeline resulted in the release of approximately 1.2 million gallons of gasoline into the environment near the town of Huntersville, North Carolina.  The release was the largest onshore gasoline spill in the United States in over 20 years and in connection with Colonial Pipeline’s emergency response to that release, Colonial Pipeline sprayed a commonly used fire suppressant known as F-500 encapsulate on the contaminated land to minimize the risk that vapors from the release would ignite. 

However, following Colonial Pipeline’s initial emergency response, new questions have emerged regarding PFAS that was detected at the release site.  As part of the ongoing efforts to investigate the nature and extent of the gasoline release, DEQ directed Colonial Pipeline to collect samples from the F-500 encapsulate and test that encapsulate for various PFAS formations.  The resulting test data found elevated levels—as high as 22,600 parts per trillion (“ppt”)—of at least three different PFAS compounds.  Samples of a nearby surface water showed PFAS concentrations ranging from 1 ppt to 14.9 ppt.

The source of the PFAS is not readily apparent, however, because as verified by the Safety Data Sheet , F-500 is not known to contain PFAS compounds.  In fact, F-500 acts differently than aqueous film forming foam (AFFF) to fight fires.  AFFF is intended to separate oxygen from the fuel while F-500 works by removing the heat, neutralizing the fuel, and interrupting the free radical chain reaction.  As such, it does not rely on fluorine compounds for effectiveness.

It is possible that the source of the PFAS identified by Colonial Pipeline was a result of residual AFFF residing in the storage tank or in the fire-fighting equipment that was used to dispense the F-500 encapsulating agent.  The F-500 was transported to the site by the Pelham Alabama fire department and the fire-fighting equipment that sprayed the F-500 was supplied by the Hunterville Fire Department.  However, notwithstanding that the equipment was supplied by the municipal fire departments and that the F-500 is not known to contain PFAS compounds, DEQ has still requested that Colonial Pipeline provide data demonstrating that there have been no PFAS impacts to soil or groundwater as a result of the emergency response. 

This a cautionary tale for environmental health and safety professionals charged with maintaining emergency spill response materials, including fire suppressant products, for their respective organizations.  Such professionals are faced with a unique challenge of ensuring that products maintained for spill containment or remediation purposes are not only fit for these purposes, but also that these products do not contain chemicals that pose a potential threat to human health or the environment.  This challenge is particularly acute with PFAS, of which there are over 5,000 different formulations which can be found in a large variety of different consumer and industry products.  Even if a decision is made to swap out one product that may historically contained PFAS with a new product that is purportedly PFAS-free, care should be taken to ensure that product distribution equipment is PFAS-free.  Otherwise, one might find oneself in the unfortunate position of having to defend against claims relating to PFAS impacts in the environment. 

CATEGORIES: Consumer Law and Environment, Contamination, Groundwater, Hazmat, Water

PEOPLE: Steven R. Englund, Steven M. Siros

March 3, 2021 OSHA under Deadline for a Nationwide COVID 19 Workplace Safety Rule: Four States’ Existing Laws and New Federal Guidance and Orders Foretell the Future

Sigel

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

Covid-19

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

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

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

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

US OSHA currently has several well-established regulations that apply to aspects of workplace protection that also apply to certain workplaces operating during the pandemic. For example, OSHA’s PPE and respiratory standards would apply particularly to work in hospitals and those in direct contact with people or bodies known to be infected by COVID-19. See, e.g., 29 CFR 1910.132, 1910.133, 1910.134. OSHA’s illness recordkeeping standard applies to workplaces otherwise required to do that recordkeeping (29 CFR 1904.2(a)), and all workplaces are required to report to OSHA work-related cases that result in hospitalization or death within 24 hours of a workplace exposure (see fn 9). The General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health (OSH) Act, 29 USC 654(a)(1), requires each employer to furnish to 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). Yet, the General Duty Clause does not provide clear direction on what an employer must do at the workplace, and enforcement by OSHA during the pandemic under the General Duty Clause can be difficult in all but the most egregious cases.

On its COVID-19 resource webpage, OSHA essentially recognizes that it does not have a comprehensive standard for working during the pandemic, as the state-plan states’ COVID-19 regulations do. OSHA points to its own bloodborne pathogen standard and California’s ATD standard as either provisions that “offer a framework that may help control some sources of the virus,” or “provid[ing] useful guidance for protecting [non-healthcare] workers exposed to SARS-CoV-2.”[3] OSHA has responded to previous threats of airborne disease and viral transmission by issuing specific guidance, as in the case of the Zika virus, avian flu, and the H1N1 virus. To state the obvious, SARS-CoV-2 is unique in US workplaces for many reasons, including the length of time it has been a threat, its asymptomatic transmission, and the sheer number of cases of sickness and death.

On March 9, 2020, OSHA issued its “Guidance on Preparing Workplaces for COVID‑19,” (Preparing Guidance) and on June 17, 2020, OSHA issued its “Guidance on Returning to Work,” (Reopening Guidance) (both currently under review by OSHA under the Biden Administration).[4] In its Preparing Guidance, OSHA recommended that employers divide 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. Specific controls generally were not offered and OSHA repeatedly described controls as “to be considered,” including physical barriers.

In its Reopening Guidance issued three months later as a supplement to the Preparing Guidance, OSHA’s “guiding principles” were that employers’ reopening plans “should address”:

  • Hazard Assessment
  • Hygiene
  • Social Distancing
  • Identification and Isolation of Sick Employees
  • Return to Work After Illness or Exposure
  • Controls
  • Workplace Flexibilities
  • Training
  • Anti-retaliation

In addition to the two basic guidance documents, through 2020, OSHA issued industry-specific COVID-19 Alerts for specific industries or types of jobs. For example, it issued, COVID-19 Guidance for the Package Delivery Workforce, which contained “tips [to] help reduce the risk of exposure.” Those tips included suggestions such as, “Allow workers to wear masks over their nose and mouth to prevent them from spreading the virus” and “Discourage workers from using other workers’ tools and equipment.” These guidance documents were not clear mandates for any specific type of hazard control.

The previous administration successfully resisted attempts to force it to adopt an ETS, instead insisting that it would rely on existing regulations and guidance, the General Duty Clause, and its enforcement priorities.

Four State-Plan States’ Approach

Four state-plan states determined that the business in their state should be regulated more prescriptively and with compliance mandates. An evaluation of each of these states’ regulations can be found in our Guide to COVID-19 Workplace Safety Regulation in Four State-Plan States.

In summary, these states took each of the elements in the Reopening Guidance and added specific, mandatory requirements, particularly with respect to hazard controls, return-to-work policies, and training. The principal differences are whether the state’s regulations expressly accommodate different levels of exposure risk (as described in the Preparing Guidance) and/or whether the state provides specific requirements for specific industries. The structure of Virginia’s permanent COVID-19 workplace safety regulation is built on the exposure risk approach described in the Preparing Guidance, and then adds specific controls and requirements for each exposure risk level. Michigan Emergency Rules require employers to categorize risk, but also includes hazard controls by industry. Oregon Emergency Rules have more industry-specific, fewer industry-wide prescriptive controls. Only California’s ETS does not rely on either an industry-specific or exposure risk regulatory approach, imposing requirements through its Injury and Illness Prevention Plan model for all employers except those healthcare employers already covered by its 2009 Aerosol-Transmitted Disease regulation. California’s ETS also requires more action, compared to all other States, in response to COVID-19 cases in the workplace, such as testing of exposed and potentially exposed employees and wage and benefit protections for employees who are required to be excluded from the workplace for quarantine or isolation.

By the end of the prior administration, these four states were the only states with workplaces operating under a comprehensive COVID-19 workplace safety regulation, enforced by the state’s occupational safety and health agency, not federal OSHA. The other states’ employers were operating under US OSHA guidance and existing regulations, as described above, and their Governors’ COVID-19 public health directives and orders.

The Biden Administration’s OSHA Guidance to Date

President Biden’s Executive Order on Protecting Worker Health and Safety instructed OSHA to take several COVID-19 workplace safety actions: issue “revised guidance” within two weeks; consider and, if necessary, issue a COVID-19 ETS by March 15; enhance enforcement; and initiate a multilingual workers’ rights outreach program. Executive Order 13999, § 2.

OSHA issued its revised guidance eight days later on January 29, 2021. The new “stronger” guidance document, entitled Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace (Protecting Guidance), used more resolute language, such as directives that employers “should” implement certain programs, provided more details on a range of elements, including emphasizing communication to workers in native languages and non-retaliation, and incorporated recent CDC guidance.

Introducing the principal elements of its Protecting Guidance, OSHA reiterated employers’ obligation under the General Duty Clause, and stated that, “[i]mplementing a workplace COVID-19 prevention program is the most effective way to mitigate the spread of COVID-19 at work.” According to the Protecting Guidance, that program includes:

  • Assigning a COVID-19 coordinator responsible for COVID-19 issues on behalf of the employer
  • Conducting a hazard assessment
  • Implementing controls, following the hierarchy of controls starting with engineering controls, administrative controls, PPE, and suppressing spread through hand washing, sanitation, and face coverings
  • Considering protections for workers at higher risk for severe illness, including age, through supportive policies and practices
  • Communicating and training in appropriate languages and in an understandable fashion
  • As a “best practice,” instituting a “two-way” communication system for workers to report their symptoms and medical status and for employers to report illness cases in the workplace
  • Instructing sick and exposed workers to stay home and having non-punitive absence policies
  • Performing cleaning and disinfection, particularly after ill people have been at work
  • Following state and local guidance regarding pre-entry health screening and testing
  • Recording and reporting cases per existing regulation and reporting to health departments as locally required
  • Protecting workers from retaliation for raising concerns about COVID-19 hazards

OSHA’s revised guidance also repeats, in detail, CDC guidelines regarding face coverings and periods of time for isolation and quarantine. However, what perhaps is most distinctive about the revised OSHA guidance is its reference to COVID-19 vaccination. OSHA’s Protecting Guidance states that an effective COVID-19 Prevention Plan should: “Mak[e] a COVID-19 vaccine or vaccination series available at no cost to all eligible employees,” and employers should provide information about “the benefits and safety of vaccinations.” However, because the science on whether the vaccine prevents transmission is not settled, employers should be sure to not “distinguish[] between workers who are vaccinated and those who are not,” with regard to protective measures, such as face coverings.

OSHA’s Protecting Guidance lays out in more detail the elements of a COVID-19 Prevention Plan, and indicates new concerns for enforcement, including with respect to language usage and vaccination efforts. However, OSHA’s enforcement powers continue to be limited primarily to General Duty Clause and PPE violations, as occurred in the prior administration. Like its predecessor guidance, OSHA states that the document “is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of existing mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in recognizing and abating hazards likely to cause death or serious physical harm as part of their obligation to provide a safe and healthful workplace.”

What OSHA’s Soon to Drop “Shoe” May Look Like

In considering issuing a COVID-19 ETS, OSHA faces political and legal risks that the state-plan states do not face. As noted above, OSHA has not even attempted to issue an ETS in close to 40 years. The facts that work through the pandemic has been occurring for a year and vaccines are becoming increasingly available will likely hurt OSHA’s ability to prove grave danger and necessity across all workplaces and in all industries. The fact that OSHA has issued COVID-19-related citations, with proposed penalties exceeding $4 million, under the General Duty Clause and existing regulatory standards, will also make it difficult for OSHA to prove the need for a broad ETS. Even though the Department of Labor Office of Inspector General’s February 25, 2021 report (the OIG Report) criticizes OSHA’s pandemic performance as deficient, it largely blames “increased complaints, reduced inspections, and most inspections not being conducted onsite subject employees to greater safety risk.” OIG Report at p. i. The OIG Report also stresses that OSHA’s guidance on COVID-19 safety is not enforceable, and urges OSHA to consider an ETS; however, it notes that OSHA can rely on its guidance as evidence to support a General Duty Clause claim. OIG Report, pp. 10-14. Indeed, as recently as February 23, 2021, OSHA announced that it had issued a citation under the General Duty Clause against a manufacturer, after an employee died, allegedly after workplace exposure to SARS-CoV-2. Although the OIG Report supports a COVID-19 ETS, perhaps inadvertently, the report more strongly demonstrates that deficiencies in OSHA’s workplace safety protection was due to lack of enforcement, not necessarily due to the lack of tools to do so.

Although OSHA has received demands from labor and other advocates to enact a nationwide ETS, resembling the Virginia model, the California model, or its own guidance, OSHA may well decide that a more politically and legally feasible approach is a more targeted one. For example, under the Biden Administration, federal orders requiring face coverings in workplaces have already begun. On January 21, 2021, the President’s Executive Order 13998, Promoting COVID‑19 Safety in Domestic and International Travel, 86 FR 7205 (Jan. 26, 2021), has resulted in the CDC issuing a nationwide order requiring masks of a certain type to be worn, by the public and workers, in and on airplanes, trains, buses, and various modes of surface transportation, including in stations and terminals. Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs. CDC Agency Order, 86 FR 8025 (Feb. 3, 2021). On January 31, 2021, the TSA issued a Security Directive for enforcing the CDC Order. Security Directive 1582/84-21-01.

Most recently, on March 1, 2021, the Federal Railroad Administration (FRA) issued the  Emergency Order Requiring Face Mask Use in Railroad Operations, stating that it was “exercising its emergency railroad safety authority” to require rail carriers to require mask wearing by railway workers “while engaged in railroad operations.” 86 FR 11888, 11890 (Mar. 1, 2021). To support this Emergency Order, the FRA noted that it has authority to issue emergency orders to address an unsafe practice that “causes an emergency situation involving a hazard of death, personal injury, or significant harm to the environment,” including “restrictions and prohibitions… that may be necessary to abate the situation.” 86 FR at 11888, citing 49 U.S.C. § 20104. The FRA justified its emergency order by describing the impact of the pandemic generally; concerns about virus variants that spread more easily and quickly; and field observations of personnel not wearing masks. The FRA stated that its emergency order was “necessary…to ensure a minimum level of nationwide compliance, together with the [TSA’s Security Directive].” 86 FR at 11890. The FRA also referred to the railroad transportation system being essential for public health, the economy, and “other bedrocks of American life.” Id. While clearly applicable only to a specific industry, the FRA emergency order may indicate a targeted approach that OSHA may take at all workplaces, i.e., requiring the wearing of face masks at workplaces and in the work environment, except for narrow exceptions.

OSHA also may decide to issue a regulation targeting a particular industry or hazards, such as adopting California’s ATD Standard as a federal ETS for the healthcare industry. Or OSHA may convert its most recent Protecting Workers guidance into an ETS targeted to specific high hazard industries, such as healthcare, congregate living facilities, meat processing plants, or manufacturing facilities. OSHA also may use its ETS powers to obtain information regarding the immediate reporting of COVID-19 cases in the workplace, in order to gather the data necessary to support both enhanced enforcement efforts or a future ETS.

Notably, on February 15, 2021, former HHS and OSHA officials, joined by other public health luminaries, called on COVID-19 Pandemic Response members, Jeffrey Zients, Dr. Rochelle Walensky, and Dr. Anthony Fauci, as well as other top federal officials, including at OSHA, to have the CDC and OSHA revise their guidance and regulations, including by requiring healthcare workers and workers “at very high risk of exposure and infection such as in food processing, prisons, and security” to be provided N95 respirators, so that they need not rely solely on face coverings. Letter from R. Bright, et al., “Immediate Action is Needed to Address SARS-CoV-2 Inhalation Exposure” (Feb. 15, 2021). The letter’s signatories also called on OSHA to issue an ETS “that recognizes the importance of aerosol inhalation, includes requirements to assess risks of exposure, and requires implementation of control measures following a hierarchy of controls,” essentially the basic elements in OSHA’s Protecting Workers guidance. They also called on OSHA to require that workers at lower exposure risks be “offered high-performing barrier face coverings tested to the STM F3502-21 Standard Specification for Barrier Face Coverings with at least 80% filter efficiency, no more than 15mm H2O air flow resistance and total inward leakage of no more than 5% on a panel of at least 10 subjects.” Id. They further recommended that this OSHA broad masking requirement be supported by a “national effort,” including under the Defense Production Act, to have N95 respirators and the ASTM 80% face coverings available for nationwide worker protection. Id.

Whichever approach OSHA takes by March 15, 2021, it will face political opposition, and the legal opposition to any ETS likely will be fierce. In the meantime, employers should consider that President Biden’s Protecting Worker Health and Safety Executive Order also called for OSHA to ramp up its enforcement activities, including to protect workplaces with a large number of people at risk. 86 FR at 7211, §§ 2(c), (d). Thus, regardless of whether OSHA issues a nationwide ETS, employers who have experienced multiple cases of COVID-19 or are in industries with higher numbers of cases would be well-advised to have in place a COVID-19 prevention plan, with well-recognized physical distancing, sanitation, mask-wearing, and other now-standard COVID-19 prevention controls.

For more information or advice on the various state-plan states’ COVID-19 standards, OSHA standards and guidance, and enforcement nationwide, please contact the author. Additional information regarding working during the COVID-19 pandemic can be found on this blog and in the Jenner & Block COVID-19 Resource Center.

 

[1] Asbestos Info. Ass’n v. OSHA, 727 F.2d 415 (5th Cir. 1984) (ETS rejected because OSHA did not sufficiently support its conclusion that 80 people would die in the next six months or that the ETS was necessary given its existing respiratory standard).

[2] State plans are authorized under Section 18 of the OSH Act and must have regulations “at least as effective” as federal OSHA.” 29 U.S.C. § 667(c).

[3] OSHA COVID-19/Regulations webpage (last viewed 2/24/2021).

[4] Each of the formerly issued OSHA guidance documents has a banner stating, “Given the evolving nature of the pandemic, OSHA is in the process of reviewing and updating this document. These materials may no longer represent current OSHA recommendations and guidance. For the most up-to-date information, consult Protecting Workers Guidance [which was issued on January 29, 2021 and is discussed below.].”

CATEGORIES: Contamination, COVID-19, OSHA

PEOPLE: Gabrielle Sigel