Biden Administration Takes New Action to Ensure Increased Consideration of Climate Change Impacts by the Federal Government
By Matthew G. Lawson
On Friday, February 19, 2021, the Council on Environmental Quality (“CEQ”) rescinded prior draft guidance issued under the Trump Administration in 2019 (the “2019 Draft CEQ Guidance”), which had limited the degree to which federal agencies needed to consider and quantify climate change impacts under the National Environmental Policy Act (NEPA). The rescission of the 2019 Draft CEQ Guidance is the latest step by the federal government to implement President Biden’s Executive Order 13990, which was signed on President Biden’s first day in office (the “Day 1 EO”). In addition to directing CEQ to rescind its prior guidance, President Biden’s Day 1 EO set forth numerous directives implementing the administration’s new climate change policy, including an order reinstating the Interagency Working Group (IWG) and directing the IWG to develop an updated “Social Cost of Carbon” (“SCC”) valuation to better quantify the economic harms associated with the emission of carbon dioxide and other greenhouse gasses (“GHGs”). Under the Day 1 EO, the IWG was directed to publish its new interim SCC value within 30 days of the Order and publish a final SCC value by January 2022. Together, the Day 1 EO’s rescission of the 2019 Draft CEQ Guidance and reinstatement of the IWG signal a clear intent from the Biden Administration to significantly increase the degree to which federal agencies must consider and account for climate change impacts when enacting future regulation or taking other agency actions.
The origins of the SCC metric can be traced back to President Clinton’s 1993 Executive Order 12866, which required that federal agencies, to the extent permitted by law, “assess both the costs and the benefits of [their] intended regulation and…propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs.” Compliance with Executive Order 12866 poses a unique challenge for federal agencies where a proposed regulation is expected to cause a significant increase or decrease of carbon dioxide or other GHG emissions, as the benefits or costs associated with these emissions cannot easily be quantified or compared to other metrics used in the agency’s cost-benefit analysis.
To assist federal agencies with this inherent challenge, the Obama Administration in 2010 convened the IWG with the goal of identifying a metric grounded in data that represents the long-term net economic damages associated with an incremental increase in carbon dioxide or other GHG emissions in a given year (typically measured in dollars per metric ton). The resulting metric created by the IWG (the “Social Cost of Carbon” or “SCC”), provides an estimated monetary value representing a wide range of anticipated climate impacts resulting from CO2 emissions, such as net changes in agricultural productivity and human health, property damage from increased flood risk, and changes in energy system costs. Although the IWG acknowledged a range of possible SCC values, the IWG set a mid-range SCC value of $21 per ton of CO2 emitted in 2010. The IWG subsequently revised and modified its SCC value on several occasions, and most recently in 2016 when IWG revised the value of SCC to $42 per ton of CO2 emitted in 2020.
In August 2016, the Obama-era CEQ sought to promote the use of SCC beyond its original application (i.e., cost-benefit analyses of proposed regulations) by recommending use of the metric in applicable NEPA analyses. To that end, the Obama CEQ issued final NEPA guidance (the “2016 CEQ Guidance”) recommending that federal agencies utilize the IWG’s SCC valuation to quantify the environmental impact of increased GHG emissions resulting from their proposed actions. As a result of the 2016 CEQ Guidance, federal agencies were advised for the first time to consider applying the SCC not only to weigh the costs and benefits of proposed regulations, but also to quantify the costs of increased GHG emissions associated with their proposed actions where such actions trigger the requirements of NEPA.
Following the 2016 election of President Trump, the use and impact of SCC as a decision-making tool significantly declined. In March 2017, pursuant to Executive Order 13783, the Trump Administration disbanded the IWG and withdrew its existing SCC valuation “as no longer representative of governmental policy.” As a result, federal agencies under the Trump Administration set their own SCC values, which resulted in an average value between $1 and $7 per ton of CO2 emitted in 2020. The Trump Administration also rescinded the 2016 CEQ Guidance and published its own draft guidance (the “2019 Draft CEQ Guidance”) rejecting the application of SCC to quantify the impacts GHG emissions in NEPA reviews. Finally, while not directly addressing SCC, the Trump Administration issued a regulatory overhaul to NEPA that aimed to reduce the type of environmental impacts that a federal agency must consider during a NEPA review.
Impact of the Biden Administration’s Recent Actions
The Day 1 EO and subsequent rescission of the 2019 Draft CEQ Guidance signal a strong intention by the Biden Administration to reverse the climate change policies enacted by the Trump Administration. Under the Day 1 EO, the IWG has been instructed to set a SCC value that “capture[s] the full cost of greenhouse gas emissions as accurately as possible, including by taking global damages into account.” Based on these instructions, experts have predicted that the IWG’s interim SCC value is likely to be set at $125 per ton or higher.
While federal agencies await the imminent release of IWG’s interim SCC value, federal agencies may—at least in the context of NEPA reviews—look to the most recent 2016 SCC value set by the IWG prior to its disbandment. In the published rescission of the 2019 Draft CEQ Guidance, CEQ advises that until new guidance is provided, federal agencies “should consider all available tools and resources in assessing GHG emissions and climate change effects of their proposed actions, including, as appropriate and relevant, the 2016 [CEQ] Guidance.” Of course, the 2016 CEQ Guidance itself recommends that federal agencies rely on the 2016 SCC valuation to quantify climate change impacts associated with agency actions.
The Biden Administration’s decision to resurrect the IWG and revoke the 2019 Draft CEQ Guidance is expected to have a significant impact on a wide scope of federal agency actions with the potential to increase or decrease GHG emissions. Upon the enactment of the new SCC value, federal agencies will be required to afford greater weight to potential climate change impacts during their decision-making process. As a result, industry may expect an increase in new regulations aimed at reducing GHG emissions, as well as greater challenges in securing federal approval to engage in GHG-intensive activities, such as oil, gas or coal mining.
U.S. EPA Embraces Prior Administration’s PFAS Drinking Water Proposals
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On February 22, 2021, U.S. EPA announced that it was moving forward with implementation of several regulatory proposals issued in the waning days of the Trump Administration. First, U.S. EPA announced that it was finalizing its regulatory determination under the Safe Drinking Water Act (SDWA) for perfluorooctanesulfonic acid (PFOS) and perfluorooctanoic acid (PFOA). A regulatory determination is the first regulatory step in setting a maximum contaminant level (MCL) for these contaminants. The final regulatory determination, signed by Acting EPA Administrator Jane Nishida, reached the same conclusions as had been reached by former EPA Administrator Andrew Wheeler—(1) that these contaminants may have an adverse effect on the human health; (2) that the contaminants are known to be present in public water systems at a sufficient frequency and at levels that pose public health concerns; and (3) that regulation of these contaminants presents a meaningful opportunity to reduce health risks. Interestingly, U.S. EPA’s regulatory determination specifically acknowledges that its 2016 Lifetime Health Advisory Levels of 70 parts per trillion for both PFOA and PFOS continue to represent the best available peer reviewed scientific assessment for these chemicals, notwithstanding that many comments were submitted encouraging U.S. EPA to update and revise its 2016 Lifetime Health Advisory Levels. It is likely to take about four years to promulgate a final MCL for PFOS and PFOA.
U.S. EPA also reissued its proposed Fifth Unregulated Contaminant Monitoring Rule (UCMR5). The reissued USMR5 is identical to the draft that was issued on January 14, 2021 at the tail end of the Trump Administration but was temporarily put on hold when the Biden Administration took office. The proposed UCMR5 would require community water systems serving 3,300 people or more to monitor for a group of 30 chemicals (29 of which are PFAS substances) between 2023 and 2025. The monitoring is intended to provide U.S. EPA with data on the national occurrence of these chemicals in drinking water that at least in part will guide U.S. EPA in promulgating regulatory determinations for other PFAS substances. U. S. EPA will accept public comment on the draft UCMR5 for a period of 60 days following publication in the Federal Register.
We will continue to provide updates on U.S. EPA’s efforts to regulate PFAS substances in the Corporate Environmental Lawyer.
Virginia’s COVID-19 Workplace Safety Regulation Is Permanent: A National Model
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
In July 2020, we reported that Virginia, an OSHA State-plan State, was the first in the country to issue a workplace safety regulation specifically addressing COVID‑19. At that time, the Virginia standard was issued as a temporary emergency rule, which would expire by January 27, 2021, unless made permanent. On the expiration date, Governor Northam formally approved a revised version of the temporary emergency rule, 16VAC25-220, “Final Permanent Standard for Infectious Disease Prevention of the SARS-CoV-2 Virus That Causes COVID‑19, applicable to all regulated workplaces in the Commonwealth (the “Permanent Standard”). Although described as permanent, by its own terms, within 14 days of the expiration of the Governor’s temporary declaration for the COVID‑19 pandemic, the Virginia Department of Labor and Industry’s Safety and Health Codes Board must meet to determine whether there remains an ongoing need for the COVID-19 workplace safety regulation. § 20B. The Permanent Standard is immediately effective, except that the program documentation and training requirements go into effect on March 26, 2021. The Permanent Standard will be enforced by the Department of Labor and Industry operates the Virginia State Plan for Occupational Safety and Health (“VOSH”).
Like the temporary standard, the Permanent Standard requires all employers to implement certain basic protections and procedures and then increases the protective measures based on whether the “exposure risk level” for the workplace or specific job tasks should be classified as very high, high, medium, or lower. Outside the healthcare industry, first responders, mortuary services, and correctional and detention facilities, Virginia places of employment and job tasks are categorized as “medium” or “lower” exposure risk levels. The difference between “medium” and “lower” exposure risk levels is whether the work requires “more than minimal occupational contact within six feet with other employees, other persons, or the general public …”. § 30.
In the Permanent Standard, “minimal occupational contact” is defined to mean “no or very limited, brief and infrequent contact,” such as remote work, passing in a hallway while six feet apart, and long distance truck driving. § 30. Thus, although most office workspaces would be categorized as lower risk, if employees must even pass in the hallway within six feet of each other, the workplace or task is elevated to the medium exposure level, with its increased program documentation and training requirements. Other examples of the lower exposure levels are single workers behind impermeable clear plastic walls at convenience stores, telecommuting and telework, package delivery “that allows employees to maintain physical distancing from other employees, other persons, and the general public;” and workplaces that have “mandatory physical distancing of employees” from each other and all other persons. Id. Face coverings for employees within the six-foot physical distance parameter does not change the workplace or job task from a “medium” to a “lower” exposure risk level. Id.
The Permanent Standard’s basic requirements for all employers continue be as established in the temporary standard:
- Exposure assessment and determination.
- Employee notification and access to exposure and medical records.
- Return to work policies after being known or suspected to be infected.
- Engineering, administrative, and work practice controls, including physical distancing, face coverings, and sanitation and disinfection.
- Written infectious disease plans and preparedness plans for all employers unless they only have employees with lower levels of exposure or are a small business (fewer than eleven employees) at the medium exposure level.
The principal changes made by the Permanent Standard include:
- While the regulation continues to allow the employer to demonstrate compliance if they comply with equally protective mandatory or non-mandatory CDC guidelines, Virginia’s Commissioner of Labor and Industry must consult with the State Health Commissioner “for advice and technical and before making a determination related to compliance with CDC guidelines.” § 10.E. In addition, an enforcement action cannot be brought against an employer if PPE is not readily available “on commercially reasonable terms” and the employer makes a “good faith effort” to acquire the PPE on such terms. § 10.C.
- “Face covering” is now defined to match the more recent CDC guidance, i.e., an item “made of two or more layers of washable, breathable fabric that fits snugly against the sides of the face without any gaps, completely covering the nose and mouth and fitting securely under the chin. Neck gaiters made of two or more layers of washable, breathable fabric, or folded to make two such layers, are considered acceptable face coverings. Face covering shall not have exhalation valves or vents, which allow virus particles to escape, and shall not be made of material that makes it hard to breathe, such as vinyl.” § 30. A face covering must always cover the nose and mouth and extend under the chin. § 40.I. A face covering is always required, at a minimum, if employees have brief contact without six feet of distancing. For example, if employees pass in the hallway within six feet of each other, they must wear face coverings. § 40.H.
- While a face shield cannot be considered a substitute for a face covering or any form of PPE except for eye protection, a face shield, meeting certain specifications, may be worn if a face covering cannot be worn “due to medical contraindications.” § 40.J.
- Acceptable physical distancing can include an office or another solid floor to ceiling barrier only if “six feet of travel distance is maintained from others around the edges or sides of the wall as well.” § 30.
- Redefinition of “signs” and “symptoms” of COVID‑19. “Signs of COVID‑19” include only “medical conditions that can be objectively observed,” such as fever, breathing trouble, cough, vomiting, new confusion, bluish lips or face. § 30. On the other hand, “symptoms of COVID‑19” are medical conditions “that are subjective to the person and not observable to others,” such as chills, fatigue, and new loss of taste or smell. § 30. Persons are “suspected to be infected” if they have signs or symptoms.
- Provisions in the temporary regulation requiring that the employer have flexible sick leave policies, consistent with public health guidance, are deleted.
- Conforming to changes in CDC guidelines since the temporary standard was issued, the Permanent Standard changes the exposure period requiring notice, to employees, other employers’ employees, and the building or facility owner, of a positive case of a fellow employee, subcontractor, contract employee, or temporary employee “present at the place of employment.” The time period of exposure requiring notice now is from 2 days before through 10 days after symptom onset or a positive test reflecting newer CDC guidance. § 40.B.7.
- Employers must contact the Virginia Department of Health “when the worksite has had two or more confirmed cases of COVID‑19 of its own employees present at the place of employment within a 14-day period testing positive for [the virus] during that 14-day time period.” § 40.B.7.d. This report must be made within 24 hours of the employer’s knowledge and additional cases must continue to be reported “until the local health department has closed the outbreak.”
- Employers generally can no longer rely on a test-based strategy for return to work after an employee has been infected. Instead, symptomatic employees can return 10 days after symptom onset, if they are fever-free for 24 hours and respiratory symptoms have improved. § 40.C.1. However, employees with “severe illness” “may warrant extending duration of isolation for up to 20 days after symptom onset” and employees “who are severely immunocompromised may require testing to determine when they can return to work.” The employer “shall consider consultation with infection control experts” and VOSH will identify severe illnesses and severe immunocompromised conditions. Id.
- Employers can rely only on an RT-PCR test for viral RNA to determine that an asymptomatic employee is a known infected person who must be excluded from work for 10 days after the date of the first positive test. § 6.
- Employers must pay, or have their health insurance plans pay, for the cost of testing “for return to work determinations;” however, such testing is not required except in the case of the severely immunocompromised. § 40.C.3.
- A new “hierarchy of hazard controls” is required when multiple employees are occupying a vehicle for work purposes, but. First, the employer must attempt to eliminate the need to share vehicles. § 40.F. If sharing of vehicles must occur, the employer must provide respiratory protection, such as N95 respirators, instead of face masks, unless the employer can show that PPE is not “readily available” for those outside of the health care and first responder workplaces.
- More detailed requirements are provided for ventilation systems when job tasks or hazards are at very high or high levels of exposure (§ 50.B) or at medium levels of exposure (§ 60.B).
- As provided in the temporary standard, except for lower levels of exposures and small business at medium levels, employers must have a written Infectious Disease Preparedness and Response Plan (the “Plan”). The Permanent Standard adds that those Plans must address “situations where employees work during higher risk activities involving potentially large numbers of people or enclosed work areas such as at large social gatherings, … parties, restaurants, bars, hotels, … movie theaters, rest stops, airports, bus stations, train stations, … airplanes, etc.” § 70.C.3.a.(4). The Plan also must, consistent with privacy laws, address individual risk factors for severe disease, including age. at § 70.C.3.b.
- Extensive training and documentation of training continues to be required for all employees, except if they are only at a lower level of exposure. § 80.A. The Permanent Standard clarifies that such training must include: any CDC guidelines or Virginia guidance documents being relied upon in lieu of a specific provision in the Permanent Standard (§ 80.B.2.); risk factors for severe illness, including “advancing age” (§ 80.B.5.); strategies for extending use of PPE when it is in short supply (§ 80.B.8.f.); heat-related illness prevention, including when using PPE and face coverings (§ 80.B.8.g.); and additional methods for employee-specific training certification for all those at high or very high exposure levels (§ 80.G.).
- For employees only at the lower level of exposure, training requirements are not as rigorous, but now must include the “benefits of wearing face coverings.” § 80.G.5.
- The Permanent Standard provides that although an employee cannot be retaliated against for wearing a face covering that meets the requirements of the Standard and does not create a hazard, an employer can still “establish . . . and enforc[e] legally permissible dress code or similar requirements addressing the exterior appearance of [PPE] or face coverings.” § 90.B.
- The Permanent Standard continues to allow employees to raise “a reasonable concern” to the employer, its agent, other employees, a government agency, or “to the public such as through print, online, social, or any other media,” thus making an employer potentially liable for a VOSH citation for enforcing its internal publication policies and procedures. See 90.C.
- The Permanent Standard concludes by stating that it does not “limit an employer from refusing to do work or enter a location because of a reasonable fear of illness or death,” except pursuant to 16VAC25-60-110.
The Governor’s announcement of the Permanent Standard described VOSH’s enforcement approach. Upon receiving a complaint, VOSH will work with the employer to resolve the issue without an investigation. If VOSH has serious concerns or the employer is subject to multiple complaints, VOSH will open a formal investigation leading to citations or other enforcement action. To date, less than 1% of all complaints have been formally investigated, and less than one-third of those formally investigated have received a citation.
As the COVID‑19 workplace safety standard longest in effect, the Virginia standard has served as a model for other State-plan States and for the Biden Administration. Indeed, in his February 4, 2021, Senate confirmation hearing for the position of Secretary of Labor, he praised the Virginia Permanent Standard. If OSHA issues its own emergency temporary standard, it likely will have many of the elements in the Virginia Permanent Standard, which arise from, but significantly expand standard elements long found in U.S. OSHA guidance.
For more information or advice on the Virginia COVID‑19 Permanent Standard, please contact the author. Additional information regarding working during the COVID‑19 pandemic can be found on this blog and in Jenner & Block’s COVID‑19 Resource Center.
 All citations are to subsections of the Permanent Standard at 16VAC25-220, unless otherwise specified.
Biden Administration Confirms COVID-19 Liability Protections for Federal Contractors, Employees and Volunteers
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On February 16, 2021, Acting Secretary of the U.S. Department of Health & Human Services (“HHS”) Norris Cochran, published in the Federal Register the Sixth Amendment to the Declaration Under the Public Readiness and Emergency Act [“PREP Act”]. 86 Fed. Reg. 9516-9520 (Feb. 16, 2021). This is the second amendment to the Declaration issued since President Biden took office and continues the Trump Administration’s practice of providing broad liability protection for those responding to COVID‑19.
The Declaration originally was issued on January 31, 2020, by former HHS Secretary Azar. Pursuant to the PREP Act, the Declaration allows the Secretary to extend liability immunity to “covered persons” for taking allowed actions with respect to “covered countermeasures,” in prescribed circumstances, all as declared by the Secretary. A “covered person” is “immune from suit and liability under Federal and State law for all claims of loss caused by, arising out of, relating to, or resulting from the administration or use of a covered countermeasure,” which includes FDA-authorized COVID‑19 vaccines and tests. See 42 U.S.C. § 247d‑6d(a)(1). Under the PREP Act, “covered persons” include “manufacturers,” distributors,” “program planners,” “qualified persons,” and their “officials, agents and employees.” 42 U.S.C. § 247d-6d(i)(2).
In the Sixth Amendment to the Declaration, the Acting Secretary augmented the “covered persons” protected from liability with an additional category of “qualified persons.” Although the Unites States is, by statute, a “covered person,” the structure of the statutory provision defining “covered person” does not make clear that direct contractors and employees of the United States are similarly covered. See 42 U.S.C. § 247d-6d(i)(2). To clear up that ambiguity, the Sixth Amendment provides that a “qualified person” includes “any Federal government employee, contractor or volunteer who prescribes, administers, delivers, distributes or dispenses a Covered Countermeasure,” if the federal department or agency “has authorized or could authorize” that person “even if those authorized duties or responsibilities ordinarily would not extend to members of the public or otherwise would be more limited in scope than the activities such employees, contractors or volunteers are authorized to carry out under this declaration.” 86 Fed. Reg. at 9519 (Feb. 16, 2021).
This expanded liability protection is fully consistent with and will support President Biden’s National Strategy for the COVID‑19 Response and Pandemic Preparedness, which envisions federal vaccination sites and “deploy[ing] thousands of federal staff, contractors and volunteers to support state and local vaccination efforts.” See National Strategy, pp. 9, 52.
EPA Approves Additional Pesticide Products to Use as COVID-19 Disinfectants
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
U.S. EPA recently has approved two new products for use on surfaces in the battle to kill SARS-CoV-2, the virus that causes COVID‑19.
On February 10, 2021, EPA announced that it had approved a copper alloy product, made of at least 95.6 % copper, as a product that kills the virus upon contact. Thus, all products containing the copper alloy product can be sold as providing long-term disinfection against the virus. Specifically, EPA’s approved use on surfaces of the copper alloy product registered to the Copper Development Association (“CDA”) [EPA Reg. No. 82012‑1]. CDA’s registration had previously been approved under the Federal Insecticide, Fungicide & Rodenticide Act (“FIFRA”), for more than a decade, albeit for other purposes. Products using the approved antimicrobial copper alloys will be added to EPA’s List N appendix of supplemental antimicrobial products that can be used to kill SARS‑CoV‑2 virus particles that contact surfaces treated with the copper alloys.
Perhaps anticipating EPA’s action, on February 1, 2021, New York State Senator Timothy Kennedy sponsored a bill, S3905, in the New York State Senate to require the use of EPA’s approved copper alloy product in all touch surfaces in new, publicly funded construction projects. As of this writing, the bill is in committee for consideration. On January 7, 2021, Assembly Member Marianne Buttenschon had introduced the same language in a bill, A998, in the New York Assembly, where it also is being considered in committee.
In addition to the copper alloy surface approval, on January 15, 2021, EPA issued a FIFRA Section 18 emergency exemption for an antiviral treatment of the air, Grignard Pure, which can be used in indoor spaces to kill SARS-CoV-2. Section 18 of FIFRA allows EPA to approve, on an emergency basis, federal agencies’ and states’ petitions to allow the use of pesticides for previously unregistered uses. The emergency exemption for public health reasons lasts only for a year. To date, EPA has issued only two emergency exemptions to address SARS-CoV-2.
Most recently, on January 15, 2021, EPA granted emergency exemptions to Georgia and Tennessee for the use of Grignard Pure, which forms a mist that contains triethylene glycol (“TEG”) as the active ingredient that kills the virus upon contact in the air. TEG is an ingredient commonly used in fog machines, but only for its theatrical effects, not as a pesticide. EPA stated that, the product can be applied only by a “trained professional in certain indoor spaces in Georgia and Tennessee where high occupancy, prior ventilation or other factors make it challenging to follow public health guidance and maintain appropriate social distancing.” Based on laboratory testing, Grignard Pure, when activated, “will continuously inactivate 98% of airborne SARS‑CoV‑2 particles,” EPA explained. Using Grignard Pure does not eliminate the need for mask wearing and social distancing, EPA warned.
Prior to the Grignard Pure emergency exemption, the only other FIFRA Section 18 emergency exemption that EPA had granted in the fight against SAR-CoV‑2 was a product called SurfaceWise2, which was approved for the use in American Airlines airport facilities and airplanes in Texas, Oklahoma, and Arkansas, and in limited health facilities in Texas. SurfaceWise2, manufactured by Allied BioScience, is a surface coating that can be used with electrostatic sprayers, that inactivates the virus within two hours of its application. That one-year exemption currently expires in August 2021.
OSHA Issues Proposed Update to Hazard Communication Standard
By Matthew G. Lawson
On February 5, 2021, the U.S. Occupational Safety and Health Administration (OSHA) issued a proposed rule updating its Hazard Communication (“Haz Com”) Standard to align its rules with those in the seventh version of the United Nation’s Globally Harmonized System of Classification and Labeling of Chemicals (GHS), published in 2017. OSHA’s proposed regulatory update is being issued as the United States’ major international trading partners, including Canada, Australia, New Zealand, and those in Europe, similarly prepare to align their own hazard communications rules with the seventh version of the GHS.
Originally established in 1983, OSHA’s Haz Com Standard provides a systematized approach to communicating workplace hazards associated with exposure to hazardous chemicals. Under the Haz Com Standard, chemical manufacturers and/or importers are required to classify the hazards of chemicals which they produce or import into the United States, and all employers are required to provide information to their employees about the hazardous chemicals to which they are exposed, by means of a hazard communication program, labels and other forms of warning, safety data sheets, and information and training. At an international level, the GHS provides a universally harmonized approach to classifying chemicals and communicating hazard information. Core tenants of the GHS include universal standards for hazard testing criteria, warning pictograms, and safety data sheets for hazardous chemicals.
In a pre-published version of the proposed rule, OSHA’s proposed modifications to the Haz Com Standard include codifying enforcement policies currently in OSHA’s compliance directive, clarifying requirements related to the transport of hazardous chemicals, adding alternative labeling provisions for small containers and adopting new requirements related to preparation of Safety Data Sheets. Key modifications included in the proposed rule, include:
- New flexibility for labeling bulk shipments of hazardous chemicals, including allowing labels to be placed on the immediate container or transmitted with shipping papers, bills of lading, or by other technological or electronic means that are immediately available to workers in printed form on the receiving end of the shipment;
- New alternative labeling options where a manufacturer or importer can demonstrate that it is not feasible to use traditional pull-out labels, fold-back labels, or tags containing the full label information normally required under the Haz Com Standard, including specific alternative requirements for containers less than or equal to 100ml capacity and for containers less than or equal to 3ml capacity; and
- New requirements to update the labels on individual containers that have been released for shipment but are awaiting future distribution where the manufacturer, importer or distributer becomes aware of new significant information regarding the hazards of the chemical.
OSHA last updated its Haz Com Standard in 2012, to align the standard with the then recently published third version of GHS. In its newly proposed rule, OSHA clarifies that it is “not proposing to change the fundamental structure” of its Haz Com Standard, but instead seeking to “address specific issues that have arisen since the 2012 rulemaking” and to provide better alignment with international trading partners. According to OSHA, its proposed modifications to the Haz Com Standard “will increase worker protections, and reduce the incidence of chemical-related occupational illnesses and injuries by further improving the information on the labels and Safety Data Sheets for hazardous chemicals.”
OSHA is currently accepting comments on its proposed rule until April 19, 2021. Comments may be submitted electronically to Docket No. OSHA-2019-0001at http://www.regulations.gov, which is the Federal e-Rulemaking Portal.
DOJ Rescinds Nine Trump Environmental Policies
By Steven M. Siros, Co-Chair, Environmental and Workplace Health & Safety Law Practice
On February 4, 2021, in accordance with President Biden’s Executive Order 13,990 (Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis), DOJ directed its ENRD Section and Deputy Section Chiefs to withdraw nine environmental policies that were put in place by the Trump Administration. The February 4th memorandum identifies the following nine withdrawn policies:
- “Enforcement Principles and Priorities,” January 14, 2021;
- “Additional Recommendations on Enforcement Discretion,” January 14, 2021;
- “Guidance Regarding Newly Promulgated Rule Restricting Third-Party Payments, 28 C.F.R. § 50.28,” January 13, 2021;
- “Equitable Mitigation in Civil Environmental Enforcement Cases,” January 12, 2021;
- “Civil Enforcement Discretion in Certain Clean Water Act Matters Involving Prior State Proceedings,” July 27, 2020;
- “Supplemental Environmental Projects (“SEPs”) in Civil Settlements with Private Defendants,” March 12, 2020;
- “Using Supplemental Environmental Projects (“SEPs”) in Settlements with State and Local Governments,” August 21, 2019;
- “Enforcement Principles and Priorities,” March 12, 2018; and
- “Settlement Payments to Third Parties in ENRD Cases,” January 9, 2018.
In support of rescission of these policies, DOJ’s Deputy Assistant Attorney General noted that these policies were inconsistent with longstanding DOJ policy and practice and inappropriately impeded DOJ’s exercise of its enforcement discretion. Two of the more controversial policies rescinded by DOJ’s February 4th memorandum related to the prohibition on the use of supplemental environmental projects (SEPs) in settlement agreements. Under the Trump Administration, DOJ had argued that the use of SEPS violated the Miscellaneous Receipts Act which requires that monies paid to the Government be deposited into the Treasury so that Congress could decide how the monies would be appropriated.
DOJ noted that it would continue to assess the matters addressed by the withdrawn policies and might elect to issue new guidance on these matters in the future. We will continue to track efforts by the Biden Administration the environmental policies of the Trump Administration at the Corporate Environmental Lawyer.
The Biden Effect: What to Expect from the New Administration’s Environmental Agenda--January 27th--1-2 pm CST
A Jenner & Block Series
The Biden Effect: What to Expect from the New Administration’s Environmental Agenda
A key component of the Biden platform has been the promised rollback of many of the Trump administration’s environmental policies and a different future for environmental regulation. Please join us for a discussion of what to expect from the new Biden administration on environmental issues facing the regulated community. Topics to be discussed include:
- Procedural Mechanisms for Implementing Biden Administration Priorities
- Clean Air Act
- Climate Change
- Safe Drinking Water Act
- Clean Water Act
- RCRA and CERCLA
- NEPA & Endangered Species Act
Steven Siros, Partner, chair of the Environmental Litigation Practice and co-chair of the Environmental Workplace Health and Safety Practice
Gay Sigel, Partner, co-chair of the Environmental and Workplace Health and Safety Law Practice and of the Climate and Clean Technology Law Practice
Allison Torrence, Partner
Andi Samuels Kenney, Of Counsel
Matt Lawson, Associate
Leah Song, Associate
Wednesday, January 27, 2021
2:00 – 3:00 pm EST / 1:00 – 2:00 pm CST / 11:00 am – 12:00 pm PST
Jenner & Block has been certified by the State Bar of California, the MCLE Board of the Supreme Court of Illinois and the New York State Continuing Legal Education Board as an accredited CLE provider. The following CLE credit is being sought:
- California: 1.00 Credit (1.00 General, 0.0 Ethics)
- Illinois: 1.00 Credit (1.00 General, 0.0 Professional Responsibility)
- New York: 1.00 Transitional & Non-Transitional Credit (1.00 Professional Practice, 0.0 Ethics)
Please contact email@example.com with any CLE related questions.
U.S. EPA Issues Final Guidance on PFAS SNUR
By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On January 19, 2021, four days after the close of the comment period, U.S. EPA issued its final guidance document to aid in implementation of its Significant New Use Rule (SNUR) for long-chain perfluoroalkyl carboxylate and perfluoroalkyl sulfonate chemical substances (PFAS). Not surprisingly, in light of the short time between the close of comments and issuance of the guidance, the final guidance remained largely unchanged from the draft version.
In July 2020, U.S. EPA finalized its PFAS SNUR that requires notice and U.S. EPA review before manufacturing and processing for use certain long-chain PFAS that have been phased out in the United States. In addition, articles containing these long-chain PFAS as part of a surface coating cannot be imported into the United States without submission of a Significant New Use Notice (SNUN).
The guidance provides examples of what would and would not be articles subject to the SNUR as well as clarification on what is meant as a “surface coatings.” Although U.S. EPA declined to provide a regulatory definition of “surface coating” in the PFAS SNUR, the guidance indicates that any long-chain PFAS meeting one of the following two criteria would be a surface coating covered by the SNUR:
- Coating on any surface of an article that is in direct contact with humans or the environment during the article’s normal use or reuse, whether the coating is oriented towards the interior or exterior of the article; or
- Coating on any internal component, even if facing the interior of the article, if that component is in contact with humans or the environment during the article’s normal use or reuse.
Many environmental groups noted that the “direct contact” standard and the refusal to consider potential exposures associated with the disposal and/or misuse of these articles was contrary to the provisions of the PFAS SNUR and these groups are urging the Biden Administration to revisit the guidance. Because the new guidance is not labeled as “significant”, it did not need to follow the formal notice-and-comment process but this would also arguably allow the incoming Biden administration to quickly rework and issue its own guidance for implementing the PFAS SNUR.
We will continue to provide updates on efforts by the Biden Administration to implement the PFAS SNUR on the Corporate Environmental Lawyer blog.
EPA Issues New Guidance on Disposal and Destruction Methods for PFAS Waste
By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On December 18, 2020, U.S. EPA issued its long awaited draft interim guidance on disposal and destruction methods for per- and polyfluoroalkyl substances (PFAS). The guidance, which U.S. EPA was required to issue pursuant to the National Defense Authorization Act for Fiscal Year 2020, discusses three disposal/destruction technologies—thermal treatment, landfilling and underground injection.
In discussing these technologies, the guidance acknowledges that it does not address what concentrations of PFAS in wastes, spent products, or other materials or media would necessitate destruction or disposal, noting that other regulatory mechanisms or risk based guidance are more appropriate for establishing such concentrations. Instead, the guidance is intended to provide information and suggested considerations to assist in evaluating destruction and disposal options for PFAS waste.
The guidance does not endorse any single technology—rather, the guidance generally discusses the following technologies in order of lower to higher uncertainty in terms of the ability to control the migration of PFAS into the environment during the disposal/destruction process.
- Interim Storage. Acknowledging that this is not a destruction or disposal method, the guidance notes that interim storage may be an option if the immediate destruction of the PFAS materials is not necessary. Interim storage (from two to five years) could be relied upon while research continues to minimize uncertainties associated with the other options.
Permitted Deep Well Injection (Class I). Underground injection would be limited to liquid-phase waste streams. However, the guidance notes that there are a limited number of wells and logistical issues could limit the practicability of this option.
- Permitted Hazardous Waste Landfills (RCRA Subtitle C). The guidance notes that RCRA Subtitle C landfills have the most stringent environmental controls in place and therefore have a higher potential to prevent the migration of PFAS into the environment.
Solid Waste Landfills (RCRA Subtitle D) with Composite Liners and Leachate Collection. These landfills can only receive non-hazardous wastes and therefore have less stringent environmental controls that vary from state to state.
Hazardous Waste Combustors. These consist of commercial incinerators and cement/aggregate kilns that can achieve temperatures and residence times sufficient to break apart the PFAS. However, the guidance notes that emissions from these combustion sources haven’t been adequately characterized to confirm that the PFAS compounds are in fact destroyed.
- Other Thermal Treatment. These consist of carbon reactivation units, sewage sludge incinerators, municipal waste combustors, and thermal oxidizers. However, the same uncertainties that were referenced in the previous bullet would also apply to these technologies.
The appropriate methodology for dealing with PFAS waste has been subject to controversy with environmental groups such as Sierra Club suing the Department of Defense (DoD) in an effort to prevent DoD from incinerating its stockpile of PFAS-based firefighting foams. Although U.S. EPA set a 60-day comment period on the interim guidance, U.S EPA could certainly elect to delay issuance of any final guidance to give the new Biden Administration an opportunity to put its imprint on the guidance )especially considering the emphasis that the new administration has placed on PFAS).
We will continue to track this guidance as well other PFAS-related issues on the Corporate Environmental Lawyer blog.
EPA Retains Existing Air Quality Standards for Particulate Matter
By Allison A. Torrence
On December 7, 2020, EPA completed its five-year review of the National Ambient Air Quality Standards (“NAAQS”) for Particulate Matter (“PM”), a criteria air pollutant under the Clean Air Act. In a final action set to be published in the Federal Register in the coming days, EPA decided to retain the current NAAQS for PM, which have been in place since 2012.
PM is measured in two categories:
- Fine particles, or PM2.5, which are particles with a diameter of 2.5 micrometers and smaller; and
- Coarse particles, or PM10, which are particles with a diameters between 2.5 and 10 micrometers.
PM2.5, emitted from numerous sources including power plants, vehicle exhaust, and fires, is generally the more significant health concern, as it has been linked to serious respiratory disease, increased mortality rates, and recent studies have even linked a history of PM2.5 exposure to increased COVID-19 mortality rates.
The Clean Air Act requires EPA to set both primary and secondary NAAQS for PM2.5 and PM10. Primary NAAQS must be set at levels that will protect public health and secondary NAAQS must be set at levels that will protect public welfare. All NAAQS must be reviewed by EPA every five years. EPA has regulated PM emissions through the NAAQS since 1971, and revised the PM NAAQS four times since then—in 1987,1997, 2006 and 2012.
The current primary and secondary NAAQS for PM are as follows:
According to EPA data, there are currently 16 counties in the U.S. currently in nonattainment of the primary PM2.5 NAAQS and 23 counties currently in nonattainment of the primary PM10 NAAQS.
EPA’s decision to keep the existing PM NAAQS comes despite warnings from its own scientists. Notably, in the Policy Assessment for the Review of the National Ambient Air Quality Standards for Particulate Matter, one of the technical documents used by EPA in support of its final decision, EPA scientists concluded that:
“When taken together, we reach the conclusion that the available scientific evidence, air quality analyses, and the risk assessment…can reasonably be viewed as calling into question the adequacy of the public health protection afforded by the combination of the current annual and 24-hour primary PM2.5 standards.”
This Policy Assessment also states that under the current PM2.5 standards, long-term PM2.5 exposures are estimated to be associated with as many as 45,000 total deaths per year. However, the Policy Assessment also noted certain uncertainties and limitations in the evidence and risk assessments that could lead the agency to decide to keep the existing standards.
EPA received over 60,000 public comments on the PM NAAQS proposal, which was closely watched by environmentalists and industry alike. Because of this close public interest, this may be an issue that will be reviewed sooner than the normal five-year review once the Biden Administration begins in 2021. As always, we will keep you updated on any further developments at the Corporate Environmental Lawyer.
DOE Final Rule Seeks to Streamline NEPA Review of LNG Projects
By Steven M. Siros, Co-Chair, Environmental and Workplace Health and Safety Law Practice
The Trump administration continues its efforts to issue new regulations in advance of January 20, 2021, with the Department of Energy (DOE) issuing a final rule that will exempt certain liquefied natural gas (LNG) projects from National Environmental Protection Act (NEPA) review. The final rule, published in the Federal Register on December 4, updates DOE’s NEPA implementing procedures with respect to authorizations issued under the Natural Gas Act in accordance with the recent revisions to the NEPA regulations as further described below.
According to DOE, the focus of the new rule is to clarify the scope of DOE’s NEPA obligations with respect to LNG projects and more specifically, to eliminate from the scope of DOE’s NEPA review potential environmental effects that the agency has no authority to prevent. Because DOE’s discretionary authority under Section 3 of the Natural Gas Act is limited to the authorization of exports of natural gas to non-free trade agreement countries, the rule limits the scope of environmental impacts that DOE must consider to the impacts associated with the marine transport of the LNG commencing at the point of export.
To that end, the final rule revises DOE’s existing Categorical Exclusions (CATEX) to reflect that the only elements of LNG projects subject to NEPA review is the following:
B5.7 Export of natural gas and associated transportation by marine vessel.
Approvals or disapprovals of new authorizations or amendments of existing authorizations to export natural gas under section 3 of the Natural Gas Act and any associated transportation of natural gas by marine vessel.
Based on prior NEPA reviews and technical reports, DOE has determined that the transport of natural gas by marine vessel normally does not pose the potential for significant environmental impacts and therefore qualifies for a CATEX. As such, the only reason that DOE would be obligated to engage in a NEPA review of a LNG project would be if “extraordinary circumstances” were deemed to be present that could not be mitigated and therefore would preclude DOE's reliance on this CATEX.
The revised CATEX also removes the reference to import authorizations from CATEX B5.7 because DOE has no discretion with respect to such approvals. Finally, the final rule also removes and reserves CATEX B5.8 and classes of actions C13, D8, D9 because these actions are outside of the scope of DOE’s authority or are covered by the revised CATEX B5.7.
Interestingly, although the Federal Energy Regulatory Commission (FERC) has responsibility for approving the construction of LNG export terminals, it has previously declined to analyze the greenhouse emissions associated with such projects, noting that DOE is the appropriate agency to consider such impacts. However, with DOE now concluding that these projects are categorically excluded from such reviews, it remains to be seen if FERC will reconsider its approach to these operations.
The final rule is scheduled to take effect on January 4, 2021 and it remains to be seen what if any action a new Biden administration might take in response to this rule. Assuming that the Republicans retain control of the Congress, DOE would be required to go through the formal withdrawal process. Alternatively, if the Democrats take control of the Senate, the regulation could be repealed pursuant to the Congressional Review Act.
We will continue to track the Trump administration’s ongoing effort to finalize regulations in advance of January 20th as well as efforts by any new administration to rollback these regulations on the Corporate Environmental Lawyer.
California OSHA Issues Comprehensive and Demanding COVID-19 Emergency Regulation
By Gabrielle Sigel, Co-Chair, Environmental and Workplace Health and Safety Law Practice
On the afternoon of November 30, 2020, the California Office of Administrative Law (OAL) issued the final approval, allowing the emergency COVID‑19 regulation proposed by the California Division of Occupational Safety and Health (Cal-OSHA) and approved by the California Occupational Safety and Health Standards Board (Board) on November 19. The emergency regulation, establishing new sections 3205, 3205.1 through 3205.4 to Title 8, Division 1, Chapter 4 (General Industry Safety Orders) of the California Code of Regulations (CCR) is titled “COVID‑19 Prevention.” The COVID‑19 Prevention Rule is attached here as approved by the OAL. The COVID‑19 Prevention Rule is immediately effective on November 30, 2020. As an emergency regulation, it expires by October 21, 2021, unless it is extended or made permanent.
California, which as a “state-plan State,” can adopt workplace safety and health regulations more stringent than US OSHA regulations and guidance, has through its emergency regulatory process adopted a COVID‑19 regulation that applies to “all employees and places of employment” in California, except if the employees are working from home, the place of employment has only one employee “who does not have contact with other persons,” or employees when covered by California’s Aerosol Transmissible Diseases regulation, 8 CCR § 5199, which applies only to health care services, facilities, and operations. 8 CCR § 3205(a)(1).
The basic construction of the COVID‑19 Prevention Rule follows the elements of California’s Injury and Illness Prevention Program (IIPP) rule, 8 CCR § 3203, and requires that all employers prepare and adopt a written program with the same elements of employee communication, hazard identification, inspections, hazard correction, training, controls, reporting, recordkeeping and access, but adds substantive requirements relating to COVID‑19 within each of those elements, and adds elements unique to an employer’s response to and control of COVID‑19. The COVID‑19 Prevention Rule also has provisions affecting aspects of an employer’s operations beyond its traditional safety and health scope, including an obligation to “continue and maintain an employee’s earnings, seniority and all other employee rights and benefits, including the employee’s right to their former job status, as if the employee had not been removed from their job” for employees who are otherwise able to work, but are excluded from the worksite for work-related COVID‑19 exposures and quarantines. 8 CCR § 3205(10)(C).
Other notable aspects of the regulation include:
- Definitions of COVID‑19 “exposure”, “symptoms”, “high-risk exposure period”, “exposed workplace”, periods of exclusion from the workplace (quarantine and isolation) and return-to-work criteria, that do not match the CDC’s current approach for essential workforces and which do not allow for any future changes in CDC guidelines regarding the length of isolation, quarantine, or return-to-work criteria.
- Employers must provide viral testing for all employees excluded under Cal-OSHA’s broad definition of “exposed workplace,” up to twice weekly depending on the severity of an outbreak at the workplace.
- Employers, with employee participation, must “conduct a workplace-specific identification of all interactions, areas, processes, equipment and materials that could potentially expose employees to COVID‑19 hazards.” 8 CCR § 3502 (c)(2)(D).
- Specific requirements regarding controls, including physical distancing, face coverings, ventilation, disinfection, cleaning, hygiene, PPE and engineering controls.
- Employers must provide notice within one business day of all COVID‑19 cases in the exposed workplace to employees “who may have had COVID‑19 exposures and [their union representative] and to all other employers/contractors in the workplace. 8 CCR § 3502 (c)(3)(B)3. (See also recently enacted revision to Labor Code § 6409.6 (AB 685).)
- Employers must communicate hazards, policies and procedures to employees and all “other employers, persons, and entities within or in contact with the employer’s workplace.” 8 CCR § 3502 (c)(1)(D)
- Specific requirements regarding COVID‑19 case investigation that must be documented and provided to any employee, employee representative, Cal-OSHA, or local health agencies.
- Employers must have a documented procedure for investigation of COVID‑19 cases in the workplace, with many specific steps required in the COVID‑19 Prevention Rule.
- Requirements for employer-provided transportation to and from the workplace and employer-provided housing. 8 CCR §§ 3205.3 and 3205.4.
Merely preparing the written program document, in addition to the required procedures and protocols, will be a significant undertaking for almost all California employers. In the public hearing before the Board, Cal-OSHA representatives minimized the additional burden placed on employers given its view that employers already should have already undertaken much of the effort to update their basic IIPP document. Cal-OSHA representatives stated, however, that it recognized that employers would have to take some time to get all the requirements in place and would exercise enforcement discretion given the regulation’s immediate effective date. Cal-OSHA also informed the Board that it planned to issue interpretive guidance and other materials, but did not specify a date by which it would do so. Cal-OSHA stated that it would hold Advisory Committee meetings with employers and employees regarding refining the Rule, but noted that the agency did not expect to propose any changes in the regulatory language in the near-term.
For more information or advice on how to comply and implement the COVID‑19 Prevention Rule, please contact the author. Additional information regarding working during the COVID‑19 pandemic can be found on this blog and in Jenner & Block’s COVID‑19 Resource Center.
EPA Extends CDR Reporting Deadline
By Steven M. Siros
The chemical industry has received some relief from a November 30th deadline to submit information to U.S. EPA pursuant to the Chemical Data Reporting Rule (“CDR”). Section 8(a) of the Toxic Substances Control Act (“TSCA”) authorizes U.S. EPA to promulgate rules pursuant to which manufacturers and processors of chemical substances must maintain records and submit information to U.S. EPA. To that end, U.S. EPA promulgated the CDR that requires entities that manufacture certain chemicals listed on the TSCA inventory in excess of 25,000 pounds annually (lower thresholds apply for certain listed chemicals) to report basic production information to U.S. EPA every four years. The 2020 reporting deadline had been November 30, 2020.
U.S. EPA recently revised the CDR to comply with the 2016 TSCA amendments. These revisions were intended to improve the reliability and usefulness of the data collected and reduce the overall reporting burden on regulated entities. For example, the revised rule allows for the use of data and processing codes based on those already in use by the Organization for Economic Cooperation and Development. The rule also incorporates exemptions for certain byproducts and amends the requirements to claim that the submitted data constitutes confidential business information (“CBI”) (requiring the upfront substantiation of all CBI claims).
On October 26th, the American Chemical Council requested a 60-day extension from the November 30th deadline, noting significant technical issues with the electronic CDR submission platform. Notwithstanding objections from a variety of environmental groups, U.S. EPA has extended the CDR reporting deadline to January 29, 2021. The extension is good news for the regulated community as it works to compile the substantial information necessary to comply with the CDR requirements.
We will continue to track and provide updates on the CDR and other reporting obligations for chemical manufacturer on Jenner & Block’s Corporate Environmental Lawyer blog.
Amazon Workers’ COVID-19 Workplace Safety Lawsuit Dismissed
By Gabrielle Sigel and Leah M. Song
On November 2, 2020, Judge Cogan of the U.S. District for the Eastern District of New York dismissed the amended complaint of workers at Amazon’s Staten Island JFK8 fulfillment center (“JFK8”) against their employer over its alleged non-compliance with state and federal public health guidance and law during the COVID‑19 pandemic. Palmer. v. Amazon.com Inc., No. 20-cv-02468, U.S. Dist. Ct. E.D.N.Y., Doc. 73, Nov. 2, 2020 (“Op.”).
The workers alleged issues with the company’s productivity requirements preventing basic hygiene, limited air-conditioned break rooms impeding social distancing, inadequate contact tracing, and lack of communication and pay regarding COVID‑19 leave at the JFK8 facility. The amended complaint asserted claims for (i) public nuisance, (ii) breach of the duty to provide a safe workplace under New York Labor Law (“NYLL”) § 200, (iii) failure to timely pay COVID‑19 leave under NYLL § 191, and (iv) an injunction against future failure to timely pay COVID‑19 leave. Plaintiffs sought injunctive relief for their first, second, and fourth causes of action, and damages for their third cause of action.
On August 11, 2020, Amazon moved to dismiss the action based on the theory of primary jurisdiction, workers’ compensation law exclusivity, and other grounds. Judge Cogan granted Amazon’s motion to dismiss the public nuisance and workplace safety duty claims, without prejudice, based on the federal doctrine of primary jurisdiction, which “seeks to maintain a proper balance between the roles of courts and administrative agencies,” allowing a district court to choose not to rule in favor of having a matter addressed by an administrative agency. Op. at 8. Judge Cogan found that the “central issue in this case is whether Amazon’s workplace policies at JFK8 adequately protect the safety of its workers during the COVID‑19 pandemic,” which the court framed as a question of whether that issue is best handled by OSHA or the court. Id. at 10. The court noted that, although OSHA has not issued a regulatory standard specific to COVID‑19, this “does not mean…that OSHA has abdicated its responsibilities during the pandemic. Rather, the agency has exercised its discretion in determining how to proceed in the face of an evolving pandemic fraught with uncertainty.” Id. The court reasoned that it was “not expert in public health or workplace safety matters, and lack[s] the training, expertise, and resources to oversee compliance with evolving industry guidance.” Id. at 11. Furthermore, the court found that “[p]laintiffs’ claims and proposed injunctive relief go to the heart of OSHA’s expertise and discretion.” Id. The court further held that the “risk of inconsistent rulings further weighs in favor of applying the doctrine of primary jurisdiction” as “[c]ourts are particularly ill-suited to address this evolving situation” and OSHA would be able to impose more flexible and uniform policies across the industry. Id. Therefore, the court dismissed plaintiffs’ public nuisance and NYLL § 200 claims, “so that plaintiffs may determine whether to seek relief through the appropriate administrative and regulatory framework.” Id. at 12.
Moreover, the court held that, even if the court did not defer to OSHA’s primary jurisdiction, it would dismiss the public nuisance claim because New York law requires that a private action for public nuisance allege that the plaintiff sustained special injury not common to the public at large. Finding that an increased risk of contracting COVID‑19 is “common to the New York City community at large” and the JFK8 facility is “not the source of COVID‑19,” the court held that plaintiffs could not maintain a public nuisance claim. Id. at 13-14. The court also found that, although the state safe workplace claim under NYLL § 200 is not preempted by the OSH Act, plaintiffs’ claims for past injuries, even for injunctive relief, are precluded by the language of New York’s workers’ compensation law, which makes workers’ compensation the exclusive remedy for workers’ claims against employers “for any liability whatsoever.” Id. at 14-20.
The court also dismissed plaintiffs’ NYLL § 191 claims regarding failure to pay timely COVID‑19 sick leave, finding that the statute addresses claims for prompt payment of “wages,” not sick leave. In reaching that decision, the court rejected the NY State Department of Labor’s recent COVID‑19 guidance in which it stated that prompt payment of COVID‑19 sick leave was subject to NYLL § 191’s requirements. Id. at 21-24.
Another example of a case in which a court relied on the primary jurisdiction clause to dismiss COVID‑19 workplace safety claims against an employer is Rural Community Workers Alliance (“RCWA”) v. Smithfield Foods, Inc., No. 5:20-cv-06063 (N.D. Mo.) from May 5, 2020. In that case, the United States District Court for the Western District of Missouri granted Smithfield Foods’ (“Smithfield”) motion to dismiss pursuant to the primary jurisdiction doctrine. The RCWA plaintiffs alleged two common law claims: (1) Smithfield’s practices at the meat processing plant constituted a public nuisance; and (2) Smithfield had breached its duty to provide a safe workplace. The plaintiffs, an employee and a workers advocacy group, sought only injunctive relief to require Smithfield to comply with OSHA/CDC guidance issued for the entire meat processing industry, and importantly, did not allege that they or any of their members had contracted COVID‑19 at the plant.
The Missouri federal case dismissed the case with prejudice, based on the federal primary jurisdiction doctrine. The court found and deferred to OSHA’s primary jurisdiction to interpret and apply its guidance and to the rights, albeit limited, that plaintiffs can seek through OSHA’s administrative and judicial processes. Id. at 14-17. In addition, the court found that plaintiffs had not met their “extraordinary burden” of proving a right to preliminary injunctive relief. Id. at 17. The court found that, despite the prevalence of COVID‑19 in the community and in the plant, the plaintiffs had not suffered “irreparable harm” because they alleged only the possibility of death or serious illness in the future. Id. at 18-20. The court found that “unfortunately, no one can guarantee health for essential workers – or even the general public – in the middle of this global pandemic.” Id. at 19. Thus, because the employer was taking measures to control the spread and there no confirmed COVID‑19 cases currently, “the court cannot conclude that the spread of COVID‑19 at the Plant is inevitable or that Smithfield will be unable to contain it if it occurs.” Id. at 20. The court also noted, when balancing the harms of granting (or denying) the injunction that “no essential-business employer can completely eliminate the risks that COVID‑19 will spread to its employees through the workplace. Thus, it is important that employers make meaningful, good faith attempts to reduce the risk.” Id.
The court also found that plaintiffs were unlikely to prevail on the merits of their nuisance claim because the employer had taken “significant measures” and there were no occurrences of the disease. Id. at 21-22. Similarly, the court found that plaintiffs would not be able to prove that Smithfield had breached its duty to provide a safe place to work, because the company “has taken substantial steps to reduce the protection for COVID‑19 exposure” and appeared to be complying with the OSHA/CDC guidance. Id. at 22.
Please feel free to contact the authors with questions or for further information. For regular updates about the impact of COVID‑19 in the workplace and on business generally, please visit Jenner & Block’s Corporate Environmental Lawyer blog and Jenner & Block’s COVID‑19 Resource Center.