Audit, Compliance and Risk Blog

The Clean Water Act (CWA) empowers federal agencies to regulate activities that may affect “waters of the United States”—sometimes called “navigable waters.” These activities include water quality planning and discharge regulation by the US Environmental Protection Agency (EPA) and delegated states, and regulation of projects that may lead to “dredge and fill” of waters, requiring permits from the US Army Corps of Engineers (Corps).

However, CWA does not define this critical term. For many years, agencies used regulatory definitions jointly developed by EPA and the Corps in rules that date primarily from 1986, which included ambiguities that increased agency discretion but also frustrated landowner aspirations in some cases. However, beginning in 2001 a series of decisions by the US Supreme Court frayed the expansive edges of the regulators’ interpretations. First, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court ruled that the Corps lacks jurisdiction over “isolated” waters and wetlands that are not “adjacent” to navigable waters—such as “prairie potholes,” mudflats, and freshwater seasonal ponds. Then, in Rapanos v. United States, the Court ruled in 2006 that the Corps can exert jurisdiction over non-adjacent wetlands where there is a “significant nexus” between the wetlands and navigable waters (in addition, the wetlands must be at least “relatively permanent”).

The US federal Occupational Safety and Health Administration (OSHA) has added a portal to its webpage compiling “Holiday Worker Safety” guidance. These cover obvious retail and delivery workplaces that are likely to be especially busy during the holidays, as well as links to generalized resources and guidance intended to be useful to all workplaces. The remainder of this note identifies and summarizes OSHA’s pointers.

In 1976, an important motivation for enactment of the Toxic Substances Control Act (TSCA) was to empower the Environmental Protection Agency (EPA) to control polychlorinated biphenyls (PCBs), which had been developed as superlative insulation fluids but had come to be recognized as persistent toxic contaminants that bioaccumulate in the environment. TSCA banned the manufacturing, processing and distribution of new PCBs effective January 1, 1978, except in a “totally enclosed manner” or with an express exemption from EPA (including a finding that the exempt activity does not pose an “unreasonable risk of injury to health or the environment”). Even enclosed activities were banned beginning in 1979, unless with an express exemption from EPA. Additional provisions apply to non-banned activities, and to the cleanup and disposal of PCB-containing wastes. PCBs remain in use in enclosed/exempt locations throughout the country, and new contamination is identified from new leaks and legacy sites.

While BLG’s recent article highlighted an employer’s successful defence of its COVID-19 vaccine policy in UFCW v. Paragon Protection, the outcome was different in Power Workers’ Union v. Electrical Safety Authority.

On November 11, 2021, Arbitrator John Stout found that the mandatory vaccination policy of the Electrical Safety Authority (ESA) was unreasonable to the extent that employees may be disciplined, discharged, or placed on unpaid leave for failing to get fully vaccinated; however, Arbitrator Stout emphasized that context is everything. As detailed below, his conclusion rested on a few factors specific to this workplace. He emphasized that the outcome may be different elsewhere or at another time.

On November 15, 2021, the Environmental Protection Agency (EPA) published its “2021 National Recycling Strategy,” which summarizes recent efforts to organize support for recycling of solid wastes – typically referred to in regulatory parlance as “municipal solid waste (MSW)” – and sets out near-term priorities for further progress to reach a national recycling rate of 50% by 2030. The Strategy notes that “The U.S. MSW recycling system currently faces a number of challenges, including confusion about what materials can be recycled, recycling infrastructure that has not kept pace with today’s diverse and changing waste stream, reduced markets for recycled materials, and varying methodologies to measure recycling system performance.” EPA characterizes this Strategy as “part one in a series of strategies to help us re-envision how we use materials more broadly.” As part of these broader considerations, the Strategy incorporates contemporary emphases on environmental justice and climate change. (I’ve recently written about state-level initiatives including “product stewardship” HERE and HERE). The remainder of this note summarizes this policy document.

On November 5, the Occupational Safety and Health Administration (OSHA) published an “emergency temporary standard (ETS)” specifying steps that employers with 100 or more employees must take “to protect unvaccinated employees” from COVID-19 infections in their workplaces. The ETS requires targeted employers to comply with most provisions by December 6, and with requirements for testing of unvaccinated employees by January 4, 2022; it remains in place for 6 months.

However, at least a dozen major lawsuits have been filed against the rules, the effectiveness of which are stayed as of this writing by an order issued by a panel of judges in the Fifth Circuit Court of Appeals. On November 16, the Judicial Panel on Multidistrict Litigation resolved the overlaps by assigning the Sixth Circuit (based in Ohio) to hear the consolidated cases. Depending on the outcome of the litigation, the ETS may or may not ever become effective … but it does illuminate OSHA’s thinking about appropriate employer responses to the ongoing COVID pandemic.

The remainder of this note describes OSHA’s ETS requirements, and the scope of the special authority OSHA is using to adopt it.

On October 27, the US federal Occupational Safety and Health Administration (OSHA) has published an “advanced notice of proposed rulemaking (ANPRM)”, as the first step toward national heat illness prevention rules. This action is the agency’s second recent step to define and combat these hazards – several states already administer such rules. OSHA’s first step was to release new “Inspection Guidance for Heat-Related Hazards” on September 1 (I wrote about it HERE). The remainder of this note summarizes issues raised and questions asked in the ANPRM.

On October 18, the federal government announced comprehensive plans to design and implement protections against perfluoroalkyl and polyfluoroalkyl substances (PFAS) – often referred to as “forever chemicals.” PFAS have been manufactured and used since the 1940s and are now found in many environmental settings, and most Americans’ blood. These plans were rolled out through statements by President Biden and longer pronouncements by the Environmental Protection Agency (EPA), Department of Defense, Food and Drug Administration, Department of Agriculture, Department of Homeland Security, and Department of Health and Human Services.

The remainder of this note provides basic information about PFAS, and EPA’s new “PFAS Strategic Roadmap: EPA’s Commitments to Action 2021-2024.”

October 17 was the 35^th anniversary of the enactment of the Emergency Planning and Community Right-To-Know Act of 1986 (EPCRA, also referred to as SARA Title III). EPCRA presents several separate programs, including release prevention and reporting for a fairly short list of extremely hazardous substances (which I discussed HERE), inventory reporting for most hazardous materials (which I discussed HERE), and filing of annual toxic chemical release inventory reports with the Environmental Protection Agency (EPA) and the state, on one of two forms (Form R or Form A) – usually called the Toxics Release Inventory (TRI) program (which I’ve discussed several times, including HERE).

EPA is celebrating the TRI program anniversary on its website. Meanwhile, the agency has also proposed to add an additional dozen chemicals to the TRI reporting list. The reminder of this note summarizes these activities.

In September 2021, the Securities and Exchange Commission (SEC) Division of Corporation Finance (Division) provided public companies with guidance about disclosures of climate-related information that SEC expects from public companies. This guidance appears in a newly-released template with sample comments the Division may issue to companies regarding failures to make adequate climate-related disclosure. The remainder of this note provides some context to the relevant SEC-administered provisions, and summarizes the Division’s new letter.