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Colorado Looking to Issue Comprehensive Guidance for Waters of the United States (WOTUS)

How is Colorado Dealing with “Gap” Waters?

The scope of federal jurisdiction under the Clean Water Act remains perplexing, particularly now that Colorado is the only state in the nation where the Navigable Water Protection Rule did not take effect June 22, 2020.  In the context of a lengthy “stakeholder” process, on November 20, 2020, the Colorado Department of Public Health and Environment (CDPHE) issued a White Paper addressing its regulatory options in light of the new federal WOTUS rule.  Construction companies, developers, and other businesses seeking to permit activities around wetlands, ephemeral waters, and intermittent streams in Colorado would benefit from reviewing this comprehensive discussion of the multitude of dilemmas Colorado and others states face in light of the new rule.

Eighth Circuit Clean Air Act Opinion Brings “Deference” into Sharp Focus

Chevron, Auer, and Now Voight Deference?

On November 20, 2020, the Eighth Circuit Court of Appeals jumped headlong into the Chevron, and Auer deference realm.  The issue: can a Clean Air Act permittee rely on a state agency’s prevention of significant deterioration (PSD) determination?  And should a Court “defer” to the state agency’s determination to assist in the interpretation of an “ambiguous” environmental program requirement?  Voight v. Coyote Creek Mining Company (No. 18-2705, 8th Circuit Court of Appeals).

Inadequate NEPA Climate Change Analysis Prevents Oil and Gas Leasing in Wyoming

Judge Contreras’s Second Opinion Blasts the Bureau of Land Management for Sloppy Environmental Analysis

Last year, in a 60-page opinion issued in March 2019, U.S. District Judge Rudolph Contreras stopped the Bureau of Land Management (BLM) from leasing oil and gas on over 500 square miles of federal lands in Wyoming.  He began his opinion by stating:  “Climate change, and humanity’s ability to combat it, are increasingly prominent topics of public discourse. This case concerns the attention the government must give climate change when taking action that may increase its effects.”

OSHA Provides Insight Into COVID-19 Enforcement Priorities

Despite widespread commentary regarding the lack of COVID-specific regulatory rules in the workplace, the Occupational Safety and Health Administration (OSHA) continues to cite employers for a wide variety of health and safety violations arising from COVID-related investigations.  On November 6, 2020, OSHA issued guidance summarizing which safety standards the federal agency most frequently cites during COVID-related inspections: Respiratory Protection, Recording and Reporting Occupational Injuries and Illnesses, Personal Protective Equipment (PPE), and the General Duty Clause.

Federal Court Affirms OSHA’s Broad Interpretation of its Process Safety Management Standard

Chemical plant owners and operators need to carefully review a recent federal appellate court decision that could substantially expand process safety management (PSM) considerations and related chemical safety and accidental release regulatory requirements under EPA’s Risk Management Plan (RMP) program.

EPA and Other Government Agencies Scrutinize COVID-19 Marketing and Product Claims

If your business sells or distributes products or devices by claiming that the products work against or kill COVID-19, beware that such claims are subject to regulatory oversight by a variety of governmental agencies, such as the Environmental Protection Agency, Federal Trade Commission, and the Food & Drug Administration. Unsuspecting companies in the sale and distribution of these products, such as disinfectants, sanitizers, or cleaners,[1] must ensure their labels and marketing claims satisfy regulatory requirements.

New California Medical Waste Law Impacts Out-of-State Manufacturers and Distributors with Costly Compliance Mandates

In late 2018, California passed a new law that will, in the near future, present sweeping changes to the pharmaceutical industry and certain medical device manufacturers.  The new law amends the existing California Integrated Waste Management Act and is expected to be a boom for medical waste disposal companies who stand to obtain significantly more business.  While the law was signed by the California Governor nearly two years ago, the regulations will go into effect in a few months (by January 1, 2021).  The original bill, dubbed the “California Sharps and Drug Takeback Bill”, requires a manufacturer of covered drugs or home-generated sharps waste, to offer safe disposal methods for their customers’ used and unused products.  The law has potentially sweeping affect because it encompasses all covered drugs and home generated sharps waste that are sold or offered for sale in California.

EPA Penalties May No Longer Require Disclosure as SEC Amends SK-103

On August 26, 2020, the U.S. Securities and Exchange Commission (SEC) announced significant changes to the disclosure requirements for publicly traded companies under Regulation S-K.  Businesses that receive monetary sanctions from the EPA and other governmental authorities involving violations of environmental laws will want to carefully review the new Item 103 Legal Proceedings rules as it may substantially alter disclosure obligations.

Ferrets, “Ipse Dixits,” and “Logical Fallacies”: Fifth Circuit Opinions Shine Light on Messy Citizen Suit Standing Precedents

Facility owners and operators with air permits will want to pay close attention to a recent Fifth Circuit ruling on a private citizen’s ability to seek penalties for/and defenses against alleged violations of the Clean Air Act.  Following a bench trial, an appeal, and another bench re-trial, this decade-old case has again gone up to the appeals court and had the trial court’s judgment vacated and remanded, this time to decide the Plaintiffs’ standing to bring the case in the first place and to judge the viability of two key affirmative defenses. Environment Texas Citizen Lobby, Inc. v. Exxon Mobil Corp., 66 F.Supp.3d 875 (S.D. Tex. 2014), vacated and remanded, 824 F.3d 507 (5th Cir. 2016), on remand, No. H-10-4969, 2017 WL 2331679 (S.D. Tex. Apr. 26, 2017), vacated and remanded, slip op. No. 17-20545, 2020 WL 4345337 (5th Cir. Jul. 29, 2020), as revised (Aug. 3, 2020).  According to the majority opinion, the panel gave both the lower court and the regulated community guidelines for when each CAA violation is “fairly traceable” to a plaintiff’s alleged injury to support standing under Article III of the U.S. Constitution. According to the concurrence, the Fifth Circuit’s standing precedents are “a mess” that are trending toward the unconstitutional elimination of “but-for” causation; a paradox that should be clarified by the full court en banc to stop a continuing loop of confusion.

OSHA Fines Healthcare Facilities for Improper Use of N95 Respirators

Employers beware, particularly those in healthcare sectors.  If you provide a NIOSH-approved N95 “respirator” to protect employees from COVID-19, there are a number of OSHA respiratory protection standards that must be followed in a comprehensive Respiratory Protection Program.  The Department of Labor OSHA’s July 21, 2020, national press release makes clear that OSHA will seek the maximum possible penalties for serious violations against companies that do not fully satisfy the respiratory protection standards.

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