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EPA Takes New Steps to Regulate PFAS

EPA on February 22, 2021, announced new steps to address PFAS  (per- and polyfluoroalkyl substances) in drinking water.  These actions will collect new data on the presence of PFAS in drinking water and could lead EPA to establish maximum contaminant levels, commonly known as MCLs, for these substances under the Safe Drinking Water Act (SDWA).  

EPA Criminal Penalty for RMP Violations at Cold Storage Ammonia Refrigeration Warehouse

On December 16, 2020, a cold storage warehouse and ice manufacturing facility in East Providence, Rhode Island, entered into a guilty plea with the Justice Department for a “knowing” criminal violation of Clean Air Act section 112(r)(7), 42 USC 7412(r)(7), in connection with EPA’s Chemical Accident Prevention Program and requirement to submit a risk management plan (RMP) under 40 CFR Part 68.  The facility used a refrigeration system to manufacture and store ice and other frozen products, with 19,000 pounds of anhydrous ammonia in the refrigeration process.

EPA Clarifies its Audit Policy on Voluntarily Disclosed Violations

Manufacturing facilities, industrial operations, and other businesses subject to environmental statutes and regulations will want to evaluate a new EPA document when considering whether and how to voluntarily disclose environmental violations to the federal government.  EPA recently published a 22-page guidance document, dated January 2021, clarifying EPA’s Audit Policy.  EPA’s Audit Policy consists of incentives the agency offers to companies that voluntarily discover their own violations of environmental laws and regulations and disclose the violations to EPA.  When all of the nine eligibility conditions in the Audit Policy are met, the Audit Policy allows for up to complete elimination of the gravity-based portion of civil penalties for environmental non-compliance, and a recommendation of no criminal prosecution. (EPA penalties may also include amounts to address the economic benefit of non-compliance, which the Audit Policy does not address.)  The Audit Policy itself is memorialized in Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations, 65 Fed. Reg. 19618 (Apr. 11, 2000) (an update to the original 1995 document establishing the Audit Policy).

OSHA Issues New Comprehensive Worker Safety Guidance – COVID-19

On Friday, January 29, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a new comprehensive worker safety guidance to protect workers against COVID-19, entitled: “Protecting Workers – Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace.”

Biden Executive Order regarding OSHA and COVID-19 Ushers in Changes

On January 21, 2021, President Biden issued the “Executive Order on Protecting Worker Health and Safety,” available here, along with numerous other executive orders addressing COVID-19.  The order directs the Occupational Safety and Health Administration (OSHA) to:

  • Issue revised guidance to employers on workplace safety during the COVID-19 pandemic, by February 4, 2021;
  • Consider whether any emergency temporary standards on COVID-19, including regarding masks in the workplace, are necessary, and if necessary, issue them by March 15, 2021 (expedited approval measures apply to such emergency standards);
  • Review OSHA’s enforcement efforts related to COVID-19 and identify changes that could better protect workers and ensure equity in enforcement;
  • Launch a national program to focus OSHA enforcement efforts related to COVID-19 on violations that put the largest number of workers at serious risk or are contrary to anti-retaliation principles; and
  • Conduct a multilingual outreach campaign to inform workers and their representatives of their rights under applicable law, placing a special emphasis on communities hit hardest by the pandemic.

OSHA and EPA Penalties Set to Increase in 2021

Fines and penalties issued by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) are set to increase in 2021 as a result of annual inflationary adjustments.

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.

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