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Products Containing PFAS may Soon Require California Proposition 65 Warnings

Manufacturers, suppliers, retailers, and other entities in supply chains for consumer products sold in California might soon need to provide warnings regarding certain per- and polyfluoroalkyl substances (PFAS) in their products.  California’s Office of Environmental Health Hazard Assessment (OEHHA) recently announced its intent to further regulate and study certain per- and polyfluoroalkyl substances under California’s Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65.  Proposition 65 prohibits companies from knowingly exposing California consumers to chemicals “known to cause cancer or reproductive toxicity” (i.e., “listed chemicals”) in consumer products without first providing a “clear and reasonable warning.”  (Although not the focus of this article, Proposition 65 also addresses occupational and environmental exposure to listed chemicals.)

Harris County Steps up Inspections and Enforcement of Industrial Permitting and Fire Code Compliance

Businesses that own and operate industrial facilities in Harris County, Texas, should be aware of recent efforts by the Harris County Fire Marshal’s Office (HCFMO) to ensure that these facilities have obtained proper permits and certificates of compliance for construction and development projects for energy infrastructure and related operations. Failure to obtain the necessary permits and certificates of compliance presents the attendant risk of an enforcement case with the issuance of a notice of violation and potential shutdown of all operations.

Waters of the U.S. – Tenth Circuit Overturns Preliminary Injunction in Colorado WOTUS Case

Although other states and parties tried, Colorado was the only state that succeeded in persuading a U.S. District Court Judge to enter a preliminary injunction against enforcement (in Colorado only) of the new waters of the United States (WOTUS) rule which was published nearly a year ago, i.e., April 21, 2021. After being on appeal for several months, the Tenth Circuit Court of Appeals expressed its displeasure with that ruling.  In State of Colorado v. U.S. Environmental Protection Agency et al., case number 20-1238, Judge Baldock, in his March 2, 2021 opinion, was direct and to the point:

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.

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