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Federal Contractor Vaccination Mandate: FAQs

Information for Construction, Transportation, Aerospace/Defense, and Other Industries

Last Friday, October 15, 2021, marked the date on which federal agencies were required to begin incorporating a clause compelling compliance with federal COVID-19 workplace safety protocols, including a vaccination mandate for covered workers, into certain existing and new federal contracts, as detailed in guidance issued by the Safer Federal Workforce Task Force on September 24, 2021, pursuant to Executive Order 14042.

Summary of CISA Guidance on Essential Critical Infrastructure Workforce 3.0

On April 17, 2020, the Cybersecurity and Infrastructure Security Agency (CISA) released version 3.0 of its guidance to help state and local jurisdictions, decision makers in communities and jurisdictions and the private sector across the country to manage and identify their essential workforce while responding to COVID-19. Original guidance was released on March 19, 2020 and version 2.0 was subsequently released on March 28, 2020. The reason for publishing Version 3.0 of the CISA guidance was to assist local decision makers in balancing public health and safety with the need to maintain critical infrastructure in their communities.

Federal Court Halts Wetland Permitting – Nationwide Permit 12 (Utility Activities)

Pipeline companies, utilities, engineers, builders and land developers, and other construction companies that rely on Nationwide Permit (NWP) 12 for utility line and trenching activities in and around potential wetland areas will need to carefully re-evaluate their ability to conduct work under this general permitting tool.  This is because on April 15, 2020, a federal district court vacated NWP 12 and determined that the U.S. Army Corps of Engineers (USACE) had not adequately considered impacts in issuing the 2017 permit under the federal Endangered Species Act.  As a result of this court ruling, pipeline and utility infrastructure projects that rely on NWP 12 may be impacted.

Trump Administration EPA to Focus Criminal Enforcement on Significant and Egregious Violators, Citing 1994 “Devaney Memorandum”

A high-ranking Environmental Protection Agency (EPA) enforcement official in the Trump Administration recently cited a 1994 memorandum by Earl Devaney, then Director of EPA’s Office of Criminal Enforcement, as presenting guiding principles to select cases for criminal enforcement of environmental violations. The January 12, 1994, memorandum, “Exercise of Enforcement Discretion,” is often referred to as the “Devaney Memorandum,” and it is available at this link:  https://www.epa.gov/sites/production/files/documents/exercise.pdf. This may signal that criminal enforcement of environmental laws under the Trump Administration will be limited to situations in which there has been significant actual or threatened environmental harm and truly culpable conduct.

Stormwater Runoff from Construction Activities Subject to New EPA 2017 General Permit

Construction companies, general contractors, developers, and property owners involved in land clearance and disturbance activities will want to take note of the new Stormwater Construction General Permit (“Construction General Permit”) issued by the United States Environmental Protection Agency (“EPA”) on February 17, 2017. As with earlier Construction General Permits, the 2017 permit applies to land clearance and disturbance activities greater that one acre and requires site operators to comply with best management practices (“BMPs”), effluent limits, and other permit requirements, including developing a Stormwater Pollution Prevention Plan (“SWPPP”).

Home Builder’s Stormwater Violations at Construction Sites Result in $1 Million Enforcement Settlement

A residential home builder, Garden Homes, has agreed to resolve alleged stormwater violations with the EPA and U.S. Department of Justice, according to a June 8, 2015, Federal Register Notice. The settlement involves a civil penalty of $225,000 and a Supplemental Environmental Project valued at $780,000 involving the acquisition of 108 acres of land for preservation.

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