US EPA Offers Advice to NPDES Permittees on Documenting COVID-Related Noncompliance While Environmental Groups Seek More Stringent Reporting Requirements

Virus On March 26, 2020, US EPA issued a temporary policy regarding enforcement of routine monitoring, recordkeeping, and reporting violations caused by the COVID-19 pandemic. As discussed in an earlier blog post, US EPA’s temporary policy sets out the Agency’s overall policy to exercise of enforcement discretion during the COVID-19 pandemic and generally not seek penalties for noncompliance with monitoring and reporting obligations if such noncompliance was caused by the pandemic.

On March 31, 2020, US EPA provided further direction to US EPA Regional Offices on how to implement the new temporary policy with respect to NPDES reporting requirements (NPDES advisory), including electronic reporting tracked in US EPA’s Integrated Compliance Information System for the NPDES program (ICIS-NPDES). Continue Reading

California Prop 65 Amendments on Responsibility to Warn Are Effective On April 1, 2020

By Kendra Sherman and Danelle Gagliardi on March 31, 2020 Posted in Chemicals & Products, Product Safety, Rulemaking & Policy Development

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In the last few weeks, product supply chains have been experiencing massive interruptions due to the COVID-19 pandemic. For some industries, these challenges have resulted in increased communication among manufacturers, distributors, and retailers. Communication across the supply chain is also recognized in new amendments under California’s Proposition 65 “Clear and Reasonable Warning” regulations (Prop 65). These new amendments become effective on April 1, 2020 and now provide much greater clarity as to how certain entities in the supply chain can satisfy their warning obligations under Prop 65 when it is not clear who the ultimate retailer is. The amendments do not reduce the obligation to provide the warning but they do clarify how intermediate parties in the chain of distribution can satisfy their obligations under Prop 65. We had previously discussed these amendments when they were proposed in January 2019. Continue Reading

US EPA Issues Temporary Policy on COVID-19 Implications for the Agency’s Enforcement and Compliance Assurance Program

By Matthew Cooper on March 26, 2020 Posted in Environmental Protection, Health & Safety, Rulemaking & Policy Development

On March 26, 2020, US EPA Assistant Administrator, Susan Bodine, authored and released guidance to all Virus governmental and private sector entities entitled “COVID-19 Implications for EPA’s Enforcement and Compliance Assurance Program.” The seven-page guidance memorandum outlines the Agency’s “temporary” policy governing issues of noncompliance that arise (1) as a result of the COVID-19 pandemic and (2) during the time period that the temporary policy is in place. The temporary policy is currently running indefinitely, retroactive as of March 13, 2020, and provisionally replacing otherwise applicable US EPA enforcement response policy until the Agency reports otherwise. The Agency will post a notification here at least seven days prior to terminating the temporary policy. Continue Reading

Ninth Circuit to Review Montana’s Nutrient Variance Approach: What You Need To Know

By Erik Lange on March 26, 2020 Posted in Clean Water Act, Environmental Litigation, Municipal Utilities, Rulemaking & Policy Development, Water Quality

Control of nutrient loadings to US surface waters has widely proven to be a difficult task, and nutrient levels in many of our waterways continue to fail in satisfying the stated goals of the Clean Water Act. In 2015, the State of Montana established stringent water quality standards for nutrients. Recognizing the economic and social costs associated with attainment of these strict standards, the State also provided municipal dischargers with a generally-applicable, twenty-year variance from meeting such requirements. Montana’s regime of stringent standards accompanied by a general variance has provided a test of both: (1) the legal avenues under the Clean Water Act to address nutrient loadings; and (2) the strength and viability of the variance provisions set forth in the Act. The US Court of Appeals for the Ninth Circuit is primed to weigh in on Montana’s novel nutrient approach, which if upheld could serve as a useful template for other states facing similar nutrient issues.

US EPA Revises TSCA Chemical Data Reporting Requirements and Extends Deadline for 2020 Reporting Period

By Steve Owens on March 25, 2020 Posted in Chemicals & Products, Rulemaking & Policy Development

science laboratory glassware With the 2020 reporting period under the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) rule rapidly approaching, the US Environmental Protection Agency (US EPA) has announced a number of key changes to the information that chemical manufacturers and importers must submit to the agency pursuant to the CDR rule. US EPA also announced that because of these changes the agency is giving companies more time this year to submit the information required by the CDR rule.

The CDR rule generally requires a chemical manufacturer (including an importer) to report to US EPA a wide range of production volume and use data for any substance that it has manufactured/imported in the amount of 25,000 lbs or more at any single site during any calendar year since the last principal reporting year (with certain exceptions). For the upcoming 2020 report, this means that a company must make a CDR submission to US EPA for any substance it manufactured/imported in the amount of 25,000 lbs or more during any of the calendar years 2016-2019. Moreover, a company must report the same information for any substance that it manufactured/imported in the amount of 2,500 lbs or more, if the substances is the subject of certain TSCA actions (e.g., certain orders and rules). Continue Reading

OMB Directs US EPA and Other Federal Agencies to Refocus on Mission-Critical Functions Amidst Coronavirus Pandemic; OECA Guidance on Implications for Enforcement and Compliance Forthcoming

By Andrew Etter on March 23, 2020 Posted in Environmental Protection, Health & Safety, Rulemaking & Policy Development

Last week, the Office of Management and Budget (OMB) issued guidance to the heads of federal Virus departments and agencies titled, “Federal Agency Operational Alignment to Slow the Spread of Coronavirus COVID-19.” The guidance directs agencies to “prioritize all resources to slow the transmission of COVID-19, while ensuring our mission-critical activities continue.” Under the guidance, agencies are to minimize face-to-face operations to safeguard the health and safety of federal workplaces except as necessary to protect public health and safety, including law enforcement and criminal-justice functions. Specifically, agencies must adjust their plans and operations to accomplish the following: Continue Reading

US EPA Issues List of Disinfectants Qualified for Use Against COVID-19 and Initiates Expedited Review Process for Approving Product Claims Against the Virus

By Steve Owens on March 23, 2020 Posted in Chemicals & Products, Rulemaking & Policy Development

The US Environmental Protection Agency (US EPA) has issued a list of nearly 300 Virus disinfectants that have qualified for use against SARS-CoV-2, the coronavirus that causes COVID-19. The list can be found here. According to US EPA, the disinfectants on the list have not been tested specifically against SARS-CoV-2, but they are expected to be effective against the virus because they have been tested and proven effective on either a harder-to-kill virus or against another human coronavirus similar to SARS-CoV-2. Continue Reading

Are You “Essential”? Ohio Guidance for Environmental Industries Regarding COVID-19

By Rees Alexander on March 23, 2020 Posted in Environmental Protection, Health & Safety, Rulemaking & Policy Development

Virus On Sunday, Ohio issued a “shelter in place” or “stay at home” order, bringing the total number of states with these orders to ten. The other states are California, Delaware, Illinois, Louisiana, Michigan, Nevada, New York, New Jersey, and Pennsylvania, and this number increases by the day. The orders and associated guidance identify which businesses and specific activities are considered “essential,” and therefore exempt from travel and other aspects of the stay at home orders. The orders vary significantly from state to state. Continue Reading

UK Health and Safety COVID-19 Alert

By Rob Elvin and Robert Biddlecombe on March 12, 2020 Posted in Health & Safety

Coronaviruses are a common family of viruses, and one of the main causes of the common cold. In late Virus December 2019, a new coronavirus was identified in China with the potential to cause severe respiratory illness. The disease caused as a result of infection by the new coronavirus has been named COVID-19. During 2020, the virus has spread throughout the world (including to the UK) and many people have developed COVID-19.

Click here for an important alert on key health and safety obligations on employers that are relevant to the spread of the virus, and suggestions for practical steps that may be taken to mitigate the risks of liability. Due to the rapid spread of the virus, official guidance as to what steps should be taken to tackle it is changing frequently. It is, therefore, important for employers to carry out regular (ideally, daily) reviews of their risk assessments and control measures.

For Employers: Coronavirus and US Safety and Health Law

By Peter Gould, Matthew Cooper, Darin Smith and Cole Wist on March 11, 2020 Posted in Health & Safety

The coronavirus, and the illness caused by the coronavirus, COVID-19, are dominating headlines, stock markets and daily conversation. They are also raising many questions—and employers in Virus the U.S. are facing one such critical question: How do we help ensure the health and safety of our employees? Squire Patton Boggs helps provide some answers below. Continue Reading