On January 31, 2024, EPA published a press release announcing the impending publication of two proposed rules relating to PFAS and the Resource Conservation and Recovery Act (RCRA): (1) “Definition of Hazardous Waste Applicable to Corrective Action from Solid Waste Management Units” and (2) “Listing of Specific PFAS as Hazardous Constituents.”  

Definition of Hazardous Waste Applicable to Corrective Action from Solid Waste Management Units

Regarding the first proposed rule, EPA intends to revise the scope of the definition of Hazardous Waste under RCRA by broadening the definition to include emerging contaminants of concern, like PFAS. This would allow EPA and authorized states to expressly require cleanup of these constituents. While EPA has not published a proposed rule as of the date of this post, EPA anticipates a 30-day public comment period from the date of publication. 

The prepublication version of this rule includes the following significant changes:

  • Revise the definition of hazardous waste to cover releases not only of substances listed or identified as hazardous waste in the regulations but of any substance that meets the statutory definition of hazardous waste, including providing notice of EPA’s interpretation that this applies to permitted and interim status facilities.
  • Include a conforming definitional amendment to the requirements for permitting solid waste management units under Section 270.14(d).
  • Add RCRA sections 3004(u) and (v) and 3008(h) to the statutory authorities identified in Section 261.1(b)(2), which provides the statutory definitions of solid and hazardous waste govern the scope of EPA’s authority under certain sections of RCRA.

EPA further notes that the rule would be applicable in all states on the effective date, however, some states may require updating their regulatory programs and obtaining EPA approval prior to administering the changes. 

Listing of Specific PFAS as Hazardous Constituents

Regarding the second proposed rule, EPA intends to identify multiple PFAS compounds as hazardous constituents included in facility assessments and for potential investigation and corrective action processes at hazardous waste treatment, storage, and disposal facilities. EPA anticipates a 60-day public comment period. 

The prepublication version of this rule includes the following significant changes:

  • Add to the definition of hazardous constituents nine PFAS substances, including their salts and structural isomers: (1) perfluorooctanoic acid (PFOA), (2) perfluorooctanesulfonic acid (PFOS), (3) perfluorobutanesulfonic acid (PFBS), (4) hexafluoropropylene oxide-dimer acid (HFPO-DA or GenX), (5) perfluorononanoic acid (PFNA), (6) perfluorohexanesulfonic acid (PFHxS), (7) perfluorodecanoic acid (PFDA), (8) perfluorohexanoic acid (PFHxA), and (9) perfluorobutanoic acid (PFBA).

EPA identified over 1,700 facilities that could be required to take additional corrective action to address PFAS constituents under RCRA. EPA further indicated it would continue evaluating whether to add PFAS substances, including these nine, to the definition of hazardous waste. EPA stated that it expected to use the findings of this rulemaking in any future rulemaking regarding regulation of these PFAS (e.g., hazardous waste designation). As part of this effort, EPA summarized and discussed certain data that it relied on to evaluate toxicity and health assessments for the nine PFAS substances. Additionally, like its companion rule, this rule would be applicable in all states on the effective date and states would need to update their programs prior to enforcing the new rules. 

Conclusion The pending proposed rules represent a continued push by EPA to regulate PFAS compounds, striving to meet the goals outlined in its PFAS Strategic Roadmap announced on October 18, 2021 setting forth proposed actions EPA planned to take through 2024. Clearly, EPA is anticipating increased activity involving remediation of PFAS under RCRA in the next few years. Additionally, EPA plans to utilize these rules, and other PFAS-related rulemakings, to further regulate PFAS. Reed Smith is actively tracking PFAS developments with the EPA and across all markets. 

The Washington Department of Labor and Industries (L&I) adopted CR-103, creating a new Part B to chapter 296-67 WAC, on December 27, 2023.  Specifically applicable to petroleum refineries, Part B includes and updates existing PSM requirements as well as introduces several new requirements, some of which are expected to be onerous for refiners to implement.

The rule is similar to Cal/OSHA’s Refinery PSM Regulation, which was amended in 2019 and is one of the most protective in the country.

The final rule includes the following new requirements:

  • PSM Program. Employers must develop and maintain a written plan to provide for employee collaboration throughout all PSM processes. The refinery manager must be designated as the person with authority and responsibility for compliance with the PSM requirements.
  • Damage Mechanism Reviews (DMRs). A DMR must be completed for each existing and new process for which a damage mechanism exists. Where no DMR is performed, the rationale for determining that no damage mechanisms exist must be documented. The employer must complete no less than 50 percent of initial DMRs within three years and all remaining DMRs within five years of the effective date.
  • Hierarchy of Hazard Controls Analysis (HCA). HCAs must be updated and revalidated as standalone analyses for PSM processes at least once every five years.
  • Process Hazard Analysis (PHA). PHAs must take into account the results of any DMRs and HCAs.
  • Human Factors Program (HFP). A written HFP must be implemented within 18 months following the effective date. Employers must assess human factors in existing operating and maintenance procedures and revise them accordingly—50 percent must be completed within three years of the effective date and 100 percent within five years.  Human factors include environmental, organizational and job factors, and human and individual characteristics, such as fatigue.
  • Management Of Organizational Changes (MOOC). The employer must develop, implement and maintain written procedures to manage organizational changes, such as a reduction in staff levels or a change in shift duration. A MOOC must be done for every change with a duration exceeding 90 calendar days.
  • Root cause analysis (RCA). Employers must implement procedures for promptly investigating and reporting any incident that results in, or could have reasonably resulted in, a process safety incident. RCAs must determine the initiating and underlying causes of the incident and identify management system failures, including organizational and safety culture deficiencies.
  • Process Safety Culture Assessment (PSCA). Employers must perform a PSCA and produce a written report within 18 months of the effective date and at least every five years thereafter.

CR-103 is effective December 27, 2024, with rolling implementation dates for individual elements thereafter. For implementation deadlines applicable to specific CR-103 requirements, refer to L&I’s Implementation Dates Chart.


The Occupational Safety and Health Administration (“OSHA”) has recently submitted to the White House Office of Management and Budget (“OMB”) a final rule to update its Hazard Communication Standard (“HazCom”), which regulates the classification and labeling of hazardous chemicals in the workplace. The rule aims to align the HazCom with the latest version of the Globally Harmonized System of Classification and Labeling of Chemicals (“GHS”), which is an international framework for consistent chemical hazard communication. The rule introduces some significant changes and challenges particularly for chemical companies and especially those exporting to the European Union (“EU”).

One of the most controversial aspects of the rule is the requirement to include on warning labels “any hazards” posed by a chemical. This includes potential hazards of the chemical not only in its current form but possible downstream combinations and reactions as well. This may require companies to craft safety sheets and warning labels for chemicals not already subject to work-safety rules. The change also places a burden on companies to gather and evaluate data on the potential hazards of their chemicals in various scenarios and contexts, which could be costly, time-consuming, and uncertain. Effected companies will need to keep alert of changed hazard warnings, labeling requirements, and shifts in protection for confidential business information, such as trade secrets and proprietary formulas.

Another challenge for international chemical companies is the compatibility of the rule with the EU’s chemical regulations, which are more stringent and progressive than in the United States. Even with the changes, the final rule is still behind the international GHS, especially regarding chemicals and products that have been tested on animals, like cosmetics.

This creates a dilemma for companies who want to comply with both OSHA and EU regulations and may force consideration of separate labels for different jurisdictions. However, separate labels also create confusion and mistrust among consumers and regulators, who may wonder why a product has different hazard warnings in different markets.

The proposed final rule also calls for changes that would reduce labeling on small-containers. Under the rule, containers less than or equal to 100 milliliters would now only need to include the product identifier, pictograms, signal word, and then the chemical manufacturer’s name and phone number—the full list of hazard statements and precautionary statements would be omitted. Additionally, for containers with a three-milliliter capacity, the container would only need to bear the product identifier if the manufacturer can “demonstrate that a label would interfere with a normal use of the container.” The final rule was submitted for OMB approval on October 11th, 2023 and is expected to be finalized early next year.

On September 30, 2023, California Governor Gavin Newsom signed SB-553 into law. SB-553 is the nation’s first workplace violence prevention law.  The law adds a new section 6401.9 to the California Labor Code, which will be implemented by Cal/OSHA.  The new law requires that employers an effective plan aimed at preventing workplace violence in place by July 1, 2024.  The plan may be incorporated into an existing Injury, Illness, and Prevention Plan and does not apply to workers teleworking form a location of the employee’s choice or employers already regulated by existing standards for the healthcare industry.

The workplace violence prevention plan must be in writing, be available to employees, and include the following:

  • Names or job titles of the persons responsible for implementing the plan
  • Methods the employer will use to implement the plan
  • Procedures to obtain the active involvement of employees and authorized employee representatives in developing and implementing the plan
  • Methods the employer will use to coordinate implementation of the plan with other employers, when applicable
  • Procedures for the employer to accept and respond to reports of workplace violence, and to prohibit retaliation against an employee who makes such a report
  • Procedures to ensure that supervisory and nonsupervisory employees comply with the plan
  • Procedures to communicate with employees regarding workplace violence matters and how their reported matter will be investigated
  • Means to alert employees of the presence, location, and nature of workplace violence emergencies
  • Evacuation or sheltering plans
  • Procedures for identifying workplace violence hazards
  • Procedures to investigate and correct past incidents

In addition to the workplace violence prevention plan, employers must keep a log of all workplace incidents. The log must include the following:

  • The date, time, and location of the incident
  • The workplace violence type(s) involved in the incident (as defined in the statute)
  • A detailed description of the incident
  • Details regarding who committed the violence, including whether the perpetrator was a client or customer, family or friend of a client or customer, stranger with criminal intent, coworker, supervisor or manager, partner or spouse, parent or relative, or other perpetrator
  • A description of the circumstances at the time of the incident, including, but not limited to, whether the employee was completing usual job duties, working in poorly lit areas, etc.
  • The type of incident, including, but not limited to, whether it involved any of the following:
    • Physical attack without a weapon, including, but not limited to, biting, choking, grabbing, hair pulling, kicking, punching, slapping, pushing, pulling, scratching, or spitting
    • A threat of physical force
    • Sexual assault or threat
    • An animal attack
  • The consequences of the incident, including, but not limited to whether law enforcement was contacted, and actions taken to protect employees from a continued threat.

Employers should ensure that the log does not include personal identifying information for any persons involved. All records including the workplace incident log, training records, workplace violence investigations, and records of workplace violence hazard identification, evaluation, and correction, all must be maintained for 5 years.

Training must be provided to employees, including on the employer’s plan, the rule’s requirements and definitions, how to report incidents, workplace violence hazards specific to jobs and associated corrective measures, the violent incident log, and opportunity for Q&A.

California Code of Civil Procedure section 527.8 was also amended to allow employers to seek restraining orders to prevent workplace violence where necessary.

On August 29, 2023, the Environmental Protection Agency (EPA) announced its final Waters of the United States (WOTUS) rule.  The new WOTUS rule makes major changes to clarify which wetlands are protected under the Clean Water Act (CWA).  The new WOTUS rule is a direct response to the Supreme Court’s Sackett v. EPA decision, which held that in order for wetlands to be protected under the CWA there must be a “continuous surface connection” to a WOTUS.  

In January 2023, the Biden administration adopted a definition that mimicked a pre-2015 approach, which considered both the “significant nexus” standard, as well as a “relatively permanent” standard.  The January 2023 Rule aimed to broaden the definition of WOTUS after Trump-era revisions narrowing its scope.  The Sackett holding found that the “significant nexus” test did not comport with the Clean Water Act, forcing EPA to amend the WOTUS rule.  EPA removed the “significant nexus” test and redefined “adjacent” to mean “having a continuous surface connection.”

At first glance, these revisions appear to align with Sackett.  However, opponents continue to assert that even as amended the WOTUS rule is overly broad, unduly burdensome, and insufficiently certain.  Various industry and political groups have indicated another round of litigation is imminent.

EPA has already stated that, “If any part of the 2023 Rule as amended by this rule is stayed or invalidated, the agencies’ intent is to preserve its remaining portions to the fullest possible extent.”

In February, 23 states filed suit and obtained an injunction against the EPA over the Biden Administration’s January 2023 Rule.  In those states, the pre-2015 Rule remains in effect. 

Further, EPA elected to forego a notice and comment period and instead issue a final rule under the “good cause” exception of the Administrative Procedure Act.  In issuing new WOTUS rule as final, EPA stated that there is good cause for it to immediately finalize the rule as EPA determined such notice and opportunity for comment is unnecessary.  This decision is likely to be a subject of the anticipated litigation.

Our team will continue to track WOTUS related news and will provide updates as needed.


What is “ESG”?

“ESG” is perhaps the most divisive acronym of this year’s legislative session. But what does it mean?
“Environmental, Social, Governance” is a framework used to evaluate investments and business decision’s impacts on the environment and society. ESG criteria considers things like a company’s carbon footprint and employee wellbeing. ESG practices are being adopted by many companies and investors, but as they continue to grow, so does the opposition.

The SEC’s Pending Climate-Related Disclosure Rules

In March 2022, the Securities and Exchange Commission (SEC) published its “Proposed Rules to Enhance and Standardize Climate-Related Disclosures for Investors.” The rules would mandate the disclosure of Scope 1 (direct emissions), Scope 2 emissions (indirect), and in certain cases Scope 3 emissions (indirect emissions from both upstream and downstream activities). Additionally, companies would need to disclose climate-related risks faced by their business, processes for evaluating those risks, as well as how the company intends to meet its climate goals where they have been openly disclosed. All required disclosures will be made in a company’s annual Form 10-K reports. The rules are expected to be finalized by the end of 2023, but no updates have been announced since the close of the comment period in June 2022.  However, even once final, businesses can expect challenges and a strong likelihood of a Supreme Court stay of implementation of the new rules pending judicial review.

Recently Introduced Anti-ESG Federal Legislation

At the end of July, House Republicans introduced a slew of anti-ESG legislation to combat ESG-friendly legislation and the anticipated SEC rules. The following bills were introduced:

  • H.R. 4790 – The Guiding Uniform and Responsible Disclosure Requirements and Information Limits Act
    • This bill would amend the federal securities laws to create a Public Company Advisory Committee within the SEC to protect investors and market fairness. Additionally, the bill would limit mandated disclosures requirement, such as those in the proposed SEC rules.
  • H.R. 4655 – The Businesses Over Activists Act
    • This bill seeks to amend the Securities and Exchange Act of 1934 to prohibit the SEC from compelling the inclusion or discussion of shareholder proposals or proxy.
  • H.R. 4767 – The Protecting Americans’ Retirement Savings from Politics Act
    • This bill seeks to amend shareholder and proxy voting processes in a way that prioritizes growth over political issues while allowing for the exclusion of ESG proposals. 

State ESG Legislation

Instead of passively waiting for new federal rules, many state legislatures have taken ESG matters into their own hands. As of August 2023, 22 states have adopted some form of ESG legislation. 18 of these states have adopted anti-ESG laws, while only 4 have adopted pro-ESG laws.

Notable anti-ESG states include Alabama, Arkansas, Florida, Idaho, Indiana, Kansas, Kentucky, Montana, New Hampshire, North Carolina, North Dakota, Texas, Utah, and West Virginia.

A key theme in anti-ESG legislation from these states is the ban on the use of ESG criteria when managing public retirement systems or public funds. ESG opponents feel that the use of ESG criteria greatly harms beneficiaries, as it has the potential to lead to lower returns. Typical anti-ESG legislation includes a ban on the use of ESG criteria when making investment decisions that involve public funds. This may include an emphasis on fiduciary duties or a prohibition on divestment from certain industries.  

Indiana took this concept one step further in House Enrolled Act No. 1008, by prohibiting public retirement systems from contracting with service providers who make any “ESG commitments.” The legislation was passed in hopes to protect investment decisions to ensure that they are made with the sole purpose of maximizing the target rate of return. The public retirement system must replace service providers who have made ESG commitments where there is a comparable service provider who has not. This law went into effect July 1, 2023.

Idaho passed a similar law, House Bill 190, which bans banks and credit unions that hold state funds from boycotting an individual or company because of its affiliated industry. Listed industries include fossil-fuel based energy, timber, minerals, agriculture, and firearm sales, manufacturing or distribution. The law became effective July 1, 2023.

The most comprehensive anti-ESG legislation to date is Florida’s House Bill 3. ESG criteria may not be used when making public pension investment decisions, local government investment decisions, or awarding state or local contracts to vendors. Additionally, the issuance of ESG bonds are prohibited. Florida will likely influence future anti-ESG legislation throughout the country.

Left-leaning states such as California, Colorado, Illinois, and Vermont have implemented ESG criteria mandates or taken general protective measures that allow investors to continue the use of ESG criteria where they see fit.

Typical pro-ESG legislation includes divestment from certain industries, mandated disclosures and the adoption of more sustainable investment policies.

Colorado’s S.B. 23-016 was signed into law May 11, 2023 and requires the Colorado Public Employees’ Retirement Association to disclose financial risks stemming from climate change on an annual basis. The law takes effect January 1, 2025. 

The California Climate Corporate Data Accountability Act (SB 253) has the potential to be the most impactful pro-ESG law. California is home to one of the world’s largest economies. If passed, the bill would mimic the proposed SEC rules by mandating the disclosure of Scope 1 and Scope 2 emissions for companies doing business in the state and earning at least $1 billion in annual revenue. Additionally, beginning in 2027, companies would have to disclose Scope 3 emissions. We will continue to monitor its progress as it moves through the state legislature.

General Counsel Role and Business Advice in Light of Above

Navigating a company’s role in society is one of the great management challenges of our time. In the face of the ESG backlash, companies’ reactions vary. Some are going quiet about their initiatives and accomplishments; this has been referred to as “greenhushing.” However, others are doubling down on their commitments to sustainability.  Whichever path chosen, legal departments are being looked to to help steer their company forward, 

To best prepare your company, consider the following actions:

  • Legal should consider both sides of the ESG debate and stay informed of all nuances.
  • Certain environmental, social and governance issues may impact a company’s ability to be successful in both the near and long term; others might not. At its core, ESG is about companies recognizing emerging risks as well growth opportunities to their businesses and their boards’ oversight of all of it.
  • More robust ESG data, not less, could lead to companies making more informed decisions and to better governance.
  • To that end, understand your climate goals, if any.
    • Be mindful of communicating any emission reduction goals, as this could lead to mandatory disclosures of Scope 3 emissions in the future.
  • Consider adopting a system to track emissions.
    • This may be an environmental management system certified under ISO 140001 or another method of tracking data.
  • Know the communities your company conducts business in and understand their values.
    • Gaining a deeper understanding of your customer base can best guide your ESG or non-ESG related goals.
  • Consider creating an ESG committee.
    • Fostering internal dialogue around this controversial topic will best prepare you for ESG related changes.
  • Understand your company’s climate-related risks in both the long and short term.
    • Be mindful of potential impacts or supply chain shortages your company may face if climate disaster strikes.

As we previously covered in our blog last week, both the Federal and certain State governments are proposing legislation to subsidize or otherwise enhance the use of hydrogen as an alternative fuel to reduce greenhouse gas emissions from selected “hard to abate” industrial sectors such as heavy industry, transportation and marine shipping.  Last week’s blog focused on federal legislation. This week, we focus on California legislation.

In an effort to lead on the transition to low carbon energy by supporting the use of hydrogen, the California Legislature is considering two bills that require commissions to establish assessment goals for hydrogen use in certain applications and prioritize the use of clean hydrogen statewide.

First, SB-414 would require the State Air Resources Board, in consultation with the State Energy Resources Conservation and Development Commission (Energy Commission) and the Public Utilities Commission, to complete an assessment of the use of hydrogen in certain applications, including light-, medium-, and heavy-duty vehicles, including long-distance trucks and trains, household and commercial appliances, and electricity generation. The assessment must evaluate the potential for reductions in emissions of greenhouse gases using hydrogen, the cost associated with replacing fossil fuels with hydrogen, the energy efficiency of using hydrogen, and the climate risk associated with the transportation, storage, and use of hydrogen for the application. The bill would then require these findings be used when considering the “planning, implementation, or regulation of hydrogen production, distribution, storage, or usage in the state.” After passing the Senate Floor on May 24, 2023, and the Assembly Committee on Natural Resources on June 19, 2023, the bill was re-referred to the Committee on Appropriations on June 20, 2023.

Second, though not a bill per se, Senate Concurrent Resolution (SCR) 21 acknowledges the importance of hydrogen in the clean energy transition and urges the Alliance for Renewable Clean Hydrogen Energy Systems (aka ARCHES, a public-private partnership organization) to prioritize the use of renewable, clean hydrogen for California in its effort to create “Hydrogen Hubs.” These hubs are a part of President Biden’s Infrastructure Investment and Jobs Act (IIJA) in which Congress has allocated $8 billion toward establishing a network of hydrogen hubs. ARCHES is leading California’s regional application of the project. Existing California law already defines the different types of hydrogen, including green electrolytic, clean hydrogen, and renewable hydrogen. The definitions of these terms can be found in the Senate Floor Analysis of the resolution from March 22, 2023. This resolution specifically is intended to further support the use of hydrogen derived from eligible renewable energy resources, including wind, solar thermal, and biomass. The resolution passed the Senate Floor on April 27, 2023, and was adopted and ordered to the Assembly Consent Calendar by the Assembly Committee on Transportation on July 5, 2023.

The above legislation reflects California’s continued attempts to reduce greenhouse gas emissions through the use and assessment of hydrogen. Other states are watching closely and are considering similar measures as well. We will continue to closely monitor the status of hydrogen bills throughout the legislative process at both the federal and state level.