Archives: Enforcement and Litigation

Environment, Health & Safety enforcement and litigation

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ICYMI: June sees major U.S. Supreme Court environmental activity

1. Pipeline May Cross Underneath the Appalachian Trail with Forest Service Approval On June 15, 2020, the U.S. Supreme Court (SCOTUS) held in a 7-2 decision that the U.S. Forest Service had the authority to grant developers of a gas pipeline right-of-way underneath the Appalachian National Scenic Trail. At issue in this case was whether … Continue Reading

EPA to terminate its temporary enforcement discretion policy

On March 26, 2020, the Environmental Protection Agency (EPA) issued a memorandum about a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. Under the policy, the EPA stopped seeking penalties for certain missed environmental obligations. The policy received mixed reactions from states and environmental groups. On June 29, 2020, EPA … Continue Reading

TSCA Summer Watch List

In 2016, Congress enacted major reforms to the Toxic Substances Control Act (TSCA). These improvements included items such as: (1) a mandatory requirement for the U.S. Environmental Protection Agency to evaluate existing chemicals with clear and enforceable deadlines; (2) risk-based chemical assessments; (3) increased public transparency for chemical information; and (4) a consistent source of … Continue Reading

U.S. regulatory developments: EPA issues first in a series of rules restricting ethylene oxide emissions

On June 1, 2020, the U.S. Environmental Protection Agency (EPA) announced final action to reduce emissions of ethylene oxide (EO) from certain sources. EO is an intermediary chemical used to make plastics, textiles and antifreeze, and also is used to sterilize medical devices. Scrutiny of EO has increased in the past few years due to … Continue Reading

Appeals court rejects AFL-CIO suit seeking to compel OSHA to issue COVID-19 emergency temporary standard

On May 18, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) protecting U.S. workers against COVID-19.  However, on June 11, the U.S. Court of Appeals rejected … Continue Reading

ICYMI: Major May U.S. Supreme Court environmental decisions

This month’s notable U.S. Supreme Court (SCOTUS) actions involve what the Court declined to review rather than any actual decisions. Declined to review: Fuel blenders exemption under the EPA’s RFS program On May 18, 2020, SCOTUS declined to review the U.S. Environmental Protection Agency’s (EPA) policy that fuel blenders are not responsible for mixing biofuels … Continue Reading

Union sues OSHA for failure to issue COVID-19 standard and the agency responds

On May 18, 2020, the American Federation of Labor and Congress of Industrial Organizations (the AFL-CIO) filed a petition against the U.S. Occupational Safety and Health Administration (OSHA) demanding that the agency issue an emergency temporary standard (ETS) to address the COVID-19 pandemic within 30 days. The case is In re: Am. Fed’n of Labor … Continue Reading

Reed Smith issues guide for UK employers preparing to reopen workplaces post-COVID-19

Following recent announcements by the UK government on how the UK economy will gradually re-open, we are pleased to share a short publication with you that highlights some of the key health, safety and workplace management topics that UK employers may need to consider as we get businesses up and running again. In addition to … Continue Reading

EPA’s self-guidance for participation in bankruptcy proceedings

The uncertainty surrounding the COVID-19 pandemic has rocked the global economy, and companies of all types and sizes are feeling the impacts. In recent weeks, certain high-profile retailers filed for Chapter 11 bankruptcy protection. Some airlines are expected to enter bankruptcy as well, and even farmers are feeling the pinch. Overall, data suggest that bankruptcies … Continue Reading

OSHA announces changes (again) to how COVID-19 cases are recorded

With most states starting to reopen after the lockdown, attention is focused on the process for getting back to work safely, and when and how employers must record COVID-19 cases as a work related illness. In response to this, OSHA has issued a revised recordkeeping enforcement memorandum outlining the applicable requirements. This comes into effect … Continue Reading

EPA updates ‘small manufacturer’ definition for reporting and recordkeeping under TSCA section 8(a)

A new EPA rule finalizes amendments to the definition of “small manufacturer” in accordance with the Toxic Substances Control Act (TSCA). Changes to the small manufacturer definition impact certain reporting and recordkeeping requirements established under TSCA. The final rule is effective 30 days after publication in the Federal Register. The final rule, made public May … Continue Reading

Keeping it Clean: OSHA, CDC, and state-agency guidance explains how employers can help stop spread of COVID-19

Many businesses are reopening their doors as states lift closure orders. While a plan to reopen will look different for each company, all employers should ensure they are taking appropriate cleaning and safety measures to reduce possible exposure to the virus that causes COVID-19. The Occupational Safety and Health Administration (OSHA) has recommended several measures … Continue Reading

Proposed NEPA rulemaking would accelerate environmental reviews

Earlier this year, the Council on Environmental Quality (CEQ) issued a notice of proposed rulemaking recommending extensive changes to the governing regulations of the National Environmental Policy Act (NEPA).  NEPA is a broad national policy aimed at preventing or eliminating damage to the environment.  Under this policy, whenever “major federal actions” – including projects that … Continue Reading

States sue EPA over COVID-19 enforcement policy

Following on from our recent post regarding Environmental Protection Agency (EPA) policy and the controversy surrounding it , on May 13, 2020, seven states brought an action in the Southern District of New York against the EPA to challenge the agency policy under which the EPA has stated it “will not” enforce a wide range … Continue Reading

Post pandemic drafting with governmental authorities: Force Majeure clauses in consent agreements

On May 5, 2020, The New York Times (NYT) reported under the heading “Here come the busted deals,” that L Brands, majority owner of Victoria’s Secret, who had a seemingly airtight case for selling a majority stake in Victoria’s Secret, had agreed to let the buyer, Sycamore Partners, walk. L Brands agreed to let Sycamore … Continue Reading

California Governor temporarily suspends requirements under CEQA

On April 22, 2020, California Governor Gavin Newsom issued an executive order that suspended for 60 days certain public filing, posting, notice, and public access requirements under the California Environmental Quality Act (CEQA). This order affects all projects in the state requiring a governmental approval that triggers environmental review. This could be anything from a … Continue Reading

ICYMI: Major April U.S. Supreme Court Environmental Decisions

1) Superfund deals don’t block state-law claims On April 20, 2020, the Supreme Court of the United States (SCOTUS) issued an opinion allowing Montana residents to maintain state-law claims against a company for a Superfund site that is already covered by a settlement agreement with the U.S. Environmental Protection Agency (EPA).… Continue Reading

Montana federal court vacates Nationwide Permit 12 for pipelines and other linear projects

On April 15, 2020, a federal district court in Montana issued an order vacating the U.S. Army Corps of Engineers’ (Corps) Nationwide Permit (NWP) 12 under the federal Clean Water Act (CWA) due to the Corps’ failure to meet its obligations under the federal Endangered Species Act (ESA). The court remanded NWP 12 to the … Continue Reading

Pennsylvania continues to enforce all environmental laws and regulations during COVID-19 pandemic

The Pennsylvania Department of Environmental Protection (DEP) announced that it will continue to enforce all environmental laws and regulation for the duration of the state’s COVID-19 disaster duration. This policy takes a much stricter stance on environmental obligations than the U.S. Environmental Protection Agency’s (EPA) temporary policy of enforcement discretion issued on March 26, 2020. … Continue Reading

In the midst of COVID-19, attorneys general of 18 States urge stronger EPA Action on PFAS

Last Friday, April 17, the attorneys general of New York, Pennsylvania, California, Connecticut, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, Oregon, Rhode Island, Virginia, Washington, and Wisconsin filed a comment letter with the U.S. Environmental Protection Agency (EPA) urging the agency to take more comprehensive actions regarding per-fluoroalkyl and poly-fluoroalkyl substances (collectively, … Continue Reading

TCEQ implementing a more tailored case-by-case enforcement policy than the U.S. EPA in response to COVID-19

The Texas Commission on Environmental Quality (TCEQ) announced that it will exercise enforcement discretion on a case-by-case basis as opposed to the EPA’s broader temporary enforcement policy issued on March 26, 2020. Under its more tailored approach, the TCEQ has not relaxed any limits on air emissions or discharges to water. Similarly, the TCEQ has … Continue Reading

DOJ: civil penalty obligations temporarily suspended

In conjunction with the U.S. Environmental Protection Agency’s (EPA’s) move to relax enforcement efforts, and despite criticism of the EPA’s move, the Department of Justice (DOJ) has suspended collection of civil penalty payments for six weeks – until at least May 31, 2020 – in a move that could be a demonstration that federal government … Continue Reading

COVID-19 induced force majeure applied to environmental obligations

As governments and health authorities institute increasingly strict responses to COVID-19, companies worldwide face unprecedented challenges in meeting their otherwise “business as usual” contractual and regulatory obligations. While these challenges span all areas of business, this post focuses on particular environmental obligations and associated risks. The U.S. Environmental Protection Agency (EPA) recently instituted a temporary … Continue Reading

California environmental agencies less flexible than U.S. EPA re enforcement policy in response to COVID-19

While the U.S. Environmental Protection Agency (EPA) has shown some flexibility in enforcement of environmental regulatory obligations during the outbreak of COVID-19, at this stage in the pandemic, California will not typically excuse noncompliance due to the COVID-19 pandemic. On March 26, 2020, the EPA issued a memorandum implementing a temporary enforcement discretion policy due … Continue Reading
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