Investigations enforcement and compliance

California continues to move forward with new proposals for regulation and enforcement of workplace hazards associated with COVID-19.  As the Division of Occupational Safety and Health (“Cal/OSHA”) continues to develop a draft permanent standard to address COVID-19 hazards in cooperation with an advisory committee of various stakeholder groups, state legislators have proposed a senate bill to increase enforcement of “willful” violations on a per-employee basis.

Emergency temporary standard and permanent rule

Earlier this month, Cal/OSHA convened an advisory committee to provide input on possible changes to the COVID-19 Emergency Temporary Standard (“ETS”).  Over the course of three days of public meetings, the advisory committee discussed and debated potential clarifications as well as broadening or narrowing the scope of certain requirements.  Although no decisions were made during the meetings, the following were areas of focus where we can expect to see some changes to the ETS:Continue Reading Cal/OSHA moves forward with development of permanent COVID-19 standard while legislature considers bill to increase enforcement

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

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 Corps for compliance with the ESA. In the meantime, however, the court prohibited the Corps from permitting “any dredge or fill activities under NWP 12 pending completion of the consultation process and compliance with all environmental statutes and regulations.”Continue Reading Montana federal court vacates Nationwide Permit 12 for pipelines and other linear projects

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. Where the EPA will not pursue penalties for certain violations and failures to meet environmental obligations, DEP announced that “[a]ll permittees and operators are expected to meet all terms and conditions of their environmental permits, including conditions applicable to cessation of operations.”

Despite this seemingly hardline approach, DEP does offer some guidance to businesses facing challenges during the COVID-19 crisis.Continue Reading Pennsylvania continues to enforce all environmental laws and regulations during COVID-19 pandemic

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 not relaxed any reporting requirements related to emissions or discharges exceeding those limits. The TCEQ continues to monitor and ensure safe drinking water and safe management of waste.Continue Reading TCEQ implementing a more tailored case-by-case enforcement policy than the U.S. EPA 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 to the COVID-19 pandemic. Under the policy, the EPA will not seek penalties for certain missed environmental obligations (see our related blog post). On April 10, 2020, the EPA issued follow-up interim guidance that offers some factors to consider for response actions related to cleanup and emergency response sites where the EPA is the lead agency or has direct oversight of or responsibility for the work being performed (see our related blog post).  As evidenced below, California and its environmental, safety, and health agencies have shown less flexibility in their enforcement positions.Continue Reading California environmental agencies less flexible than U.S. EPA re enforcement policy in response to COVID-19

Following a recent settlement between the California Attorney General’s Office and a number of alcoholic beverage retailers, the Office of Environmental Health Hazard Assessment (OEHHA) is proposing to clarify the Proposition 65 warning requirements for alcoholic beverages sold on the internet, in catalogs, and via third-party providers. The most prominent item in the settlement’s methods and in OEHHA’s proposed amendments are that alcoholic beverages sold online or through a catalog must have a warning on the internet site or in the catalog, as well as a warning provided to the purchaser or delivery recipient prior to or at the same time as delivery (e.g., a warning label on a bottle or can).

The amendments would affect industry stakeholders such as retailers, manufacturers, and third-party providers. Affected businesses will likely benefit from the proposed regulatory action because the amendments provide clarifying guidance concerning the provision of Proposition 65 warnings for alcoholic beverages purchased via the internet (including mobile applications) or through catalogs. However, with the increased use of third-party providers to facilitate sales, businesses may need to change their current standards to ensure that warnings are provided to the purchaser or delivery recipient prior to or at the same time as delivery.Continue Reading Last call for alcohol… comments. Proposed amendments to clarify the requirements for providing alcoholic beverage Proposition 65 warnings

A recent decision by a California court of appeal clarified the breadth of the California Water Resources Control Board’s (Board) subpoena power, which could have implications for other state agencies in California and elsewhere.  Moreover, private entities which are the subject of an administrative investigation may have a difficult time withholding financial records even if those records are not related to the alleged violations, and even if the subpoenaed entity is not directly responsible for any of the alleged violations.
Continue Reading Administrative agencies have broad subpoena power

Earlier this month, the U.S. Occupational Safety and Health Administration (OSHA) published information on novel coronavirus (COVID-19) hazard recognition, medical information, potentially applicable OSHA standards, control and prevention, and additional resources. The guidance notes that without sustained human-to-human transmission, most U.S. workers remain at low risk of exposure and infection. However, OSHA has identified commonsense practices for all workers and employers to help prevent worker exposure to COVID-19, including proper handwashing with the use of an alcohol-based rub (hand sanitizer). OSHA also cautions workers to avoid touching their eyes, nose, and mouth with unwashed hands and to avoid close contact with sick people. The guidance lists additional precautions for workers involved in health care, deathcare, laboratories, airline operations, border protection, and solid waste and wastewater management. OSHA’s guidance is available here.
Continue Reading OSHA and Cal/OSHA issue coronavirus guidance

The PRC Supreme Court has deviated from the accumulated legal precedent regarding liability for pollution under the International Convention on Civil Liability for Bunker Oil Pollution Damage (the Bunker Convention) and held the owners of a non-leaking vessel liable for clean-up costs and pollution damage.
Continue Reading Chinese Supreme Court swims against current on liability under Bunker Convention