Below is an excerpt of an article published by the Connecticut Business and Industry Association (CBIA) on April 12, 2023.

OSHA is poised to revive a policy that would require employers to permit union officials to take part in agency inspections even if the union does not represent employees at the facility being inspected. 

OSHA previously maintained such a policy between 2013 and 2017. 

The policy arose out of a memo issued in response to a labor union’s inquiry. Known as the Fairfax Memo—a reference to the memo’s author—the policy was withdrawn in 2017 as the interpretation underpinning it faced legal challenges.

During the fall of 2022, OSHA issued a notice suggesting a return to the Fairfax Memo, but this time through promulgation of a regulation. 

The notice stated that a rule would be published in May of 2023 and that “[t]his rulemaking will clarify the right of workers … to specify … a union representative to accompany an OSHA inspector during the inspection process/facility walkaround, regardless of whether the representative is an employee of the employer …” Read the article.

Last week EPA released its proposal for the first set of Maximum Contaminant Levels (MCLs) under the Clean Water Act for per- and polyfluoroalkyl substances (PFAS).  In contrast to non-enforceable health advisory levels introduced in 2016 and revised in 2022, MCLs constitute enforceable drinking water standards that will impact drinking water utilities and industry nationwide.  The proposal for enforceable drinking water standards marks the latest step in the evolution of PFAS from an emerging contaminant to a contaminant subject to enforceable regulations. 

The proposed rule sets standards for six PFAS compounds as follows:

*More information on how the Hazard Index will be calculated is available in an EPA fact sheet.

The proposed MCLs follow lifetime health advisory levels for PFOA, PFOS, GenX and PFBS issued by EPA in the summer of 2022.  The health advisory levels for PFOA and PFOS are 0.004 parts per trillion, which is a level that cannot yet be reliably detected in laboratories.  While the 4 ppt proposed MCL for PFOA and PFOS is low relative to the levels in place for other constituents, it is at least detectable using current technology.

In the preamble to the proposed rule, EPA indicated that no safe level for PFOA and PFOS has been identified.  Therefore, EPA is setting the non-enforceable, health-based Maximum Contaminant Level Goal (MCGL) at zero for both PFOA and PFOS.  Given that EPA requires the MCLs to be set “as close as feasible” to the MGCLs, the regulated community should be aware that EPA may move to further lower the limits for PFOA and PFOS as technology improves.   

We are also tracking a number of other PFAS-related developments, including that in August 2022, EPA released a proposed rule that would designate PFOA and PFOS as CERCLA hazardous substances.  A number of states (including California and Maine) have passed laws banning the use of PFAS in certain applications. 

On January 6, 2023, the U.S. Environmental Protection Agency (EPA) released a pre-publication copy of a Proposed Rule, which will lower the annual National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5). PM2.5 refers to PM with a diameter of 2.5 microns or less, which is about 3-5 percent of the width of a human hair. 

Source: https://www.epa.gov/sites/default/files/2016-09/pm2.5_scale_graphic-color_2.jpg

Sources of PM2.5

Sources of PM2.5 are varied and complex. Some fine particulate is emitted directly, such as from fuel combustion by vehicles or power plants, or from certain industrial and agricultural activity. But a significant amount of fine particulate is also created when gasses emitted by such or other sources react in the atmosphere. The picture is further complicated by significant sources outside familiar regulatory targets, particularly forest fires, as well as contributions from wind erosion of soils and minerals and international transport.

Revised PM2.5 Standards:  Process and Proposal

Under the Clean Air Act, EPA is required to periodically review all NAAQSs and revise them as necessary to protect public health (primary standards) and welfare (secondary standards), based on available scientific evidence and technical information. As a practical matter, EPA has adopted two PM2.5 NAAQSs: one for short-term exposure (24 hours), and another for annual exposure. The current standards for PM2.5 were established in 2012 and affirmed in 2020. Thereafter, several parties petitioned EPA to reconsider the 2020 decision, and in June 2021 EPA commenced the re-evaluation process.

In evaluating whether to lower the annual standard for fine particulate matter, EPA relied heavily on certain technical studies: the December 2019 Integrated Science Assessment for Particulate Matter, its May 2022 Supplement, and policy assessments prepared by EPA staff, as well as advice from EPA’s Clean Air Scientific Advisory Committee (CASAC). According to the Integrated Science Assessment, fine particulate matter exposure at concentrations allowed by the current annual standard may lead to statistically significant adverse health effects, including respiratory and cardiovascular issues. The CASAC agreed with EPA staff policy assessments that this evidence calls into question the adequacy of the primary annual standard for fine particulate matter and recommended that the standard should be reduced accordingly.

The Proposed Rule would lower the primary annual standard for PM2.5 from its current level of 12 micrograms per cubic meter (12 μg/m3) to a level between 9 and 10 μg/m3. However, in the Proposed Rule EPA also requests public comment regarding levels from 8 to 11 μg/m3.

The Proposed Rule would retain all other existing particulate matter standards (the primary 24-hour PM2.5 standard and the identical secondary standard; the secondary annual PM2.5 standard; and the primary 24-hour coarse particulate matter (PM10) standard and its identical secondary standard). However, although no changes are proposed to the 24-hour PM2.5 primary and secondary standards, EPA will take comment on reducing them from the current 35 μg/m3 to as low as 25 μg/m3.

Concurrent with the proposed NAAQS changes, EPA also proposes to revise its Air Quality Index, which provides information about daily ambient levels for PM and other pollutants, to improve public communications about the risks from fine particulate matter exposure. EPA further proposes to modify the nationwide PM2.5 monitoring network to enhance protection of air quality in communities overburdened by air pollution.

Notably, in presenting the Proposed Rule, EPA emphasizes the “environmental justice” (EJ) aspects in terms of communities potentially harmed by current levels of PM2.5. 

Anticipated impact

EPA’s Regulatory Impact Analysis document accompanying the Proposed Rule projects where air quality would not attain the proposed tightened annual PM2.5 standard, with the extent of impact depending on whether the standard is lowered to 10 μg/m3, 9 μg/m3, or 8 μg/m3. Under any of these scenarios, the most impacted state is California, particularly the Central Valley and southern California. Beyond that, impacts are highly scattered across the lower 48 states, and include several major urban areas. 

Source:  https://www.epa.gov/system/files/documents/2023-01/naaqs-pm_ria_proposed_2022-12.pdf

Outlook for final revised standards

Following publication of the Proposed Rule in the Federal Register, EPA will accept public comment for 60 days. According to its January 6 press release, the agency plans to finalize the new standards later this year. Regardless of where the final standard lands, it is certain to be challenged in court.

In a 50-year game of ping-pong, the Biden administration marked the end of 2022 by taking its turn revising the definition of “waters of the United States,” or “WOTUS” for short. This term determines where Clean Water Act (CWA) permits are required for wetland dredging and filling and pollutant discharges, as well as other CWA jurisdictional limits. On December 30, 2022, the Environmental Protection Agency and Army Corps of Engineers (together, the Agencies) released a pre-publication version of the “Revised Definition” WOTUS rule and additional guidance materials; but the regulation does not take effect until 60 days after its official publication (still pending).

The Biden administration’s new rule identifies five categories of WOTUS, starting with less controversial waterbodies, such as large, actually-navigable rivers and lakes known as “traditional navigable waters” (TNW). From there, the rule defines additional categories and subcategories of WOTUS by applying both standards offered in the plurality and concurring opinions of the Supreme Court’s 2006 Rapanos v. U.S. decision. As outlined below, this approach includes not only features meeting Justice Scalia’s test (“relatively permanent, standing or continuously flowing” waters and wetlands with continuous surface connections to such waterbodies) but also those swept in under Justice Kennedy’s “significant nexus” trigger (“significantly affect[ing] the chemical, physical, and biological integrity” of TNW):

Para.WOTUS Category Regulatory Triggers
(a)(1)Traditional navigable waters, territorial seas, and interstate waters, forming the core (and perhaps least controversial) category of jurisdictional waters
(a)(2)Impoundments of WOTUS identified in other categories, except (a)(5) local waters
(a)(3)Tributaries of TNW and other core (a)(1) waters and (a)(2) impoundments, limited to such streams, ponds, impoundments, and other tributary waterbodies:
(i)that are “relatively permanent, standing or continuously flowing” (as most followers of Justice Scalia would tolerate); or
(ii)that significantly affect the chemical, physical, or biological integrity of any core (a)(1) waterbody
(a)(4)Adjacent wetlands in locations meeting federal “wetland” criteria (hydrologic and vegetation) and:
(i)adjacent” (“bordering, contiguous, or neighboring”) to TNW or other core (a)(1) waters;
(ii)possessing a “continuous surface connection” to any (a)(2) impoundment or “relatively permanent” (a)(3)(i) tributary; or
(iii)significantly affecting the chemical, physical, or biological integrity of any core (a)(1) waterbody and “adjacent” to any (a)(2) impoundments or (a)(3) tributaries
(a)(5)Additional “intrastate lakes and ponds, streams, or wetlands” where such local waters are either:
(i)relatively permanent … with a continuous surface connection” to any core (a)(1) waterbody or any “relatively permanent” (a)(3)(i) tributary; or
(ii)significantly affecting the chemical, physical, or biological integrity of any core (a)(1) waterbody

The Biden administration describes its new WOTUS definition as putting back into place the regulatory scheme in effect before the Obama and Trump administrations took turns revising this term. But, by expressly including “significant nexus” triggers, the new rule more closely resembles the Obama administration’s broad 2015 Clean Water Rule than the Trump administration’s more narrow 2020 Navigable Waters Protection Rule (NWPR). The new rule goes further by adding new criteria for determining when a water feature trips this trigger because it has a “material influence on the chemical, physical, or biological integrity of [TNW, territorial seas, or interstate waters],” either “alone or in combination with similarly situated waters in the region.” The Biden administration claims that the rule’s new terms and updated exceptions for ditches, construction site depressions, wastewater treatment ponds/lagoons, prior converted croplands, artificial ponds/irrigation areas, and similar features are supported by its extensive public outreach to agricultural, tribal, state, and other stakeholders. Countering longstanding criticisms that “significant nexus” considerations unduly burden farming, infrastructure, and other projects with complex and expensive study requirements, the Agencies also point to past guidance and additional materials now available to facilitate predictable WOTUS determinations.

The Biden administration may be positioning its Agencies to make future “Rule 2” WOTUS definition changes if the U.S. Supreme Court invalidates or cuts back the “significant nexus” trigger in a pending appeal brought by the Sackett family against EPA. In that case, EPA issued an order and a jurisdictional determination that applied the significant nexus test to prohibit further filling and home construction activities on the Sackett’s “soggy” property located 300 feet from Priest Lake, a TNW in Idaho. The wetlands on their 0.63 acre lot drain into the lake beneath the ground surface but, thanks to intervening roads and residences, have no surface connection to Priest Lake or any other TNW. The lot’s wetlands are part of a larger wetland resource that has been found to impact Priest Lake. The Ninth Circuit’s 2021 decision in Sackett affirmed summary judgment in favor of EPA based on the “significant nexus” test, rejecting the Sackett’s argument that Justice Scalia’s plurality opinion should control. The present appeal to the Supreme Court has been briefed and argued; a decision is expected later this year.

The Biden administration has also lobbed its new WOTUS definition into the Court’s deliberations on the Sackett case. In a December 30, 2022 letter, the Office of the Solicitor General provided a link to the now “final rule” and pointed to the Agencies’ preamble comments describing which “adjacent wetlands” are regulated as WOTUS. EPA’s announcement issued on the same day seems to speak to both the Court and the public by describing the new rule as “durable” and “grounded in the authority provided by Congress [and reflecting] existing Supreme Court decisions, the latest science, and the agencies’ technical expertise.”

For now, the WOTUS ball is back in the hands of the Supreme Court. But, by forcing out its “durable” Phase 1 rule and reserving a place for potential Phase 2 rulemaking, the Biden administration is sending the Court and interested stakeholders a message that its Agencies are prepared to keep hitting back any narrow CWA interpretations sent their way in this game of WOTUS ping-pong, now entering into its sixth decade.

(*) For further discussion on the revised WOTUS rule and Sackett case, see the longer client alert. Attorney Melvin’s additional articles and presentations on water and wastewater topics appear in Environmental Law+ blog and other Robinson + Cole publications.

For air emission sources in New Haven County, Middlesex County, and Shelton, Connecticut, the regulatory landscape will change on November 7, 2022. 

Per a regulation published on October 7, 2022, the EPA is reclassifying the extent to which air quality in these parts of the state has failed to attain a certain federal air quality standard adopted in 2008 for ground-level ozone (aka smog).  Effective November 7, 2022, these two counties and this one town, currently classified as in “serious” nonattainment, will now be reclassified as in “severe” nonattainment.  The reclassification (aka “bump-up”) will immediately change the regulatory landscape — and potentially, applicable regulatory requirements — for facilities in those counties that emit or have the potential to emit volatile organic compounds (VOC) and nitrogen oxides (NOx), each of which is an ozone precursor. 

VOC are found in a wide variety of operations, including coating, solvent degreasing, and printing.  NOx is typically a byproduct of burning fuel or other combustion.

What does this mean for a VOC or NOx emission source in New Haven County, Middlesex County, and Shelton? 

Reclassification to “severe” will cut in half the emissions-based threshold for certain categories – “major stationary source” and “major modification to a major stationary source” – that trigger regulatory requirements.  The threshold for each under the current “serious” classification is 50 tons per year of actual or potential emissions (more on potential emissions below) of VOC, or of NOx.  As of November 7, 2022, the threshold under the “severe” classification will be 25 tons per year. 

As a result, a VOC or NOx emission source in the affected areas with actual or potential emissions between 25 and 50 tons per year or more may become subject, in some cases immediately, to several significant regulatory programs.  These programs include:

  • More stringent pre-construction permitting requirements for a proposed new source or modification under the Nonattainment New Source Review program.
  • A requirement for an existing source to apply for and obtain an operating permit (aka Title V permit), which aggregates all applicable requirements into one “umbrella” permit along with requirements for detailed annual compliance certifications and other periodic reports.
  • Expanded or more stringent requirements (known as Reasonably Available Control Technologies (RACT)) for VOC and/or NOx emissions from an existing source.

What to know about “potential emissions”

The term “potential emissions” is generally defined as the emissions that would result from continuous operation at maximum rated capacity, subject only to inherent physical constraints and any “practicably enforceable” limits.  For certain types of operations (e.g., paint guns that see limited use), potential emissions may far exceed actual emissions.  Overlooking or improperly calculating the potential emissions of a source has long been one of the most common pitfalls in the air regulatory world.  This will likely continue to be true in dealing with the “bump-up.”

Take-Away

The owner or operator of a VOC or NOx emission source in New Haven or Middlesex Counties or in Shelton would be well-advised to assess whether and how the impending bump-up might impact the regulatory status and requirements for the source, and to consider potential mitigation or avoidance strategies.  Such strategies could include securing practicably enforceable limits (or additional such limits) on potential emissions.  In some cases, prompt action may be necessary to avoid non-compliance with newly-applicable requirements. 

The final bump-up rule can be viewed here.  Also helpful may be an FAQ sheet developed by the Connecticut Department of Energy and Environmental Protection.

The Standells may “love that dirty water” according to their 1966 hit song, but the Environmental Protection Agency’s (EPA) New England region is hoping to reduce stormwater pollution running off industrial, commercial and institutional properties “down by the banks of the river Charles” and throughout three Boston area watersheds. After prodding from the Conservation Law Foundation, EPA Region 1 is taking steps to expand the agency’s stormwater permitting program to apply to operators of those designated parcels in the Charles River, Neponset River, and Mystic River watersheds if they have one acre or more of impervious surfaces preventing water from infiltrating into the ground. These surfaces can include not only buildings and pavement, but also compacted gravel and artificial turf.

On September 14, 2022, EPA Region I announced its plans to propose one or more general permits as part of the Clean Water Act’s (CWA) National Pollutant Discharge Elimination System (NPDES). The agency described its initiative as the first exercise of its CWA “residual designation authority … on such a broad scale to address watersheds in a major urban area.” The EPA’s related determination was supported by an extensive history of water quality standard violations and significant pollutant contributions from these stormwaters, the Massachusetts Department of Environmental Protection’s prior listing of “impaired waters” in these watersheds under CWA § 303(d), and allocations made in related Total Maximum Daily Loads (TMDLs) for nitrogen, phosphorus, bacteria, and other stormwater pollutants. In addition to documenting these grounds for using its CWA “residual designation authority,” the agency pointed to other factors warranting prompt action, including the extent of stormwater pollution flowing into “environmental justice” communities and the rise of stormwater-related climate change impacts such as year-round algae blooms.

The EPA stated its NPDES permit proposal “will likely rely on well-proven and easily implemented ’Best Management Practices’ (BMPs) – including leaf litter pickup, parking lot sweeping, installing rain gardens or other infiltration practices, planting trees, reducing pavement or utilizing pervious pavement.” Previously issued NPDES general permits have also required stormwater sampling and implementation of control measures when applicable standards are exceeded. The expected permit would not apply to operators already authorized to discharge stormwater under an EPA general or individual permit. For example, storm sewer systems operated in these watersheds by the City of Boston and other municipalities are not designated by the agency for the new stormwater requirements.

The EPA has not released its schedule for rolling out this new stormwater program, stating only that it plans to post its general permit proposal on its website and open up a public comment period for both the permit proposal and the EPA’s designation under the Clean Water Act. To follow the EPA’s “residual designation authority” for expanded stormwater permitting and other Clean Water Act developments, see Robinson+Cole’s related articles.

Last week, the U.S. Environmental Protection Agency (EPA) released a pre-publication version of a Proposed Rule to designate PFOA and PFOS as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund).  This marks the next step in a trend of increasing regulation of per- and polyfluoroalkyl substances (PFAS), a class of chemical substances to which PFOA, PFOS, and a number of other substances belong.  PFAS have been used for a variety of applications, including firefighting foams, stain guards, and non-stick coatings, and are now widely found in the environment.

Under CERCLA, EPA has the authority to require potentially responsible parties (PRPs) to remediate sites contaminated by hazardous substances, and to recover costs from such PRPs for EPA-led cleanups.  These provisions do not yet apply to PFAS because they are not CERCLA hazardous substances, but if the Proposed Rule is finalized, these familiar provisions would apply to PFOA and PFOS.  Similarly, the hazardous substance designation would allow private parties that incur costs to investigate and remediate PFOA and PFOS to use CERCLA’s cost recovery and contribution provisions to pursue other PRPs for recovery of associated costs. 

The Proposed Rule, if finalized, could have significant impacts on Superfund sites that are presently undergoing remediation or even where remediation has already been completed.  For sites being remediated now, the EPA-approved remedial plans would have been calibrated to address other hazardous substances (say, solvents) already designated under CERCLA.  The addition of PFOA and PFOS as hazardous substances may require a change in plans and/or additional work to address PFOA and PFOS as well as the original drivers.  For sites that have already been closed without investigation and remediation of PFOA and PFOS, designation of such substances as hazardous under CERCLA could cause those sites to be reopened and additional remedial efforts to be required.

EPA’s proposed CERCLA hazardous substance rule follows a significant reduction earlier this summer in EPA’s non-binding health advisory levels for PFOA and PFOS in drinking water.  In 2016, EPA had set a non-binding health advisory level of 70 parts per trillion (ppt) for both PFOA and PFOS.  In June of this year, EPA issued revised advisory levels of 0.004 ppt for PFOA and 0.20 ppt for PFOS, as well as new health advisory levels for additional PFAS GexX (10 ppt) and PFBS (2000 ppt).  The health advisory levels continue to be non-binding, but EPA has signaled its intention to promulgate a final rule setting a maximum contaminant level for PFOA and PFOS, enforceable under the Safe Drinking Water Act, by the end of 2023.  The proposed rule is expected later this year. 

Following publication in the Federal Register, EPA will accept public comment on the Proposed Rule for 60 days.  The precise text and timing of the final rule is not yet clear and may be impacted by the volume and tenor of public comments.  It also remains to be seen whether EPA will propose to designate other PFAS as CERCLA hazardous substances, and if so, which ones.

This post is also being shared on our Manufacturing Law Blog. If you’re interested in getting updates on legal news and perspectives and related business issues that are facing manufacturers and distributors, we invite you to subscribe to the blog.

The offshore wind industry stands to gain additional momentum this summer as the Inflation Reduction Act (IRA) moves through Congress to its anticipated passage. The budget reconciliation package associated with the bill continues to reflect a substantial investment in the further development of renewable energy measures, several of which relate to offshore wind and related transmission infrastructure projects. Future offshore wind development prospects are particularly bright for several New England and east coast states, which earlier this summer joined the Biden administration in announcing a new federal-state partnership to grow American-made clean energy. While offshore wind is not the sole beneficiary of these legislative initiatives, the impacts could prove to be transformative for planned and contemplated offshore installations. 

Inflation Reduction Act

     The IRA contains several incentives for offshore wind development.  These include:

  • An energy investment tax credit (ITC) provides a scaled tax credit of up to 30 percent for offshore wind projects that begin construction before January 1, 2026.
  • A new tax credit of 10 percent for the domestic production of wind components and specialized offshore wind installation vessels. 
  • An expansion of the Outer Continental Shelf Lands Act to include the exclusive economic zone of U.S. territories, including Puerto Rico, Guam, and the U.S. Virgin Islands. This would allow for the development of offshore wind projects in these areas. The Act instructs the Department of the Interior (DOI) to evaluate applicable lease opportunities.
  • An end to the Trump-era moratorium currently prohibiting federal leasing on the outer continental shelf off the coast of the southeastern U.S.
  • A $3 billion grant to install electrified equipment and reduce emissions at U.S. seaports, where infrastructure is a linchpin for supply chain development and management.

The IRA does impose certain restrictions on the leasing of offshore wind development.  During the 10-year period following enactment, the DOI’s Bureau of Ocean Energy Management (BOEM) would not be allowed to lease wind development unless the agency held an offshore oil and gas lease sale in the previous year that offered certain defined opportunities for fossil fuel development on the outer continental shelf.

Federal-State Offshore Wind Partnership

On June 23, 2022, the White House announced a new federal-state partnership to grow American-made clean energy and further the Biden administration’s goal of 30 gigawatts of offshore wind by 2030. The eleven states taking part are Connecticut, Rhode Island, Massachusetts, New York, Delaware, Maryland, Maine, New Hampshire, New Jersey, North Carolina, and Pennsylvania. The main components of the partnership, which focus on the supply chain, are outlined in a White House press release, and noted below. 

Mutual Federal-State Commitments

  • Increase U.S. domestic manufacturing, logistics, and workforce to develop a robust U.S. offshore wind industry.
  • Engage underserved communities, ocean users, tribes, and other stakeholders.
  • Support the development of a domestic fleet of offshore wind installation and service vessels.

State Commitments

  • Use opportunities for project solicitations to support domestic commitments in offshore wind procurements.  
  • Explore opportunities to take regional approaches to advance domestic offshore wind manufacturing.

Federal Commitments

  • Facilitate timely and effective permitting and environmental reviews for offshore wind projects.
  • Incentivize investment in the U.S. offshore wind supply chain by utilizing the lease auction process.
  • Develop an offshore wind supply chain roadmap to identify critical gaps in offshore wind development.
  • Leverage federal funding opportunities to promote a U.S.-based offshore wind supply chain.

A commission consisting of the U.S. Department of Energy and the states of New York and Maryland will also continue to develop a national offshore wind supply chain roadmap. The first step in developing the roadmap was a report, released in March 2022, that demonstrated the substantial need to increase the number of domestic vessels to assist in offshore wind development and construction. Currently, only some ten vessels have the capacity to construct large offshore wind turbines, globally.

In an effort to alleviate this vessel shortage in the United States, the Department of Transportation’s Maritime Administration has listed wind turbine installation vessels as “Vessels of National Interest.” This categorization will provide the proposed construction of such vessels with priority federal funding through the Federal Ship Financing Program. A second report further detailing the roadmap is expected to be published by the end of 2022 and will detail scenarios that would increase U.S. manufacturing of major components for the offshore wind supply chain. In Connecticut, the city of New London continues to shine as a focal point of offshore wind development in New England.  Earlier this summer, the State Pier Project attracted national attention as U.S. Secretary of Energy, Jennifer Granholm, visited New London to inspect the progress of the project. In her remarks, Secretary Granholm noted President Biden’s interest in the project and its suitability to serve as a model for other heavy-lift capable ports that will be necessary to create and maintain offshore facilities.

Over the last two years, employers have followed the evolving laws and guidance issued by federal, state, and local governments and public health authorities. On July 12, 2022, the Equal Employment Opportunity Commission (EEOC) made several noteworthy revisions to its guidance to address changing pandemic conditions. Even though the COVID-19 pandemic may have subsided in various areas in the country, it is important for employers to remain up-to-date on such changes as they could have a significant impact on employers’ rights and responsibilities under the law.  

New Parameters for COVID-19 Testing

Most significant, the EEOC has altered its guidelines surrounding workplace COVID-19 testing.  Under the recent guidance, the EEOC will no longer presume that COVID-19 testing is job-related and consistent with business necessity – as required by the Americans with Disabilities Act. Instead, employers will be required to conduct an individualized assessment to determine whether present pandemic circumstances and individual workplace circumstances justify COVID-19 testing of employees. This individualized assessment is not new; the EEOC is simply returning to its pre-pandemic guidance on this issue. In those circumstances requiring an individualized assessment, the EEOC advises employers to consult current guidance from the Centers for Disease Control and Prevention (CDC) and other public health authorities. Furthermore, the EEOC instructs employers to evaluate and consider various factors including, among other considerations:

  • the level of community transmission
  • vaccination data
  • information regarding variants
  • the speed and accuracy of testing
  • the types of contacts between employees and others in the workplace (e.g., whether vulnerable populations are involved)
  • the potential impact on operations if an employee enters the workplace with COVID-19

The EEOC’s revised guidance also reemphasizes that, consistent with current CDC guidelines, antibody tests are not indicative of a current COVID-19 infection and should not be used to determine whether an employee can re-enter the workplace.

Other COVID-19 Screening Still Permissible

Notwithstanding the EEOC’s new guidelines surrounding COVID-19 testing, the EEOC reiterates that employers may continue screening employees who are physically entering a worksite with regard to COVID-19 symptoms or diagnoses, but should not screen employees who are working remotely or not physically interacting with coworkers or others.

In addition, the EEOC clarifies that employers may screen job applicants for COVID-19 symptoms after making a conditional job offer, as long as it does so for all employees entering the same type of job. However, an employer may only withdraw a conditional job offer because an applicant tests positive for COVID-19, has symptoms of COVID-19, or has been recently exposed, if three conditions are met:

  1. the job requires an immediate start date;
  2. CDC guidance recommends the person not be in proximity to others; and
  3. the job requires such proximity to others, whether at the workplace or elsewhere.

According to the EEOC, employers may also screen applicants for COVID-19 during the pre-offer stage, but only if the employer screens everyone (including visitors) for symptoms of COVID-19 before entering the workplace, the applicant needs to be in the workplace as part of the application process, and the screening is limited to the same screening that everyone else undergoes.

Lastly, according to the EEOC’s guidance, employers may require employees to provide a doctor’s note clearing them to return to work after having COVID-19. Employers are reminded that they may also rely on other alternatives to determine whether it is safe for an employee to return to work (e.g., following current CDC guidance).

***

The EEOC’s updated guidance might signal a return to the pre-pandemic guidelines, standards, and enforcement of the agency. Over the last two years, the guidelines and rules changed rapidly in the face of a global health crisis, and many of the restrictions around the collection of medical information and medical testing and exams were significantly relaxed. Over the next few months, these guidelines and rules may change, and if they do, employers should ensure they are up-to-date with the guidelines and rules and that all policies and protocols, especially screening and testing protocols, are consistent with the most recent guidelines and rules.

The EPA intends to increase its review of voluntary self-disclosures of violations submitted electronically under EPA’s Audit Policy. The EPA Office of Inspector General (OIG) recently issued a report detailing the results of an evaluation of EPA’s process for screening self-reported environmental violations made through its eDisclosure system. The OIG’s report concluded that EPA currently lacks the necessary internal controls to ensure that violations disclosed through the eDisclosure system are screened for significant concerns, such as criminal conduct and potential imminent hazards.

The Audit Policy provides reduced penalties and mitigation incentives to a regulated company if the company conducts voluntary audits, promptly discloses violations discovered to the EPA, and takes timely corrective action. The company must comply with additional criteria to get the full benefit of the Audit Policy. The Audit Policy was updated in 2015 to require electronic reporting using the newly established eDisclosure portal. The eDisclosure portal receives and processes submissions under the Audit Policy into two categories:

Category 1: EPCRA violations that meet all nine of the Audit Policy’s conditions.

Category 2: Non-EPCRA violations and violations of EPCRA that do not meet the criteria for category 1.

The findings of the OIG’s report were primarily focused on Category 2. EPA previously stated that it would screen Category 2 disclosures for significant concerns. The OIG’s report calls into question EPA’s current ability to conduct such screenings effectively. For starters, EPA lacks any national guidance directly personnel on how to screen submissions or any training specific to the eDisclosure system. As a result, the OIG found that screening efforts were inconsistent across EPA regions. According to the OIG’s report, some EPA regions believed that the Office of Enforcement and Compliance Assurance (OECA) was responsible for screening, some did not have access to the eDisclosure system, and others just did not have the resources for adequate screening.

The OIG’s report recommended that OECA take several steps to more effectively screen Category 2 disclosures, including:

  1. Developing national guidance detailing a process for screening the eDisclosure submissions for significant concerns.
  2. Providing eDisclosure-specific training to EPA headquarters and EPA regions on eDisclosure.
  3. Developing performance measures for the eDisclosure system.
  4. Assessing eDisclosure’s functionality to identify and implement improvements.

The OECA already released a statement that it agreed with all of the OIG’s recommendations and proposed September 30, 2022, for completion of recommendation 2 and September 30, 2023, for the other three recommendations.

These changes will likely cause an increase in the amount and thoroughness of Category 2 disclosure screenings. As a result, going forward, companies seeking to utilize the Audit Policy and submit a Category 2 voluntary self-disclosure will be subject to closer scrutiny as to whether they qualify under the Audit Policy and more frequent follow-up inspections.