COVID-19

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The U.S. Environmental Protection Agency (EPA) has announced its decision to retain the current National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) and ozone (O3) under the Clean Air Act. However, the new Biden EPA is all but certain to reevaluate the standards and likely to reach different conclusions.

PM2.5 is a mixture of small liquid or solid particles found in the air that are less than 2.5 micrometers (μm) in aerodynamic diameter. O3 is a reactive gas that is formed through chemical reactions of nitrogen oxides and volatile organic compounds in the atmosphere. Under the CAA, EPA must ensure the ambient standards for both pollutants are established at a level “requisite to protect the public health” with “an adequate margin of safety,” and EPA must review the NAAQS every five years to determine whether the standards should be retained or revised.

In light of the potential for distribution of the vaccine, employers are revisiting their plans for return to work and the many challenges that office re-openings might bring, including the requirement that employees wear personal protective equipment (PPE), such as masks and gloves, and the disposal of such equipment. Most companies (non-health care or COVID-19 treatment facilities) generally assume that masks and gloves are simply solid waste and can go in dumpsters per Occupational Safety and Health Administration (OSHA) and Center for Disease Control (CDC) guidelines. While this designation may be appropriate (based on the state and local requirements), however, it is prudent for even non-health-care-related employers to have a plan in place to maintain a clean workplace and manage PPE disposal procedures if an employee exhibits COVID-19 symptoms. Moreover, many workplaces are contemplating the potential of offering COVID-19 testing and vaccination on-site, and employers interested in offering such services should be mindful of the potential for more stringent waste disposal requirements for used PPE. As you might expect, there are no straight-forward answers with the new phenomenon of PPE and COVID-19 as the federal Medical Waste Tracking Act of 1988 expired in 1991. Whether PPE is a medical waste will generally depend on a state’s rules and may depend on an employer’s knowledge about the potential for COVID-19 exposure.

On July 1, 2020, New Jersey’s Governor Phil Murphy signed the Permit Extension Act of 2020 (“PEA 2020”) into law. The PEA 2020 tolls certain state and local permit approvals, including approvals of soil erosion and sediment control plans granted by a local soil conservation district and waterfront development permits, during the pendency of the public health emergency caused by COVID-19. Additionally, the PEA 2020 extends the deadlines for those approvals that would have otherwise expired during the public health emergency for an additional six months beyond the end of the COVID-19 extension period. Importantly, the PEA 2020 does not impact those approvals that expired prior to March 9, 2020 (the beginning of the public health emergency) or apply to those that will expire after the public health emergency ends.

In 2020, even the hand sanitizer is potentially suspect. Retailers, distributors and corporate purchasers are now grappling with the added problem of clearing their shelves of it and stopping employees from using the Food and Drug Administration (FDA) recalled product.

Earlier this year, to combat the novel coronavirus, the FDA issued temporary guidance to streamline regulatory processes for manufacturing alcohol-based hand sanitizer (typically ethanol or isopropyl alcohol) to get product quickly to market. Many manufacturers (generally foreign manufacturers), however, then distributed toxic or defective product to U.S.-based distributors. As such, the FDA issued a recall for certain hand sanitizer products beginning in June 2020. Over the following months, it has expanded this recall, citing risks that some products pose a risk of poisoning users with methanol and wood alcohol or leaving customers exposed to COVID-19 as a result of either adulteration or ineffective ingredients.. The FDA has advised importers, consignees, distributors, retailers and others not to distribute or sell certain hand sanitizers, even if the manufacturer of the product has not recalled it, due to the dangers of methanol contamination, including death.

As businesses across the country begin to re-open, many will be hypervigilant about the safety of indoor spaces. While stay-at-home orders may be lifting, business owners and their employees may have significant trepidation about the risks of returning to their workspaces and public venues. Building owners and property management companies will be called upon to address concerns about the safety of their tenant spaces and public areas, and the adequacy of measures taken to ensure the protection of building occupants. However, while building owners and property managers must necessarily focus on addressing the concerns arising directly from potential exposure to the COVID-19 virus, they should not ignore other potentially significant concerns associated with reopening their properties. One such concern is the stagnant conditions that may develop in a building’s water system during periods of extended disuse, which can lead to an enhanced risk for the spread of the Legionella bacteria that can cause Legionnaire’s disease, creating potential health risks for tenant, worker, and other user populations.

Authors
Mitchell Guc, Associate, Pepper Hamilton
Todd Fracassi, Partner, Pepper Hamilton
Randy Brogdon, Partner, Troutman Sanders

On May 13, nine state attorneys general filed a complaint against the U.S. Environmental Protection Agency (EPA) challenging EPA’s COVID-19 enforcement discretion policy, which we discussed in previous articles here and here. The plaintiff states are New York, California, Illinois, Maryland, Michigan, Minnesota, Oregon, Vermont and Virginia.

On May 5, 2020, the Illinois Attorney General filed a complaint against a developer and its contractors responsible for demolishing the smokestack of a former coal-fired power plant in Chicago. The suit provides a good reminder that careful planning for the control of fugitive dust emissions is critical during decommissioning activities—and that state legal offices and regulators will keep their eyes on potential environmental issues at coal-fired plants until the last brick comes down.

On April 22, 2020, EPA published an interim final rule providing relief to sources that are subject to the quality assurance testing and reporting under 40 CFR Part 75. The initial summary of the rule indicates the policy applies to sources that monitor and report emissions under the Acid Rain Program, the Cross-State Air Pollution Rule (CSAPR), and/or the NOX SIP Call. However, the rule itself indicates that relief is available to any source that reports emissions to EPA under 40 CFR part 75. EPA expects the rule will provide relief for hundreds of facilities that would otherwise be required to conduct over a thousand quality assurance tests combined during the next three months in the midst of the ongoing pandemic.

Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

In the three weeks since the U.S. Environmental Protection Agency (EPA) issued its much-discussed coronavirus (COVID-19) enforcement discretion policy (Policy), governmental and environmental group opposition to the Policy has continued to intensify. This article outlines both the nature of the opposition as it currently stands, as well as some best practices for those businesses struggling to keep up with the environmental enforcement tug-of-war unfolding before their eyes.

Authors

Todd Fracassi, Pepper Hamilton
Mitchell Guc, Pepper Hamilton
Randy Brogdon, Troutman Sanders
Patrick Fanning, Troutman Sanders

The U.S. Department of Justice (DOJ) is quietly taking steps to provide financial relief during the COVID-19 pandemic. In an April 14 model letter, DOJ offered to temporarily suspend its collection of stipulated penalty payments owed under some consent decrees through at least May 31, 2020. Notably, the letter also stated that DOJ will advise as to whether the suspension will be extended beyond May 31, 2020 and that if a party simply does nothing in response to the notice, DOJ will not seek collection of the debt until after May 2020. The letter is signed by Joseph Davis, Chief of the Case Management Unit of DOJ’s Environment & Natural Resources Division (ENRD) Environmental Enforcement Section.