I want to begin by celebrating the fifth anniversary of our Manufacturing Law Blog. We are passionate about providing you with legal updates that are relevant to your manufacturing business and are honored that you are here. With over 20,000 visits over the course of our blog’s relatively short life, we are proud of the audience we have gained. Thank you for following us; we hope to continue to produce content that keeps you coming back.
As always, we are starting the year with our thoughts and predictions on what is in store for manufacturers in 2018. First up—environmental, health, and safety.
We all know that one of President Trump’s goals is to streamline and minimize regulations. Among other things, Executive Order 13771 indicated that, for every regulation to be passed, two had to be identified for repeal. There are and will continue to be a number of examples of how the goal of reduced burden on the regulated community is playing out. But a recent action by the Occupational Safety and Health Administration (OSHA) is particularly important to manufacturers.
As we have previously reported, in 2016 OSHA enacted a regulation requiring that most employers submit injury and illness data to OSHA on an annual basis. OSHA’s intent was to compile this data and post it on its website in an effort to provide greater visibility and encourage better safety practices. Recently, however, OSHA indicated that it was considering revising or repealing this new rule, instead only requiring employers to submit a summary of work-related injuries and illnesses (OSHA form 300A). According to OSHA, because it cannot guarantee that personally identifiable information will not be made public if injury and illness data is posted on its website, it does not see value in collecting the data. However, instead of still requiring employers to submit this information, and just eliminating the website posting, OSHA appears to be eliminating the submission requirement altogether (except for the summary form 300A).
With this data, OSHA would have had a more complete picture of a company’s compliance status nationwide. We may have seen increased and enhanced enforcement with potentially higher penalties because of this transparency. Without it, OSHA enforcement is likely to continue to operate as it always has, with minimal visibility into company-wide compliance trends. While we are awaiting a formal proposed rule on this issue, this is an example of how President Trump’s policies may lessen the regulatory burden on manufacturers.
Focus on Superfund
In 2017, EPA Administrator Pruitt put the wheels in motion for Superfund reform. He convened a task force that came up with 42 recommendations for restructuring and streamlining the Superfund process. As 2018 unfolds, we can expect to see EPA carry out some specific measures to implement these recommendations.
Making good on one of the task force recommendations, at the end of 2017 EPA announced its list of priority sites—those that are overdue for cleanup and are targeted for “immediate, intense action.” This week, EPA designated four new Superfund sites and proposed 10 more. EPA noted that some of these sites involve manufacturing sources, and a number of them were also in operation within the last 15 years.
EPA’s actions to expand and speed up Superfund remediation will likely continue into 2018. In addition to increased attention on specific sites, we can also expect to see EPA push for cleanup solutions that foster site reuse and expedite cleanup. We can also expect EPA to provide flexibility and benefits to parties achieving those goals.
The term “cooperative federalism” is not new, but it is gaining traction under the current administration. As EPA strives to cut regulations, head count, and costs, it is taking a harder look at expanding the role that states can play in protecting the environment. EPA’s Strategic Plan for 2018-2022 lists cooperative federalism as a goal, specifically to “rebalance the power between Washington and the states to create tangible environmental results for the American people.”
Cooperative federalism may unfold in a number of ways, but one of EPA’s stated goals is to eliminate unnecessary or duplicative reporting burdens on the regulated community. Cooperative federalism may also result in increased information sharing and transparency between agencies and other stakeholders. EPA will look to expand its compliance assistance programs to support, but not supplant, state control. This initiative could lead to increased state scrutiny on the regulated community, as well as more varied state-by-state approaches to similar issues.
Rise of Toxic Tort Litigation
Finally, where regulation and enforcement may be lacking, parties who feel they need to right a wrong may turn more and more to the courts for a solution. As we have previously reported, several west coast municipalities currently are using toxic tort lawsuits to try to hold Monsanto liable for PCB contamination in several waterbodies not because of the company’s disposal of the chemical, but because of its manufacture. Just this week, New York City filed a lawsuit against a number of global oil companies, seeking to recover damages for the City’s efforts to protect itself and its residents against the impacts of climate change. New York City’s claims are based on nuisance and trespass theories of liability, alleging that these companies “produced, marketed, and sold massive quantities of fossil fuels . . . despite knowing that the combustion and use of fossil fuels email greenhouse gases . . ., primarily carbon dioxide . . . .”
In this litigation, the City seeks to shift the costs of protecting the City from climate change impacts back onto the companies that have done nearly all they could to create this existential threat.
As we continue to see rollback of regulations, and potentially enforcement, at the federal level, we can expect more parties to seek other means of redress. Regardless of whether all of these claims are ultimately successful, they are creating a trend that, at the very least, could result in increased litigation costs.
We will continue to monitor these and many other developments throughout 2018. Please subscribe or check back often for updates.