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Welcome to the last of our three posts with our look ahead to 2026—the environmental edition. If you follow this blog, you have probably sensed a trend: environmental regulation rarely moves in a straight line. This coming year will be no different. Below is a more detailed look at three areas we will be watching this year.

1. PFAS Reporting and Liability

Manufacturers will be spending more time thinking about PFAS in 2026. We have been talking about the Toxic Substances Control Act (TSCA) PFAS reporting rule for years, and it is expected to become final early in 2026. As we previously reported, this rule will require manufacturers to report certain information on PFAS-containing articles going back as far as 2011. The EPA proposed some important changes to the rule at the end of 2025, including exemptions for de minimis concentrations, imported articles and chemicals used in research and development. Once the TSCA rule is finalized, it will require manufacturers to report extensive information about PFAS uses, production volumes, byproducts, exposures, and disposal.

In addition to the federal reporting requirement, states are getting in on the action. If your products travel into Minnesota, Minnesota’s sweeping PFAS‑in‑products statute (Amara’s Law) will require you to report products with intentionally added PFAS. By July 1, 2026, manufacturers will be required to disclose product‑specific PFAS details, including the type and amount of the PFAS in the product as well as its purpose or function.

These federal and state reporting obligations create challenges for manufacturers to dive deep into their supply chains in an attempt to gather the required information. For sectors using PFAS indirectly—such as coatings, plastics, electronics, and molded components—the data‑gathering burden may be significant.

In addition to reporting obligations, investigation and remedial obligations related to PFAS are on the rise. The EPA plans to maintain CERCLA hazardous‑substance designations for PFOA and PFOS, signaling continued expansion of PFAS‑related cost recovery and cleanup obligations. That means manufacturers with current or historical PFAS use—or who acquired property with legacy PFAS contamination—will likely face increased risk of enforcement actions or third‑party claims.

2. Water Law Uncertainty: WOTUS and NPDES Permitting Changes

Water regulation remains a challenge for many manufacturers, and 2026 won’t offer much relief. As my colleagues have previously explained, the continued regulatory back‑and‑forth regarding the definition of Waters of the United States (WOTUS) under the Clean Water Act has left manufacturers guessing as to the activities that will trigger Clean Water Act jurisdiction. This matters because facility expansions, stormwater projects, and wetlands issues all hinge on these key jurisdictional determinations.

At the same time, both EPA and states are tightening oversight of NPDES permitting for indirect discharges. Manufacturers whose wastewater enters complex conveyance systems, such as municipal treatment systems, may face additional pretreatment, sampling, monitoring, and recordkeeping obligations as regulators try to close gaps in indirect discharge oversight. Spoiler alert—PFAS are emerging in this context, too.

3. The Patchwork of State Extended Producer Responsibility (EPR) Laws

For manufacturers selling their products into multiple states, the growing patchwork of packaging EPR laws is quickly becoming a compliance challenge. A number of states, including Colorado, California, and Minnesota, now have packaging EPR programs, each with different definitions of producer, different covered packaging materials, and different registration and reporting deadlines. And many states, including Massachusetts, New Jersey, and New York, are poised to follow.

The variability in these laws makes it difficult for manufacturers looking to develop a one-size-fits-all approach. Manufacturers should stay on top of these laws and their requirements in an attempt to develop as streamlined a strategy as possible for compliance.

In putting together our thoughts on this post, it was hard not to think about the elephant in the room (see what I did there?). The change in administration has already brought significant changes in our nation’s environmental priorities. While time will show us all of the specific ways this will play out in 2025, we are already seeing some trends and can expect others to guide manufacturers as to what the Environmental, Health, and Safety (EHS) landscape might look like over the year.

  1. Rollback of Federal Environmental Regulation and Enforcement

As my partner, Jon Schaefer, reported earlier this month, even before Lee Zeldin was confirmed as the new Environmental Protection Agency (EPA) Administrator, the EPA had temporarily frozen its lawsuits, certain communications, and some final and pending regulations. Several freezes impact per- and polyfluoroalkyl substances (PFAS) regulations. For example, the EPA instituted a 60-day delay for certain imminent Toxics Release Inventory (TRI) PFAS reporting requirements “for the purpose of reviewing any questions of fact, law, and policy that the rules may raise.” The EPA noted that it may further delay the effective date beyond 60 days. The EPA also put a stop to Clean Water Act rulemaking to develop effluent limitations for PFAS for the organic chemicals, plastics, and synthetic fibers point source category. Whether this trend will carry through to the many other rules, both adopted and contemplated, related to PFAS remains to be seen.

In the saga of the on-again, off-again Securities Exchange Commission (SEC) Climate Disclosure Rule, the SEC recently requested that the Eighth Circuit delay oral arguments in its case defending the rule. As we previously reported, this rule would require companies to report various climate-related information to the SEC. When it became final last year, it was immediately challenged, and the rule’s fate was placed in the hands of the Eighth Circuit Court of Appeals. While it was once moving forward to defend the rule, the SEC is now requesting additional time “to deliberate and determine the appropriate next steps in these cases.” This could be the first step in the ultimate demise of the rule, at least under the current administration.

We will continue to track developments at the federal level. Given the administration’s overall priorities, we expect to see further enforcement and regulation rollbacks on several EHS issues.

  1. Uptick in State Action

Many states are poised to pick up the slack in the face of decreasing federal action. With regard to climate disclosure laws, California has already passed several requiring climate-related disclosures for entities doing business in the state, with reporting requirements approaching next year. Other states are joining in, with New York and Colorado considering their own climate disclosure laws. And as many of us have already experienced, decision-making related to PFAS is dominated by state law. As the federal government steps back from regulation and enforcement, we can expect many states take up the mantle on various issues. The patchwork of state laws could create a compliance challenge for manufacturers operating in multiple locations around the country. It will be important for manufacturers to remain up-to-date on proposed and final state actions so they can be prepared for new requirements that could pop up in various jurisdictions.

  1. Citizen Suit Action

In addition to increased state activity, we expect an increase in citizen enforcement of federal environmental laws in 2025. Many federal environmental statutes have provisions allowing for citizen enforcement when the federal government fails to do so. These laws also allow citizens to pursue the government for failed enforcement and oversight. Under the first Trump administration, we saw an uptick in citizen enforcement of federal environmental laws, and we expect to see the same during Trump 2.0. These lawsuits could hit manufacturers on various topics, including enforcement related to clean water, clean air, and hazardous waste. Citizens may also target the federal government, which could ultimately cause the federal government to take action of its own, even when it was not planning to do so.

We expect 2025 to be a busy year in the EHS world. We will continue to track these updates and changes here on the blog.

EPA recently issued its long-awaited rule designating perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA). Along with the rule, EPA issued PFAS Enforcement Discretion and Settlement Policy Under CERCLA. This policy document provides the regulated community with some insight as to how EPA may roll out this rule in practice.

According to the policy document, EPA intends to focus its PFOA/PFOS CERCLA enforcement efforts on “responsible entities who significantly contributed to the release of PFAS into the environment, including parties that manufactured PFAS or used PFAS in the manufacturing process, federal facilities, and other industrial parties.” EPA does not intend to use its CERCLA authority to pursue certain public and other entities, such as:

  • Community water systems
  • Publicly owned treatment works (POTWs)
  • Publicly owned/operated municipal solid waste landfills
  • Publicly owned airports
  • Local fire departments

Based upon how PFAS are being investigated and discovered in the environment, the above entities are often on the front lines of identifying PFAS in the environment. They are also providing important public services. Because of this, EPA intends to focus its enforcement efforts elsewhere.

In considering whether to pursue other parties under CERCLA, EPA will consider a number of factors:

  • Does the entity manufacture PFAS or used PFAS as part of an industrial process?
  • Is the entity is actively involved in the use, storage, treatment, transport, or disposal of PFAS?
  • Does the entity perform a public service role?
  • Is the entity a state, local, or tribal government?

Based on the above factors, it seems clear that EPA intends to focus its PFAS CERCLA enforcement efforts on the manufacturing and industrial sectors. That enforcement activity could very well arise out of contamination discovered in water systems, POTWs, landfills, etc., but it appears EPA will focus on the manufacturing and industrial entities that may have contributed PFAS to the environment.

EPA will also seek to protect the public entities listed above in pursuing CERCLA settlements. For example, when EPA enters into a settlement with a PFAS manufacturer, it may look to secure a waiver of rights to prevent that manufacturer from seeking contribution from certain non-settling parties. EPA may also enter into favorable settlements with the public entities listed above to shield them from lawsuits from other potentially responsible parties.

EPA makes it clear that this enforcement policy applies to CERCLA only. EPA further reserves the right to change this policy as the scientific and legal landscapes evolve. That said, for now, it appears that the manufacturing and industrial communities may find themselves in the crosshairs of CERCLA enforcement.

This week’s post includes an excerpt from our co-authored article “PFAS will be increasing concern for manufacturers in year ahead,” published in the Hartford Business Journal’s Economic Forecast issue on January 8, 2024.

PFAS — perfluoroalkyl and polyfluoroalkyl substances — have been on the scene for years now, but we expect to see exponential growth in all things PFAS in 2024.

Governmental and private party PFAS investigations have significantly increased and, as they say, when you look for PFAS, you find them.

PFAS have been detected in a significant number of public drinking water systems, wastewater treatment facilities, private wells, surface water bodies, fish tissues and elsewhere, both in Connecticut and nationally.

Federal and state governments are also increasingly requiring manufacturers and distributors to report whether there are any PFAS in the products they make, use or distribute.

All of this investigation and reporting will lead to increased governmental and regulatory knowledge and awareness of the presence of PFAS in the environment and in a wide variety of products.

With this increased knowledge comes increased regulatory, scientific and legal action.

The Environmental Protection Agency (EPA) has made addressing PFAS exposure a federal enforcement priority for 2024-2027. In addition, EPA plans to list two PFAS compounds, perfluorooctanoic acid and perfluorooctanesulfonic acid, as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act.

This will significantly increase the EPA’s ability to require PFAS investigations across the country. And when PFAS are found, remediation typically must occur to minimize public exposure.

Increased knowledge of the presence and potential harms associated with PFAS has increased litigation around the country. This litigation trend will continue to grow as we become more and more aware of the ubiquity of these compounds.

This week’s post includes an excerpt from our co-authored article “PFAS will be increasing concern for manufacturers in year ahead,” published in the Hartford Business Journal’s Economic Forecast issue on January 8, 2024.

There are a lot of trends that we could identify for corporate compliance / litigation, but the one that stands out for me relates to contracts – the lifeblood for many of our clients. 

COVID-19 exposed the weaknesses in our global supply chains and in the business-to-business contracts that drive the entire system.

Manufacturers need to review their long-term agreements or standard terms and conditions if they sell “purchase order to purchase order.”

Most manufacturers are on high alert for business and/or legal terms that can significantly impact their margins, legal rights, etc.

What has changed in the past few years that will only increase in 2024? The rise in the use of contractual templates.

Companies — big and small — are looking for ways to make their contracting process more “efficient,” and thus, everyone is pulling out a template that has been approved up the chain of command.

These templates are filled with contractual clauses — some that make sense and others that do not. These templates also contain clauses that often have no relevance to the actual contractual negotiation that is going on.

Templates have made contracts longer in length — not shorter. And, because of all the extraneous language and clauses that are included to make the template effective, the negotiations are dragging on for months.

Time will tell if the manufacturing industry moves away from the templates to get deals done quicker in 2024 and beyond.

This week, we wrap up our forecast of annual trends with a focus on environmental, health, and safety issues that we expect many manufacturers may face this year.

1.  ESG Developments

Last year, we reported on the SEC’s Proposed Rule on Climate-Related Disclosures. The SEC is expected to finalize this rule in 2023, perhaps as early as March. The proposed rule is based in part on existing (but not mandatory) frameworks for climate-related disclosures, such as the recommendations of the Task Force on Climate-Related Disclosures, which some manufacturers might be familiar with – but not all. The proposed rule would require disclosures related to:

  • Governance of climate-related risks and relevant risk management processes;
  • How any climate-related risks identified by the registrant have had or are likely to have a material impact on its business and consolidated financial statements ( in the short, medium, and long term);
  • How any identified climate-related risks have affected or are likely to affect the registrant’s strategy, business model, and outlook; and
  • The impact of climate-related events and transition activities on the line items of a registrant’s consolidated financial statements.

Most notably, however, covered companies will be required to report greenhouse gas emissions metrics, both those generated by their own company and, for some, those generated from upstream and downstream activities in their value chain. If this requirement remains in the final rule, it will impose significant data gathering obligations that some companies are already grappling with despite the proposed nature of the rule. 

Meanwhile, the SEC has stepped up scrutiny of climate-related and environmental disclosures under its existing rules and guidance. The SEC has issued letters to registrants asking for more information on filings and has even filed lawsuits against registrants based on alleged ESG deficiencies. All signs point to increased activity in 2023.

As has consistently been the case, the European Union seems to be a few steps ahead of the United States in requiring ESG-related disclosures. As an example, in late 2022, the EU passed the Corporate Sustainability Reporting Directive (CSRD), which will require covered companies to report on a variety of ESG topics, such as pollution and climate change. The CSRD will apply not only to companies in the EU, but also to non-EU companies with a significant presence there (annual generation of $150 million or more). And, while companies may use foreign sustainability reporting standards as a stand-in for the CSRD standards, the reporting requirements in the SEC proposed rule will not likely suffice.

In the midst of all of these reporting obligations, government agencies and the public alike will continue to scrutinize corporate greenwashing claims. Many companies have found themselves in the crosshairs – and the courtroom – when they can’t back up their environmental or sustainability claims. Greenwashing claims are having real consequences on companies in the form of reputation, litigation, and reporting risk. And while all of these new reporting standards are aimed, at least in part, to curtail greenwashing, with ever-increasing stakeholder awareness of ESG issues, greenwashing issues are likely to remain on the minds of manufacturers for the foreseeable future.

2.  Increased OSHA Enforcement

Manufacturers can expect OSHA to increase inspections and enforcement in 2023. One noteworthy change that took place at the end of 2022 was an expansion of OSHA’s Severe Violator Enforcement Program (SVEP). Under this program, OSHA prioritizes – and publicizes – certain employers for inspections and enforcement based on criteria regarding the severity of their safety record. In late 2022, OSHA expanded the SVEP to cover even more employers. Now, an employer may find itself on the severe violators list if it meets at least one of the following criteria: 

  • A fatality or catastrophe inspection where OSHA finds at least one willful or repeated violation or issues a failure-to-abate notice if directly related to an employee death or three or more hospitalizations;
  • An inspection where OSHA finds at least two willful or repeated violations or issues failure-to-abate notice based on a high gravity serious violation; or
  • Egregious situations (e.g., extensive violation history, bad faith, intentional disregard for health and safety).

Employers that find themselves in the SVEP will be subject to follow-up inspections at the facility in question. OSHA will also conduct inspections at related worksites if it has reason to believe that there could be a broader pattern of non-compliance.

Once an employer is part of the SVEP, it will remain on the list for at least three years. However, if an employer will agree to an enhanced settlement that includes, among other things, implementation of a safety and health management system, it may be able to exit the SVEP after two years.

Expansion of the SVEP is just one way we can expect to see increased OSHA activity in 2023. Companies that find themselves outside the SVEP may also see increased inspection and more aggressive enforcement as we move through the year, and beyond.

3.  PFAS

Are you sick of hearing about per-and polyfluoroalkyl substances (PFAS) yet? I hope not. The theme for PFAS in 2023 is more everything – more science, more investigation, more regulation, more litigation. More from the federal government, the states, the courts, the community, and your counterparts in a transaction. A couple of noteworthy highlights – first, EPA proposes to designate PFAS as a national enforcement initiative for fiscal years 2024-2027. This addition signifies that there will be increased focus on holding polluters responsible for investigating and remediating PFAS contamination, as well as preventing future releases. As part of the designation, EPA would develop a policy regarding enforcement and settlement of PFAS matters under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), also known as Superfund.

Speaking of CERCLA, EPA has proposed to designate two PFAS compounds –perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS), –  as hazardous substances. 2023 is the year this rule will likely become final. This designation will have broad impacts across the regulated community. First, as CERCLA hazardous substances, the government and private parties alike will have a clear pathway towards cost recovery and other actions related to PFAS contamination. Most manufacturers know from experience that Superfund sites typically implicate a wide variety of parties, some of whom may have had a very minimal contribution to the contamination at issue. This wide net will be of particular concern for sites with PFOA and PFOS contamination, given their ubiquitous use, presence in the environment, and ability to detect at miniscule concentrations. The designation may also result in the reopening of investigations at Superfund sites where PFOA and PFOS could be an issue but has not yet been addressed.

Thank you to Emilee Mooney Scott for this post.  Emilee is a member of Robinson+Cole’s Environment, Energy + Telecommunications practice group.  She focuses her practice on environmental compliance, transactional and remediation matters, including matters related to emerging contaminants like PFAS.

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 GenX (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.

Last week, Jeff kicked off our 2022 outlook for manufacturers, covering corporate compliance and litigation. This week, I am turning to the environmental, health, and safety issues that may occupy the minds and the time of manufacturers in 2022.

1. Emerging Contaminants

We have been talking about per- and polyfluoroalkyl substances (PFAS) for so long now they hardly seem to qualify as “emerging.” But this year, EPA is expected to take a number of specific actions that will directly impact manufacturers. At the end of last year, EPA issued its PFAS Strategic Roadmap, outlining its action plan for PFAS through 2024. Notably, the Roadmap begins by classifying PFAS EPA’s approach into three directives: Research, Restrict, and Remediate.

In 2022, EPA aims to greatly expand monitoring of public drinking water supplies for PFAS. It also intends propose a rule to establish national primary drinking water regulations for two of the main PFAS compounds—PFOA and PFOS. To use an often-repeated phrase, when you look for PFAS compounds, you find them. This increased sampling, likely detection, and ultimate regulation of PFAS in public water supplies will likely lead to further legal action, as water suppliers and regulators alike look for the parties responsible for the PFAS they are almost certain to find when they start looking.

EPA is also expected to use Clean Water Act wastewater discharge permits as a way to reduce PFAS discharges. In 2022, EPA plans to restrict PFAS discharges from certain industrial categories—organic chemicals plastics, and synthetic fibers; metal finishing; and electroplating— as well as to study the potential for a number of other industries to contribute PFAS to the nation’s waterways through their discharges.

EPA has long talked about designating PFOA and PFOS (and potentially other PFAS compounds) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). 2022 may be the year. EPA has committed to proposing that designation for PFOA and PFOS in 2022, with a final rule coming in 2023. It also plans to undertake formal efforts to determine whether other PFAS compounds should share this designation. The “hazardous substances” designation will allow EPA greater authority to seek information on, and require cleanup of, PFAS, and it will also open PFAS contamination up to the wild world of Superfund litigation.

We could devote the rest of this post to the potential for PFAS-related developments in 2022, but alas, there are other things we need to keep our eye on as well. But it is important to note that EPA is planning actions to further regulate PFAS across the board—under the programs listed above as well as the Toxic Substances Control Act, Clean Air Act, and others. And this is to say nothing of proposed state actions related to PFAS, which we also expect to heat up in 2022.

Contrary to what you might think based on the content of this post so far, PFAS is not the only emerging contaminant on our radar. Another one to watch in 2022 is microplastics. Microplastics are exactly what they sound like—tiny, often microscopic particles of plastic that can either be directly released into the environment or formed as a result of breakdown of larger plastics. California has already started down the road of developing regulations for microplastics, even while the scientific community still works to determine the potential human health and environmental impacts associated with them. Notably, California is working towards developing analytical testing methods for microplastics in 2022, which may kick off a wave of studies to determine how pervasive they truly are—and what to do about it.

2. ESG Developments

While we continue to wait for more formal and consistent disclosure regulations from the U.S. Securities and Exchange Commission regarding ESG—environmental, social, and governance—factors, manufacturers are already dealing with ESG in a variety of ways. It is finding its way into corporate filings, board rooms, courtrooms, press releases, the media (traditional and social), and the minds of both investors and consumers. And it is having real consequences on the bottom line.

Many manufacturers have been making climate change-related disclosures for years, albeit under a general standard of materiality that is generally left to the interpretation of the discloser. In some cases, these disclosures have been used to tout a company’s sustainability profile, and advertising and marketing efforts typically follow suit. But as consumers and investors grow increasingly interested in—and educated about—environmental issues, these sustainability statements can sometimes have the opposite impact. Many manufacturers have been the targets of greenwashing lawsuits, with plaintiffs alleging consumer protection violations when a manufacturer’s claims about a particular product do not match up with reality. These claims have also found their way into shareholder derivative suits, as we have previously reported. We can expect to see this activity continue, and likely increase, in 2022, as consumers and investors continue to meaningfully dig in to corporate sustainability claims as they evaluate their purchases and investments.

3. Environmental Justice Guidance

In 2022, EPA is expected to issue important guidance that has the potential to advance the Biden Administration’s environmental justice agenda. The document, “Guidelines for Cumulative Risk Assessment Planning and Problem Formation,” will provide a framework to analyze cumulative risk in situations of exposure to multiple environmental hazards. The guidance, which has been in the works for years, will be particularly important in assessing the impacts on vulnerable and disadvantaged communities. The guidance will be used in a broad range of environmental programs and is expected to impact cleanup priorities and enforcement decisions.

4. Employee Safety Related to COVID-19

If you are a regular reader, you know that we spent significant time in 2021 covering the myriad OSHA developments related to COVID-19. And while the Emergency Temporary Standard (ETS) related to vaccines and testing appears to be on life support, OSHA has made it clear that it will do everything in its power to protect the nation’s workforce from COVID-19. Will that be through the ETS, another OSHA standard, or already-adopted guidance and the General Duty Clause? Only time will tell, but we can expect to see increased inspection and enforcement in 2022.

This week, we continue with our 2021 outlook series with a focus on environmental, health, and safety. This year brings a new Presidential administration, and with it will come a host of new programs, as well as some new takes on established programs. The following are a few initiatives that could impact manufacturers in 2021.

Focus on Environmental Justice

The Biden/Harris team has made it clear that environmental justice issues will be a priority across a number of platforms. The new administration is expected to focus on the disproportionate environmental impacts felt by low-income communities and communities of color by increasing data collection and communication, remediation, and enforcement. Details are contained in The Biden Plan to Secure Environmental Justice and Equitable Economic Opportunity and include:

  • Reestablishing the White House Environmental Justice Advisory Council and the White House Environmental Justice Interagency Council to develop a detailed framework to ensure that environmental justice concerns are being addressed government-wide;
  • Mandating additional data collection in frontline and fenceline communities and developing a community notification program;
  • Targeting clean energy investment in environmental justice communities; and
  • Establishing an Environmental and Climate Justice Division within the Department of Justice to, among other things, increase enforcement in environmental justice communities.

Increased OSHA Activity Related to COVID-19

Since the pandemic took hold almost a year ago, OSHA has issued a number of guidance documents related to COVID-19. It has, however, refused to adopt any specific standard related to COVID-19, and inspections and enforcement related to COVID-19 have been fairly minimal. The Biden/Harris team released a 4-Point Plan for our Essential Workers, which criticizes the Trump administration for failing to protect workers, and recommends:

  • Creation of an Emergency Temporary Standard with specific, enforceable information related to COVID-19;
  • Adoption of a permanent infectious disease standard;
  • Doubling the number of OSHA investigators; and
  • Coordination with state safety and health agencies, state and local governments, and unions to ensure frontline workers are protected.

Climate Change

Anyone who heard the Biden/Harris team on the campaign trail knows that climate change will be a primary focus of the new administration. The overall goal is a 100 percent clean energy economy and net-zero emissions by 2050. But what does that mean in practice? There will likely be a number of energy and emissions reducing legal and policy initiatives related to climate change, including:

  • Investment in clean energy, sustainable transportation, and biofuels;
  • The development of incentives for building efficiency improvements, including retrofits and clean energy generation;
  • Establishment of an “enforcement mechanism” to achieve net-zero emissions based on the principle that polluters must bear the full cost of their carbon pollution; and
  • Requiring public companies to disclose climate risks and greenhouse gas emissions in their operations and supply chains.

Increased Attention on PFAS

In 2019, the EPA rolled out its PFAS Action Plan, which we reported on at the time and updated  you (and updated you again) on the status of implementation. The Biden/Harris team has criticized the slow implementation of this Plan and has promised to take more swift action to regulate PFAS. Specific plans seem to involve many of the action items called for in the current PFAS Action Plan, such as designation of certain PFAS compounds as a hazardous substances, development of enforceable limits under the Safe Drinking Water Act, and accelerating studies and research. However, we can expect the Biden/Harris Administration to move towards these goals more quickly than the prior administration.

Welcome to 2020! As always, we at the Manufacturing Law Blog are starting the year with our annual forecasts of hot topics. We start the series with our Environmental, Health & Safety outlook.

PFAS

We highlighted per- and polyfluoroalkyl substances, or PFAS, as a hot topic in last year’s 2019 outlook post, saying, “If you haven’t yet heard of PFAS, you will.” This year, we think it is safe to say you’ve probably heard of them. PFAS are getting a lot of attention everywhere you look, state regulations, federal plans, court rooms, around the deal table, and even on the silver screen. PFAS manufacturing facilities may have been the first targets, but landfills and other potential release sites are gaining attention from regulators and plaintiffs alike. States are moving quickly to adopt regulations, or at the very least request information from parties that do have or may have had a connection to PFAS compounds.

With all of this attention, there has been a growing effort to sample water supplies to evaluate potential exposure issues. These efforts are sure to turn up additional PFAS contamination areas, particularly given the lengthy and prolific use of these compounds. As we identify more and more areas of contamination, the network of potentially responsible parties could expand beyond PFAS manufacturers to include landfill operators, property owners, and PFAS users and suppliers, among others.

EPA developed and released its PFAS Action Plan in February 2019, but the process to change federal regulations and standards is, well, slow. Congress is trying to speed up the action, with House bill H.R. 535 requiring time frames for a number of regulatory and other actions under the Comprehensive Environmental Response, Compensation, and Liability Act, Safe Drinking Water Act, and the Toxic Substances Control Act. The Senate and White House vow a fight, but in 2020, it’s safe to say everyone is getting in on the PFAS action.

OSHA Inspection Weighting  

In late 2019, OSHA developed new standards for how it prioritizes inspections. Previously, OSHA focused on the length of time an inspection would take and the number of inspections performed. Under the new Enforcement Weighting System, OSHA is prioritizing inspections based on a number of factors with a goal of targeting higher risk activities and establishments. OSHA plans to prioritize inspections in a weighted fashion in the order listed below:

Group A: Criminal and significant cases

Group B:

  • Fatalities and catastrophes
  • Chemical plan national enforcement priority and process safety management covered inspections

Group C:

  • Caught-in hazards, such as trenching, equipment operations, oil & gas
  • Electrical hazards, such as overhead power lines, electrical wiring methods
  • Fall hazards, such as scaffolds, elevated walking working surfaces
  • Struck-by hazards, such as highway work zones, landscaping, material handling

 Group D:

  • Programmed inspections following an established priority of hazards that are time insensitive and a high priority, such as:
    • Amputation
    • Combustible dust
    • Ergonomics
    • Federal agency inspections
    • Heat hazards
    • Non-permissible exposure limit overexposures
    • Workplace violence hazards
    • Confined space hazards
    • Personal sampling
    • Site-specific targeting

 Group E: all other inspections

This weighting system provides good insight into the types of hazards that might attract OSHA’s attention in 2020.

EPA Focus on Air and Water

EPA sets National Compliance Initiatives (NCIs, formerly known as National Enforcement Initiatives) for multi-year periods to focus its compliance and enforcement resources. The newly established NCIs focus on EPA’s bread and butter—air and water. For FYs 2020-2023, EPA plans to focus on reducing air emissions of hazardous air pollutants and volatile organic compounds, particularly when those emissions would contribute to non-attainment with National Ambient Air Quality Standards or would adversely affect vulnerable populations. EPA also plans to reduce significant noncompliance with the Clean Water Act permit program. EPA has identified approximately 11,000 permittees with effluent violations that are significantly noncompliant. EPA plans to cut the incidence of significant noncompliance in half by the end of FY 2022.