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Surprises Lurk in Manufacturers’ EHS Legal Forecast

Clean water, toxic substances, emerging contaminants and safety enforcement top the list.

Legal and regulatory challenges, some of them barely on manufacturers’ radar, are headed straight at those industry professionals and executives responsible for grappling with environmental, health and safety (EHS) issues at their companies.

Some of these developments were discussed recently by Megan E. Baroni an attorney specializing in EHS legal practice at the law firm of Robinson & Cole. Here is a quick rundown of her observations.

When it comes to emerging contaminants responsible for raising regulatory concern and sparking new litigation, if you haven’t heard of per- and polyfluoroalkyl substances (PFAS), you will, according to Baroni. PFAS covers a group of man-made chemicals used for decades in all kinds of products, including firefighting foam, aerospace products, building materials and outdoor apparel, among others.

When they are present, PFAS persist in the environment and in the human body, and preliminary evidence suggests that PFAS can lead to a variety of adverse health effects. Although the Environmental Protection Agency (EPA) has generated health advisories for certain PFAS compounds, these advisories are not enforceable.

Instead, a number of states have been busy developing their own regulatory standards. Some states also are requiring that manufacturers investigate for PFAS compounds at regulated sites, even if there is no evidence that PFAS compounds were used or released at the site. “And, as most people will tell you, if you test for PFAS, you usually find it,” Baroni points out.

PFAS detections are already the subject of lawsuits, and more cases are expected to be filed over the coming year. She notes that so far, the primary targets of these suits have been PFAS manufacturers, but the cast of defendants could soon expand to include manufacturers of products that contain PFAS, landfill operators and property owners, among others.

“PFAS are also becoming a hot due-diligence topic, with increased attention and investigation focused on them in corporate and real estate deals,” Baroni says. “In short, these emerging contaminants will really hit the scene in 2019.”

Defining Water & Toxic Dangers

At the end of 2018, the Trump administration proposed a rule intended to redefine “waters of the United States,” which is the term the government uses to determine the scope of the federal Clean Water Act. The scope of this act creates known impacts on a wide variety of manufacturing activities, ranging from process discharges to site development.

As expected, the proposed rule scales back what qualifies as a water of the United States. If the Trump EPA rule is finalized, Clean Water Act jurisdiction would not be extended to most roadside ditches, ephemeral streams or wetlands that do not have a surface water connection to another body of water that falls under the act.

“This definition would provide clarity for manufacturers grappling with the current reach of the Clean Water Act,” Baroni observes. “However, it will no doubt be subject to intense public comment and litigation from environmental groups that are looking to avoid any actual or perceived jurisdictional rollback.”

Toxic Substances Control Act (TSCA) reform is another EPA priority that is expected to gain importance. Baroni says that with the appointment of Alexandra Dapolito Dunn as chief of the Office of Chemical Safety and Pollution Prevention, EPA is poised to continue rolling out its draft risk evaluations for the 10 substances that it identified and prioritized as toxic and carcinogenic in July 2017.

She believes these risk evaluations will likely be closely scrutinized by both regulated industries and environmental groups for a number of reasons. These include the conditions of use evaluated by EPA, the thoroughness of the risks identified, and, potentially, the public nature of the scientific studies addressing potential risks. “Manufacturers may want to keep an eye towards the TSCA reform process in 2019 to ensure that they have adequate input into this risk evaluation process,” Baroni warns.

When it comes to the Occupational Safety and Health Administration (OSHA), that agency earlier informed Congress that it plans to conduct about 1,500 fewer investigations in Fiscal Year 2019, seeking to achieve a target total of 30,840 workplace inspections. Now that the agency has the electronic illness and injury reporting rule controversy largely behind it—although it continues to deal with litigation challenging those changes—OSHA can fully focus on its compliance and enforcement responsibilities.

While the overall number of inspections might be down, OSHA will emphasize the need for detailed, in-depth inspections in 2019, Baroni says. OSHA intends to focus its inspection efforts on the highest-risk workplaces, conducting complex inspections that will aim at creating the biggest possible safety impact. Employers will find that the agency has embraced new technology to make its thinning resources stretch even further, including the use of drones to inspect large facilities. 

OSHA also has revealed plans to balance the use of compliance assistance programs with enforcement tools which the agency says will ensure that “mission-critical field activities are given equal measure when compared to enforcement activity.”

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