By Andrew H. PerellisJeryl L. OlsonPatrick D. Joyce, and Craig B. Simonsen

Image from EPA.gov

Seyfarth Synopsis: The U.S. Centers for Disease Control and Prevention (CDC) and the U.S. Environmental Protection Agency (EPA) jointly developed and released guidance that is generally intended for everybody, whether a business, a school, a nursing facility, or to ensure the cleanliness and safety of a private home. The guidance is part of the larger White House plan and focuses on cleaning and disinfecting public spaces, workplaces, businesses, schools, and homes.

The full guidance and infographic consist of the Guidance for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools, and Homes (PDF) and the Cleaning and Disinfecting Decision Tool.

The guidance provides a general framework for cleaning and disinfection practices, advising users to “Develop Your Plan, Implement Your Plan, and Maintain and Revise Your Plan.” Specific guidance includes the following:

  1. Normal routine cleaning with soap and water will decrease how much of the virus is on surfaces and objects, which reduces the risk of exposure and infection.
  2. Disinfection using EPA-approved disinfectants against COVID-19 according to their labels can also help reduce the risk of exposure and infection. Frequent disinfection of surfaces and objects touched regularly by multiple people is important.
  3. When EPA-approved disinfectants are not available, alternative disinfectants can be used (for example, 1/3 cup of bleach added to 1 gallon of water, or 70% alcohol solutions). Do not mix bleach or other cleaning and disinfection products together–this can cause fumes that may be very dangerous to breathe in. Keep all disinfectants out of the reach of children and store disinfectants according to their labels.
  4. Always wear gloves appropriate for the chemicals being used when you are cleaning and disinfecting. Additional personal protective equipment (PPE) may be needed based on the setting and product. For more information, read the product’s label and see CDC’s website on Cleaning and Disinfection for Community Facilities.
  5. Practice social distancing, wear facial coverings, and follow proper infection prevention hygiene, such as washing your hands frequently with soap and water and using alcohol-based (at least 60% alcohol) hand sanitizer when soap and water are not available.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.

By James L. CurtisPatrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The U.S. Occupational Safety and Health Administration (OSHA) has issued an alert with safety tips for the restaurant and food and beverage industries to protect their workers from coronavirus exposure while they provide curbside pickup and takeout service to customers. The safety tips provide precautions to reduce the risk of employee exposure to the coronavirus.

The restaurant and food and beverage industries have, like many others, been significantly impacted by COVID-19 in several states, forcing many restaurant owners to scale back operations or shutter entirely. OSHA and the U.S. Centers for Disease Control and Prevention (CDC) have found that close and prolonged contact between employees on the job and during transportation to and from the worksite may be increasing workers’ risk for exposure to the virus.

OSHA recommends restaurants and other food and beverage businesses providing takeout or curbside service implement the following protective measures:

  • Encourage workers to stay home if they are sick.
  • Reserve parking spaces near the front door for curbside pickup only;
  • Avoid direct hand-off of food or beverages when possible;
  • Display a door or sidewalk sign with the services available (e.g., take-out, curbside), instructions for pickup, and hours of operation;
  • Practice social distancing by maintaining 6 feet between co-workers and customers. Mark 6-foot distances with floor tape in pickup lines, encourage customers to pay ahead of time by phone or online, temporarily move workstations to create more distance and install plexiglass partitions, if feasible.
  • Routinely clean and disinfect surfaces and equipment with Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus.
  • Train and regularly remind workers in proper hygiene practices and the use of workplace controls.
  • Allow or, where mandatory, require workers to wear masks over their nose and mouth to prevent them from spreading the virus
  • Provide a place to wash hands and alcohol-based hand rubs containing at least 60 percent alcohol.
  • Encourage workers to report any safety and health concerns.

It is also important to note that many state and local jurisdictions have put emergency orders in place that have require more stringent infection control measures than those recommended by OSHA and the CDC for essential employees on issues such as the use of cloth face coverings by employees and/or the public, social distancing, and pre-shift employee health screening.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. CurtisMark A. Lies, IIAdam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Image from CDC.

Seyfarth Synopsis: Last week, the President issued an Executive Order under the Defense Production Act of 1950 to protect the continued operation of the nation’s meat and poultry processors during the current COVID-19 emergency consistent with OSHA’s and the CDC’s joint guidance. OSHA will use discretion in enforcing the joint guidance and does not anticipate citing employers adhering to the guidance.

COVID-19 outbreaks at many of the nation’s meat and poultry processing facilities have led to reduction in production capacity and, in some cases, complete closures of facilities. This has impacted the nation’s supply of meat and poultry, causing shortages and increased prices.

In response to the impact on the nation’s food supply chain, on April 28, 2020, President Trump issued an executive order under the Defense Production Act of 1950 (“the Act”) delegating authority to the U.S. Secretary of Agriculture to “take all appropriate action . . . to ensure that meat and poultry processors continue operations consistent with the guidance for their operations jointly issued by the CDC and OSHA.” The President also delegated authority to identify “additional specific food supply chain resources” requiring protection under the Act.

We previously blogged on the interim guidance provided by OSHA and the CDC to protect the nation’s meat and poultry industry employees. OSHA and the CDC found that close and prolonged contact between employees on processing lines, and sharing transportation to and from facilities, could be increasing workers’ risk for exposure to the virus. Please visit our previous blog for more information about the steps and controls recommended by OSHA and CDC to limit meat and poultry workers’ risk for exposure to the virus.

Following the announcement of the interim guidance, however, the Department of Labor issued a second statement from Solicitor of Labor Kate O’Scannlain and Loren Sweatt explaining that OSHA will consider good faith attempts to follow the joint guidance in the event of an investigation by the agency and that the agency “does not anticipate citing employers that adhere to the Joint Meat Processing Guidance.“ The statement also explains that “employers should conduct worksite assessments to identify COVID-19 risks and prevention strategies and then implement them. It is important that employers seek to adhere to this Guidance. To the extent employers determine that certain measures are not feasible in the context of specific plants and circumstances, they are encouraged to document why that is the case.”

Employers in the meat and poultry production industries should continue to adhere as best as possible to the joint OSHA/CDC joint guidance. However, if unable to and the specific reasons are well documented, OSHA may be more forgiving in the event of an investigation.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. CurtisMark A. Lies, IIAdam R. Young, Matthew A. Sloan, and Craig B. Simonsen

Image from CDC.gov

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) and the Centers for Disease Control and Prevention (CDC) have jointly released coronavirus-related interim guidance for meatpacking and meat processing workers and employers. The interim guidance provides policies and precautions to reduce the risk of exposure to the coronavirus.

The meat and poultry industry has been significantly impacted by COVID-19 in several states, forcing some facilities to scale back operations or shutter entirely. OSHA and the CDC have found that  close and prolonged contact between employees on processing lines and sharing transportation to and from facilities, might be increasing workers’ risk for exposure to the virus.

In the April 26, 2020 joint announcement of the interim guidance, Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt stated that “as essential workers, those in the meatpacking and processing industries need to be protected from coronavirus for their own safety and health.” Moreover, “OSHA’s newest guidance document outlines steps employers can take to provide a safe and healthy workplace for workers in the meatpacking and processing industries.”

The interim guidance includes these recommendations:

  • Implementing appropriate engineering controls, such as modifying the alignment of workstations, including along processing lines, if feasible, so that workers are at least six feet apart in all directions;
  • Implementing administrative controls, such as encouraging workers to avoid carpooling to and from work, if possible, and staggering break times or providing temporary break areas and restrooms to avoid groups of workers during breaks
  • Cleaning shared meatpacking and processing tools, at least as often as workers change workstations or move to a new set of tools;
  • Screening employees for the coronavirus before they enter work facilities;
  • Managing workers who are showing symptoms of the coronavirus;
  • Using appropriate personal protective equipment; and
  • Practicing social distancing at the workplace.

It is also important to note that several state and local emergency orders have authorized more stringent requirements and recommendations than those of OSHA and the CDC for essential employees on issues like the use of cloth face coverings, social distancing, and pre-shift employee health screening.

It is also well recognized that OSHA has no regulations on response to COVID-19 and that in compliance with the General Duty Clause (GDC), the employer has the right and obligation to determine and implement sufficient and “effective” means and methods to mitigate or reduce employee exposure to this recognized hazard. In addition, the industry is regulated by the USDA, requiring employers to implement safety and health regulations that address many of these same issues.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Mark L. Johnson, Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: After a Sangamon County Circuit Court temporarily blocked the Illinois Workers’ Compensation Commission’s (IWCC) emergency rule that created a rebuttable presumption that injured employees contracted COVID-19 at work, the IWCC repealed the emergency rules.

Infectious diseases transmitted in the community typically are not compensable through the Illinois workers’ compensation system, unless the claimant can prove that the disease arose out of and in the course of employment. On April 16, 2020, the Illinois Worker’s Compensation Commission issued an emergency rule providing that any COVID-19 infection incurred by a “First Responder or Front-Line Worker” would be “rebuttably presumed” to be “causally connected to the hazards or exposures of the petitioner’s COVID-19 First Responder or Front-Line Worker employment.”  Affected employees included “police, fire personnel, emergency medical technicians, or paramedics and all individuals employed and considered as first responders, health care providers engaged in patient care, corrections officers, and the crucial personnel” defined in Governor Pritzker’s Executive Order of March 20, 2020. “Crucial personnel” include “Healthcare and Public Health Operations,” “Human Services Operations,”  “Essential Infrastructure,” “Essential Government” and “Essential Businesses” — effectively included all employees currently unaffected by the stay-home order.

The Chicagoland Associated General Contractors (AGC), the Illinois Manufacturers’ Association (IMA), and the Illinois Retail Merchants’ Association (IRMA) filed separate lawsuits to block the emergency rule on both substantive and procedural grounds. In their Verified Complaint for Injunctive and Other Relief, the IMA and IRMA objected to the Workers’ Compensation Commission “usurping authority vested solely with the Illinois Legislature and unlawfully implementing its recent emergency amendments” to the Illinois Workers’ Compensation Act (IWCA). The Associations argued that the “sweeping substantive legal reform granting new rights to employees and infringing on the protectable interests of employers (including Plaintiffs’ employer members) by declaring COVID-19 to be a prima facie Workplace Occupational Disease under the IWCA and the Workers’ Occupational Disease Act.”  Because it would be almost impossible to identify the precise source of any individual COVID-19 infection, the Complaint further contended that the Defendants’ brazen usurpation of authority created a “virtually irrefutable rebuttable presumption under the IWCA that COVID-19 was in fact contracted in the workplace.”

The Sangamon County Circuit Court issued a temporary restraining order (TRO) on Friday, April 24, 2020.  In the meantime, the Worker’s Compensation Commission held an emergency board meeting today, on April 27, 2020, and withdrew the emergency rules. The Commission cited only the “costly litigation” as the reason for the withdrawal. With this, the Commission would return the rules to the “status quo” before the emergency rules went into effect.

Employees with COVID-19 illnesses also may seek to file civil tort lawsuits and avoid the exclusive remedy provisions of the worker’s compensation laws, alleging intentional conduct by the employer to injure the employee. Employers can rebut those tort claims with a comprehensive COVID-19 plan that follows CDC and Illinois Department of Public Health guidance. Protocols and procedures should address employee training, social distancing, employee screening, engineering controls, administrative controls, personal protective equipment, and others as appropriate. In addition, the employer could argue that similarly situated employees have not become infected at the workplace and that the employees’ infection arose from a social contact outside the workplace. Finally, there is no medical evidence to prove that the infection occurred at the workplace.

For more information regarding COVID-19 or any workplace safety or employment topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental, Employment, or Litigation Teams.

By Andrew H. PerellisJeryl L. Olson, and Patrick D. Joyce

Seyfarth Synopsis: Rather than providing clarity, the Supreme Court introduced substantial uncertainty into the NPDES permitting process involving situations where a point source discharge first enters groundwater and then migrates some distance – short or long – before discharging into a “navigable water” that is subject to the Clean Water Act.

In a split decision on April 23, 2020, the Supreme Court issued an opinion providing environmental attorneys with fodder to generate substantial, future legal fees litigating whether industrial discharges that travel through groundwater before discharging into the ocean, a major river, its tributaries, or other “navigable water,” require a point source discharge permit under the Clean Water Act, known as an NPDES permit (NPDES being the acronym for National Pollutant Discharge Elimination System). Maui v. Hawaii Wildlife Fund et al., case number 18-260. Under a new test devised by the SCOTUS majority, NPDES permits are required not only when there is a discharge directly to a navigable water, but also when there is the “functional equivalent” of a direct discharge. Justice Breyer delivered the opinion of the Court, joined by the three other more liberal justices (Justices Ginsburg, Sotomayer and Kagan) as well as Chief Justice Roberts and Justice Kavanaugh.

The SCOTUS majority provided little guidance on what qualifies as a “functional equivalent.” It provided examples on either extreme, but for those future cases that fall into the middle, they will need to be decided on a case-by-case basis. “Where a pipe ends a few feet from navigable waters and the pipe emits pollutants that travel those few feet through groundwater (or over the beach), the permitting requirement clearly applies.” On the other extreme, a pipe ending 50 miles from navigable waters and discharging pollutants that travelled through groundwater for “many years” “likely” requires no permit. “Time and distance” are important but not exclusive considerations.

The need for case-by-case determination gave the SCOTUS majority no cause for concern, as lower courts can adjudicate and refine the boundaries of the new test, and EPA can do so by the administrative process. For those unlucky regulated to have guessed wrong about the need for a permit, the SCOTUS majority offered this solace: “We expect that district judges will exercise their discretion mindful, as we are, of the complexities inherent to the context of indirect discharges through groundwater, so as to calibrate the Act’s penalties when, for example, a party could reasonably have thought that a permit was not required.”

In dissent, Justice Alito observed the real risk presented by litigating the “middle instances,” stating, “the consequences to landowners even for inadvertent violations can be crushing,” particularly when faced with a 5-year statute of limitations and $54,833 in fines per day (or more than $20 million per year). And (as we environmental litigators know only all too well) Justice Alito continued, stating, “the availability of citizen suits only exacerbates the danger to ordinary landowners. Even when the EPA and the relevant state agency conclude that a permit is not needed, there is always the possibility that a citizen suit will result in a very costly judgment.”

The Clean Water Act forbids the “addition” of any pollutant from a “point source” to “navigable waters” without the required NPDES permit. A “point source” is defined as “any discernible, confined and discrete conveyance . . . from which pollutants are or may be discharged” including, e.g., any “pipe, ditch, channel, tunnel, conduit [or] well…”

In the underlying decision below, the Ninth Circuit ruled that a discharge “from” a point source that first travels through a non-point source medium – such as groundwater – before discharging to a navigable water requires an NPDES permit if the discharged pollutants are “fairly traceable” to the point source. The Solicitor General, on behalf of the United States, urged the Supreme Court to reject this approach, arguing that NPDES permits apply only if the point source discharges “directly” into a navigable water. Indeed, U.S. EPA had previously issued an Interpretative Statement to that effect, concluding: “the best, if not the only, reading” of the statutory provisions is that “all releases of pollutants to groundwater” are excluded from the scope of the permitting program, “even where pollutants are conveyed to jurisdictional surface waters via groundwater.” 84 Fed. Reg. 16810, 16811 (4/23/2019).

The majority decision rejected EPA’s interpretation as too narrow. But it equally rejected the “fairly traceable” test as being too broad. The Ninth Circuit test, according to the SCOTUS majority, would allow EPA to assert permitting authority over the release of pollutants that reach navigable waters from great distances away and/or many years after their release.

The decision is interesting as well for how the Justices address, or fail to address, the notion of judicial deference to EPA’s interpretation of the statute. Those practitioners watching SCOTUS for indications of whether so-called “Chevron Deference” [Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984)] will survive or be modified in future court rulings should give Maui v. Hawaii Wildlife Fund a close read.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.

By James L. CurtisBrent I. ClarkMark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has issued an alert listing safety tips (guidance) employers can follow to help protect construction workers from exposure to the coronavirus.

Measures that can help protect employees working in construction include:

  • Encouraging workers to stay home if they are sick;
  • Allowing workers to wear masks over their nose and mouth to prevent them from spreading the virus;
  • Continue to use other normal control measures, including personal protective equipment (PPE), necessary to protect workers from other job hazards associated with construction activities;
  • Advising workers to avoid physical contact with others and directing employees/contractors/visitors to increase personal space to at least six feet, where possible. Where work trailers are used, all workers should maintain social distancing while inside the trailers;
  • Training workers how to properly put on, use/wear, and take off protective clothing and equipment;
  • Encouraging respiratory etiquette, including covering coughs and sneezes;
  • Promoting personal hygiene. If workers do not have immediate access to soap and water for handwashing, provide alcohol-based hand rubs containing at least 60 percent alcohol;
  • Using Environmental Protection Agency-approved cleaning chemicals from List N or that have label claims against the coronavirus;
  • To the extent tools or equipment must be shared, providing and instructing workers to use alcohol based wipes to clean tools before and after use. When cleaning tools and equipment, workers should consult manufacturer recommendations for proper cleaning techniques and restrictions;
  • Keeping in-person meetings (including toolbox talks and safety meetings) as short as possible, limiting the number of workers in attendance, and use social distancing practices;
  • Cleaning and disinfecting portable jobsite toilets regularly. Hand sanitizer dispensers should be filled regularly. Frequently-touched items (i.e., door pulls and toilet seats) should be disinfected;
  • Using Environmental Protection Agency-approved cleaning chemicals from List Nor that have label claims against the coronavirus; and
  • Encouraging workers to report any safety and health concerns.

OSHA routinely applies its Multi-Employer Worksite Doctrine to construction sites, inspecting and issuing citations to many indirect employers following a discrete accident or observed violation. A general contractor could be cited for a subcontractor’s failure to comply with the OSH Act’s General Duty Clause and abide by CDC and OSHA guidance for protecting employees from COVID-19. Accordingly, employers would be wise to review OSHA’s construction COVID-19 guidance and to ensure that other parties at a worksite do the same.

Considering OSHA’s aggressive enforcement of construction training regulations against many types of employers, it is somewhat surprising that OSHA would encourage employers to keep safety meetings and training as short as possible. This recommendation is obviously driven by current pandemic and outbreak conditions.

Also, OSHA’s guidance acknowledges that the six foot social distancing is not an absolute that must be observed at all times, but rather is to be followed “where possible.” Six foot social distancing is not always required or appropriate and if work processes cannot be modified to permit six foot distancing, employers should develop clear procedures outlining the precautions and conditions that must be followed to minimize risk.

In addition, the manufacturing industry Guidance encouraged employers not to share tools and equipment, but the construction guidance acknowledges that tools will be shared and must be cleaned consistent with manufacturer’s recommendations. We question whether it would be practical for employers to find and review manufacturer’s recommendations for sanitizing the many tools at the construction workplace.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Andrew H. PerellisRebecca A. Davis, and Craig B. Simonsen

Seyfarth Synopsis: The Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) published their final rule this week, finally replacing the 2015 rule that “impermissibly expanded the definition of ‘waters of the United States’ (WOTUS)” under the Clean Water Act.  85 Fed. Reg. 22250 (Apr. 21, 2020).

The WOTUS rulemaking has been fraught with controversy and has generated well over 1-million public comments in the Agency record.

We have previously blogged on the WOTUS rulemaking. See Ongoing Saga — EPA & U.S. Army Repeal 2015 Rule Defining “Waters of the United States”EPA and Corps of Engineers Propose New “Waters of the United States” DefinitionEPA and Corps Add Years to “Effective” Applicability Date of WOTUS RuleExecutive Order on Restoring the Rule of Law … by Reviewing the “Waters of the United States” Rule, EPA and Army Corps of Engineers Propose to Rescind Obama Era Rule Redefining “Waters of the United States”EPA Publishes Final Rule Expanding Definition of “Waters of the United States” Under the Clean Water ActProposed Rule on Definition of “Waters of the United States” Under the Clean Water Act, and New Definition of “Waters of the United States”?

In the notice concerning the new rule, U.S. Senate Majority Leader Mitch McConnell (KY) said: “I applaud President Donald Trump,  Administrator Wheeler, and Assistant Secretary R.D. James for standing up for middle class families in Kentucky. Replacing the Obama EPA’s WOTUS rule with one that protects our waters while also being more workable is a win for farmers and small businesses.” The EPA Administrator and Assistant Secretary of the Army for Civil Works have provided a “new, clear definition for ‘waters of the United States’.” U.S. Senator Mike Crapo (ID) noted that with this the new rule “EPA will rebalance the relationship between the federal government and state and local on-the-ground experts for effective and environmentally-sound water quality management policies… [it] has brought regulatory certainty to Idaho farmers, ranchers and businesses who have been impacted by the old WOTUS definition.”

The final rule takes effect on June 22, 2020.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety & Environmental Team.

By Andrew H. PerellisJeryl L. Olson, and Patrick D. Joyce

Seyfarth Synopsis: Consider this hypothetical. Acme Company’s historic operations has contaminated its property and those of its adjacent neighbors. Acme is undertaking a CERCLA remedy under the oversight of U.S. EPA which the neighbors find inadequate, so the neighbors join together and sue in state court using common law theories of nuisance, trespass, negligence and strict liability. The neighbors seek to have their property restored to a level beyond what EPA’s cleanup plan requires. Does CERCLA foreclose – or preempt ­– this type of state court claim? Would your answer be different if the state court action sought only damages for injury other than the cost of restoration, such as diminution in value?

In a closely watched case, Atlantic Richfield Co. v. Christian, No. 17–1498, the Supreme Court ruled April 20, 2020, that state court claims seeking restoration where EPA is engaged in or overseeing a CERCLA remediation cannot proceed except as allowed by Section 122(e)(6) of that statute. This little known and rarely cited provision of CERCLA states that once a Remedial Investigation/Feasibility Study has commended, no “potentially responsible party” may “undertake remedial action” at a site without EPA approval. To invoke this provision, the Supreme Court majority determined that adjacent landowners whose property were contaminated were themselves “potentially responsible parties.” As such, where neighbors seek to impose or fund a remedy beyond that which EPA consents, their state court claim must fail. However, if the damages sought in state court were not anchored to actual restoration, then EPA approval is not needed, and the claim can proceed.

Underlying this controversy is the nature of the common law action that can be maintained under Montana law for property damage. If the damage is “permanent” and not abatable, then the landowner’s relief is limited to “diminution in value.” However, if there is damage to a private residence and the damage is temporary and abatable, the plaintiff may seek restoration damages, even if such exceeds the diminution in value. However, to proceed with such a claim, injured party must “establish that the award actually will be used for restoration.” The plaintiffs in Atlantic Richfield claimed that restoration was possible, and proposed having Atlantic Richfield establish an approximate $50 million trust fund, that then would be used for performing remediation beyond that which EPA had contemplated implementing under its CERCLA authority.

The practical import of the ruling by the Supreme Court will be to alter how neighbors impacted by contaminated sites undergoing CERCLA remediation frame the common law relief being sought. Neighbors remain free to pursue state law for compensatory damages, including loss of use and enjoyment of property, diminution of value, incidental and consequential damages, and annoyance and discomfort. In fact, neighboring landowners’ own remediation beyond that being performed under CERCLA can be pursued “so long as the landowners first obtain EPA approval for the remedial work they seek to carry out.”

Justice Roberts delivered the opinion. All justices joined in the portion of the opinion concluding that the decision of the Montana State Court was reviewable. Justices Gorsuch and Thomas filed an opinion concurring in part and dissenting in part. Those two justices would have allowed the state court claim to proceed, finding that CERCLA would not foreclose a state action seeking a more stringent remedy that what EPA has proposed if allowed under state law.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety & Environmental Team.

By Brent I. ClarkBenjamin D. BriggsJames L. CurtisIlana R. MoradyPatrick D. JoyceAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Occupational Safety and Health Administration (OSHA) has issued Interim Guidance to advise compliance safety and health officers (CSHOs) to evaluate an employer’s good faith efforts to comply with certain safety and health standards during the coronavirus pandemic (COVID-19).

We previously blogged about OSHA’s Interim Enforcement Response Plan for COVID-19 which was intended to provide instructions and guidance to Area Offices and CSHOs for handling COVID-19-related complaints, referrals, and severe illness reports.

Now, new Interim Guidance acknowledges that COVID-19 infection control practices may limit the availability of employees, consultants, or contractors who would normally provide training, auditing, equipment inspections, testing, and other essential safety and industrial hygiene services for employers. The Guidance also notes that employee participation in safety training may be precluded by business closures and other restrictions.

Under the new temporary Interim Guidance, during an inspection, CSHOs should “assess an employer’s efforts to comply with standards that require annual or recurring audits, reviews, training or assessments.” Examples of situations where enforcement discretion should be considered include annual audiograms, annual Process Safety Management requirements, HAZWOPER operator training, respirator fit testing and training, crane operator certification, and medical evaluations.

CSHO’s are directed to evaluate if the employer:

  • Explored all options to comply with applicable standards (e.g., use of virtual training or remote communication strategies);
  • Implemented interim alternative protections, such as engineering or administrative controls; and
  • Rescheduled required annual activity as soon as possible.

For employers that were unable to comply with OSHA requirements because local authorities required the workplace to close, a demonstration of good faith should be shown to attempt to meet applicable requirements as soon as possible following the re-opening of the workplace. “OSHA will take employers’ attempts to comply in good faith into strong consideration when determining whether it cites a violation.”

The Interim Guidance takes effect immediately, and remains in effect until further notice.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.