Last week Jeff spear our 2022 outlook for manufacturers, covering corporate compliance and litigation. This week, I address the environmental, health and safety issues that may occupy the minds and time of manufacturers in 2022.
We’ve been talking about per- and polyfluoroalkyl substances (PFAS) for so long that they hardly seem to be called “emerging”. But this year, the EPA is expected to take a number of specific actions that will directly impact manufacturers. Late last year, the EPA released its PFAS Strategic Roadmap, outlining its PFAS action plan through 2024. Notably, the roadmap begins by classifying the EPA PFAS approach into three guidelines: Search, restrict and correct.
In 2022, the EPA aims to significantly expand monitoring of public drinking water supplies for PFAS. It also intends to propose a rule to establish national primary drinking water regulations for two of the major PFAS compounds – PFOA and PFOS. To use an oft-repeated phrase, when you search 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 seek out the parties responsible for the PFAS they are almost certain to find. when they start looking.
The EPA should also use Clean Water Act wastewater discharge permits as a way to reduce PFAS releases. In 2022, the EPA plans to restrict PFAS releases from certain industrial categories – organic chemical plastics and synthetic fibers; metal finishing; and electroplating – as well as to study the potential of a number of other industries to contribute PFAS to the nation’s waterways through their releases.
The 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. The EPA has committed to proposing this 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 name. The designation of “hazardous substances” will give the EPA greater authority to seek information on PFAS and require cleanup, and it will also open PFAS contamination to the wild world of Superfund litigation.
We could devote the rest of this article to the potential for PFAS-related developments in 2022, but alas, there are other things we need to keep an eye on as well. But it’s important to note that the EPA is planning actions to further regulate PFAS at all levels – through the programs listed above as well as the Toxic Substances Control Act, the Quality Act air and others. And that’s not to mention the proposed state actions related to PFAS, which we also plan to heat up in 2022.
Contrary to what you might think based on the content of this article so far, PFAS is not the only emerging contaminant on our radar. Another to watch in 2022 is microplastics. Microplastics are exactly what they sound like: tiny, often microscopic plastic particles that can either be directly released into the environment or form as a result of the breakdown of larger plastics. California has already begun developing regulations on microplastics, even as the scientific community continues to struggle to determine the potential human health and environmental impacts associated with them. Notably, California is working to develop analytical testing methods for microplastics in 2022, which could kick off a wave of studies to determine their ubiquity and what to do about it.
While we continue to await more formal and consistent disclosure regulations from the U.S. Securities and Exchange Commission regarding ESG (environmental, social and governance) factors, manufacturers are already addressing ESG of various manners. It is found in corporate records, boardrooms, courtrooms, press releases, media (traditional and social) and the minds of investors and consumers. And that has real consequences on the bottom line.
Many manufacturers have been publishing climate change information for years, but to 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 generally follow suit. But as consumers and investors become more interested in and educated about environmental issues, these sustainability claims can sometimes backfire. Many manufacturers have been the target of greenwashing lawsuits, with plaintiffs alleging consumer protection violations when a manufacturer’s claims about a particular product do not match reality. These claims have also ended up in derivative shareholder lawsuits, as we have already reported. We can expect to see this activity continue, and likely increase, in 2022 as consumers and investors continue to significantly dig into corporate sustainability claims when evaluating their purchases and investments.
Environmental Justice Guidance
In 2022, the EPA is expected to release important guidance that could advance the Biden administration’s environmental justice agenda. The document, “Guidelines for Cumulative Risk Assessment Planning and Issue Formation,” will provide a framework for analyzing 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 impacts on vulnerable and disadvantaged communities. The guidelines will be used in a wide range of environmental programs and are expected to impact cleanup priorities and enforcement decisions.
Employee safety related to COVID-19
If you’re a regular reader, you know we spent a lot of 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. of COVID-19. Will this be done through the ETS, another OSHA standard, or already adopted guidelines and the general obligation clause? Only time will tell, but we can expect to see increased inspection and enforcement in 2022.
Copyright © 2022 Robinson & Cole LLP. All rights reserved.National Law Review, Volume XII, Number 21