Last week, JeffActivatedOur 2022 outlook for manufacturers. This includes corporate compliance and litigation. This week, I will be focusing on the safety, environmental, and health issues that could occupy manufacturers’ minds in 2022.
For so long, we have been talking about perfluoroalkyl substances (PFAS) and they barely seem to qualify for emerging. However, EPA is expected this year to take a number specific actions that will directly affect manufacturers. EPA’s last year’s report was published.PFAS Strategic RoadmapThe Roadmap outlines the company’s action plan for PFAS until 2024. The Roadmap categorizes PFAS EPAs into three directives.Remediate, Restrict, and Research.
EPA plans to significantly expand monitoring of public drinking waters for PFAS in 2022. It will also propose a rule that establishes national primary drinking water regulations for PFOA (PFOS), two of the major PFAS compounds. To use an old saying, PFAS compounds are found when you look for them. This will likely result in more legal action as water regulators and water suppliers alike seek out the people responsible for the PFAS compounds they almost always find.
EPA will also use Clean Water Act wastewater discharge permits to reduce PFAS emissions. EPA intends to limit PFAS emissions from certain industrial categories (organic chemicals, plastics, synthetic fibers, metal finishing; and electroplating) in 2022. The agency also plans to study the potential contribution of other industries to PFAS to the nation’s waterways through their discharges.
EPA has long advocated for PFOA and PFOS to be classified as hazardous substances under Comprehensive Environmental Response, Compensation and Liability Act. 2022 may be the year. EPA has promised to propose a PFOA and PFOS designation in 2022. The final rule will be issued in 2023. It will also be pursuing formal efforts to determine if other PFAS compounds should also be given this designation. The hazardous substances designation will give EPA greater authority to search for information on PFAS compounds and require their cleanup. This designation will also allow PFAS contamination to be exposed to the wild world Superfund litigation.
We could spend the rest of this article on the potential PFAS-related developments for 2022, but alas there are other things we must keep an eye on. It is important that you note that EPA is currently planning to regulate PFAS throughout the board under the ToxicSubstances Control Act, Clean Air Act and others. This is not to mention the proposed state actions in relation to PFAS which we expect to heat up by 2022.
Contrary to what you might believe based on the content, PFAS does not represent the only emerging contaminant. Microplastics will be another contaminant to watch in 2022. Microplastics are tiny, often microscopic pieces of plastic that can be released into the environment directly or created by the breakdown of larger plastics. California has already taken steps to establish regulations for microplastics. The scientific community continues to investigate the potential health and environmental effects of these plastics. California is working towards the development of analytical testing methods to microplastics in 2022. This may launch a wave study to determine how widespread they are and what to do to address it.
While we wait for more consistent disclosure regulations from U.S. Securities and Exchange Commission on ESGenvironmental and social, and governancefactors, manufacturers already deal with ESG in a variety. It is making its way into corporate filings and board rooms, courtrooms, courtrooms, press release, and the minds of investors and consumers. It is having real implications on the bottom line.
Many manufacturers have been making climate change disclosures for years. However, they generally use a general standard that is left to the discretion of the discloser. These disclosures can be used to promote a company’s sustainability profile. Advertising and marketing efforts often follow this example. However, sustainability statements can sometimes have a negative impact on investors and consumers as they become more educated about environmental issues. Greenwashing lawsuits have been filed against many manufacturers. Plaintiffs claim that the claims made by a manufacturer about a particular product are not true to reality. As we previously reported, these claims have also made their way into shareholder derivative suits. This activity is expected to continue and likely increase in 2022 as investors and consumers continue to dig into corporate sustainability claims when they evaluate their investments and purchases.
Environmental Justice Guidance
EPA is expected in 2022 to issue important guidance which could advance the Biden Administration’s environmental justice agenda. Guidelines for Cumulative Hazard Assessment Planning and Problem Formation will provide a framework for analyzing cumulative risk in situations where multiple environmental hazards are present. This guidance, which has been in development for years, is especially important in assessing the impact on vulnerable and disadvantaged populations. It will be used in a wide range of environmental programs, and is expected to have an impact on cleanup priorities and enforcement decisions.
COVID-19 and Employee Safety
Regular readers will know that we spent considerable time in 2021 covering OSHA developments related COVID-19. OSHA has made clear that it will do everything it can to protect the nation’s workforce from COVID-19, even though the Emergency Temporary Standard (ETS), which relates to vaccines and testing, appears to be on life support. Will it be through the ETS or another OSHA standard? Or guidance that has been adopted and the General Duty Clause. We will only know the outcome of this debate in time, but we can expect increased enforcement and inspection in 2022.
Copyright 2022 Robinson & Cole LLP. All rights reserved.National Law Review Volume XII, Number 21,