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.