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Thomas Brugato

Thomas Brugato is a partner in the firm’s Washington, DC office. His practice focuses on environmental matters, as well as civil and administrative litigation. He has experience advising clients on a wide variety of environmental issues, including under the Clean Air Act, Clean Water Act, RCRA, CERCLA, EPCRA, TSCA, FIFRA, the Endangered Species Act, the Occupational Safety and Health Act, and EPA’s Renewable Fuel Standard program.

Thomas has extensive experience in representing companies on FIFRA matters relating to a wide range of products—such as antimicrobials, devices, treated articles, and traditional pesticides—including in EPA enforcement actions. He also has particular expertise in advising companies on a wide range of Administrative Procedure Act (APA) issues, including in litigation involving agencies in federal court. Finally, Thomas has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.

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On January 8, 2025, the Consumer Product Safety Commission (“CPSC”) published in the Federal Register a Final Rule that significantly changes the requirements for filing certificates of compliance for imported products under the Consumer Product Safety Act (“CPSA”). The publication of the Final Rule followed the CPSC’s vote to approve the Final Rule on December 18, 2024.

The Final Rule is intended to provide the CPSC and Customs and Border Protection (“CBP”) with significantly more information about imported products, which will likely enhance enforcement against noncompliant products. Companies should take proactive measures to ensure that all imported products comply with the CPSA. They should also prepare for increased scrutiny of products upon import, which may result in delays and potential seizures of products, and ensure that they have processes in place for complying with all aspects of the Final Rule.

The Final Rule makes two major changes to existing CPSC requirements for filing certificates of compliance, which will take effect on July 8, 2026 (except that for products entering from a foreign trade zone for consumption or warehousing, the rule will take effect on January 8, 2027).

First, the Final Rule requires that for all imported products subject to a mandatory safety standard under the CPSA, importers must electronically file (“eFile”) the requisite certificate of compliance at the time of entry with Customs and Border Protection (“CBP”), which will then share the certificate with CPSC. Notably, products claiming a de minimis duty exemption under 19 U.S.C. § 1321 (“Section 321”)—i.e., products valued at less than $800—are also subject to this eFiling requirement. By requiring eFiling of certificates of compliance, including for de minimis products, the Final Rule is intended to improve the CPSC and CBP’s ability to collect data on imported products and bolster their monitoring and enforcement capabilities.

Second, the Final Rule newly defines the term “importer” in the CPSC regulations to be synonymous with the importer of record (“IOR”). This change places the responsibility for filing certificates of compliance for most imported products on the IOR. However, if the IOR is a customs broker, the broker is responsible for filing the certificate but can designate the “owner, purchaser, or consignee” as legally responsible for complying with the CPSC’s testing and certification requirements, including for the accuracy and validity of the data submitted on the certificate.

For mail and de minimis shipments, which do not have an IOR, the Final Rule clarifies that the “importer” can be an owner, purchaser, consignee, or authorized customs broker. Similar to products that do not fall under the de minimis exemption, the customs broker may file the certificate for a de minimis shipment but identify the owner, purchaser, or consignee as the party responsible for compliance. Continue Reading CPSC Revises Requirements for Certificates of Compliance

On December 12, 2024, the U.S. Department of Transportation’s National Highway Traffic Safety Administration (“NHTSA”) announced the publication of a final rule formalizing its whistleblower program. The Final Rule was officially published in the Federal Register on December 17, fulfilling an obligation established by Congress in 2015 under the Motor Vehicle Safety Whistleblower Act (“MVSWA”). 

The program provides for awards to current and former industry employees and contractors who report “original information” that leads to a successful resolution in which the federal government collects sanctions from automotive companies exceeding $1 million. Whistleblower awards can range from 10% to 30% of the collected sanctions. See 49 U.S.C. § 30172. 

Whistleblower awards are limited to recoveries for certain types of monetary sanctions. Notably, the relevant action must be brought by the “Secretary [of the Department of Transportation], NHTSA, or the U.S. Attorney General” under 49 U.S.C. Chapter 301, the part of the Motor Vehicle Safety Act (“MVSA”) containing defect and noncompliance reporting and recall provisions. 89 Fed. Reg. 101,952, 101,955 (Dec. 17, 2024) (to be codified at 49 C.F.R. § 513). Recoveries for other types of civil or criminal violations are excluded, “even if [they] involve vehicle safety issues and/or are based on facts common to an action taken under 49 U.S.C. Chapter 301.” 89 Fed. Reg. at 101,956. Actions brought by “other agencies” or “by the U.S. Department of Justice under any statute other [than] 49 U.S.C. Chapter 301” are, therefore, not covered. Although Chapter 301’s requirements are substantial, this limitation is likely to have significant implications. Companies that are involved in parallel-track or sequential enforcement actions will not face a potential NHTSA whistleblower award based on other types of alleged violations and enforcement actions. For example, any recoveries by the DOJ based on allegations of conspiracy, fraud, fraudulent statements or related violations, even if they “are based on” facts in common with a Chapter 301 violation, will not provide the basis for a MVSWA whistleblower award. 

The Final Rule’s publication follows NHTSA’s earlier publication of a Notice of Proposed Rulemaking (“NPRM”) in April 2023. NHTSA noted in the Final Rule that it “adopted the proposed rule without significant changes,” despite numerous comments on the NPRM. 

A number of the Final Rule’s features merit consideration by automotive companies. Of particular interest are (1) the Final Rule’s definition of “independent knowledge;” (2) NHTSA’s decision not to expand the internal reporting prerequisite; (3) NHTSA’s decision not to exclude directors, officers, and compliance function employees from whistleblower eligibility; (4) NHTSA’s decision not to render persons convicted of a related crime by a foreign tribunal ineligible as whistleblowers; and (5) NHTSA’s decision not to exclude information obtained by unlawful conduct subject to civil liability.Continue Reading NHTSA Publishes Whistleblower Program Final Rule

On May 24, 2023, EPA released a guidance memorandum addressing the hazardous waste status of lithium ion batteries under the Resource Conservation and Recovery Act (“RCRA”).  EPA released the guidance to “both remove uncertainties for the states and industry about the regulatory status of these materials,” and to ensure that…

Continue Reading EPA Clarifies Hazardous Waste Requirements Applicable to Lithium Ion Batteries

On October 5, 2022, the U.S. Environmental Protection Agency (“EPA”) announced its plan to streamline the typical review process for Mixed Metal Oxides (“MMOs”), including certain cathode active materials, which are key components in electric vehicles’ lithium-ion batteries, as well as clean energy generation and storage technology, including wind turbines…

Continue Reading EPA to Streamline the Review Process for Certain EV and Clean Energy Chemicals
On November 30, 2020, emergency temporary COVID-19 workplace standards (“ETS”) issued by the California Division of Occupational Safety and Health (“Cal/OSHA”) took effect.  The ETS, which requires stringent workplace protocols intended to curb the spread of COVID-19, applies to all California employers, other than those subject to the Cal/OSHA Aerosol Transmissible Disease standard or those with only one employee at the workplace who does not have contact with others.  Under the ETS, employers must adopt and implement a comprehensive COVID-19 prevention program that includes identification and correction of COVID-19 risks, employee screening, investigation of cases, use of face coverings and other protective equipment, exclusion of exposed employees, and provision of free COVID-19 testing in certain circumstances, among other requirements.  The ETS also mandates testing and other action when there are multiple infections or an “outbreak” in a workplace.

Cal/OSHA promptly published a “Frequently Asked Questions” document (“FAQs”), a one-page summary of the ETS, and a Model Prevention Plan.  These documents shed additional light on the ETS and how it might be enforced.

Below is an overview of the key takeaways from the new ETS and subsequent Cal/OSHA publications.

Basic Elements of the COVID-19 Prevention Program

The central feature of the ETS is the requirement that all employers implement a written COVID-19 prevention plan.  At a high level, the prevention plan must include the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures;
  • Screening of employees for COVID-19, although employees may be asked to evaluate their own symptoms before coming to work;
  • Identification, evaluation, and correction of COVID-19 hazards;
  • Physical distancing of at least six feet unless it is not possible;
  • Use of face coverings, with only limited exceptions;
  • Use of engineering controls, administrative controls, and personal protective equipment as required to reduce transmission risk;
  • Procedures to investigate and respond to COVID-19 cases in the workplace, including to verify cases and receive information on test results and symptom onset;
  • COVID-19 training to employees;
  • Testing of employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implementation of regular workplace testing for employees in the exposed work areas;
  • Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk; and
  • Maintenance of records of COVID-19 cases and reporting of serious illnesses and multiple cases to Cal-OSHA and local health departments.

Closer Look: Training Requirements

 The ETS requires employers to provide training and information on the following topics:

  • The employer’s COVID-19 policies and procedures;
  • Information regarding COVID-19-related benefits;
  • The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks, vocalizes, sneezes, coughs, or exhales, that COVID-19 may be spread through surface contact, and that an infected person may have no symptoms;
  • Methods of physical distancing at least six feet apart and the importance of face coverings;
  • The fact that particles containing the virus can travel more than six feet, especially indoors, so other controls, including face covers and hand hygiene, must also be used;
  • The importance of frequent hand washing with soap and water for at least 20 seconds and the proper use of hand sanitizer;
  • Proper use of face coverings and the fact that face coverings are not respiratory protective equipment; and
  • COVID-19 symptoms, and the importance of obtaining a COVID-19 test and not coming to work if the employee has symptoms.

Closer Look: Investigation of COVID-19 Cases and Notification of Exposure

The ETS contains strict requirements for investigating COVID-19 cases in the workplace.  Employers must determine the day and time the COVID-19 positive individual was last present and, to the extent possible, the date of the positive diagnosis or appearance of symptoms.  Employers must determine which employees may have had a COVID-19 exposure by evaluating the activities of the COVID-19 case and all locations in the workplace the individual visited during the “high-risk exposure period.”  The ETS defines the “high-risk exposure period” as either (1) from two days before they first develop symptoms until 10 days after the symptoms have first appeared, and 24 hours have passed with no fever, or (2) from two days before until ten days after the specimen for the individual’s first positive test for COVID-19 was collected.

Within one business day, the employer must notify all employees who may have had COVID-19 exposure (and any authorized representatives, such as their union), as well as any independent contractors or other employers present at the workplace during the high-risk exposure period.   Importantly, the notice must not reveal the identity of the employee with COVID-19.  The FAQs clarify that notification is required only to employees who were potentially exposed by being within 6 feet of a COVID-19 case for at least 15 minutes over a 24-hour period during the high-risk exposure period.Continue Reading California Employers Must Comply with New Cal/OSHA COVID-19 Workplace Safety Standards