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 lithium ion batteries are properly
Thomas Brugato is special counsel 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, and the Occupational Safety and Health Act.
Mr. Brugato has extensive experience with EPA's Renewable Fuel Standard program. He also has particular expertise in advising companies on environmental-related issues arising in the context of product recalls (such as compliance with PHMSA’s hazardous materials transportation regulations), including recalls under NHTSA or CPSC jurisdiction. Finally, Mr. Brugato has significant experience advising clients on Indian law related issues, particularly relating to the Indian Gaming Regulatory Act and tribal sovereign immunity.
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 and solar cells. MMOs can…
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.…