Chemical Industry Regulatory Update - June 2020

A Newsletter from The Adhesive and Sealant Council and Thompson Hine LLP

Date: June 11, 2020

The chemical industry is subject to complex and ever-evolving laws and regulations. New standards governing the production and use of chemicals are implemented every year worldwide, and existing laws and regulations are constantly changing to keep pace with new information and scientific advancements. Chemical Industry Regulatory Update provides a monthly digest of recent legislative and regulatory developments and related industry news.

Environmental Enforcement Discretion Policies During the COVID-19 Pandemic: U.S. EPA and 50-State Chart

Wray Blattner, Nathan C. Hunt, Božana LundbergJean-Luc Kreitner

The U.S. Environmental Protection Agency has issued guidance in response to the substantial uncertainty and disruption the COVID-19 pandemic has caused regarding compliance with various federal environmental laws, regulations and permit requirements. In a memorandum issued March 26, U.S. EPA set forth its temporary position to exercise enforcement discretion and not seek penalties for specified categories of environmental noncompliance while emphasizing the need to make best efforts to comply and protect human health and the environment.

Many state agencies have followed U.S. EPA’s lead in implementing environmental enforcement discretion policies. For ease of reference, we have compiled a chart summarizing the policies of the U.S. EPA and all 50 states, plus Washington, D.C.

PPP Flexibility Act Makes Changes to the PPP Loan Program

Jennifer L. Maffett-Nickelman

In the ever-changing PPP world, the PPP Flexibility Act makes a number of changes to the PPP loan program:

  • Increases the minimum repayment period for unforgiven loan amounts from two years to five years, with a maximum of 10 years, though borrowers and lenders can mutually agree to other terms.
  • Extends the “covered period” from eight weeks to 24 weeks (ending no later than December 31, 2020), but gives borrowers the option to keep an eight-week covered period if they received their loan prior to enactment.
  • Extends the deadline by which borrowers can avoid a reduction in forgiveness by returning employee headcount levels to pre-COVID levels from June 30, 2020 to December 31, 2020.
  • Provides additional exemptions from the forgiveness reduction due to lower employee headcount if the business is unable to hire or rehire qualified employees OR if the business is unable to return to the same level of business activity due to compliance with requirements established or guidance issued by federal health agencies related to the maintenance of sanitation, social distancing, or other worker or customer safety requirements.
  • Changes the required ratio of payroll to nonpayroll costs from 75-25% to 60-40% for forgiveness.
  • Increases the repayment deferral period from six months to after a decision on forgiveness is made, so that borrowers do not have to start making payments until they receive a decision on loan forgiveness or 10 months after the end of the covered period if the borrower has not yet applied for forgiveness.
  • Permits borrowers who do receive forgiveness of their PPP loans to defer certain employer payroll taxes, as provided by the CARES Act, which originally exempted them from such benefit.

For more information.

U.S. Department of Labor Announces Two New Overtime Rules

Bryan StillwagonAnthony P. McNamara

The U.S. Department of Labor has announced two new rules relating to overtime calculations and exemption eligibility under the Fair Labor Standards Act. The first, which will take effect 60 days after publication, includes bonuses and other incentive-based pay within the “regular rate of pay” for salaried, non-exempt employees who work “fluctuating workweeks.” The second rule, which became effective on May 19, establishes uniform criteria for determining which businesses are considered “retail or service establishments” and whose commissioned employees may be exempt from the FLSA’s overtime requirements.
Continue reading.

OSHA Issues Updated COVID-19 Enforcement Plan and Guidance for Employers

Nancy M. Barnes, John WymerM. Scott Young

On May 19, as many employers around the United States planned to reopen, OSHA issued an Updated Interim Enforcement Response Plan for Coronavirus Disease 2019 (COVID-19), which includes instructions and guidance for OSHA Area Offices on how to address COVID-19-related complaints, referrals and severe illness reports at employers. Also on May 19, OSHA issued Revised Enforcement Guidance for Recording Cases of COVID-19. On May 26, OSHA’s previous guidance on these topics was rescinded and the new Updated Interim Enforcement Response Plan and Enforcement Guidance went into and will remain in effect until further notice.
Read more.

Preparing Your Business for the COVID-19 World: A Webinar Series

On June 9, we presented “Environmental Compliance in a COVID-19 World: Best Practices and Risk Mitigation Strategies,” the sixth in our series of webinars examining COVID-19-related issues affecting businesses. Topics included:

  • Overview of U.S. EPA and state COVID-19 environmental enforcement policies
  • What is really happening? State and federal enforcement trends before and during the pandemic
  • Managing non-compliance scenarios arising from COVID-19
  • Planning for compliance during potential future COVID-19 closures and restrictions

Presenters:

Devin A. Barry
Joel D. Eagle
Heidi B. (Goldstein) Friedman
Tasha Miracle

Please visit our COVID-19 Task Force page for a link to the recorded presentation.

Chemical Industry Regulatory Update is compiled by Thompson Hine lawyers on behalf of The Adhesive and Sealant Council. It should not be construed as legal advice, and the views and opinions expressed herein are those of the authors and do not necessarily reflect those of the ASC or its members.

For More Information

For more information, contact the editor, William J. Hubbard, or any of the authors.

Check out our latest Employment Legislation Outlook. Learn about the latest developments in paid sick and safe leave laws, family and parental leave, recreational and medicinal marijuana use, and workplace issues.

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Additional Resources
We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our COVID-19 Task Force page for additional information and resources.

ASC Regulatory Affairs Update Webinar

Join ASC for the FREE regulatory update on PSM/RMP regulations with case study analysis.

Wednesday, September 16, 2020; 10:00 a.m. ET

Click here for more details.