Chemical Industry Regulatory Update - September 2020

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

Date: September 04, 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.

Uncharted Territory: COVID-19 Travel and School Challenges Facing Employers

Keith P. Spiller, Megan S. Glowacki, Anthony P. McNamara

Employers have faced no shortage of challenges during 2020, and as we near the end of summer, new ones are on the horizon. Employees and their families seeking a change of scenery are traveling again, sometimes to COVID-19 hot spots, and when they come home, their return to the workplace has employers justifiably concerned. At the same time, employees with school-aged children have unique concerns of their own, including uncertainty over whether, when and where their children will begin their studies. We address issues related to employee travel during the pandemic and offer guidance on how the Families First Coronavirus Response Act leave laws will be applied in the context of school restarting. Read more.

State Privacy Laws: The Next New Thing

Thomas F. Zych

Now that the dust has settled (for now) on the implementation of the California Consumer Protection Act (CCPA), companies doing business in California or that interact with California customers are asking: Which state will be the next California. Paradoxically (or not) the answer is California. Even though the CCPA only went into effect on January 1 of this year and its enforcement only began on July 1, California voters will weigh in on a ballot initiative that would significantly amend the CCPA and add to the compliance burdens businesses already face under California law.

Many companies diligently worked to implement the numerous compliance processes and notices that the CCPA required beginning January 1, and many of those are fine-tuning their compliance as plans meet reality. In a rational compliance world, the CCPA would be given time to prove its worth and reveal unforeseen problems, with substantial amendment coming after sufficient experience with the new law.

Unfortunately, this is not a wholly rational legal landscape. The original force behind the CCPA, Alastair Mactaggart, is spearheading another initiative that will appear on the November 3 general election ballot in California. Known as the California Privacy Rights Act (CPRA), the initiative if passed would amend the CCPA substantially, adding obligations on businesses and expanding California consumers’ rights. Among other changes, it would grant consumers the right to require a business to “correct” the personal information the business holds on them. While deleting or describing personal data can be an automated process, the right of collection could result in time-intensive human processes even if the business is able to identify information as incorrect. The CPRA also would add a right to opt out of a business’s “sharing” of information with third parties in some circumstances, complicating the many processes in which a business shares personal information with its service providers.

On the positive side, the CPRA would extend the partial exemptions for employment and business-to-business data, in the case of employee data through the end of 2022. This would at least defer the obligation to apply CCPA protections to HR data.

The smart money is on the passage of the CPRA, given California’s current political climate in a general election year. While most of its provisions would not take effect until January 1, 2023, businesses should add the CPRA to their compliance dashboard so they can take appropriate and timely action.

Former U.S. EPA Administrators Press for a Post-Election Agency Reset

Tasha Nicole Miracle

Six former U.S. EPA heads recently sent a letter calling for the EPA to “reset the future course” of the agency after the November 3 election. Using the agency’s 50th anniversary as a pivot point, the former administrators contend that the country’s environmental and health challenges have changed since President Nixon founded the EPA in July 1970, with less visible but equally dangerous hazards threatening American communities. These new challenges, they argue, require a new, forward-looking direction for the EPA.
The hazards described in the letter include climate change and its far-reaching impacts, as well as environmental injustices facing low-wealth communities, communities of color and indigenous communities. 

The former administrators’ “reset” recommendations are drawn from a series of reports issued by the Environmental Protection Network (EPN) in August 2020. The reports outline specific, actionable recommendations for EPA leadership to address current and future threats to public health and the environment, focusing on issues such as “Restoring Science as the Backbone of EPA Decision-Making,” “Strengthening Environmental Enforcement and Compliance,” “Reducing Air Emissions from Mobile Sources” and “Reducing Toxic Risks.” Of the EPN’s reports and recommendations, the former administrators focus on six specific priorities that they and the EPN argue are essential for the EPA to meet the challenges of the 21st century: reaffirming a commitment to protecting public health and the environment; operating without political interference; incorporating environmental justice into all aspects of the EPA’s operations; focusing on the most significant and pervasive public health and environmental risks; focusing on innovation and collaboration with government and private stakeholders; and earning broad public trust through ethical behavior, objectivity and transparency. 

To achieve these goals, the former leaders call for increased EPA funding, noting that in inflation-adjusted dollars, the EPA’s budget was over 50% higher under President Reagan than it is today.
The former administrators pressing for these changes served in both Democratic and Republic administrations from 1985 to 2017: Lee Thomas, William Reilly, Carol Browner, Todd Whitman, Lisa Jackson and Gina McCarthy. Although the letter and the EPN’s reports do not explicitly call out the Trump administration, the documents implicitly and explicitly criticize EPA actions under President Trump and current EPA Administrator Andrew Wheeler. The letter notes that the former EPA heads are “concerned about the current state of affairs at EPA.” 

The EPN was launched in 2017 by a bipartisan network of over 500 former EPA employees to provide “objective analysis, scientific rigor, and facts about the environment and EPA” in light of what the organization refers to as a “siege” the Trump administration has waged on the EPA. 

The EPN and the former administrators declare that there is no single roadmap forward for the EPA and assert that the reports and recommendations are meant to guide whichever administration is in power after the election. However, according to several news outlets, EPA spokesperson James Hewitt responded to the letter and EPN reports with an email statement saying that “EPA Administrator Wheeler is proud of our record addressing environmental problems impacting Americans” and “won’t be taking ‘reset’ advice from administrators who ignored the Flint lead crisis, botched the Gold King Mine response, and encouraged New Yorkers [to breathe] contaminated air at Ground Zero.”

Based on the EPA’s current response, the former administrators’ and EPN’s calls for an agency reset to address climate change and environmental justice concerns appear unlikely to have much effect until there is a change in administration. Until then, they serve only as a guide for what the EPA may look like in the (perhaps not-so-distant) future.

For More Information

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

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.