Cal-OSHA proposes changes to COVID-19 emergency regulation

With vaccination rates on a rise, the California Department of Occupational Safety and Health (“Cal-OSHA”) have proposed revisions to the COVID-19 Emergency Temporary Standards (“ETS”).  On May 20, 2021, the California Occupational Safety and Health Standards Board is expected to decide on whether to send the draft revisions to the Office of Administrative Law (“OAL”).  If these revisions are received by the OAL, they are only required to allow 5 calendar days for submission of comments and 10 calendar days for review before filing with the Secretary of State. Therefore, the potential new COVID-19 emergency regulation amendments could become effective by early June.

Read our full summary about these new developments in our Employment Law Watch blog.

ESG Update: At a glance summary of proposed Corporate Sustainability Reporting Directive

In our previous ESG Update blog, we described what the then anticipated new EU-wide Sustainable Corporate Governance requirements might look like.

On 21 April, The European Commission published a draft of the proposed new Corporate Sustainability Reporting Directive (CSRD). It will completely replace and significantly expand the scope of the current EU Non-Financial Reporting Directive. This short blog summarises its key features. Continue Reading

Upcoming hearing regarding new marijuana smoke and THC Proposition 65 warnings

As we reported earlier, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) by adopting tailored safe harbor warnings for cannabis (marijuana) smoke and delta-9-tetrahydrocannabinol (delta-9-THC) exposures.  OEHHA has now scheduled a virtual public hearing on May 10, 2021 at 1:00 p.m.  Accordingly, the public comment period for this proposed action has been extended; written comment submissions must be received by May 24, 2021.

Relevant for stakeholders, per a recent review of Proposition 65 Notices of Violations (“NOVs”) for the first quarter of 2021, Marijuana Smoke and THC have only been noticed twice. However, the amount of NOVs for Marijuana Smoke and THC is likely to rise once the new warnings are implemented.

California Proposition 65 updates regarding cooked or heat processed foods

The California Office of Environmental Health Hazard Assessment (“OEHHA”) recently modified the text of its proposed Proposition 65 regulation regarding warnings for chemicals formed in foods by cooking or heat processing (most frequently associated with the formation of the carcinogen acrylamide during the cooking process).  OEHHA removed two food categories from the warning requirement (almond butter and prune juice) in response to comments received on its earlier proposal, as well as making some other minor clarifications. The public comment period on the modified amendments will close on May 7, 2021. See here for our earlier analysis on this important update to Proposition 65.

Per a recent review of Proposition 65 Notices of Violations (“NOVs”) for the first quarter of 2021, acrylamide is in the top three of most frequently noticed chemicals (190 total NOVs).

Senate votes to rescind Trump-era methane emissions rule

On Wednesday, April 28, the U.S. Senate voted to effectively reinstate Obama-era methane regulations by approving a resolution nullifying the Trump-era methane emission rule “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review.”  The September 2020 Trump Administration rule rolled back Obama-era oil and gas emission rules by rescinding methane requirements for production and processing operations and removing the transmission and storage segments of the industry from the pertinent regulations.  In a 52-42 vote that crossed party lines, the Senate utilized the Congressional Review Act (CRA).  The CRA allows Congress to rescind “midnight” federal regulations issued at the end of a presidential administration by a simple majority vote in both chambers.  The U.S. House of Representatives is expected to vote on the resolution within the coming weeks.  It is believed that the House will pass the resolution and that President Biden will sign it.

New Jersey’s Environmental Justice Bill and its effect on Title V facilities

New Jersey’s Environmental Justice Bill (EJ Bill) applies to Facilities located in Overburdened Communities (OBC). N.J. Stat. § 13:1D-157 – 13:1D-161.  A Facility includes any: 1. Major source of air pollution; 2. Resource recovery facility or incinerator; 3. Sludge processing facility, combustor, or incinerator; 4. Sewage treatment plant with a capacity of more than 50 million gallons per day; 5. Transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day; 6. Scrap metal facility; 7. Landfill; or 8. Medical waste incinerator.   An OBC is one in which: 1. At least 35 percent of the households qualify as low-income households; 2. At least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or 3. At least 40 percent of the households have limited English proficiency.  The New Jersey Department of Environmental Protection (NJDEP) has compiled a list of overburdened communities.

If a Facility is located in an OBC, the EJ Bill requires that when the Facility submits an application for a permit for a new Facility, an expansion of an existing Facility, or an application for renewal of an existing Facility’s major source permit, the Facility must:

  1. Prepare an environmental justice impact statement (EJIS) to assess the potential environmental and public health stressors associated with the application;
  2. Transmit the EJIS at least 60 days in advance of the public hearing to the NJDEP, the governing body, and the clerk of the municipality in which the OBC is located; and
  3. Organize and conduct a public hearing in the OBC. The applicant must publish a notice of the public hearing in at least two newspapers circulating within the OBC (including one non-English language newspaper, if applicable), not less than 60 days prior to the public hearing.  The permit applicant shall provide a copy of the notice to the NJDEP and the NJDEP will publish the notice on its website.  The notice shall include the date, time, and location of the public hearing, a description of the proposed new or expanded Facility or existing major source, as applicable, a map indicating the location of the Facility, a brief summary of the EJIS, information on how an interested person may review a copy of the complete EJIS, an address for the submittal of written comments to the permit applicant, and any other information deemed appropriate by NJDEP.  At least 60 days prior to the public hearing, the notice shall be sent to the NJDEP, the governing body, and the clerk of the municipality in which the OBC is located.  At the public hearing, the permit applicant shall provide clear, accurate, and complete information about the proposed new or expanded facility, or existing major source, as applicable, and the potential environmental and public health stressors associated with the Facility. The permit applicant shall accept written and oral comments from any interested party, and provided an opportunity for meaningful public participation at the public hearing. The permit applicant shall transcribe the public hearing and, no later than 10 days after the public hearing, submit the transcript along with any written comments received, to NJDEP. Following the public hearing, NJDEP shall consider the testimony presented and any written comments received, and evaluate the issuance of, or conditions to, the permit, as necessary in order to avoid or reduce the adverse environmental or public health stressors affecting the OBC.

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Biden’s pledge to cut U.S. emissions signals increased climate change regulation and other implications for industry

On Earth Day, April 22, 2021, President Biden announced that the U.S. will aim to cut carbon emissions in half by the year 2030 compared to 2005 levels.  This is significantly higher even than goals established by President Obama during his tenure.  The virtual Leaders Summit on Climate where the announcement was made took place on Thursday and Friday and was attended by 40 other world leaders.  The U.S. rejoined the Paris climate agreement in Biden’s early days in office, and this announcement drives towards addressing its goals.

The administration has not yet rolled out a specific plan for how the U.S. will meet this goal.  However, we can expect that the reduction efforts will touch almost every industry in one way or another with terminology such as “economy-wide” and “multiple pathways” used to describe reaching the target.  Additionally, a Fact Sheet released by the administration describes various ambitious initiatives across many sectors including:

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Chemical Safety Board announces plans to add board members and investigators

The U.S. Chemical Safety Board (“CSB”), the federal agency created under the Clean Air Act Amendments of 1990 and charged with investigating industrial chemical releases, has announced that it will draw up a new board following a recommendation to do so by the Environmental Protection Agency (“EPA”) Office of the Inspector General (“OIG”). The CSB will also undertake an effort to hire additional investigators in order to broaden its capability to review and investigate releases. Currently, the CSB only has one sitting board member, Chairwoman Katherine Lemos, who acknowledged during a recent board meeting that there are challenges associated with a one-member quorum.

In July 2020, the EPA OIG published a report that raised concern with the lack of additional board members, resulting from the Trump Administration’s failure to nominate new members and impairing the effectiveness of the CSB “as all functions rest with that one member.” The OIG report identified challenges with workload that limit the CSB’s ability to conduct root cause investigations. In response, Lemos and CSB staff drafted a “new board order” that would allow newly appointed and confirmed board members to focus on the CSB’s mission, and further adopts best practices from other investigative agencies like the National Transportation Safety Board. Additionally, Lemos announced that the CSB will soon advertise positions for four new investigators to address the OIG’s finding that the agency suffered from reduced staffing. These positions will be posted on the USAJOBS employment website in the coming weeks.

Advanced Clean Trucks Rule — California announces extension of large entity reporting deadline

As we reported last year, the California Air Resources Board (“CARB”) adopted the Advanced Clean Trucks regulation to support its efforts to reduce air pollutants and meet state climate change targets.  The regulation has a one-time reporting requirement for large entities that operate or dispatch vehicles in California with a manufacturer’s gross vehicle weight rating (“GVWR”) greater than 8,500 lbs.  That includes medium duty vehicles like vans and ¾-ton pickups (i.e., the F250 or Ram 2500) and heavier vehicles of all configurations and fuel types.  However, the regulation does not apply to lighter vehicles such as cars and light duty pickups, among other exemptions.

This regulation applies to a wide range of businesses.  Examples include entities that meet any of the following criteria:

  • Had gross annual revenues greater than $50 million in the United States for the 2019 tax year, and had one or more vehicles over 8,500 lbs. GVWR under common ownership or control that were operated in California in 2019; or
  • Any fleet owner in the 2019 calendar year that had 50 or more vehicles over 8,500 lbs. GVWR under common ownership or control; or
  • Any broker or entity that dispatched 50 or more vehicles over 8,500 lbs. GVWR into or throughout California, in the 2019 calendar year.

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European Commission’s “Sustainable Products Initiative” now open for public consultation

Last week the EU Commission announced that the ‘public consultation’ phase of its Sustainable Products Initiative is now open. This begins the next step in the process, following the conclusion of the ‘feedback period’, which closed in November 2020.

More detail on what the Commission aims to achieve through this initiative is available in our earlier blog post highlighting the publication of the initiative in September of last year, available here. To recap, the initiative proposes to implement a number of the objectives established by both the EU Green Deal and the Circular Economy Action Plan, including to:

  • broaden the scope of the Ecodesign Directive beyond energy-related products;
  • establish additional legislative measures to make products placed on the EU market more sustainable; and
  • address the lack of reliable information on sustainability along value chains, including through solutions such as digital passports and tagging.

The Sustainable Products Initiative is intended to be developed in close coordination with other initiatives established under the Circular Economy Action Plan, in particular the initiative on strengthening the role of consumers in the green transition (which is expected to be adopted by the Commission in the next few months).

Public consultation on the Sustainable Products Initiative is now open as of 17 March until 9 June 2021, and the online questionnaire can be accessed here. Following consultation, adoption of draft legislation by the EU Commission is currently planned for the fourth quarter of 2021.