The Occupational Safety and Health Administration (OSHA) recently released two memos instructing enforcement officers on “instance-by-instance” citations and de-grouping violations to deter infractions. 

OSHA’s prior policy on instance-by-instance citations, published in 1990, applied just to willful citations. The new guidance identifies several scenarios where such citations may be issued, including high-gravity serious violations specific to falls, trenching, machine guarding, respiratory protection, permit required confined space, lockout tagout, and other-than-serious violations specific to recordkeeping. OSHA states that a more expansive application of instance-by-instance citations “will incentivize employers to proactively prevent workplace fatalities and injuries and provide OSHA another tool to use on its mission to ensure safe and healthful working conditions for America’s workforce.” 

Similarly, OSHA released a memo reiterating existing policy that allows staff to de-group violations. The de-grouping memo reminds OSHA staff of its “discretion to not group violations in appropriate cases to achieve a deterrent effect” and warns that “OSHA enforcement activity may lose its deterrent effect when citations are grouped.” Despite the emphasis on de-grouping violations to promote deterrence, the memo also states that Grouping violations should be considered when:

  • Two or more serious or other-than-serious violations may overall be classified by the most serious item;
  • Grouping two or more other-than-serious violations considered together create a substantial probability of death or serious physical harm; or
  • Grouping two or more other-than-serious violations results in a high gravity other-than serious violation.

These two new directives signal OSHA’s intent to be more aggressive with respect to enforcement. Employers should therefore prepare for more aggressive enforcement action from OSHA and ensure their current health and safety policies are up-to-date and implemented in accordance with applicable standards.

As we previously covered, California has been working towards the development of “green hydrogen,” i.e., hydrogen fuel produced by splitting water into hydrogen and oxygen using renewable electricity.  Most stakeholders acknowledge that green hydrogen is a critical (but predominantly untapped) resource that offers many climate and energy benefits.[1]  In a significant step to advance this goal, the California Legislature and Governor recently adopted SB-1075 with some important revisions.

The bill still requires the California Air Resources Board (CARB), the California Energy Commission (CEC), and the California Public Utilities Commission (CPUC) to consider green electrolytic hydrogen as an eligible form of energy storage and to consider other potential uses of green electrolytic hydrogen in their decarburization strategies.  However, the bill no longer requires the creation of a “Clean Hydrogen Fund,” which was a large part of the earlier version (see here for our earlier analysis of the fund).   

The following summarizes the major provisions that ultimately were made law in California.

  1. Requires CARB, in consultation with the CEC and the CPUC, and consulting the Workforce Development Board and labor and workforce organizations, to prepare an evaluation (posted to its website by June 1, 2024) of:
    • Policy recommendations to accelerate production and use of hydrogen – particularly “green hydrogen,” which the bill describes but does not define – to help achieve the state’s climate, clean energy, and clean air objectives;
    • A description of strategies supporting hydrogen infrastructure development;
    • A description of the potential for “other forms of hydrogen,” outside of green hydrogen, to achieve greenhouse gas (GHG) emissions reductions;
    • An analysis of how curtailed electrical generation could be better used to meet state goals, including the production of green hydrogen;
    • An estimate of the comparative amount of GHG emissions reductions and air quality benefits the state could achieve through deploying green hydrogen;
    • An analysis of the potential for opportunities to integrate hydrogen production and application with drinking water supply treatment needs;
    • Policy recommendations for regulatory and permitting processes associated with transmitting and distributing hydrogen; and
    • An analysis of the life-cycle greenhouse gas emissions and air pollution and other environmental impacts from hydrogen.
  2. Requires the CEC, as part of the 2023 and 2025 editions of the Integrated Energy Policy Report, to study and model potential growth for hydrogen and its role in decarbonizing the electrical and transportation sectors of the economy, and helping to achieve the various state clean energy and environmental goals.

Ultimately, California intends to “develop a leading green hydrogen industry in California in order to provide accelerated clean air, climate, and energy benefits; better integrate existing and new renewable resources into the electrical grid; support forest management, short-lived climate pollutant and waste management goals; create jobs; and provide new clean technology to decarbonize challenging sectors.” This law is a critical step forward in meeting such goals, and we will continue to closely follow this important topic in California and abroad. 

[1] The legislature highlights the benefits of green hydrogen as follows:

*Green hydrogen offers many climate and energy co-benefits, including better utilizing curtailed electrical generation and better integrating eligible renewable energy resources into the electrical grid to achieve greater than 100 percent zero-carbon energy and putting renewable generation of electricity to use to decarbonize many other sectors of the economy.

*Green hydrogen offers an opportunity to reduce emissions of greenhouse gases, criteria air pollutants, and toxic air contaminants and improve the health of local communities located close to existing industrial hydrogen uses, including oil refining, production of ammonia, and other industrial chemical uses.

*Green hydrogen is a flexible resource that can be used for many things, including oil refining, ammonia and fertilizer production, and other industrial and chemical processes; net-zero or net-negative carbon chemicals, fuels, and polymers that can be produced when green hydrogen is combined with captured carbon dioxide; storing renewable and zero-carbon electricity for multiple days and seasons; powering a variety of on-road, off-road, rail, aviation, and maritime transport and materials handling applications; providing dispatchable electricity production including enhancing resiliency for behind-the-meter emergency backup generation and islanded microgrids; displacing coking coal used in the production of steel; fueling industrial thermal applications; and decarbonizing the existing natural gas pipeline.

We are not expecting further big climate reduction commitments from countries this year at COP27. The leaders of China and Russia (the world’s first- and fifth-largest climate polluters) are not attending the event, nor are officials from many of the largest economies, including India and Australia. U.S. President Joseph Biden will make only a short appearance on Nov. 11 along with a smaller-than-usual U.S. delegation. With such middling representation, expectations not surprisingly are muted.

This comes in spite of the fact that increased and more stringent climate reduction commitments are necessary. Countries around the world are failing to live up to their existing commitments to fight climate change, and of the 193 countries that agreed last year to step up their climate actions, only 26 have followed through with more ambitious plans. The world’s top two polluters – China and the United States – have taken some action, but without significant (or any) presences at COP27, we expect the climate negotiations between the two to remain at a standstill (as they have been for months).

An analysis by the World Resource Institute found that current promises by nations would reduce global greenhouse gas emissions by around 7 percent from 2019 levels, even though six times that, a reduction of 43 percent, would be necessary to limit global warming to 1.5 degrees Celsius (the reduction amount agreed to by nations at the Paris COP).

The United States, in passing the Inflation Reduction Act (IRA), has jumped forward in its ability to make good on its promise to cut emissions by as much as 52 percent below 2005 levels by the end of this decade. But still, the IRA will get the United States to only about 80 percent of its current pledge to cut emissions – so any new pledge by the U.S. is without legal basis.

Without climate reduction commitments, what will the nations’ focus be?

First thing to expect is discussions with regard to money, money, money. Money in climate talks usually takes the form of adaptation in two ways: (1) who will pay for moving away from polluting energy sources and toward renewables, and (2) who will pay to help nations adapt their defenses against inevitable climate impacts, such as rising seas and heavier rainfall. At COP27, developing countries will be expecting rich nations to outline how they will deliver on a pledge made at COP26 to “double” support for adaptation.

There has been keen interest in new ways to unlock that money. The UN released a series of four reports in advance of COP27 to address the finance gap. In short, these reports attempt to provide clarity on where the world stands in its efforts to mobilize the billions of dollars needed every year for green economies and to build resilience for the inevitable impacts of climate change.

The second issue will be the role of natural gas in a climate future. Russia’s war in Ukraine has put a spotlight on natural gas; it is increasingly obvious that nations must be clear-eyed about what is feasible, politically and socially, in delivering upon the agreements made at the Paris COP. Europe’s efforts to break its dependence on Russian gas has led to new plans for building ports and facilities for importing liquefied natural gas from the U.S. and elsewhere, including in parts of Africa. Building natural gas infrastructure (as opposed to renewable energy infrastructure) in Africa and other third-world nations could put the world on a path to even further and longer dependence on fossil fuels. Some African countries with oil and gas reserves say they are willing to develop this fossil fuel infrastructure: Senegal has been among the most vocal and is leading a push for investments in gas production. But right now there is no common Africa position, particularly around the energy transition and around flexibility in the use of natural gas in particular, to achieve African nations’ objectives around electrification. This lack of cohesion will impede progress on this point at COP27. Further, any development of fossil fuel infrastructure within Africa will necessarily have to acknowledge a further commitment to fossil fuels – and by implication a likely delay in meeting a clean energy future and the objectives of the Paris COP.

We will be watching these two issues carefully in the coming to weeks and will post as to progress at the end of COP27.

US EPA periodically issues compliance advisories and enforcement alerts that highlight the agency’s enforcement efforts related to specific regulations and regulatory provisions. One recent EPA enforcement alert targets air emissions from stationary engines subject to the RICE NESHAP under 40 CFR Part 63, Subpart ZZZZ and new source performance standards in 40 CFR Part 60, Subparts IIII and JJJJ. Stationary engines are widely used by a variety of industries, including the oil and gas and energy industries, and support equipment like pumps, compressors, and generators.

The enforcement alert states that noncomplying stationary engines emit excess volatile organic compounds (VOCs) and ozone precursors (e.g. NOx), which contribute to ground-level ozone and overall poor air quality. Common violations include a failure to retrofit existing engines with requisite pollution controls and missed testing. To resolve the alleged violations, US EPA has required equipment upgrades and replacement and has collected six-figure civil penalties in some cases.   

US EPA includes several recommendations to ensure compliance in the enforcement alert. Notable recommendations include:

  • Review engine specs to identify the applicable regulations (e.g. Subpart ZZZZ, Subpart IIII, Subpart JJJJ).  
  • Assess applicable emission and operating limits and recordkeeping and reporting requirements.
  • Evaluate options for upgrading or replacing older engines with newer engines or converting to the power grid.

While stationary engines may appear to be marginal contributors to air pollution compared to other sources, US EPA’s enforcement alert highlights the need for companies to evaluate their stationary engines to ensure compliance. This is particularly true for oil and gas, energy, and mining companies that appear to be US EPA’s primary enforcement targets in this context. Companies in these industries may tend to focus compliance efforts on seemingly more significant sources of air pollution, but the stationary engine enforcement alert should serve as a reminder to take a comprehensive approach to evaluating and ensuring compliance with applicable air regulations.

California Governor Gavin Newsom recently signed three bills addressing carbon capture, utilization and storage (“CCUS”) and carbon dioxide removal (“CDR”).  Collectively, these bills create a pathway for new regulation of CCUS and CDR projects, enabling them to become part of a solution for the State to meet aggressive carbon reduction / neutrality goals in 2030, 2038 and 2045. Below is a summary of each bill.

Senate Bill 905

Among other things, SB 905 requires the California Air Resources Board (“CARB”) to establish a “Carbon Capture, Removal, Utilization and Storage Program to evaluate the efficacy, safety, and viability of CCUS.” CARB will also be required to enhance monitoring procedures for leakage.

By January 1, 2025, regulations for a unified permit application, for the construction and operation of CCUS projects (including an expedited review process), must be adopted. All CCUS projects within California will be required to use this application process and CARB will develop a centralized public database to track all in-state projects.

In addition to permitting procedures, CARB must publish a framework for governing agreements regarding two or more tracts of land overlying the same geologic storage reservoir or reservoirs. The agreements will set out to manage, develop, and operate CCUS or CDR projects. SB 905 ensures that title to any geologic storage reservoir for CO2 is vested in the owner of the overlying surface estate (unless it has been severed and separately conveyed).

CCUS project operators must provide at least a 60 day written notice to each surface or subsurface owner adjacent to a geologic storage complex or reservoir before commencing development. Project operators must also prove and maintain financial responsibility for the project. Agreements between operators and relevant parties, that any drilling or extraction be prohibited in the geologic storage reservoir for at least 100 years after the CO2 is injected, must be made for every project. All project operators also need to create an air monitoring and mitigation plan that is submitted to CARB.

Senate Bill 1314

Critics of CCUS projects utilizing underground sequestration are concerned that such injections can increase pressures in storage locations proximate to oil and gas reserves, (in)directly enhancing further recovery of carbon-based fuels. SB 1314 “plugs this hole” in part by prohibiting a CCUS project operator from injecting a concentrated CO2 fluid produced by a CO2 capture project or a CO2 capture and sequestration project into a Class II injection well for purposes of enhanced oil recovery, including the facilitation of enhanced oil recovery from another well.

Assembly Bill 1757

While some readers may associate CCUS with controlling industrial sources, the State has also shown a growing interest in utilizing forests and other underutilized lands as “carbon sinks” to absorb and permanently store CO2 already in the atmosphere. AB 1757 requires the California Natural Resources Agency (“NRA”) to set an ambitious range of targets for natural carbon sequestration. Targets will be designed to be achieved by 2030, 2038 and 2045 and will be integrated into the State’s Climate Change Scoping Plan. The NRA must update the techniques for natural carbon capture to include: planting trees and shrubs, using compost and cover crops on farmland, creating green spaces in urban areas and restoring wetlands. By January 1, 2025, the NRA must also develop methods to consistently track greenhouse gas emissions and reductions, carbon sequestration, and, additional benefits from natural and working lands over time. While tracking emissions, the NRA must take into account, where feasible, the potential impacts of climate change on the ability to reduce greenhouse gas emissions and sequester carbon from natural and working lands.

The value of this bill may depend in part on whether CARB expands its palette of approved “compliance offset protocols.”  At present, CARB has approved three potentially relevant protocols:  (a) rice cultivation projects; (b) urban forest projects; and (c) U.S. Forest projects.  The scope of potential projects envisioned under AB 1757 could warrant CARB approving additional protocols.  Historically, that has been a controversial process in terms of varying views as to what type of project warrants a state-approved protocol, which ultimately could allow an industrial source to emit additional CO2 because it has generated or purchased offsets under a protocol.

On balance, the above bills create regulatory controls but also predictability for CCUS project developers and entities interested in offtake agreements relating to such projects. Bills enacted on or before October 2 will generally take effect January 1, 2023 unless otherwise specified.

Bills enacted on or before October 2 will generally take effect January 1, 2023 unless otherwise specified.

The Sixth Circuit issued an order on September 9, 2022 granting review of a class certification from March 7, 2022 that certified a class of roughly 11.8 million Ohio residents claiming injuries from per- and polyfluoroalkyl substances, or PFAS.

Background

Filed in 2018 in the Southern District Court of Ohio, the lawsuit alleged the named defendants (large chemical companies) manufactured and distributed PFAS substances despite knowing the dangers, and engaged in efforts to mislead the public and regulators about the alleged harms from PFAS substances.  The plaintiff sought to certify a nationwide class of every individual in the United States with PFAS in their blood and sought injunctive relief through funding by the defendants for a “science panel” to study the effects of PFAS and potentially provide medical monitoring to every member of the class.

The district court judge certified a class of every individual “subject to the laws of Ohio” whose blood contains 0.05 parts per trillion PFOA (a specific PFAS) and at least 0.05 parts per trillion of any other PFAS (amounts noted as currently undetectable with available technology).  Additionally, the plaintiff admitted that he did not know which defendant (if any) caused the PFAS in his blood, and has not alleged any health condition as a result of the exposure.  Rather, he alleged the levels of PFAS in his blood causes him to face a “risk of developing various diseases.”

The defendants petitioned for interlocutory review of the class certification advancing four arguments.  First, the defendants argued that the named plaintiff lacks standing because he failed to show an injury in fact, his asserted injury cannot be traced to the defendants, and that an Article III court cannot order the remedy sought.  Second, the defendants argued the class is not cohesive and cannot satisfy Federal Rule of Civil Procedure 23(b)(2) because the class members were allegedly exposed in different ways, in different amounts, to different substances, and at different times.  The defendants pointed out that they would also likely suffer different outcomes based on individual factors.  Third, the defendants alleged that the plaintiff’s vague description of the remedy fails to describe the injunctive relief sought.  Fourth, the defendants argued that the district court failed to adequately consider the “preclusive effect of a non-opt-out class” regarding possible claims of absent class members when it certified the class.

The Sixth Circuit’s Order

On defendants’ first argument, the Sixth Circuit found “sufficient ‘weakness’” in the plaintiff’s standing to merit further review.  Regarding the alleged injury, the Sixth Circuit found that the plaintiff’s allegations of increased risk of disease based on certain PFAS in his blood and the request for a science panel to be at odds – he simultaneously claims to be sufficiently likely to develop a disease and thus injured, but requested a science panel to determine whether he is at the risk.  Additionally, the requested science panel would not appear to be capable of redressing his injury (PFAS in his blood).  On traceability, the Sixth Circuit also pointed out that the plaintiff could not establish who caused his alleged injury, and his exposure could be the result of a “litany” of exposure pathways not involving the defendants.

Regarding defendants’ second argument on class cohesion, the Sixth Circuit expressed serious doubts in whether commonality could exist among the class with respect to exposure and relief.  Even if one class member could prove an elevated risk of injury given the PFAS in their blood, such a finding would not necessarily prove that elevated risk for other class members given a variety of factors impacting risk, including age, genetics, medical history, lifestyle, and time of exposure.

The Sixth Circuit also questioned whether plaintiff’s description of the remedy was sufficiently specific to certify the class.  The plaintiff argued that they need only request an injunction ordering defendants to pay for a science panel and medical monitoring for individuals in need as determined by the science panel.  The Sixth Circuit noted instead that relief must be described in “reasonably particular detail” when it comes to class-wide injunctions, and found the district court’s conclusions subject to serious dispute

Though the Sixth Circuit did not address the defendants’ fourth argument, it noted that precedent regarding the “death knell” of litigation counseled in favor of an interlocutory appeal.  The term is applied in cases where failure to certify a class would cause plaintiffs to abandon their claims.  Here, the Sixth Circuit acknowledged that a “reverse death knell” situation existed – by certifying the class, the threatened massive liability would induce the defendants to settle rather than defend the action on the merits.  Two factors weighing heavily on this finding were the size of the class and scope of potential liability.  The Sixth Circuit also determined that the district court’s grant of class certification weighed in favor of an interlocutory order.

Based on these findings, the Sixth Circuit granted defendants’ request to present the case before a merits panel for review.

Conclusion

The Sixth Circuit’s interlocutory order provides early insight on the intricacies and potential strengths and weaknesses of PFAS class action litigation.  While the interlocutory order is not a final order regarding the merits of the litigation, it is clear that the Sixth Circuit will be seeking additional legal and factual support from the plaintiff to justify the district court’s certification.  A date for the merits panel hearing has not yet been scheduled.  

Introduction

President Biden signed the Inflation Reduction Act of 2022 (the Act) into law on August 16, 2022.  The Act represents an expansive investment in the energy industry, with many provisions targeting clean energy and climate change issues through funding and tax credits.  However, several notable provisions from an environmental permitting and compliance standpoint are buried amongst the financial and tax provisions.  These environmental provisions relate to permitting and compliance that the regulated industry, especially energy companies, should watch closely.

Funding for Permitting and Programmatic Development

The Act provided significant funding to regulatory authorities for a number of permitting-related activities. 

For example, the National Oceanic and Atmospheric Administration (NOAA) received $20 million to assist with permitting and project review.  The funds are meant to result in more efficient, accurate, and timely reviews for planning, permitting and approval processes through hiring and training personnel and obtaining new technical and scientific services and equipment. 

The United States Environmental Protection Agency (U.S. EPA) received $40 million for its permitting and project review efforts.  The funds will be utilized to develop efficient, accurate, and timely reviews for permitting and approval processes through hiring and training of personnel, development of U.S. EPA programmatic documents, procurement of technical or scientific services for reviews, development of environmental data and new information systems, purchase of new equipment, developing new guidance documents, and more.

The Act provided over $62.5 million to the Council on Environmental Quality to develop programmatic documents, tools, guidance, and improvement engagement.  These funds will also support collection of data regarding environmental justice issues, climate change data, development of mapping/screening tools, and tracking and evaluation of cumulative impacts. 

Several other federal agencies received millions in funding for review and planning of electricity generation infrastructure, like the Federal Energy Regulatory Commission, the Department of Energy, and the Department of the Interior.  Funding will be used to facilitate timely and efficient reviews, as well as generate environmental programmatic documents, environmental data, and increase stakeholder and community involvement. 

In sum, regulators involved in environmental and energy permitting received a substantial boost in funding targeting the permitting process, including supporting the development and build out of programmatic documents and capabilities.  The funding could improve the timing of the permitting processes for these agencies, but it could also lead to additional administrative burdens in the form of new application and compliance materials and increased regulatory scrutiny where a regulator has more time and money to invest in the regulatory process.

Continue Reading Environmental aspects of the Inflation Reduction Act of 2022

As anticipated, on Friday the U.S. Environmental Protection Agency (EPA) issued a proposed Risk Management Program (RMP) Safer Communities by Chemical Accident Prevention rule pursuant to the Clean Air Act. The proposed rule would reinstate certain provisions newly introduced to the RMP rule (originally promulgated in 1991) late in the Obama administration and subsequently removed by the Trump administration in 2019.  The EPA has additionally added significant new requirements not originally in the 2017 draft RMP rule, including provisions aimed to further current policies on environmental justice and climate change.  The proposed RMP rule also appears to draw influence from recommendations made by the Chemical Safety Board (CSB) as well as state updates to process safety regulations in the past decade, most notably the California Accidental Release Prevention Program (CalARP) and the California Refinery Process Safety Management (PSM) Standard. 

These changes, including the addition of requirements regarding employee participation, public availability of information, inherent safety, third party auditing, facility siting and natural hazards consideration, as well as emergency response planning, will result in covered RMP facilities having to significantly revisit and revise their RMP programs and plans.  Certain requirements also appear to be directly aimed at limiting stationary sources’ ability to privately manage their internal risk management decisions.  For example, covered facilities would now be required to document any revisions between draft and final compliance audits and provide justifications for rejected RMP program recommendations.

According to EPA Administrator Michael Regan, “protecting public health is central to EPA’s mission, particularly as we adapt to the challenges of climate change, and the proposal announced today advances this effort, especially for those in vulnerable communities.  This rule will better protect communities from chemical accidents, and advance environmental justice for communities that have been disproportionately impacted by these facilities.”  EPA estimates the rule will cost approximately $77 million a year.

Comments on the proposed rule are due to EPA within 60 days of its publication in the Federal Register and may be submitted online, via mail, or hand-delivery.

Continue Reading EPA Proposes Expansive Changes to EPA RMP Rule

Over the last year, we have seen the emergence of a new carbon market based on the tokenisation of voluntary carbon credits. It represents a new, decentralised approach towards scaling up the carbon market, and it has seen very rapid growth since its inception.

The reasons for that growth are clear: it allows anyone with access to cryptocurrency software to instantly buy and sell tokenised carbon credits, without needing to hold an account in the underlying carbon credit program registry or undergo the usual KYC checks that come along with that. In that sense, it has the potential to unlock a huge segment of the carbon credit consumer market.

Like any new technology, it can be both a force for good and bad; the other side of the (digital) coin is that the proliferation of carbon credit-backed cryptocurrencies represents a threat to the integrity of the whole carbon market; it reality, a tokenised carbon credit is completely disconnected from the underlying carbon credit: it gives no right to the underlying credit, only a contractual right (as against the token issuer) to the environmental claims attached to it; and it is not controlled or backed by the carbon credit program provider. There is obvious scope for greenwashing and fraudulent schemes, which we have already seen happening.

It is clear that if the crypto carbon market is to have a future as a credible part of the wider carbon market, rather than as a marginal, high-risk product, it must be subject to controls to ensure that tokenised carbon credits possess the same fundamental attributes/qualities as the underlying carbon credits themselves, i.e. that the claimed carbon offsets must be real, additional, permanent, robustly quantified, independently verified, and uniquely claimed.

Continue Reading The crypto carbon market: where next?