California extends comment period for proposed modifications to Proposition 65 warnings

California’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the public comment period for the proposed amendments to their “short-form” Proposition 65 “safe harbor” warning regulations in response to a request from the California Chamber of Commerce. OEHHA’s proposed amendments change existing provisions addressing label size, catalog and internet warnings, and other issues (see here for our earlier summary report). Due in part to the intervening holidays, OEHHA now must receive comments on the proposed modifications by January 21, 2022.

Once finalized, the new regulations would become operative one year after the effective date of the amendments.  OEHHA believes that is sufficient time to allow stakeholders to continue using the current short-form warning until such effective date. OEHHA also proposed last year to allow an “unlimited sell through period for products that had compliant warnings when they were manufactured, thus allowing businesses to avoid recalling items in the stream of commerce to apply the modified short-form warning.”

Stakeholders will have a small window of time to react if and (more likely) when the amendments are adopted. However, the best opportunity is now for providing input to OEHHA – particularly on issues such as a more reasonable transition time to implement new warnings. There is no guarantee that OEHHA will seek any further comments, so we recommend providing input before the January deadline.

California proposes further modifications to its “Short-Form” Proposition 65 warnings

As we reported this past year, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to significantly amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) to limit use of the previous State-approved “safe harbor” short-form warnings for regulated chemicals in consumer products.  The State announced on December 13, 2021 further amendments to the proposed regulations, but generally continues to propose that use of the current “short form” safe harbor warning be dramatically scaled back, which will impact thousands of consumer products by requiring more specificity in future warning language.

As background, current California law allows a manufacturer, distributor or retailer of a consumer product to place either a “long form” or “short form” warning on the product or product packaging if one or more of 900+ regulated chemicals is in the product.  The long form warning identifies by name “at least one” chemical from each regulated chemical risk category (i.e., carcinogens or reproductive toxicants).  The short form alternate warning only requires identification of the risk category (ies) – not particular chemicals.

After reviewing over 160 written and oral comments on a prior proposed version of the regulations, OEHHA modified the proposed regulation again to:

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New rules to facilitate intra-EU waste shipments to promote circular economy and tackle the export of illegal waste and waste challenges to third countries

Following the European Commission review of the Waste Shipments Regulation ((EC) No 1013/2006) (WSR) (see our earlier post) the Commission has proposed tougher rules on waste exports, a more efficient system for the circulation of waste as a resource and better addressing the problem of illegal waste shipments.

Under the revised proposal, waste exports to non-OECD countries will only be permitted if third countries issue an official request to import non-hazardous waste from the EU and demonstrate they can manage it sustainably. The Commission will monitor waste shipments to OECD countries and will be able to suspend shipments if they generate serious environmental problems in the destination country. The revision increases administrative penalties for illegal shipments.

EU companies that export waste outside the EU will be required to carry out independent audits to demonstrate that the facilities receiving their waste manage it in an environmentally sound manner. The proposal also allows for criteria to differentiate between waste and used goods (such as used vehicles and batteries).

Within the EU, it is proposed to simplify the procedure for exporting waste. This includes digitalising procedures governing waste shipments, which is currently a very paper-heavy process. There will be fast-track procedures for shipments of waste for recovery destined to pre-consented facilities and stricter conditions for shipments of waste destined for incineration or landfill. It is also proposed to streamline the calculation of financial guarantees for shipping notified waste abroad.

The management and prevention of waste is a key part of the circular economy. The Commission is seeking to help reduce the EU’s dependency on primary raw materials and support decarbonisation of EU industry.

Details of the proposal can be found here.

EPA issues proposal to reduce GHGs and VOCs from new and existing oil and natural gas sources

In response to President Biden’s Executive Order entitled, “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis,” the Environmental Protection Agency (EPA) recently issued a proposed rule taking aim at greenhouse gases (GHG) and volatile organic compounds (VOC) emissions from new and existing oil and natural gas production, processing, transmission, and storage facilities.  The proposal contains three basic components.  In a break with precedent, EPA did not provide proposed regulatory language.

First, the proposed rule would revise the new source performance standards (NSPS) for GHGs and VOCs for new, modified, and reconstructed sources, including the production, processing, transmission, and storage segments.  Specifically, EPA proposes to a new subpart OOOOb that would update and expand the current requirements under CAA Section 111(b) for methane and VOC emissions from sources constructed, modified, or reconstructed after November 15, 2021.  NSPS OOOOb would include standards for emission sources not regulated previously under the 2016 NSPS OOOOa.  Among other changes, EPA proposes to apply to VOC emissions thresholds to storage vessel tank batteries as opposed to individual storage tanks.  EPA has also suggested a change to the definition of legal and practical enforceability which could impact the utilization of state-level permitting previously used to reduce the potential to emit to below the 6 ton per year VOC-threshold.

Second, the proposed rule would create a new subpart OOOOc that would contain the first nationwide emissions guidelines (EG).  The EG would be a state model rule that states could use to develop, submit, and implement state plans that establish performance standards to limit GHGs from existing sources.

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Update on OSHA vaccine ETS litigation: Challengers seek hearing en banc as government moves to dissolve stay

After the Sixth Circuit was selected via a lottery in November to hear the consolidated challenges made against the recent OSHA emergency temporary standard (the “ETS”), there has been a flurry of activity in the case.  There are currently two main issues pending before the court, which will certainly shape the dispute: (1) several petitioners have asked for an initial hearing en banc (i.e., requesting the full court—and not just a three judge panel—to decide the case initially); and (2) the government has asked the court to dissolve the Fifth Circuit’s stay.  Read more about these updates in the challenges to OSHA’s vaccine ETS on Reed Smith’s Employment Watch blog.

The U.S. Army Corps of Engineers pauses certain Section 404 nationwide permits

On November 4, 2021, the Army Corps of Engineers (ACOE) announced that it is pausing all requests for coverage under 12 nationwide permits (NWPs) issued earlier this year, including widely used permits for utility and oil and gas projects, among others.   The announcement followed a California district court’s decision vacating the Section 401 Water Quality Certification Rule (2020 401 WQC Rule) adopted by the Trump Administration in 2020.  Important questions remain about how ACOE intends to proceed while coverage is paused.

Section 404 of the Clean Water Act (CWA) authorizes the ACOE to regulate the discharge of dredged and/or fill material into waters of the U.S.  The CWA also requires that any person applying for a Section 404 permit also obtain a Section 401 Water Quality Certification (401 WQC) from the state, confirming that the discharge of fill materials will be in compliance with applicable water quality standards.  States must also issue 401 WQCs for all activities occurring in their state per a NWP.

On January 5, 2021 ACOE released the final version of a rule revamping certain NWPs issued pursuant to Section 404.  NWP 12 (as it existed prior to January 2021) was a general permit covering a range of activities such as utility line installation, development projects, road crossings, etc.  The January rule reissued and modified 12 NWPs and issued four new NWPs, following an April 2020 decision by the U.S. District Court for the District of Montana vacating a prior version of NWP 12These permits include:

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UK product safety regime: OPSS publishes its call for evidence response

In March 2021, the Office for Product Safety and Standards (“OPSS”) published a call for evidence seeking views on possible changes to the UK product safety regime post-Brexit, including to address new methods of manufacture and distribution, new products and technologies such as artificial intelligence, and environmental considerations. Following the deadline to respond to the consultation earlier this year – the OPSS reviewed the responses and, on the 11 November 2021, published its analysis. The government intends to use the information supplied, alongside wider evidence and research, to shape policy proposals for the UK’s product safety framework to ensure it is future facing and optimised for UK consumers, businesses and enforcement agencies.

Three key themes emerged from the call for evidence, those being; the need for an outcomes-focused and risk-based approach; the need to adapt to challenges and opportunities; and the need for greater simplicity, proportionality and consistency. Taking these themes in turn, firstly, the OPSS acknowledged that the UK’s current system of regulation is in need of modernisation in order to keep up with today’s models of supply and products. This is especially true given the advance of technology and its impact on how we buy products today, as shown by the growth of third-party listings on online platforms and the ability to buy directly from abroad. The respondents suggested that, to keep up with today’s models of supply and products, the government could impose higher requirements for tests, assessment and transparency for products presenting greater inherent hazard and, where relevant, higher levels of risk in the supply chain.

Secondly, the respondents noted that the future framework needs to be able to adapt in order to keep up with future supply chain and product innovation, and to avoid gaps in enforcement and facilitate safe innovation. The government should also go further to understand the product safety challenges faced by consumers at points of vulnerability, and expand access to data and evidence. As products become increasingly energy and resource efficient, in line with consumer concerns about the environment, it is important that consumers can have confidence in their safety.

Finally, the respondents addressed the need for greater simplicity, proportionality and consistency across legislation and powers. Many aspects of the current framework, such as efficient self-declaration systems and standards that offer a presumption of conformity, work well as they are. However, the future framework needs to be as simple and proportionate as possible. The OPSS acknowledged these concerns, and supported the need for legal definitions and enforcement powers across legislation, while also ensuring that regulation is always well-aligned with real life levels of inherent hazard and supply chain risk.

The OPSS’ response concludes by noting that, while the current framework has its strengths, it is facing “significant and growing challenges and needs to be radically reformed to be more adaptable and capable of responding to accelerating change”. The government recognises the need for a long-term approach and for there to be regulatory change to fully address the challenges raised by the respondents. In the meantime, immediate action can be taken in areas where legislation is not necessarily required – such as implementing measures to ensure consumers are protected when using the internet and that online markets remain fair, and addressing the need for greater simplicity, proportionality and consistency through training and guidance for enforcement authorities, and developing voluntary standards and tools to help businesses meet their legal duties when placing products on the market.

The Call for Evidence Response is available here.

Post-COP26: A follow-up briefing on key business issues

Prior to COP26, we published an article that identified several issues being discussed at COP26 that could be of critical importance to business.

During COP26, we followed the developments of these issues in a special Viewpoints series.

And now that COP26 is concluded, people are asking: What impact did it have? Where does the world stand on these issues?

You probably read the mixed reviews with regard to success of this COP. The New York Times reported Nov. 13 within minutes of the banging of the final gavel: “Global negotiators in Glasgow agreed to do more to fight climate change and aid vulnerable nations, but left crucial questions unresolved.”

What was resolved? For those of us who have studied agreements coming out of the COPs, this agreement, called the Glasgow Climate Pact is notably weak. The parties could only agree to language that “notes” certain issues or “urges” certain actions, as opposed to strong language that “decides” any points or “commits” parties to any defined metric.

The Pact does “reaffirm” the Paris Agreement temperature goal of holding the increase in the global average temperature to well below 2 degrees Celsius above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5 above pre-industrial levels but that will require all nations to slash their carbon dioxide emissions by nearly half this coming decade to hold warming below 1.5 degrees Celsius.

However, the Pact merely “emphasizes” the urgent need for parties (as opposed to “the parties agree to…”) to increase their efforts collectively to reduce emissions through accelerated action and implementation of domestic mitigation measures in accordance with Article 4, paragraph 2, of the Paris Agreement and merely “urges” parties that have not yet communicated new or updated nationally determined contributions (NDCs) to do so as soon as possible in advance of the next session of the Conference of the Parties (as opposed to “the Parties that have not yet communicated new or updated nationally determined contributions agree to submit by [insert date]”).

It also “urges” wealthy nations (as opposed to “wealthy nations agree…”) to “at least double” funding by 2025 to protect the most vulnerable nations from the hazards of a hotter planet. And it explicitly mentions the need to curb fossil fuel usage, the first time a global climate agreement has done so.

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OSHA’s vaccine ETS has arrived for large private employers

On October 21, 2021, we published an article called “Waiting for OSHA: pending vaccine ETS and increased enforcement.” In the article, we discussed the then-pending Emergency Temporary Standard (ETS) regarding vaccinating the workforce OSHA was tasked with developing by President Biden in his “Path Out of the Pandemic” memorandum. The ETS is scheduled to be published and take effect on Friday, November 5, 2021. An in-depth summary of the major components of the ETS can be found here.

What does success look like at COP26?

As with any multinational showcase meeting, delegates at each COP (and especially its host) want the meeting to be seen as a success. As the 26th COP approaches, it is in some ways salutary to look back at previous COPs and identify those outcomes which made them a hallmark meeting and the failures which made others less memorable. In recent years, COP15 in Copenhagen was regarded as a failure because despite high hopes and great hoopla it failed to gain agreement by the UNFCCC signatories on taking action to reduce carbon emissions and ended with the weak “agreement to agree” known as the Copenhagen Accord. The COP21 in Paris is regarded as a success in that 196 countries agreed to take action to slow and eventually reduce carbon emissions (“Paris Agreement”). Furthermore, the Paris Agreement aspired to limit global warming to 1.5 degrees above pre-industrial levels, adding to the 2 degree limit from 1970 temperatures. Of course, there was much else that was positive to come out of Paris, including a commitment by developed nations to deliver $100 billion a year for five years from 2020 to help poorer countries address climate change. There were a number of other significant agreements which we have considered previously.

However, as a delayed COP26 is about to start, the world in which the Paris Agreement was fashioned looks markedly different to the world today. In 2015 relations between the major industrial nations were more cordial (or at least not as fractious) as they are today. Heads of governments and business leaders were both present and committed. Climate change featured large on political and social agendas; the Pope issued his encyclical ‘Laudato si’, calling for human action to combat global warming; the host country generated over 90% of its electricity from zero carbon sources (including nuclear), and, whilst the issues were pressing, they still seemed solvable, provided countries delivered on their Nationally Determined Contributions (NDCs).

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