Chinese Supreme Court swims against current on liability under Bunker Convention

The PRC Supreme Court has deviated from the accumulated legal precedent regarding liability for pollution under the International Convention on Civil Liability for Bunker Oil Pollution Damage (the Bunker Convention) and held the owners of a non-leaking vessel liable for clean-up costs and pollution damage. Continue Reading

European Commission seeking feedback on proposed review of the EU Non-Financial Reporting Directive

The European Commission is seeking feedback on a proposed initiative to revise the EU Non-Financial Reporting Directive (NFRD) (EU Directive 2014/95/EU), with submissions due by 27 February 2020.

The NFRD requires certain large companies to annually disclose a range of non-financial information, including in relation to the environment, social and employee matters, human rights, and anti-corruption and bribery matters.

The demand for (and expectation of) companies to disclose substantial and accurate non-financial information is growing within the EU. Aware of this development and in accordance with its support for sustainable investment, the European Commission is proposing a review of the NFRD in 2020.

The European Commission has, in particular, identified the need to improve access to publicly available information about non-financial issues and to reduce any unnecessary burden on companies. Policy options proposed for consideration by the Commission include the continued use of non-binding guidelines, the use of standards or revising and amending the NFRD itself.

For more information on the context, objectives, policy options and potential impacts, please refer to the European Commission’s Inception Impact Assessment, available here.

Feedback must be submitted by 27 February 2020 through the European Commission’s online portal, available here.

Please refer to our separate blog posts on the corporate reporting requirements under the Streamlined Energy and Carbon Reporting regime, here; or under the Energy Savings Opportunity Scheme, here.

Washington releases draft refinery PSM rule and economic survey

The Washington State Department of Labor and Industries (L&I or Department) recently released two documents related to its development of a refinery-specific process safety management (PSM) rule. First, L&I released a revised draft of its proposed refinery-specific PSM rule language; the Department, however, will not be accepting comments on this language until formal rulemaking begins in May 2020. Second, the Department issued an economic survey for refineries, which L&I will use to develop an economic impact statement and cost-benefit analysis. The survey asks refineries to estimate the internal costs of compliance, anticipate any necessary programmatic changes, and describe current processes related to the proposed rule elements. Refineries must return the survey to the Department by February 13, 2020.

Washington is the second state to consider a refinery-specific PSM rule. California’s regulation, codified at 8 C.C.R. section 5189.1, went into effect in October 2017. Washington’s proposed language, which was first circulated in January 2018, draws heavily from California’s rule. Specifically, Washington proposes to adopt all new PSM elements implemented in California that were not required by the federal PSM or the state’s non-refinery-specific PSM rules, although the Department is not proposing language identical to that in California’s rule within each of these elements. These elements include requiring refineries to perform damage mechanism reviews, hierarchy of hazard controls analyses, management of organizational change analyses, and process safety culture assessments. As in California, Washington’s proposed language would introduce several new defined terms, including definitions of “Major Change” and “Major Incident,” and broaden the scope of existing terms in ways that will expand the potential applicability of the rule to those parts of refineries currently considered to be non-process areas.

Washington’s draft rule language is available here and the economic analysis survey is available here.

CSB proposes rule on accidental release reporting

The U.S. Chemical Safety Board (CSB or Agency) recently published a Notice of Proposed Rulemaking for its accidental reporting rule in the Federal Register (Proposed Rule). The CSB was established by the Clean Air Act Amendments of 1990, which directed the Agency, among other things, to investigate and report on any accidental release “resulting in a fatality, serious injury or substantial property damage.” The statute also required the CSB to issue a rule governing the reporting of accidental releases to the CSB under 42 U.S.C. section 7412(r)(6)(C)(iii), which the Agency has not done since it began operations in 1998. Following a lawsuit by advocacy groups, the Agency is now being required by court order to promulgate reporting requirements by February 2020. Continue Reading

OSHA conducts public stakeholder meeting on safety key performance indicators

On November 7, 2019, OSHA held a public stakeholder meeting on safety key performance indicators (KPIs).  During this meeting, the agency sought input from employers and industry groups on leading and lagging safety KPIs.  Specifically, OSHA aimed to gather information about: (1) how companies regularly implement leading indicators; (2) how the information is used to strengthen work protection best practices; (3) the possibility of creating a digital library of leading indicators accessible on the OSHA website; and (4) next steps for OSHA’s leading and lagging indicators.  The agency did not specify how this information would be used and, specifically, whether it would be utilized to develop a future rulemaking or guidance document.

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Next ESOS compliance period commencing

The end of the current Energy Savings Opportunity Scheme (ESOS) compliance period (and associated notification by the end date of 5 December 2019) is fast approaching in the UK. The next ESOS compliance period commences on 6 December 2019 and will require companies to assess if they are within scope of the ESOS.

Introduced under the Energy Savings Opportunity Scheme Regulations 2014, the ESOS transposes the energy audit requirements from the EU Energy Efficiency Directive (2012/27/EU) into national law, and prescribes mandatory assessment and auditing requirements for large companies (or small or medium-sized companies where they are in a corporate group with a large company).

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EPA again rolls back Obama Administration RMP regulations

The U.S. Environmental Protection Agency (EPA) has finalized a reconsideration rule rescinding many of the agency’s changes and additions made during the Obama administration to strengthen the Risk Management Program (RMP) regulations that address facilities using highly hazardous chemicals. This rulemaking follows the D.C. Circuit’s decision in 2018 that the EPA’s previous effort to rescind the new RMP elements was not justified by sufficient rationale, and so includes additional information regarding the basis for the agency’s decision. The new reconsideration rule specifically rescinds requirements relating to root cause analysis incident investigations, third-party audits, safer technology and alternatives analysis (STAA), and public availability of information, but retains certain requirements relating to emergency response and coordination.

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Northeast’s plan to cap vehicle carbon emissions: reducing emissions or reducing jobs?

The Transportation and Climate Initiative (TCI) is a collaboration of 13 Northeast and Mid-Atlantic jurisdictions, including Pennsylvania, New York, New Jersey, and Washington, D.C. The TCI’s goal is to increase the use of clean transportation and energy, and reduce carbon emissions, in the transportation sector. TCI jurisdictions are in the process of developing a plan to lower carbon emissions from transportation through a cap-and-invest program. Under the TCI plan, states would 1) put a cap on vehicle carbon emissions, which would decrease annually, 2) require large fuel suppliers to purchase allowances for the pollution resulting from their sales, and 3) use the proceeds from the allowances to fund programs that increase clean energy, for example, encouraging the use of bikes and electric vehicles.

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Continued Brexit uncertainty for UK carbon emitters in EU ETS

In May 2019, we blogged about the UK government’s consultation on which direction UK carbon emissions policy should take post Brexit, with the preferred course being a UK-only ETS (emissions trading scheme) that is formally linked with the EU ETS. Please click here to read more.  The government is due to publish its full response to that consultation shortly and we will report on its response in due course. In the meantime, the government has had to publicly address the ongoing uncertainty for UK emitters created by the recent Brexit ‘flextension’, and take steps to implement Phase IV of the EU ETS into UK law.

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Adjustment to the covered electronic waste (CEW) recycling fee for covered electronic devices (CED)

On October 8, 2019, the Office of Administrative Law approved an adjustment to the covered electronic waste (CEW) recycling fee for covered electronic devices (CED). This CEW recycling fee is assessed when a California consumer buys a CED – generally, any video display device with a screen larger than four inches – from a retailer. These fees fund the CEW Recycling Program, which is run by the Department of Resources Recycling and Recovery (CalRecycle). At least once every two years, CalRecycle is required to assess the adequacy of the CEW recycling fee to generate sufficient revenues to fund the operation and administration of the CEW Recycling Program. This year, the CEW recycling fees were decreased by a dollar. The new fee levels are:

  • four dollars ($4) for each CED with a screen size of less than 15 inches measured diagonally;
  • five dollars ($5) for each CED with a screen size greater than or equal to 15 inches but less than 35 inches measured diagonally; and
  • six dollars ($6) for each CED with a screen size greater than or equal to 35 inches measured diagonally.

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