Environment, Health & Safety incident response

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

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.


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

The EPA is moving towards establishing a drinking water standard for PFOA and PFOS, and has stated that it is considering avenues for regulating additional groups of PFAS under the Safe Drinking Water Act (SDWA) as well.  On February 22, 2021, the EPA announced two actions under SDWA to address PFAS.

First, the agency reissued the final regulatory determination to implement a National Primary Drinking Water Regulation (NPDWR) for PFOS and PFOA (the “Determination”).  This Determination is a continuation of an intended action under the Trump administration, but indicates the Biden administration intends to continue to move forward.  The Determination also states that the EPA is considering the regulation of additional PFAS chemicals.

Continue Reading EPA indicates intention to regulate certain PFAS in drinking water

California continues to move forward with new proposals for regulation and enforcement of workplace hazards associated with COVID-19.  As the Division of Occupational Safety and Health (“Cal/OSHA”) continues to develop a draft permanent standard to address COVID-19 hazards in cooperation with an advisory committee of various stakeholder groups, state legislators have proposed a senate bill to increase enforcement of “willful” violations on a per-employee basis.

Emergency temporary standard and permanent rule

Earlier this month, Cal/OSHA convened an advisory committee to provide input on possible changes to the COVID-19 Emergency Temporary Standard (“ETS”).  Over the course of three days of public meetings, the advisory committee discussed and debated potential clarifications as well as broadening or narrowing the scope of certain requirements.  Although no decisions were made during the meetings, the following were areas of focus where we can expect to see some changes to the ETS:

Continue Reading Cal/OSHA moves forward with development of permanent COVID-19 standard while legislature considers bill to increase enforcement

On January 19, 2021, in a 2-1 decision, the D.C. Circuit Court vacated the Trump administration’s 2019 Affordable Clean Energy (ACE) Rule and remanded it to the U.S. Environmental Protection Agency (EPA). The decision offers a strong statement about EPA’s breadth of authority to regulate greenhouse gases (GHGs) under the Clean Air Act (CAA) and, if its position is upheld, clears the way for the Biden administration to regulate power plants.

The Affordable Clean Energy Rule

The EPA promulgated the ACE Rule in 2019 under the CAA, replacing the Obama administration’s 2015 Clean Power Plan (CPP). Both rules sought to reduce GHG emissions from the power sector; but where the CPP implemented broader industry-wide mechanisms, the ACE Rule limited reduction efforts to the actual source power plants.

The 2015 CPP offered “beyond the fenceline” tools for states to reduce emissions by replacing fossil fuels with renewable energy sources and participating in emissions credit-trading programs; however, in February 2016 the U.S. Supreme Court stayed the implementation of the CPP pending litigation in the D.C. Circuit. During the stay and subsequent freeze of litigation, the Trump administration rescinded the CPP and promulgated the ACE Rule.

In promulgating the ACE Rule, the Trump EPA took an alternative view of the CAA than the Obama EPA and reasoned that the CAA expressly limited the EPA’s power to only “at the source” emissions reduction options, such as heat rate improvement technologies. As a result, the Trump administration removed all of the CPP’s “beyond the fenceline” options and limited emissions restrictions to those applied directly to power plants.

Continue Reading The fall of Trump’s Affordable Clean Energy Rule and the strengthened EPA authority to regulate greenhouse gases

The California Office of Environmental Health Hazard Assessment (OEHHA) has proposed to significantly amend the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65, to revise the method of transmission and content of State-approved “safe harbor” short-form warnings for consumer products.

OEHHA believes implementation of the warning regulations has revealed

Reed Smith’s U.S. based environmental team recently held a CLE webinar on what US environmental, health and safety legal and regulatory changes we can expect in 2021.  The webinar provided an insightful discussion on environmental policy and topics including:

  • Environmental Policy With Biden Win: Anticipating new federal regulation and enforcement actions
  • United States Supreme Court:

As the transition in presidential administration draws closer and COVID-19 cases continue to increase in certain parts of the country, it appears increasingly likely that the Occupational Safety and Health Administration (“OSHA”) will undertake a rulemaking relating to COVID-19.  Additionally, state plan OSHA agencies continue to revise and issue guidance relating to their own rules,

Just one week after the California Division of Occupational Safety and Health (“Cal/OSHA”) made its proposed COVID-19 Emergency Regulation (“COVID-19 Rule”) available, the Occupational Safety and Health Standards Board (“OSHSB”) responsible for approving such regulations unanimously passed it without revisions.  Cal/OSHA is the fourth state OSHA plan to promulgate a rule to address COVID-19, following Virginia, Oregon, and Michigan.  The Washington Department of Labor & Industries has made violations of emergency proclamations subject to workplace safety citations.

In response to OSHSB’s September granting of a labor advocacy group’s petition seeking COVID-19 regulation of employers, on November 11, 2020 Cal/OSHA issued a 21-page draft COVID-19 Rule along with a notice of emergency.  Although employers and workers in California were not provided the ordinary months of time usually associated with rulemakings to review and digest the draft COVID-19 Rule, participation in the OSHSB November 19, 2020 public meeting was significant.  With over 500 virtual participants, not including those on the phone or live streaming, and 150 verbal commenters, the public meeting lasted over ten (10) hours.  The Board Chair estimated that the meeting had four times the usual number of attendees, and technical challenges occurred throughout the discussion.  Commentary was wide ranging with employee and industry interests equally represented.  Individual workers and labor groups generally urged OSHSB to adopt the ETS immediately and to consider the addition of future anti-retaliation provisions, while employer and industry representatives expressed frustration with the lack of stakeholder input or engagement, questioned whether Cal/OSHA has the authority to regulate wage and leave issues, pointed to the effectiveness of existing orders, and identified implementation challenges and inconsistencies with other California laws regulating COVID-19 response that have yet to become effective (i.e., AB 685).

Continue Reading California rapidly approves sweeping Cal/OSHA emergency COVID-19 regulation

Organizations closely scrutinizing PFAS, like the Environmental Working Group, are touting loudly that the Biden administration will address PFAS and speculating on how the Biden Administration might approach the chemicals by setting enforceable drinking water limits, designating the substances as hazardous and finding PFAS substitutes for consumer items.

Under President Trump, EPA touted its