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Environment, Health & Safety regulatory compliance

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…

Since President Joe Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 on September 9, 2021, employers have had to navigate piecemeal instructions on vaccine mandates.  For example, federal contractors and subcontractors received vaccine mandate guidance from the Safer Federal Workforce Task Force on September 24, 2021.  However, employers should not grow too comfortable with the current status of pandemic regulations, which continue to change in various jurisdictions and will again on a federal level soon.

OSHA’s Emergency Temporary Standard

In his “Path Out of the Pandemic” memorandum, President Biden specifically tasked the Occupational Safety and Health Administration (OSHA) with developing a rule to encourage vaccinations among the workforce – the Emergency Temporary Standard (ETS).  The ETS will require employers with over 100 employees to do the following:

  1. either (a) ensure all employees are fully vaccinated, or (b) require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work; and
  2. provide paid time off for any time to get vaccinated and/or to recover if they are ill post-vaccination.

State plans will be required to implement equally protective rules within 30 days.  Though not yet available for review, the status of the pending ETS remains under review by the White House Office of Management and Budget.Continue Reading Waiting for OSHA: pending vaccine ETS and increased enforcement

On October 18, 2021, the U.S. Environmental Protection Agency (EPA) announced a per- and polyfluoroalkyl substances (PFAS) Strategic Roadmap (the Roadmap) detailing steps that the EPA plans to take to address PFAS contamination. PFAS are largely unregulated, but studies linking certain PFAS to health issues and their persistence in the environment and human body are driving the push for increased regulation. Currently, the EPA has established only a non-enforceable health advisory level for two PFAS, perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS). Additionally, some states have been moving forward at different speeds to establish state-specific PFAS regulations, including drinking water standards and cleanup levels for soil and groundwater remediation. However, the EPA’s Roadmap suggests increased federal regulation looms.

The EPA’s approach under the Roadmap considers the lifecycle of PFAS, focusing not only on remediating PFAS-contaminated sites and regulating PFAS discharges or emissions, but also regulating PFAS at the upstream level where they are produced and incorporated into products. Other areas of focus called out in the Roadmap include (1) an emphasis on enforcement actions at PFAS-contaminated sites and placing responsibilities for limiting exposure on manufacturers, processors, distributors, and similar users; (2) research into PFAS over health effects and remediation technologies; and (3) an environmental justice focus on prioritization of PFAS effects on disadvantaged communities.Continue Reading U.S. EPA releases Roadmap to address PFAS contamination

Last month, the European Commission published two new proposals for EU regulations to encourage the use of sustainable fuels in aviation and shipping – namely the ReFuelEU Aviation and FuelEU Maritime initiatives, respectively. Both proposals are subject to public feedback until 5 October.
Continue Reading European Commission publishes new initiatives concerning sustainable transportation

As we reported, the California Legislature passed SB 1014 – the Clean Miles Standard and Incentive Program (the “Clean Miles Program”) – to reduce greenhouse gas emissions from “rideshare” vehicles. This led to the creation of the Clean Miles Standard regulation, which the California Air Resources Board (“CARB”) fully adopted in May 2021 after receiving stakeholder input. In sum, the Clean Miles Program directed CARB and the California Public Utilities Commission (“CPUC”) to develop and implement new requirements for transportation network companies (“TNCs”) like Uber and Lyft.  In this blog post, we discuss the goals and three core requirements of the Clean Miles Program, the new regulations CARB just adopted in furtherance of those core requirements, and other obligations that lie ahead for TNCs.

The Clean Miles Program sets more stringent emissions standards for TNCs over time and encourages TNC drivers to shift to electric vehicles.  The Clean Miles Program has three core requirements:

  • In 2020, CARB established a greenhouse gas (“GHG”) emissions baseline for vehicles used in TNCs on a per-passenger-mile basis using 2018 as the base year;
  • In 2021, CARB and CPUC adopted and implemented, respectively, targets and goals (beginning in 2023) for TNCs to reduce GHG emissions per passenger-mile driven; and
  • By January 1, 2022, and every two years thereafter, each TNC shall develop a GHG emissions reduction plan.

 CARB satisfied the first requirement and determined the baseline emission rate (301 grams of carbon dioxide (“CO2“) for each mile traveled.

In furtherance of the second and third requirements—CARB adopted (in May 2021) a “Clean Miles Standard” regulation that imposes new requirements that require TNCs to provide information including, but not limited to: (i) total miles that TNC drivers complete; (ii) share of miles completed by qualified “zero-emissions” (e.g., zero-emission vehicle); (iii) miles-weighted average of network-wide CO2 to produce an estimate of the GHG emissions; and (iv) total passenger-miles completed using an average passengers-per-trip estimate to account for trips where exact passenger headcount was not captured.  The new regulation also requires TNCs to submit annual reports and a compliance plan every two years starting in January 2022.Continue Reading Electrifying transportation network companies in CA: Updates to SB 1014’s Clean Miles Standard + Incentive Program

On Friday, June 25, 2021, the U.S. Supreme Court reversed a Tenth Circuit Court decision that had vacated an Environmental Protection Agency (“EPA”) exemption relieving small refineries from the fuel blending requirements of the Renewable Fuel Program (“RFP”), codified by 42 U.S.C. § 7545(o). The decision represents a huge victory for small refineries.

In an effort to reduce greenhouse gas emissions and reduce America’s dependence on imported oil, Congress created the Renewable Fuel Program in 2005, and expanded it in 2007, to require gasoline sold in the United States to contain a certain blend of renewable fuels. However, Congress created a temporary small refinery exemption to avoid disparately impacting small refiners (defining a “small” refiner as one with an average daily crude oil throughput of 75,000 barrels or less). Although the exemption applied through 2011, any small refinery could petition the Department of Energy for a two-year extension of the exemption. After two years, Congress permitted small refineries to petition for additional extensions of the exemption in circumstances of “disproportionate economic hardship,” as determined by the EPA.

The Court’s decision in HollyFrontier Cheyenne Refining, LLC, et al. v. Renewable Fuels Association et al. considered whether the EPA could grant an extension to small refineries that did not continuously receive a hardship exemption each year since 2011. Renewable fuel producers argued that small refineries must have a continuous, unbroken exemption to be eligible for an extension. However, the Court held that the statutory language of the RFP, under 42 U.S.C. § 7545(o), imposed no continuity requirement upon small refineries, confirming that a small refinery that previously received a hardship exemption may obtain an extension even if it did not continuously receive the exemption.Continue Reading Supreme Court Update: Supreme Court reaches decisions on HollyFrontier and PennEast Pipeline cases