EU Commission avoids answering questions on the details of its plans to establish a “right to repair”

The EU Commission’s commitment to establish a “right to repair” as part of its Circular Economy Action Plan has led to much speculation about what exactly that might entail. While the Commission has not yet revealed many details of its plans, it has confirmed it is considering implementing a “repairability scoring system”, similar to the repairability index recently established under the French CE law.

On 17 March 2021, the following question was posed by a member of the European Parliament to the Commission:

Last November, Parliament adopted a resolution calling on the Commission to introduce a legislative proposal regulating the ‘right to repair’. In pursuit of a more sustainable single market, the Commission presented its new Circular Economy Action Plan, pointing to the further development of the ‘right to repair’.

  1. Is the Commission considering the solutions that have already been implemented in some Member States, such as the ‘repairability index’ introduced by France?
  2. How does the Commission envisage the coexistence of national systems alongside an EU-wide system that is yet to be defined?
  3. Is the Commission considering setting up a system similar to that in place for energy efficiency, with a scale of colours and letters, to make it easier for consumers to understand?

The Commission has now responded to these questions (on 25 May 2021). Unsurprisingly perhaps, its response gives very little away. The Commission merely stated that it is currently working to identify the most effective approach, and that a colour-coded labelling system is being contemplated. Further, the Commission ducked the important second question and simply indicated that it intends to consider how an EU-level law will operate in the context of existing, similar obligations in place at the member state level, and that this will be fleshed out in an impact assessment which will be published prior to any proposed legislation. The Commission’s full response is as follows:

As part of its commitment to establish a ‘right to repair’ the Commission is considering different solutions that place consumers in the position to choose reparable and durable products, including the possibility to introduce a reparability scoring system comparable to the index introduced by France.

To this end, the Joint Research Centre has performed an extensive study on reparability and the development of a scoring system for repair and upgrade of products. An additional study on the effects of reparability scoring on consumer behaviour was carried out in 2020, of which the outcome was published in February 2021. Colour coding was one of the analysed options for the presentation of reparability scores. The study on consumer behaviour concluded that providing reparability information through a scoring system is effective in guiding product choices of consumers towards more reparable products.

Based, among others, on the outcome of the abovementioned studies the Commission is considering different means to implement a reparability-scoring index. A possible proposal would be preceded by an impact assessment which, in accordance with the better regulation guidelines, would also consider the added value of EU action as opposed to action at the national level.

Plainly the second question is a key question and it would be wholly impractical for companies supplying goods across the EU to be faced with a patchwork system of scoring and labelling requirements. Whilst the Commission may not wish to admit it just yet, it seems inevitable that the Commission will have to introduce a harmonised system that will eventually trump any inconsistent member state scheme.

European Commission unveils CLP and REACH revision roadmaps

On 4 May 2021, the European Commission (“the Commission”) published two important roadmaps to revise two of the main instruments comprising the existing EU chemicals legislation, these being the Classification, Labelling and Packaging Regulation (“CLP”) and the EU Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”). The roadmaps can be accessed here. These revisions form part of the EU’s Chemicals Strategy for Sustainability (“the Chemicals Strategy) to achieve the EU Green Deal’s zero pollution ambition for a toxic-free environment.

The draft revisions are expected to take until 2022 to be published, with the objective to improve the protection of people and the environment against hazardous chemicals in line with the Green Deal’s ambitions. Equally, the EU wishes to seize this opportunity to cement its status as a global leader in chemicals production and use. However, questions remain as to the exact scope of the revision plan for both of these pieces of legislation. A brief overview of the plans for both is set out below. Continue Reading

Cal Safety Standards Board defers voting on second COVID-19 ETS until June

Earlier today, the California Occupational Safety and Health Standards Board held a public meeting to consider, among other items, the California Division of Occupational Safety and Health (Cal/OSHA) revised COVID-19 Prevention Emergency Temporary Standard (ETS), which was developed to replace the existing ETS that has been in place since December 1, 2020.

During the initial portion of the meeting, the Standards Board heard comments from the public and various stakeholders, who, as during previous public meetings, advocated for and against continued restrictions in the workplace. Following the public comment portion, Eric Berg on behalf of Cal/OSHA described the timeline of the agency developing the rule and finalizing its draft revised ETS.  In particular Berg noted that, after the rule was developed, the Centers for Disease Control and Prevention (CDC) issued new guidance that vaccinated individuals could go without masks indoors, followed by the California Department of Public Health (CDPH) announcement that it would implement the same guidance on June 15, 2021.  This caused Cal/OSHA last night to send a memorandum to the Standards Board requesting that the Board not adopt the revised ETS because the agency wanted to have the opportunity to revisit the proposed rule in light of the updated CDC guidance, and re-submit a proposed rule at a future date.  Berg reiterated this request during the meeting, indicating that Cal/OSHA would like to target implementing a revised draft of the ETS on June 15, to coincide with the governor’s lifting of mask requirements.

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Cal-OSHA proposes changes to COVID-19 emergency regulation

With vaccination rates on a rise, the California Department of Occupational Safety and Health (“Cal-OSHA”) have proposed revisions to the COVID-19 Emergency Temporary Standards (“ETS”).  On May 20, 2021, the California Occupational Safety and Health Standards Board is expected to decide on whether to send the draft revisions to the Office of Administrative Law (“OAL”).  If these revisions are received by the OAL, they are only required to allow 5 calendar days for submission of comments and 10 calendar days for review before filing with the Secretary of State. Therefore, the potential new COVID-19 emergency regulation amendments could become effective by early June.

Read our full summary about these new developments in our Employment Law Watch blog.

ESG Update: At a glance summary of proposed Corporate Sustainability Reporting Directive

In our previous ESG Update blog, we described what the then anticipated new EU-wide Sustainable Corporate Governance requirements might look like.

On 21 April, The European Commission published a draft of the proposed new Corporate Sustainability Reporting Directive (CSRD). It will completely replace and significantly expand the scope of the current EU Non-Financial Reporting Directive. This short blog summarises its key features. Continue Reading

Upcoming hearing regarding new marijuana smoke and THC Proposition 65 warnings

As we reported earlier, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) by adopting tailored safe harbor warnings for cannabis (marijuana) smoke and delta-9-tetrahydrocannabinol (delta-9-THC) exposures.  OEHHA has now scheduled a virtual public hearing on May 10, 2021 at 1:00 p.m.  Accordingly, the public comment period for this proposed action has been extended; written comment submissions must be received by May 24, 2021.

Relevant for stakeholders, per a recent review of Proposition 65 Notices of Violations (“NOVs”) for the first quarter of 2021, Marijuana Smoke and THC have only been noticed twice. However, the amount of NOVs for Marijuana Smoke and THC is likely to rise once the new warnings are implemented.

California Proposition 65 updates regarding cooked or heat processed foods

The California Office of Environmental Health Hazard Assessment (“OEHHA”) recently modified the text of its proposed Proposition 65 regulation regarding warnings for chemicals formed in foods by cooking or heat processing (most frequently associated with the formation of the carcinogen acrylamide during the cooking process).  OEHHA removed two food categories from the warning requirement (almond butter and prune juice) in response to comments received on its earlier proposal, as well as making some other minor clarifications. The public comment period on the modified amendments will close on May 7, 2021. See here for our earlier analysis on this important update to Proposition 65.

Per a recent review of Proposition 65 Notices of Violations (“NOVs”) for the first quarter of 2021, acrylamide is in the top three of most frequently noticed chemicals (190 total NOVs).

Senate votes to rescind Trump-era methane emissions rule

On Wednesday, April 28, the U.S. Senate voted to effectively reinstate Obama-era methane regulations by approving a resolution nullifying the Trump-era methane emission rule “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review.”  The September 2020 Trump Administration rule rolled back Obama-era oil and gas emission rules by rescinding methane requirements for production and processing operations and removing the transmission and storage segments of the industry from the pertinent regulations.  In a 52-42 vote that crossed party lines, the Senate utilized the Congressional Review Act (CRA).  The CRA allows Congress to rescind “midnight” federal regulations issued at the end of a presidential administration by a simple majority vote in both chambers.  The U.S. House of Representatives is expected to vote on the resolution within the coming weeks.  It is believed that the House will pass the resolution and that President Biden will sign it.

New Jersey’s Environmental Justice Bill and its effect on Title V facilities

New Jersey’s Environmental Justice Bill (EJ Bill) applies to Facilities located in Overburdened Communities (OBC). N.J. Stat. § 13:1D-157 – 13:1D-161.  A Facility includes any: 1. Major source of air pollution; 2. Resource recovery facility or incinerator; 3. Sludge processing facility, combustor, or incinerator; 4. Sewage treatment plant with a capacity of more than 50 million gallons per day; 5. Transfer station or other solid waste facility, or recycling facility intending to receive at least 100 tons of recyclable material per day; 6. Scrap metal facility; 7. Landfill; or 8. Medical waste incinerator.   An OBC is one in which: 1. At least 35 percent of the households qualify as low-income households; 2. At least 40 percent of the residents identify as minority or as members of a State recognized tribal community; or 3. At least 40 percent of the households have limited English proficiency.  The New Jersey Department of Environmental Protection (NJDEP) has compiled a list of overburdened communities.

If a Facility is located in an OBC, the EJ Bill requires that when the Facility submits an application for a permit for a new Facility, an expansion of an existing Facility, or an application for renewal of an existing Facility’s major source permit, the Facility must:

  1. Prepare an environmental justice impact statement (EJIS) to assess the potential environmental and public health stressors associated with the application;
  2. Transmit the EJIS at least 60 days in advance of the public hearing to the NJDEP, the governing body, and the clerk of the municipality in which the OBC is located; and
  3. Organize and conduct a public hearing in the OBC. The applicant must publish a notice of the public hearing in at least two newspapers circulating within the OBC (including one non-English language newspaper, if applicable), not less than 60 days prior to the public hearing.  The permit applicant shall provide a copy of the notice to the NJDEP and the NJDEP will publish the notice on its website.  The notice shall include the date, time, and location of the public hearing, a description of the proposed new or expanded Facility or existing major source, as applicable, a map indicating the location of the Facility, a brief summary of the EJIS, information on how an interested person may review a copy of the complete EJIS, an address for the submittal of written comments to the permit applicant, and any other information deemed appropriate by NJDEP.  At least 60 days prior to the public hearing, the notice shall be sent to the NJDEP, the governing body, and the clerk of the municipality in which the OBC is located.  At the public hearing, the permit applicant shall provide clear, accurate, and complete information about the proposed new or expanded facility, or existing major source, as applicable, and the potential environmental and public health stressors associated with the Facility. The permit applicant shall accept written and oral comments from any interested party, and provided an opportunity for meaningful public participation at the public hearing. The permit applicant shall transcribe the public hearing and, no later than 10 days after the public hearing, submit the transcript along with any written comments received, to NJDEP. Following the public hearing, NJDEP shall consider the testimony presented and any written comments received, and evaluate the issuance of, or conditions to, the permit, as necessary in order to avoid or reduce the adverse environmental or public health stressors affecting the OBC.

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Biden’s pledge to cut U.S. emissions signals increased climate change regulation and other implications for industry

On Earth Day, April 22, 2021, President Biden announced that the U.S. will aim to cut carbon emissions in half by the year 2030 compared to 2005 levels.  This is significantly higher even than goals established by President Obama during his tenure.  The virtual Leaders Summit on Climate where the announcement was made took place on Thursday and Friday and was attended by 40 other world leaders.  The U.S. rejoined the Paris climate agreement in Biden’s early days in office, and this announcement drives towards addressing its goals.

The administration has not yet rolled out a specific plan for how the U.S. will meet this goal.  However, we can expect that the reduction efforts will touch almost every industry in one way or another with terminology such as “economy-wide” and “multiple pathways” used to describe reaching the target.  Additionally, a Fact Sheet released by the administration describes various ambitious initiatives across many sectors including:

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