Fifth Circuit upholds OSHA’s interpretation of PSM standard

On July 9, 2020, the Fifth Circuit held that the mechanical integrity requirements of the Occupational Safety and Health Administration (OSHA) process safety management (PSM) standard for highly hazardous chemicals applies to emergency stops that would only be activated after a release. The case—Sanderson Farms v. Occupational Safety and Health Review Commission (OSHRC)—centered on the application of the PSM standard’s mechanical integrity element, 29 C.F.R. § 1910.119(j), specifically (1) whether that element applies to emergency shutdown equipment, and (2) the requirements to inspect and test such equipment. Petitioner, Sanderson Farms, Inc. (Sanderson), argued that the mechanical integrity requirements did not apply to emergency stops because they only activate after a release and are therefore responding to another component’s mechanical failure.

Continue Reading

ICYMI: States sign joint memorandum to advance vehicle electrification

A group of 15 states and the District of Columbia agreed to collaborate on advancing and accelerating the market for electric medium- and heavy-duty vehicles, including large pickup trucks and vans, delivery trucks, box trucks, school and transit buses, and long-haul delivery trucks (big-rigs). The goal of this initiative is to ensure that 100 percent of all new medium- and heavy-duty vehicle sales be zero emission vehicles by 2050, with an interim target of 30 percent zero-emission vehicle sales by 2030.  States signing the memorandum of understanding include: California, Connecticut, Colorado, Hawaii, Maine, Maryland, Massachusetts, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington D.C.

EPA finalizes updates to CWA water quality certification requirements

On July 13, 2020, the Environmental Protection Agency (EPA) published the Clean Water Act Section 401 Certification Rule. The rule is set to become effective on September 11, 2020, and will introduce comprehensive changes to the regulations governing how states and authorized tribes certify water quality under Section 401 of the Clean Water Act (CWA).

Continue Reading

Comments sought on review of the EU General Product Safety Directive

The European Commission is currently seeking public comment as part of its review of the EU General Product Safety Directive (GPSD) (Directive 2001/95/EC).

The GPSD sets out a broad regulatory framework for the placement of non-food consumer products (not regulated by other product specific EU legislation) on the EU market. In particular, it establishes the general safety requirement, that producers must only place safe products on the EU market, and requires that appropriate steps are taken where there are risks to consumers. The GPSD also established the EU Rapid Alert System (Safety Gate), a platform for communication between EU member states and the European Commission on dangerous products. The GPSD must be transposed into the national law of all EU member states, and subsequently there may be some variations between jurisdictions. Continue Reading

CARB continues developing its “Clean Miles Standard,” reducing greenhouse gas emissions from ridesharing companies: hearing set for mid-July

The California Air Resources Board (CARB) will conduct a public workshop later this month as it continues its efforts to expand the state’s development of the Clean Miles Standard (CMS). As was earlier reported, the CMS will require ridesharing companies, aka transportation network companies (TNCs), to account for, and reduce, the greenhouse gas (GHG) emissions from their vehicle operations. The CMS also requires state regulators to quantify emissions from ridesharing vehicles and to set emission targets for TNCs.

At the upcoming workshop, which will take place via Zoom at 10 a.m. on Friday, July 17, 2020, staff will present updated preliminary GHG and electric vehicle miles-traveled targets, as well as additional provisions of the regulation, including potential credits and exemptions for small companies. Staff will request stakeholder comments following the workshop through August 20, 2020. The Clean Miles Standard is relevant not only to the TNC companies directly impacted by it but also possibly to other companies with fleet vehicles and to employers interested in alternative means for how their employees will commute in the future.

ICYMI: June sees major U.S. Supreme Court environmental activity

1. Pipeline May Cross Underneath the Appalachian Trail with Forest Service Approval

On June 15, 2020, the U.S. Supreme Court (SCOTUS) held in a 7-2 decision that the U.S. Forest Service had the authority to grant developers of a gas pipeline right-of-way underneath the Appalachian National Scenic Trail.

At issue in this case was whether the Forest Service or the National Park Service (NPS) had jurisdiction over the trail. Under the U.S. Mineral Leasing Act (MLA), the Forest Service does not have jurisdiction over “lands in the National Park System.” However, in order to establish the National Scenic Trail, the Forest Service gave the Department of the Interior (DOI) an easement on that land to create and maintain the Appalachian Trail. As a result, the question became: did the granting of an easement to create the Appalachian Trail make that land a part of the National Park System?

Continue Reading

EPA to terminate its temporary enforcement discretion policy

On March 26, 2020, the Environmental Protection Agency (EPA) issued a memorandum about a temporary policy regarding EPA enforcement of environmental legal obligations during the COVID-19 pandemic. Under the policy, the EPA stopped seeking penalties for certain missed environmental obligations. The policy received mixed reactions from states and environmental groups. On June 29, 2020, EPA announced that it will be ending the controversial policy.

EPA’s addendum to its temporary policy recognizes that circumstances are changing and that state and local restrictions are now being relaxed or lifted. Accordingly, EPA acknowledges that restrictions which may impede regulatory compliance are also being relaxed or lifted. In light of these changes, EPA’s addendum states that it will terminate the temporary policy in its entirety at 11.59 p.m. on August 31, 2020. After August 31, 2020, EPA will no longer base its enforcement discretion on the temporary policy. EPA notes that it may decide to terminate the temporary policy earlier, but that it will provide seven days prior notice if it decides to do so.

California requires trucks to go electric in effort to reduce pollution

The California Air Resources Board (CARB) on June 25, 2020, unanimously approved the “Advanced Clean Trucks” rule, requiring automakers to sell a minimum number of zero-emissions diesel trucks, delivery vans and large pickups, starting in 2024. The quotas will be phased in and the rules require most new trucks in the state to produce no pollution at all by 2035. By 2045, every new truck sold in California will have to be zero-emission.

The rule applies to trucks that weigh more than 8,500 pounds, from heavy-duty pickups and full-size vans to box trucks and tractor-trailers. The sales requirements and related starting dates vary based on the type of vehicle. Large employers, including retailers, manufacturers, brokers and others, also would be required to report information about shipments and shuttle services.

Reasons implementing the rule include short-term desires to reduce diesel exhaust emissions in neighborhoods close to heavy truck use (including ports) as well as desires to reduce carbon dioxide emissions relative to long-term global warming / climate change policies.  However, many stakeholders in the trucking industry are concerned the transition will not be nearly as easy and beneficial as CARB suggests. Critics cite the coronavirus pandemic and its impact on the economy as a substantial financial obstacle to manufacturing the new, cleaner trucks, which will also have a high price tag. They also are concerned that the infrastructure and technology, including charging stations and batteries, are inadequate for the roll-out of such a large amount of zero-emissions vehicles.

One thing is certain: The rule will require California businesses to make long-term business investment decisions regarding the movement of goods. Capital expenditures will now have to factor in potentially higher outlays for vehicles and re-charging infrastructure. Depending upon whether shipments are local or long-distance, planning also may be required for off-site recharging, as well as accounting for additional down time during re-charging operations.

The rule and all other regulatory documents and resources are available online here.

TSCA Summer Watch List

In 2016, Congress enacted major reforms to the Toxic Substances Control Act (TSCA). These improvements included items such as: (1) a mandatory requirement for the U.S. Environmental Protection Agency to evaluate existing chemicals with clear and enforceable deadlines; (2) risk-based chemical assessments; (3) increased public transparency for chemical information; and (4) a consistent source of funding for the EPA to carry out its responsibilities under this statute.

Although the EPA has made progress toward these goals on demanding deadlines, it is still struggling to complete all of its required improvements on time. The agency has successfully promulgated a series of “framework rules” establishing the process for how the agency regulates chemicals; it has finalized guidelines detailing how companies may keep certain information confidential; and it continues to update the TSCA inventory.

All this headway aside, the EPA has announced that it will not meet the deadlines for three improvements: (1) amendments to the fee rule; (2) risk evaluations; and (3) scoping documents for future chemical evaluations. In the coming months, the EPA will push to finalize these updates. As a result, important developments in the TSCA program may take place this summer.

Continue Reading

UK unveils post-Brexit Emissions Trading Scheme (ETS)

The UK has published its plans for the UK ETS starting in 2021. In the UK, this will replace the EU ETS, which the UK is set to leave at the end 2020 with the termination of the Brexit transition period. It is part of the UK government’s plan to drive domestic and international action on climate change and, as such, to deliver on its net-zero carbon target by 2050.

In the following article we unpick the details of the UK ETS, outlining who will be covered and how it will work compared to the existing EU ETS, and setting out some high-level thoughts on how well the UK ETS will align with both its EU counterpart scheme and the UK’s climate policy ambitions found here.

LexBlog