EU consultation watch: EU Commission launches new consultations on RoHS and ELV directives

The European Commission is inviting interested parties to submit their comments and concerns related to EU legislation on the following topics:

  1. The Restriction of Hazardous Substances (RoHS) Directive: This is merely a generic request for feedback. The Commission will be releasing a revised RoHS Directive in 2021 and is, therefore, offering a chance for industry to have its say on the effectiveness of the RoHS Directive in its current form, so that, in its words, the revisions to the Directive are able to strike a balance in protecting the rights and interests of all the affected stakeholder groups.

The purpose of this consultation is to gather views on how the restriction of hazardous substances in electronic products works in practice: what works well, what does not and why. Any submissions should be prepared and submitted in the manner prescribed on the consultation page. The last date for submissions is 6 December 2019.

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EPA sends Risk Management Program rollback rule to OMB

On September 12, 2019, the U.S. Environmental Protection Agency (EPA) sent for pre-publication review to the White House Office of Management and Budget (OMB) a final draft rule aimed at repealing regulatory changes to the Risk Management Program (RMP). The RMP regulations establish a performance-based standard for process safety applicable to facilities that utilize or manufacture a threshold quantity of highly hazardous chemicals, historically mirroring the Process Safety Management (PSM) standard promulgated by the Occupational Safety and Health Administration.

The EPA had previously set internal deadlines for the agency to complete the rule – first in January 2019, and then in August, when its initial deadline passed. Having missed both deadlines, the agency then established a plan to finalize the rule by the end of 2019. Review by the OMB can take up to 90 days. Steven Cook, deputy assistant administrator of the EPA’s Office of Land and Emergency Management, indicated at an environmental conference in August 2019 that the agency was working to review a significant number of public comments on the proposed rollback rule, and that the EPA planned to proceed in a manner that was “staying inside the bounds of what the statute, the regulations have in place.”

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Circular Economy and the EU Waste Shipment Regulation: why changes to the latter are critical to the success of the former

Overall, the EU Waste Shipment Regulation (EC No. 1013/2006) (the EWSR) is effective, relevant and coherent, and adds value at the EU level.

Those were the conclusions of the Trinomics study supporting the evaluation by the European Commission of the fitness for purpose of the EWSR (here: https://publications.europa.eu/en/publication-detail/-/publication/926420bc-8284-11e9-9f05-01aa75ed71a1/language-en/format-PDF/source-99087502).

Many in business who have grappled with the EWSR may beg to differ. In fairness, the study did also highlight a number of areas for improvement with which few would disagree, including the need for greater harmonisation of enforcement policy between member states, more consistent application of waste classifications by national authorities, and quicker, less cumbersome notification and approval procedures.

Arguably, however, the most interesting and strategically important challenge facing the EWSR is how it must evolve to support the EU’s Circular Economy plans.

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UK Court of Appeal reaffirms new, tougher stance on sentencing for environmental pollution offences

Several years ago, we wrote a detailed article explaining the new, tougher approach in the UK to the sentencing of environmental offences committed by large companies.

That article, from 2015 (see: https://www.reedsmith.com/en/perspectives/2015/10/uk-courts-get-tough-on-environmental-crime-sentenc), focussed on the Court of Appeal’s decision in R v. Thames Water Utilities Ltd [2015] EWCA Crim 960.

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UK Environment Agency (EA) announces changes to standard rules for environmental permits for tranche B specified generators that are also new medium combustion plants (MCPs)

On 13 August 2019, the EA published its response to a recent consultation on proposals to revise the standard rules for an environmental permit for a tranche B specified generator that is also a new MCP.

The original consultation and the EA’s response and conclusions can be found at: gov.uk

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Cal/OSHA Appeals Board proposes revisions to procedural rules, including elimination of automatic discovery

The California Occupational Safety and Health Appeals Board (Board) is soliciting public comments on proposed revisions to its Rules of Practice and Procedure. The three-member Board hears appeals from public- and private-sector employers regarding citations issued by the California Division of Occupational Safety and Health (DOSH) and is authorized to adopt procedural rules related to these appeals. If adopted, the proposals would primarily affect the way appeals are docketed and discovery is conducted during proceedings before the Board.

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Will the SECR regime apply to your organisation under the new corporate reporting regime in the UK?

This blog post provides a brief summary on the commencement of the Streamlined Energy and Carbon Reporting regime which has introduced mandatory corporate reporting obligations for relevant UK companies.

Introduced by the Companies (Directors’ Report) and Limited Liability Partnerships (Energy and Carbon Report) Regulations 2018, the SECR regime is a complex and comprehensive new corporate reporting regime that requires relevant UK organisations to report on their annual energy use, greenhouse gas emissions, energy efficiency measures and other associated information. While some companies that fall under the scope of the SECR regime may already report on emissions, a number of the reporting requirements will be completely new. It is therefore important that companies take the time to understand whether the SECR regime will apply and ensure the appropriate internal frameworks are in place for compliance.

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Important questions left unanswered as rare ECJ case rules that debris from a fire on board a ship is excluded from international shipment of waste rules

This blog post provides a brief commentary on the transboundary movement of waste case of Conti 11 v. the Land of Lower Saxony, Germany (Case C689-17).

The law on the international shipment of waste is of increasing importance to many global businesses. The Reed Smith Environmental, Health & Safety team regularly handles cases on this subject involving sectors such as oil and gas, mining, consumer electronics, ship recycling and offshore renewables, as well as many others. Case law in this complex area is sparse.

On 16 May 2019, the European Court of Justice (ECJ) gave judgment in a case concerning the status of waste resulting from a fire on board a ship. The case warrants closer attention than its seemingly narrow scope and clear outcome might suggest.

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Broader focus on environmental and safety crimes as Harris County announces new charges against Arkema

Following last year’s indictments of Arkema Inc. (Arkema) CEO Richard Rowe and plant manager Leslie Comardelle, a Texas grand jury recently indicted Mike Keough, Arkema’s Vice President of Logistics, in connection with allegations that Arkema failed to provide adequate emergency response information to response officials. Along with this indictment, recent charges against Intercontinental Terminals Company and the hiring of several additional prosecutors reflects Harris County District Attorney’s increased focus on prosecuting environmental and safety crimes. This trend of increased accountability for companies after high-impact incidents was also highlighted in California, where a federal judge overseeing Pacific Gas and Electric’s (PG&E) probation ordered PG&E board members to visit Paradise, CA, which was destroyed in the 2018 Camp Fire.

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Chinese National Emissions Trading Scheme Update – some progress but more questions than answers

The Ministry of Ecology and Environment, in its first formal publication on the subject of the Chinese emissions trading scheme since taking over the responsibility for its development from the National Development and Reform Commission, published draft ‘Interim Regulations’ in April 2019 setting out the overarching legislative framework proposed for the scheme.

Whilst this publication is very welcome and long-overdue, its sparsity highlights how much work still remains to be carried out and publicised before the scheme can be fully made operational. This client paper assesses the ‘Interim Regulations’ and considers some of the known-unknowns that follow from its publication.

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