Energy transition – An evolving journey

On the back of unfortunate geopolitical developments this year, which have drastically changed the path to a carbon-neutral economy, we are pleased to present “Energy transition – An evolving journey” – a thought leadership campaign containing practical insights on the trends, opportunities and challenges in the energy industry going forward.

Please see link to the Energy transition report.

In the report, we see what governments and markets can do to help bring us to a decarbonized world and what role the energy industry will play. Topics considered include:

  • Which clean fuels have the best prospects;
  • The roles of LNG and renewables;
  • Carbon capture and battery storage;
  • A potential nuclear renaissance; rules regulating hydrogen;
  • And how to finance the new world of energy.

We hope you enjoy reading the report and as always, we welcome your feedback and questions. Please feel free to reach out to any of the authors, or to your usual Reed Smith contact.  

Cal/OSHA’s Proposed Workplace Violence Rule

Status

Last month, the California Division of Occupational Safety and Health (Cal/OSHA) released a revised discussion draft of a proposed regulation for workplace violence prevention (Proposed Rule). The Proposed Rule would expand existing health care industry workplace violence prevention requirements to all industries. The Proposed Rule includes new definitions with broad applicability and a “one-size-fits all” approach that mandates the same workplace violence prevention rules for essentially all employers statewide. 

Currently, the Proposed Rule is awaiting public comments, which are due on the draft regulations by July 18, 2022. It is uncertain how quickly the rulemaking process will proceed after the July 18 deadline for public comment.

Requirements

Workplace Violence Prevention Plan

If implemented, the Proposed Rule would require employers to “establish, implement, and maintain an effective workplace violence prevention plan” (Plan). The Plan must include effective procedures for accepting and responding to reports of workplace violence and for responding to workplace violence emergencies—including detail on how employees will be alerted of those incidents, plans for evacuating or sheltering in place, and methods for workers to get help from staff, security, or law enforcement. An employer’s Plan must include the following elements:

  • Identification of person(s) responsible for implementing the Plan;
  • Effective procedures to obtain active involvement of employees and authorized employee representatives (i.e., unions) in developing and implementing the Plan;
  • Methods the employer will use to coordinate the implementation of the Plan with other employers;
  • Effective procedures for accepting and responding to reports of workplace violence, and to prohibit retaliation;
  • Procedures to ensure that supervisors and non-supervisors comply with the Plan;
  • Procedures to communicate with employees regarding workplace violence matters;
  • Procedures to respond to workplace violence emergencies;
  • Procedures for employee training;
  • Procedures to identify and correct workplace violence hazards;
  • Procedures for post-incident response and investigation; and
  • Procedures for periodically reviewing the effectiveness of the Plan, including after a workplace violence incident.

Violent Incident Log

The Proposed Rule also requires all employers to record incidents of violence in a Violent Incident Log. Whereas current regulations applicable to the health care industry exempt employers who have not had an incident in the past five years, the Proposed Rule does not provide for such an exemption. The Proposed Rule, instead, requires employers to record information in the log about “every workplace violence incident”—regardless of whether that incident resulted in an injury and regardless of when the last incident occurred. Among other details, the logs are required to include a description and consequences of each incident.

Employee Training

The Proposed Rule requires employers to develop and provide employee training on workplace violence. Specifically, it would require employers to “provide employees with general awareness training on workplace violence” that includes information on the employer’s Plan, accessibility to the Plan, participation opportunities, and how to report workplace violence incidents or concerns to the employer without fear of reprisal.”

Employers that had a workplace violence incident within the previous five years would be required to provide additional training to employees that includes:

  • “Workplace violence hazards specific to the employees’ jobs,”
  • Corrective measures that have been implemented,
  • How employees can “seek assistance to prevent or respond to violence, and
  • Strategies to avoid physical harm.”

Recordkeeping

Finally, the Proposed Rule requires employers to maintain records of workplace violence hazard identification, evaluation, and correction and training records for at least one year, while the Violent Incident Log and records of workplace violence incident investigations must be maintained for at least five years.

These records must be made available to Cal/OSHA upon request and to employees within 15 calendar days of a request.

Are similar state or federal OSHA rules being considered?

Currently, there are no specific OSHA standards for workplace violence at the federal level. However, Section 5(a)(1) of the Occupational Safety and Health Act of 1970—the General Duty Clause (GDC) —requires employers to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. The Occupational Safety and Health Review Commission (Commission) has interpreted the GDC as requiring employers to protect employees from incidents of workplace violence. For example, in Sec’y of Labor v. Integra Health Management, Inc., the Commission held that a healthcare employer had a responsibility to manage the risk of workplace violence when an employee was stabbed by a patient with mental illness and a criminal record after the employer required the employee to work alone with the patient. The Commission reasoned that the employer failed to fulfill its responsibility under the GDC by exposing its employees to the hazard of working with individuals who have a history of violence.

There is currently a bill in the Senate that nurses’ unions and others are pushing Congress to advance. The bill called the Workplace Violence Prevention for Health Care and Social Services Workers Act (S. 4182), is the counterpart to one that passed the House by a 254-166 margin in April 2021. S. 4182 would require federal OSHA to adopt a workplace violence prevention standard, based largely on California’s existing rule, for the healthcare and social services sectors.

Eight states other than California require certain healthcare facilities to have some type of workplace violence prevention program: Connecticut, Illinois, Maine, Maryland, New Jersey, New York, Oregon, and Washington. However, those states have not proposed rules similar to Cal/OSHA’s Proposed Rule, which would be applicable to all industries.

Titanium dioxide (E171) banned as an additive in foods in the EU

As of 7 February 2022, pursuant to Commission Regulation (EU) 2022/63 (the “Titanium Dioxide Regulation”)[1], titanium dioxide (E171) has been removed from Annexes II and III of Regulation (EC) No 1333/2008 (the “Additives Regulation”), which sets out the regulatory framework for the use of additives in foods in the European Union.

Accordingly, since 7 February 2022, the use of titanium dioxide (E171) as a food additive in the European Union is prohibited. However, food operators will note that the Titanium Dioxide Regulation provides for a 6 month transition period, where foods produced in accordance with the rules applicable before 7 February 2022 may continue to be placed on the market until 7 August 2022. After that date, food products may remain on the market until their date of minimum durability or ‘use by’ date.[2]

The Titanium Dioxide Regulation has been introduced following a series of  European Food Safety Authority (“EFSA”) safety assessments of the use of titanium dioxide (E171) as a food additive, including the most recent food safety assessment issued on 6 May 2021 (the “EFSA Opinion”), pursuant to which EFSA indicated that, based on is assessment of all the available evidence, a concern for genotoxicity could not be ruled out, and therefore concluded that titanium dioxide (E 171) can no longer be considered safe when used as a food additive.[3]

Continue Reading

The U.S. Supreme Court Reinstates Water Certification Rule, but Nationwide Permits Remain Subject to Challenge

On Wednesday April 6, 2022, in a 5-4 vote, the U.S. Supreme Court justices stayed a California district court’s October 21, 2021 decision to vacate the Section 401 Water Quality Certification Rule (401 WQC Rule).  The U.S. Environmental Protection Agency (EPA) had requested that the district court remand the rule, saying it was planning to revise the rule, which would take potentially years to finalize.  As explained in a previous post, the district court’s opinion to vacate the 401 WQC Rule initially caused the U.S. Army Corps of Engineers (Corps) to hold finalizing all permits, including nationwide permits like NWP 12, that rely on a 401 WQC waiver.  The impact caused States and industry groups considerable concern about permitting delays for a wide variety of energy and utility projects.  Consequently, the U.S. Supreme Court majority felt it appropriate to delay the decision to vacate the rule pending appellate, including U.S. Supreme Court, review.

Justice Kagan dissented and was joined by Chief Justice Roberts and Justice Sotomayor.  The dissent stated that it has been five months since the district court vacated the 401 WQC Rule, and now several States and industry groups have asked the Supreme Court to stay the district court’s opinion, alleging that they will suffer irreparable harm.  The dissent concludes the applicants have not shown that “extraordinary circumstances” exist and, therefore, the Court should not grant the emergency relief applicants sought.  Further, the dissent took aim at the Court’ so-called “shadow docket,” opining that the Court had rendered the “emergency docket not for emergencies at all.”

Meanwhile, a challenge to the NWP-12, which authorizes oil and natural gas pipeline activities, remains pending in a Montana federal court.  On April 1, 2022, an electric utility group filed a brief, opposing the challenge.  It asserted that permits like NWP 12 help streamline projects and challenging such permits could have far-reaching implications.  For example, clean energy projects often require infrastructure development, which could require a nationwide permit.  Therefore, according to the utility group, eliminating such permits could impede the feasibility of clean energy projects and slow the “essential” transition to clean energy.

Similarly, on April 5, 2022, the U.S. Chamber of Commerce (USCC) filed a brief arguing that delaying permits like NWP 12 creates an obstacle to infrastructure projects and compromises U.S. energy security.  The USCC also argue that plaintiffs’ requested relief would impact the American economy by increasing the cost of energy, such as oil and gas products.

In December, the Corps resumed issuing permits after it determined that districts could still coordinate with certifying authorities in issuing water quality certifications.

LexBlog