California Energy Commission workshop on hydrogen fuel cell demonstrations in rail and marine applications at ports

By Todd O. Maiden and Eric Schmoll on 28 July 2020 Posted in Projects and Construction, Regulatory Compliance

Companies reliant upon the use of rail services and commercial harbor craft at California’s ports should be interested in the State’s:

Increasing focus on utilizing zero emission technologies to reduce greenhouse gas emissions resulting from port-related operations; and
Provision of $6.6 million in available grants to “fund the design, integration, and demonstration of hydrogen fuel cell systems and hydrogen fueling infrastructure for locomotive and commercial harbor craft” operations

On July 31, 2020 (10:30-12:30 PDT), the California Energy Commission will be hosting a workshop to assist applicants in obtaining these funds.

Due to COVID-19, the Workshop is available on-line only at:

https://zoom.us/join

Meeting ID: 947 9266 2867
Meeting Password: 357152
Topic: GFO-20-604 Pre-Bid Workshop

Recent district court decision limits Proposition 65 warnings on First Amendment ‘compelled speech’ grounds

By Todd O. Maiden, Eric Schmoll and Smita Patil on 28 July 2020 Posted in Emerging Legislation and Regulation, Regulatory Compliance

A U.S. District Court recently barred enforcement of California’s Proposition 65 warning requirement on the First Amendment ground of “compelled speech.” Proposition 65 requires businesses to provide warnings to consumers before exposing them to over 900 chemicals linked to cancer or reproductive toxicity. Although the State of California will almost certainly appeal the decision, National Association of Wheat Growers et al., v. Xavier Becerra[1] could be a turning point for Proposition 65 and set the stage for further challenges to consumer product warning labels on First Amendment grounds.

U.S. EPA takes historic action on aviation emissions

By Jennifer A. Smokelin, Daniella D. Landers, Todd O. Maiden, Ben H. Patton, Phillip H. Babich, Nicholas Rock and Nicolas Walker on 24 July 2020 Posted in Emerging Legislation and Regulation, Enforcement and Litigation, Incident Response, Regulatory Compliance

In a historic act, U.S. EPA proposed the nation’s first-ever greenhouse gas (GHG) emissions standard for aircraft on July 21, 2020. (Proposed Rule). Once the Proposed Rule is published in the Federal Register, the public will have 60 days to submit comments. There will likely be significant push back from environmental groups on the Proposed Rule; so it may be important to provide industry comments, where appropriate. U.S. EPA has stated it is hoping to issue a final rule in 2021.

Racing toward a standard: How Virginia, Oregon, and Washington are moving to regulate workplace hazards of COVID-19

By Ben H. Patton, Jennifer A. Smokelin, Mary M. Balaster, Randa M. Lewis, Brian J. Kay (Summer Associate) and Veronica A. Miclot (Summer Associate) on 23 July 2020 Posted in Emerging Legislation and Regulation, Incident Response, Regulatory Compliance

Individual states’ safety agencies have undertaken the development of their own workplace safety rules in response to potential hazards from COVID-19 as the Occupational Safety and Health Administration (OSHA) has declined to promulgate specific standards and instead relied on existing regulations and guidance. Specifically, Virginia recently published a temporary emergency COVID-19 rule, while Oregon has been holding stakeholder meetings to develop its own, similar emergency standard. Washington, meanwhile, has created a trigger for direct enforceability of state-issued restrictions and prohibitions on employer operations by its workplace safety agency.

Fifth Circuit upholds OSHA’s interpretation of PSM standard

By Ben H. Patton, Mary M. Balaster and Grace C. Hearn on 22 July 2020 Posted in Emerging Legislation and Regulation, Enforcement and Litigation, Incident Response, Regulatory Compliance

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.

ICYMI: States sign joint memorandum to advance vehicle electrification

By Daniella D. Landers on 21 July 2020 Posted in Emerging Legislation and Regulation, Enforcement and Litigation, Incident Response

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

By Jennifer A. Smokelin, Randa M. Lewis and Jack Foster (Summer Associate) on 21 July 2020 Posted in Emerging Legislation and Regulation, Regulatory Compliance

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).

Comments sought on review of the EU General Product Safety Directive

By Jake Williams on 10 July 2020 Posted in Emerging Legislation and Regulation, Regulatory Compliance

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

By Todd O. Maiden and Eric Schmoll on 7 July 2020 Posted in Emerging Legislation and Regulation, Incident Response, Regulatory Compliance

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

By Jennifer A. Smokelin, Daniella D. Landers and Grace C. Hearn on 6 July 2020 Posted in Emerging Legislation and Regulation, Enforcement and Litigation, Incident Response, Regulatory Compliance

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?