California rapidly approves sweeping Cal/OSHA emergency COVID-19 regulation

Just one week after the California Division of Occupational Safety and Health (“Cal/OSHA”) made its proposed COVID-19 Emergency Regulation (“COVID-19 Rule”) available, the Occupational Safety and Health Standards Board (“OSHSB”) responsible for approving such regulations unanimously passed it without revisions. Cal/OSHA is the fourth state OSHA plan to promulgate a rule to address COVID-19, following Virginia, Oregon, and Michigan. The Washington Department of Labor & Industries has made violations of emergency proclamations subject to workplace safety citations.

In response to OSHSB’s September granting of a labor advocacy group’s petition seeking COVID-19 regulation of employers, on November 11, 2020 Cal/OSHA issued a 21-page draft COVID-19 Rule along with a notice of emergency. Although employers and workers in California were not provided the ordinary months of time usually associated with rulemakings to review and digest the draft COVID-19 Rule, participation in the OSHSB November 19, 2020 public meeting was significant. With over 500 virtual participants, not including those on the phone or live streaming, and 150 verbal commenters, the public meeting lasted over ten (10) hours. The Board Chair estimated that the meeting had four times the usual number of attendees, and technical challenges occurred throughout the discussion. Commentary was wide ranging with employee and industry interests equally represented. Individual workers and labor groups generally urged OSHSB to adopt the ETS immediately and to consider the addition of future anti-retaliation provisions, while employer and industry representatives expressed frustration with the lack of stakeholder input or engagement, questioned whether Cal/OSHA has the authority to regulate wage and leave issues, pointed to the effectiveness of existing orders, and identified implementation challenges and inconsistencies with other California laws regulating COVID-19 response that have yet to become effective (i.e., AB 685).

Chemical regulation in the new administration: PFAS top of list?

By Megan Haines, Daniella D. Landers, Todd O. Maiden, Ben H. Patton, Jennifer A. Smokelin and Keturah A. Brown on 12 November 2020 Posted in Emerging Legislation and Regulation, Incident Response

Organizations closely scrutinizing PFAS, like the Environmental Working Group, are touting loudly that the Biden administration will address PFAS and speculating on how the Biden Administration might approach the chemicals by setting enforceable drinking water limits, designating the substances as hazardous and finding PFAS substitutes for consumer items.

Under President Trump, EPA touted its PFAS Action Plan and the agency’s broader work on addressing contamination by the family of thousands of chemicals, which have been linked to cancer and other severe health issues. But EPA has stalled on actions like setting a maximum contaminant level (MCL) for PFAS.

EPA currently has health advisories in place for two PFAS — PFOA and PFOS — of 70 parts per trillion in drinking water, but that threshold is not enforceable. No PFAS are designated as hazardous substances at present by EPA.

A new administration could, through executive action alone, set limits in drinking water through an MCL and designate PFAS as hazardous substances under the federal Superfund law (CERCLA). However, such action would be subject to notice and comment rule making and then subsequent challenges to agency action – a process that could take years.

Reading Tea Leaves: Biden Transition Team

By Megan Haines, Daniella D. Landers, Todd O. Maiden, Ben H. Patton, Jennifer A. Smokelin and Keturah A. Brown on 12 November 2020 Posted in Emerging Legislation and Regulation

President Elect Joe Biden announced his agency review teams. Agency review teams are responsible for understanding the operations of each agency, ensuring a smooth transfer of power. The Biden team states, “[t]he teams have been crafted to ensure they not only reflect the values and priorities of the incoming administration, but reflect the diversity of perspectives crucial for addressing America’s most urgent and complex challenge.”

Curious what that means for the EPA? See link here.

Notably, the team is stacked with former Obama and NGO representatives. Lacking at this time is significant representation from the corporate world or industry. Climate experts, former Obama administration officials and green activists are among the team managing the transition for EPA. This is also true of Energy, Interior and Agriculture departments, and the White House Council on Environmental Quality.

Swinging the Pendulum: Significant Shifts in Environmental and Safety Regulation under a Biden Administration

By Megan Haines, Daniella D. Landers, Todd O. Maiden, Ben H. Patton, Jennifer A. Smokelin and Keturah A. Brown on 10 November 2020 Posted in Emerging Legislation and Regulation, Regulatory Compliance

On November 7, 2020, Joe Biden became the projected President-elect of the United States. With an aggressive climate change plan that includes rejoining the Paris Agreement on the first day of his term, President-elect Biden and his administration will likely make significant changes to environmental, health, and safety rules and policies that will rollback Trump administration environmental actions and increase civil and criminal enforcement of environmental laws.

New Regulatory Rollbacks and Expansions

The Trump administration took deregulatory actions that weakened or repealed more than 100 environmental policies and regulations. For example, President Obama’s Clean Power Plan, which set targets for greenhouse gas emissions for existing power plants, was repealed and replaced with the Affordable Clean Energy rule, which removed emission targets and directed states to determine the best course of action for regulating power plant emissions. The Trump administration issued the Safer Affordable Fuel-Efficient Vehicles Rule, which authorized the Department of Transportation to establish fuel economy standards and preempted similar state regulations, including California’s regulations regarding greenhouse gas emissions for new passenger cars and light trucks. The Trump administration’s Navigable Waters Protection Rule significantly narrowed the “Waters of the United States” Rule under the Clean Water Act. Trump’s Environmental Protection Agency (EPA) repealed Obama-era methane and volatile organic compound emissions standards for new and existing oil and gas operations, and removed the most stringent requirements of newly promulgated revisions to the Risk Management Program rule. The Occupational Safety and Health Administration (OSHA), meanwhile, largely stalled new rulemakings that had been initiated under the Obama administration, including the Process Safety Management (PSM) standard, and has so far declined to initiate a rulemaking in response to COVID-19 under the current administration.

ICYMI: California to conserve land, coasts to capture carbon and fight climate change

By Todd O. Maiden and Eric Schmoll on 26 October 2020 Posted in Emerging Legislation and Regulation, Incident Response, Regulatory Compliance

California has joined dozens of nations in a global pact to preserve biodiversity and prevent species loss by pledging to conserve 30 percent of the state’s land and coastal water by 2030 (“30 by 30”). Governor Gavin Newsom signed the executive order earlier this month, which also directs the state to streamline approval of land restoration projects, protect native plants and animals from invasive species, and reinvigorate the population of pollinating insects in California. Finally, several agencies are directed to develop policies to capture more carbon from the atmosphere and store it in the state’s natural and working lands such as forests, rangeland, farms, wetlands and coasts. These strategies, intended to help California reach its goal of carbon neutrality by 2045, could include planting cover crops, restoring wetlands, managing forests more actively to reduce wildfire risk, and planting trees and creating parks in urban areas.

30 by 30 has been championed internationally and is supported by the United Nations. However, the Senate Republican Caucus called Newsom’s order an “overreach.” This follows Newsom’s historic executive order to require that, by 2035, all new passenger vehicles sold in California be “zero-emission.” Both the electric car and the 30 by 30 orders will likely face uphill climbs, but are important and ambitious actions in California’s fight against climate change.

California Senate Bill May Hamstring a Challenger’s Ability to Slow Down a Project under the California Environmental Quality Act

By Phillip H. Babich and Emily Lynch on 16 October 2020 Posted in Emerging Legislation and Regulation

When a proposed project in California, say a new condominium or a power plant, requires environmental review under the California Environmental Quality Act (CEQA), a project opponent can, effectively, block a project from moving forward even if it has the necessary approvals from the local government agency that has oversight. This is because the project opponent can appeal the local agency’s final CEQA determination to state court through a petition for writ of mandamus. Once the petition is filed, the project opponent, now the petitioner, can control, under current law, preparation of the administrative record that needs to be lodged with the court. A petitioner may also be able to leverage a monetary settlement which may not be related to mitigation measures meant to address the alleged environmental effects that the CEQA determination failed to adequately address.

Senate Bill (SB) 950 could take away from the petitioner both of these levers of control. There would also be faster case management procedures at the trial level.

Preparation of the Record

Currently, Public Resources Code section 21167.6 allows the petitioner to elect to prepare the administrative record. This allows the petitioner to use all of the time permitted to prepare the record, 60 days, and raise objections along the way which could pave the way for extending the record preparation period. Not until the record is prepared and certified are deadlines triggered for responsive pleadings and, following that, briefing on the merits.

SB 950 would amend section 21167.6 and allow the local agency, now the respondent, and/or the project proponent, now the real party in interest, to seize record preparation duties. So, even if the petitioner elects to prepare the record, the respondent can override the election under the proposed law.

Settlements Reported to the State Attorney General

SB 950 would add Public Resources Code section 21167.7.5 which would require a settling petitioner to submit a report to the State Attorney General if the settlement involves money paid directly to the petitioner or petitioner’s counsel other than reasonable attorney fees or costs. The purpose of this new provision is to “[d]iscourag[e] CEQA cases filed primarily for monetary gain by requiring confidential reporting to the Attorney General of settlements involving monetary payments, other than attorney’s fees[.]”

SB 950 would authorize sanctions against a petitioner for refusing to or failing to file the settlement report with the Attorney General. Also, “[i]f the Attorney General determines that a petitioner or a member of an organization that is a petitioner has filed multiple actions under this division resulting in primarily monetary settlements that do not further the purposes of this division, the Attorney General may pursue an action seeking appropriate remedies pursuant to” the state’s Unlawful Competition Laws.

Faster Case Management Schedule

SB 950 would add Public Resources Code section 21167.8.5 which would require the respondent local agency to file within 20 days after receiving the petition a request for a case management conference. If feasible the Court must set the conference no later than 30 days after the request has been filed. This new section would also require the parties to meet and confer 10 days before the conference, and file a separate or joint statement five days before the conference.

In addition, SB 950 amends Public Resources Code section 21167.8 to shorten the time to file a notice setting forth the time and place parties will discuss “procedural issues and timeliness associated with the litigation and the potential usefulness of settlement discussions, mediation, or arbitration in the case.” The time period was 45 days; it would be 30 days under the new law.

Public consultation now open in respect of laws on Electromagnetic Compatibility and Packaging Waste

By Nicholas Rock and Annie O'Connor on 14 October 2020 Posted in Emerging Legislation and Regulation, Regulatory Compliance

Within the last few days, the European Commission has opened the ‘public consultation’ stage of its evaluation of the law relating to both electromagnetic compatibility and packaging waste.

Evaluation of the Electromagnetic Compatibility (EMC) Directive 2014/30/EU

Although the EMC Directive was implemented fairly recently, it largely incorporated its predecessor directive without any major amendments. As a result, the sector specific aspects of the EU law relating to electromagnetic compatibility have not been reviewed in detail in over 30 years.

Accordingly, in January 2020 the Commission announced its intention to undertake a review of the EMC Directive, to assess whether it is still fit for purpose in terms of effectiveness, efficiency, relevance, and coherence. The Commission has indicated that the evaluation intends to collect evidence and information to identify areas that may need to be amended, particularly in light of scientific and technological progress, and in particular the increased digitalisation of the equipment falling in scope of the Directive. On the basis of the conclusions reached, the Commission will assess whether next steps may be necessary to improve the performance of the Directive.

The public consultation period for the EMC Directive review is now open until 29 January 2021.

Evaluation of the Packaging Waste Directive 94/62/EC

In June of this year, the Commission published an initial assessment document on a proposal for a new directive on packaging waste, to replace the current Packaging Waste Directive. The Commission has stated that the purpose of the review is to improve packaging design to facilitate its cost-effective recycling and reuse, and reduce the generation of packaging waste, in line with the objectives of the Circular Economy Action Plan.

The new directive is still to be developed, but based on the issues raised in the Commission’s Inception Impact Assessment it is expected to include:

A requirement that all packaging be reusable or recyclable, and an enforceable definition of “recyclable packaging”;
Restrictions on the use of some types of packaging material, and a reduction of the complexity of packaging materials;
Recycled content targets for specific packaging formats;
Minimum GPP (Green Public Procurement) criteria and targets for packaging.

The public consultation period for the Packaging Waste Directive review is now open until 6 January 2021.

Safety groups urge Congress to consider implications of cannabis bill

By Daniella D. Landers on 8 October 2020 Posted in Emerging Legislation and Regulation

Recently, several health and safety groups, including the National Safety Council, the American College of Occupational and Environmental Medicine, and 20 other safety organizations recommended in a letter to the U.S. House of Representatives to hold hearings on the workplace and public safety implications of the proposed Marijuana Opportunity Reinvestment and Expungement (MORE) Act of 2019 (H.R. 3884). According to the Congressional Record Service, the MORE Act proposes several changes, including publishing data on cannabis business owners and employees, removing cannabis from the list of scheduled substances under the Controlled Substances Act, and eliminating criminal penalties for individuals who manufacture, distribute, or possess marijuana. The groups expressed concern about the possible effects on workplace health and safety that the MORE Act could have. A House vote on the MORE Act is expected to occur later this year.

European Commission launches consultation to regulate green claims in marketing and combat ‘Greenwashing’

By Jennifer Travers on 28 September 2020 Posted in Emerging Legislation and Regulation, Enforcement and Litigation, Regulatory Compliance

The European Commission has opened a consultation on a potential legislative proposal on substantiating green claims made when advertising and marketing products. The proposals are intended to implement one aspect of the European Green Deal which states, among other things, that “Companies making ‘green claims’ should substantiate these against a standard methodology to assess their impact on the environment”.

This consultation contains a section targeting (a) the opinion of the general public, and (b) more relevant stakeholders – including businesses and business associations, public administrators, standardisation bodies, method, label and initiative owners, academia, investors and the financial sector, and non-governmental organisations (NGOs).

The purpose of the consultation is to tackle two issues:

The reliability and scope of labels/initiatives presently available to demonstrate the environmental performance of products and companies;
‘Greenwashing’ – the false impression of the environmental impact or benefits of specific products and companies, which misleads market actors and reduces the incentive to find sustainable alternatives for products and activities.

With consumers more focused on the impact of products than ever before, the Commission is bringing the regulation of these claims into sharp focus. There are a large number of different initiatives and standards which all claim to demonstrate the environmental credentials of a product but the large number (over 200) of environmental labels currently used across the EU limits their usefulness to the consumer.

The EU has taken steps to tackle this through the European Green Deal and the 2020 Circular Economy action plan, both of which recommended that companies substantiate green/environmental claims against a standard methodology to assess their impact on the environment.

In 2013 the Commission adopted a Recommendation establishing the Product and Organisational Environmental Footprint methods. These methods are voluntary; they measure the environmental performance of a product or organisation throughout the value chain from the extraction of raw materials to the end of life, using 16 environmental impact categories.

Proposals

The Commission consulted on An Inception Impact Assessment Roadmap on Green Claims on earlier this summer until 31 August 2020 and identified three potential proposals:

Updating the previous 2013 Recommendation based on the outcome of the 2013-2018 pilot phase.
Establishing a voluntary EU legal framework enabling companies to make green claims in accordance with the Environmental Footprint methods, as a complement to existing methods (developed by private or public entities, at national or international level).
Establish an EU legal framework requiring companies making claims related to the impacts covered by the Environmental Footprint method to substantiate them via that method.

The EU is now calling on interested parties to participate in an online questionnaire to gather opinion for a potential legislative proposal that will harmonise laws on substantiating environmental claims. For more information on the steps the EU has taken or to participate in the consultation, please click here. —https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/12511-Environmental-performance-of-products-businesses-substantiating-claims/public-consultation

The deadline to submit responses for this consultation is 3 December 2020 (midnight Brussels time).

California going electric: Sale of new gasoline-powered cars banned in 2035

By Todd O. Maiden and Eric Schmoll on 25 September 2020 Posted in Emerging Legislation and Regulation, Incident Response, Regulatory Compliance

California will ban the sale of new, gasoline-powered cars by 2035, an aggressive action by Governor Gavin Newsom to combat the causes of climate change.

The executive order Newsom signed will require that all new passenger vehicles sold in California beginning in 2035 be “zero-emission.” That category currently includes battery-powered electric cars and those running on hydrogen fuel cells. The ban will also include hybrid and plug-in hybrid vehicles that still use some gasoline or diesel in addition to electricity. Older gasoline-powered cars on the road after 2035 and sales of used gasoline-powered cars would still be allowed. The order further directs that all new medium- and heavy-duty trucks be zero-emission by 2045, which aligns with the state’s goal to eliminate all net emissions from its economy by 2045.