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?

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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.

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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.

U.S. regulatory developments: EPA issues first in a series of rules restricting ethylene oxide emissions

On June 1, 2020, the U.S. Environmental Protection Agency (EPA) announced final action to reduce emissions of ethylene oxide (EO) from certain sources. EO is an intermediary chemical used to make plastics, textiles and antifreeze, and also is used to sterilize medical devices. Scrutiny of EO has increased in the past few years due to the chemical’s potential carcinogenic effects. EPA’s regulatory action is the first update to national hazardous air pollutant limits for the chemical manufacturing sector since 2006, and the agency expects the regulations to reduce EO emissions by 0.76 tons per year. The announcement caps off a flurry of recent activity by EPA and state agencies aimed at addressing EO emissions.

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Appeals court rejects AFL-CIO suit seeking to compel OSHA to issue COVID-19 emergency temporary standard

On May 18, the AFL-CIO filed a petition for a writ of mandamus in the U.S. Court of Appeals for the District of Columbia Circuit to compel the Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) protecting U.S. workers against COVID-19.  However, on June 11, the U.S. Court of Appeals rejected the AFL-CIO’s request for the court to compel OSHA to issue an ETS to protect workers from the novel coronavirus. Labor unions were seeking the standard so all U.S. workplaces subject to OSHA rules would be required to develop workplace safety plans to safeguard workers. The unanimous decision of the three-judge panel found that “In light of the unprecedented nature of the COVID-19 pandemic, as well as the regulatory tools that the OSHA has at its disposal to ensure that employers are maintaining hazard-free work environments … the OSHA reasonably determined that an ETS is not necessary at this time.”  Instead of an emergency standard, OSHA has relied on existing standards, including personal protective equipment (PPE) and associated hazard assessment requirements, as well as voluntary guidance that recommends companies assess the risk of infection in their workplace and conduct certain actions such as erecting physical barriers, enforcing social distancing, and installing more hand-sanitizing stations.

Despite COVID-19 concerns, CARB continues to advance its regulation of air emissions for shipping industry; hearing set for late June

The California Air Resources Board (CARB) will conduct a public Board hearing later this month as it continues its efforts to expand the state’s existing Ocean-Going Vessels At-Berth Regulation to further reduce air emissions from ships docked in California. As earlier reported, CARB recently released further modifications to the at-berth rulemaking documents (15-day change). Due to these proposed changes, regulated parties remain concerned about significant increased costs related to supporting infrastructure and capital improvements – and some predict that not extending the compliance date to allow for economic recovery from the COVID-19 pandemic will make compliance more costly, or even “infeasible.”

At the upcoming Board hearing, staff will provide an update to the Board in response to stakeholder comments received on the 15-day change proposal. The hearing is set to commence at 9:00 a.m. (Pacific Time), June 25, 2020, and may continue at 8:30 a.m., June 26, 2020. The hearing will be held remotely.