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).
Continue Reading EPA finalizes updates to CWA water quality certification requirements

1) Superfund deals don’t block state-law claims

On April 20, 2020, the Supreme Court of the United States (SCOTUS) issued an opinion allowing Montana residents to maintain state-law claims against a company for a Superfund site that is already covered by a settlement agreement with the U.S. Environmental Protection Agency (EPA).Continue Reading ICYMI: Major April U.S. Supreme Court Environmental Decisions

The Occupational Safety and Health Administration (OSHA) and the California Department of Occupational Safety and Health (Cal/OSHA) have issued various guidance regarding potential workplace hazards resulting from exposure to COVID-19 (see our recent client alert for more information). Most recently, on April 3, 2020, OSHA issued enforcement guidance to all industries indicating that respiratory protection certified by certain non-U.S. jurisdictions may be used as mandatory or voluntary personal protective equipment (PPE) in the workplace where masks approved by the National Institute for Occupational Safety and Health were not available (https://www.osha.gov/memos/2020-04-03/enforcement-guidance-use-respiratory-protection-equipment-certified-under).

This guidance was issued in conjunction with similar announcements from the U.S. Centers for Disease Control and Prevention (CDC) and the U.S. Food and Drug Administration recommending the use of face masks by the general population and expanding approvals of certain masks from foreign jurisdictions for use by health care personnel, respectively. As these three announcements are likely to significantly expand the use of respiratory protection in the workplace, one area where many “nonmedical” employers may seek advice is how to safely dispose of PPE, for example, gloves and face masks that were used in the workplace and that may have been exposed to the COVID-19 virus. Specifically, once an employee uses such PPE, is it considered “medical waste,” or can it go out with the regular trash?Continue Reading Novel coronavirus – How employers should dispose of personal protective equipment

Following a recent settlement between the California Attorney General’s Office and a number of alcoholic beverage retailers, the Office of Environmental Health Hazard Assessment (OEHHA) is proposing to clarify the Proposition 65 warning requirements for alcoholic beverages sold on the internet, in catalogs, and via third-party providers. The most prominent item in the settlement’s methods and in OEHHA’s proposed amendments are that alcoholic beverages sold online or through a catalog must have a warning on the internet site or in the catalog, as well as a warning provided to the purchaser or delivery recipient prior to or at the same time as delivery (e.g., a warning label on a bottle or can).

The amendments would affect industry stakeholders such as retailers, manufacturers, and third-party providers. Affected businesses will likely benefit from the proposed regulatory action because the amendments provide clarifying guidance concerning the provision of Proposition 65 warnings for alcoholic beverages purchased via the internet (including mobile applications) or through catalogs. However, with the increased use of third-party providers to facilitate sales, businesses may need to change their current standards to ensure that warnings are provided to the purchaser or delivery recipient prior to or at the same time as delivery.Continue Reading Last call for alcohol… comments. Proposed amendments to clarify the requirements for providing alcoholic beverage Proposition 65 warnings

A recent decision by a California court of appeal clarified the breadth of the California Water Resources Control Board’s (Board) subpoena power, which could have implications for other state agencies in California and elsewhere.  Moreover, private entities which are the subject of an administrative investigation may have a difficult time withholding financial records even if those records are not related to the alleged violations, and even if the subpoenaed entity is not directly responsible for any of the alleged violations.
Continue Reading Administrative agencies have broad subpoena power

Our EU law environmental and product regulatory teams have been following the passage of a significant new law through the French parliament: ‘the Anti-Waste and Circular Economy Bill’ (Projet de loi relatif à la lutte contre le gaspillage et à l’économie circulaire) (the Bill).

Key features of the Bill include:

  1. Radically expanded obligations for producers in relation to waste management
  2. Introduction of a ‘product lifetime score’ to be displayed on some products
  3. Harmonised waste collection rules
  4. New criminal sanctions for planned obsolescence tactics

Continue Reading Waste and the circular economy: French government proposes to increase liability for waste

The European Commission has recently adopted a range of new mandatory ecodesign obligations, which include ecodesign and energy efficiency requirements for energy related products in the EU, pursuant to the EU Ecodesign Framework Directive (Directive 2009/125/EC).
Continue Reading Introduction of new ecodesign measures for energy related products in the EU

On September 12, 2019, the U.S. Environmental Protection Agency (EPA) and the Department of the Army issued a pre-publication draft of the final rule to repeal the 2015 Clean Water Rule definition of “Waters of the United States” (WOTUS Rule), which amended existing Clean Water Act (CWA) regulations. According to the EPA, the agencies’ goal is to “implement the pre-2015 Rule regulations nationwide as informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding agency practice.”

The WOTUS Rule built on the existing regulatory scheme and defined the geographic scope of the CWA by placing waters into three categories: (1) waters that are categorically “jurisdictional by rule” in all instances; (2) waters that are subject to case-specific analysis to determine whether they are jurisdictional; and (3) waters that are categorically excluded from jurisdiction.Continue Reading EPA repeals 2015 WOTUS rule amid broader environmental regulatory rollbacks

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