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California Governor Gavin Newsom recently signed three bills addressing carbon capture, utilization and storage (“CCUS”) and carbon dioxide removal (“CDR”).  Collectively, these bills create a pathway for new regulation of CCUS and CDR projects, enabling them to become part of a solution for the State to meet aggressive carbon reduction / neutrality goals in 2030…

As anticipated, on Friday the U.S. Environmental Protection Agency (EPA) issued a proposed Risk Management Program (RMP) Safer Communities by Chemical Accident Prevention rule pursuant to the Clean Air Act. The proposed rule would reinstate certain provisions newly introduced to the RMP rule (originally promulgated in 1991) late in the Obama administration and subsequently removed by the Trump administration in 2019.  The EPA has additionally added significant new requirements not originally in the 2017 draft RMP rule, including provisions aimed to further current policies on environmental justice and climate change.  The proposed RMP rule also appears to draw influence from recommendations made by the Chemical Safety Board (CSB) as well as state updates to process safety regulations in the past decade, most notably the California Accidental Release Prevention Program (CalARP) and the California Refinery Process Safety Management (PSM) Standard. 

These changes, including the addition of requirements regarding employee participation, public availability of information, inherent safety, third party auditing, facility siting and natural hazards consideration, as well as emergency response planning, will result in covered RMP facilities having to significantly revisit and revise their RMP programs and plans.  Certain requirements also appear to be directly aimed at limiting stationary sources’ ability to privately manage their internal risk management decisions.  For example, covered facilities would now be required to document any revisions between draft and final compliance audits and provide justifications for rejected RMP program recommendations.

According to EPA Administrator Michael Regan, “protecting public health is central to EPA’s mission, particularly as we adapt to the challenges of climate change, and the proposal announced today advances this effort, especially for those in vulnerable communities.  This rule will better protect communities from chemical accidents, and advance environmental justice for communities that have been disproportionately impacted by these facilities.”  EPA estimates the rule will cost approximately $77 million a year.

Comments on the proposed rule are due to EPA within 60 days of its publication in the Federal Register and may be submitted online, via mail, or hand-delivery.…

Continue Reading EPA Proposes Expansive Changes to EPA RMP Rule

A new “Clean Hydrogen Bill” (SB 1075, Skinner) has been introduced in the California Legislature as a means of achieving the State’s goals for reducing greenhouse gas emissions and mitigating climate change. If passed, this bill would significantly increase the emphasis on “green hydrogen” as an alternative fuel in California’s economy, opening up…

California’s Office of Environmental Health Hazard Assessment (OEHHA) has extended the public comment period for the proposed amendments to their “short-form” Proposition 65 “safe harbor” warning regulations in response to a request from the California Chamber of Commerce. OEHHA’s proposed amendments change existing provisions addressing label size, catalog and internet warnings, and other issues (see…

As we reported this past year, the California Office of Environmental Health Hazard Assessment (OEHHA) seeks to significantly amend the regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986 (aka “Proposition 65”) to limit use of the previous State-approved “safe harbor” short-form warnings for regulated chemicals in consumer products.  The State announced on December 13, 2021 further amendments to the proposed regulations, but generally continues to propose that use of the current “short form” safe harbor warning be dramatically scaled back, which will impact thousands of consumer products by requiring more specificity in future warning language.

As background, current California law allows a manufacturer, distributor or retailer of a consumer product to place either a “long form” or “short form” warning on the product or product packaging if one or more of 900+ regulated chemicals is in the product.  The long form warning identifies by name “at least one” chemical from each regulated chemical risk category (i.e., carcinogens or reproductive toxicants).  The short form alternate warning only requires identification of the risk category (ies) – not particular chemicals.

After reviewing over 160 written and oral comments on a prior proposed version of the regulations, OEHHA modified the proposed regulation again to:…

Continue Reading California proposes further modifications to its “Short-Form” Proposition 65 warnings

As we reported, the California Legislature passed SB 1014 – the Clean Miles Standard and Incentive Program (the “Clean Miles Program”) – to reduce greenhouse gas emissions from “rideshare” vehicles. This led to the creation of the Clean Miles Standard regulation, which the California Air Resources Board (“CARB”) fully adopted in May 2021 after receiving stakeholder input. In sum, the Clean Miles Program directed CARB and the California Public Utilities Commission (“CPUC”) to develop and implement new requirements for transportation network companies (“TNCs”) like Uber and Lyft.  In this blog post, we discuss the goals and three core requirements of the Clean Miles Program, the new regulations CARB just adopted in furtherance of those core requirements, and other obligations that lie ahead for TNCs.

The Clean Miles Program sets more stringent emissions standards for TNCs over time and encourages TNC drivers to shift to electric vehicles.  The Clean Miles Program has three core requirements:

  • In 2020, CARB established a greenhouse gas (“GHG”) emissions baseline for vehicles used in TNCs on a per-passenger-mile basis using 2018 as the base year;
  • In 2021, CARB and CPUC adopted and implemented, respectively, targets and goals (beginning in 2023) for TNCs to reduce GHG emissions per passenger-mile driven; and
  • By January 1, 2022, and every two years thereafter, each TNC shall develop a GHG emissions reduction plan.

 CARB satisfied the first requirement and determined the baseline emission rate (301 grams of carbon dioxide (“CO2“) for each mile traveled.

In furtherance of the second and third requirements—CARB adopted (in May 2021) a “Clean Miles Standard” regulation that imposes new requirements that require TNCs to provide information including, but not limited to: (i) total miles that TNC drivers complete; (ii) share of miles completed by qualified “zero-emissions” (e.g., zero-emission vehicle); (iii) miles-weighted average of network-wide CO2 to produce an estimate of the GHG emissions; and (iv) total passenger-miles completed using an average passengers-per-trip estimate to account for trips where exact passenger headcount was not captured.  The new regulation also requires TNCs to submit annual reports and a compliance plan every two years starting in January 2022.…

Continue Reading Electrifying transportation network companies in CA: Updates to SB 1014’s Clean Miles Standard + Incentive Program

On Friday June 11, 2021, the California Department of Occupational Safety and Health (Cal/OSHA) published new proposed text for re-adoption of the COVID-19 Emergency Temporary Standard (ETS).  After previously voting against adopting Cal/OSHA’s initial revised ETS during a highly contentious public meeting earlier this month, during which critics vehemently objected to the rule’s continuation of…

Late last week, the California Occupational Safety and Health Standards Board (“Standards Board”) reconvened in a public meeting to consider the California Division of Occupational Safety and Health (Cal/OSHA) revised COVID-19 Prevention Emergency Temporary Standard (ETS).  The new proposed ETS was developed to replace the existing ETS that has been in place since December 1, 2020.

A prior draft of the ETS was initially to be considered in a May meeting, but it was tabled to allow Cal/OSHA the opportunity for revisions to align with State and the Centers for Disease Control (CDC) guidance.  Cal/OSHA made a few revisions to the prior draft of the ETS, the most important of which are detailed below:

  • The physical distancing section has been simplified.  As was the case with the prior version of the ETS, physical distancing is still only required for all employees until July 31.  From the passage date until July 31st,  employers have the option to: (1) ensure distancing; or (2) provide unvaccinated employees with respirators for voluntary use.  The distancing requirements (if that option is selected) are similar to the previous requirements.
  • There is a requirement to maintain physical distancing when a face covering is required but not worn, but only if the face covering is not worn for either of two very specific reasons, (1) where an employee cannot wear a face covering due to a medical condition or (2) where specific tasks cannot feasibly be performed with a face covering.  The other exceptions to the face covering requirements do not trigger this physical distancing requirement.
  • The requirement to evaluate the need for respiratory protection when distancing cannot be maintained prior to July 31 has been removed.
  • Cal/OSHA has added “outdoor mega events” as a defined term and has added new requirements for outdoor mega events that are similar to those for employees working indoors with a few notable exceptions.  An outdoor mega event is defined as an outdoor event with 10,000+ participants (g., theme parks, concerts, etc.).
  • The exception that previously excluded fully vaccinated individuals from becoming COVID-19 cases has been removed.  Importantly, however, the exception from excluding fully vaccinated individuals who have had close contact remains unchanged.

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Continue Reading Cal Safety Standards Board approves second COVID-19 ETS

Earlier today, the California Occupational Safety and Health Standards Board held a public meeting to consider, among other items, the California Division of Occupational Safety and Health (Cal/OSHA) revised COVID-19 Prevention Emergency Temporary Standard (ETS), which was developed to replace the existing ETS that has been in place since December 1, 2020.

During the initial portion of the meeting, the Standards Board heard comments from the public and various stakeholders, who, as during previous public meetings, advocated for and against continued restrictions in the workplace. Following the public comment portion, Eric Berg on behalf of Cal/OSHA described the timeline of the agency developing the rule and finalizing its draft revised ETS.  In particular Berg noted that, after the rule was developed, the Centers for Disease Control and Prevention (CDC) issued new guidance that vaccinated individuals could go without masks indoors, followed by the California Department of Public Health (CDPH) announcement that it would implement the same guidance on June 15, 2021.  This caused Cal/OSHA last night to send a memorandum to the Standards Board requesting that the Board not adopt the revised ETS because the agency wanted to have the opportunity to revisit the proposed rule in light of the updated CDC guidance, and re-submit a proposed rule at a future date.  Berg reiterated this request during the meeting, indicating that Cal/OSHA would like to target implementing a revised draft of the ETS on June 15, to coincide with the governor’s lifting of mask requirements.…

Continue Reading Cal Safety Standards Board defers voting on second COVID-19 ETS until June