US District Court Strikes Down BLM Rule for Hydraulic Fracking on Federal and Tribal Land

On June 21, 2016, the US District Court for the District of Wyoming set aside the US Bureau of Land Management’s (BLM) final rule regulating hydraulic fracturing on federal and Native American lands, finding that BLM lacked Congressional authority to promulgate the regulations.  “Congress has not delegated to the Department of Interior the authority to regulate hydraulic fracturing,” Judge Skavdahl wrote in the decision. “The BLM’s effort to do so through the fracking rule is in excess of its statutory authority and contrary to law.”

The Court rejected BLM’s assertion that it has “broad authority” to regulate all oil and gas operations on federal and Native American lands pursuant to the Mineral Leasing Act of 1920, the Federal Land Policy and Management Act of 1976, and other public land use and mineral development statutes.  The Court then looked to the Energy Policy Act of 2005, which explicitly removed US EPA’s authority to regulate non-diesel hydraulic fracturing under the Safe Drinking Water Act.  The Court reasoned that:

Having explicitly removed the only source of specific federal agency authority over fracking, it defies common sense for the BLM to argue that Congress intended to allow it to regulate the same activity under a general statute that says nothing about hydraulic fracturing.

The Court’s decision blocks the enforcement of BLM’s rule and leaves the regulation of hydraulic fracturing to the individual states.  However, the Obama administration has already indicated that it is likely to appeal the decision to the Tenth Circuit Court of Appeals:  “We’ll continue to make our case in the courts,” White House spokesman Josh Earnest said at a briefing regarding the Court’s decision. “We believe that we have a strong argument to make about the important role that the federal government can play in ensuring that hydraulic fracturing that’s done on public land doesn’t threaten the drinking water of the people who live in the area.”

Additional reporting by this blog regarding BLM’s final rule is available here and here.

US EPA Issues First Safety Determinations for New Chemicals Under Amended TSCA

On July 22, 2016,  US EPA issued its first safety determinations on premanufacture notices (PMNs) for new chemicals under TSCA as amended by the recently enacted Frank R. Lautenberg Chemical Safety for the 21st Century Act.  US EPA announced the decisions exactly one month after President Obama signed the Lautenberg Act into law on June 22, 2016.

In decisions posted to its website, US EPA determined that four new chemical substances were “not likely to present an unreasonable risk” to health or the environment, the new TSCA standard established by the Lautenberg Act.  The PMNs for all four substances had been submitted to US EPA prior to enactment of the Lautenberg Act, but because US EPA concluded that the Lautenberg Act had “effectively reset” the 90-day review period for all PMNs, the Agency had reviewed the four chemicals further under the new standard.

The specific chemical identity of each chemical is confidential. The generic names of the four chemicals (and their PMN numbers) are:

  • Generic: Fatty Alcohols-dimers, Trimers, Polymers (P-16-0281)
  • Generic: Depolymerized Waste Plastics (P-16-0292)
  • Generic: Propyl Silsequioxanes, Hydrogen-terminated (P-16-301)
  • Generic: Organic Modified Propyl Silsequioxane (P-16-302)

While US EPA appears to have selected non-controversial chemicals for its first safety determinations under the new TSCA review standard, US EPA’s decisions give at least some insight into the Agency’s thinking, including the methodology it will use to review PMNs, the scope of its consideration of the potential effects of a new chemical, and the documentation explaining its decision on a PMN. Continue Reading

New Ohio Law Increases Protections From Lead Contamination in Drinking Water

water-fountainOn June 9, 2016, Governor John Kasich signed House Bill (HB) 512, a multifaceted law that the Governor has said “puts Ohio in front” and makes Ohio “the leader in the country” in dealing with the problem of lead contamination in drinking water.  After the crisis in Flint, Michigan sparked a national inquiry and events in Sebring, Ohio raised questions locally, the Ohio General Assembly responded with HB 512, which includes tighter deadlines for Ohio public water systems to respond and notify residents of lead in drinking water. HB 512 was introduced on April 7, 2016, quickly passed by the Ohio Legislature in May, and signed into law by the Governor. The new law becomes effective on September 8, 2016.

The new law establishes sampling, corrosion control, and individual tap action levels, more stringent public notification deadlines, higher administrative enforcement penalties, requirements for identifying and mapping lead infrastructure in public water systems, and financial assistance for communities and schools with lead in drinking water concerns. The enacted version largely mirrors the version that was introduced, which we previously covered here. The key provisions of the changes to Ohio law regarding lead in drinking water are summarized in the full alert: New Ohio Law Increases Protections from Lead Contamination in Drinking Water.

US EPA Issues First Year Implementation Plan for New Lautenberg Chemical Safety Act

The US EPA has issued a “First Year Implementation Plan” outlining the steps it will take over the next year (and beyond) toward implementing the requirements of the new Frank R. Lautenberg Chemical Safety for the 21st Century Act, the legislation signed into law by President Obama on June 22 to modernize the Toxic Substances Control Act (TSCA).  The Lautenberg Act imposes a number of new requirements and responsibilities on US EPA, with several major tasks that must be completed with the first twelve months after the law’s enactment, including promulgating several significant rulemakings, initiating risk evaluations on 10 Work Plan chemicals and other efforts.

In announcing the Implementation Plan, US EPA underscored its commitment “to engage partners and stakeholders early in the process, and to be as transparent as possible.” The agency emphasized that the Plan “is not intended to be a comprehensive listing of all requirements in the new law” but instead “is intended to be a roadmap of major activities EPA will focus on during the initial year of implementation.” US EPA also stated that the Plan is a “living document” that will be “further developed over time.”

The Implementation Plan is organized into four broad categories of tasks that US EPA must fulfill: (i) Immediate Actions; (ii) Framework Actions; (iii) Early Mandatory Actions; and (iv) Later Mandatory Actions. Continue Reading

US Mine Safety and Health Administration Proposes New Workplace Examination Rule; Requests Information Regarding Exposure of Underground Miners to Diesel Exhaust

On June 8, 2016, the US Mine Safety and Health Administration (MSHA) published the following two documents in the Federal Register, seeking information and comments from industry stakeholders: (1) a proposed rule addressing “Examinations of Working Places in Metal and Nonmetal Mines (MNM)”; and (2) a Request for Information (RFI) on “Exposure of Underground Miners to Diesel Exhaust.” The comment period for both publications ends September 6, 2016. Continue Reading

President Obama Signs Landmark TSCA Reform Legislation into Law, as US EPA Begins Implementation

On June 22, 2016 President Barack Obama signed into law the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” the landmark legislation modernizing the decades-old Toxic Substances Control Act (TSCA).   The Lautenberg Act is the first substantive update of TSCA since it was passed 40 years ago in 1976 and signed into law by President Gerald Ford.  The Lautenberg Act was approved by large majorities in both houses of Congress: a 403-12 margin in the US House on May 24, 2016, and by a unanimous voice vote in the US Senate on June 7, 2016.

The Lautenberg Act became effective immediately upon the President’s signature, and US EPA already is moving quickly to begin implementation of the Act’s provisions.

In materials posted to its website shortly after President Obama signed the legislation, EPA stated that it is “developing an Implementation Plan to guide the agency’s effort on successfully meeting the deadlines in the new law, including among others:

  • Identifying the initial ten Work Plan chemical risk assessment;
  • Establishing a process and criteria for identifying high priority chemicals for risk evaluation; and
  • Issuing a procedural rule that establishes EPA’s process for evaluating risks from high-priority chemicals.”

Significantly, EPA emphasized that the “most immediate effects” from the new law “will be on the new chemicals review process.” In contrast to the procedure under the old TSCA whereby EPA could simply let the 90-day review period for a PMN (or SNUN) expire without taking action, the Lautenberg Act requires EPA to make a formal affirmative determination regarding whether a new chemical (or a significant new use of an existing chemical) presents an “unreasonable risk of injury to health or the environment under the conditions of use” before the chemical can be manufactured, imported or processed in the US.

Because this new requirement is now in effect, EPA announced that the Lautenberg Act “effectively resets the 90-day review period” for companies that submitted PMNs (or SNUNs) prior to the President’s signature on the Act. In other words, for PMNs and SNUNs submitted before June 22, the 90-day clock was restarted on that day.  EPA also stated, however, that it “will make every effort to complete its review and make a determination within the remaining time under the original deadline.”

EPA also stated that over the next several weeks, it “plans to begin making information available on opportunities to learn more about the changes in the new law and how and when specific stakeholder engagement will begin to take place.”   EPA stated that, among other things, the “opportunities for input” may include briefings, webinars, public meetings, and comment periods.

In addition EPA announced that it plans to soon begin the process for consulting with stakeholders about developing the rule required under the Lautenberg Act to collect new fees to “help defray the costs of administering the provisions on collecting and managing information, implementing the new chemicals program, and evaluating and regulating existing chemicals.”

EPA’s actions to interpret and implement the numerous new provisions and requirements in the Lautenberg Act in the weeks and months ahead will be critically important and will set the tone for EPA’s long-term approach to the new law. EPA must soon begin work to develop and issue several significant rulemakings that must be completed within one year of the Law’s enactment (i.e, by June 22, 2017), as well a number of policies, procedures, and guidance documents that must be completed within two years of enactment (i.e. by June 22, 2018).  EPA also must begin its efforts to develop early lists of existing chemicals for prioritization and risk evaluation, collect data on chemicals and initiate risk evaluations on chemicals.  Squire Patton Boggs will monitor EPA’s actions closely.

Implications Of The Brexit Vote On UK Environmental Law And Policy

Following a referendum which has polarised the nation, the people of the UK have voted to leave the European Union. Stepping away from the political rhetoric and posturing, it is worth reflecting on some of the more practical issues which will arise from this decision, such as how it could affect our environmental law landscape.

From a historical perspective, the UK was once referred to as the ‘dirty man of Europe’, with relatively lax levels of environmental regulation and standards. Since joining the EU in the 1970s, however, environmental standards imposed, largely through EU legislation, saw a significant strengthening of the UK’s environmental protection regimes and of environmental standards.  Today, the majority of environmental legislation in the UK is derived from the EU, with national law only having to deal with enforcement and penalties.  So what does UK’s exit from the EU mean for environmental law from a practical and policy perspective?  Read more for insights on what to expect next.

 

When Allergens Go Wrong: UK Potential Penalties For Food Adulteration And Breach Of Food Information And Safety Laws

Penalties imposed by the courts in relation to the adulteration of food can be serious. The Guardian and other papers in the UK reported recently that an Indian restaurant owner has been imprisoned for manslaughter following the death of a customer who suffered an allergic reaction (a severe anaphylactic shock) in January 2014 after eating a takeaway which contained peanuts, despite the fact that he made his severe allergy known to staff. In the case, the court reportedly heard evidence that cheaper ingredients had been substituted for spices.

The case also highlights the even more serious consequences for customers if allergens are not properly controlled and/ or where the allergen information given to customers is not correct. Clearly, allergy sufferers can be unwittingly exposed to potentially fatal risks and as such they may pay the ultimate price. Any court is unlikely to look favorably on a business which puts profit before personal safety and knowingly substitutes ingredients for financial reasons.

Financial penalties for breach of food information and food safety laws for manufacturers, restaurateurs and supermarkets are also significant, and have recently increased. On 11 March 2015 the previous £20,000 fine limit for magistrates in England and Wales was removed (under the Legal Aid, Sentencing and Punishment of Offenders Act 2012). For a conviction under the Food Safety Act 1990 in the magistrates’ court, the level of fine is now an unlimited amount (which is also the case for trial in a higher court). Relevant offences include: selling food not complying with safety requirements; selling food not of the nature, substance or quality demanded; and falsely describing or presenting food, all of which could potentially be relevant where undeclared allergens have been used.

Following the removal of the fine limit, in February 2016, definitive guidelines published by the Sentencing Council in 2015, came into force. The guidelines included food safety and hygiene offences for the first time (earlier guidelines covered corporate manslaughter and health and safety offences resulting in death only, although fine levels for these offences have also been updated in the new guidelines).

All indications to date are that the application of these guidelines by the courts will almost certainly result in significantly higher penalties for organisations convicted of such offences. They apply to organisations in England and Wales which are sentenced on or after 1 February 2016 (regardless of the date of the offence) and to all individual offenders aged 18 and over. The guidelines include a number of tables setting out starting points and ranges for sentences for the various offences. For example, large organisations (those with a turnover of £50 million or more) could face fines of up to £3 million for food safety and hygiene offences. It will be at the court’s discretion to go above these figures if they consider a case to be exceptional.

The Sentencing Council has published a series of case studies to assist the courts in imposing sentences for the various offences. They consider the steps in the guidelines and the facts that should be taken into account at each of the key steps. They confirm which range and starting point is appropriate but do not actually recommend what fine should be imposed. For food safety and hygiene offences:

  • Culpability will be rated low to very high – with very high being “a deliberate breach of or flagrant disregard for the law” and low being “the offender did not fall far short of the appropriate standard”.
  • Consideration must then be made to whether there was a low or serious risk of an adverse effect on the individual. For example, a “category 1” harm may have serious adverse effect(s) on individual(s) and/or have a widespread impact.
  • The court is then required to focus on the organisation’s annual turnover or equivalent to reach a starting point for a fine. Offenders which are companies, partnerships or bodies delivering a public or charitable service are expected to provide comprehensive accounts for the last three years, to enable the court to make an accurate assessment of its financial status.

Given the increase in potential fines for commission of a food safety and hygiene (and/or health and safety offence) the overall approach to risk management by operators and senior management will in our view be increasingly important. Prevention, rather than reaction, will help to minimise the risks of potentially very large fines and improvement in compliance systems before an incident occurs will help to achieve this.

The extent of precautions a business puts in place to protect against food adulteration will be relevant when seeking to establish a defence to such offences. Companies and professionals in the food industry should take all reasonable precautions and exercise all due diligence to avoid committing offences under UK legislation. Whether the actions which have been taken meet the test of ‘all due diligence’ and ‘all reasonable precautions’’ will ultimately be decided by the courts on a case to case basis. There is no ‘magic formula’, nothing that all businesses can do that will mean they will automatically meet the threshold of the due diligence defence. It will depend on all of the circumstances in the particular case. However, suitable precautions might include:

  1. Horizon scanning exercises to assess the risks and weaknesses in global supply chains or in the information given to a business by its suppliers;
  2. Considering and implementing safeguards to protect against identified risks, for example supplier audits, or random sampling of goods, all of which should be adaptable when horizon scanning identifies increased risk;
  3. Ensuring transparency of supply chains and robust traceability systems;
  4. Following recognised industry or trade body guidance, such as standards developed by the Food and Drink Federation or the British Retail Consortium;
  5. Devising and testing crisis management plans for when a potential issue is identified;  and
  6. Documenting all systems and due diligence measures agreed and carrying out audits to check compliance with those systems across the business.

In addition to such practical precautions in relation to the products themselves, it may be sensible to consider your supply agreements and relationships. Supply chain partners can negotiate responsibility for recalls at the beginning of their relationship and may want to consider which party should manage the administration of any recalls and interaction with regulators. Unduly pressuring suppliers (for example, by failing to comply with basic payment terms) may inadvertently lead to them, in turn, cutting corners and increasing your exposure to unacceptable risks (for more insights on this, please visit our Global Supply Chain blog).

In terms of how allergen information is provided to customers, the FSA issues Guidance in relation to the provision of allergen information for loose foods (which would cover food supplied in restaurants). It states that where allergen information is not provided upfront in writing, signposting a customer to where they can get this information is required. This could be, for example, by way of a sign, notice or statement at the till point, on a menu board, or on the menu. For example, a sign might direct customers to ask staff for allergen information (although reliance only on verbal communication might make it difficult to demonstrate effective compliance). It also highlights that businesses should consider any risks of cross-contamination if they claim a food is free from a particular allergen.

Under the Food Information Regulations 2014, the primary enforcement mechanism in England for failure to comply with the EU Food Information for Consumers Regulation is Improvement Notices. However, failure to comply with allergen labelling/information requirements for both pre-packed and loose foods may still be dealt with from the outset as a criminal prosecution in the magistrates’ court. Clearly, as the recent manslaughter conviction shows, where the failure results in injury or even death, businesses can be prosecuted under other legislation (and civil claims may also follow).

US Congress Passes Landmark TSCA Reform Legislation

On June 7, 2016 the US Congress passed the “Frank R. Lautenberg Chemical Safety for the 21st Century Act,” the landmark bipartisan, compromise legislation to overhaul the Toxic Substances Control Act (TSCA).    The Lautenberg Act is expected to be signed into law by President Obama very soon.

As passed by Congress, the Lautenberg Act makes many significant changes to the current TSCA law, including:

  • Requiring US EPA to evaluate chemicals (both new and existing chemicals) to determine whether they present an “unreasonable risk of injury to health or the environment under the conditions of use”;
  • Prohibiting US EPA from considering costs or other non-risks factors in chemical evaluations and requiring the Agency to consider potentially exposed or susceptible subpopulations in the evaluations;
  • Allowing chemical manufacturers to ask US EPA to evaluate a chemical;
  • Giving US EPA authority to issue administrative orders to require testing of chemicals;
  • Requiring US EPA to reduce the use of vertebrate animals in testing;
  • Eliminating the “least burdensome” requirement for chemical regulations, making it easier for US EPA to restrict – or ban – chemicals;
  • Preempting state chemical regulations under certain conditions;
  • Putting limits on confidential business information (CBI) claims and allowing US EPA to share CBI with states; and,
  • Allowing US EPA to charge higher fees for chemical reviews.

Because the Lautenberg Act makes so many significant changes to the current TSCA statute, US EPA’s actions to interpret and implement the numerous new provisions and requirements in the Act will be critically important – especially during the next 1-2 years.  US EPA must develop and issue a number of policies, procedures, guidance documents and formal rulemakings during this time, as well as begin to develop early lists of existing chemicals for prioritization and risk evaluation, collect data on chemicals and initiate the risk evaluations.  Moreover, US EPA must begin to give greater scrutiny to Pre-Manufacture Notices (PMNs) for all new chemicals (and Significant New Use Notices (SNUNs) for new uses of existing chemicals) and evaluate them for safety under their conditions of use, require more testing of chemicals, and take stronger action on chemicals that US EPA determines present an unreasonable risk of injury to health or the environment.  The impacts of US EPA’s actions under the Lautenberg Act on the manufacture, import, processing, distribution and use of chemicals – and products containing chemicals – in the United States will be significant and far-reaching.  A comprehensive analysis of the Act is available here.

Taking The Field – Obligations On Employers Under The New UK Control Of Electromagnetic Fields At Work Regulations 2016

From next month, employers will be required to consider specifically the risks posed to their employees by electromagnetic fields (EMFs).

What are EMFs?

EMFs occur wherever a piece of electrical or electronic equipment is used, from an electric kettle or lap top computer through to an MRI scanner or satellite dish.  EMFs are likely, therefore, to be present in most modern workplaces.  Although there is no current scientific evidence that EMFs are responsible for long-term health consequences, it is well established that (depending on the frequency of the EMFs waves) they can cause short-term effects, such as nausea, vertigo, twitching and heating up of body tissue.

What changes are being made to the law?

Subject to Parliamentary approval, the Control of Electromagnetic Fields at Work Regulations 2016 (CEMFAW) will be introduced on 1 July 2016.  CEMFAW transposes into UK law the requirements under EU directive 2013/35/EU on the minimum health and safety requirements regarding the exposure of workers to the risks arising from physical agents (electromagnetic fields) (20th individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC).

Although employers are already required under the Management of Health and Safety at Work Regulations 1999  to assess the general risks posed to employees and others by risks posed by their undertaking, CEMFAW relates specifically to risks posed by EMFs.  For example, CEMFAW will require employers to:

  • ensure that exposure by employees to EMFs is below the relevant exposure limit values (ELVs) (regulation 4);
    assess the levels of EMFs to which their employees may be exposed (regulation 5);
  • where appropriate
    • devise and implement an action plan to comply with exposure limits (regulation 7);
    • assess the risk of an employee’s exposure to EMFs (regulation 8); and
    • eliminate or minimise the risks from EMFs (regulation 9);
  • provide information and training to employees on any particular risks posed by EMFs (regulation 10); and
  • provide health surveillance and medical examinations to employees who are exposed to EMFs in excess of the ELVs (regulation 11).

The obligations relating to ELVs do not apply to military installations or during military activities, to the use of MRI scanners in the health sector or where the HSE has granted a written exemption to employers.

How can employers assess the levels of EMFs to which their employees may be exposed?

The first step for all employers under CEMFAW will be to assess the levels of EMFs to which employees are exposed.  Fortunately, draft guidance published by the Health and Safety Executive (“HSE”) contains a table setting out a non-exhaustive list of low exposure electrical and electronic equipment (including many items used in offices, such as computers, IT equipment and photocopiers) and advises, that where a business uses only these items, no further action need be taken unless there are employees at particular risk (such as expectant mothers) or exposure could present a risk of indirect effects (for example, interference with passive implanted or body worn medical devices).  The HSE guidance also contains lists of those sources of EMFs and activities which may pose risks (for example, radio and TV broadcasting systems and devices, dielectric heating and welding, and industrial electrolysis).

Although ELVs set out the limits of exposure to EMFs, they can be difficult and expensive to measure directly.  Therefore, CEMFAW also contains a separate set of values, Action Levels (“ALs”), which can be measured more easily.  Some ALs are tied to ELVs, and where an AL is not exceeded, the corresponding ELV will not have been exceeded either.  Conversely, where an AL is exceeded, further consideration and assessment should be given as to whether the corresponding ELV has been exceeded.  Other ALs are not tied to ELVs, but exceedance of them may indicate the risk of potential indirect effects.

Apart from the lists in the guidance, there are other sources of information that employers can use when assessing the levels of risk, including reports of ill health by employees, equipment manufacturer data, sector or industry standards and guidelines, and trade association information.  If an employer has 5 or more employees, the assessment should be suitably recorded.  The assessment should be reviewed if there is reason to suspect it is no longer valid or if there has been a significant change in the matter to which it relates.

What are the practical implications for employers?

Critics might argue that CEMFAW represents yet another tier of bureaucracy for employers to contend with.  However, it is reckoned that the vast majority of employers will not be required to do anything more than assess the levels of EMFs to which their employees may be exposed and that, in most cases, employers will be able to do this without specialist assistance (for example, from an external consultancy).  Whilst that remains to be seen, if it is correct, then CEMFAW will have struck a fair balance between protecting employees and not over-burdening employers.

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