Groundwater Remediation as Potential Tool to Combat Water Scarcity: Navigating Potential Conflicts Between CERCLA Remediation Considerations and Water Policy Issues

New water supplies in the western United States are likely to come from a panoply of non-traditional sources, including storm water capture, waste water recycling, desalination, infrastructure efficiency improvements, and other conservation measures. One potential new water source for municipalities is contaminated groundwater requiring environmental remediation, that, but for its low quality, could be used as water supply. Exploring this option is especially appealing in water stressed regions, such as much of the western United States. For example, in southern California, the Metropolitan Water District supports “[r]ecovering degraded groundwater supplies for municipal use” as part of its Local Resources Program. The idea is to conduct environmental remediation of groundwater in a way that unlocks new unused water resources. In cases where contaminated groundwater is hydrologically separated from aquifers that are being beneficially used, a remedy that involves the extraction of water and treatment for later recharge into the principal water supply aquifer can actually increase the volume of water naturally available for human use. Continue Reading

Proposed Affordable Clean Energy Rule: Navigating US EPA’s Clean Power Plan Replacement

On August 31, 2018, the US Environmental Protection Agency (US EPA) published its proposed rule providing a replacement to the Clean Power Plan (CPP).  The proposed rule, named the Affordable Clean Energy (ACE) rule, outlines revised emissions guidelines and the process for states to submit plans for the reduction of greenhouse gas (GHG) emissions from affected electric utility generating units (EGUs).  Key components include a shift to “inside-the-fenceline” emission reduction measures at individual sources for the best system of emission reduction (BSER) and proposed changes to applicability requirements for EGUs under the New Source Review (NSR) program.  Comments on the proposed rule are currently due on October 31, 2018, and the only public hearing thus far was held in Chicago on October 1, 2018.  The Agency is taking steps to organize the comments by indexing each comment solicitation and directing commenters to “include the corresponding identifier” when providing relevant comments.

The CPP remains subject to a stay in the D.C. Circuit Court of Appeals since February 9, 2016.  On September 4, 2018, a group of petitioners including seventeen states filed a response and motion requesting the court lift the abeyance and issue a ruling.  The basis for the motion included that US EPA does not have sufficient grounds to continue the stay and is unduly prolonging the abeyance.  The petition noted that such a decision would not prevent US EPA from pursuing this proposed rulemaking. Additionally, the Agency published an advanced notice of proposed rulemaking on December 28, 2017 seeking comments as to a proposed replacement rule. For a detailed overview of these background events, see this article.

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September 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Online NewsWe are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In the September edition, we summarise more than 30 developments in the environmental, safety and health sector. Top stories this month include:

  • The Court of Appeal’s decision in Serious Fraud Office (SFO) v Eurasian Natural Resource Corp Ltd (ENRC)
  • The Health and Safety Executive (HSE) fining a logistics company £1.5 million after the death of a worker
  • A new national strategy for product safety strategy has been introduced by the OPSS
  • The Court of Appeal reducing a fine by £765,000 for breach of work at height requirements
  • Further guidance introduced from the government on what a “no deal” Brexit would look like for the UK

For more detailed information on these developments and access to the remaining summaries, download a copy from our website. Make sure you also subscribe to receive our most recent edition every month.

California Turning Away From Traditional Imported Water Sources and Toward More Resilient Localized Water Supplies

In 2014 California enacted the Sustainable Groundwater Management Act, which provides the framework for local water management agencies to develop and implement groundwater sustainability plans in order to sustainably manage the state’s groundwater within 20 years. This legislation was California’s first ever attempt to sustainably manage groundwater resources, a long overdue effort given that the state relies on groundwater for 40 percent of its total water supply in an average year. The Sustainable Groundwater Management Act aims to ensure that groundwater basins are being managed in a way that achieves “sustainable yield”—the maximum quantity of water that can be withdrawn annually from a groundwater supply without causing an “undesirable result.” Continue Reading

California Water Board Sues Federal Agency for Pollutants Entering the U.S. Via the Tijuana River

DrainThe San Diego Regional Water Quality Control Board (Water Board) filed a complaint on September 4, 2018 against the United States Section of the International Boundary Water Commission (IBWC), alleging violations of the Clean Water Act (CWA) related to contamination in the Tijuana River. Relying on a 1944 U.S./Mexico treaty, the complaint alleges that the IBWC is responsible for addressing waste entering the U.S. from Mexico along the Tijuana River watershed.

The Tijuana River crosses the border into California through a flood conveyance channel operated by the IBWC, feeds the Tijuana River Estuary—a coastal wetland home to multiple species protected under the California Endangered Species Act—and eventually flows into the Pacific Ocean. The IBWC constructed and maintains a wastewater treatment plant and a supporting system of concrete channels, detention basins and pump stations to capture and treat waste flows entering the U.S. from Mexico. And, in 2014, the Water Board issued a National Pollutant Discharge Elimination System (NPDES) permit to the IBWC, allowing discharge of treated water into the Pacific Ocean. Continue Reading

August 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Electronic NewsWe are pleased to share our latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In the August edition, we look at a host of relevant new developments in the environmental, safety and health sector. Top stories this month include:

  • The Home Office’s report into the economic and social cost of modern slavery
  • A West Midlands haulage firm being prosecuted following a fatal incident
  • The publication of a new national product safety strategy by the OPSS
  • Detectives involved in the Grenfell Tower fire investigations consider corporate manslaughter charges after conducting interviews under caution
  • The Sentencing Council’s Manslaughter Definitive Guidelines are set to come into force from 1 November 2018

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website. You can also subscribe to ensure you receive our most recent edition every month.

MPs Recommend Giving UK Local Authorities Power to Charge Employers for Health and Safety Enforcement Action

There has been a general decline in health and safety inspection and enforcement by local authorities since 2010 principally due to reduced funding and competing priorities, according to the All-Party Parliamentary Group on Occupational Safety and Health (APPGOSH). According to their recent report, “Local Authorities and Health and Safety”:

  • the overall number of inspections and other interventions by local authorities fell by 65% between 2010 and 2016;
  • the number of full-time local authority health and safety inspectors fell by nearly 47% between 2010 and 2017; and
  • the number of enforcement notices issued by local authorities fell by 64% between 2010 and 2016/7.

However, one of their proposals, the extension of the Fees For Intervention regime (FFI) to local authorities, is likely to prove unpopular with employers, given the experiences of those sectors regulated by the Health and Safety Executive (HSE).

Challenging Assumptions

In the report, APPGOSH challenges the assumption that workplaces which are regulated by local authorities (as opposed to the HSE), such as offices, shops, warehouses, and pubs and clubs, necessarily carry a lower health and safety risk. The report points to the high rates of injury and illness in warehouses, and of occupational disease in offices (stress), supermarkets (musculoskeletal disorders), and pubs (violence). According to the report, it is not the case that smarter regulation is taking place because, whilst the number of inspections and enforcement notices has more than halved, over the same period, the number of people being injured in workplaces has remained more or less constant and evidence suggests that there has been an increase in illnesses since 2010. Although occupational diseases may attract less regulatory attention than workplace injuries, the report states that they are a far bigger cause of ill-health and notes that they often do not manifest themselves in symptoms until years after the initial cause. In fact, the number of actual health and safety inspections by local authorities may be lower than official figures suggest, because, according to data collected by the HSE, visits for other purposes (for example, public health or licensing) are sometimes recorded as health and safety inspections.

The Role of the HSE

The report notes that the HSE now directs the health and safety enforcement activity of local authorities and requires them to only make pro-active inspections in very limited circumstances. This, in part, has led to a 97% reduction in pro-active inspections between 2010 and 2016. However, the report adds that the HSE’s guidance to local authorities on prioritising and targeting interventions makes no reference to work-related stress and only one reference to musculoskeletal disorders, even though they are responsible for two-thirds of sickness absence.

Primary Authorities

The report refers to criticism levelled at the primary authority scheme, which allows an employer and a single local authority to form a statutory partnership whereby the local authority issues advice to the employer on health and safety compliance that the employer must follow, and which other local authorities must respect. Whilst often advantageous for both parties to the arrangement, the primary authority may have little knowledge of actual conditions and variations that may exist in another local authority’s area. Also, it may not be the case that an employer is willing and able to address issues consistently in all of its branches without local inspection.

Recommendations

The report makes a number of recommendations, including:

  • more emphasis during inspections on health, rather than just safety;
  • consideration being given to re-introducing compulsory pro-active inspection for all new premises or businesses regulated by the local authorities; and
  • greater consistency between primary authorities in their approach to regulation.

Most controversial, however, is the suggestion that FFI be extended to local authority-regulated activities. FFI, which was introduced in October 2012, is the mechanism by which the HSE charges businesses in those sectors that it regulates for the costs of regulation. Where an HSE inspector determines that a business is in “material breach” of health and safety law (i.e. in the opinion of an HSE inspector, there is or has been a contravention of health and safety law which is so serious as to require that a notice in writing be issued), the business will be required to pay a fee representing the time spent identifying, investigating and taking enforcement action in respect of the material breach at a rate of £129 per hour. We have previously written about the potentially divisive nature of FFI and, although the panel that considers appeals against FFI invoices is now fully independent, many of the concerns about it remain.

Comment

By extending FFI, the risk is that employers will be more suspicious of local authority inspections and dissuaded from working with inspectors to address actual or potential health and safety issues in an open and collaborative manner. Given that, as the report notes, two-thirds of workplaces and half of the workforce are covered by local authority health and safety regulation, the knock-on effects for the population as a whole could be wide-ranging.

July 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law, Procedure and Policy

Electronic NewsWe are pleased to share with you the latest edition of “frESH Law Horizons: Key Developments in UK & EU Environment, Safety and Health Law, Procedure and Policy”. In our July edition, we look at 37 new developments that may be relevant to anyone with an interest in the environmental, safety and health sector. Some of the top stories this month include:

  • A look at the government white paper on the UK/UK relationship post Brexit
  • A multi-agency initiative to detect waste crime and non-compliance with waste legislation
  • A reminder to company directors that there are potentially severe liabilities for regulatory offences
  • A nation-wide recall of frozen vegetables from supermarkets following a listeria risk
  • How the Automated and Electric Vehicles Act 2018 is making provisions in relation to transport technology
  • Dangerous gas installations see a utilities company fined £466,000

For more detailed information on these developments, as well as access to the remaining summaries, make sure you download a copy from our website. You can also subscribe to ensure you receive our most recent edition every month.

Warning: One Month Left Before New California Prop 65 Regulations Become Operative on August 30, 2018

We are now in the final month before the newly-amended Clear and Reasonable Warning regulations in California’s Proposition 65 (Prop 65) take effect on August 30, 2018. Businesses have had since August 30, 2016 to prepare and comply with the newly-amended regulations, and we have been posting regular reminders (1-year reminder and 6-month reminder), which contain more detail about the history of Prop 65, the new requirements in the regulations, and the potential increase in enforcement litigation resulting from alleged noncompliance with the safe harbor warning requirements. Continue Reading

Food Labeling Issues and Trends: Lessons from Recent Allergen Recalls

I was pleased to have an article published in a recent ABA Natural Resource and Environment publication. The article covered “Food Labeling Issues and Trends in Europe: Lessons for US and Product RecallEuropean Practitioners from Recent Allergen Recalls”, and is now available for download here.

Since writing the article, there have been a number of further examples of recalls due to safety or allergen issues.  Only this week, the Food Standards Agency (FSA) issued a notification in relation to a peanut-flavoured snack product, which contains peanuts and may contain traces of other nuts and gluten, which are not stated in English on the label. Last week, both a noodle product was recalled for undeclared milk, another product was recalled because milk was not highlighted in bold on the label and a number of products were recalled for undeclared sesame. Most were reported on the Rapid Alert System for Food and Feed (RASFF).

In July, a listeria risk in frozen vegetables prompted recalls from supermarkets (press reports provided a full list of products recalled), with the FSA advising consumers not to eat affected products and to return them to the store for a full refund. The notification was published on RASFF, which indicates that it was notified as a result of the company’s own checks; and the product has been distributed to other member countries.

The continuing trend of recalls for allergens and other reasons are a reminder to operators which distribute foods or other products across jurisdictions, that it is worth ensuring that recall protocols and procedures cover global supplies properly, as potential issues will likely be notified rapidly in other countries (via RASFF for the EU and INFOSAN more widely and equivalent information networks for non-food products).

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