US EPA Releases Problem Formulation Documents for “First Ten” TSCA Risk Evaluations

The United States Environmental Protection Agency (US EPA) has formally released “problem formulation” documents for the risk evaluations it is conducting on the “first ten” chemical substances under the amended Toxic Substances Control Act (TSCA).  Formal notice of the problem formulation documents was published in the Federal Register on June 11, 2018.  Comments on the problem formulations must be submitted to US EPA by July 26, 2018.

US EPA has stated that goal of the problem formulation effort is to produce a “conceptual model and an analysis plan” for each risk evaluation.  The conceptual model “describes the linkages between stressors and adverse human health effects, including the stressor(s), exposure pathway(s), exposed life stage(s) and population(s), and endpoint(s) that will be addressed in the risk evaluation.”  The analysis plan “is intended to describe the approach for conducting the risk evaluation, including its design, methods and key inputs and intended outputs.” Continue Reading

Lawsuit Filed in Response to US EPA Rollback of Tailpipe Emission Standards

On May 1, 2018, 17 states, including California, as well as the District of Columbia filed a Petition for Review in the US Court of Appeals for the District of Columbia in response to US EPA’s announcement that it would be rolling back tailpipe emission standards. As we previously reported, California stated in April that it was actively considering a lawsuit to challenge the decision to revise tailpipe emissions. The other states involved in the new lawsuit include Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and Washington. In total, the coalition represents approximately 140 million Americans. Continue Reading

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

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 and Procedure”, our monthly newsletter that provides bite-sized updates on EU and UK law, procedure and policy. This month we review more than 20 developments that may be of interest to those in the environmental, safety and health sector, including:

  • Annual Environmental, Safety and Health Conference to be held in London on 6 June 2018
  • Manufacturer is fined £1.6 million following two (unconnected) offences within a year
  • Failure to brief workers on risk assessment led to a fall and a £900,000 fine
  • European Commission issues a proposal for a Directive to protect EU whistleblowers
  • CCTV became mandatory in all abattoirs in England on 4 May 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.

US Department of Energy Geothermal Plan Offers Opportunity But Deadlines Approaching

Geothermal energy production has proven to be a reliable renewable energy source with great potential to contribute to US (and global) energy grid stability and resiliency.  Indeed, the US Department of Energy (DOE) has described geothermal energy as “a clean, efficient, and nearly inexhaustible domestic energy resource.”  Nevertheless, geothermal developers often run into excessive up front development and drilling costs that frequently create unacceptable risks for potential energy investors.  In an effort to tackle some of these ongoing roadblocks to geothermal development, the DOE has recently moved the conversation forward by–as the saying goes–putting its money where its mouth is. Continue Reading

Groups Request Comment Period Extension on US EPA’s Proposed Rule Banning the Use of “Secret Science”

Stacked Confidential Documents

US EPA announced on April 24, 2018 that EPA Administrator, Scott Pruitt, had signed a proposed rule to strengthen the science used in regulations issued by US EPA. The proposed rule, “Strengthening Transparency in Regulatory Science,” was published on April 30, 2018 and would require that – where scientific studies are pivotal to US EPA’s regulatory action – “the data underlying those [studies] are publicly available in a manner sufficient for independent validation.” Administrator Pruitt described the rule as an end to “the era of secret science.” US EPA solicited comments regarding the rule, how it can best be promulgated and implemented, and its effects on existing US EPA programs. Continue Reading

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

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 and Procedure”, our monthly newsletter that provides bite-sized updates on EU and UK law, procedure and policy. This month we review more than 30 developments that may be of interest to those in the environmental, safety and health sector, including:

  • A Health and Safety Executive (HSE) report into two separate £1 million fatal injury fines
  • HSE investigation into a surveyor’s failure to detect asbestos, and asbestos-related safety issues arising as a result
  • The Food Standards Agency consultation on the commercial production of pet food in food establishments
  • The Court of Appeal reduction of a fine (by £275,000) to reflect an agreement between the parties
  • An Opera house’s liability under Control of Noise at Work Regulations 2005 for damage to a viola player’s hearing

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.

Agreed Bases of Plea in UK Health and Safety Prosecutions – Potentially Helpful But Not Binding

JusticeWhilst the recent case of R v ATE Truck & Trailer Sales Limited provides a reminder to litigants that judges are not bound by parties’ agreed bases of plea, it also serves to point out that judges will not necessarily be correct to depart from them.

Facts of the case

The defendant allowed a scrap metal dealer, Mr Price, to occupy part of its site in Wolverhampton to dismantle old trucks and trailers. On 21 February 2013, the roof of the curtain-sided trailer that Mr Price was working on fell and struck him on the head causing fatal injuries. The investigation by the Health and Safety Executive (“HSE”) following the incident concluded that Mr Price’s method of work was unsafe. Although the defendant had various safety procedures and systems, employed health and safety consultants and maintained a significant number of risk assessments, there was no written health and safety risk assessment for dismantling curtain-sided trailers when carried out by the defendant’s own employees. However, the defendant considered that it had no responsibility for Mr Price’s activities. The defendant had made no effort to advise Mr Price of the method adopted by the defendant for carrying out the same activity. Mr Price had his own defined area for work within the defendant’s premises and the defendant had no expertise for the work that Mr Price carried out, as he had been undertaking this work for the defendant since the late 1990s.

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President Trump’s Proposed Legislative Outline for Rebuilding Infrastructure in America Portends Significant Changes for Real Estate Developers, If Adopted

President Trump’s Legislative Outline for Rebuilding Infrastructure in America includes several modifications that many believe will streamline and accelerate redevelopment of brownfield sites that are currently tied up in Superfund cleanups.  Despite previously cutting funding for the federal brownfields program, the President’s proposed infrastructure plan would increase access to funding for Superfund and brownfields sites through the Water Infrastructure Finance and Innovation Act lending program.  Importantly, the proposal also includes an expedited and streamlined federal permitting process that would designate one agency as the federal lead for major projects.  Although the proposal has not yet received congressional approval, the proposed changes could significantly change the landscape for prospective developers of contaminated properties.

Further details are available here.  For more information on these developments, please contact Emily Huggins Jones.

A Tilted Balance: Emerging Regulation of Nutrient Pollution in Ohio

Nutrient pollution has become a growing concern in the State of Ohio and elsewhere along the Great Lakes.  In the summer of 2014, large algae blooms in Lake Erie generated toxins that contaminated the City of Toledo’s drinking water.  In response, the City instructed 400,000 people not to drink or cook with tap water, prompting national media attention.

In this article, published in the Columbus Bar Lawyers Quarterly, Squire Patton Boggs attorney Rees Alexander evaluates Ohio’s attempts to regulate nutrient pollution from both point sources, such as industrial and sewer pipes, and nonpoint sources, such as runoff from fertilizer and manure used in agricultural operations.  The article explains that while Ohio’s efforts with respect to point sources have helped reduce nutrient pollution, a growing body of data suggests that nonpoint sources are the primary cause of nutrient pollution.  Therefore, Alexander criticizes a recent indication from Ohio EPA that it will introduce legislation to impose a strict 1.0 mg/l phosphorous limit for all municipal and industrial wastewater treatment systems.  Ohio EPA’s legislation, Alexander explains, would undermine the efforts of stakeholders who favor a dynamic approach to nutrient regulation for point sources that accounts for whether the discharge would actually impact water quality in the receiving water body.  Alexander concludes that it is unlikely Ohio will be able to achieve the State’s ambitious nutrient reductions goals by pursuing an unbalanced regulatory strategy that focuses largely on point sources.

Flint Michigan Lead-Tainted Water Class Action Allowed to Continue

The US Supreme Court has denied review of a July 2017 Sixth Circuit ruling that revived two federal class action lawsuits seeking redress for plaintiffs alleging injury as a result of the lead-tainted water crises in Flint, Michigan.  In addition to ensuring that the Flint, Michigan water crises remains active in the national conversation, the Supreme Court’s decision leaving in place the Sixth Circuit’s reasoning paves the way for drinking water claims that might otherwise be preempted by the Safe Water Drinking Act (SWDA). Practically, the decision may result in additional monetary relief for Flint residents. Continue Reading

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