On May 19, 2020, OSHA issued two updated memorandums to regional administrators and state plan designees. The first updated the agency’s enforcement guidance for recording COVID-19 cases in the workplace. As we discussed here, OSHA originally indicated on April 10, 2020 that it would be exercising “enforcement discretion” and focusing COVID-19 recordkeeping requirements in the healthcare, emergency response, and correctional institution fields only—except where there was objective evidence reasonably available to an employer that a COVID-19 case was work-related. The aim was to allow vital COVID-19 response resources to be allocated elsewhere. Continue Reading
Political Debate Heats Up Over Private Financial Institutions and the Fossil Fuel Industry Amidst COVID-19 Economic Uncertainty
Given the current economic stressors affecting the fossil fuel industry, there is growing political interest in investment policies that financial institutions are applying to that industry. On May 7, Republican lawmakers penned a letter to the Trump Administration that cited the economic instability of the COVID‑19 pandemic as the basis for a request for regulatory action to prevent financial institutions from diverting their private funds away from the fossil fuel industry. This request comes on the back of political uncertainty over how such investment institutions would treat the fossil fuel industry under federal coronavirus stimulus programs. The investment industry may be finding itself as a new frontier for energy policy and climate change debates.
Heavy-Duty Truck and Engine Regulation by US EPA and CARB: Agency Rulemaking in the COVID-19 Era
The US Environmental Protection Agency (US EPA) and the California Air Resources Board (CARB) 
are proceeding with development of proposed rules for on-road heavy-duty vehicle and engine regulation. As previously covered in our blog, US EPA and DOT already issued a final rule in early April rolling back greenhouse gas emission (GHG) standards in the context of light-duty vehicles. In anticipation of forthcoming regulation, we are following regulatory developments proposed for the heavy-duty vehicle and engine sector. Anticipated requirements include more stringent NOx standards, changes to test procedures, requirements for zero-emission vehicles in California, and consideration of advanced technologies.
Federal Clean Trucks Initiative
US EPA issued an Advanced Notice of Proposed Rulemaking (ANPR) in January 2020 requesting pre-proposal comments on its Cleaner Trucks Initiative for highway heavy-duty vehicles and engines. Next steps identified at the end of the notice included publishing a Notice of Proposed Rulemaking (NPRM) in 2020 after reviewing comments. In the Fall 2019 Unified Agenda, the agency listed the projected date for the NPRM as June 2020 although there could be delays in publication as a result of the COVID-19 pandemic. Continue Reading
Is the UK Heading Towards a Duty on Businesses to Prevent Breaches of Human Rights?
In April 2017, the UK Joint Committee on Human Rights suggested that it might be appropriate for a 
“failure to prevent” mechanism, such as the one found in section 7 of the Bribery Act 2010, to be applied to business and human rights. Earlier this year, the British Institute of International and Comparative Law (“BIICL”) published the results of a study that considered the feasibility of introducing such a mechanism in the UK, with reference to the UN Guiding Principles on Business and Human Rights (UNGPs). Continue Reading
US Supreme Court Adopts “Functional Equivalent” Standard for Discharges of Pollutants to Surface Water Through Groundwater
Recently, in a 6-3 decision in County of Maui v. Hawaii Wildlife Fund (Maui), the United States Supreme Court held that a discharge of pollution to groundwater may be regulated under the Clean Water Act (CWA). The Supreme Court’s review arose from a case involving a wastewater treatment and reclamation facility in Hawaii that injects through disposal wells 4 million gallons per day of partially-treated waste water hundreds of feet deep into groundwater. The wells are located roughly half a mile from the Pacific Ocean, and dye tracer studies revealed the injected wastewater reached the ocean within 84 days. The facility had not obtained a National Pollution Discharge Elimination System (NPDES) permit under the CWA for its operation of the injection wells Continue Reading
WEBINAR May 13 – UK ESH Webinar Series – Health and Safety Considerations for the Construction Sector – As Lockdown Unlocks
The restrictions during the COVID-19 lockdown, and wider health and safety considerations in relation to the potential spread of the virus, mean that many businesses in the construction sector have had to, or will have to, adapt to new ways of working as the UK comes out of lockdown. Although the plan for coming out of lockdown is currently uncertain, businesses can start to plan for the likely implications that “unlocking the lockdown” will have in connection with health and safety law.
Join Gary Lewis for the second session in our UK ESH Webinar Series on 13 May 2020 from 2-3 p.m. BST – register here – as he discusses some of the key considerations that the sector will face.
US EPA Issues Best Practices for Cleaning and Disinfecting Public Spaces, Workplaces, Businesses, Schools and Homes
On April 29, 2020, US EPA and the CDC issued guidance on how best to disinfect and clean workplaces, schools, and other public spaces as the US economy begins to re-open during the COVID-19 pandemic. The guidance, mainly directed to employers, facility managers, and public school officials, is part of the larger federal “Guidelines for Opening Up America Again.” However, EPA adds that this particular guidance can be applied to individuals’ households as well. Continue Reading
WEBINAR May 6 – UK ESH Webinar Series – Plastics Packaging Tax Update
From April 2022, the UK government is proposing to introduce a new tax on plastic packaging manufactured in, or imported into, the UK and containing less than 30% recycled plastic. Currently, the detailed policy design for the plastics tax is under consultation until 20 May 2020. Join Anita Lloyd and Caroline Almond for the first session in our UK ESH Webinar Series on 6 May 2020 at 2 p.m. BST – register here – as they discuss some of the key points of the proposed new tax regime and explain what will and will not fall within its scope.
CDC/OSHA COVID-19 Guidance for Meat and Poultry Industry Also Useful for Other Employers
On April 26, 2020, the US Centers for Disease Control and Prevention (CDC) and the US Occupational Safety and Health Administration (OSHA) issued interim guidance for the US meat and poultry industry. The guidance contains a number of recommendations aimed at stemming transmission among workers in this particularly vulnerable industry, which continues to face plant shutdowns over COVID-19 outbreaks. Although aimed at this critical industry specifically, the structured guidance also contains useful direction to other industries working under parallel conditions—namely close contact between workers and/or workers and the public. Continue Reading
WEBINAR May 5 – US ESH Webinar Series – Environmental Challenges Associated With Infrastructure Development
This webinar will explore the latest developments in Congress regarding additional stimulus legislation and the likelihood that it will include an infrastructure component. We will also focus on challenges associated with environmental permitting in the infrastructure development context, primarily those projects that involve impact to wetlands and streams under the Clean Water Act. The discussion will include an update regarding US EPA’s and the US Army Corps’ of Engineers’ final rule to streamline the definition of “waters of the United States,” US EPA’s proposed revisions to the state water quality certification process, and the implications of Northern Plains Resource Council, et al, v US Army Corps of Engineers on the nationwide permitting program. We will also discuss the Council on Environmental Quality’s proposed revisions to its rules implementing the National Environmental Policy Act. Finally, we will examine the US Supreme Court’s decision in County of Maui v Hawaii Wildlife Fund, et al.
Please join Bill Shuster, Karen Winters, and Carolyn McIntosh for the fourth session in the US ESH Webinar Series on Tuesday, May 5 between 1 and 2 p.m. EDT – register here – as they discuss “Environmental Challenges Associated with Infrastructure Development.” For more information about the US ESH Webinar Series contact Christopher Timms, +1 602 528 4110.
