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

Electronic News We 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 September edition, we summarise 32 developments in the environmental, safety and health sector. Some of the top stories this month include:

The 2019 UK Modern Slavery Report is published
The Court of Appeal decides that the resources of a parent company should not be taken into account for sentencing unless there are special factors
The government issues updated guidance on preparing for Brexit
The government publishes the full Environment Bill
New Environment Agency guidance confirms the need for a climate change risk assessment with permit applications
The government has responded to the Climate Change Committee’s 2019 Progress Report
The latest data on clean air indicates that 83% of reporting zones still have illegal levels of air pollution
The Department for Business, Energy and Industrial Strategy is consulting on increasing the minimum energy efficiency standard for non-domestic private rented properties
The Financial Conduct Authority (FCA) has published a feedback statement on climate change and green finance
The European Chemicals Agency (ECHA) recommends a general ban of Bisphenol A (BPA), Dechlorane Plus and 16 other substances
The EU court rules on access to REACH joint submission

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 EPA-California Tensions Over GHG Standards Increase with Preemption Challenge

By Nicole Bothwell and Jennifer Tharp on November 6, 2019 Posted in Air Quality, Environmental Litigation, Rulemaking & Policy Development

Disagreements between California and the US Environmental Protection Agency (US EPA) over car production line greenhouse gas (GHG) standards for automobiles have been simmering since 2018, but tensions between the two sides have recently increased after California entered into a voluntary agreement on GHG standards with a group of major automakers, followed swiftly by US EPA’s withdrawal of California’s authority to enforce its own GHG standards. California has challenged the withdrawal in court. The dispute over vehicle emissions standards is likely to result in significant uncertainty for the regulated community. Continue Reading

Potential Settlement Creates Uncertainty for US Supreme Court Case Regarding Clean Water Act Liability for Indirect Groundwater Discharges

By Andrew Etter on November 5, 2019 Posted in Clean Water Act, Environmental Litigation, Municipal Utilities, Rulemaking & Policy Development, Water Quality

On September 20, 2019, Maui County Council (Council) voted to settle the County’s pending appeal before the US Supreme Court of the Ninth Circuit’s decision in County of Maui v. Hawai‘i Wildlife Fund, et al. As previously reported here, the Ninth Circuit’s ruling held that the eventual migration of pollutants from permitted underground injection wells through groundwater into surface waters violates the Clean Water Act (CWA). The decision may portend an expansion of federal law, potentially subjecting a number of different wastewater sources (e.g., home septic systems, cesspools, etc.) to the CWA’s permitting requirements. Continue Reading

Offshore Wind Development in the US: Getting Your Supply Chain Right

By Squire Patton Boggs on November 5, 2019 Posted in Energy & Utilities

In recent years, offshore wind costs have tumbled, leading to significant potential growth in the industry. However, US offshore wind developers setting up their supply chains need to be prepared to navigate a complicated regulatory scheme involving overlapping federal and state laws, and adequately protect themselves with contracts that reflect the unpredictability of building wind turbines in the ocean. Offshore wind supply chain ventures will also likely face environmental opposition, despite the clean energy moniker. Our colleagues, Sarah Rathke, Emily Huggins Jones, and Marissa Black, discuss the key issues offshore developers should keep in mind while building their supply chains. The client alert may be accessed here: Offshore Wind: Getting Your Supply Chain Right.

US District Courts Start Applying Kisor v. Wilkie; Is Auer Deference Now a “Paper Tiger”?

By Brent Owen on October 14, 2019 Posted in Administrative Procedures Act, Environmental Litigation

As we’ve covered extensively on this blog, the administrative state responsible for implementing environmental, health, and safety policy in the United States is in flux. A few months ago in Kisor v. Wilkie the US Supreme Court upheld but significantly narrowed Auer deference. Auer instructs that courts must defer to an agency’s construction of its own regulation unless that interpretation is “plainly erroneous or inconsistent with the regulation.”

After Kisor though, lower courts reviewing an agency’s interpretation of its own regulations should only defer if there is a genuine ambiguity, the regulatory guidance comes from the appropriate source, and the rationale for the agency’s interpretation is not litigation driven. The Kisor Court also instructed that interpretive issues that fall into a “judge’s bailiwick” are not entitled to deference. Judge Gorsuch concurring in the judgment predicted that Kisor’s guideposts would leave the Auer doctrine “zombified.” Two initial decisions applying Kisor reflect Kisor’s tension. Namely, while courts scrutinize agency interpretations, Auer deference remains intact.

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

By Squire Patton Boggs on October 6, 2019 Posted in Alcohol, Food and Entertainment Licensing, Chemicals & Products, Climate Change & Sustainability, Health & Safety

Online News We 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 September edition, we summarise 30 developments in the environmental, safety and health sector. Some of the top stories this month include:

Director Fined and Given Suspended Sentence After Health and Safety Executive (HSE) Investigation
Allergen Labelling Laws for Foods Prepacked for Direct Sale – New Legislation
Fine of £7.8 Million for Breach of Money Laundering Regulations
The Commission’s latest communication on no-deal Brexit preparedness indicates that only 52% of UK-based REACH registrants have transferred their registrations
ClientEarth has warned 105 local councils that they could face legal action if they fail to meet duties to include emissions reductions targets and policies in their local plans
The Court of Appeal Upheld a Decision to Refuse Planning Permission for a Housing Development on Air Quality Grounds
Chinese Food Company Has Received a Record Fine for Polluting a Sewer
European Chemicals Agency (ECHA) Publishes Information Requirements for the Future Waste Database
EU Court Upholds Decision by the European Chemicals Agency (ECHA) to List Bisphenol A (BPA) as an Endocrine Disrupting Chemical With an Impact on Human Health
Member State Experts Unanimously Back a Proposal of the European Commission to Increase the Compliance Check Target for REACH Registration Dossiers

Groundwater Contaminant Regulation in California: State Water Board Lowers Notification Levels and Announces First Step Towards Developing an MCL for Certain Compounds

By Jonathan King on October 4, 2019 Posted in Chemicals & Products, Energy & Utilities, Environmental Protection, Municipal Utilities, Rulemaking & Policy Development, Water Quality

In June of 2018, the California State Water Resources Control Board (State Water Board) Division of Drinking Water (DDW) provided recommendations for PFOA and PFOS notification levels. On July 13, 2018, the State Water Board released guidelines based on DDW’s recommendations for testing and reporting on two PFAS compounds—PFOA and PFOS. The interim notification level for PFOA was 14 parts per trillion (ppt) and 13 ppt for PFOS. Notification levels are non-regulatory health-based advisory levels established by the DDW for chemicals in drinking water that lack an enforceable regulatory standard called a maximum contaminant levels (MCLs). In addition to setting interim notification levels for PFOA and PFOS, the State Water Board also included an interim response level of 70 ppt combined for PFOS and PFOA whereby if the combined level is exceeded, the State recommended the water system remove the source from service. These guidelines did not require public water systems to test for PFOA and PFOS, but did require water systems voluntarily opting to test to report if the notification levels were exceeded.

On July 31, 2019, AB 756 passed as the California Legislature’s first PFAS-related action. AB 756 adds Section 116378 to the California Health and Safety Code and authorizes the State Water Board to order a public water system to monitor for PFAS in accordance with conditions set by the State Water Board. Practical detection limitations currently reduce the scope of the law to 14-18 compounds. The effect of the legislation is that the State Water Board can now require public water systems to test for PFAS. Continue Reading

Japanese Knotweed, Hybrids and UK Case Law – a growing concern?

By Caroline Almond on September 18, 2019 Posted in Environmental Due Diligence, Environmental Litigation, Environmental Protection, Property Acquisition, Site Remediation & Brownfields Redevelopment, Solid & Hazardous Waste

This blog examines some of the latest developments in relation to the ongoing concerns over Japanese Knotweed and its hybrid forms.

It Has Been A Busy Year For the TSCA Risk Assessment Process

By Gary Pasheilich on September 16, 2019 Posted in Chemicals & Products, Rulemaking & Policy Development, Solid & Hazardous Waste

As 2019 moves into its closing months, US EPA activity under the amended Toxic Substances Control Act (TSCA) remains front and center. As part of US EPA’s three-step process of prioritization, risk evaluation and risk management for existing chemicals, as we previously reported, EPA began in 2016 by identifying the first ten chemicals for risk evaluation under TSCA, which set forth a three-year deadline for completing the evaluations that is supposed to come to a close this December under the statute. TSCA gives US EPA the ability to extend the deadline for finishing the risk evaluations by up to six months if needed, and the Agency has indicated that it likely will do so.

Report Recommends Changes to US EPA’s General Permit for Industrial Stormwater Discharges Ahead of Reissuance

By Erik Lange on September 13, 2019 Posted in Clean Water Act, Rulemaking & Policy Development

Stormwater permitting requirements for many industrial facilities are set forth in US EPA’s Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP) or state permits based on the MSGP. US EPA last issued the permit in 2015, which expires on June 4, 2020. While the current Administration does not appear to be predisposed to the implementation of more onerous environmental permitting requirements, an EPA-funded report has recommended transformative changes to the MSGP. The Agency’s decision whether to incorporate those recommendations into the reissuance of the MSGP will determine whether industrial facilities will need to implement additional stormwater monitoring and control measures in the coming years. Continue Reading