As Deadline Approaches, FERC Chairman Hints at Interim Solution to Keep Coal and Nuclear Plants Afloat

As the deadline imposed by the U.S. Department of Energy (DOE) approaches for the Federal Energy Regulatory Commission (FERC) to determine whether to exercise its regulatory authority over the electricity market in a manner designed to throw a life line to coal and nuclear power generators, the FERC commissioners have not hesitated to publicly make known their feelings on the rule. In a recent interview with Bloomberg, Chairman Neil Chatterjee hinted that he may favor a temporary, middle-ground approach in order to meet the DOE deadline.

DOE’s proposed rulemaking addresses the assertion that the closure of coal and nuclear plants would negatively impact the reliability and resilience of the U.S. electrical grid. While Chairman Chatterjee did not provide full support for Energy Secretary Rick Perry’s subsidy-based plan to stop the decommissioning of coal and nuclear plants, the interim solution the chairman suggested in the interview offers some hope for proponents of the rule after S&P Global reported that Commissioner Robert Powelson had indicated that FERC did not “do politics” and would not “destroy the marketplace” and Commissioner Cheryl LaFleur offered support to these statements on twitter. Continue Reading

Food Labelling Issues and Recall Trends in Europe: Recent UK Recalls Resulting from Labelling Errors

Trade press reports have highlighted a spate of recent recalls relating to food and drink products in the UK resulting from labelling errors. Examples include foods recalled because of salt crystals not mentioned on the packaging (which represent a potential choking hazard), chocolate drinking straws with labels not in English (with allergen information therefore not easily comprehended) and several products which contained allergens, including sulphur dioxide and/ or sulphites, not correctly mentioned on the label.

Where a product is not in compliance with food safety requirements (and may have reached the consumer) a food business operator is required by law to effectively and accurately inform the consumers of the reason for its withdrawal from sale, and when other measures are not sufficient to achieve a high level of health protection, recall from consumers products already supplied to them (under Article 19 of the EU General Food Law Regulation (178/2002)). A ‘recall’ is any measure or set of measures intended to achieve the return of unsafe food and is likely to include measures intended to trace the affected products, communications to customers, management of returns and quarantining/ disposing of any returned products.

In practice, there are a number of safety-related reasons that a food or drink product might be withdrawn from sale and/ or recalled. For example, it could have been found to:

  • contain harmful bacteria, such as salmonella or listeria;
  • not meet permitted levels for substances such as pesticides (this was the reason for recalls across Europe in August this year of eggs contaminated with the insecticide Fiprinol and, in UK, of products made with those eggs, such as egg salads);
  • be physically contaminated, for example with pieces of glass, plastic, or metal; and/ or
  • be labelled incorrectly, which could be a particular problem for people with food allergies.

A recent European recall and notification index produced by a UK waste solution company, showed that in quarter 3 of 2017, bacterial contamination was the top cause of food recalls reported on RASFF (the Rapid Alert System for Food and Feed) accounting for over 26% of food recalls. However, manufacturers and retailers must remain alert to the risks posed by incorrect, inaccurate, or illegible labels, as well as contamination, in light of the number of recalls relating to labelling reported on the Food Standards Agency’s website over the last month.Responsibilities for labelling should be clearly defined under agreements, for example between the manufacturer, importer and/ or third party packaging/ labelling company; and safeguards should be in place to ensure allergen labelling is accurate. Such safeguards might include requirements for suppliers to conduct and provide copy allergen risk assessments, for allergen information to be communicated through ingredient specifications and checked, for labels to be checked and signed off before use, to ensure that labels are updated when specifications change, to have dedicated packing lines where possible to reduce the risk of mislabelling and regular checks/ audits as to label compliance and accuracy.

The ongoing trend of global recalls in the food sector means operators are well advised to plan for a recall before any issue is identified, in the same way as planning for any other crisis management procedures. The development of a written recall policy and protocol and regular reviews to ensure it remains fit for purpose, is a sensible step for any food business operator.

Deadline Approaching for Chemical Manufacturers and Importers to Submit Chemical Substance Notifications to US EPA Under the TSCA Inventory Reset Rule

The February 7, 2018 deadline is rapidly approaching for manufacturers and importers of chemical substances in the US to submit their notifications to US EPA as required by the Inventory Reset Rule issued by US EPA pursuant to the amended Toxic Substances Control Act (TSCA).

The Inventory Reset Rule requires every chemical manufacturer and importer to notify US EPA of each chemical substance it manufactured or imported for a non-exempt commercial purpose in the US during the 10-year period ending June 21, 2016 (the “lookback period”). Each chemical substance for which US EPA receives a notice will be designated as “active” on the TSCA Inventory.

The rule also gives chemical processors the option to report to US EPA any chemical substance they processed during the same lookback period, but they must do so by October 5, 2018.

Any chemical substance that is subject to the reporting requirement will be designated as “inactive” on the Inventory if it is not reported to US EPA by a manufacturer, importer or processor by the applicable deadline. Once the Inventory “reset” is finalized, no one may manufacture, import or process an inactive substance without giving US EPA prior notice not more than 90 days before the anticipated date of manufacturing, importing or processing.

Certain substances do not have to be reported to US EPA for purposes of the Inventory Reset Rule. Substances that are generally excluded from being listed on the TSCA Inventory do not have to be reported (i.e., naturally occurring substances and substances that are excluded based on the low volume exemption, LoREX exemption, polymer exemption, test marketing exemption or R&D exemption). The Inventory Reset Rule also exempts all substances for which US EPA already has received an “equivalent” notice:  substances that were reported in response to the 2012 or 2016 Chemical Data Reporting (CDR); substances that were added to the Inventory during the lookback period pursuant to a Notice of Commencement (NOC) submitted to US EPA during that period; and substances added to the TSCA Inventory since June 22, 2016. US EPA has posted a list of the exempt substances on its website.

In addition to these exemptions, the Inventory Reset Rule provides that a manufacturer or importer is not required to submit a notice for a substance covered by the lookback period if the manufacturer has “evidence in the form of a CDX receipt” from another manufacturer showing that the other manufacturer or importer submitted a notice to US EPA for the substance. US EPA cautions, however, that any manufacturer relying on the exemption “bears the risk” if the other manufacturer later withdraws its notice and the substance is subsequently designated as inactive. US EPA also has stated that a company seeking to maintain an existing “confidential business information” (CBI) claim for the chemical identity of a substance should submit a notice for the substance and assert the CBI claim itself even if a company is relying on a CDX receipt from another manufacturer. Otherwise, the company runs the risk that the other company did not assert the CBI claim or even that the other company might withdraw its submission entirely.

US EPA also has compiled a “preliminary” list of chemical substances for which the agency received notices through November 10, 2017. US EPA will update this list approximately once each month. The list is for “informational purposes only,” however, and does not relieve manufacturers and importers from the obligation to report the substances that they have manufactured or imported. According to US EPA, substances identified on the list are not exempt from the reporting requirement unless, as noted above, a manufacturer has obtained a copy of the CDX receipt from another manufacturer or importer showing that the other company reported the substance to US EPA.

Good Intentions, Bad Outcomes – Introducing Non-Native Species Into the UK

A recent prosecution has illustrated the consequences of releasing non-native species into UK habitats, notwithstanding that the motivation of the two defendants was entirely benevolent.

Section 14 of the Wildlife and Countryside Act 1981 makes it an offence to release or allow to escape into the wild any animal of a kind which is not ordinarily resident in and is not a regular visitor to Great Britain in a wild state, or which is listed in Schedule 9 of the act. The maximum penalty is an unlimited fine and/or two years’ imprisonment. Zhixiong Li and Ni Li organised a boat trip from Brighton Marina in 2015. Their intention was to release thousands of live crustaceans into the sea as part of a Buddhist “life release” ritual designed to save animals destined for slaughter. However, amongst the crustaceans were 361 American lobsters and 350 Dungeness (US) crabs, which Miss Li had purchased from a wholesale fish supplier. The case came to light when two local fishermen subsequently captured some of the foreign shellfish in June 2015. Only 323 crustaceans had been recovered and the most recent American lobsters found had been carrying “viable eggs”, which showed that they had been breeding. Mr Li and Miss Li were subsequently prosecuted by the Maritime Management Organisation, who had spent thousands of pounds trying to recover the shellfish, even offering local fishermen a bounty of £20 to capture them. The defendants pleaded guilty at Brighton Crown Court and were fined a total of £5,800 and ordered to pay plus £9,000 in compensation. The judge commented that the full impact of the defendants’ actions was not known, but that it could have a significant impact upon native fish stocks.

The introduction of non-native species can have a devastating effect on an ecosystem, for example, by introducing disease, preying on native species or simply outcompeting native species in the search for food. Well known examples include the introduction from the USA of grey squirrels and signal crayfish ravaging the UK’s native red squirrel and white clawed crayfish populations respectively. In the plant kingdom, the introduction of Japanese Knotweed to the UK has led to a menace which can damage buildings, overwhelm other plants and blight property. In each of these cases, the motivation behind the introduction was not malicious: grey squirrels and Japanese knotweed were introduced by Victorians for essentially ornamental purposes; signal crayfish to bolster stocks affected by crayfish plague (paradoxically, signal crayfish are not only carriers of, but also immune to, crayfish plague).

Mr Li and Miss Li, whilst naïve, had certainly never intended to cause harm to wildlife. So unpredictable are the consequences of introducing invasive species that it is a cruel irony that they may have unwittingly sealed the fates of far more animals than they had hoped to save.

MSHA Officially Delays Effective Date of Workplace Examination Rule Until June 2018

The Mine Safety and Health Administration (MSHA) officially delayed the effective date of the controversial “Examinations of Working Places in Metal and Nonmetal Mines” final rule by a full eight months to June 2, 2018 and temporarily reinstated the previous versions of the workplace examination rules – deemed 30 C.F.R. § 56.18002T and 30 C.F.R. § 57.18002T –  that were in effect as of October 1, 2017.

The final rule was scheduled to go into effect in May of this year, but the Agency delayed implementation until October 2, 2017.  As previously reported, on September 12, MSHA proposed to again delay the effective date of the Agency’s final rule by six months to allow additional time for training and compliance assistance.  After the two-week comment period closed, MSHA notified stakeholders that the effective date of the rule would be delayed until June 2, 2018.  The delay was published in the Federal Register on October 5, 2017.

MSHA reported that many commenters supported the further effective date delay, particularly while the Agency accepts comments on the proposed substantive changes to the final rule.  When MSHA proposed the delay to the October 2, 2017 effective date, the Agency simultaneously reopened the rulemaking record and proposed amendments to two sections of the final rule related to the timing of required workplace examinations and the contents of the examination record, as we described in a recent blog post.  MSHA is still accepting comments until November 13 on those proposed amendments.  Many stakeholders requested that the Agency postpone the effective date beyond the six month mark or indefinitely in order to ensure that industry has clarity on the requirements of any new final rule and that the Agency has time to meet its stated training and outreach objectives.  The Agency agreed with those commenters and believes that an eight-month delay until June 2, 2018 will provide sufficient time to ensure compliance readiness.

MSHA firmly rejected arguments made by labor union representatives that further delays in the effective date would have an adverse impact on miners’ health and safety, stating that “the standards that have been in effect for many years are reinstated and MSHA will continue to enforce those standards … [and] will proactively provide compliance assistance and training needed to assure that miners’ safety and health are protected.” 82 Fed. Reg. 46412 (Oct. 5, 2017).

MSHA will hold four public hearings on the proposed amendments to the final workplace examination rules in Arlington, Virginia (October 24, 2017); Salt Lake City, Utah (October 26, 2017); Birmingham, Alabama (October 31, 2017); and Pittsburgh, Pennsylvania (November 2, 2017).  Each hearing will begin at 9 a.m. local time.


US EPA’s Superfund Task Force Recommendations May Expedite Cleanup and Reuse Process for Contaminated Sites

Shortly after being confirmed as the new US EPA Administrator, Scott Pruitt appointed a Superfund Task Force to review the approximately 1,300 Superfund sites in the United States and make recommendations on how to improve and restructure the cleanup process. Administrator Pruitt observed that “many of these sites have been listed as Superfund sites for decades, some for as many as 30 years.” After a 30 day review, the Task Force released its set of recommendations on July 25, 2017, which set out five overarching goals, along with recommending specific actions, offering time frames for commencement, and identifying US EPA staff responsible for each action’s implementation. The specific actions outlined are all planned to commence within twelve months (by mid-2018) and many have been initiated immediately following the July 25th approval of the plan.

While extremely detailed, it is clear that each recommendation focuses on strategies to accelerate the cleanup process and repurpose contaminated sites. Below are the goals in the Task Force’s Recommendations and some key recommendations and strategies from each. Continue Reading

MSHA Workplace Examination Rule Delayed Once Again

On January 23, 2017, the Mine Safety and Health Administration (MSHA) published its long-awaited final rule regarding modified workplace examination requirements in non-coal mines.  The rule was originally scheduled to go into effect in May of this year, but implementation was delayed twice until October 2, 2017.

Over the past several months, operators have been widely implementing organizational changes in preparation for the October 2 effective date of the new requirements; however, on September 12, MSHA published two additional proposed rules—one rule proposing to again delay implementation of the final rule, and a second rule, once again, proposing additional substantive changes to the final rule.

The current final rule most notably requires workplace examinations to be conducted before work begins and ramps up notification, recording, and recordkeeping requirements associated with the examination.  For example, the current final rule requires that the examination be recorded prior to the end of the shift, that all miners working in the affected areas must be promptly notified of hazardous conditions, and that all discovered conditions that may adversely affect the safety and health of miners be recorded, even if they are corrected before work begins.  Other requirements can be found here.

The proposed further delay in effective date of the final rule is designed to allow time for public notice and comment on MSHA’s two substantive changes to the final rule.  First, MSHA is now proposing to change the timing of the workplace examination to occur either “before work begins,” as currently drafted, or “as miners begin work.”  Importantly, however, adverse conditions must still “be identified before miners are exposed,” thereby raising questions as to whether this modification practically changes an operator’s requirements.

Second, the proposed rule would require operators to only record hazards that have not been corrected before miners might be exposed to them, as opposed to all hazardous conditions under the current final rule.  Although this provision would lower the likelihood that MSHA could use an operator’s own examination records against them to issue citations for conditions promptly corrected, it does not remove this risk altogether.  The remaining provisions remain unaltered.

Appearing to change course from the rationale underlying the current final rule, MSHA has opined that substantively this modification will give operators greater flexibility to manage their safety and health programs without reducing protections associated with the examination.  MSHA has also stated that the change would save operators approximately $27.6 million in annual operating costs.  In addition to providing an opportunity for notice and comment, MSHA has also said the associated delay will “offer additional time for MSHA to provide stakeholders training and compliance assistance.”

The current proposed delay would extend implementation of the final rule until May 2, 2018.  Comments on the delay must be received by MSHA by September 26, 2017.  In the meantime, MSHA will take public comments regarding the substantive changes for 60 days following publication or until November 13, 2017.   Four public hearings will also be held in Arlington, Virginia (October 24, 2017), Salt Lake City, Utah (October 26, 2017), Birmingham, Alabama (October 31, 2017), and Pittsburgh, Pennsylvania (November 2, 2017).  Each hearing will begin at 9 a.m. local time.

Enforcement of UK Waste Exemptions – No Longer the Light Touch?

Registered waste exemptions are not to be treated lightly and compliance with their conditions is not flexible, as the Environment Agency has reinforced in a recent case.  A lengthy investigation culminating in a nearly £20,000 fine has been handed down by Chelmsford Magistrates Court in relation to illegal deposits of waste on farmland in Essex.

The illegal deposits occurred in spring 2015 when a tenant farmer on land in Stow Maries, Essex employed TJ Cottis Transport Ltd to deliver 3,920 tonnes of inert construction waste for use in flood defence works.  TJ Cottis then paid the farmer £4,800 for the deposit, a figure reported to be around £24,000 less than the company would have had to pay in landfill charges, had the waste been disposed of correctly.

This deposit was, however, in breach of the U1 registered waste exemption held which allowed 1,000 tonnes of soil and stone to be used on the land only for construction purposes.  U1 exemptions allow suitable waste such as crushed bricks, concrete rocks, soil and aggregate to be used to create tracks or paths, or used in landscaping for development.  This exemption cannot be used for disposing of waste that is unsuitable and does not permit the use of more waste than is specified in the exemption wording of each waste type. Environment Agency guidance is also clear that as well as registering the waste exemption, parties may need to comply with other legislation including planning permissions and flood defence consents.

In this case, there were various breaches.  The waste material used included waste types that were not permitted including plastic and plasterboard which was also unsuitable for the construction of flood defences.  Furthermore, greatly more than 1,000 tonnes was deposited, and flood defence works were activities which were not permitted under the exemption without additional consents, which were not obtained.  The area where the waste was deposited was also highly environmentally sensitive, being a site of special scientific interest (“SSSI”), a special protection area, a special area of conservation and a RAMSAR site (a wetland site designated of international importance under the Ramsar Convention), requiring specific consents from Natural England.

The deposit was a clear breach of the Environmental Permitting (England and Wales) Regulations 2016 (“Permitting Regulations”) which allow deposits of waste only in compliance with the conditions of the relevant exemption.  On 3 August 2017, the tenant farmer pleaded guilty to knowingly causing the illegal deposit. T J Cottis Transport Limited and Jedd Cottis (a director of the company) both pleaded guilty to depositing the waste without an environmental permit and failing to comply with duty of care requirements.  They were fined a total of £19,430.

Although the case indicates that the Environment Agency and Natural England take this type of offence very seriously, and the Environment Agency is reviewing compliance with registered waste exemptions more strictly than is often believed, the fine handed down has been criticised as simply being close to the figure the company saved in landfill charges, and therefore not amounting to a sufficient deterrent to future possible offenders.

The Definitive Guidelines 2014 for environmental offences were published by the Sentencing Council and designed to increase fines for environmental offences to ensure that those committing environmental crimes could not profit from those crimes and so that the fines acted as a suitable deterrent.  Although the fine in this case was not as high as many would have liked, the investigation and subsequent action by the regulators does show commitment to enforcing the conditions of registered waste exemptions (which are often treated fairly casually by exemption holders).  It also emphasises that the mere presence of such an exemption does not allow other consents and permits required under other legislation and/or from other regulators to be ignored.

It is likely that the widespread reporting and interest in this conviction will cause others depositing waste under the remit of a registered waste exemption to consider more carefully the limits of those exemptions in both quantity and type of waste which can be deposited, as well as which other consents may be required.


Increased Risk of Clean-Up Liability for Owners of Closed Council Landfill Sites in England and Wales

A recent Court of Appeal case, Powys County Council v Price and Hardwick, has addressed the issue of liability of successor public authorities under the UK contaminated land regime (Part 2A Environmental Protection Act 1990) (“Part 2A”).

The case related to a landfill site that had been operated by local authorities of the county of Powys until the early 1990s. It has subsequently been restored and returned to private landowners for agricultural use. Powys County Council (Powys) was created in 1994, and in 1996 it took over responsibility for a number of boroughs.

From 2001, Powys County Council carried out monitoring and treatment work at the site on the basis that it would be responsible under the Part 2A regime for any potential contamination caused by its predecessors. However, in 2015 Powys stopped all activity on the grounds that the 2007 case of R (National Gas Grid (formerly Transco plc)) v Environment Agency (“Transco”) meant it was not responsible for landfilling operations that has ceased prior to 1996.  In Transco, the UK House of Lords held that National Grid Gas (formerly Transco) – the privatised gas utility company that was a statutory successor to the publicly owned British Gas – was not liable under Part 2A for the acts of its predecessors. The rationale for this decision was that the statutory scheme of transfer did not specifically include such contingent/future liabilities.

The Powys landfill site has not actually been designated as contaminated land under Part 2A, but the landowners brought this case because of concerns that it might be identified as such in the future.

The High Court ruled that Powys would be an ‘appropriate person’ under Part2A, but Powys appealed and the Court of Appeal disagreed.

The Court of Appeal held that Powys was not liable for the acts of its predecessor council(s). Following the reasoning of the Transco case, the Court could not find anything in the statutory scheme of transfer which was capable of transferring future liabilities (Part 2A did not come into force until 2001).

Local government in the UK has seen many structural changes over the last century, but many Councils have been operating under the assumption that they would be an ‘appropriate person’ in relation to the acts of predecessor authorities. However it now appears that this will not always be the case (it will depend upon the specific terms of the underlying enabling legislation in each case).

In cases like to Powys one, if the Council is not an ‘appropriate person’, remediation responsibility under Part 2A is likely to instead fall upon the current land owner. This could have significant ramifications for current owners of land which has historically been operated by a local authority (landfill sites being the most likely example).