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

California Threatens Lawsuit Against US EPA as Pruitt Threatens to Roll Back Emissions Standards

In 2012, California, the Obama Administration, and major US automakers agreed (2012 Agreement) to nearly double fuel efficiency fleet-wide by 2025, raising the average fuel economy of new cars and light trucks to more than 50 MPG, or roughly 36 MPG in real-world driving. As part of the 2012 Agreement, a midterm review was scheduled to take place for April 2018 to determine the attainability of the final requirements. However, just prior to Obama leaving office in January 2017, US EPA announced it had completed its midterm review with no changes to the 2012 Agreement based on a record supported by a 2015 National Academies study and on the federal agency’s finding that the 2025 standards could be met with both technical and economic feasibility.

In February 2017, the Alliance of Automobile Manufacturers (Alliance), representing the majority of the automakers who agreed to the higher standards in 2012, wrote a letter requesting US EPA to withdraw its premature midterm determination. In this letter, the Alliance argued that “EPA and NHTSA in 2012 took the unprecedented step of setting joint greenhouse gas and fuel economy standards over a decade in advance for MY 2022-2025 vehicles,” and that US EPA’s commitment to a robust midterm evaluation was abrogated when it issued its final determination early, and without coordinating development of the standards with NHTSA. In March of 2017, US EPA and NHTSA granted the Alliance’s request and announced their intention to reopen midterm review and reconsider the Obama Administration EPA’s final determination that new standards were unnecessary. In response, California’s Air Resources Board (CARB) announced it would nonetheless move forward with the greenhouse gas emissions standards set forth in the 2012 Agreement. Continue Reading

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

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 and Procedure”, a monthly newsletter that provides bite-size updates on EU and UK law, procedure and policy. This month, we summarize nearly 30 developments of interest within the UK and EU environmental, safety and health arena, including:

  • The UK’s first contested prosecution under the Bribery Act 2010 s.7
  • The Department for Business, Energy and Industrial Strategy (BEIS) fining a company for failure to ensure a product was made from legally harvested timber
  • The Product Safety Office publishing a Code of Practice on product safety recalls and corrective actions
  • An airport baggage and cargo handler being fined £502,000 for two accidents at Luton Airport in 2015
  • The Court of Appeal reducing a £160,000 fine – issued for breach of Work at Height Regulations 2005 – by £50,000 to reflect mitigation

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.

New Product Recall Code of Practice in the UK

The new Office for Product Safety & Standards (OPSS) has collaborated with the BSI, to introduce the first ever government-backed Code of Practice for product safety recalls – PAS7100.

This is the first major undertaking of the OPSS, which was set up in January 2018. The development of the code results from recommendations made by the Working Group on Product Recalls and Safety, in order to improve the UK’s product safety regime.

The Code of Practice is intended to provide clarification for producers and distributors as to the steps that should be taken when faced with a product safety issue under the General Product Safety Regulations 2005.

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