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

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Check out the February 2018 edition of the UK Environmental, Safety & Health team’s monthly newsletter, frESH Law Horizons: Key Developments in UK and EU Environment, Safety and Health Law and Procedure, for “bite-sized” updates on EU and UK law and policy on the following hot topics:

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Navigating the “No Affiliation” Requirement to Bona Fide Prospective Purchaser CERCLA Liability Protection

­An important consideration for purchasers of US commercial property is establishing Bona Fide Prospective Purchaser (“BFPP”) liability protection to mitigate the risk of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et. seq.   Because the current owner of a property where a release of hazardous substances has occurred may be liable under CERCLA for the costs of responding to the release simply by virtue of having acquired title to the property (even if the owner was not aware of the release), obtaining status as a BFPP is a valuable safeguard against CERCLA liability since the protection can apply even if the purchaser had knowledge of existing contamination at the time of acquisition.

Although there are several requirements that must be met to achieve BFPP status, one of the less-discussed BFPP requirements is having “no affiliation” with a liable party.[1]  While this may seem a fairly straightforward concept, purchasers can create unnecessary risks by failing to give this requirement due consideration. Continue Reading

US EPA Proposes New Toxic Substances Control Act Fee Rule

On February 26, 2018, the US Environmental Protection Agency (US EPA) formally issued its proposed rule to charge new “user fees” under the amended Toxic Substances Control Act (TSCA).  TheBriefcase of Money amended TSCA authorizes US EPA to charge fees for a variety of activities under TSCA sections 4, 5 and 6, totaling up to 25% of the overall costs for the agency to conduct these activities.  Comments on the proposed fee rule must be submitted to US EPA on or before April 27, 2018.

US EPA expects to collect approximately $20.05 million annually during fiscal years 2019-2021 for the activities for which the new fees will be charged.  US EPA has estimated that the overall cost to conduct these activities will be roughly $80.2 million each year. Continue Reading

Warning: Only 6 Months Left Before New Prop 65 Regulations Become Operative on August 30, 2018

As of today’s date, businesses have only 6 months to comply with the newly-amended Clear and Reasonable Warnings regulations in California’s Proposition 65 (Prop 65), which take effect on August 30, 2018. We posted a 1-year reminder here, which discusses the history of Prop 65, the new requirements in the regulations, and the potential increase in enforcement litigation stemming from alleged noncompliance.

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UK Health and Safety Offences – No Two Cases Are The Same

JusticeThe recent UK Court of Appeal judgement in the case of R v Whirlpool UK Appliances Limited provides a useful analysis on the approach that courts should take when sentencing “very large organisations” under the Sentencing Council’s Definitive Guideline on Corporate Manslaughter, Health and Safety and Food and Safety Hygiene Offences (“the Guideline”).

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

Check out the January 2018 edition of the UK Environmental, Safety & Health team’s monthly newsletter, Online NewsfrESH Law Horizons: Key Developments in UK and EU Environment, Safety and Health Law and Procedure, for “bite-sized” updates on EU and UK law and policy on the following hot topics:
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The Future of the Clean Power Plan as US EPA’s Proposed Repeal Looms

On October 16, 2017, US EPA, under Administrator Scott Pruitt, proposed the repeal of the Clean Power Plan (CPP), and the Agency is accepting comments on the repeal until April 26, 2018. Following a review of the statute’s language, surrounding policy, and legislative history, US EPA proposed to “return to a reading of CAA section 111(a)(1) … as being limited to emission reduction measures that can be applied to or at an individual stationary source.” US EPA characterized the CPP as relying on measures unable to be applied to a single source. The effect, according to the Agency, is that the CPP relies on “actions taken across the electric grid, rather than actions taken at and applied to individual units.” The practical implications are that coal-fired units under the CPP would face a decision to switch to gas-fired units or renewable energy sources.

The impetus for the proposed repeal stems from Executive Order 13783 signed by President Trump on March 28, 2017. The Order calls for agencies to “immediately review existing regulations that potentially burden the development or use of domestically produced energy resources,” including the CPP. Specifically, the Order directs the US EPA Administrator to “immediately take all steps necessary to review the final rules set forth in subsection (b)(i) and (b)(ii) of this section [the Clean Power Plan]….and, if appropriate…as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules.” On December 15, 2017, US EPA publicly released a timeline for the rule repealing the CPP, with a target deadline of October 2018.

Recently, however, US EPA expressed a willingness to consider a replacement to the CPP if the repeal moves forward, publishing an Advanced Notice of Proposed Rulemaking  (ANPRM) on December 28, 2017. In the notice, US EPA requested comments on “what the EPA should include in a potential new existing source regulation under CAA section 111(d).” In particular, the Agency focused on determination of the Best System of Emission Reduction (BSER), the application of GHG emission limits to a source-specific level, the role of state regulatory agencies, and interactions between the New Source Review (NSR) program and potential GHG emission guidelines. In its request for comments, the Agency expressly directed that submitters should assume the interpretation of CAA section 111(a)(1) means limited to emission reduction measures “applied to or at a stationary source, at a source-specific level.” The focus on source-specific levels for GHG emission limits indicates an approach within the fenceline, and the Agency specifically cited North Carolina’s draft plan as an example of such unit-level emission standards. The comment period for the ANPRM is open until February 26, 2018. Continue Reading

US EPA’s Renewable Fuel Standard Volumes for 2018 Unsatisfactory to Many

On November 30, 2017, US EPA issued the final volume requirements and associated percentage standards for its renewable fuel standards (RFS) program for calendar year 2018, as well as the biomass-based diesel volume requirement for 2019. The annual volumes establish quotas for how much renewable fuel must be added to gasoline and diesel in order to, over time, replace or reduce the overall use of petroleum-based fuel. The final volumes for 2018 represent little change from the volume requirements adopted in 2017.

That the US EPA largely maintained 2017 levels was viewed by some as a success for the renewable fuel industry, as the new administration seriously considered reducing biofuel quotas. In fact, a proposed rule published in July 2017 relied on US EPA’s statutory waiver authority to set 2018 requirements below the statutory minimum and lower than those for 2017.

Although US EPA did not lower volume requirements, leaders in the renewable fuel industry complained that keeping the quotas flat will harm the industry. Daniel Whitehead, Chief Operating Officer of the National Biodiesel Board, explained:

EPA Administrator Pruitt has disappointed the biodiesel industry for failing to respond to our repeated calls for growth. These flat volumes will harm Americans across several job-creating sectors—be they farmers, grease collectors, crushers, biodiesel producers or truckers—as well as consumers. . . . We’ll continue to work with the administration to right this wrong for future volumes.

Also dissatisfied with the final RFS volumes, Iowa Governor Kim Reynolds stated, by not raising the RFS levels, “the EPA is discouraging investment and discouraging growth. That’s the opposite of what the Renewable Fuel Standard is designed to achieve.”

The petroleum industry was similarly disappointed by the RFS volumes, and US EPA’s failure to repair a failed program. CEO of the American Fuel & Petrochemical Manufacturers, Chet Thompson, responded to the announcement of the 2018 quotas, saying EPA “bow[ed] the knee to King Corn.” He explained, “We think this action is bad for U.S. manufacturing and American consumers and encourages Congress to finally fix the RFS.”

Both sides of the renewable fuel debate are displeased with US EPA’s decision to keep RFS volumes flat. However, the 2018 volumes give no indication regarding US EPA’s future plans for the RFS program.  Next year’s volumes for 2019 may show whether US EPA will keep volumes static long term or move forward with another proposal to reduce quotas.

Legal Challenges Ahead After President Trump Reduces Utah National Monuments

On December 4, 2017, President Trump issued two Presidential Proclamations reducing the size of Bears Ears and Grand Staircase-Escalante National Monuments by more than 800,000 acres and 1.1 million acres, respectively.  Bears Ears and Grand Staircase-Escalante National Monuments had been previously created by Presidents Obama and Clinton pursuant to the Antiquities Act of 1906.  The announcement by the Trump Administration to scale-back those designations is already being challenged in court, as land conservation groups dispute whether the President has authority under the Antiquities Act to modify or reduce the scope of previously designated national monuments.

The Antiquities Act authorizes the President, in his discretion, to “declare by public proclamation historic landmarks, historic and prehistoric structures, and other objects of historic or scientific interest that are situated on land owned or controlled by the Federal Government to be national monuments.”  The Act also provides that the President “may reserve parcels of land as a part of the national monuments. The limits of the parcels shall be confined to the smallest area compatible with the proper care and management of the objects to be protected.”  As previously discussed on this blog, the central question to be litigated is whether the Antiquities Act’s delegation of authority from Congress to the president to create national monuments also includes the power to abolish or modify previously created national monuments.

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New US EPA Memorandum Suggests a Hand’s-Off Approach to NSR Applicability Determinations

On December 7, 2017, US EPA Administrator Scott Pruitt issued a memorandum to all Regional Administrators to offer guidance regarding the Agency’s interpretation of New Source Review (NSR) preconstruction permitting requirements in response to recent decisions from the Sixth Circuit in EPA v. DTE Energy Co.  Highlighting the lack of unanimity among the individual Sixth Circuit judges and the ambiguity left by the decisions, the Administrator’s memo seeks to “explain to stakeholders how EPA plans to proceed in implementing and exercising its authority” relating to NSR applicability determinations.

In general, the guidance should be welcomed by the regulatory community as the Administrator provides a degree of clarity regarding US EPA’s interpretation of the NSR requirements, takes the position that US EPA will not “second guess” applicability determinations performed by facility owners and operators, and that US EPA will effectively exercise a light touch when it comes to NSR enforcement decisions. Continue Reading

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