ENVIRONMENTAL COMPLIANCE
Federal
FTC Proposes to Clarify Green Guides for Climate Claims Based on Carbon Offsets
June 29, 2023
The Federal Trade Commission (FTC) is engaging in a regulatory review of its Guides for the Use of Environmental Marketing Claims (Green Guides) in response to increasing consumer interest in environmentally friendly products in the marketplace.
Source: Holland & Knight
Biden Administration Proposes Undoing Recent ESA Regulatory Reforms and Expanding Section 7 Consultations
June 28, 2023
U.S. Fish and Wildlife Services and the National Marine Fisheries Service issued three proposals largely aimed at undoing the Trump administration’s recent regulatory amendments under Sections 4 and 7 of the Endangered Species Act. If finalized as proposed, these changes would erase many key ESA improvements secured by the regulated community in 2019, substantially impacting project development and ESA compliance nationwide.
Source: Beveridge & Diamond PC
Supreme Court Narrows CWA Jurisdiction Over Waters of the U.S.
June 27, 2023
On May 25, the U.S. Supreme Court issued its long-awaited decision in Sackett v. EPA, No. 21-454, holding that CWA jurisdiction extends to wetlands only if they have a continuous surface connection to relatively permanent bodies of water. On June 26, EPA announced that it will redefine “waters of the United States” by September 1 to conform to the Sackett v. EPA jurisdictional limitations.
Source: Beveridge & Diamond PC
U.S. Supreme Court Declines to Expand the Reserved Water Right
June 27, 2023
The Supreme Court issued a decision in Arizona v. Navajo Nation, holding that the Federal government is not responsible for taking affirmative steps to help the Navajo Nation secure access to water reserved for the Tribe from sources within, bordering, or underlying the Reservation. The ruling focused on whether the 1868 treaty establishing the Navajo Reservation imposed a duty on the Federal government to take such affirmative steps.
Source: Beveridge & Diamond PC
EPA Proposes Revisions to the NESHAP for RICE and the NSPS for Stationary Compression Ignition and Spark Ignition Internal Combustion Engines
June 27, 2023
EPA is proposing to amend the NESHAP for Reciprocating Internal Combustion Engines (RICE), the NSPS for Stationary Compression Ignition (CI) Internal Combustion Engines, and the NSPS for Stationary Spark Ignition (SI) Internal Combustion Engines to add electronic reporting provisions and make other minor clarifications and corrections to errors in the CFR. The proposed addition of the electronic reporting provisions will provide for simplified reporting by sources and enhance availability of data on sources to the EPA and the public.
Source: EPA
EPA Proposes Pesticide Conservation Measures for Protected Species
June 26, 2023
Last year, EPA launched its Vulnerable Species Pilot to identify (1) at-risk species reasonably certain to be adversely affected by non-residential outdoor uses of pesticides and (2) proposed conservation measures (described by EPA as “mitigation measures”) for reducing those impacts to the species and their habitat. On June 22, EPA published a draft white paper identifying the initial set of listed species and EPA’s proposed mitigation measures.
Source: Beveridge & Diamond PC
United States Court of Appeals Vacates Parts of the EPA's Phasedown of Hydrofluorocarbon Rule
June 21, 2023
The United States Court of Appeals for the District of Columbia Circuit has vacated and remanded to the EPA the QR-code and refillable-cylinder regulations of the Phasedown of Hydrofluorocarbon Rule due to the fact that the EPA does not identify a statutory provision for those parts of the Rule.
Source: EPA
EPA Proposes to Regulate Perchloroethylene (PCE)
June 19, 2023
EPA is proposing to address the unreasonable risk of injury to human health presented by perchloroethylene (PCE) under its conditions of use by prohibiting the following: most industrial and commercial uses of PCE; the manufacture, import, processing, and distribution in commerce of PCE for the prohibited industrial and commercial uses; the manufacture, import, processing, and distribution in commerce of PCE for all consumer use; and, the manufacture, import, processing, distribution in commerce, and use of PCE in dry cleaning and related spot cleaning through a 10-year phase-out. For certain conditions of use that would not be subject to a prohibition, EPA is also proposing to require a PCE workplace chemical protection program that includes requirements to meet an inhalation exposure concentration limit and prevent direct dermal contact. EPA is also proposing to require prescriptive workplace controls for laboratory use, and to establish recordkeeping and downstream notification requirements. Additionally, EPA proposes to provide certain time-limited exemptions from requirements for certain critical or essential emergency uses of PCE for which no technically and economically feasible safer alternative is available.
Source: EPA
Updated: New TSCA Section 6 Chemical Management Rules
June 8, 2023
The Toxic Substances Control Act (TSCA), as amended in 2016, directs US EPA to impose prohibitions and/or restrictions on persons who manufacture, process, distribute, or use chemicals which the agency determines pose an "unreasonable risk" to health or the environment.
To determine which chemicals pose unreasonable risk, EPA follows a detailed process to prioritize and evaluate the hazards of more than 40,000 "active" chemical substances listed on the TSCA Inventory.
Source: Lion
New EPA Guidance on Lithium-Ion Batteries Leaves Critical Questions Unanswered
June 7, 2023
EPA issued guidance on the potential applicability of the nation’s hazardous waste regulatory program under RCRA to the collection and recycling of lithium-ion batteries. The new guidance document may be useful to persons generating or handling used lithium-ion batteries or devices containing such batteries, as it summarizes, consolidates, and clarifies some of the complex rules and guidance in this area.
Source: Beveridge & Diamond PC
What's New for 2023 TRI Reports Due July 1?
June 2, 2023
Toxic Release Inventory (TRI) reporting from covered facilities is due July 1. TRI reporting is known by various other names, including “Form R,” “EPCRA 313,” “SARA 313,” or “Toxic Chemical Release Reporting."
The Emergency Planning and Community Right-to-Know Act (EPCRA) regulations require annual reporting from facilities in specific industry sectors that manufacture, import, process, or use a listed chemical in an amount that exceeds the given threshold for that chemical and activity (e.g., 25,000 lbs., 10,000 lbs. 100 lbs. etc.).
Source: Lion
Texas
TxVEMP Reimbursement Rate Increase
June 13, 2023
The TCEQ is preparing to open an all-electric vehicle and equipment grant round under the Texas Volkswagen Environmental Mitigation Program (TxVEMP). The Beneficiary Mitigation Plan For Texas has been updated to reflect the following changes:
The maximum reimbursement rates under the program have increased to:
100% of the incremental cost for governmental entities (formerly 80%)
75% of the incremental cost for non-governmental entities (formerly 50%)
Eligible vehicles are no longer required to be replaced with a vehicle of the same weight class or configuration. TCEQ will consider replacement vehicles of a different weight class and configuration as long as the vehicle usage and type remain the same.
Source: TCEQ
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HEALTH & SAFETY COMPLIANCE
Be Ready to Defend the Castle: Seyfarth Legal Update Guides Employers on How to Implement an Effective OSHA Inspection Management Policy
June 28, 2023
With the Biden Administration’s aggressive new generation of OSHA compliance officers and enforcement objectives, employers would be wise to develop a written program that incorporates all best practices for inspection management. Attached is a link to an article outlining best practices for employers when faced with handling an OSHA inspection.
Source: Seyfarth Shaw
CSB Releases Final Report into Fatal Chemical Release at Wacker Polysilicon Facility in TN
June 15, 2023
We may not deal in toxic chemicals, but this report highlights the need for proper egress. Washington D.C. June 15, 2023 – Today the U.S. Chemical Safety and Hazard Investigation Board (CSB) released its final report into the November 2020 hydrogen chloride (HCl) release that occurred during maintenance activities at the Wacker Polysilicon North American facility in Charleston, Tennessee. A worker was fatally injured in the incident.
Source: CSB
Small Business Panel has Big Recommendations for Potential OSHA Workplace Violence Prevention Standard
June 15, 2023
A Small Business Advocacy Review Panel for a potential OSHA standard to address Prevention of Workplace Violence in the Healthcare and Social Assistance sectors concluded on May 1, 2023.
Source: Seyfarth
Workplace Violence SBREFA
June 2, 2023
OSHA is in the early stages of developing a potential standard, Prevention of Workplace Violence in Healthcare and Social Assistance. OSHA convened a Small Business Advocacy Review (SBAR) Panel in March 2023 and heard from representatives from small businesses and who served as small entity representatives (SERs)
Source: OSHA
What's New for 2023 TRI Reports Due July 1?
June 2, 2023
Toxic Release Inventory (TRI) reporting from covered facilities is due July 1. TRI reporting is known by various other names, including “Form R,” “EPCRA 313,” “SARA 313,” or “Toxic Chemical Release Reporting."
The Emergency Planning and Community Right-to-Know Act (EPCRA) regulations require annual reporting from facilities in specific industry sectors that manufacture, import, process, or use a listed chemical in an amount that exceeds the given threshold for that chemical and activity (e.g., 25,000 lbs., 10,000 lbs. 100 lbs. etc.).
Source: Lion
Hazmat Registration Ends June 30, Fees May Increase
June 1, 2023
US DOT PHMSA may soon increase the Registration fee amounts paid by shippers and carriers of certain types and quantities of hazardous materials, in order to fund hazmat emergency preparedness and training grants at the levels authorized by Congress.
Source: Lion
Quick Quiz: Who's a "Hazmat Employee"?
June 1, 2023 Late last year, US DOT PHMSA published a letter of interpretation (LOI) in response to a stakeholder’s request for clarification about the definition of a “hazmat employee” in 49 CFR 171.8.
To comply with the Hazardous Materials Regulations (HMR), shippers absolutely must know which of their employees are "hazmat employees"—who must be trained and re-trained at least every three years. In the interpretation letter, PHMSA addresses four specific shipping-related job tasks and explains whether the HMR covers employees who perform those tasks.
Source: Lion
Proposed Rule Aligns US Hazmat Rules with International Standards
May 30, 2023
On May 30, US DOT PHMSA proposed to align the US Hazardous Materials Regulations (HMR) with international requirements for hazmat/dangerous goods shipping and transportation..
The proposed rule would incorporate-by-reference the editions of international regulatory standards for hazardous materials/dangerous goods transportation in effect as of January 1, 2023, including the 2023-24 ICAO Technical Instructions, the 2022 IMDG Code, and the 22nd Revised UN Model Regulations.
Source: Lion
SUSTAINABILITY, ESG, AND CLIMATE ACTION
ISSB Issues Inaugural Global Sustainability Disclosure Standards
June 26, 2023
The International Sustainability Standards Board (ISSB) has today issued its inaugural standards—IFRS S1 and IFRS S2 —ushering in a new era of sustainability-related disclosures in capital markets worldwide. The Standards will help to improve trust and confidence in company disclosures about sustainability to inform investment decisions.
Source: IFRS
BLM Proposes Rule to Further Promote Solar and Wind Development on Federal Lands
June 26, 2023
BLM published a Proposed Rule on June 16, that would, if adopted, amend its existing right-of-way regulations. The Proposed Rule would promote private solar and wind energy development applications by reducing acreage rents and capacity fees and streamlining BLM approval of rights-of-way applications. Comments on the Proposed Rule are due August 15.
Source: Beveridge & Diamond PC
IRS Releases 2023 Section 45 Production Tax Credit Amounts
June 21, 2023
The IRS on June 21, 2023, released 2023 production tax credit (PTC) amounts under Section 45 of the Internal Revenue Code. That guidance provides that:
For facilities placed in service before Jan. 1, 2022, the credit for renewable electricity production for calendar year 2023 is 2.8 cents per kilowatt hour (kWh) on the sale of electricity produced from the qualified energy resources of wind, closed-loop biomass and geothermal energy, and it is 1.4 cents per kWh on the sale of electricity produced from the qualified energy resources of open-loop biomass, landfill gas, trash, qualified hydropower, and marine and hydrokinetic renewable energy.
For facilities placed in service after Dec. 31, 2021, the credit for renewable electricity production for calendar year 2023 is 0.55 cents per kWh on the sale of electricity produced from the qualified energy resources of wind, closed-loop biomass, geothermal energy and solar energy, and the credit is 0.3 cents per kWh on the sale of electricity produced from open-loop biomass, landfill gas, trash, qualified hydropower, and marine and hydrokinetic renewable energy. These amounts increase from 0.55 cents and 0.3 cents to 2.75 cents and 1.5 cents per kWh, respectively, if prevailing wage and apprenticeship requirements are satisfied.
For qualified hydropower and marine and hydrokinetic renewable energy facilities placed in service after Dec. 31, 2022, the credit for renewable electricity production for calendar year 2023 is 0.55 cents per kWh, or 2.75 cents if prevailing wage and apprenticeship requirements are satisfied.
Source: Holland and Knight
Brazil Confirmed Host of COP30 in 2025 Amid President’s Uphill Battle to Preserve Environmental and Climate Change Agendas
June 21, 2023
As President Luiz Inácio Lula da Silva (Lula) reached his first six months in office, Brazil’s opposition-led Congress unleashed an important, yet unsurprising, setback on the new administration’s efforts to advance environmental protection, environmental justice, and tackle climate change. This alert covers how the government responded to it with a veto and some regulatory advances, including launching the National Council for the 30th Conference of the Parties (COP) of the United Nations Framework Convention on Climate Change (UNFCCC). The UN confirmed Brazil as the host of COP30, which will occur in the capital of Pará, one of the nine Brazilian states in the Amazon region, in 2025.
Source: Beveridge & Diamond PC
IPSASB to Launch Public Sector Climate Disclosure Standard
June 14, 2023
Respondents to IPSASB’s May 2022 consultation paper on Advancing Public Sector Sustainability Reporting agreed that the public sector urgently needs its own sustainability reporting standards and that the IPSASB, with its 25 years of standard setting experience, should lead their development. Public sector specific sustainability reporting standards will equip governments and other public sector entities to provide better transparency, accountability, and comparability of their efforts to combat the climate crisis and other sustainability challenges.
Source: IPSASB
EU Parliament Agrees Common Position on Corporate Due Diligence Law
June 1, 2023
Despite last-minute pushback against key parts of the text, EU lawmakers adopted a common position on the proposed EU rules to make companies accountable for human rights and environmental violations along their value chains, opening the way for negotiations with member states.
Source: EURACTIV
EU Parliament Votes to Require Companies to Introduce Climate Transition Plans
June 1, 2023
Lawmakers in the European Parliament voted 366-225 on Thursday on new rules requiring companies to identify and address the impact of their activities and value chains on human rights and the environment, as well as a new requirement to adopt and implement climate transition plans. The new rules form Parliament’s negotiating position on the EU Commission’s proposed corporate sustainability due diligence directive (CSDDD)
Source: ESG Today
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