OSHA Issues Final Beryllium Rule Reducing Workplace Exposure Limit 10-Fold

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By Allison Torrence

 

The Occupational Safety and Health Administration (OSHA) published a final rule on Occupational Exposure to Beryllium in the Federal Register on January 9, 2017. The final rule reduces the permissible exposure limit (PEL) for beryllium to 0.2 μg/m3, averaged over 8-hours. The previous PEL for beryllium, established more than 40 years ago, was 2.0 μg/m3. The rule also establishes a new short term exposure limit for beryllium of 2.0 μg/m3, over a 15-minute sampling period.

As we discussed previously on this blog, OSHA proposed this rule on August 7, 2015 and took extensive public comment before issuing this final version. OSHA estimates that approximately 62,000 workers are exposed to beryllium in their workplaces and that the rule will save almost 100 lives from beryllium-related diseases and prevent 46 new cases of chronic beryllium disease each year, once the effects of the rule are fully realized.

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EPA Proposes Notice of Intent to Proceed with Rulemaking for CERCLA Financial Responsibility Requirements for the Chemical Manufacturing, Petroleum and Coal Products Manufacturing, and Electric Power Industries

Bandza

 By Alexander Bandza

 

Yesterday, on January 11, 2017, the EPA issued a notice of intent to proceed with rulemaking regarding whether and to what extent financial responsibility requirements under CERCLA section 108(b) should apply to the Chemical Manufacturing, Petroleum and Coal Products Manufacturing, and Electric Power Industries. Pexels-photo-164474

The rulemaking will have an interesting path forward in light of its history and the upcoming administration change.  On January 6, 2010, the Environmental Protection Agency (EPA) published an Advance Notice of Proposed Rulemaking (ANPRM) that identified additional classes of facilities within three industry sectors that could warrant developing financial responsibility requirements under CERCLA section 108(b): (1) the Chemical Manufacturing industry (NAICS 325); (2) the Petroleum and Coal Products Manufacturing industry (NAICS 324); and (3) the Electric Power Generation, Transmission, and Distribution industry (NAICS 2211).  In August 2014, environmental groups filed a lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit, for a writ of mandamus requiring issuance of CERCLA section 108(b) financial responsibility rules for the three additional industries identified by EPA in the ANPRM.  EPA and the petitioners submitted and the court approved an Order on Consent, which included a schedule for further administrative proceedings under CERCLA section 108(b).  Critically, in granting the motion to enter the Order, the D.C. Circuit recognized that “the content of [the rulemaking required under the Order] is not in any way dictated by the [Order].”  Therefore, the upcoming administration may be bound to entertain the process of rulemaking, it appears free to disregard producing any rule as a result of this process.

Continue reading "EPA Proposes Notice of Intent to Proceed with Rulemaking for CERCLA Financial Responsibility Requirements for the Chemical Manufacturing, Petroleum and Coal Products Manufacturing, and Electric Power Industries" »

VW Agrees to $4.3 Billion Settlement of Diesel Emission Claims

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By Allison Torrence

 

On January 11, 2017, the U.S. Department of Justice announced that Volkswagen AG (VW) has agreed to plead guilty to three criminal felony counts and pay a $2.8 billion criminal penalty for selling approximately 590,000 diesel vehicles in the U.S. that had installed defeat devices to cheat on emissions tests mandated by the Environmental Protection Agency (EPA). VW will be on probation for three years and under an independent corporate compliance monitor who will oversee the company for at least three years. VW has also agreed to pay $1.5 billion to settle separate civil violations under the Clean Air Act (CAA) as well as other customs and financial claims.

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Special Master Orders Settlement Talks in Florida/Georgia Water Dispute

Grayson By E. Lynn Grayson SCOTUS

There is a new development in the continuing conflict between Florida and Georgia over the water-sharing arrangements involving the Chattahoochee, Flint, and Apalachicola Rivers. A U.S. Supreme Court-appointed special master has ordered the parties to participate in settlement discussions following a lengthy trial at the end of last year. Special Master Ralph Lancaster directed the states to meet for mediation by January 24 and to submit a memorandum to him by January 26 on the progress of settlement discussions.

Florida’s latest lawsuit filed in 2013 accused Georgia of hogging water from the Chattahoochee and Flint rivers to the economic and ecological detriment of the downstream Apalachicola River basin. Florida seeks a reliable amount of water from Georgia as well as a cap on metro Atlanta’s and/or southwest Georgia’s consumption of water. Florida claims that reduced water levels and resulting increased salinity in Apalachicola Bay have significantly damaged the oyster population and pose threats to mussels and other species.

Interested parties believe that a compromise can be reached here with the creation of a compact that monitors and advances water-saving measures across the basin. At the heart of the dispute are two issues: how much water flows from Georgia into Florida, and should Georgia cap the amount of water it consumes. To date, Georgia has appeared unwilling, at least publicly, to address caps and consumption issues.

Ever present water disputes between states are increasing in light of growing water scarcity concerns as well as quality and quantity challenges. The U.S. Supreme Court (SCOTUS) is seeing more of these original jurisdiction cases as conflicts arise between states over water rights and interstate compact interpretations. At least five cases appear to be pending before SCOTUS at this time involving not only Florida and Georgia but also Montana, Wyoming, Texas, New Mexico, Mississippi, Tennessee, and Colorado.

U.S. EPA Collects $6B in Penalties in 2016

 By Steven M. Siros

EPA logoAccording to U.S. EPA’s annual enforcement report, U.S. EPA collected approximately $6 billion in civil penalties and required companies to expend in excess of $13.7 billion for pollution control investments in 2016. U.S. EPA’s 2016 collections represented a significant increase over 2015, when U.S. EPA only collected $207 million in civil penalties. The significant increase in 2016 was mainly attributable to a record $5.6 billion Clean Water Act penalty assessed against BP for the Deepwater Horizon event. It is also important to note that the $13.7 billion in pollution control investments doesn’t include the approximately $15 billion that Volkswagen has agreed to expend, because those amounts will primarily be expended in 2017.

Notwithstanding the spike in civil penalties, inspections and evaluations continue their downward trend with approximately 13,500 inspections and evaluations taking place in 2016, as compared with nearly 20,000 in 2012. Pollution reduction also continues to its downward trend with U.S. EPA only requiring companies to reduce releases of pollution by 324 million pounds per year—a result that U.S. EPA attributes to a continuing focus on toxic pollutants which come from smaller volume emitters.

Please click here to see a copy of U.S. EPA’s 2016 enforcement report.

New Climate Change Financial Disclosure Recommendations

Grayson By E. Lynn Grayson TCFD logo

The Task Force on Climate-Related Financial Disclosures has issued a report detailing is recommendations for helping businesses disclose climate-related financial risks and opportunities within the context of their existing disclosure requirements. The Task Force developed four widely adoptable recommendations on climate-related financial disclosures that are applicable to organizations across sectors and jurisdictions: 1) adoptable by all organizations; 2) included in financial filings; 3) designed to solicit decision-useful, forward-looking information on financial impacts; and 4) strong focus on risks and opportunities related to transition to lower-carbon economy.

The recommendations are incorporated into a comprehensive report that provides good insight into climate-related risks and financial impacts, sector focused guidance, scenario analysis for climate issues and identification of key issues requiring further consideration. Appendices include a summary of select disclosure frameworks and other guidance including fundamental principles for effective disclosure.

In a letter to the Financial Stability Board transmitting the recommendations, Chairman Michael Bloomberg notes “….Warming of the planet caused by greenhouse gas emissions poses serious risks to the global economy and will have an impact across many economic sectors……without effective disclosure of these risks, the financial impacts of climate change may not be correctly priced and as the costs eventually become clearer, the potential for rapid adjustments could have destabilizing effects on markets.” He concludes in his letter that the Task Force’s recommendations “…aim to begin fixing this problem.”

The recommendations are designed to help companies identify and disclose information needed by investors, lenders and insurance underwriters to appropriately assess and price climate related risks and opportunities. Even with the upcoming changes in D.C., it is clear there will be continuing focus on climate change-related disclosures in 2017.

President Obama Bans Drilling in Over 100 Million Acres of the Arctic and Atlantic Oceans

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By Allison Torrence

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On December 20, 2016, President Obama announced that he was using his authority under the Outer Continental Shelf Lands Act (43 U.S.C. §§ 1331 et seq.) to prohibit drilling and oil exploration in certain areas of the Arctic and Atlantic Oceans. President Obama’s action was coordinated with Canada, where Prime Minister Trudeau announced a similar ban in Canada’s Arctic waters. The action will ban drilling in approximately 115 million acres of the Arctic Ocean, which represents 98% of federally owned Arctic waters, and 3.8 million acres of the Atlantic coast around a series of sensitive coral canyons.

The Outer Continental Shelf Lands Act (“OCS Act”) was passed in 1953 to protect the waters above the outer continental shelf – submerged lands beginning 3 miles from shore and extending to the 200-mile international-waters boundary. 43 U.S.C. § 1331(a). The OCS Act states that:

"The outer Continental Shelf is a vital national resource reserve held by the Federal Government for the public, which should be made available for expeditious and orderly development, subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs." 43 U.S.C. § 1332(3).

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DTSC Seeks Comments on New Safer Consumer Products Guidance

Grayson By E. Lynn Grayson Safer Consumer Products logo

The California Department of Toxic Substances Control (DTSC) has issued draft guidance titled Alternatives Analysis Guide and is seeking comments through January 20, 2017. California’s Safer Consumer Products (SCP) Program challenges product designers and manufacturers to reduce toxic chemicals in their products. According to DTSC, the SCP regulations establish innovative approaches for responsible entities to identify, evaluate, and adopt better alternatives. The SCP approach requires an Alternatives Analysis (AA) that considers important impacts throughout the product’s life cycle and follows up with specific actions to make the product safer. DTSC prepared the Draft Alternatives Analysis Guide to help responsible entities conduct an AA to meet the regulatory requirements. Public comments are specifically requested to provide DTSC with insight on the clarity and usefulness of the Draft Alternatives Analysis Guide.

DTSC’s SCP Program regulations took effect October 1, 2013 and are being implemented based on the various regulatory requirements. The goals of the program are to: 1) reduce toxic chemicals in consumer products; 2) create new business opportunities in the emerging safer consumer products industry; and 3) help consumer and businesses identify what is in the products they buy for their families and customers.

The SCP program implements a four-step process to reduce toxic chemicals in the products that consumers buy and use. It identifies specific products that contain potentially harmful chemicals and asks manufacturers to answer two questions: 1) Is this chemical necessary? 2) Is there a safer alternative? The first step involved publication of a list of candidate chemicals that exhibit a hazard trait and/or an environmental toxicological endpoint. Regulators must then identify potential “priority products” containing chemicals that pose a significant risk to public health or the environment. Once a priority product is declared through a separate rulemaking, regulated entities must conduct an alternative analysis to determine if safer options are available. The final step in the lengthy process is for the department to determine if a regulatory response, such as banning the chemical-product combination, is required.

To learn more about the status of the SCP program and to obtain a copy of the new guidance, visit the DTSC SCP website at http://www.dtsc.ca.gov/SCP/index.cfm.

EPA Publishes Proposed Rule to Ban Certain Uses of TCE

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By Allison Torrence

 

On December 7, 2016, EPA published a proposed rule to ban certain uses of trichloroethylene (TCE) under section 6(a) of the Toxic Substances Control Act (TSCA) due to risks to human health from those uses. The proposed rule would prohibit the manufacture (including import), processing, distribution in commerce and commercial use of TCE for aerosol degreasing and for spot cleaning in dry cleaning facilities.

As we previously reported on this blog, EPA recently included TCE on its list of the first 10 chemicals it will evaluate broadly for potential risks to human health and the environment pursuant to requirements of the 2016 TSCA Reform Act. In a 2014 risk assessment, EPA identified serious risks to workers and consumers associated with TCE uses, concluding that the chemical can cause a range of adverse health effects, including cancer, development and neurotoxicological effects, and toxicity to the liver.

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U.S. EPA Issues Final Rule Adding Vapor Intrusion to NPL Site Scoring System

 By Steven M. Siros EPA subsurface intrusion

In a move that should not come as a great surprise, on December 7, 2016, U.S. EPA published a final rule which added a "subsurface intrusion” or “SsI" component to CERCLA’s Hazard Ranking System (HRS). More specifically, SsI can include either groundwater or vapor intrusion although vapor intrusion is the much more common exposure pathway. The new rule, which can be found here, will become effective within 30 days of publication in the federal register. According to U.S. EPA Waste Chief Mathy Stanislaus, the new rule expands the types of sites that be assessed by U.S. EPA to now include sites that solely have SsI  issues, as well as sites that have SsI issues that are coincident with a groundwater or soil contamination problem.

The final rule is substantially similar to the draft rule but does have minor adjustments that were made in response to comments which U.S. EPA contends will better “help refine the mechanics of assigning an HRS site score.” Importantly, the new rule doesn’t change the existing HRS cutoff score of 28.5 for a site to qualify for listing on the NPL, nor does the new rule apply to sites that are already on or proposed to be listed on the NPL.

Industry groups and the Department of Defense had objected to the draft rule, and it is unclear whether the new rule will be retained or modified under the incoming Trump administration.  We will continue to track this and other rulemaking efforts on the part of U.S. EPA as the administration continues to transition. 

Oklahoma Attorney General Scott Pruitt Picked to Lead EPA

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By Allison Torrence

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Several news outlets are reporting that President-elect Donald Trump will nominate Oklahoma Attorney General Scott Pruitt to serve as the Administrator of the U.S. Environmental Protection Agency. Mr. Pruitt has been the Attorney General of Oklahoma since his election to that post in 2011. In his role as Oklahoma Attorney General, Mr. Pruitt has been active in litigation challenging current EPA regulations in court, most significant of which have been challenges to the Obama Administration’s Clean Power Plan.

Mr. Pruitt and Oklahoma are part of the coalition of 28 states challenging EPA’s regulation of greenhouse gas emissions from existing power plants – a key component of the Clean Power Plan – in the case of West Virginia v. EPA, Case No. 15-1363. This case is currently pending in the U.S. Court of Appeals for the D.C. Circuit, which recently heard nearly seven hours of oral arguments and is expected to issue a ruling soon.

Environmental groups have been quick to react to Mr. Pruitt’s apparent nomination. Sierra Club Executive Director, Michael Brune released a statement critical of the pick:

Having Scott Pruitt in charge of the U.S. Environmental Protection Agency is like putting an arsonist in charge of fighting fires…We strongly urge Senators, who are elected to represent and protect the American people, to stand up for families across the nation and oppose this nomination.

Mr. Pruitt’s appointment must be confirmed by the U.S. Senate. Several Democratic Senators have already raised concerns over his nomination, including Senator Brian Schatz (D-HI), who tweeted that he “will do everything I can to stop this.”

OSHA’S New Anti-Retaliation Rule: Effect on Safety Incentive Programs

By Gabrielle Sigel and Andi Kenney

On May 12, 2016, the U.S. Occupational Safety and Health Administration ("OSHA") issued a final rule addressing employers' workplace injury and illness reporting and recording obligations. 81 Fed. Reg. 29624-94. One portion of the new rule addresses retaliation against employees who report a work-related injury or illness (collectively, "injury") to an employer. Specifically, new § 1904.35(b)(1)(iv) provides: "You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness." 29 CFR § 1904.35(b)(1)(iv). OSHA also added another new rule:  An employer “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 CFR § 1904.35(b)(1)(i).

The new rule, particularly § (b)(1)(iv), was challenged in federal court, with plaintiffs seeking a nationwide preliminary injunction prohibiting the rule's enforcement. TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). On November 28, 2016, the court denied plaintiffs' request for an immediate injunction, but said that its decision on the preliminary injunction does not reflect its decision on the merits of plaintiffs' legal challenges to the rule. Without the preliminary injunction, OSHA may begin enforcing the new rule as of December 1, 2016.

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TSCA Reform in Action: EPA Releases List of 10 Chemicals Slated for Risk Evaluations

Torrence_jpgBy Allison Torrence

 

On November 29, 2016, EPA announced the first 10 chemicals it will evaluate for potential risks to human health and the environment under the new Toxic Substances Control Act (TSCA) Reform Act, which was signed into law back in June. The TSCA Reform Act required EPA to publish this list of priority chemicals and begin the risk evaluation process on these chemicals by December 19, 2016. By the end of 2019, EPA will be required to have at least 20 chemical risk evaluations in process at any given time.

The first 10 chemicals to be evaluated by EPA are:

1,4-Dioxane

1-Bromopropane

Asbestos

Carbon Tetrachloride

Cyclic Aliphatic Bromide Cluster

Methylene Chloride

N-methylpyrrolidone

Pigment Violet 29

Tetrachloroethylene, also known as perchloroethylene

Trichloroethylene

This list will be published in the Federal Register in the coming weeks, at which point it will trigger several statutory deadlines for these 10 chemicals:

  • EPA must release a scoping document for each chemical within 6 months.
  • EPA must complete risk evaluations for each chemical within three years.
  • If the risk evaluation determines that a chemical presents an unreasonable risk to humans and the environment, EPA must mitigate that risk within two years.

More information on the TSCA Reform Act and EPA’s recent actions can be found on EPA’s website.

OSHA Issues Final Rule On Walking-Working Surfaces and Fall Protection

By Andi Kenney

Fall-protection-sign-ODE-3000_300On November 18, 2016, OSHA finally published a final rule updating the walking-working surfaces and fall protection standards for general industry. Percolating since 1990 (55 FR 13360), reopened in 2003 (68 FR 23528) and again in 2010 (75 FR 28862), revisions to the walking-working surfaces and fall protection standards were long overdue. OSHA’s 500+ final rule gives employers new options to combat slip, trip and fall hazards (Subpart D) while adding employer requirements to ensure those new options provide for enhanced safety. It adds a new section under the general industry Personal Protective Equipment standard (Subpart I) that specifies employer requirements for using personal fall protection systems and clarifies obligations for several specific industries, including telecommunications, pulp, paper and paperboard mills, electrical power generation, transmission and distribution, textiles and sawmills.

The final rule addresses fall protection options (including personal fall protection systems), codifies guidance on rope descent systems, revises requirements for fixed and portable ladders, prohibits the use of body belts as part of a personal fall arrest system, and establishes training requirements on fall hazards and fall protection equipment. OSHA Administrator Dr. David Michaels stated, "The final rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries."  OSHA notes the final rule also increases consistency between general and construction industries, which it believes will help employers and workers that work in both industries. 

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EPA Finalizes Renewable Fuel Standards for 2017

Torrence_jpgBy Allison Torrence

 

Section 211 of the Clean Air Act requires EPA to set annual Renewable Fuel Standard (RFS) volume requirements for four categories of biofuels: cellulosic biofuel, biomass-based diesel, advanced biofuel, and total renewable fuel. On November 23, 2016, EPA finalized rules under the RFS program, increasing the amount of renewable fuels that must blended into gasoline and diesel fuel in 2017.

Under the new RFS rules, total renewable fuel volumes will grow by 1.2 billion gallons from 2016 to 2017, a 6 percent increase.

Renewable Fuel Standard

Source: EPA website.

In the final rule, EPA describes the significance of renewable fuels, currently and in the future:

Today, nearly all of the approximately 142 billion gallons of gasoline used for transportation purposes contains 10 percent ethanol (E10), and a substantial portion of diesel fuel contains biodiesel. Renewable fuels represent an opportunity for the U.S. to move away from fossil fuels towards a set of lower lifecycle GHG transportation fuels, and the RFS program provides incentives for these lower lifecycle GHG fuels to grow and compete in the market.

The final RFS rules have been submitted to the Federal Register and will be published in the coming weeks. More information about the RFS program and the final RFS rule can be found on the EPA website.

EPA Finalizes Hazardous Waste Generator Improvements Rule

Torrence_jpgBy Allison Torrence

 

Hazardous WasteOn October 28, 2016, EPA announced that EPA Administrator Gina McCarthy signed the final Hazardous Waste Generator Improvements Rule. The rule will be published in the Federal Register in the coming weeks, and will become effective six months after it is published.

According to EPA, the objectives of the Hazardous Waste Generator Improvements Rule are to:

  • Reorganize existing regulations to make them more user-friendly and improve generator compliance.
  • Provide greater flexibility in how hazardous waste is managed.
  • Enhance the safety of facilities that create hazardous waste and the response capabilities of emergency responders by improving risk communication.

The new rule includes more than 60 changes to existing hazardous waste generator regulations and will impact between 424,099 – 676,890 industrial entities.

A few key changes in the Hazardous Waste Generator Improvements Rule include:

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World’s Largest Marine Protected Area Established

Antarctic

Grayson By E. Lynn Grayson

The United States, in conjunction with 25 other countries, recently approved the creation of the world’s largest Marine Protected Area (MPA) in Antarctica’s Ross Sea. The Ross Sea Region MPA will safeguard one of the last unspoiled ocean wilderness areas on the planet—home to unparalleled marine biodiversity and thriving communities of penguins, seals, whales, seabirds, and fish.

The Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR)—which operates by the unanimous consent of its 25 members—reported its extraordinary progress in safeguarding a very unique environmental marine area. The designation will prohibit or strictly limit commercial fishing as well as mineral extraction, among other such activities. The Ross Sea MPA will become effective December 1, 2017.

The new MPA adds 1.55 million square kilometers (598,000 square miles) in new ocean protection in an area nearly twice the size of the state of Texas. This designation—on top of the nearly 4 million square kilometers of newly protected ocean announced around the world at the Our Ocean conference the State Department hosted in September—makes 2016 a landmark year for ocean stewardship

More information about this environmental marine achievement can be found at the CCAMLR website at https://www.ccamlr.org/.

Chicago: New Industrial Growth Zones Program

Grayson By E. Lynn Grayson Chicago seal

Mayor Rahm Emanuel and Cook County Board President Toni Preckwinkle recently launched an unprecedented effort to generate new industrial investment in Chicagoland neighborhoods. The Industrial Growth Zones program will accelerate neighborhood development in seven designated areas over the next three years by removing longstanding hurdles to development and providing a broad set of services to support property owners and industrial businesses. The purpose of the program to spur economic growth and generate real, sustainable jobs by promoting investment and industrial development in Chicago neighborhoods.

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Uncertainty Continues As to ESG Reporting

Grayson By E. Lynn Grayson Pwc

The importance of and how best to report on environmental, social and governance (ESG) issues remains uncertain, and what really matters appears to depend upon whether you are a corporate or an investor. The continuing difference of opinion on ESG matters is highlighted in a new survey from PricewaterhouseCoopers LLP titled Investors, Corporates and ESG: Bridging the Gap.

The survey finds that corporates view disclosing ESG data differently—corporates are focused on growth but investors are focused on risk. It is clear that sustainability reporting has become mainstream with 81% of S&P 500 companies publishing sustainability reports in 2015 compared to 20% in 2011.

Some key findings from the survey include:

  • 65% of corporates say ESG issues are very important to the core business strategy
  • 80% of corporates follow Global Reporting Initiative (GRI) standards for ESG disclosure reporting
  • 31% of investors confirm that ESG data is very important to equity investment decisions
  • 43% of investors would like to see ESG information reported using the Sustainability Accounting Standards Board (SASB) standards

A critical issue identified in the survey relates to trust and transparency of ESG disclosures. Corporates express 100% confidence in the quality of ESG information shared but only 29% of investors are confident in the quality of the ESG information received from companies.

The results of this new survey from PWC confirms that investors are increasingly interested in both financial and nonfinancial disclosures including information related to ESG matters. 36% of investors noted that having such information incorporated into SEC filings would ensure higher quality data. The SEC currently is considering corporate disclosures of ESG issues.

Trade Associations Obtain Nationwide Injunction Against Portions of the “Fair Pay and Safe Workplaces” Regulatory Scheme, and Agencies Stand Down (For Now)

Robertson Tarloff Sigel BandzaBy Cynthia Robertson, Elliot Tarloff, Gabrielle Sigel, and Alexander Bandza

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Portions of the Fair Pay and Safe Workplaces regulations, specifically those related to reporting violations of labor laws and restricting mandatory arbitration, have been enjoined on a nationwide basis by the District Court for the Eastern District of Texas (“District Court”).  The paycheck transparency provisions were upheld by the District Court and remain enforceable.  Following the District Court’s Order, on October 25, 2016, federal executive agencies issued guidance to their senior procurement officials to halt implementation of the Fair Pay and Safe Workplaces regulations enjoined by the Court, and confirmed that the paycheck transparency provisions (FAR 52.2005, 22.2007(d) and clause 52.222-60) remain in effect.

As reported, the government is still weighing whether to appeal the injunction.  Although it seems likely that the government will appeal the District Court’s order and argue that the District Court does not have the authority to issue the injunction on a nationwide basis, it remains uncertain whether the government could actually obtain this relief.  When faced with a similar TX federal district court nationwide injunction of executive action and regulation in the context of immigration, the U.S. Court of Appeals for the Fifth Circuit upheld the district court’s authority to issue that nationwide injunction.  On review, the Supreme Court split 4-4, leaving the Fifth Circuit’s decision in place.  Effectively, this means that TX federal district courts and the Fifth Circuit can stall the administration’s desired policies on a nationwide basis until the Supreme Court acquires another Justice.  Because we are in an election year and do not know the identity of the next Supreme Court Justice or when that Justice would be confirmed, the ultimate outcome of this injunction remains elusive at this time.  However, even with some legal uncertainty, we anticipate that most government contractors would prefer to forego all but the paycheck transparency requirements until there is a greater likelihood that the enjoined regulations will be upheld than exist at this time.  Indeed, even beyond the strength of the substantive arguments, the District Court briefing and oral argument made clear that had the regulations had gone into effect, the government was not yet ready to accept any reports of purported “violations” because the electronic portal to receive such data was not yet complete. 

Continue reading "Trade Associations Obtain Nationwide Injunction Against Portions of the “Fair Pay and Safe Workplaces” Regulatory Scheme, and Agencies Stand Down (For Now)" »

Federal Court Approves $14.7 Billion Volkswagen Settlement

Torrence_jpgBy Allison Torrence

Tailpipe
On October 25, 2016, Judge Charles Breyer of the U.S. District Court for the Northern District of California approved a $14.7 billion partial settlement in the Volkswagen “defeat device” MDL litigation. The settlement resolves injunctive relief claims brought by the United States and the State of California, as well as consumer class action claims related to Volkswagen’s 2.0 liter vehicles.

The United States had sued Volkswagen (and its subsidiaries, including Audi and Porsche) in January 2016, alleging that over 500,000 vehicles sold by Volkswagen in the United States from 2009 through 2016 contained software, known as a “defeat device”, that senses when the vehicle is being tested for compliance with emission standards. The defeat devices produced compliant emission results during testing but then reduced the effectiveness of emission control systems during normal driving. The United States alleged that the defeat devices cause increased NOx emissions up to 40 times allowable levels in 2.0 liter vehicles and 9 times allowable levels in 3.0 liter vehicles.

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Trade Associations File Suit Challenging the “Fair Pay and Safe Workplaces” Regulatory Scheme as Unlawful and Unconstitutional

Bandza Sigel
 
By Alexander J. Bandza and Gabrielle Sigel
 
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As we previously reported here, the Department of Labor (DOL) and the Federal Acquisition Regulatory Council (FAR Council) issued the Final Rule and Final Guidance implementing President Obama’s Fair Pay and Safe Workplaces Executive Order (E.O. 13673), signed on July 31, 2014. Despite strenuous objections, including from groups representing defense contractors, on August 25, 2016, DOL and FAR Council finalized the rules (the “Fair Pay Regulations”) by which those who seek to contract with the government (contracts over $500,000) must disclose alleged and final wage and labor law “violations,” including non-final agency allegations of labor law violations and determinations subject to appeal.  Certain portions of the Fair Pay Regulations take effect as early as October 25, 2016.

In Associated Builders and Contractors of Southeast Texas v. Fed. Acquisition Regulatory Council, Case No. 1:16-cv-00425, E.D. Tex. (filed Oct. 7, 2016), Associated Builders and Contractors of Southeast Texas (“ABC-Texas”), Associated Builders and Contractors, Inc. (“ABC”), and the National Association of Security Companies (”NASCO”) filed suit in federal district court against members of the DOL and FAR Council challenging E.O. 13673 and the Fair Pay Regulations.  ABC and ABC-Texas represent nearly 21,000 member construction contractors and related firms in Texas and throughout the country.  NASCO represents companies that employ more than 400,000 trained security officers.

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170 Nations Agree to Legally Binding Accord to Limit Global Warming HFCs

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By Allison Torrence

On October 15, 2016, representatives from 170 countries concluded negotiations in Kigali, Rwanda that resulted in a legally binding accord to limit hydrofluorocarbons (HFCs) in an effort to combat climate change. HFCs are chemical coolants used in air conditioners and refrigerants. Chemical companies developed HFCs in the late 1980s after the Montreal Protocol banned ozone-depleting coolants called chlorofluorocarbons (CFCs). HFCs do not harm the ozone layer, but they have 1,000 times the heat trapping potential of carbon dioxide.

The Kigali accord is an amendment to the 1987 Montreal Protocol (which was ratified by the U.S. Senate during the Regan Administration). Thus, the Kigali accord has the legal force of a treaty without further ratification by the current U.S. Senate. Although HFCs make up a small percentage of greenhouse gasses in the atmosphere, because of their extremely high warming potential, the reductions called for in the Kigali accord will lead to the reduction of the equivalent of 70 billion tons of carbon dioxide, which is approximately two times the amount of carbon dioxide emitted globally each year.

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Ninth Circuit Denies Rehearing Petition in Novel Aerial Deposition CERCLA Case

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By Allison Torrence

The State of Washington and the Confederated Tribes of the Colville Reservation are trying to expand the reach of CERCLA, but have been blocked, once again, by the U.S. Court of Appeals for the Ninth Circuit. The case of Pakootas v. Teck Cominco Metals, Ltd., Case No. 15-35228 (9th Cir. Panel decision July 27, 2016), involves claims by the State of Washington and the Tribes against a smelter located in British Columbia. In August, a three-judge panel of the Ninth Circuit ruled in favor of the defendants in this case. Yesterday, the full Ninth Circuit denied the plaintiffs’ petition for rehearing.

The case involves hazardous air emissions (lead, arsenic, cadmium and mercury), which were emitted from the smelter’s smokestack, carried by wind, and deposited on the Upper Columbia River Superfund Site in Washington. Plaintiffs maintained that such air emissions constituted “disposal” of hazardous waste under CERCLA, thus the smelter had arranged for the disposal of hazardous waste pursuant to CERCLA and was a responsible party at the Superfund Site.

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Paris Climate Agreement Will Enter Into Force On November 4th

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By Allison Torrence

UNFCCC3As we previously reported, two weeks ago, UN Secretary-General Ban Ki-moon announced that more than 55 countries, including the United States and China, had formally joined the Paris Climate Agreement, officially crossing one of the two thresholds required to bring the Agreement into force. The Paris Climate Agreement was adopted by the 195 Parties to the UN Framework Convention on Climate Change (UNFCCC) at a conference known as COP21 in December 2015. It will enter into force 30 days after at least 55 countries, accounting for 55% of global greenhouse gas emissions, deposit their instruments of ratification.

On Wednesday, October 5th, the UN announced that the European Union and 10 additional countries have deposited their instruments of ratification. Now, countries that have ratified the Paris Climate Agreement account for more than 55% of global greenhouse gas emissions, surpassing the second requirement for the Agreement to enter force. Thus, the Paris Climate Agreement will enter into force on November 4, 2016.

UN Secretary-General Ban Ki-moon made a statement to mark this “momentous occasion”:

“Global momentum for the Paris Agreement to enter into force in 2016 has been remarkable. What once seemed unthinkable is now unstoppable.

Strong international support for the Paris Agreement entering into force is testament to the urgency for action, and reflects the consensus of governments that robust global cooperation is essential to meet the climate challenge.”

The Paris Climate Agreement calls on countries to combat climate change and to accelerate and intensify the actions and investments needed for a sustainable low-carbon future, as well as to adapt to the increasing impacts of climate change. Specifically, governments must take actions to limit global temperature rise to well below 2 degrees Celsius, and to strive for 1.5 degrees Celsius. The Paris Climate Agreement also requires developed countries fund $100 billion in investments to assist developing countries meet the Agreement’s goals.

More information about the Paris Climate Agreement is available at the UNFCCC website.