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Climate Adaptation Plans – Will Words Be Translated to Actions? COP27, U.S., State, and Local Action Plans

Clients will have to adapt to the certainty of increased regulation at the international, federal, state and local levels to meet the aggressive carbon-reduction goals set by governmental authorities. John Doerr in his recent book “Speed & Scale, An Action Plan for Solving our Climate Crisis Now” summarizes the actions he submits that politicians, industries and investors must undertake to reach net-zero by 2050. He begins his blueprint for action with an admonition from his 15-year-old daughter voiced at a dinner he hosted in 2006 after a screening of An Inconvenient Truth: “Dad, your generation created this problem. You better fix it.”

EPA Releases 2022 Climate Adaptation Implementation Plans

Following up on President Biden’s 2020 Climate Change Executive Order 14008 issued in his first week in office, EPA Administrator Michael Regan issued a policy statement on May 26, 2021 that directed all EPA offices to update their 2014 Climate Implementation Plans to:

Resurgence in Criminal Prosecutions for OSHA Workplace Safety Violations

A series of recent criminal prosecutions stemming from workplace fatalities in connection with OSHA’s worker safety laws underscore the Justice Department’s willingness to charge OSH Act crimes, even in the absence of other Title 18 offenses or other criminal charges.

Colorado’s Air Permitting Program Targeted From Multiple Fronts: Ozone Concerns Drive This Train

First came the whistleblowers’ letter from Colorado state agency staff to the Environmental Protection Agency’s (EPA) Office of the Inspector General (OIG). The EPA’s OIG referred the matter to EPA’s Region 8 office for review. Then came the Troutman Report requisitioned by the Colorado Attorney General.

U.S. Senate Approves $369 Billion to Address Climate Change

The compromise – the Inflation Reduction Act of 2022 – was announced on July 27, 2022, by Senate Majority Leader Chuck Schumer (D-New York) and Sen. Joe Manchin (D-West Virginia), and by a 51:50 party-line vote survived the August 6-7 “vote-a-rama” gauntlet in the full Senate. Calling it the “single biggest climate investment in U.S. history,” with a goal of reducing carbon emissions in the U.S. by up to 40% by 2030, the legislative summary says the bill will:

Proposition 65 Remains a Significant Cost of Consumer Products Business

For companies in the supply chain for consumer products sold in California, the California law known as Proposition 65 is well worth considering. Private enforcement of Prop. 65 is so widespread that many companies have been forced to learn about this law. For those still unaware of Prop. 65 and those aware but hoping they will not be targeted, taking proactive steps to address the law is likely the most economical path forward, both financially and in terms of company resource drain and stress.

Supreme Court Restricts EPA’s GHG Power Sector Authority. So, How Will EPA Deal with Climate Change, Now?

On June 30, 2022, the United States Supreme Court addressed Section 111(d) of the Clean Air Act and reversed a D.C. Circuit Court ruling that had struck down the Affordable Clean Energy Rule (ACE rule) (84 Fed. Reg. 32520) promulgated by the Environmental Protection Agency (EPA) during the Trump administration. See the Supreme Court decision here.

Drinking Water Suppliers Face Challenges After EPA Establishes Near Zero Health Advisory for PFAS

Drinking water systems that supply tap water need to begin preparing for how they will meet new National Drinking Water Standards set for proposal in Fall 2022 based on EPA’s recently issued Interim Health Advisory for perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) near zero. On June 15, 2022, EPA announced a new Interim Lifetime Health Advisory for PFOA at 0.000000000000004 g/L (4 parts per quadrillion) and for PFOS at 0.000000000000020 g/L (20 parts per quadrillion) in tap water.

EPA’s new advisory level is thousands of times more stringent than EPA’s 2016 Health Advisory of PFOA and PFOS at 70 parts per trillion and the Agency for Toxic Substances and Disease Registry’s current risk levels for PFOA: 78 ppt (adult) and 21 ppt (child), and PFOS: 52 ppt (adult) and 14 ppt (child).  And the new levels are significantly below any current laboratory detection or quantification limits, currently around 2 ppt.  Consequently, it defies logic how EPA expects drinking water supply systems to even currently assess PFAS levels in relation to the newly released levels.

Back to the Past: NEPA Rule Changes Restore Provisions

On April 20, 2022, in the first leg of a two-phase process, the Council on Environmental Quality (CEQ) issued its final rule amending its regulations for implementing the National Environmental Policy Act (NEPA).  To be effective May 20, 2022, the amendments restore provisions that were in effect for forty-two years before being modified in 2020 by the Trump administration. These “Phase 1” changes focus on the (a) purpose and need of a proposed action, (b) an agency’s NEPA procedures for implementing the rules, and (c) the definition of “impacts’ and “effects.”

OSHA to Publicize Employers’ Injury and Illness Data Under Proposal, Announces Separate Enforcement Focus

With a stated goal of increasing transparency and preventing workplace injuries and illness, employers across a wide spectrum of industries need to be aware of two separate recordkeeping and reporting efforts by OSHA.  On April 5, 2022, the agency outlined a new enforcement initiative for employers failing to submit 300A annual electronic submissions as required under 29 CFR 1904.41.  OSHA’s new enforcement priority comes on the heels of the agency’s March 28, 2022, proposed rule that would significantly alter the manner and methodology of workplace injury and illness reporting.

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