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ASTM E1527-21 for Phase I ESAs Satisfies All Appropriate Inquiries Rule


ENVIRONMENTAL COMPLIANCE


Federal


EPA Recognizes ASTM E1527-21 as Satisfying All Appropriate Inquiries Rule

December 20, 2022


ASTM International's E1527-21 Standard Practice on Phase I Environmental Site Assessments (ESAs) has been recognized by the U.S. Environmental Protection Agency (EPA) as satisfying the all appropriate inquiries (AAI) rule (40 CFR Part 312). EPA will no longer recognize both the older version of the standard, E1527-13, and the newer version, E1527-21. Nevertheless, users can continue to use the older standard, E1527-13, until Feb. 13, 2024, while they become familiar with the new standard.


EPA acknowledged in its response to comments that the ASTM 1527 standard is not an EPA regulation and that use of the E1527 standard is not required to comply with AAI. This Holland & Knight alert highlights some of the key improvements as well as areas where deviation from the language in the E1527-21 standard may be appropriate.


Source: Holland & Knight


EU Reaches Provisional Agreement on Carbon Border Adjustment Mechanism

December 16, 2022


Both the European Union (EU) and the U.S. have recently taken steps toward implementing some form of a carbon border adjustment mechanism (CBAM). Several countries and the EU have long considered enacting legislation that imposes a fee on carbon-intensive goods to reach their own climate goals while protecting domestic industry. Carbon border adjustment mechanisms seek to accomplish this goal by imposing a carbon fee on imports of certain products from countries without equivalent greenhouse gas (GHG) reduction mechanisms for the relevant product or sector. This week, the EU took a key step towards implementing a CBAM for EU member states that could apply to imports of certain products from the U.S. and other countries that have GHG reduction programs that are less stringent than those imposed within the EU, such as the EU Emissions Trading System (EU ETS).


Source: The National Law Review


EPA Proposes Restrictions on the Use of Certain Hydrofluorocarbons

December 16, 2022


EPA is proposing regulations that would implement provisions of the American Innovation and Manufacturing (AIM) Act of 2020. The proposed regulations would restrict the use of hydrofluorocarbons (HFCs) in specific sectors or subsectors in which they are used, establish a process for submitting petitions for restrictions on the use of regulated substances, and establish recordkeeping and reporting requirements.


Source: EPA


Battle Lines Drawn on Electric Vehicle Tax Credit Specifics

December 15, 2022


As the Internal Revenue Service (“IRS”) begins issuing guidance for every tax provision of the Inflation Reduction Act (“IRA”), efforts have ramped up by foreign governments and automakers on the strict battery component sourcing requirements under the 30D Clean Vehicle Credit program under the law. Under the 30D provision, for an electric vehicle (“EV”) to qualify for the full $7,500 rebate, it must adhere to strict U.S. final assembly and U.S. battery component requirements.


Source: The National Law Review


Biden Administration Makes $50 Million in Funding Available for Orphaned Well Clean Up on Tribal Lands

December 9, 2022


This article follows up on two prior articles published by Hunton Andrews Kurth LLP attorneys focusing on the Department of the Interior’s (“DOI”) funding of state orphaned well programs[1] and the Biden Administration’s promise of a greater emphasis on consulting with indigenous people and acknowledging their communities’ cultures, customs, sacred sites, and historical knowledge in the contexts of environmental planning, sustainability, and justice, and in ongoing and forthcoming federal decision making and regulatory rulemaking.[2]


Source: The National Law Review


EPA Proposes New NSPS Subpart for Crude Oil and Natural Gas Facilities

December 7, 2022


EPA is issuing a supplemental proposal to the standards proposed on November 15, 2021 (86 FR 63110), which are intended to significantly reduce emissions of greenhouse gases (GHGs) and other harmful air pollutants from the Crude Oil and Natural Gas source category. The proposed rule would add a new NSPS Subpart that would apply to new, modified, and reconstructed emission sources across the Crude Oil and Natural Gas source category, including the production, processing, transmission, and storage segments, for which construction, reconstruction, or modification commenced after November 15, 2021 (40 CFR 60, Subpart OOOOb). The new subpart would include methane and VOC standards for a new emission source, dry seal centrifugal compressors, and would strengthen standards for sources of leaks, provide greater flexibility to use innovative advanced detection methods, and establish a super emitter response program.


Source: EPA


EPA Expands Toxic Chemicals Reporting List

December 5, 2022


EPA is expanding the list of toxic chemicals subject to reporting requirements under EPCRA and the Pollution Prevention Act (PPA) with the addition of twelve chemical substances.


Source: EPA


Updated NAICS Codes for TRI Reporting

December 1, 2022


EPA published a Final Rule on November 28 to update the list of NAICS codes that facilities must use when submitting Toxics Release Inventory (TRI) reporting required under the Emergency Planning and Community Right-to-Know Act (EPCRA). Every five years, the list of NAICS codes is updated by the Office of Management and Budget (OMB). A US EPA rulemaking to revise the “Toxic Chemical Release Reporting” regulations in 40 CFR Part 372 typically follows. Facilities that submit TRI reporting must use the updated codes for reports due July 1, 2023.


Source: EPA


Proposed Toxic Release Inventory Changes Would Impact Reporting of PFAS and Supplier Notification Requirements

December 1, 2022


On December 5, 2022, the U.S. Environmental Protection Agency (EPA) proposed to modify Toxic Release Inventory (TRI) reporting to increase reporting for listed per- and polyfluoroalkyl substances (PFAS) by identifying them as Chemicals of Special Concern. EPA also proposed to expand supplier notification requirements for all Chemicals of Special Concern. The proposed changes are sweeping in nature and could affect over 180 chemicals – including the elimination of certain exemptions from TRI reporting.


Companies that currently file TRI reports, or rely on exemptions from TRI reporting, should ensure they understand the potential impacts and costs to their business and consider filing comments on the proposed rulemaking, or joining industry comments or challenges. Comments are due on or before February 3, 2023.


Source: Beveridge & Diamond


Texas


TCEQ Tier II 2022 Annual Reports Now Open

December 6, 2022


The Tier II Annual reporting season in Texas covering calendar year 2022 has officially begun, with users now having the ability to start their draft 2022 Annual report prior to the beginning of the new year. These reports can be submitted January 1st, 2023 at the earliest. All 2022 Tier II Annual reports in Texas have a submission due date of March 1st, 2023.


Training classes are still available to assist users with navigating the Tier II reporting process and can be signed up for on our Trainings page. Live trainings have limited class capacity, but recordings of both the Refresher and Full training class will be available soon.


Source: TCEQ


Industrial and Hazardous Waste Facility Viewer

December 1, 2022


The new Industrial and Hazardous Waste Facility Viewer is now available alongside other TCEQ Geographic Data Viewers. The IHW Facility Viewer is an interactive map that allows users to locate and find information about industrial and hazardous waste facilities in Texas.


Source: TCEQ


Commercial Management Facilities for Hazardous and Nonhazardous Industrial Solid Waste, GI-225

December 1, 2022


TCEQ has updated the list of Commercial Management Facilities for Hazardous and Nonhazardous Industrial Solid Waste in October 2022. This guidance document provides a directory of commercial management facilities, by region, and consists of facility contact information, type of facility, and waste types accepted.


Source: TCEQ


Emissions Inventory Workshop

December 1, 2022


TCEQ is hosting a hybrid workshop on January 26, 2023, with information to prepare for the 2022 Emissions Inventory reporting year. Topics will include basic terms and concepts, methodologies for Volatile Organic Compounds emissions, and setting up a web account for web-EI reporting.


Source: TCEQ


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HEALTH & SAFETY COMPLIANCE


Enhanced Safety Provisions for Lithium Batteries Transported by Aircraft

December 22, 2022


PHMSA is revising the Hazardous Materials Regulations for lithium cells and batteries transported by aircraft to be consistent with the previously published Interim Final Rule (84 FR 8006) which responded to congressional mandates; prohibited the transport of lithium-ion cells and batteries as cargo on passenger aircraft; required lithium-ion cells and batteries to be shipped at not more than 30 percent state of charge aboard cargo-only aircraft when not packed with or contained in equipment, and limited the use of alternative provisions for smaller lithium cell or battery shipments to one package per consignment. Additionally, the final rule provides editorial amendments and modification of certain provisions including marking requirements, requests for an extension of compliance dates, and exceptions for lithium cells or batteries used for medical devices with approval by the Associate Administrator.


Source: DOT/PHMSA


Hazardous Materials: Frequently Asked Questions—Applicability of the Hazardous Material Regulations

December 13, 2022


DOT/PHMSA released hazardous materials FAQs on December 9, 2022 in the Federal Register. This first Q&A focuses on the applicability of the Hazardous Materials Regulations (HMR)—who must comply with the regulations and what those rules cover.


Source: Lion


FMCSA Proposes Clarification to the Applicability of Emergency Exemptions

December 9, 2022


FMCSA is proposing to clarify the scope of regulations from which relief is provided for motor carriers when an emergency condition has been declared. FMCSA is also proposing revisions to the process to request extensions for automatic emergency exemptions.


Source: DOT


Pipeline Safety: Safety of Gas Transmission Pipelines: Repair Criteria, Integrity Management Improvements, Cathodic Protection, Management of Change, and Other Related Amendments

December 8, 2022


DOT/PHMSA has deferred enforcement of the regulatory rules from August 24, 2022, the final rule stipulating gas transmission pipeline repair criteria and other integrity management improvements, for nine additional months. The effective date previously set as May 24, 2023, has been extended to February 24, 2024.


Source: DOT/PHMSA


USPS Revises Publication 52 Hazmat Postal Regulations

December 7, 2022


Effective December 1, the US Postal Service has revised the regulations for mailing hazardous materials, including some electronic devices containing or packed with lithium batteries.


Effective immediately, the USPS Publication 52 standards for Hazardous, Restricted, and Perishable Mail are revised as follows:


  • Shippers/mailers must separate hazardous materials requiring marks or labels from other mail.

  • The mailing of pre-owned, damaged, or defective electronic devices containing (or packed with) lithium batteries is restricted to surface transportation only.

  • Specific markings are required on mail containing lithium batteries in or with pre-owned, damaged, or defective electronic devices.


Source: USPS


Employers Must Update Injury Tracking Application (ITA) Account and Submit OSHA Form 300A Summaries Through Login.gov

December 6, 2022


OSHA requires employers to upload certain information to its Injury Tracking Application (ITA) each year by March 2. This year, OSHA is transitioning employer login information from individual accounts to “login.gov” and all employers must connect their accounts prior to March 2.


Source: Seyfarth Shaw


OSHA Continues to Target Employers who Utilize Powered Industrial Vehicles with New Regional Emphasis Program

December 1, 2022


Powered Industrial Trucks (forklifts) are the focus of a new OSHA Regional Emphasis Program (REP). The program covers Colorado, Montana, North Dakota, and South Dakota—the federal-OSHA states in region 8.


Source: Seyfarth Shaw


SUSTAINABILITY, ESG, AND CLIMATE ACTION


ISSB Allows Additional Year for Scope 3 Emissions Disclosure

December 20, 2022


The ISSB tentatively decided to introduce reliefs for an entity disclosing its Scope 3 GHG emissions, specifically, a temporary exemption from the requirement for the entity to disclose its Scope 3 GHG emissions for a minimum of one year after the effective date of IFRS S2.


Source: IFRS


FTC Seeks Input on Potential Updates to Its Green Guides

December 19, 2022


The Federal Trade Commission recently voted to obtain public comment on potential revisions to its Guides for the Use of Environmental Marketing Claims (Guides). The purpose of the Guides is to prevent deception of consumers from false or misleading environmental advertising and labeling claims. The official notice requesting comment is likely to be published in the Federal Register in mid-January 2023.


Source: Holland & Knight


DOL Issues Final Rule Amending Investment Duties Regulation – Provides New Guidance on Consideration of ESG Factors in Plan Investing

December 13, 2022


On November 22, the United States Department of Labor (“DOL”) released its final rule (the “Final Rule”) adopting certain revisions to its investment duties regulation under ERISA at 29 CFR Section 2550.404a-1 (the “Section 404a-1 Regulation”). The revisions in the Final Rule are intended to clarify the application to ERISA plan fiduciaries of the ERISA duties of loyalty and prudence in respect of investments and the use of written proxy voting guidelines and policies. The Final Rule clarifies that ERISA plan fiduciaries may consider climate change and environmental, social, and corporate governance (“ESG”) factors when making investment decisions and exercising shareholder rights for plans.


Source: The National Law Review


Indigenous Knowledge

December 6, 2022


The Federal Government recognizes the valuable contributions of the Indigenous Knowledge that Tribal Nations and Indigenous Peoples have gained and passed down from generation to generation and the critical importance of ensuring that Federal departments and agencies (Agencies) consideration and inclusion of Indigenous Knowledge are guided by respect for the sovereignty and self-determination of Tribal Nations; the Nation-to-Nation relationship between the United States and Tribal Nations and the United States trust responsibility; and the need for the consent of and honest engagement with Tribal Nations and Indigenous Peoples. The White House Office of Science and Technology Policy (OSTP) and the Council on Environmental Quality (CEQ) issued this guidance to assist Agencies in (1) understanding Indigenous Knowledge, (2) growing and maintaining mutually beneficial relationships with Tribal Nations and Indigenous Peoples needed to appropriately include Indigenous Knowledge, and (3) considering, including, and applying Indigenous Knowledge in Federal research, policies, and decision making. This guidance also identifies promising practices—based on agency experience and Tribal and Indigenous input—for collaborating with Tribal Nations and Indigenous Peoples, considering and applying Indigenous Knowledge in implementing statutory and regulatory requirements and respecting the decisions of Tribal Nations and Indigenous Peoples to engage or decline to participate in Federal processes, on their terms.


Source: White House


Opportunities to Accelerate Nature Based Solutions: A Roadmap for Climate Progress, Thriving Nature, Equity, & Prosperity

December 6, 2022


Nature plays an immense role in every aspect of our lives and offers untapped solutions to some of our biggest challenges. President Biden is shining a spotlight on these powerful opportunities. In one of his earliest actions, he set the nation’s first-ever conservation goal, respecting nature in its own right and recognizing nature’s critical role in the economy, national security, human health, equity, and the fight against climate change. On Earth Day, 2022, the President went even further, making protecting and restoring nature and using nature-based solutions a core tenant of our national policy. Executive Order 14072, Strengthening the Nation’s Forests, Communities, and Local Economies, directed this team to “submit a report to the National Climate Task Force to identify key opportunities for greater deployment of nature-based solutions across the Federal Government, including through potential policy, guidance, and program changes.”


Source: White House


Draft Biodiversity Standard Available for Public Consultation

December 5, 2022


A global public comment period is now underway to gather input on the exposure draft of the revised Biodiversity Standard. The proposed changes to GRI 304 aim to provide a comprehensive and globally applicable standard for biodiversity impacts, thereby enabling any organization – irrespective of location, focus or size – to publicly disclose its most significant impacts on biodiversity and how those impacts are managed.


Source: GRI


Federal Reserve on Climate-related Financial Risks

December 2, 2022


The Federal Reserve Board on Friday invited public comment on proposed principles providing a high-level framework for the safe and sound management of exposures to climate-related financial risks for large banking organizations.


The proposed principles would apply to banking organizations with more than $100 billion in total assets and address both the physical risks and transition risks associated with climate change. The proposed principles would cover six areas: governance; policies, procedures, and limits; strategic planning; risk management; data, risk measurement and reporting; and scenario analysis.


Source: ESG


Proposed Rule Requires Federal Contractors to Disclose Greenhouse Gas Emissions and Climate-Related Financial Risk

December 1, 2022


On November 14, 2022, the Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA) published a proposed rule that would amend the Federal Acquisition Regulation (FAR) to require Federal contractors that receive annual Federal contract obligations over a specified amount to disclose their greenhouse gas (GHG) emissions [1] and climate-related financial risk and set science-based targets to reduce GHG emissions.


Source: National Law Review


Charting The Global Energy Landscape to 2050: Emissions

December 1, 2022


At the end of COP27, concerns are growing that a 1.5º Pathway is getting out of sight. Our latest Global Energy Perspective offers important insight into how temperature increases vary across scenarios.


Source: McKinsey

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