RCRA/CERCLA Updates

EPA PROPOSES TOTAL REVAMP OF ALL RCRA RECYCLING

The July 22, 2011 Federal Register proposing changes to the definition of solid waste and how EPA will govern recycling is far broader in its scope than was originally anticipated. 76 Fed. Reg. 44094-44154. Many have not paid adequate attention to the July 22, 2011 Federal Register proposed rule. The scope of this proposal is massive, as EPA proposes significant new conditions to apply to most (32) of the existing RCRA recycle exclusions. Persons using any one of 34 RCRA recycle exemptions (32 old and 2 new) will have to prove their recycling meets new containment standards, new legitimacy standards and will need to prepare written documentation of legitimacy arguments, provide notice to RCRA regulators of the recycling exemptions being used, and create new records proving a lack of speculative accumulation. [Almost all SQGs and LQGs will be impacted, as will a significant number of CESQGs.] In these sixty Federal Register pages are not only the expected toughening of some of the 2008 Bush EPA deregulatory provisions (the so-called “generator-control exclusion,” the “transfer-based exclusion, and the new “not a solid waste” petition process), but a surprising new stricter regulation of 32 existing exclusions. Some believe there is a disregard by EPA of the 1987 AMC I and 2000 ABR court cases, as EPA once again seeks to place a variety of restrictions on the very types of materials that those court decisions had indicated EPA did not have jurisdiction over.

Of greatest import for most generators, however, are the major new burdens proposed for existing exclusions, such as biennial notifications of the exemptions being used (with more specific written documentation as to how and for what materials they are used); a requirement for written proof (documentation) on speculative accumulation; a requirement to apply the new 260.43 legitimacy determination (with four now mandatory/tougher legitimacy factors) and to write up a white paper documenting how the company made its appropriate determination on each factor; and the new requirement to “contain” (with a tougher definition) all these recyclable materials in a manner preventing releases. While the EPA 2010 settlement with Sierra Club agreed to look at (1) the definition of “contained”; (2) notification for the new 2008 exclusions; (3) the definition of legitimacy; and (4) the transfer-based exclusion, what EPA has done goes far beyond that.

With respect to recycling exclusions, EPA long has recognized a Asecondary material@ could make an excellent feedstock or ingredient, while in other cases EPA concluded that it is a pretty poor feedstock or ingredient merely being recycled as a Asham@ to avoid hazardous waste disposal costs. EPA legitimacy criteria guidelines were developed to address a concern EPA has that someone is just claiming a material is being used as a feedstock or ingredient in a manufacturing process, when really all the recycling proponent may be doing is avoiding waste disposal costs. EPA long stated that this is almost always a judgment call as to whether it is legitimate or sham recycling, and these judgment calls have been made by state RCRA regulators and inspectors for decades. EPA previously never created a list of mandatory factors that all had to be met before a determination could be made that recycling was legitimate, instead noting a number of factors to be considered on a case-by-case basis under the totality of the recycling circumstances.

For the pre-2008 recycling options, a number of criteria were to be considered on a case-by-case basis, in seeking objective indicators of the generator/recycler’s intent. The April 29, 1989 memorandum from Sylvia Lowrance so frequently referred to by EPA as the key guidance on legitimacy supports this concept of case-by-case determination: “[w]ith respect to the issue of whether the activity is sham recycling, this question involves assessing the intent of the owner or operator [to properly recycle or to discard] by evaluating circumstantial evidence, always a difficult task.” RO 11426. The attachment to that Lowrance memorandum again indicates that the legitimacy evaluation involves “trying to interpret intent from circumstantial evidence showing mixed motivation, always a difficult proposition.” Id. The 1989 Lowrance memorandum asks state RCRA regulators in programs with primacy to answer numerous questions and to consider all the facts and circumstances of a particular recycling situation in order to determine the generator’s intent in recycling. The presence of one piece of circumstantial evidence (or the absence of one piece) is not determinative in a situation involving circumstantial evidence. All the evidence on all the Lowrance “to-be-considered” criteria must be considered together. In a letter dated Dec 21, 1990 written by David Brussard of EPA to Earl Bouse of Pacific Basin Resources (RO 11573), EPA again pointed out that legitimacy “is a site-specific determination that is more appropriately made by the regulating agency.”

The legitimacy revisions (in the July 22, 2011 Federal Register) propose the following changes: (1) applying the codified definition retroactively to virtually all recycling activities regulated under 40 CFR Parts 260-266; (2) creating four predicate “legitimacy” tests that independently must be satisfied; and (3) requiring documentation of each and every one of the four independent “legitimacy” tests that must be met or else a secondary material will be considered discarded. EPA has proposed that virtually all existing RCRA recycling options be subjected to the four new §260.43 legitimacy tests (four mandatory tests, all of which must be met independently or the secondary material being recycled will now be considered a “hazardous waste.”) Also, in new §260.43(b) proposed on July 22, 2011, EPA sets out a new documentation requirement for legitimacy, requiring a written description of how all four independent and mandatory legitimacy tests are met (or a written legitimacy variance from the regulatory agency). EPA’s July 22, 2011 proposal retroactively would require thousands upon thousands of facilities using various recycling exclusions (which have been used for decades to now prepare a legitimacy “white paper” for each recycle exclusion used for each recycle stream at each generator’s facility.

With respect to the new “containment” requirement to be applied retroactively to all existing RCRA exclusions, EPA now expressly states that “[h]azardous secondary materials that are not contained … are not destined for recycling and are clearly discarded.” 76 Fed. Reg at 44113. EPA essentially is proposing a new definition of “waste” based on whether or not EPA-sanctioned levels of “containment” are met, which EPA intends to apply to virtually all recycling options under RCRA (prospectively and retrospectively). In the July 22, 2011 Federal Register, EPA achieves this with a new definition of “contained” at 40 CFR §260.10 that all RCRA recycling must meet, to read as follows:

“Contained means a unit (including a land-based unit as defined in this subpart) that meets the following criteria:

(1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary materials, to prevent releases of hazardous secondary materials to the environment. Such releases may include, but are not limited to, releases through surface transport by precipitation runoff, releases to groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures;
(2) The unit is properly labeled or otherwise has a system (such as a log) to immediately identify the hazardous secondary materials in the unit; and
(3) The unit does not hold incompatible materials and addresses any potential risks of fires or explosions. Hazardous secondary materials in units that meet the applicable requirements of 40 CFR parts 264 or 265 are considered to be contained.”

76 Fed. Reg at 44148-44149. Another place where EPA pushes “containment” as the new key principle in determining what is, or is not, a “waste” is in its proposal to make factor three in the new definition of “legitimacy” mandatory, with the understanding that if something is not adequately “contained” as defined by EPA, it is no being managed as a valuable commodity and thus is not “legitimately” being reclaimed or recycled. EPA goes on to state that “under today’s proposal, a hazardous secondary material is contained if it is managed in a unit, including a land-based unit as defined in 260.10, that meets the following criteria: (1) The unit is in good condition, with no leaks or other continuing or intermittent unpermitted releases of the hazardous secondary materials to the environment, and is designed, as appropriate for the hazardous secondary material to prevent releases of the hazardous secondary materials to the environment. Such releases may include, but are not limited to, releases through surface transportation by precipitation runoff, releases to groundwater, wind-blown dust, fugitive air emissions, and catastrophic unit failures….”

76 Fed. Reg at 44114. EPA takes the position that if the definition of “contained” is not met, that somehow all associated secondary materials are automatically transformed into wastes (“discarded” materials):

“This proposed definition specifies factors which, if met, demonstrate that the hazardous secondary materials in a unit are handled as valuable raw materials, intermediates, or products and thus are not being discarded.”

76 Fed. Reg. at 44114. EPA explicitly proposes to retroactively apply this new “containment” standard for determining what is a “discard” (along with a related and newly codified legitimacy requirement) to 32 existing (and long-standing) RCRA exclusions:
“EPA emphasizes that we are not reopening comment on any substantive provisions of the regulatory exclusions or exemptions. The inclusion of requirements for legitimacy, containment, and notification are strictly meant as means to better enforce the regulations. Moreover, EPA believes that the containment condition–as with the legitimacy criteria–is implicit in all of the regulations to which it would apply. If secondary material is not contained when it is being recycled, it is simply being discarded.

As part of the 2008 DSW final rulemaking, we reviewed the recycling studies and public comments in order to develop conditions that defined discard of hazardous secondary materials. Four conditions required for the generator-controlled exclusion in 40 CFR 261.4(a)(23)–legitimate recycling, no speculative accumulation, containment, and notification–constitute what we believe to be the minimum requirements necessary to define when recycled hazardous secondary materials are not discarded. Therefore, it seems prudent to review past exclusions and exemptions to ensure these regulatory provisions clearly require these newly codified standards.

Specifically, we are requesting comment on codifying the legitimate recycling standard in 40 CFR 260.43, additional recordkeeping requirements in the speculative accumulation standard in 40 CFR 261.1(c)(8), the contained standard in 40 CFR 260.10, and the notification provision in 40 CFR 260.42 for 32 regulatory provisions that exclude or exempt certain types of recycling from full Subtitle C regulation. A list of these 32 regulatory provisions can be found below. The new legitimacy standard would apply to all regulatory provisions except for 40 CFR 261.7, because it involves determining whether residues in containers are regulated, and no hazardous secondary material is being reclaimed. The contained standard and notification condition would apply to all provisions, although facilities operating under provisions that already contain specific regulatory requirements would have to continue meeting those requirements.”

76 Fed. Reg. at 44138-44139. The comment period closed on October 20, 2011.

This is just a taste of some of the key changes that will come to RCRA if this rule goes final. The new justifications and tests that must be met for all engaged in waste recycling under RCRA exclusion, plus new paperwork requirements, will be significant.

MANUFACTURER OF EQUIPMENT THAT POLLUTES NOT RCRA LIABLE:

RCRA Contributing to Contamination Case Decided by Ninth Circuit August 1, 2011

Hinds sued the manufacturers of dry cleaning equipment under the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. §§ 6901 et seq., arguing that citizen suits to require assistance with cleanup are allowed against “any person . . . who has contributed or who is contributing to the past or present handling, storage, treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.” 42 U.S.C. § 6972(a)(1)(B). The lower court held that Hinds’s allegations that the manufacturers contributed to waste disposal, by the design of machines that generated waste and by the instructions they gave on use of these machines, were insufficient as a matter of law to support a civil action under RCRA because all of the defendant manufacturers’ alleged contributions were passive. The 9th Circuit affirmed, stating “We hold that, for RCRA liability, ‘contribution’ requires more active involvement than was alleged as to the defendant manufacturers” and further that “to state a claim predicated on RCRA liability for “contributing to” the disposal of hazardous waste, a plaintiff must allege that the defendant had a measure of control over the waste at the time of its disposal or was otherwise actively involved in the waste disposal process. Mere design of equipment that generated waste, which was then improperly discarded by others, is not sufficient.”

NINTH CIRCUIT ISSUES DETAILED OPINION on CERCLA ARRANGER LIABLITY (see attached)

July 26, 2011
This opinion follows on the 2009 U.S. Supreme Court BNSF opinion on what it takes to prove “arranger” liability under CERCLA. In this latest “arranger” case, there was an effort to hold the manufacturer of a dry cleaning machine liable for the standard perchloroethylene (“PCE”) soil contamination so frequently found at dry cleaner sites. Often, the dry cleaner is financially unable to fund the cleanup, and there is an effort to look for deeper pockets. That has included efforts to get municipalities for PCE leaks out of sanitary sewer lines and, as described in this case, efforts to get the dry cleaning machine manufacturers on theories alleging those manufacturers must have known their customers would cause contamination, given the design and instructions.

This is a contamination case where the dry cleaner has sought contribution for the cost of cleanup from the machine manufacturer. As the Ninth Circuit described “We must decide, among other things, whether the manufacturer of a machine used in the dry cleaning process may be held liable for contribution to environmental cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act.” The case stemmed from the early 1980s when Team Enterprises, a large drycleaner, disposed of contact wastewater containing perc by pouring it down the sewer drain. After perc was discovered in the soil, the California Water Quality Control Board required cleanup. Team then sued Street and other drycleaning equipment manufacturers and perc producers seeking financial contribution to cleanup costs.In August, 2010, a United States District Court judge for the Eastern District of California entered a judgment in favor of Street, exonerating the company of any contribution liability. On appeal, the 9th Circuit stated: “the design [of the dry cleaning machine] indicates that Street was indifferent to the possibility that Team would pour perc down the drain.” In reading this July 26, 2011 ruling, the court takes the position that as an equipment manufacturer Street was not liable as an “arranger” because the company had not sold its product with the specific purpose of disposing of hazardous waste. The Ninth Circuit Court of Appeals stated “Team does not point to any evidence in the record that [R.R.] Street hooked up the Rescue 800 to the sewer, that [R.R.] Street continued to own the Rescue 800 used in Team’s store, that [R.R.] Street owned or possessed the PCE that Team disposed of, that [R.R.] Street made dumping wastewater down the drain a condition of its sales contract with Team, or that [R.R.] Street employees poured wastewater down the drain at Team’s stores. In short, there is a dearth of evidence indicating that Street exercised actual control over Team’s disposal. Accordingly, we conclude that Team has not presented evidence giving rise to a genuine dispute as to any material fact with respect to its CERCLA claim.” The Ninth Circuit noted “Although Team presented evidence that [R.R.] Street instructed it to pour wastewater containing PCE into a bucket, there is no evidence in the record that [R.R.] Street ‘instructed the dry cleaners to set up their equipment to discharge solvent-containing wastewater into the drains and sewers,’ or that [R.R.] Street ‘gave dry cleaners instructions to dispose of spilled [PCE] on or in the ground.’ . . . And despite Team’s protestations that once wastewater from the Rescue 800 had been poured into a bucket there was no alternative but to pour it down the drain, Team’s alleged lack of alternatives do not indicate that [R.R.] Street engaged in the “kinds of affirmative acts or instructions” that would ‘support a finding that [[R.R. Street] assisted in creating a nuisance.’” The Ninth Circuit said “. . .it is clear from the record that the Rescue 800 is not a disposal system. The Rescue 800 was not designed to route wastewater from the dry cleaning machines to the sewer; it was designed to filter and to recycle used PCE that otherwise would have been lost. We therefore agree with the district court’s conclusion that Team failed to present evidence giving rise to a genuine dispute as to any material fact with respect to its nuisance claim.” Mere design of equipment that generated waste, which was then improperly discarded by others, is not sufficient.”

The Intersection Of Greenhouse Gas Controls & RCRA – Hazardous Waste Deregulation Proposed for Carbon Dioxide (CO2) Streams Being Geologically Sequestered

Geologic Sequestration is the process of injecting carbon dioxide, typically captured from a power plant, into deep subsurface rock formations for long-term storage. EPA recently proposed a RCRA rule to exclude CO2 streams from Resource Conservation and Recovery Act regulations if they meet certain conditions, including injection for the purpose of geologic sequestration into specific wells regulated under the Safe Drinking Water Act. In December, 2010, EPA finalized Class VI Safe Drinking Water Act rules that set requirements for geologic sequestration, including the development of this new class of injection well called Class VI. The proposed August 8 RCRA exclusion, if finalized, would cover apply to generators, transporters, and owners or operators of treatment, storage, and disposal facilities engaged in the management of CO2 streams that would otherwise be regulated as hazardous wastes under the RCRA subtitle C hazardous waste regulations as part of geologic sequestration activities. This includes entities in the following industries: operators of CO2 injection wells used for geologic sequestration; and certain industries identified by their North American Industry Classification System (NAICS) code: oil and gas extraction facilities (NAICS 211111); utilities (NAICS 22); transportation (NAICS 48-49); and manufacturing (NAICS 31-33). EPA is proposing to exclude carbon dioxide streams from EPA’s hazardous waste regulations if they meet certain conditions, including injection for the purpose of Geologic Sequestration into specific wells regulated under the Safe Drinking Water Act. EPA concluded that the management of CO2 streams under the proposed conditions will encourage the deployment of carbon capture and storage (CCS) technologies. In developing the proposed rule, EPA determined that CO2 streams captured at power plants and industrial facilities destined for a UIC Class VI well for the purposes of geologic sequestration would be a RCRA solid waste, as it is a “discarded material” as defined in RCRA § 1004(27). In its discussion of the rule, EPA indicated there is the potential for some CO2 streams to meet the definition of a hazardous waste. EPA concluded that the management of CO2 streams under the proposed deregulatory RCRA rule conditions would facilitate geologic sequestration.

ASTM Issues Guidance On Continuing Obligations For Contaminated Properties

July 8, 2011
ASTM has promulgated a new standard that provides guidance on continuing obligations for contaminated property. The Standard Guide for Identifying and Complying With Continuing Obligations (E2790-11) informs property purchasers of certain continuing obligations to undertake to protect against liability under CERCLA, such as those pertaining to land use restrictions, institutional controls, and taking reasonable steps with respect to releases of chemicals of concern. The guide uses a four-step process to help a prospective purchaser identify and organize the continuing obligations, take any initial steps after purchasing the property, and monitor and maintain these obligations through the term of ownership.

Federal Agencies Sign Environmental Justice Memorandum of Understanding

On August 4, 2011, the Obama Administration announced that Federal agencies have agreed to develop environmental justice strategies to protect the health of people living in communities overburdened by pollution and provide the public with annual progress reports on their efforts. EPA Administrator Lisa Jackson, White House Council on Environmental Quality Chair Nancy Sutley, and U.S. Attorney General Eric Holder were joined by agency heads across the Administration in signing the “Memorandum of Understanding on Environmental Justice and Executive Order 12898.” The EJ MOU formalizes the environmental justice commitments that agencies have made over the past year and provided a roadmap for agencies to better coordinate their efforts. Specific areas of focus include considering the environmental justice impacts of climate adaptation and commercial transportation. The MOU also outlines processes and procedures to help communities more efficiently and effectively engage agencies as they make decisions.

July 6, 2011 – Definition of Solid Waste 2011 Proposed Rule – See attached.

For a material to be classified as a hazardous waste under the Resource Conservation and Recovery Act, it must first be defined as a solid waste. Thus the “definition of solid waste” is contained in the hazardous waste regulations at 40 CFR 261.2. In the 2008 Definition of Solid Waste (DSW) rule, EPA sought to define “solid waste” so as to exclude certain hazardous secondary materials when they are legitimately recycled, as long as certain conditions were met.

EPA on July 6, 2011 is proposing to revise the definition of solid waste to respond to certain complaints by the environmental community and by industry. Enviros complained about, and EPA identified, 218 recycling damage cases, of which EPA said more than half of which involved a hazardous secondary material that is associated with an existing recycling exclusion or exemption from the hazardous waste regulations.

One new proposed exclusion is for high-value solvents being sent for re-manufacturing into similar high value products. EPA is proposing this exclusion because it has found that significant energy savings and greenhouse gas reductions can be realized if the product life of these solvents is extended to more than a single use.

The 2011 DSW proposal includes provisions to address certain areas in the 2008 rule through increased transparency, oversight and accountability for hazardous materials recycling, including:

1. Replacing the transfer-based exclusion with an alternate hazardous waste standard with streamlined requirements for the generator. EPA claims this would allow EPA and the states to use the existing permitting process to verify that a facility can safely and legitimately recycle hazardous waste prior to beginning operations, and also give the affected community a voice in the decision-making process. This is likely to find more favor with the environmental community than with industry.

2. Tailoring the generator-controlled exclusion by more specifically defining when hazardous secondary materials are contained. This is not something the regulated community will welcome.

3. Ensuring that only legitimate recycling occurs by requiring that hazardous secondary materials have comparable levels of constituents as in-products made from raw materials. A petition process would be available to accommodate legitimate recycling that varies from the legitimate factors. This is the latest iteration of EPA’s “toxics along for the ride” policy.

4. Applying the regulatory definition of legitimate recycling, the contained standard, and the notification requirement to all hazardous secondary material and hazardous waste recycling. This is something EPA has been doing by policy, and now proposes to do by rule. This is a big change, as many who have used RCRA exclusions in the past to recycle out of RCRA have not made a formal legitimacy determination. This will be a fairly major change.

The proposal requests comment on retaining the generator-controlled exclusion, which excludes from the definition of solid waste recycling performed (1) at the generating facility, (2) within the same company, and (3) through certain types of tolling agreements, as long as certain conditions are met, including requiring legitimate recycling and containment of the hazardous secondary material.

In addition, for generators that send their hazardous secondary materials to off-site recyclers, the proposed alternative hazardous recyclable material standards include streamlined requirements that allow additional time to accumulate materials to help make recycling an economically competitive alternative to disposal. EPA is also requesting comment on a number of other proposed tailored regulatory alternative standards for generators that send their materials off-site for recycling.

EPA is requesting comment on a targeted exclusion for higher-value hazardous secondary materials which are being re-manufactured into commercial-grade products. The goal of the re-manufacturing exclusion is to encourage sustainable materials management by identifying specific types of transfers of hazardous secondary materials to third parties that, under appropriate conditions, can extend the useful life of a commercial-grade chemical. Management of these hazardous secondary materials would also have to meet the other conditions of the exclusion, including notification, recordkeeping, and storage standards.

EPA supposedly identified potential hazards that may pose risks to communities from the recycling of hazardous secondary materials and the types of facilities that may take advantage of the 2008 DSW rule through illegitimate recycling practices. The facility locations were then mapped by EPA against demographics of the surrounding communities as part of an environmental justice review. EPA’s review of the information found that communities adjacent to recycling facilities could be impacted from mismanagement due to gaps in the 2008 rule The environmental justice analysis found that the total population in potentially affected communities had a higher percentage of minority and low-income individuals as compared to the overall population both in the applicable state and in the nation as a whole. EPA incorporated these considerations in the revised proposed rule, as allowed under applicable authorities.

 

EPA will take comments once the proposed rule is published in the Federal Register.

Revision to Definitions of Solid Waste: New Proposal Imminent

Under subtitle C of RCRA, EPA promulgated a final rule on October 30, 2008, which revised the requirements regulating hazardous secondary materials when they are recycled via reclamation. On January 29, 2009, the Sierra Club filed a lawsuit challenging the rule in the U.S. Court of Appeals for the District of Columbia Circuit (DC Circuit), Docket No. 09.1041. In addition, Sierra Club submitted to the Administrator of EPA an administrative petition under RCRA section 7004(a), 42 U.S.C. 6974(a). The administrative petition requested that EPA repeal the October 2008 revisions to the 2008 DSW Final Rule and stay the implementation of the rule. EPA has agreed to issue a proposal to consider the issues raised in the petition. As a result, EPA plans to develop a proposed rule asking for comment on potential revisions to the October 2008 DSW Final Rule. Under the settlement agreement with the Sierra Club in the DC Circuit litigation, EPA has committed to a proposed rule on or before June 30, 2011 an to take final action on the proposed rulemaking on or before December 31, 2012. The DC Circuit approved the settlement agreement by order dated January 11, 2011. This subsequent proposed rule will apply to the regulation of reclamation of hazardous secondary materials under subtitle C of RCRA. This regulatory effort is part of a long-lived effort by EPA to address the difficult issue of then something is “discarded” such that RCRA hazardous waste rules have jurisdiction. Several court cases have pointed out deficiencies in the EPA program. The 2008 DSW rule and the upcoming June or July 2011 reproposal are just the latest efforts to draw the line as to what should and should not be subject to regulation as discarded material.

EPA Proposes Changes in Threshold Planning Quantities for Extremely Hazardous Substance Non-Reactive Solids in Solution Form – April 15,2011

EPA has proposed to revise the method for calculation of threshold planning quantities for 157 extremely hazardous substances that are non-reactive solid chemicals in solution form. 76 Fed. Reg. 21299 (April 15, 2011). Under the industry-favorable change, facilities with a solid EHS in solution would be subject to emergency planning requirements if the amount of the solid chemical on-site, when multiplied by 0.2, equaled or exceeded the lower published TPQ. EPA has proposed this change after reviewing data that show less potential for the solid chemical in solutio>n to remain airborne in the event of an accidental release. Previously, EPA assumed that 100% of the chemical could become airborne in the event of an accidental release. There are 157 EHS chemicals that are non-reactive solids at ambient temperature, which could potentially be affected by this change, if they are handled by facilities in a solution form. The affected chemicals are identified in Appendix C in the “Technical Support Document for Revised TPQ Method for Solids in Solution.” These 157 chemicals appear with two TPQs, (the higher TPQ is 10,000 pounds) in Appendix A and B of 40 C.F.R. Part 355. The change will not apply to the 12 solid EHS chemicals that are reactive solids (noted by footnote “a” in Appendix A and B of 40 C.F.R. Part 355).

Electronic Manifest System for Hazardous Waste

The Senate Environment & Public Works Committee in April, 2011 approved legislation (S. 710) to create an electronic manifest system for hazardous wastes which would modernize and streamline the existing paper-based system and, according to its proponents, provide a more easily enforceable chain of custody for such wastes. S. 710 is sponsored by Sen. Benjamin Cardin (D-MD) and Sens. John Thune (R-SD), Amy Klobuchar (D-MN), James Inhofe (R-OK) and Frank Lautenberg (D-NJ). Thune and Inhofe introduced a similar bill, S. 3871, in 2006, and the Senate passed an equally similar bill sponsored by Thune in 2008.

Honeywell to pay $11.8 million criminal fine for Illegal Storage of Corrosive Hazardous Waste
March 11, 2011

Honeywell International Inc. pleaded guilty on March 11, 2011 in federal district court to one felony offense for knowingly storing hazardous waste without a permit in violation of the Resource Conservation and Recovery Act. Honeywell was also sentenced today to pay a criminal fine in the amount of $11.8 million. Honeywell, a Delaware corporation with corporate headquarters in Morristown, N.J., owns and operates a uranium hexafluoride (UF6) conversion facility in Massac County, Ill., near the city of Metropolis and the Ohio River. Honeywell is licensed by the U.S. Nuclear Regulatory Commission to possess and otherwise manage natural uranium, which it converts into UF6 for nuclear fuel. The Metropolis facility is the only facility in the United States to convert natural uranium into UF6. At the Metropolis facility, air emissions from the UF6 conversion process are scrubbed with potassium hydroxide (KOH) prior to discharge. As a result of this process, KOH scrubbers and associated equipment accumulate uranium compounds that settle out of the liquid and are pumped as a slurry into 55-gallon drums. The drummed material, called “KOH mud” and consisting of uranium and KOH, has a pH greater than or equal to 12.5.

According to EPA, in November 2002, Honeywell shut down part of the wet reclamation process it used to reclaim the uranium from the KOH mud, knowing that previously accumulated drums of KOH mud and any additional drums of KOH mud generated thereafter would have to be stored onsite until such time as the wet reclamation process was restarted. According to EPA, Honeywell also knew that, because the pH of KOH mud generated at the facility was greater than or equal to 12.5, it is classified as corrosive hazardous waste under regulations issued pursuant to RCRA. Therefore, as EPA claimed, Honeywell needed, but did not have, a RCRA permit to store any drums of KOH mud at its facility longer than 90 days. In July 2007 Honeywell requested a modification of its RCRA permit from the Illinois Environmental Protection Agency (IEPA) so that it could store drums of KOH mud. IEPA issued Honeywell a modified permit in July 2008, allowing Honeywell to store drums containing KOH mud only in a KOH container storage area designed to contain any spills, leaks, or precipitation that accumulates in the drum storage area. According to EPA, by September 2008 Honeywell had accumulated more than 7,000 drums of KOH mud. In April 2009, EPA special agents conducted a search warrant and found what EPA claimed were nearly 7,500 illegally stored drums containing waste that was both radioactive and hazardous. EPA stated that Honeywell began storing the KOH mud drums in compliance with the terms of its RCRA permit in approximately March 2010.

In accordance with the terms of the criminal plea agreement, Honeywell will serve a five-year term of probation. As a condition of probation, Honeywell must comply with the terms of the interim consent order entered into with the Illinois Attorney General’s Office and the Illinois Environmental Protection Agency, filed on April 21, 2010, and any subsequent revisions, which imposes a schedule for the processing of KOH mud. As a further condition of probation, Honeywell must implement a community service project in the community surrounding the Metropolis facility, whereby Honeywell will develop, fund, and implement a household hazardous waste collection program and arrange for proper treatment, transportation, and disposal of this waste collected during at least eight collection events over a two year period, at a cost of approximately $200,000.

Recent RCRA Violation Sentencing

  • James Robert Soyars sentenced for improper asbestos handling – illegally disposing of bags of asbestos material
    February 9, 2011
    James Robert Soyars, Jr., age 46, of Denver, was sentenced yesterday by Chief U.S. District Judge Wiley Y. Daniel to serve 6 months in federal prison followed by 6 months of home detention with electronic monitoring for violating the Clean Air Act, U.S. Attorney John Walsh and EPA Criminal Enforcement Office Special Agent in Charge Lori Hanson announced. He was also ordered to pay $435,477 in restitution to Public Storage. Soyars, who appeared at the hearing free on bond, was ordered to report to a Bureau of Prisons facility within 15 days of designation.
  • International Air Carrier pleads and is sentenced for the illegal storage and disposal of hazardous waste
    January 19, 2011
    W.A. Ferrer, United States Attorney for the Southern District of Florida, Maureen O’Mara, Special Agent in Charge, U.S. Environmental Protection Agency, Criminal Investigation Division, Atlanta Area Office, and Marlies T. Gonzalez, Special Agent in Charge, U.S. Department of Transportation, Office of the Inspector General, announced that defendant Miami Air International, Inc., a Florida corporation with its headquarters at Miami International Airport, pled guilty and was sentenced yesterday in connection with the illegal storage and disposal of hazardous oxygen generators and personal breathing equipment (PBEs) that had been removed from commercial aircraft operated by MAII, contrary to the Resource Conservation and Recovery Act, in violation of Title 42, United States Code, Section 6928(d)(2)(A) and Title 18, United States Code, Section 2.
  • Prison sentence, fine imposed for defendant who left drums of hazardous substances on road
    December 14, 2010

    Andrew A. Costa, age 45, of Salt Lake City, who pleaded guilty in Federal court in August to one count of disposing of hazardous waste without a permit, will serve 21 months in Federal prison.

What About Spent Nuclear Fuel in the USA?

According to the GAO, spent nuclear fuel–considered very hazardous–is accumulating at commercial reactor sites in 33 states in the USA. The Nuclear Waste Policy Act of 1982, as amended, directs the Department of Energy to dispose of this waste in a repository at Yucca Mountain, Nevada. In June 2008, DOE submitted a license application for the repository, but in March 2010 moved to withdraw it. However, the Nuclear Regulatory Commission or the courts–as a result of lawsuits–could compel DOE to resume the licensing process. DOE decided to terminate the Yucca Mountain repository program because, according to DOE officials, it is not a workable option. DOE created a Blue Ribbon Commission to evaluate and recommend alternatives. Amid uncertainties about the status of the repository license, DOE took an ambitious set of steps to dismantle the Yucca Mountain program by September 30, 2010. DOE has taken steps to preserve scientific and other data, eliminated the jobs of all federal employees working on the program, and terminated program activities by contractors. DOE also disposed of property from its Las Vegas offices by declaring the property abandoned. Some of DOE’s shutdown steps would likely hinder progress, should NRC or the courts require DOE to resume the license application review process. Terminating the Yucca Mountain repository program could bring benefits, such as allowing DOE to search for a more acceptable alternative, which could help avoid the costly delays experienced by Yucca Mountain. However, there is no guarantee that a more acceptable or less costly alternative will be identified. It would also likely prolong the need for interim storage of spent nuclear fuel at reactor sites, which would have financial and other impacts. For example, the federal government bears part of the storage costs as a result of industry lawsuits over DOE’s failure to take custody of commercial spent nuclear fuel in 1998, as required. These costs exceed $15.4 billion and could grow by an additional $500 million a year after 2020.

EPA Once Again Delays Coal Ash Rule

EPA plans to give more opportunity to comment on its data and analysis of how to regulate the disposal of coal combustion residue amid criticisms from both environmentalists and industry that the initial proposal did not adequately assess its risk and economic impacts. This will push the coal ash rule back into 2012, before any final rule could be issued. Originally EPA was discussing finishing rulemaking by 2010, but the dollars at issue and the political consequences have made EPA extremely reluctant to make a final determination. EPA waste chief Mathy Stanislaus told the Energy & Commerce Subcommittee on Environment & Economy April 14, 2011 that “EPA plans to issue a notice of data availability in the next month or so to provide the public an opportunity to comment on certain information and data we have received during the public comment period.” So far, EPA’s proposal, issued in July 2010, has drawn more than 450,000 public comments, including strong opposition from industry groups which argue that regulating CCR subject to regulation under strict subtitle C requirements of RCRA would discourage its beneficial reuse in cement, gypsum and other products. Environmental groups argue that regulation under subtitle C rules is the only way for the EPA to adequately manage CCRs which if not properly contained, can harm the environment. EPA is going to duck the politics by further postponing any rulemaking through the vehicle of further comment and analysis.

Holder of Permit Not Enough of an “Owner” for CERCLA Liability – see attached

The Ninth Circuit held that a permit holder does not hold enough of an interest in property to be considered an “owner” under CERCLA and therefore is not liable under the law. The City of Los Angeles sued BCI Coca-Cola for environmental contamination allegedly caused by operation of the San Pedro Boat Works in the Port of Los Angeles. Whether Coca-Cola was liable under CERCLA was dependent on whether it was an owner or operator of the Boat Works when the hazardous substances were disposed at Berth 44. Los Angeles v. San Pedro Boat Works, 2011 WL 855858 (9th Cir. Mar. 14, 2011).Looking to common law, the court noted that California state courts have “consistently distinguished” title ownership from other possessory interests, such as revocable permits. Id. at 8. On this basis, the court concluded that the “holder of a permit for a specific use of real property is not the owner of that real property.” Id. at 7. The court noted that under California law, a holder of a revocable permit has only a possessory interest in the real property governed by the permit, an interest “which exists as a result of possession, exclusive use, or right to possession or exclusive use of land unaccompanied by the ownership of a fee simple or life estate in the property.” Given the common law distinction between ownership interest and possessory interest, the court concluded that Congress intended to give owners its common law meaning. Thus, owner liability under CERCLA does not extend to holders of mere possessory interest in land, such as permitees, easement holders, or licensees whose possessory interests have been conveyed to them by the owners of real property, when owners continued to maintain power to control the permittee’s use of the real property.

Schools and PCB-Containing Fluorescent Light Fixtures – Guidance on Leaks

EPA guidance recommends that schools take steps to reduce potential exposures to PCBs from older fluorescent lighting fixtures. Pre-1979 ballasts contain PCBs that can leak when the ballasts fail. Schools with older ballasts should examine them to see if they have failed or have PCB leaks. If a light ballast is leaking PCBs, federal law requires immediate removal and disposal of the ballast and disposal of any PCB-contaminated materials at an EPA-approved facility. To prevent exposure, school personnel should wear protective clothing, including chemically resistant gloves, boots, and disposable overalls while surveying the ballasts. Replacement should be performed in a well-ventilated area, or with supplemental ventilation or respiratory protection. EPA has also developed information on how to properly handle and dispose of PCB-containing fluorescent light ballasts and properly retrofit lighting fixtures to remove potential PCB hazards. See the guidance document at http://www.epa.gov/epawaste/hazard/tsd/pcbs/pubs/ballasts.htm. Learn how to handle and dispose of PCB-containing ballasts at http://www.epa.gov/epawaste/hazard/tsd/pcbs/pubs/waste.htm

ELECTRONICS DISPOSAL FEDERAL POLICY INITIATIVE

The increased use of electronics and technology in society brings the challenge of the improper handling and disposal of these products. Unwanted/discarded electronics include cell phone and computers/laptops and many other items. Discarded electronics comprise a rapidly growing part of municipal waste. Currently, there are no federal mandates that require electronics recycling or restrict unwanted electronics equipment from solid waste landfills in the United States. EPA does, however, control how cathode ray tube (CRT) monitors (e.g., from TV and computers) that are subject to hazardous waste regulation are managed domestically and requires notifications if CRT monitors are exported for recycling. Typically used electronics are exported to developing countries that lack capacity to manage them appropriately and result in negative impacts to human health and the environment. There are a few exceptions, such as exports to the reasonably well managed recycle process at the Trail Smelter in Canada.

A growing number of states are mandating collection and recycling of used electronics. In addition, there are now two electronics recycling standards and accredited certification programs that address the handling of used electronics throughout the recycling chain. Many electronics recyclers in the United States refurbish, repair, or pre-process (demanufacture, shred, sort) used electronics to prepare them for the final recovery step, but that final step involves facilities that further recover raw materials, through smelting and refining (end-processing) mostly located outside the United States. These facilities can convert electronics scrap into: (1) High grade copper and precious metals (e.g., gold, silver, and palladium); (2) new CRTs; or (3) new plastics, all materials that can be reused.

On November 8, 2010, CEQ Chair Nancy Sutley established an interagency working group that is co-chaired by EPA, GSA and CEQ to develop a national strategy and recommendations for improving Federalstewardship of used electronics. By May 6, 2011, the Task Force will deliver to CEQ a national framework for:

  • Directing Federal agencies to exercise all appropriate authorities to achieve the electronic stewardship goals, consistent with domestic and international law;
  • Developing a system-based approach to the long-term design, management and disposal of Federal used electronics;
  • Information gathering and tracking, regulatory options, and best management practices for used electronics that can be used by the Federal agencies and leveraged to the private sector;
  • Building partnerships in the public and private sector for sustainable electronics management nationwide;
  • Reducing exports of used electronics to developing countries that lack the capacity to properly manage them, and assess how federal agencies can improve their ability to deter these exports; and,
  • Building capacity within and share best practices with developing countries, so they can improve their ability to safely handle used electronics, while promoting economic development.

EPA and the Interagency Task Force are soliciting input regarding the following questions:

  • What actions should the federal government take to further encourage the design, manufacture, procurement, and use of greener electronics?
  • What are the challenges to designing and manufacturing products in which rare and valuable materials are 100% recyclable, and are recycled at end of product life? What can the federal government do to help address those challenges?
  • What are best practices for used electronics management that the federal government should adopt? What examples of best management practices of used electronics have been implemented in your community, organization or institution?
  • How can the amount of electronics that are recycled in the United States be increased, while ensuring that they are managed safely and properly?
  • What additional infrastructure is needed, and what can be done to encourage its development, in the United States to responsibly reuse and recycle used electronics from governments, businesses and private consumers?
  • What innovations in electronic design exist that would enable electronics to be tracked until disposal?
  • What information would be most helpful to you when deciding how to dispose of used electronics?
  • What projects, practices or efforts, are you aware of that addresses the problem of used electronics from the United States being exported and being handled in a way that causes harm to health and the environment?
  • How could public-private partnerships help resolve any or all the questions above?

NEW RULES COMING ON DRUG DISPOSAL

On October 12, 2010, President Obama signed the Secure and Responsible Drug Disposal Act of 2010 (S. 3397) into law (P.L. 111-273). P.L. 111-273 amends the Controlled Substances Act to allow a patient to deliver controlled substances to an entity that is authorized by federal law to dispose of them, providing that such disposal occurs in accordance with regulations issued by the Attorney General to prevent diversion of controlled substances. The Attorney General is required, in developing those regulations, to take into consideration the public health and safety, as well as the ease and cost of drug disposal program implementation and participation by various communities. Also, P.L. 111-273 gives the Attorney General discretion to issue regulations that authorize long-term care facilities to dispose of controlled substances on behalf of patients who reside in those facilities. Obama also signed the Combat Methamphetamine Enhancement Act of 2010 (H.R. 2923). This law will require sellers of products containing methamphetamine precursors to file a self-certification with the U.S. Department of Justice. This will include a statement to certify that the seller understands and agrees to comply with the legal requirements for the sale of products containing pseudoephedrine, ephedrine, and phenylpropanolamine.

NEW RCRA RULE AS TO WHEN NON-HAZARDOUS MATERIALS ARE SOLID WASTE: Another Definition of Solid Waste Rule, this time for Non-Hazardous Waste Combustion Associated with Boiler MACT Rule Issuance

EPA just issued the new RCRA final rule that specifies which non-hazardous secondary materials when used in a combustion unit are or are not solid wastes. EPA is differentiating which non-hazardous secondary materials are or are not combustion solid wastes under RCRA for the purposes of the Clean Air Act rules to distinguish between boilers and incinerators. EPA considers a non-hazardous secondary material to be any material that is not the primary product of a manufacturing or commercial process, and it can include post-consumer material, post-industrial material, and scrap. Many types of these materials have British Thermal Unit (BTU) or material value, and can be reclaimed or reused in industrial processes.

In the new final rule out, EPA is identifying which non-hazardous secondary materials are solid wastes under RCRA Subtitle D when combusted so that EPA can establish appropriate standards under CAA sections 112 and 129. The final rule does not address the question of which non-hazardous secondary materials are or are not solid wastes in any other beneficial use or recycling situation (for example, land application). States fully implement the RCRA Subtitle D program and have promulgated their own laws and regulations regarding what constitutes a solid waste, some within established beneficial use programs. EPA has stated it will continue to look to the states to make these determinations. The final rule thus does not address whether secondary materials are or are not a solid waste for other non-combustion types of end uses, but many of the principles will have weight in those determinations as well, and will need to be reviewed for those other non-waste determinations as potential guidance.

A wide and diverse range of non-hazardous secondary materials exists and some percentage of the approximately 200,000 boilers or industrial furnaces use these secondary materials as a substitute for primary fuels or as ingredients. The U.S. Court of Appeals for the District of Columbia previously stated that the CAA requires any unit that burns “any solid waste material at all,” regardless of whether the material is being burned as fuel, to be regulated under CAA section 129 as a “solid waste incineration unit. Thus, in response to the courtтАЩs decision, EPA had to issue criteria which identify those non-hazardous secondary materials used as fuel or ingredients in combustion units, such that:

  • Units that burn non-hazardous secondary materials that are solid waste under RCRA would be subject to the section 129 CAA requirements
  • Units that burn non-hazardous secondary materials that are not solid waste under RCRA would be subject to the section 112 CAA requirements (the boiler MACT rules)

The key factors that EPA considered in determining whether a non-hazardous secondary material is or is not a solid waste are:

  1. Whether the material has been discarded – that is, whether it has been abandoned, disposed of, or thrown away, and
  2. If material has been discarded, whether it has been sufficiently processed to produce a new non-waste fuel or ingredient product – sufficiently processed means operations that transform discarded non-hazardous secondary materials into a legitimate non-waste fuel or ingredient, including operations that: remove or destroy contaminants, significantly improve the fuel characteristics of the material, e.g., sizing or drying the material in combination with other operations, chemically improve the as-fired energy content, and improve the ingredient characteristics. Minimal operations, such as operations that result only in modifying the size of the material by shredding, would not be considered processing under this rule.

In addition, to ensure that non-hazardous secondary materials that are burned in a combustion unit are done so legitimately – that is actually used as a fuel or ingredient and not a sham - the Agency has developed legitimacy criteria. Specifically, for non-hazardous secondary materials used as a fuel, the legitimacy criteria are that the secondary material must:

  1. Be managed as a valuable commodity;
  2. Have meaningful heating value and be burned in units that recover energy; and
  3. Contain contaminants that are comparable to or lower than in traditional fuel products.

For non-hazardous secondary materials used as an ingredient, the legitimacy criteria are that the secondary material must:

  • 1. Be managed as a valuable commodity;
  • 2. Provide a useful contribution;
  • 3. Be used to make a valuable product; and
  • 4. Contain contaminants that are comparable to or lower than in traditional products.

Secondary materials burned in combustion units that do not satisfy these legitimacy criteria would be considered a solid waste.

EPA has decided today, among other things, that scrap tires are a non-waste fuel if removed from vehicles and managed under the oversight of established tire collection programs. Resinated wood residuals burned in a combustion unit (whether within the control of the generator or outside the control of the generator) would not be a solid waste, provided the legitimacy criteria are met. Abandoned coal refuse that is processed the same way as coal is today to lower contaminants and increase energy value is considered a non-waste fuel. The new definition clarifies that “traditional fuels” are not secondary materials and are not solid wastes unless “discarded.” In addition to historically managed traditional fuels, EPA added an “alternative fuels” category to the definition of traditional fuels. Examples include coal refuse, on-spec used oil, and clean cellulosic biomass.

Under the final rule, examples of non-hazardous secondary materials designated as solid wastes when burned include:

  • Whole scrap tires from waste tire piles;
  • Off-specification used oil;
  • Sewage/wastewater treatment sludge;
  • Contaminated construction and demolition material;
  • Chromate copper arsenate treated wood.

Under the final rule, examples of secondary materials designated not to be solid wastes (if they meet the legitimacy criteria) when burned in combustion units include:

  • Clean biofuels/biogas processed from solid waste;
  • Scrap tires removed from vehicles and managed under established tire collection programs and tire-derived fuel from the processing of scrap tires removed from tire piles (shredded with the steel belts and wire have been removed);
  • Materials, such as cement kiln dust, coal ash, and foundry sand that are used as ingredients in manufacturing processes (e.g., in cement kilns).

EPA decided to regulate the burning of whole tires under CAA section 112 because EPA concluded that scrap tires that are removed from vehicles and managed under established tire collection programs have not been discarded and thus, are a non-waste fuel and can be combusted in units meeting the CAA section 112 standards. EPA determined that these programs ensure that scrap tires are not discarded en route to the combustor for use as a fuel and are handled as a valuable commodity as required under the legitimacy criteria. As under the proposed rule, whole tires retrieved from waste tire piles have been discarded, and thus, must still be sufficiently processed in order to be combusted as a non-waste fuel.

Resinated wood residuals do not have to be processed before it is used as a non-waste fuel outside the control of the generator. Information has been provided that demonstrates that the transfer of this secondary material outside the control of the generator would not constitute discard and is used as either “furnish” (i.e., raw materials) or fuel at the receiving facilities. This material when transferred outside the control of the generator is used and handled in the same manner that resinated wood residuals are used when generated within the control of the generator, such that it is impossible to distinguish between materials that are being used as a raw material and those that are being used as a fuel.

Coal refuse is distinctive from the other non-hazardous secondary materials in the new rule, as it is raw material coal (even if it has been previously been abandoned) generated as a result of coal mining operations whose primary product is a fuel. Thus, to the extent that this coal refuse is processed the same as coal is today, we believe that level of processing is sufficient. This processing comprises of grizzlies, screens and blending to improve quality, removal of metal objects, reduction of ash and sulfur content, and the concentration of various constituents, serving to both increase its energy value, as well as reduce the level of contaminants in coal refuse, (Prior to such processing, the coal refuse that has been abandoned is a solid waste and would be subject to appropriate federal, state and local laws and regulations).

EPA also concluded, in general, that animal manure that is used as a fuel “as generated” does not satisfy the legitimacy criteria, and thus is a solid waste. However, there are circumstances where manure would not be considered a solid waste when burned as a fuel for energy recovery. For example, manure that has been “sufficiently processed” to produce a legitimate non-waste fuel and meets the legitimacy criteria would not be considered a solid waste when burned as a fuel, In addition, EPA recognized that manure can have other beneficial uses and emphasizes for the benefit of farmers and concentrated animal feeding operations that EPA is not making a solid waste determination on those other uses through this rulemaking.

Planned June 2011 Proposed Rule on Redefining Solid Waste for Purposes of RCRA Hazardous Waste Regulation

(see attached)

EPA plans to develop a proposed rule asking for comment on potential revisions to the October 2008 Definition of Solid Waste Rule to address concerns raised by the Sierra Club, as well as other environmental organizations. Under a settlement agreement with the Sierra Club entered into last fall that has been filed with the D.C. Circuit Court of Appeals, EPA has committed to a proposed rule on or before June 30, 2011 and to take final action on the proposed rulemaking on or before December 31, 2012.

EIGHTEEN MILLION DOLLAR RCRA PENALTY APPROPRIATE TO DETER LARGE CORPORATIONS FROM IMPROPERLY MANAGING HAZARDOUS WASTE Dec 22, 2010

(see attached)

First Circuit Court of Appeals – This case involved the criminal conviction of a natural gas distribution company (Southern Union) for storing hazardous waste without a permit, which resulted in an $18 million fine. The conviction and fine were upheld, and the First Circuit specifically noted ” there was a need for a penalty substantial enough to attract the attention of large corporations, thereby achieving not only specific, but also general, deterrence.” Southern Union did not properly manage 140 pounds of mercury, which became the “play toy of young vandals who spread it about, including at their homes in a local apartment complex, after they spilled it around Southern Union’s largely abandoned and ill-guarded Tidewater site in Pawtucket, Rhode Island.”

Laboratories waste management- Part 262 Subpart K

On December 20, 2010, EPA published a direct final rule making six corrections to the hazardous waste generator requirements in Subpart K (Academic Laboratories rule). The changes are to correct errors (both omissions and redundancies) and to remove an obsolete reference to the Performance Track Program which has been terminated. The first two corrections deal with the definition of “central accumulation area.” The third correction involves the term “consolidation.” This term is defined two different ways in the rule. The correction changes one of those to the term “bulking.” The fourth eliminates a redundant phrase in 262.212(e)(1) pertaining to labeling containers. The last two corrections are to the structure of the laboratory management plan. This rule will go into effect on March 7, 2011.

CERCLA Arranger Liability – Where do you recycle or dispose of unwanted materials?

Congress enacted CERCLA to “assur[e] that those responsible for any damage, environmental harm, or injury from chemical poisons bear the costs of their actions.” S. Rep. No. 96-848, at 13 (1980). A broad remedial statute, CERCLA “is designed to encourage prompt and effective cleanup of hazardous waste sites.” Niagra Mohawk, 596 F.3d at 120 (citing B.F. Goodrich Co. v. Murtha, 958 F.2d 1192, 1197-98 (2d Cir. 1992)). Under CERCLA, “property owners are strictly liable for the hazardous materials on their property, regardless of whether or not they deposited them there.” Id. (citations omitted). Owners can avoid liability under the statute only if the pollution results from an act of God or an act of war, or if they establish they are “innocent owners.” 42 U.S.C. § 9607(b). Most of you use an offsite vendor to either recycle (treat) your unwanted materials or to actually dispose of the unwanted materials. What happens when that vendor site becomes contaminated during the recycling or disposal process? How will you be held liable under CERCLA for the clean up of that site. One option is that the State or EPA sues you. But CERCLA also allows your vendor as owners of polluted property to seek reimbursement from another “potentially responsible party” (“PRP”). 42 U.S.C.§ 9607(a). Or, it might be another PRP that sues you because your vendorтАЩs site is now dirty.

Your organization will qualify as a PRP if it falls into any of the four categories provided for under the statute, and it is the third one that is most relevant:

  1. the owner and operator of a vessel or a facility,
  2. any person who at the time of disposal of any hazardous substance owned or operated any facility at which such hazardous substances were disposed of,
  3. any person who by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances owned or possessed by such person, by any other party or entity, at any facility or incineration vessel owned or operated by another party or entity and containing such hazardous substances, and
  4. any person who accepts or accepted any hazardous substances for transport to disposal or treatment facilities, incineration vessels or sites selected by such person, from which there is a release, or a threatened release which causes the incurrence of response costs, of a hazardous substance

42 U.S.C.§ 9607(a).

To make a legal case that your facility qualifies as an “arranger” under CERCLA §107(a)(3) for your vendor’s contaminated site, the person suing you must show that you “by contract, agreement, or otherwise arranged for disposal or treatment, or arranged with a transporter for transport for disposal or treatment, of hazardous substances . . . .” See 42 U.S.C. § 9607(a)(3). While “CERCLA does not specifically define what it means to `arrang[e] for’ disposal of a hazardous substance . . . . under the plain language of the statute, an entity may qualify as an arranger under § 9607(a)(3) when it takes intentional steps to dispose of a hazardous substance.” Burlington Northern and Santa Fe Ry. Co. v. United States, __ U.S. __, 129 S. Ct. 1870, 1879 (2009) (citations omitted).

Under CERCLA, traditional causation principles are “relaxed” such that the party seeking costs need not show that a specific PRP’s waste caused the incurrence of cleanup costs. Niagra Mohawk, 596 F.3d at 130. Rather, the party seeking costs need only show, that “‘there was a release or threatened release, which [ ] caused incurrence of response costs, and [ ] that the defendant generated hazardous waste at the cleanup site. What is not required is that the government [or another authorized party] show that a specific defendant’s waste caused incurrence of cleanup costs.’” Id. (quoting Alcan, 990 at 721) (alterations in original). CERCLA thus “relaxes” but does not eliminate the causation requirement: a plaintiff need not show a causal link between that particular waste and the response costs the plaintiff incurred, but it must demonstrate that a defendant has had hazardous substances deposited at the vendor site in question. New Jersey Tpk. Auth. v. PPG Indus., Inc., 16 F. Supp. 2d 460, 469 (D.N.J. 1998) (citing Town of New Windsor v. Tesa Tuck, Inc., 935 F. Supp. 300 (S.D.N.Y. 1996)).

Because in certain circumstances “available evidence of who did what at the relevant site is often dependent on inference[, w]hen determining CERCLA liability, `there is nothing objectionable in basing findings solely on circumstantial evidence, especially where the passage of time has made direct evidence difficult or impossible to obtain.’” Id. at 131 (quoting Franklin Cnty. Convention Facilities Auth. v. Am. Premier Underwriters, Inc., 240 F.3d 534, 547 (6th Cir. 2001). Thus, “CERCLA liability may be inferred from the totality of the circumstances as opposed to direct evidence.” Id. at 136.

Good business risk management means that you, as a waste manager, need to understand the key CERCLA provisions and stay up to speed on arranger liability. It is no longer enough just to know your on-site RCRA obligations, now there are a host of RCRA and CERCLA obligations that make it important to understand and manage your vendor exposure with respect to recycling or disposal.

Obviously one thing to do, other than environmental due diligence on your vendor, is to check your contracts with your waste or recycle vendors, as you may be able to resolve your responsibility (as it relates to your organization and the vendor) by contract. CERCLA permits parties to shift the burden for paying response costs through contractual indemnification and release agreements. See 42 U.S.C. § 9607(e)(1) (“Nothing in [CERCLA ┬з 107(e)(1)] shall bar any agreement to insure, hold harmless, or indemnify a party to such agreement for any liability under [CERCLA § 107].”); see also C.P. Chem., Inc. v. Exide Corp., Inc., 14 F.3d 594 (Table), No. 93-1426, at *1 (4th Cir. Dec. 28, 1993) (stating that CERCLA liability can be allocated by contract); Dent v. Beazer, 993 F. Supp. 923, 939 (D.S.C. 1995) (“Under CERCLA, parties are free to contractually shift the burden for liability for response costs among themselves.”). “A private party contract which apportions CERCLA liability must contain a provision which allocates risks of this nature to one of the parties.” Dent, 993 F. Supp. at 939 (citing Rodenbeck v. Marathon Petroleum Co., 742 F. Supp. 1448, 1456 (N.D. Ind. 1990)). This is because “[s]uch agreements cannot alter or excuse the underlying liability, but can only change who ultimately pays that liability.” Vill. of Fox River Grove v. Grayhill, Inc., 806 F. Supp. 785, 792 (N.D. Ill. 1992). This will not necessarily resolve your liability to a third party, however, and will not avoid liability to EPA if the event the vendor goes bankrupt.

While it may be impossible to avoid liability to the government by contract, you can minimize your liability to others by having an environmental attorney to look at the environmental contractual issues for you. In many CERCLA cases, courts have found release and indemnification agreements to shield parties from financial responsibility. In Dent, under South Carolina law, a lease agreement that the lessee would save the lessor harmless from “any and all claims arising from [the lessor's] use of the leased property” covered CERLCA claims even though the agreement was entered into prior to the enactment of CERCLA. 993 F. Supp. at 939-40. In Rodenbeck, the Northern District of Indiana upheld a contractual provision which provided that one of the parties would be released “from all claims and obligations of any character or nature whatsoever arising out of or in connection with said agreement” as being sufficient to indemnify against claims arising under CERCLA. 742 F. Supp. at 1448. In Village of Fox River Grove, the Northern District of Illinois held that a general release between a CERCLA plaintiff and a third-party defendant, which was entered into prior to the enactment of CERCLA, barred third-party contribution claims. 806 F. Supp. at 785. In Joslyn Mfg. Co. v. Koppers, 40 F.3d 750 (5th Cir.1994), the Fifth Circuit found that broad language in indemnification agreements indicated that the agreements were intended to cover all forms of liability, including liability under CERCLA, even though environmental liability under CERCLA was not contemplated at the time of contracting. Id. at 754. See also Kerr-McGee Chem. Corp. v. Lefton Iron & Metal Co., 14 F.3d 321, 327 (7th Cir. 1994) (recognizing that a party may contract to indemnify another for environmental liability even though CERCLA was not in existence at the time of contracting); Jones-Hamilton Co. v. Kop-Coat, Inc., 750 F. Supp. 1022, 1026-27 (N.D. Cal. 1990) (holding that an indemnification agreement that encompassed “all losses, damages and costs” resulting from any violation of law was sufficient to release the indemnitee from CERCLA liability even though the agreement was entered into prior to the enactment of CERCLA and did not specifically mention CERCLA).

EXCAVATING OR GRADING CONTAMINATED SOIL CAN MAKE YOU LIABLE UNDER CERCLA AS WELL AS RCRA

In United States v. Honeywell Int’l, Inc., 542 F. Supp. 2d 1188, 1200 (E.D. Cal. 2008), the District Court for the Eastern District of California denied a party the innocent landowner defense because the party’s affirmative steps in grading and excavating the property agitated the soil and caused the release of contaminants during the party’s ownership period.

EPA Wants Comments On Vapor Intrusion At Superfund Sites – Jan 28, 2011

EPA seeks public input on whether to include vapor intrusion threats as a component for including hazardous waste sites on the National Priorities List of Superfund sites. Vapor intrusion describes the migration of volatile chemicals from contaminated groundwater or soil into the atmosphere, and is a particular concern if vapors enter an overlying building.

BUYING DIRTY PROPERTY: Make Sure You Qualify for All The Elements of The New CERCLA BFPP Defense

In the October 13, 2010 decision in the case of Ashley II of Charleston, LLC v. PCS Nitrogen, Inc. v. Ross Development Corp. et al, the Federal District Court for South Carolina took on the Bona Fide Prospective Purchaser defense to CERCLA remediation liability as it related to Ashley II, a limited liability company, part of Cherokee Investment Partners which is a large investment fund that has dedicated a billion dollars to the acquisition of contaminated (“Brownfields”) properties. In analyzing Ashley’s assertion of the BFPP Defense that was created by the 2002 CERCLA amendments, the Court required Ashley to prove all eight elements by a preponderance of the evidence, finding a deficiency with respect to one or more of the elements. Ashley was liable for failing to prove the absence of post-purchase disposal. Ashley also failed to prove appropriate care was shown.

E-WASTE CONTINUES TO GET NATIONAL ATTENTION

The Council on Environmental Quality, EPA, and the General Services Administration formed a task force, under the Executive Order on Federal Sustainability, charged with helping the Federal government lead by example in responsibly managing used electronics. The interagency task force, co-chaired by EPA, GSA, and CEQ, will develop a national strategy for responsible electronics stewardship, including improvements to Federal procedures for managing electronic products. The strategy will also “include steps to ensure electronics containing hazardous materials collected for recycling and disposal are not exported to developing nations that lack the capacity to manage the recovery and disposal of these products in ways that safeguard human health and the environment.” According to a CEQ letter on the newly established Task Force, “CEQ will coordinate the initial convening of the Task Force and provide any necessary policy direction to guide the process. Within 180 days from the date of this memorandum [November 8, 2010], the Task Force shall deliver to CEQ a national framework that includes an action plan directing Federal agencies to exercise all appropriate authorities to achieve the electronic stewardship goals, consistent with domestic and international law with recommendations for a system-based approach to the long-term design, management and disposal of Federal used electronics. Both of the two major competing electronic waste recycling programs, operated by Institute of Scrap Recycling Industries (R2) and the Basel Action Network (e-Stewards), are currently supported by EPA. There also was an October 21, 2010 report from the U.S. Department of Justice Office of the Inspector General entitled, A Review of Federal Prison Industries’ Electronic-Waste Recycling Program which found that staff and inmates at several Bureau of Prisons facilities have been exposed to toxic metals including cadmium and lead in the electronic waste recycling program run by the Federal Prison Industries — also known as UNICOR OIG said, “Our investigation found that prior to 2009 UNICOR’s management of the e-waste recycling program resulted in numerous violations of health, safety, and environmental laws, regulations, and BOP policies. We concluded that UNICOR’s Headquarters staff poorly managed UNICOR’s e-waste program prior to 2009.”

GAO July 2010 Report Calls For Federal E-Waste Legislation

The U.S. Government Accountability Office released a report entitled, Electronic Waste: Considerations for Promoting Environmentally Sound Reuse and Recycling (GAO-10-626, July 12, 2010). According to GAO, low recycling rates for used televisions, computers, and other electronics result in the loss of valuable resources, and electronic waste exports risk harming human health and the environment in countries that lack safe recycling and disposal capacity, and the GAO criticized EPA’s insufficient program to induce recycling. GAO found EPA’s efforts consist of little more than (1) enforcing its rule for the recycling and exporting of cathode-ray tubes, which contain significant quantities of lead, and (2) an array of partnership programs that encourage voluntary efforts. Today, there are two principal competing electronic waste recycling voluntary program: (1) the Basel Action Network and (2) the Institute of Scrap Recycling Industries, Inc. A significant number of states have enacted electronics recycling laws. Entities typically regulated under the state laws — electronics manufacturers, retailers, and recyclers — consider the increasing patchwork of state laws to be a compliance burden. One option discussed would involve federal recycling standards. GAO also previously recommended that EPA submit to Congress a legislative proposal for ratification of the Basel Convention, a multilateral environmental agreement that aims to protect against the adverse effects resulting from transboundary movements of hazardous waste.

When is Something A Spent Material for Purposes of Being Considered A Hazardous Waste Under RCRA- Howmet Corporation v. U.S. EPA, D.C. Circuit Court of Appeals Opinion- Aug 6, 2010

A D.C. Circuit court opinion provides clarity on the difficult issue of when a used material may be considered a “spent” (discarded) material subject to potential regulation under RCRA hazardous waste regulations. The RCRA hazardous waste regulatory program provides that hazardous waste must be “discarded material.” 42 U.S.C. § 6903(5), (27). In 1985, EPA issued regulations that construe “discarded material” to include certain “spent material.” See 40 C.F.R. § 261.2. A material is “spent” if it is no longer suitable for “the purpose for which it was produced.” 40 C.F.R.§ 261.1(c)(1). In this case, the court finally concluded that Howmet Corporation, a manufacturer of precision investment casings for aerospace and industrial gas turbines had been given fair notice that a shipment of used liquid potassium hydroxide (KOH), as a corrosive material, for use to produce fertilizer, as a product “applied to the land,” after it had been used to clean a ceramic core from metal castings, was the type of activity that EPA regulated as “spent material” under the hazardous waste regulations because a guidance manual stated that materials are spent if the manner in which they were used was not similar to their original application.

EPA’s Plans to Expand Lead Renovation, Repair and Painting Program Rule to Commercial Buildings

The Lead RRP rule for residential renovation and remodeling work requires that renovators are trained in the use of lead safe work practices, that renovators and firms be certified, that providers of renovation training be accredited, and that renovators follow specific work practice standards. The rule also includes provisions for the retention of compliance records, and the verification of compliance with work practice obligations, as well as pre-renovation education requirements (i.e., distribute EPA pamphlets and document compliance). Additional information on this rule can be found at http://www.epa.gov/lead/pubs/renovation.htm The rule applies to all firms and individuals who are paid to perform renovation, repair, and painting projects that disturb paint in pre-1978 housing and child-occupied facilities and schools. This includes home improvement contractors, maintenance workers, painters and other specialty trades.

EPA is reviewing these lead paint laws that are already on the books for residential renovation and remodeling work and considering whether and how to apply those requirements to public and commercial building renovation and remodeling, pursuant to a legal settlement agreement that the EPA made with several environmental and public health advocacy groups. For exterior renovations of public and commercial buildings, EPA must issue a proposed rule requiring lead-safe work practices by December 15, 2011, and must take final action by July 15, 2013. For interior renovations, the EPA must consult with the EPA Scientific Advisory Board by September 30, 2011, regarding a methodology for evaluating the risk posed by renovations in public and commercial buildings. If EPA concludes that interior renovation activities do create lead-based paint hazards, then EPA must issue a proposed rule applying specified work practices to such activities within 18 months after receiving the SAB report and must take final action 18 months thereafter.