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Showing 30 posts by Aaron H. Goldberg.

D.C. Circuit Invalidates Part of the RCRA Definition of “Solid Waste,” Altering the Regulatory Framework for Recycling of Hazardous Secondary Materials

On July 7, 2017, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or the “Court”) issued a decision invalidating two key elements of the regulatory definition of solid waste under the Resource Conservation and Recovery Act (“RCRA”), as amended by the U.S. Environmental Protection Agency (“EPA” or the “Agency”) in 2015, and rejecting efforts to impose additional conditions on existing exclusions in the hazardous waste program.  See American Petroleum Institute v. EPA, 2017 WL 2883867, No. 09-1038 (D.C. Cir.); 80 Fed. Reg. 1694 (January 13, 2015) (EPA’s “Final Rule” revising the definition of solid waste). The definition is a cornerstone of the RCRA hazardous waste regulatory program, inasmuch as it specifies when recyclable materials may be classified as solid wastes and thus potentially hazardous wastes subject to the hazardous waste regulatory program promulgated by EPA under RCRA Subtitle C.  The Court decision upends a significant part of the RCRA regulatory scheme, has broader implications for the hazardous waste program and beyond, and creates implementation issues at the federal and state level that will likely take years to sort out.  Don Patterson of Beveridge & Diamond (“B&D”) presented oral argument on behalf of the National Mining Association and other Industry Intervenors in opposition to Environmental Petitioners’ challenge, and Eric Klein, another B&D principal, joined Don on the Industry Intervenors’ brief.    Read More ›

EPA Overhauls Rules for Hazardous Waste Generators, Imposing Substantial New Burdens on Hundreds of Thousands of Facilities in Virtually All Industries

1          Introduction 

On October 28, 2016, the Administrator of the U.S. Environmental Protection Agency (“EPA” or the “Agency”) signed a final rule that completely overhauls the long-standing requirements for generators of hazardous wastes under the Resource Conservation and Recovery Act (“RCRA”).  By EPA’s own estimates, the new rules will affect tens of thousands of both large quantity generators of hazardous wastes (“LQGs”) and small quantity generators (“SQGs”) in practically every industrial sector, as well as hundreds of thousands of conditionally exempt small quantity generators (renamed “very small quantity generators” or “VSQGs” in the final rule).    Read More ›

EPA Revises Hazardous Waste Import-Export Rules

On October 28, 2016, the Administrator of the United States Environmental Protection Agency (EPA) signed a rule finalizing significant modifications to the requirements governing the export and import of hazardous waste.  The rule changes will go into effect on December 31, 2016, although, as discussed below, certain requirements will be phased in over time.  The changes will affect transboundary shipments currently subject to 40 C.F.R. Part 262 Subpart H (regulating hazardous waste shipments for recovery between the United States and countries that are members of the Organisation for Economic Co-operation and Development (OECD) other than Mexico and Canada), as well as shipments currently subject to Subparts E and F (regulating all other hazardous waste imports and exports).  The modifications make certain substantive changes to the requirements of Subpart H, as well as expand the scope of that subpart to cover transboundary shipments currently subject to Subparts E and F.  The modifications are largely consistent with EPA’s October 2015 proposed rule. Read More ›

DOT/PHMSA Proposes to Harmonize U.S. Lithium Battery Transport Requirements With International Standards

Summary:  The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration issued a proposed rule that would harmonize U.S. hazardous materials regulations with international hazardous materials transport standards.  Among other things, the proposal would change certain proper shipping names, hazard classes, packing groups, special provisions, packing authorizations, air transport quantity limitations, and vessel stowage requirements and incorporate by reference various international technical standards.  Significantly, PHMSA proposes to adopt into binding U.S regulation the updated hazard communication requirements for the transport of lithium batteries (including equipment containing such batteries) contained in the 19th Revised Edition of the United Nations Recommendations on the Transport of Dangerous Goods Model Regulations.  Once finalized, these requirements will be mandatory for all U.S. shippers and transporters of lithium batteries.  Although PHMSA has for the moment declined to incorporate into the U.S. Hazardous Materials Regulations the enhanced safety provisions for lithium batteries transported by aircraft contained in the 2015-2016 Edition of the International Civil Aviation Organization’s (“ICAO”) Technical Instructions as of April 1, 2016, the preamble to the proposed rule indicates that the Agency is considering adopting these provisions in a separate rulemaking.  Comments on the proposed rule are due November 7, 2016. Read More ›

EPA Issues Strategy to Address the Mismatch Between the Federal Hazardous Waste Rules and the Retail Sector

On September 12, 2016, the U.S. Environmental Protection Agency (“EPA” or the “Agency”) issued a strategy for addressing growing concerns about the application of the federal hazardous waste regulations under the Resource Conservation and Recovery Act (“RCRA”) to the retail sector.  See EPA, “Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework” (hereinafter referred to as the “Retail Strategy”).  EPA’s strategy aims to reconcile the decades-old hazardous waste regulatory program with the unique compliance issues facing the retail sector today.  The strategy follows the Agency’s discussions with stakeholders, consideration of President Obama’s Executive Order directing agencies to evaluate regulatory effectiveness and efficiency, and review of public comments on a Notice of Data Availability (“NODA”) regarding waste management in the retail sector.  EPA intends to implement the strategy through a combination of rulemakings, guidance documents, and further fact-gathering. Read More ›

FedEx Settlement with California Department of Toxic Substances Control Contains Important Lessons/Reminders for Product and Waste Shippers

On June 14, 2016, FedEx Ground Package System, Inc. (“FedEx”) entered into a settlement with the California Department of Toxic Substances Control (“DTSC”) to resolve allegations that FedEx improperly handled, transported, stored, recycled and disposed of damaged packages of hazardous materials (“DTSC Settlement”).  Under the terms of the DTSC Settlement, FedEx will pay a total of $3.4 million in civil penalties and is enjoined from further violations of California’s Hazardous Waste Control Law (“HWCL”).  See Stipulation for Entry of Final Judgment and Order on Consent, People v. FedEx Ground Package System, Inc., Case No.34-2014-00165454 (Sacramento County Superior Court) (filed June 14, 2016).  The DTSC Settlement also resolves a related case FedEx brought in federal court in April 2014 (“Federal Action”).  Read More ›

EPA Requests Comment on Tentative Denial of Petition to Expand Dramatically the RCRA Corrosivity Characteristic

Summary:  This news alert discusses EPA’s tentative decision to deny a petition from one of its own scientists and an environmental group, both seeking a dramatic expansion of the definition of “corrosive” wastes under the U.S. federal hazardous waste regulations.  The Agency will accept public comments on its tentative decision until June 10, 2016, after which time it will either issue a final decision denying the petition or initiate a rulemaking to change the corrosivity characteristic.    Read More ›

PHMSA Signals Intent to Adopt ICAO Ban on Bulk Shipments of Lithium Ion Batteries as Cargo on U.S. Passenger Aircraft

Summary: The Pipeline and Hazardous Materials Safety Administration issued a safety advisory notice indicating that the agency may soon adopt a ban on bulk shipments of lithium ion batteries shipped alone as cargo on passenger aircraft.  Congress is also considering legislation that would have the same effect.  Manufacturers, distributors, retailers, and end users of electronic equipment should closely monitor these developments to ensure they remain in compliance with evolving lithium ion battery regulations. Read More ›

DOT Issues Final Rule Providing Only Very Limited Relief for Reverse Logistics of Retail Products

Summary: This news alert discusses the final rule to streamline requirements under the Hazardous Materials Regulations (HMR) for “reverse logistics” of retail products that qualify as hazardous materials. The rule establishes reduced requirements for shipments by both non-private and private carriers, but it is so narrowly crafted that it will likely be of benefit in only a very limited range of circumstances. Read More ›

ICAO Bans Bulk Shipments of Lithium Batteries as Cargo on Passenger Aircraft

On February 22, 2016, the International Civil Aviation Organization (“ICAO”) Council announced an interim ban on bulk shipments of lithium ion batteries as cargo on passenger aircraft.  The ICAO Council adopted this new aviation safety measure after the ICAO’s top technical body, the Air Navigation Commission, recommended a ban on these shipments at its January 27, 2016 meeting.  The approved ban on bulk lithium battery shipments on passenger aircraft becomes effective almost immediately on April 1, 2016.  The ICAO is also implementing other significant changes to the lithium battery rules in its 2017-2018 Edition of the Technical Instructions for the Safe Transport of Dangerous Goods by Air (“ICAO-TI”).  Read More ›