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Showing 12 posts by Donald J. Patterson, Jr..

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 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 ›

Beveridge & Diamond Attorneys Author U.S. Chapters in Getting the Deal Through: Environment & Climate Regulation 2016

Six Beveridge & Diamond attorneys authored the two U.S. chapters in Getting the Deal Through: Environment & Climate Regulation 2016, a publication that gathers legal information from around the world to make researching environmental and climate regulation in foreign jurisdictions easier.  The environment and climate regulation sections of the publication cover 16 countries and 13 countries respectively. Read More ›

Environmentalists Issue Notice of Intent to Sue EPA for Alleged Failure to Review and Revise RCRA Oil and Gas Regulations

On August 26, 2015, seven environmental groups (“Environmental Parties”) issued a Notice of Intent to Sue (“NOI”) United States Environmental Protection Agency (“EPA”) Administrator Gina McCarthy for EPA’s failure to meet its alleged duty under Section 2002(b) of the Resource Conservation and Recovery Act (“RCRA”) to review, and if necessary revise, at least once every three years, the RCRA Subtitle D criteria regulations for wastes associated with the exploration, development, or production of oil, natural gas, or geothermal energy (“oil and gas wastes”).  The Environmental Parties also alleged in the NOI that EPA has failed to meet a separate non-discretionary duty under RCRA section 4002(b) to review its guidelines for state solid waste management plans for oil and gas wastes not less frequently than every three years, and to revise such guidelines as appropriate.  Should EPA fail to cure the alleged noncompliance within the statutorily-mandated 60 day period, the NOI states that the Parties intend to file suit in federal court seeking declaratory relief, injunctive relief, and litigation costs. Read More ›

EPA Proposes New Rules for Pharmaceutical Wastes That Qualify as RCRA Hazardous Wastes

On August 31, 2015, the Administrator of the U.S. Environmental Protection Agency (“EPA” or the “Agency”) signed a proposed rule that would establish special management standards for pharmaceutical wastes that are classified as hazardous wastes under the Resource Conservation and Recovery Act (“RCRA”).  The new standards would include separate requirements for healthcare facilities and pharmaceutical reverse distributors, such as rules for storage, labeling, recordkeeping, reporting, and off-site shipment.  The Proposed Rule would also conditionally exempt hazardous waste pharmaceuticals that qualify as controlled substances under the rules of the U.S. Drug Enforcement Administration (“DEA”), add new provisions for hazardous waste pharmaceuticals from households, and amend the requirements for residues of hazardous waste pharmaceuticals in containers.  It requests comments on amending the acute hazardous waste listing for low-concentration nicotine products, and on a potential strategy for listing additional pharmaceutical wastes as hazardous.  Read More ›

EPA Commits to Respond in Early 2016 to Petition Seeking to Make the RCRA Corrosivity Characteristic 10 Times More Stringent

The U.S. Environmental Protection Agency (“EPA” or the “Agency”) recently informed a federal appeals court that it intends to respond no later than March 31, 2016 to a rulemaking petition submitted to EPA in 2011 by one of its own employees and a group of other government employees (“Petitioners”), which asked the Agency to dramatically increase the stringency of the corrosivity characteristic used to identify wastes as hazardous under the Resource Conservation and Recovery Act (“RCRA”).  The Petitioners claimed that EPA had acted “erroneously and fraudulently” in establishing the characteristic in 1980, and thereby endangered public health, most notably among first responders at “Ground Zero” on 9/11 who breathed in dust from the collapse of the twin towers of the World Trade Center. Read More ›

EPA Revisions to Definition of “Solid Waste” Change the Regulatory Landscape for Hazardous Recyclable Materials

On December 10, 2014, the Administrator of the U.S. Environmental Protection
Agency (“EPA” or the “Agency”) signed a final rule revising the definition of
“solid waste” for purposes of the federal hazardous waste regulatory program
under the Resource Conservation and Recovery Act (“RCRA”).  This definition is a
key element of the RCRA regulations, inasmuch as only solid wastes can be
subjected to regulation as hazardous wastes.  Read More ›

Ninth Circuit Upholds Alameda Safe Drug Disposal Ordinance, Triggering Implementation of King County Secure Medicine Return Rule

On September 30, 2014, the Ninth Circuit affirmed the Northern District of California’s summary judgment that the Alameda Safe Drug Disposal Ordinance (the “Ordinance”) does not violate the dormant Commerce Clause of the United States Constitution. PRMA v. Alameda County, 2014 U.S. App. LEXIS 18737 (9th Cir. 2014). The Ninth Circuit held that the Ordinance does not discriminate against or directly regulate interstate commerce. Moreover, the Court found that, in the context of the judicially created Pike balancing test, the Ordinance does not substantially burden interstate commerce and that the Ordinance provides public benefits. Read More ›

D.C. Circuit Court Strikes Down EPA “Summit Directive,” Voids Attempt to Apply Differing Aggregation Policies Across the Country

On May 30, 2014, the District of Columbia Circuit struck down the United States Environmental Protection Agency’s (EPA) “Summit Directive,” preventing EPA from adopting conflicting air permit aggregation policy in different parts of the country depending on where federal courts have upheld or overturned that policy, resolving a challenge brought by the National Environmental Development Association’s Clean Air Project (“Clean Air Project”). In the short term, National Environmental Development Association’s Clean Air Project v. EPA (D.C. Cir. May 30, 2014) means that it will be unlawful for EPA to use the “functionally interrelated” test to determine whether equipment and facilities are “adjacent” for purposes of Clean Air Act stationary source permitting determinations, including in natural gas shale plays across the country and with regard to facilities in other industry sectors with dispersed physical assets that are in close proximity.  

Read the full alert on our website.

Holly Cannon and Donald J. Patterson Contribute U.S. Chapter to Getting the Deal Through - Environment 2014

Getting the Deal Through - Environment 2014 provides a comprehensive analysis of the environmental legal issues that corporate lawyers face while managing global transactions. The 2014 edition covers 21 countries. Beveridge & Diamond, P.C. lawyers Holly Cannon and Donald Patterson played a leading role in the development of this edition, contributing the chapter on U.S. environmental requirements.

To read the chapter, click here.

Beveridge & Diamond's active international environmental practice advises clients on a wide range of matters arising under multilateral environmental agreements, the environmental aspects of multilateral trade and investment agreements and significant environmental regulatory and policy developments in dynamic economies around the globe.

Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through - Environment 2014, (published in November 2013; contributing editor: Carlos de Miguel, Uria Menendez) For further information please visit www.GettingTheDealThrough.com