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Showing 37 posts in Hazardous Waste/RCRA. View our practice description for Hazardous Waste/RCRA.

Legal Whipsaw in Washington Sawmill Case: State Supreme Court Decision Fundamentally Changes the Scope of Liability Under the Model Toxics Control Act

On May 24, 2018, in a significant decision with far-reaching implications for cleanups at Washington’s contaminated sites, the Washington State Supreme Court narrowed the scope of “owner or operator” liability under the state environmental cleanup statute, the Model Toxics Control Act (MTCA).  Pope Resources, LP v. Washington State Department of Natural Resources.[1]  The surprising 6-3 decision held:  (1) that a state agency – in this case, the Department of Natural Resources (DNR) – may not be liable as an “owner” under MTCA when it merely acts as a lessor, or property management agent, for a property owned by the state; and (2) that liability as an “operator” under MTCA requires active involvement in the operational decisions at a facility. Read More ›

EPA Proposes Revisions to Rules for Disposal of Coal Combustion Residuals from Electric Utilities

Today, EPA published a proposal to amend the regulations in 40 CFR Part 257, Subpart D, governing the disposal of coal combustion residuals (“CCR” or coal ash) in landfills and surface impoundments.  The proposed rule is the first (i.e., “Phase One”) of potentially two proposals to amend EPA’s CCR rules, which the agency finalized in April 2015.  Today’s Phase One proposal reflects an EPA willingness to build certain operational flexibility into the CCR rules, and to revisit some of the details of the governing standards.   It is a detailed proposal that merits a close review by facilities with CCR units regulated under the rules, and those that are otherwise concerned with compliance with the CCR rules. Read More ›

D.C. Circuit Revises Its 2017 Ruling on the RCRA Definition of Solid Waste, Clarifying When Recyclable Materials May Be Classified as Non-Wastes

On March 6, 2018, the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) issued a ruling that revises its 2017 decision on the definition of solid waste under the Resource Conservation and Recovery Act (“RCRA”), which specifies when recyclable materials may be classified as solid wastes and thus potentially hazardous wastes subject to the hazardous waste regulatory program promulgated by the U.S. Environmental Protection Agency (“EPA”).   See American Petroleum Institute v. EPA, No. 09-1038 (D.C. Cir., decision of March 6, 2018); Beveridge & Diamond, P.C.,  “D.C. Circuit Invalidates Part of the RCRA Definition of ‘Solid Waste,’ Altering the Regulatory Framework for Recycling of Hazardous Secondary Materials” (July 14, 2017) (summary and analysis of the 2017 decision). Read More ›

EPA Issues Proposal to Streamline Requirements for Hazardous Aerosol Can Wastes by Classifying and Regulating Them as “Universal Wastes”

On March 5, 2018, the Administrator of the U.S. Environmental Protection Agency (“EPA”) signed a proposed rule to classify and regulate hazardous aerosol can wastes as “universal wastes” under the federal Resource Conservation and Recovery Act (“RCRA”) hazardous waste rules.  As universal wastes, hazardous aerosol can wastes would be subject to substantially reduced requirements for collection and transport, in order to facilitate and encourage environmentally sound recycling or disposal.  However, the ultimate recycling and disposal facilities would remain subject to essentially the same requirements as currently apply.  As discussed below, even though the proposed rule would largely be consistent with existing requirements for other universal wastes, there are several aspects of the proposal that may warrant special attention. Read More ›

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 ›

Introducing Our California Environmental Tracker

The San Francisco Office of Beveridge & Diamond, P.C. is pleased to announce a new series of articles dedicated to developments in California environmental law. California has long been a driver of environmental policy, often setting demanding regulatory standards and leveraging its mammoth market share to compel national compliance. 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 ›

New York Extends Statute of Limitations for Personal Injury Damages Caused by Contamination from Superfund Sites

On July 21, 2016, New York Governor Cuomo signed into law New York State Assembly Bill No. A09568, which amends the statute of limitations for filing actions to recover damages for
personal injury caused by contamination from Superfund sites.  The legislation is a result of public concern about the discovery of water contamination in Hoosick Falls, New York, and  Flint, Michigan. 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 ›