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Showing 32 posts in Solid Waste and Resource Recovery. View our practice description for Solid Waste and Resource Recovery.

Beveridge & Diamond Secures Trial Win for City of Los Angeles, Striking Down Biosolids Ban on Two Constitutional Grounds

Following a two week bench trial prosecuted by Beveridge & Diamond Principals Jimmy Slaughter and Jamie Auslander and California based counsel Michael Lampe, the Tulare County, California Superior Court has struck down a voter initiative passed in 2006 in Kern County that banned the land application of biosolids (treated municipal wastewater sludge) to farmland in Kern County. Judge Lloyd Hicks wrote in a 48 page opinion that that Measure E “is invalid and void for all purposes, for the dual reasons that it exceeds Kern’s police power authority and is preempted by state law.” City of Los Angeles v. Kern County, 2016 WL 7175653, 2016 Cal Super Lexis 9727 (Tulare Co. Super. Ct. Nov. 28, 2016).  The case is believed to be the first trial focused on the benefits and safety of recycling biosolids to farmland, a practice used by many of America’s largest cities for decades.  Read More ›

Understanding New Lithium Battery Transport Requirements & Emerging Developments as Safety Concerns Mount

Growing concerns over the safety of air shipments of lithium batteries have prompted international authorities, the U.S. Federal Aviation Administration (“FAA”), and Congress to take action.  On January 19, 2016, the International Air Transport Association (“IATA”) issued an Addendum to the 57th Edition of the Dangerous Goods Regulations (“DGR”), further restricting shipments of lithium batteries by air.  The International Civil Aviation Organization’s (“ICAO”) is also planning changes to the lithium battery rules for its 2017-2018 Edition of the Technical Instructions for the Safe Transport of Dangerous Goods by Air (“ICAO-TI”), and is even considering an outright ban on bulk lithium ion battery shipments as cargo on passenger aircraft. Read More ›

Beveridge & Diamond Secures Unanimous Ruling in Pennsylvania Supreme Court Shielding Biosolids Land Application from Tort Claims

Litigators in the Firm’s Washington, DC office secured a unanimous ruling from the Supreme Court of Pennsylvania in favor of Beveridge & Diamond client Synagro and persuaded the Court to hold that land application of biosolids is an agricultural activity shielded from untimely litigation by Pennsylvania’s Right to Farm Act (RTFA).

The Court’s opinion reversed the Pennsylvania intermediate appellate court and resolved critical questions regarding the division of labor between judge and jury, the scope of the RTFA, and the use of biosolids as fertilizer on farms.  In Gilbert v. Synagro Central, ___ A.3d ___, 2015 WL 9282354 (Dec. 21, 2015), the Court unanimously held that (1) application of the RTFA’s statute of repose presents a legal question that only a judge may resolve and (2) biosolids application is a “normal agricultural operation” protected by the RTFA.

The suit arose from farming operations in York County, Pennsylvania.  Neighboring landowners complained of odors from farmers’ use of biosolids—nutrient-rich material produced from sewage sludge—and filed a lawsuit asserting claims of nuisance, negligence and trespass.  The trial court granted the defendants’ motion for summary judgment on the ground that the plaintiff landowners filed their claims outside the RTFA’s one-year statute of repose.  On appeal, the Superior Court of Pennsylvania reversed, holding that whether biosolids application qualified as a “normal agricultural operation” protected by the RTFA required a jury to evaluate the manner in which biosolids had been applied.

The Pennsylvania Supreme Court’s majority and concurring opinions reject the lower court’s rationale in full.  In language with implications for future tort cases, the justices emphasized that the RTFA, like any statute of repose, is jurisdictional and thus, its “applicability is a question for the trial court, not the jury.”  The Court further explained that whether a particular activity, such as biosolids application, falls within the definition of a term used in a statute of repose is to be treated as a question of law that only a judge can resolve.  The opinion makes clear that the RTFA can only function properly if its bar against litigation is not contingent on a jury’s determinations.

The Gilbert decision confirmed that biosolids application is a normal agricultural operation entitled to protection by the RTFA and likely will influence courts across the country in their review of legal issues regarding biosolids recycling to farmland.  Citing numerous statistics and the briefs of a broad coalition of amici, the Court acknowledged the widespread use of biosolids in agriculture in Pennsylvania and America across the country.  This opinion represents a clear statement by a state’s highest court that biosolids use is an accepted and common practice in modern farming that is entitled to protection from untimely and burdensome litigation.

The decision has received extensive media coverage, including articles in Law360, Bloomberg BNA Daily Environment ReportE&E Greenwire, and Waste360 (subscriptions required).  For more information, contact Beveridge & Diamond principal Jimmy Slaughter, who led the defense and argued the case before the Pennsylvania Supreme Court (jslaughter@bdlaw.com, 202.789.6040).

Beveridge & Diamond has represented municipalities and their contractors on biosolids, wastewater and drinking water issues since the Firm’s founding forty years ago.  The Firm’s work includes defense of civil suits and enforcement actions and prosecution of constitutional claims against local ordinances that interfere with biosolids recycling.  Beveridge & Diamond also defends toxic tort lawsuits for public and private sector clients in state and federal courts across the country.

Auto and Appliance Shredding and Recycling Companies Settle with Mass AG over Allegations of Air, Hazardous Waste, and Mercury Management Violations

Two shredding and metals recycling companies recently settled a complaint brought by the Massachusetts Attorney General (Mass AG) and the Massachusetts Department of Environmental Protection (MassDEP) for alleged violations of the laws and rules governing air emissions, hazardous and solid waste, and mercury management.  The companies settling with the government, Prolerized New England Company, LLC (PNE) and Metals Recycling, LLC (Metals Recycling), both doing business as Schnitzer Northeast, operate three Massachusetts facilities located in Attleboro, Everett and Worcester. Read More ›

Beveridge & Diamond Argues Before Pennsylvania Supreme Court for Right to Farm Act Protection

Jimmy Slaughter, a litigator in Beveridge & Diamond’s Washington office, argued before the Pennsylvania Supreme Court  for protection from tort lawsuits for farmers and their contractors  under the Pennsylvania Right to Farm Act’s statute of repose. Read More ›

Washington State Supreme Court Declines Review of Beveridge & Diamond Win in Court of Appeals Preempting Biosolids Ban

Jimmy Slaughter, a litigator and Principal in Beveridge & Diamond’s Washington, DC office, was quoted in a Law360 article titled “Washington High Court Won't Revisit Biosolids Ban Reversal.”  The article discusses the Supreme Court of Washington’s decision to decline review of the State Court of Appeals’ ruling that a county ban on applying biosolids to farmland as fertilizer violated the state constitution. Dep't of Ecology v. Wahkiakum County, 337 P.3d 364 (Wn. App. 2014), review denied , 2015 Wash. LEXIS 467 (Wn. 2015). 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 Regulates Coal Combustion Residuals as Solid Waste and Retains Exclusions for Beneficial Use

Today EPA issued a final rule regulating coal combustion residuals (CCR) as solid waste under Subtitle D of the Resource Conservation and Recovery Act (RCRA).  This ends years of speculation regarding whether EPA might decide to regulate CCR as a hazardous waste under the more onerous RCRA Subtitle C “cradle to grave” regulatory scheme.  EPA reported that it received over 450,000 comments on the proposed rule, most of which focused on which regulatory path would be followed: Subtitle C or D.  The final rule may be found here. 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 ›

Maryland Proposes Hazardous Substance Reporting Rule

The Maryland Department of the Environment (MDE) proposed hazardous substance reporting obligations on Friday, October 31, 2014.  These regulations would implement Environment Article §7-222(d), amended in 2008, requiring reporting to MDE “immediately” of certain information that “indicates the release of a hazardous substance into the environment” above a "threshold."  The law became effective as of October 1, 2009, but without implementing regulations the law has not been enforceable.  The proposed regulations would provide reporting threshold levels, further construe when reporting is triggered, and establish reporting procedures.  Read More ›