US EPA Proposes Rules Governing Financial Responsibility for Hard Rock Mines & Processing Facilities

On December 1, 2016, US EPA Administrator Gina McCarthy complied with a court order and signed a proposed Superfund rule to require facilities in the hard rock mining industry to provide financial assurance for cleanup and related environmental costs, as required by Section 108(b) of the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). 42 U.S.C. § 9608(b). US EPA intends the rule to provide adequate funding for CERCLA cleanups, if such work is needed at an affected facility.  This rule is expected by US EPA and by the industry to be quite costly, between US$111 and US$171 million a year, according to EPA – more according to some industry critics. In part because of its expected cost, and in part because of its great complexity, the proposal and US EPA’s decisions about the final rule are expected to be controversial.  US EPA has solicited comments about the merits and problems with its proposal, and has requested comments on specific aspects of the proposal. Those comments are due to US EPA 60 days after publication of this proposed rule in the Federal Register. Although that date has not yet been fixed, the comment deadline seems likely to be mid-February 2017.

Details on the proposed rule, including affected facilities and proposed compliance requirements, is available here.

Despite New Administration, Environmental Groups May Influence Changes to US Industrial Stormwater Discharge Permits

Although the focus and priorities of a new US EPA administration under President-elect Trump remain unclear, regulatory changes may be in the works that could require certain industrial entities to either change how they handle stormwater discharges or face lawsuits brought by environmental groups. As described more fully below, US EPA entered into a settlement agreement on August 16, 2016 with a coalition of environmental organizations related to US EPA’s Multi-Sector General Permit for Stormwater Discharges Associated with Industrial Activity (MSGP). That settlement agreement contemplates changes to US EPA’s next promulgation of the MSGP, which applies to stormwater discharges associated with activities within a wide range of industrial sectors including coal mining, oil and mineral extraction, cement manufacturing facilities, landfills, paper and printing facilities, junk yards, and others. Continue Reading

Involved with US Export and Import of Hazardous Waste? New Requirements Are Coming

On November 28, 2016, US EPA published its Final Rule revising the requirements applicable to the export and import of hazardous wastes to and from the United States.  The changes enacted by US EPA make three significant revisions to existing regulations by:

  1. Aligning existing export and import related requirements with the current import-export requirements for shipments between members of the Organization for Economic Cooperation and Development (OECD);
  1. Doing away with paper submittals of all export and import related documents to EPA by mandating that such documents be submitted electronically through EPA’s Waste Import Export Tracking System (WIETS); and
  1. Enabling the electronic validation of consents in the Automated Export System (AES) for export shipments subject to RCRA export consent requirements prior to exit.

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Launch of UK “Food Crime Confidential” Whistleblower Facility Is Reminder to Food Businesses to Ensure Integrity of Supply Chains

On 28 November 2016, the National Food Crime Unit launched ‘Food Crime Confidential’, which is a phone and email reporting or ‘whistleblowing’ facility. Anyone can use the service, but it is targeted mainly at those working in or around the food industry, to allow them to report suspicions in confidence. Food Crime is defined by the Food Standards Agency (“FSA”) as ‘Financially motivated dishonesty relating to food production or supply, which is either complex or results in serious detriment to consumers, businesses or the overall public’. The Unit in particular want to hear about suspicions in relation to:

  • food or drink that has potentially been adulterated or substituted;
  • methods used in workplaces for producing, processing, storing, labelling or transporting food that appears illegal or substandard; and
  • companies or businesses that are selling items of food or drink that purport to be of a certain quality, suggest health benefits or claim to be from a specific place or region, but do not appear genuine or are suspected to be fake.

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US EPA Identifies First 10 Chemicals For Risk Evaluations Under Amended TSCA

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On November 29, US EPA announced the first 10 chemicals it will evaluate for potential risks to human health and the environment under the recently amended Toxic Substances Control Act (TSCA).  US EPA will evaluate the 10 chemicals to determine whether they “present an unreasonable risk of injury” to health or the environment “under the conditions of use.”  Within six months, US EPA must release a scoping document for each of these 10 chemicals, which includes the hazards, exposures, conditions of use and the potentially exposed or susceptible subpopulations that US EPA plans to consider in the risk evaluation. US EPA must complete the risk evaluations within three years (although the Agency may extend the deadline for up to six months if additional data or testing is needed). Details on this announcement and its implications can be found here.


Western US Water Managers Move Towards Collaborative Approaches to Water Management

The completion of the state of Colorado’s Water Plan on November 19, 2015, reflects a growing trend in western water management away from conflict and towards collaborative and inclusive discussion. Increasingly, western water managers are opting, or perhaps feeling obliged, to pursue more creative and coordinated solutions to complex water issues, built on broad-based stakeholder participation.

In an article published by Water World magazine, Jonathan S. King explains how western water management discussions have historically been handled – a confrontational, divisive, and often exclusive affair. Over the past year decades, however, water management in western watersheds has shifted focus toward collaboration – which can provide its own challenges, as developing binational (Minute 319) and multi-stakeholder interstate water sharing agreements (Lower Basin Drought Contingency Plan) can require lengthy, sensitive, and complex discussions. Continue Reading

Addressing Environmental, Safety & Health Management Risks in Nanotechnology

In a recent presentation at the Fifth Annual International Conference NANOSAFE 2016 in Minatec-Grenoble, France, Anthony Bochon explored how companies should address Environmental, Health & Safety Management risks in relation to nanomaterials. He discussed existing employment and consumers safety legal instruments that can be used in Belgium and abroad.

A leading expert in this emerging legal area of nanotechnology, Anthony has written extensively on this topic and has presented in various conferences on this field, including EuroNanoForum last year. He is serving as legal expert in the Horizon 2020 project EC4SafeNano, which is aimed at creating the first European nanosafety center.

NANOSAFE is Europe’s leading event on nanosafety sciences and regulation, bringing together top world experts in the field. The conference is attended by European Union officials, top researchers and industry representatives in the chemicals, pharmaceuticals and electronics sectors. Other speakers included Georgios Katalagarianakis, Scientific Officer of the European Commission, Alexnadre Ceccaldi, General Secretary of the European Technology Platform on Nanomedicine, and Dr Daniel Bernard, Senior Scientific Advisor for the Union des Industries Chimiques (Association of Chemical Industries).

Recent Developments in Oil Pollution Act Litigation

Congress enacted the Oil Pollution Act in 1990 following the Exxon Valdez oil spill in order to strengthen the federal government’s ability to prevent and respond to oil spills. As this law continues to evolve, particularly in the wake of the 2010 Deepwater Horizon spill, the Environmental Law Institute convened a panel of experts to discuss recent events in oil pollution law, including the resolution of Deepwater Horizon civil penalties and developments regarding natural resource damage assessments and liability. Washington DC environmental partner Russ Randle served as moderator. A transcript of that discussion, edited for clarity and readability, is available here.

One Year Later: The Clean Power Plan

It has been one year since the Clean Power Plan was published in the Federal Register, and the oral arguments for the rule in the D.C. Circuit have been concluded for about a month now. In this relative “calm before the storm,” as we wait for the D.C. Circuit decision, the 2016 Presidential Election, and the result of the Clean Air Act Section 111(b) litigation, it is a good time to take a step back and review what has happened and what is yet to come. Continue Reading

Ohio Appellate Court Affirms Appropriation of Private Land for Propane/Butane Pipeline

Late last month the Seventh District Court of Appeals in Ohio upheld the appropriation of private land for a pipeline that will carry pure propane and pure butane, ruling that such fractionated natural gas liquids still constitute “petroleum” under Ohio’s eminent domain laws.  The case is now on appeal to the Ohio Supreme Court, but if left undisturbed, the Court of Appeals decision will provide significant flexibility to developers of the Marcellus and Utica shale formations in Ohio. Continue Reading