D.C. Circuit Further Clarifies the RCRA Definition of Solid Waste Rule Ruling

On March 6, 2018, the D.C. Circuit Court of Appeals modified its 2017 ruling in American Petroleum Institute v. EPA, No. 09-1038, concerning US EPA’s Definition of Solid Waste (DSW) Rule under the Resource Conservation and Recovery Act (RCRA), which defines when hazardous recyclable materials are excluded from regulation as hazardous waste.  The end result of this modified ruling is to relax the standards for legitimate (as opposed to “sham”) recycling and to extend the DSW Rule’s exclusions to spent petroleum refinery catalysts (K171 and K172 listed hazardous wastes).
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Making Brexit Work for the Chemical Industry Sector

A strong chemical manufacturing sector is at the heart of every successful economy. In the UK, the sector contributes £18 billion a year to the economy, employs 500,000 people and has £50 billion worth of exports – the largest of any manufacturing sector. Most importantly, 60% of these exports go to the EU and 75% of the UK’s chemical imports come from the EU.

The terms of the UK’s exit from the EU are, therefore, critical for the future success of the sector.  A recent report, produced by the Chemical Industries Association in partnership with Squire Patton Boggs, examines some of the critical issues, challenges and opportunities for the sector as the UK progresses its Brexit negotiations.


Amid Pushback, US EPA’s Reversal on “Once In Always In” Policy Opens Door to Reduced Clean Air Act Obligations

On January 25, 2018, Bill Wehrum, the new Assistant Administrator of US EPA’s Office of Air and Radiation, issued a memorandum to all Regional Air Division Directors rescinding US EPA’s historic “Once In Always In” (OIAI) policy for major sources under US EPA’s National Emission Standards for Hazardous Air Pollutants (NESHAP) program. Under the “Once In Always In” (OIAI) policy, major sources subject to Maximum Achievable Control Technology (MACT) standards were prohibited from reclassification that would allow them to escape major source MACT standards. Effectively, once in, always in. US EPA’s new policy retracts that position. As Administrator Scott Pruitt testified before the Senate Environment and Public Works Committee, this updated guidance presents an opportunity to reward major emission sources who have invested the time and money to significantly reduce hazardous air pollutants and that now fall below the major source threshold.

US EPA anticipates publishing a document in the Federal Register to take comment on adding regulatory text that will reflect US EPA’s current legal interpretation; a move that, if successful, will help solidify and address the bounds of this new policy.  Of course, we expect that legal challenges to both the updated OIAI guidance and any subsequent rulemaking will occur. US EPA’s proposal is already receiving push back from a group of 16 Senate Democrats who, in a letter to Administrator Pruitt on March 14th, are urging US EPA to reinstate its prior OIAI policy, at least until US EPA has performed a thorough analysis of the policy change and received public comment.

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February 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law and Procedure

Check out the February 2018 edition of the UK Environmental, Safety & Health team’s monthly newsletter, frESH Law Horizons: Electronic NewsKey Developments in UK and EU Environment, Safety and Health Law and Procedure, for “bite-sized” updates on EU and UK law and policy on the following hot topics:

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Navigating the “No Affiliation” Requirement to Bona Fide Prospective Purchaser CERCLA Liability Protection

­An important consideration for purchasers of US commercial property is establishing Bona Fide Prospective Purchaser (“BFPP”) liability protection to mitigate the risk of liability under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et. seq.   Because the current owner of a property where a release of hazardous substances has occurred may be liable under CERCLA for the costs of responding to the release simply by virtue of having acquired title to the property (even if the owner was not aware of the release), obtaining status as a BFPP is a valuable safeguard against CERCLA liability since the protection can apply even if the purchaser had knowledge of existing contamination at the time of acquisition.

Although there are several requirements that must be met to achieve BFPP status, one of the less-discussed BFPP requirements is having “no affiliation” with a liable party.[1]  While this may seem a fairly straightforward concept, purchasers can create unnecessary risks by failing to give this requirement due consideration. Continue Reading

US EPA Proposes New Toxic Substances Control Act Fee Rule

On February 26, 2018, the US Environmental Protection Agency (US EPA) formally issued its proposed rule to charge new “user fees” under the amended Toxic Substances Control Act (TSCA).  TheBriefcase of Money amended TSCA authorizes US EPA to charge fees for a variety of activities under TSCA sections 4, 5 and 6, totaling up to 25% of the overall costs for the agency to conduct these activities.  Comments on the proposed fee rule must be submitted to US EPA on or before April 27, 2018.

US EPA expects to collect approximately $20.05 million annually during fiscal years 2019-2021 for the activities for which the new fees will be charged.  US EPA has estimated that the overall cost to conduct these activities will be roughly $80.2 million each year. Continue Reading

Warning: Only 6 Months Left Before New Prop 65 Regulations Become Operative on August 30, 2018

As of today’s date, businesses have only 6 months to comply with the newly-amended Clear and Reasonable Warnings regulations in California’s Proposition 65 (Prop 65), which take effect on August 30, 2018. We posted a 1-year reminder here, which discusses the history of Prop 65, the new requirements in the regulations, and the potential increase in enforcement litigation stemming from alleged noncompliance.

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UK Health and Safety Offences – No Two Cases Are The Same

JusticeThe recent UK Court of Appeal judgement in the case of R v Whirlpool UK Appliances Limited provides a useful analysis on the approach that courts should take when sentencing “very large organisations” under the Sentencing Council’s Definitive Guideline on Corporate Manslaughter, Health and Safety and Food and Safety Hygiene Offences (“the Guideline”).

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January 2018 Update: Key Developments in UK and EU Environment, Safety and Health Law and Procedure

Check out the January 2018 edition of the UK Environmental, Safety & Health team’s monthly newsletter, Online NewsfrESH Law Horizons: Key Developments in UK and EU Environment, Safety and Health Law and Procedure, for “bite-sized” updates on EU and UK law and policy on the following hot topics:
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The Future of the Clean Power Plan as US EPA’s Proposed Repeal Looms

On October 16, 2017, US EPA, under Administrator Scott Pruitt, proposed the repeal of the Clean Power Plan (CPP), and the Agency is accepting comments on the repeal until April 26, 2018. Following a review of the statute’s language, surrounding policy, and legislative history, US EPA proposed to “return to a reading of CAA section 111(a)(1) … as being limited to emission reduction measures that can be applied to or at an individual stationary source.” US EPA characterized the CPP as relying on measures unable to be applied to a single source. The effect, according to the Agency, is that the CPP relies on “actions taken across the electric grid, rather than actions taken at and applied to individual units.” The practical implications are that coal-fired units under the CPP would face a decision to switch to gas-fired units or renewable energy sources.

The impetus for the proposed repeal stems from Executive Order 13783 signed by President Trump on March 28, 2017. The Order calls for agencies to “immediately review existing regulations that potentially burden the development or use of domestically produced energy resources,” including the CPP. Specifically, the Order directs the US EPA Administrator to “immediately take all steps necessary to review the final rules set forth in subsection (b)(i) and (b)(ii) of this section [the Clean Power Plan]….and, if appropriate…as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules.” On December 15, 2017, US EPA publicly released a timeline for the rule repealing the CPP, with a target deadline of October 2018.

Recently, however, US EPA expressed a willingness to consider a replacement to the CPP if the repeal moves forward, publishing an Advanced Notice of Proposed Rulemaking  (ANPRM) on December 28, 2017. In the notice, US EPA requested comments on “what the EPA should include in a potential new existing source regulation under CAA section 111(d).” In particular, the Agency focused on determination of the Best System of Emission Reduction (BSER), the application of GHG emission limits to a source-specific level, the role of state regulatory agencies, and interactions between the New Source Review (NSR) program and potential GHG emission guidelines. In its request for comments, the Agency expressly directed that submitters should assume the interpretation of CAA section 111(a)(1) means limited to emission reduction measures “applied to or at a stationary source, at a source-specific level.” The focus on source-specific levels for GHG emission limits indicates an approach within the fenceline, and the Agency specifically cited North Carolina’s draft plan as an example of such unit-level emission standards. The comment period for the ANPRM is open until February 26, 2018. Continue Reading