Deadlines Set for Submission of Chemical Substance Notifications to US EPA under the TSCA Inventory Reset Rule

US EPA’s rule to “reset” the Toxic Substances Control Act (TSCA) Inventory of chemical substances was formally published in the Federal Register on August 11, 2017. This means that the clock is now running on the 180-day deadline for chemical manufacturers and importers to submit to US EPA the chemical substance notifications required by the rule. The deadline for the submissions is now set as February 7, 2018.

The Inventory Reset Rule requires every chemical manufacturer and importer to notify US EPA of each chemical substance it manufactured or imported for a non-exempt commercial purpose in the US during the 10-year period ending June 21, 2016 (the “lookback period”). Manufacturers and importers must provide this notification to US EPA within 180 days from August 11, 2017, the date on which the rule was in the Federal Register – i.e., by February 7, 2018. Each chemical substance for which US EPA receives such a notification will be designated as “active” on the TSCA Inventory.

The rule also gives chemical processors the option to report to US EPA any chemical substance they processed during the same lookback period, but they must do so within 420 days from the rule’s Federal Register publication date – i.e., by October 5, 2018. Processors have this extended submission period so that they can review a “draft” version of the revised Inventory that US EPA will issue approximately 60 days after the close of the 180-day reporting period for manufacturers and importers. Processors thus will have roughly 180 days after US EPA issues the draft revised Inventory to identify any chemical substances that manufacturers have failed to designate as “active” and submit notices to US EPA for the substances they processed during the lookback period, in order to keep such substances from being designated as inactive.

Any chemical substance not reported to US EPA by a manufacturer, importer or processor by the applicable deadline will be designated as “inactive” on the Inventory. Once the Inventory “reset” is finalized, no one may manufacture, import or process an inactive substance without giving US EPA prior notice not more than 90 days before the anticipated date of manufacturing, importing or processing.

Details on the TSCA Inventory Reset Rule and its implementation can be found in our client alert here.

US EPA Issues Three Major Rules Affecting Chemicals Industry

On June 22, 2017, US EPA issued three major rules required by the Frank R. Lautenberg Chemical Safety for the 21st Century Act (LCSA), which amended the Toxic Substances Control Act (TSCA) in 2016.   The three TSCA rules addressed: (1) “resetting” the TSCA Inventory, (2) chemical substances prioritization, and (3) risk evaluations for chemical substances.  The Prioritization and Risk Evaluation rules were published in the Federal Register on July 20. As of the date of this writing, the Inventory Reset rule has not yet been published in the Federal Register.  Squire Patton Boggs has prepared detailed client alerts addressing each of these rules and their implementation.  A summary of each rule along with the client alert link is provided below. Continue Reading

D.C. Circuit Strikes Down Portions of the RCRA Definition of Solid Waste Rule

On July 7, 2017, the D.C. Circuit Court of Appeals issued a decision striking down portions of US EPA’s Definition of Solid Waste (DSW) Rule, which defines when certain hazardous secondary materials (i.e. recyclable materials generated as the remainder of industrial processes) become “discarded” and thus subject to regulation as a solid waste.  The Rule, issued in 2015, was the latest effort to define “solid waste” under the Resource Conservation and Recovery Act (RCRA), 42 U.S.C. §§6901 et. seq., and was challenged by both industry and environmental groups.  Squire Patton Boggs was actively involved in the appeal on behalf of an industrial intervenor-movant.

In a per curiam decision, the Court sided with the industry petitioners in large part, dismissed the environmental groups’ challenges, and vacated two key aspects of the 2015 DSW Rule.  First, the Court vacated the fourth prong of the “legitimacy” test to distinguish between “true” and “sham” recycling, which must be met to qualify for exclusion from regulation as a solid waste.  Second, the Court vacated most of the “Verified Recycler” Exclusion and reinstated the pre-existing 2008 “Transfer-Based” Exclusion.  In so ruling, the Court also severed and retained requirements from the vacated 2015 exclusion relating to emergency preparedness and containment standards.

Legitimacy Factor 4 Rejected

In the 2015 DSW Rule, US EPA established four mandatory “legitimacy” criteria to differentiate legitimate from “sham” recycling.  “[B]ecause EPA’s waste disposal regulations are acknowledged to be very costly to meet, ‘there is an incentive for some handlers to claim they are recycling when, in fact, they are conducting . . . disposal.’  To prevent such evasion, EPA polices the line ‘between ‘legitimate’ (i.e., true) recycling and ‘sham’ (i.e., fake) recycling.”  Opinion at 6 (internal citations omitted).

In order to be deemed legitimate, the 2015 DSW Rule required the recycling activity to meet all four of the following Legitimacy Factors:  (1) the hazardous material must provide a useful contribution to the recycling process; (2) the recycling process must produce a valuable product or intermediate; (3) the generator and recycler must manage the hazardous secondary material as a valuable commodity; and (4) the product of the recycling process must be comparable to a legitimate product or intermediate.  See 40 CFR §260.43.

Although the Court upheld Legitimacy Factor 3, it ruled that Factor 4 was unreasonable as applied to recyclable materials which have commercial product analogues.  If such recyclable materials are even slightly more hazardous than their commercial analogues, they would not meet Legitimacy Factor 4 and therefore would constitute a solid waste under RCRA, even if they posed no significant risk to human health or the environment.  Consequently, the Court found that the Factor 4 test is “not a reasonable tool for distinguishing products from wastes” and is unreasonable as applied across the board to all hazardous secondary material recycling.  See Opinion at 13-14.

Verified Recycler Exclusion Vacated

In the 2015 DSW Rule, US EPA established the Verified Recycler Exclusion at 40 CFR §261.4(a)(24), which provided that hazardous secondary materials sent to a third-party recycler were exempt from regulation as solid wastes under RCRA so long as the materials were sent to a “verified recycler” having either a RCRA permit or  a RCRA variance from US EPA or an authorized state and certain other operational requirements (such as emergency preparedness and containment standards, discussed below) are met.

The Verified Recycler Exclusion replaced the prior Transfer-Based Exclusion from the 2008 DSW Rule, which exempted hazardous secondary materials sent to a third-party recycler so long as the generator had made “reasonable efforts” to ensure that the recycler met standards for legitimate recycling.  Whereas the 2008 Transfer-Based Exclusion exempted materials based on the generator’s reasonable efforts to verify the third-party recycler’s legitimacy, the 2015 Verified Recycler Exclusion transferred this legitimacy confirmation responsibility to US EPA or an authorized state by requiring that the third-party recycler hold either a RCRA permit or variance.

Industry petitioners argued that the more stringent oversight requirement in the Verified Recycler Exclusion was based upon US EPA’s unreasonable presumption that recycling by a third-party inherently carries a greater risk that the hazardous secondary materials will be discarded than in the case of generator-controlled recycling, which does not require a RCRA permit or variance to be exempt under the 2015 DSW Rule.  US EPA argued that various studies suggested that the recycling of low-value materials by third-party recyclers does carry a higher risk of discard, but the Court found that these theoretical studies were not a sufficient basis for the Verified Recycler Exclusion’s more stringent oversight requirements: “EPA fails to provide sufficient linkage between theory, reality, and the result reached.”  Opinion at 29-32.  Consequently, the Court vacated the 2015 Verified Recycler Exclusion and reinstated the 2008 Transfer-Based Exclusion.

Severed Provisions Retained

Although it vacated the 2015 Verified Recycler Exclusion, the Court considered whether any aspects of the exclusion were “severable” and therefore could be upheld: “We will sever and affirm a portion of an administrative regulation only when we can say without any substantial doubt that the agency would have adopted the severed portion on its own.”  Opinion at 35.

Here, the Court concluded that two aspects of the Verified Recycler Exclusion were severable and should be upheld to address regulatory gaps from the 2008 Transfer-Based Exclusion.  First, the Court upheld the emergency preparedness and response requirements at 40 CFR Part 261, Subpart M, which require the generator to have certain processes and equipment in place, such as use of fire control systems, to minimize the risk of fire, explosion or unplanned release that could threaten human health and the environment.

Second, the Court upheld the  Verified Recycler Exclusion’s containment standards, which require that recyclable materials be held in a “unit” that is in good condition (e.g. not leaking) and designed to prevent releases to the environment, is properly labeled or otherwise subject to a system (such as a log) to immediately identify the materials contained in the unit, and that all contained materials placed in the unit are compatible.

Petroleum Refining Spent Catalysts

By vacating the 2015 Verified Recycler Exclusion and reinstating the 2008 Transfer-Based Exclusion, the Court essentially eliminated any third-party recycler exemption for petroleum refining spent catalysts, designated as K171 and K172, because spent catalysts were not eligible for the 2008 Transfer-Based Exclusion.  The Court found that “[a]t no point in the record does EPA propose keeping the Transfer-Based Exclusion and repealing its spent catalyst disqualifier.”  Opinion at 35.  However, the Court noted that it would be willing to consider further argument on this point: “If EPA, or any party, wishes to disabuse us of our substantial doubt with a petition for rehearing, we will of course reconsider as necessary.”

In sum

By reinstating the 2008 Transfer-Based Exclusion, the Court’s ruling significantly expands the RCRA regulatory exclusion for third-party recycling of hazardous secondary materials (except for petroleum refining spent catalysts).  However, by severing and upholding the 2015 DSW Rule’s emergency preparedness and containment standards, the Court’s ruling has added additional regulatory conditions to this 2008 exclusion.   By contrast, the Generator-Controlled Exclusion under the 2015 DSW Rule was not challenged and is unaffected by the ruling.  While there is much in this decision for industry to cheer, generators and recyclers of hazardous secondary materials will need to carefully consider and adhere to both the 2008 Transfer-Based Exclusion and the 2015 DSW Rule’s emergency preparedness and containment standards in order to ensure that third-party recycling of such materials remains exempt from hazardous waste regulation under RCRA.

Product Recalls vs Withdrawal From Sale: The Current UK Position

On 14 June 2017, forty fire engines and more than 200 firefighters were required to tackle an inferno that destroyed 151 homes, and killed scores of people at Grenfell Tower, a 24-storey block of public housing flats in West London.  The source of the Grenfell Tower fire has recently been identified as a fridge freezer.  The Metropolitan Police has stated that it will consider manslaughter, as well as health and safety and fire safety charges in respect of the disaster.

While there has been significant public outrage and media attention in relation to the activities of Local Authorities and their role in ensuring fire safety and carrying out requisite building inspections, the spotlight on the actual cause of the fire (the fridge freezer), has paled in comparison. As at 14 July 2017, some 3 weeks after the incident, a product recall for this item has not been issued.

Interestingly, a Government working group on product recalls and safety (established in October 2016), was tasked with identifying the causes of fire in white goods and the actions needed to reduce them. This came about following a review of a number of published product recalls in recent years, which highlighted that various white good products (which includes dishwashers, washing machines, tumble dryers, fridges and freezers) had been recalled due to fire risks.  White goods on average account for over 300 fires in London each year. In 90 per cent of these cases, the cause of the fire was a fault in the appliance or its electrical supply, rather than human behaviour.

The working group delivered its initial recommendations to the Minister for Small Business, Consumers and Corporate Responsibility, Margot James, which included amongst other things, that it would develop a Code of Practice on managing effective Correction Action (including recalls). The working group was due to deliver its full recommendations in the Spring of 2017, however now into the Summer months of 2017, the recommendations have not yet been published. Continue Reading

What Happened to US EPA’s New Source Performance Standards and Emission Guidelines for Municipal Solid Waste Landfills?

In 2016, US EPA finalized two rules designed to reduce methane and non-methane organic compound emissions from landfills.  These rules were adopted as part of President Obama’s Climate Action Plan: Strategy to Reduce Methane Emissions.  US EPA issued final New Source Performance Standards (NSPS) to reduce emissions caused by landfill gas from new, modified and reconstructed municipal solid waste (MSW) landfills, as well as Final Updates to Emissions Guidelines designed to reduce emissions from existing MSW landfills, on August 29, 2016.  These combined rules updated the standards originally issued by US EPA in 1996.

On May 31, 2017, US EPA, under the Trump Administration, issued a stay of both rules until August 29, 2017 so that it could review an administrative petition filed on October 27, 2016 by the National Waste & Recycling Association, Solid Waste Association of North America, Republic Services, Inc., Waste Management Inc. and Waste Management Disposal Services of Pennsylvania, Inc.  The petition sought reconsideration of the combined rules and an administrative stay under CAA section 307(d)(7)(B).  Pursuant to this authority, US EPA stayed the effectiveness of these rules for 90 days so that it can address the objections raised in the administrative petition.

A recent decision by the US Court of Appeals for the District of Columbia, however, casts doubt on US EPA’s authority to stay the effectiveness of final rules under CAA section 307(d)(7)(B).  In Clean Air Council et al. v. Pruitt et al., case number 17-1145, the court granted Environmental Petitioners’ motion to vacate US EPA’s stay of final rules that regulate methane emissions from new natural gas and oil drilling sites.  US EPA, as a consequence of this decision, must enforce these rules as finalized until such time as they are formally amended or revoked.  Although US EPA’s stay of the final NSPS and emission guidelines remains in place, it has been challenged in Natural Resources Defense Council, et. al. v. Pruitt, et. al., case number 17-1157.  The case, which was filed on June 15, 2017, is still pending before the in the United States Court of Appeals for the District of Columbia. Continue Reading

US Lawmakers Target the Endangered Species Act While Advocates Continue to Sue to Shape the Act’s Implementation

Since President Nixon signed into law the Endangered Species Act (ESA) in 1973, the ESA has directed the identification and protection of endangered and threatened species in the United States. While President Obama remarked that his Administration had “seen more victories under the Endangered Species Act than any previous administration,” the Obama Administration generally applied the ESA in a fashion designed to avoid significant legal and political battles. By contrast, advocates and politicians on both sides have brought the ESA front and center during the first few months of the Trump Administration.

In June, for example, the General Land Office of the State of Texas (TXGLO), a state agency charged with land and natural resource stewardship in Texas, sued the Department of the Interior and the US Fish & Wildlife Service (FWS) in an attempt to remove a bird, the golden-cheeked warbler, from the endangered species list. TXGLO pointed to a 2015 Texas A&M study concluding that the warbler’s population had increased to 19 times more than had been assumed when the bird was listed as endangered. In a corresponding press release, TXGLO Commissioner George P. Bush stated: “The restoration of the golden-cheeked warbler population is a success story worth celebrating by removing it from the endangered list and restoring the rights of Texas landowners to effectively manage our own properties.”  As discussed below, the ESA is receiving significant political and legal attention.  This raises the question of whether TXGLO will pursue a legal decision mandating the delisting of the golden-cheeked warbler or whether will it take advantage of a friendly political administration and utilize the “sue and settle” strategy to begin the delisting process. Continue Reading

US Dam Infrastructure Earns a “D” in American Society of Civil Engineers Report Card

In 2017, the American Society of Civil Engineers (ASCE) completed its quadrennial infrastructure report card, giving American infrastructure a “D +” overall, and a slightly lower “D” for the “Dams” category. With 90,580 existing water impoundments in the US, there is need and opportunity to undertake a variety of activities at all levels of government and across multiple sectors in order to develop a systematic approach to dam safety, operations and maintenance, water supply, hydropower production, and ecosystem health on the nation’s rivers and streams. Continue Reading

Squire Patton Boggs Helps Secure a Victory for the State of Colorado at the US Supreme Court

On June 26, the US Supreme Court denied New Mexico’s petition seeking to institute an original action against Colorado for the 2015 Gold King Mine spill. An original action in the US Supreme Court is a lawsuit between states. Invoking that rarely used procedure, New Mexico sought to hold Colorado liable for the Gold King Mine spill.  New Mexico asserted claims under the intricate provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) and the Resource Conservation and Recovery Act of 1976 (RCRA). New Mexico also sought analogous relief against Colorado under federal interstate common law.

Assisting the State of Colorado, a Squire Patton Boggs team, led by Carolyn McIntosh and Peter Gould, along with Alex Arensberg, Wes Reed, and Brent Owen, successfully argued that the US Supreme Court should not entertain New Mexico’s novel lawsuit. As explained in Colorado’s briefing, New Mexico’s RCRA claim failed because a CERCLA response action had been initiated to address the relevant hazardous substance release. New Mexico’s CERCLA claim failed, Colorado argued, for a number of reasons, including that once a site is under investigation under CERCLA authority, several of New Mexico’s claims are barred because they would interfere with the CERCLA investigation and remedy decision making. Colorado additionally argued that Congress displaced New Mexico’s putative federal common law claims through its enactment of comprehensive environmental statutes, most importantly the Clean Water Act, but also CERCLA and RCRA.  Finally, Colorado’s briefing also explained that Colorado should not be held liable for its regulatory activities in remediating and managing abandoned mines.

The Gold King Mine spill occurred in August 2015 after a contractor for the US Environmental Protection Agency (EPA) breached a collapsed mine portal at the Gold King Mine in the mountains near Silverton, Colorado. The breach released roughly three million gallons of acidic mine water into the Animas River.  The release received national attention because, for a time, it turned portions of the Animas River yellow from the oxidation of dissolved iron in the escaped water.

US EPA studies performed following the release concluded that water quality returned to pre-event conditions within two weeks after the Gold King Mine plume passed. Additionally, there were no reported fish kills in the affected rivers, and post release surveys by several organizations found that other aquatic life do not appear to have suffered harmful short-term effects from the Gold King Mine plume.  US EPA and Colorado continue to monitor the potential impacts from the Gold King Mine spill.

Remediation efforts at Gold King are ongoing. Last year, US EPA—which has taken responsibility for the spill—listed Colorado’s Bonita Peak Mining District (including the Gold King Mine) as a Superfund site.  In a statement, US EPA Regional Administrator explained the benefit of that listing:

Listing the Bonita Peak Mining District on the National Priorities List is an important step that enables EPA to secure the necessary resources to investigate and address contamination concerns of San Juan and La Plata Counties, as well as other downstream communities in New Mexico, Utah, and the Navajo Nation.

Colorado’s victory at the US Supreme Court protects Congress’s carefully constructed statutory scheme for the effective management and remediation of water pollution across the country. It also protects Colorado’s sovereign ability to remediate abandoned mines.

Squire Patton Boggs will continue to monitor the Gold King Mine spill and provide updates.

Traditional SEPs and Mitigation Projects May Still Pass Muster under US DOJ’s New Settlement Policy

US Attorney General Jeff Sessions recently issued a new policy barring payments to non-governmental third parties as part of most civil and criminal settlements.  The memorandum does not detail how the US Department of Justice (DOJ) will implement the policy, leaving much to departmental interpretation.  The language is broad enough to have significant impacts on environmental settlements.  For those parties seeking agreement on traditional Supplemental Environmental Projects (SEPs) or mitigation projects, however, there is reason to support the DOJ’s continued acceptance of these projects even under the new policy. Continue Reading

OSHA to Hold Stakeholder Meetings on Voluntary Protection Programs

The US Occupational Safety and Health Administration (OSHA) recently announced its plan to hold a stakeholder meeting in Washington, D.C. on July 17, 2017, “to discuss the future direction of the agency’s Voluntary Protection Programs (VPP),” the agency’s initiative to prevent workplace injuries and illnesses through cooperation, collaboration, and targeted hazard prevention and control.  A second stakeholder meeting is also tentatively scheduled to occur in New Orleans on August 28, 2017, but it has not yet been confirmed. Continue Reading