Under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§6901 et seq., hazardous waste land disposal units in operation after November 19, 1980 are subject to the RCRA hazardous waste management regulatory program. After closure of a hazardous waste land disposal unit where waste remains in place, RCRA regulations require the owner or operator (“owner/operator”) to perform post-closure care activities and provide financial assurance for the estimated costs of the post-closure care. The regulations require a 30-year post-closure care period, though the post-closure period may be extended by EPA or an authorized state if it can be demonstrated that an extension is “necessary to protect human health and the environment.” Continue Reading EPA Issues Guidance on Extending the Timeframe for Hazardous Waste Management Unit Post-Closure Care Under RCRA
On August 30, 2016, after two years of rulemaking, California’s Office of Environmental Health Hazard Assessment (OEHHA), the agency that administers California’s Proposition 65, adopted amendments to the Proposition 65 regulations that govern the “safe harbor” language deemed to be “clear and reasonable” and thus Proposition 65-compliant. The new standards provide consumers with more detailed information regarding potential chemical exposures. The new standards go into effect August 30, 2018. Until the effective date, warnings may use either the current warning language under existing 2008 regulations or the new warning language. Products manufactured prior to the effective date will not be subject to the new requirements, and warnings set forth in court-ordered settlements or consent judgments prior to the effective date will continue to be deemed “clear and reasonable” for the exposures covered by those judgments.
On January 13, 2017, the U.S. Environmental Protection Agency (EPA) published its much anticipated proposed reset to the Toxic Substances Control Act (TSCA) Chemical Substance Inventory in the Federal Register. The new TSCA amendments require EPA to subdivide the existing inventory into lists of active and inactive substances. The proposed rule sets out reporting and procedural requirements for chemical manufacturers and processors to notify the Agency which chemicals should be considered active.
The proposal requires “retrospective” notification for substances listed on the TSCA Inventory that were manufactured in or imported into the US for non-exempt business purposes between June 21, 2006 and June 21, 2016. Properly notified substances would be designated by EPA as active. Substances on the inventory that do not receive a valid notice will be designated as inactive. Inactive substances may not be manufactured, imported, or processed for a non-exempt commercial purpose under TSCA. EPA is also proposing “forward-looking” procedures for converting inactive substances to active substances in the event a company intends to resume manufacture, import, or processing of an inactive substance.
On December 21, 2016, the U.S. Environmental Protection Agency finalized amendments to its Risk Management Program (RMP). The EPA Administrator, Gina McCarthy, signed the final rule but it has not yet been published in the Federal Register.
The Accidental Release Prevention regulations under section 112(r) of the Clean Air Act, also called the Risk Management Program regulations, require covered facilities to develop and implement a risk management program and coordinate with state and local officials. Approximately 12,500 facilities are covered by the RMP and will be affected by the revised rule. These facilities include petroleum refineries, large chemical manufacturers, water and waste treatment systems, chemical and petroleum wholesalers and terminals, food manufacturers, packing plants and other cold storage facilities with ammonia refrigeration systems, and some gas plants.
The United States Securities and Exchange Commission (“SEC”) is reviewing sustainability. On April 13, 2016 the SEC issued a “Concept Release” seeking public comments on 340 topics relating to business and financial disclosure requirements for publicly-traded companies under Regulation S-K. See 81 Fed. Reg. 23916 (April 22, 2016) (“CR”). Several topics addressed the disclosure of company information relating to sustainability and public policy issues. Such issues, including climate change, resource scarcity, corporate social responsibility (“CSR”), and good corporate citizenship, are often referred to generically as environmental, social, and governance (“ESG”) concerns. C.R., p. 206. The concepts of CSR and ESG overlap greatly if not entirely, and precise definitions of these terms are lacking. In this article, the terms “sustainability” and “ESG” will be used interchangeably in the context of corporate reporting. Many of the largest companies in the U.S. voluntarily publish annual sustainability reports and/or website ESG content. At issue is to what extent ESG reporting by publicly-traded companies should be required by SEC regulations.
The U.S. Department of Transportation Department’s Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Railroad Administration (FRA) issued a final rule on August 15, 2016 modifying regulations governing trains hauling crude oil and other flammable materials. See 81 Fed. Reg. 53935. These changes codifiy certain mandates and minimum requirements set forth in the Fixing America’s Surface Transportation Act of 2015 (FAST Act) (Pub. L. No. 114-94), enacted in December 2015. The full text of the PHMSA rule is available here.
In a Federal Register notice made public August 15, 2016, the Pipeline and Hazardous Materials Safety Administration (“PHMSA”) issued an advisory bulletin to “all owners and operators . . . of hazardous liquid, carbon dioxide, and gas pipelines, as defined in 49 Code of Federal Regulations Parts 192 and 195” clarifying how pipelines that are no longer in use should be treated. The full text of the bulletin is available here. PHMSA indicated that this advisory is necessary because improperly abandoned pipelines have resulted in pipeline incidents nationwide.
The U.S. Environmental Protection Agency (EPA) regulations under the Resource Conservation and Recovery Act of 1976 (RCRA) impose a comprehensive and often onerous program regulating the disposal and recycling of hazardous wastes. If you generate a secondary material that would need to be managed as a hazardous waste if you disposed of it, but the material is being recycled instead, you must determine whether the recycling is legitimate if you wish to qualify for exemptions and exclusions from the RCRA regulations. Charles Merrill breaks down the RCRA Sham Recycling Rule requirements in this white paper.
The Environmental Working Group (“EWG”), a nonprofit, nonpartisan organization, issued a report on July 21, 2016 recommending the ten chemicals it thinks should be assessed first under the amended Toxic Substances Control Act (TSCA).