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Solid and Hazardous Waste/Recycling Developments: 2017 – 2018

Explore federal and state decisions, litigation, regulations, and policies related to solid and hazardous waste, including recycling, in the past year.

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Solid and Hazardous Waste/Recycling Developments: 2017 – 2018

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  1. Solid and Hazardous Waste/Recycling Developments:2017 – 2018 Walter G. Wright, Jr. Mitchell Williams Law Firm Little Rock, Arkansas (501) 688-8839 wwright@mwlaw.com

  2. Discussion will address: • A variety of federal and state decisions, litigation, rulings, regulations, policies, etc. either directly or indirectly related to solid or hazardous waste (including recycling) that have arisen over the last 12 months or so.

  3. Source of information that often addresses issues relevant to solid/hazardous waste and recycling issues: s Arkansas Environmental, Energy and Water Law Blog http://www.mitchellwilliamslaw.com/blog Three posts five days a week

  4. Off-Site Waste and Recovery Operations/NESHAP: U.S. Environmental Protection Agency Proposed Revisions • The EPA in an August 7th Federal Register Notice proposed revisions to the Clean Air Act National Emission Standards for Hazardous Air Pollutants (“NESHAP”): Off-Site Waste and Recovery Operations. See 82 Fed. Reg. 36713. • The NESHAP applies to: • Hazardous waste treatment, storage disposal facilities • RCRA exempt hazardous wastewater treatment facilities • Non-hazardous wastewater treatment facilities other than publicly-owned treatment works • Used solvent recovery plants • RCRA exempt hazardous waste recycling operations • Used oil re-refineries

  5. Off-Site Waste and Recovery Operations/NESHAP: EPA Proposed Revisions (Cont.) • EPA on March 18 2015 promulgated a final rule amending the OSWRO NESHAP based on a residual risk and technology review conducted for the OSWRO source category. • A petition for reconsideration in regards to this final rule was submitted to EPA by Eastern Chemical Company and the American Chemistry Council. • The petition sought reconsideration of: • The equipment leak provisions for connectors • The requirement to monitor PRDs on containers • EPA’s proposed rule would remove the additional monitoring requirements for PRDs on containers derived from the 2015 final rule.

  6. Treated Railroad Ties/Non-Hazardous Secondary Material Rule: U.S. Environmental Protection Agency Final Rule • EPA in a February 7th Federal Register notice issued a final rule amending the Non-Hazardous Secondary Material Rule to add certain treated railroad ties to the list of Categorical Non-Waste Fuels. • The TRTs added are processed creosote-porate, copper naphthenate, and copper naphthenate-borate. • Section 129(a)(1)(B) of the Clean Air Act directs the EPA to establish standards for Commercial and Industrial Solid Waste Incinerators (“CISWI”) which burn solid waste. • The Clean Air Act further provides in Section 129(g)(6) that the term “solid waste” is to be established by the agency under the Resource Conservation and Recovery Act (“RCRA”). Section 2002(a)(1) of RCRA authorizes the agency to promulgate regulations as are necessary to carry out its functions under the statute.

  7. Treated Railroad Ties/Non-HazardousSecondary Material Rule: U.S. EnvironmentalProtection Agency Final Rule (Cont.) • Previous RCRA rulemakings identified certain hazardous materials that the agency decided were not solid waste when burned in combustion units. • A determination that a material is not a solid waste is important and sought after for obvious reasons. • Processes or operations that burn these non-hazardous secondary materials are not required to be evaluated under general case-by-case standards and procedures that would otherwise apply to non-hazardous secondary material burned in combustion units. • The eligibility of these TRTs for being considered Categorical Non-Waste Fuels is dependent upon certain conditions and chemical treatment.

  8. Electroplating Sludge/RCRA: EPA Proposal to Grant Austin, Texas Manufacturing Facility Delisting Petition • EPA in a July 14th Federal Register Notice proposed to grant a petition to exclude (or delist) sludge generated from the facility’s electroplating process from the list of RCRA hazardous waste. See 82 Fed. Reg. 32519. • EPA was responding to a delisting petition submitted by Samsung Austin Semiconductor to exclude waste generated by its manufacturing facility located in Austin, Texas. • SAS submitted the petition under 40 C.F.R. 260.20 and 260.22(a) which provide an opportunity to petition the Administrator to modify or revoke any provision of parts 260 through 266, 268, and 273. 260.22(a) provides generators the ability to petition the Administrator to exclude a waste on a “generator specific” basis from the lists of RCRA hazardous waste. • The SAS waste generated by its Austin, Texas facility is described as filter cake (F006). • The EPA review of the SAS petition is stated to have included consideration of both original listing criteria and additional factors required by the hazardous and solid waste amendments of 1984. • The agency evaluated the waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (3). As a result, it agreed with SAS that the waste is non-hazardous with respect to the original listing criteria.

  9. Landfill Emission Rule/Clean Air Act: Seven States Send Noticeof Intent to Sue U.S. Environmental Protection Agency forAlleged Failure to Enforce • Seven state Attorneys General sent the following document to the United States Environmental Protection Agency dated March 23rd: Notice of Intent to Sue for Failure to Enforce the 2016 Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills (40 C.F.R. Part 60 Subpart C(f) • The state Attorneys General sending the Notice of Intent to Sue (“Notice”) include: • California • Pennsylvania • Illinois • Maryland • Oregon • Rhode Island • Vermont Both State Attorney Generals (in certain states) and environmental groups have and will continue to bring citizen suit actions pursuant to the various statutes against EPA alleging violation of a non-discretionary duty (and will prevail in some instances).

  10. Landfill Emission Rule/Clean Air Act: Seven States Send Noticeof Intent to Sue U.S. Environmental Protection Agency forAlleged Failure to Enforce (Cont.) • The regulation which is typically referenced as the 2016 Emission Guidelines and Compliance Times for Municipal Solid Waste Landfills addresses emissions of volatile organic compounds, hazardous air pollutants, carbon dioxide, and methane. • The states argue that the regulation went into effect on October 28, 2016, but that EPA has failed to enforce it and have no basis for delay.

  11. Coal Ash/Preemption: Federal Appellate Court Addresses Challenge to Municipal Regulation • Local and federal/state environmental laws sometimes conflict. • The question that can arise is whether local laws are preempted. • A recent example involving a local solid waste law: • The United States Court of Appeals for the First Circuit addressed whether two Puerto Rican municipalities could prohibit the beneficial use and disposal of coal ash (also known as Coal Combustion Residuals within their borders. See AES Puerto Rico, L.P. v. Trujillo-Panisse, 857 F.3d 101 (2017). • AES Puerto Rico, L.P. (“AES-PR”) brought an action in the United States District Court against the two municipalities, Humacao and Peñuelas, challenging the ordinances. • Peñuelas and Humacao adopted ordinances in 2013 prohibiting the placement of CCRs on the ground within the respective municipalities. • Despite the ordinances, in September 2014, Puerto Rico’s Environmental Quality Board issued a resolution authorizing disposal of CCR generated by AES-PR’s coal plant at landfills meeting the design and operation requirements of federal and Commonwealth law.

  12. Coal Ash/Preemption: Federal Appellate Court Addresses Challenge to Municipal Regulation (Cont.) • The Court determined that “Puerto Rico law envisions a collaboration between Commonwealth and local authorities in dealing with solid waste. • The Court held that the EQB resolutions preempt the two municipal ordinances. Note: Environmental Preemption Issues Sometimes Arise in Arkansas: Recent: Odor ordinance/Russellville Past: El Dorado/Incineration Jacksonville/Vertac

  13. CERCLA/Superfund: U.S. Environmental Protection Agency Announces 21 SitesTargeted for "Immediate/Intense Action" • Federal Superfund Program a focus for EPA • By way of example, EPA identified 21 sites that it has targeted for what it describes as “immediate and intense action.” • No Arkansas sites are found on the list. • Superfund sites from neighboring states include: • Mississippi Phosphates Corporation – Pascagoula, Mississippi • Tar Creek – Ottawa County, Oklahoma • San Jacinto Waste Pits – Channelview, Texas • Westlake Landfill – Bridgeton, Missouri • EPA states that the list was developed by considering sites: . . . that can benefit from Administrator Pruitt’s direct engagement and have identifiable actions to protect human health and the environment. • The sites are stated to require “timely resolution of specific issues to expedite cleanup and redevelopment efforts.” • No additional funds.

  14. Superfund/Applicable, or Relevant and AppropriateRequirements: Association of State and TerritorialSolid Waste Management Officials Policy Paper • The Association of State and Territorial Solid Waste Management Officials published a position paper titled: State Concerns with the Process of Identifying Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) applicable, or Relevant and Appropriate Requirements (“Paper”) • The ASTSWMO CERCLA and Brownfields Subcommittee has been evaluating State and Territorial roles at CERCLA (i.e., Superfund) cleanups. • An issue identified as “troubling” is the process of identifying and accepting State cleanup standards and rules as Applicable or Relevant and Appropriate Requirements in CERCLA cleanups. • ARARs are identified on a site-specific basis based on whether an environmental law is “applicable” or “relevant and appropriate.”

  15. Superfund/Applicable, or Relevant and AppropriateRequirements: Association of State and TerritorialSolid Waste Management Officials Policy Paper (Cont.) • The listed policy concerns raised by States are identified as: • Inconsistencies in ARAR determination from one site to another; • EPA’s application of State requirements as ARARs that is inconsistent with how States apply their cleanup requirements and standards; • EPA’s determination that a State requirement is procedural rather than substantive when the State believes it is an ARAR critical to implementation of the chosen remedy; • Reluctance of other federal entities to recognize State environmental laws and regulations as ARARs; • Lack of written documentation on an ARAR determination where EPA finds that a State cleanup requirement was not an ARAR; and • EPA delays when determining whether a State requirement is an ARAR, and as a result, leaving the State inadequate time to challenge the finding.

  16. CERCLA/Superfund/HardrockMining: February 21st EPA Announcement Declination to Issue Financial Responsibility Requirements • The United States Environmental Protection Agency published a February 21st Federal Register Notice announcing its decision to not issue final regulations for Comprehensive Environmental Response, Compensation and Liability Act financial responsibility requirements for hardrock mining facilities. See 83 Fed. Reg. 7556. • EPA had previously proposed on January 11, 2017, regulations that would impose financial responsibilities on such facilities. See 82 Fed. Reg. 3388. • Section 108(b) requires EPA to promulgate regulations requiring: . . . classes of facilities to establish and maintain evidence of financial responsibility consistent with the degree and duration of risk associated with the production, transportation, treatment, storage, or disposal of hazardous substances. Court will addresses lawsuit by groups opposing decision.

  17. Houston Astros Minute Maid Park: Home of the World Series Champions (and a Former Brownfield) Brownfields continue to be a focus at federal and state (including Arkansas) levels. • The goal of Brownfield programs is to encourage redevelopment and investment of Brownfield (stigmatized due to real or perceived environmental issues) to increase the local tax base, facilitate job growth, utilize existing infrastructure, encourage infill, and take pressure off greenspace. • The Houston Astros have an additional distinction besides its World Series win. • The Astros Minute Maid Park is on the site of a former 38-acre Brownfield. • Minute Maid Park was redeveloped pursuant to the City of Houston’s “Brownfields Redevelopment Program.” • The site was an abandoned intercity passenger terminal prior to its redevelopment. • Note that Minute Maid Park is not the only baseball park built on a former Brownfield. The Baltimore Orioles Camden Yards share this distinction. (Go Orioles!!!![There’s always next year])

  18. U.S. Environmental Protection Agency Interpretive Letters Addressing Resource Conservation and Recovery Act Interpretations/Guidance The U.S. EPA continues to maintain and update a document library that provides the agency’s responses to questions it receives addressing RCRA and related topics. Questions addressed in the last 12 months include: • A letter addressing specification (“Off-Spec”) used oil issue. • The trade association NORA requested that the agency: . . . modify its description of off-spec used oil fuel to exclude the flashpoint criterion in the context of 40 C.F.R. Part 241 [non-hazardous secondary material (NHSM)]. • A letter provided a clarification to the Treated Wood Council regarding generators accumulating RCRA hazardous waste on drip pads.

  19. U.S. Environmental Protection Agency InterpretiveLetters Addressing Resource Conservation andRecovery Act Interpretations/Guidance (cont.) • A letter addressed whether:  . . . unused cigarettes and cigars made from tobacco are regulated as hazardous waste under the Resource Conservation and Recovery Act (“RCRA”) regulations when discarded. • EPA was responding to a June 8th email inquiry from Harmonized Customs Brokers, Inc. (“Harmonized”). • Harmonized is stated to have specifically asked whether cigarettes and cigars are considered P075 (“Nicotine & Salts”) listed hazardous waste due to the presence of nicotine in the tobacco. • EPA states in response that nicotine and its salts are among the commercial chemical products that are “P-listed” acute hazardous wastes in 40 C.F.R. 261.33(e) when discarded. • The EPA states when discarded in unused form, nicotine and salts are considered P075. • EPA notes that: . . . Cigarettes and cigars made from tobacco are not in the form of pure or technical grade chemicals, nor are they formulations in which the chemical is the sole active ingredient. • EPA does not consider unused cigarettes and cigars to be P075 listed hazardous wastes when discarded.

  20. EPA responded to a query as to whether items consisting of scrap tantalum anodes, wire, pellets, pins, and powders would be considered either: • Processed scrap metal when recycled under 40 CFR 261.4(a)(13); or • All other scrap metal when recycled under 40 CFR 261.6(a)(3)(ii) • Addressed a request from VMS Environmental Development, LLC asking whether: …engineered fuel processed from municipal solid waste, called Biomass Derived Fuel is a non-waste fuel under 40 CFR Part 241 Non-Hazardous Secondary Materials rule

  21. Environmental Protection Control Standards for Imports of Solid Wastes as Raw Materials: China Issues Final Standards • China’s Ministry of Environmental Protection issued final scrap import standards. • The standards are denominated the environmental Protection Control Standards for Imports of Solid Wastes as Raw Materials (GB 16487.2-13). • China had previously announced its intent to ban the import of certain scrap materials by the end of 2017. • Such a development is extremely important to various industries in the United States and other countries because of China’s significant use of scrap. • The contaminant thresholds include: • Smelt Slag 0.5 • Wood 0.5 • Ferrous 0.5 • Nonferrous .10 • Electric Motors 0.5 • Wires and Cables 0.5 • Metal and Appliances 0.5

  22. Environmental Protection Control Standards for Imports of Solid Wastes as Raw Materials: China Issues Final Standards (Cont.) • United States groups are concerned China is not differentiating scrap from waste, noting: • Scrap is a product sold in the open market in competition with virgin materials • Scrap is processed to one of hundreds of specification grades • It is a commodity with specifications that are used by industry members to facilitate the buying and selling of the materials (and by customs officials for customs clearing purposes).

  23. Hazardous Waste Enforcement: EPA and Henry, Virginia Paint Manufacturer/Solvent Blender Enter into Consent Agreement • EPA and Blue Ridge Solvents & Coatings, Inc. entered into a February 9th Consent Agreement addressing alleged violations RCRA Hazardous Waste Regulations. • Blue Ridge is stated to operate a Henry, Virginia facility (“Facility”) that: . . .manufactures custom paints and coatings, as well as conducts re-blending, recovery, and redistribution of solvents and other chemicals. The Facility is located on approximately 9.5 acres, in a building of approximately 123,000 square feet. . . • The Facility notified the Virginia Department of Environmental Quality that it would be reporting as a RCRA Large Quantity Generator. • Facility did not hold a RCRA permit for the treatment, storage or disposal of hazardous waste at the Facility. • The EPA/ Virginia inspection is stated to have identified various “hazardous wastes” in “storage” in containers at the Facility. • The CA alleged the following violations: • Operating a Treatment, Storage, and Disposal Facility without a Permit or Interim Status • Failure to Make a Hazardous Waste Determination • Failure to Keep Hazardous Containers Closed Except when it is Necessary to Add or Remove Waste • Failure to Maintain Signed Manifests or File Exception Reports The CA assessed a civil penalty of $35,000.

  24. Transportation/Hazardous Materials: Pipeline/Hazardous Materials Safety Administration Written Interpretations • The U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration periodically provides interpretations related to the federal Hazardous Material Regulations. • Examples of issues addressed in this year include topics such as: • Security plan requirements • Use of portable tanks • Use of multiple compartment cargo tanks • Alcoholic beverages (meets certain exemptions) • Who is an Offeror • Agricultural shipments • Lab packs • Aluminum by-products/non-specification bulk packaging • Rail tank closures • What is a container?

  25. Environmental Criminal Enforcement/RCRA: United States Department of Justice Announces Guilty Plea of Metal Plating Government Contractor • United States Department of Justice announced that Phillip Michael Huddleston pleaded guilty to violating the Resource Conservation Recovery Act. • DOJ states alleges that the individual illegally stored hazardous waste without a permit at Protech Metal Finishing, LLC, which he owned and operated in Vonore, Tennessee. • DOJ states that Protech’s production manager (John Thomas Hatfield) had previously pleaded guilty on October 2nd to being an accessory after-the-fact to the alleged illegal storage of hazardous waste. DOJ further states: . . . In order to hinder an investigation of Protech’s compliance with the RCRA, Hatfield represented that containers of hazardous waste were accurately labeled when he knew that they were not.

  26. Environmental Criminal Enforcement: Yazoo City Convenience Store Operator Pleads Guilty to Unpermitted Discharge into City Sewer • The United States Department of Justice announced an individual (Mahant Singh) plead guilty to a criminal violation of the Clean Water Act. • Singh is described as an operator of a convenience store and gas station in Yazoo City, Mississippi. • Singh is stated to have admitted to discharging the contents of an underground fuel storage tank into a sewage line connected to the Yazoo City, Mississippi wastewater treatment system. • This alleged discharge is stated to have created a fire or explosion hazard and risk to contaminating local water supplies. • DOJ notes the federal law authorizes a Class A misdemeanor under the Clean Water Act for any person who negligently introduces into a publicly owned treatment works any pollutant or hazardous substance which the defendant person knew or reasonably should have known could cause personal injury or property damage or to introduce into the system any material other than in compliance with all applicable Federal, State, or local requirements or permits.

  27. Environmental Criminal Enforcement: Sentencing of Saltwater Disposal Well Operators forAlleged Safe Drinking Water Act Violations • The United States Department of Justice announced in a November 27th news release that two saltwater disposal well operators had been sentenced in a Bismarck, North Dakota, Federal District Court for alleged Safe Drinking Water Act violations. • The two individuals sentenced for the alleged violations were: • Jason A. Halek (sentenced to three years supervised release for three counts of alleged violations of SDWA) • Nathan R. Garber (sentenced to three years supervised release for one count of alleged conspiracy to violate the SDWA and five counts for allegedly violating SDWA, along with two counts of allegedly making false statements, falsification of records, and concealment of a tangible object) • The saltwater disposal well is located in Stark County, North Dakota.

  28. Environmental Criminal Enforcement: Sentencing of Saltwater Disposal Well Operators for Alleged Safe Drinking Water Act Violations (Cont.) • DOJ states that Halek admitted to injecting saltwater into the disposal well without first having the State of North Dakota witness a test of the well’s integrity. • The individual is also stated to have admitted to injecting fluids down the “backside” of the well (which violated the permit) and failing to provide written notice to the State of North Dakota of the date of the first injection of the well. • Garber is stated to have admitted to conspiring with others in a number of coordinated and illegal acts. • These are stated to have included: • Injection of saltwater into the well without first having the State of North Dakota witness a test of the well’s integrity • Causing a regulator to determine there was no assurance as to the integrity of the well

  29. Hazardous Waste Enforcement: State of California andHome Depot U.S.A., Inc. Stipulation for Entry of Final Judgment/Permanent Injunction Significant Enforcement Activity (federal and various states) Targeting Non-Traditional RCRA Generators such as hospitals, medical clinics (oncology, podiatry, etc.) and retail stores. • The California Attorney General announced a settlement with Home Depot U.S.A., Inc. (“Home Depot”) addressing alleged violations of: • California Hazardous Waste Control Law • California Unfair Competition Law • The alleged violations involved the unlawful disposal of hazardous waste which included waste batteries, aerosol cans, paints, and electronic devices. • The AG stated that the alleged violations were identified through state and local investigator inspection of Home Depot trash dumpsters.

  30. Hazardous Waste Enforcement: State of California andHome Depot U.S.A., Inc. Stipulation for Entry of Final Judgment/Permanent Injunction (Cont.) • The Final Stipulation requires that Home Depot: • Pay $16,637,000 in civil penalties, $2,513,000 for projects furthering environmental protection, and $1,850,000 for reimbursement of law enforcement and investigation costs • Spend $6,840,000 on environmental compliance activities beyond those currently required by law in lieu of payment of $3,420,000 in additional civil penalties • Other recent federal retail enforcement actions include Macy’s, Dollar General, Big Lots and Lowe’s.

  31. Hazardous Waste Enforcement: U.S. Environmental Protection Agency and Texas Oncology, P.A. Enter into Consent Agreement • EPA and Texas Oncology, P.A. entered into a Consent Agreement addressing alleged Resource Conservation and Recovery Act violations. See Docket No. RCRA-06-2017-0931. • The CA states that it addresses TO locations in: • Fort Worth, Texas • Baytown, Texas • McAllen, Texas • Dallas, Texas (Two locations) • Brownsville, Texas • El Paso, Texas (Two locations) • EPA conducted an investigation and records review of TO’s performance as a hazardous waste generator and its compliance with the RCRA regulations, for the time period between January 2012 through January 2017. Allegedly EPA discovered: . . . that at times Respondent’s hazardous waste determinations for different hazardous drugs/chemotherapy agents were mischaracterized in connection with the transportation of those hazardous wastes for offsite disposal. • The alleged violations in the CA include: •Failure to make adequate hazardous waste determinations •Failure to comply with manifest requirements A civil penalty of $43,900 is assessed.

  32. Release Reporting/ CERCLA Enforcement: U.S. Environmental Protection and Tennessee Valley Authority Enter into Consent Agreement • EPA and Tennessee Valley Authority entered into a January 23rd Consent Agreement and Final Order addressing alleged violation of Section 103(a) of the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”). • Section 103 of CERCLA requires facilities to immediately notify the National Response Center of any release of hazardous substance in an amount equal to or greater than the reportable quantity for that substance. • In order for a release to be considered reportable under CERCLA, there are three criteria that must be met which include the following: • Be into the environment • Be equal to or exceed the reportable quantity for a particular substance • Occur within a 24-hour period

  33. Release Reporting/ CERCLA Enforcement: U.S. Environmental Protection and Tennessee Valley AuthorityEnter into Consent Agreement (Cont.) • TVA was stated to be in charge of a facility in Tennessee when on October 3, 2014, a release of ammonia above the CERCLA reportable quantity occurred. • Ammonia is stated to be a hazardous substance as that term is defined in Section 101(14) of CERCLA with a reportable quantity of 100 pounds. • The CAFO alleges that TVA violated the notification requirements of Section 103(a) and the applicable CERCLA regulations by failing to immediately notify the National Response Center as soon as TVA had knowledge of the release of ammonia in an amount equal to or greater than its reportable quantity at the facility. • Immediate means almost immediate. • The CAFO assesses a civil penalty of $5,685.

  34. Voluntary Disclosure/Multi-Media Enforcement:EPA and Clean Energy Production Company Enter into Consent Agreement Federal EPA and many states including Arkansas have policies that offer penalty mitigation in certain circumstances if violations voluntarily reported in a certain timeframe. • United States Environmental Protection Agency a recent found example is a Consent Agreement with ENEL Green Power North America, Inc. (“EGP”) resolving alleged violations of certain federal environmental statutes. See 82 Fed. Reg. 52899 (November 15, 2017). • EPA states that the proposed CA is the result of the voluntary disclosures of Clean Water Act, Clean Air Act, Resource Conservation and Recovery Act, and Emergency Planning and Community Right-to-Know Act violations by EGP to EPA. • EGP is stated to be an electric energy producing company specializing in producing clean energy from renewable sources (referencing hydro, solar, wind, geothermal, and biomass sources). The company located in Andover, Massachusetts.

  35. Voluntary Disclosure/Multi-Media Enforcement:EPA and Clean Energy Production Company Enter into Consent Agreement (Cont.) • EPA and EGP entered into a corporate audit agreement on October 12, 2012, pursuant to EPA’s policy on Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations. • The company agreed to conduct a “systematic, documented, and objective review of its compliance with the applicable provisions” of the: • Clean Water Act • Clean Air Act • Resource Conservation and Recovery Act • Emergency Planning and Community Right-to-Know Act • The CA identifies certain alleged Clean Water Act violations that EPA states did not meet one of the conditions of the Audit Policy (i.e., requiring correction of the violation within 60 days of the discovery). • The agency therefore assessed a gravity-based penalty of $22,373. • As to all violations identified in the CA, EPA calculated an economic benefit of noncompliance of $54,624. As a result, EGP has agreed to pay a total civil penalty of $76,997 for all the identified violations.

  36. Landfill Closure Costs: U.S. Tax Court AddressesSection 468 Internal Revenue Code Deduction Issue • The United States Tax Court in a July 11th opinion addressed whether the owners of a landfill could deduct clean-up costs (i.e., closure costs) under Internal Revenue Code Section 468. See Gregory v. Commissioner of Internal Revenue, 149 T.C. No. 2. • The question was whether a cash-method taxpayer is included within the term “taxpayer” in Section 468. • Landfills, incinerators and other facilities that manage various types of wastes are often required to demonstrate their ability to finance and/or ensure proper closure of the facility at the end of its life. • Section 468(a)(1) of the IRC provides: [I]f a taxpayer elects the application of this section with respect to any mining or solid-waste disposal property, the amount of any deduction for qualified reclamation or closing costs for any taxable years in which such election applies shall equal a current reclamation of closing costs allocable to that year. • Upon the advice of an accountant, landfill owners in 1996 first deducted closure costs under Section 468. • Various amounts were deducted on its 2008 and 2009 tax returns. Tax court opinion notes:  . . . TDSL hadn’t actually paid those clean-up costs yet – it simply estimated the costs; and it also hadn’t charged the estimated costs against its letter of credit yet either. TDSL also did not just make the numbers up – it hired a professional engineering service to estimate the correct amount. • The TC concluded that the term “taxpayer” in Section 468 includes cash-method taxpayers (like TDSL).

  37. Resource Conservation and Recovery Act Citizen Suit: Federal Court (Oklahoma) Addresses Standing Issue • A United States District Court (Northern District Oklahoma) addressed in a March 21st opinion procedural issues associated with a RCRA citizen suit action. See Krause v. General Electric Company, 2018 WL 1413191. • Krause (“Plaintiff”) filed a RCRA citizen suit against General Electric Company (“Defendant”). • Plaintiff alleged that Defendant violated Subtitle C of RCRA by adding a mercury antioxidant to its Ecolux line of fluorescent lamps. • The Defendant argued that the citizen suit action should be dismissed because: • The pre-suit notice violated 40 C.F.R. § 254.3(a) by failing to contain “dates, specificity, or a time-frame for the alleged violations.” • Plaintiff failed to establish standing because an injury in fact was neither alleged nor demonstrated. • Court held that Plaintiff failed to establish Article III standing. • As a result, it did not address Defendant’s argument concerning 40 C.F.R. § 254.3(a). • Satisfying the first prong for Article III standing requires an injury to the plaintiff as opposed to the environment.

  38. Resource Conservation and Recovery Act Citizen Suit: Federal Court (Oklahoma) Addresses Standing Issue (Cont.) • The Court notes that if the alleged harm in fact affects the recreational or even the mere aesthetic interests of the plaintiff, this will suffice to satisfy the first prong. • It further states that “neither a ‘bald assertion’ of aesthetic or recreational harm ‘nor a purely subjective fear that an environmental hazard may have been created is enough to ground standing’.” • Analyzing Plaintiff’s Amended Complaint, the Court states that only a few sentences of the document allege an injury in fact. The Plaintiff’s Complaint stated: OAC [Oklahoma Administrative Code] 252:205-3-2(c) protects [his] interest in being assured that the waste put in landfills in Tulsa is not hazardous, and that GE’s practice of adding a mercury antioxidant to Ecolux lamps is an invasion of Krause’s legally protected interest in being assured that the waste put in landfills in Tulsa is not hazardous. •  The Court states that Oklahoma’s adoption of these regulations does not “imbue Plaintiff with standing to bring this RCRA claim.” • The Court dismisses the claim for Lack of Subject Matter Jurisdiction.

  39. Wisconsin Legislation Exempting Pyrolysis/Gasification from Solid Waste Management Facility Requirements: Assembly Bill 789 • The State of Wisconsin enacted Assembly Bill 789 which is described as generally exempting pyrolysis and gasification facilities from certain laws relating to solid waste facilities storage and treatment. • The American Chemistry Council described the purpose of the bill as ensuring the treatment of post-use plastics as raw materials for “manufacturing” as opposed to “waste.” • A gasification facility is a facility that processes nonrecycled feedstock, which includes one or more of the following materials, derived from nonrecycled waste, that has been processed so that it may be used as feedstock in a gasification facility. • A pyrolysis facility is a facility at which post-use plastics are heated, in an oxygen-free environment, until melted and thermally decomposed, then cooled, condensed, and converted into oil, diesel, gasoline, home heating oil, or other liquid fuel; gasoline or diesel blendstock; chemicals or chemical feedstock; waxes or lubricants; or other similar raw material or intermediate or final product. • Post-use plastics are defined to include plastics derived from any source that are not being used for their originally intended purpose and that might otherwise become solid waste if not processed at a pyrolysis or gasification facility or recycled. • Attempting to draw a line between product manufacturing/energy generation or waste destruction

  40. Landfill Leachate: Vetoed North Carolina Bill (576)Would Have Approved Aerosolization • A vetoed house bill passed by the North Carolina General Assembly would have: 1. Required the North Carolina Department of Environmental Quality to approve aerosolization as an acceptable method of disposal for leachate wastewater collected from a lined sanitary landfill within the lined area of the landfill; 2. Allowed DEQ to approve aerosolization as an acceptable method of disposal for leachate wastewater collected from an unlined sanitary landfill; and 3. Provided that aerosolization of leachate or wastewater that results in a zero liquid discharge and is not a significant air contaminant source does not constitute a discharge that requires a permit under the air or water permitting statutes.

  41. Arkansas Pollution Control and Ecology CommissionAdministrative Law Judge Recommended Decision:Alleged Cotton Plant, Arkansas Facility Solid Waste Violations • Arkansas Pollution Control and Ecology Commission Administrative Law Judge Charles Moulton issued a December 21st Recommended Decision addressing alleged violations by Tristate Contracting of Brinkley, LLC. • On October 10, 2017, the ALJ held an evidentiary hearing to address certain ADEQ claims. • The ALJ concluded as follows to certain alleged violations addressed at the evidentiary hearing: • Violations of Solid Waste Management Act. ADEQ was found to have failed to prove, by a preponderance of the evidence, that Tristate violated Ark. Code Ann. § 8-6-205(a)(1), and (a)(2), (a)(3) and Reg. 22.1502(a) regarding the presence of household trash and construction/demolition material at the Site. • Burn Barrel. ADEQ was found to have proven, by a preponderance of the evidence, that Tristate violated Ark. Code Ann. § 8-4-310(a)(2) and Reg. 18.602.

  42. Arkansas Pollution Control and Ecology CommissionAdministrative Law Judge Recommended Decision:Alleged Cotton Plant, Arkansas Facility Violations (Cont.) • Vectors. ADEQ was found to have proven, by a preponderance of the evidence, that Tristate violated Ark. Code Ann. §§ 8-4-101 et seq. and Reg. 14.702 as it relates to vectors and a public nuisance. • Waste Tire Transport. ADEQ was found to have not proven, by a preponderance of the evidence, that Tristate violated Reg. 14.1103 by transporting waste tires without a license.  • Improperly Stores Waste Tires. ADEQ was found to have proven, by a preponderance of the evidence, that Tristate violated Reg. 14.1401. • The Recommended Decision also undertakes a civil penalty analysis and calculation (including an assessment of apportionment penalties between Zameer and Tristate).

  43. Arkansas Medical Marijuana Cultivation Program Development: Environmental/Safety Issues • Arkansans passage of the Arkansas Medical Marijuana Amendment of 2016 set in motion fast-paced efforts to promulgate rules for cultivation, processing and dispensing of marijuana for medicinal related consumption. • The Arkansas Medical Marijuana Commission developed both facility structural and operational standards for marijuana cultivating, processing and dispensing activities. • Facility security, financial capability, quality control, product consistency, packaging, transportation, labeling and related issues have been to date the primary focus of the AMMC in its development of the medical marijuana program. • An important aspect of these operations that will be considered are the potential environmental and safety issues and regulatory requirements. • Particularly true in the case of marijuana cultivation, grow and processing operations.

  44. Arkansas Medical Marijuana Cultivation Program Development: Environmental/Safety Issues (Cont.) • Issues will include: • Wastewater/Stormwater • Wastes/Discarded Materials/Recyclables • Crop residues, extracts failing quality testing, vegetative material (stalks, stems, roots, leaves, etc.), planting soils, wastes, etc. generated by processing, composting, mixing, disposal or recycling marijuana cultivation/production related materials. • Fats, oils, and grease (associated with production of edible products) • Potential Solid Wastes/Recyclables • Potential Hazardous Wastes • Air/Odors • Product/Chemical Storage/Use • Noise

  45. Hazardous Substances/Bodily Injury Claim: New York Court Addresses Potential Liability ofEngineering Inspection Subcontractor • New York court addressed in a March 7th decision whether a lower court properly granted summary judgment to a subcontractor performing engineering inspection services on a highway construction project related to a bodily injury claim. See Cathy Marl, et al. v. Liro Engineers, Inc., etc., et al., 2018 WL 1178363. • Alleged injuries were associated with soil excavated in connection with the highway construction project that may have been contaminated with hazardous waste. • The Plaintiffs were employees of a general contractor on a highway construction project undertaken by the New York State Thruway Authority. • The general contractor had entered into a contract with Defendant Conrad Geoscience Corp. • Conrad’s responsibility included preparation of environmental safety plans required by the New York State Department of Environmental Control since the highway project involved a landfill that was known to be contaminated by hazardous waste.

  46. Hazardous Substances/Bodily Injury Claim: New York Court Addresses Potential Liability of Engineering Inspection Subcontractor (Cont.) • The decision illustrates the importance of clearly articulating or defining which parties, subcontractors, etc. are responsible for particular activities or responses • The New York State Thruway Authority entered into a contract with the Defendant Liro Engineers, Inc. to perform engineering inspection services on the project. • An action was commenced against Liro and Conrad to recover damages by truck drivers for bodily injuries for injuries related to fumes from soil transportation. • The Court dismissed the Complaint, noting: Conrad submitted evidence that, as the entity charged with creating environmental safety plans, it exercised no supervisory authority at the highway construction project work site and owed no duty of care to the plaintiffs.

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