On August 18, 2017, the Montana Department of Environmental Quality (MDEQ) formally proposed regulations providing additional requirements for the management of technologically enhanced naturally occurring radioactive material (TENORM) waste, making Montana the latest state to propose such regulations. The proposed regulations come on the heels of its neighbor, North Dakota, adopting new rules with TENORM disposal limits, which may have prompted Montana to act.

In preparing its proposed regulations, Montana DEQ relied on two detailed studies regarding oil and gas production wastes that had been recently conducted:  a North Dakota study conducted by Argonne National Laboratory (ANL) and a Pennsylvania study conducted by the Pennsylvania Department of Environmental Protection, both of which found that landfilling of waste from the oil and gas industry poses minimal risk to workers and the public.  MDEQ’s proposed TENORM regulations are consistent with North Dakota’s (and ANL’s recommendations), in that they both set TENORM disposal limits at 50 pCi/gm for Ra-226 and Ra-228. MDEQ is also requiring that the TENORM concentration of waste in a landfill not exceed the dose limit of 100 mrem/y at the boundary of the active disposal unit based on the results of MDEQ-approved site-specific modeling.  And, in what is becoming the norm for state TENORM regulations, MDEQ is also requiring generators to sample and characterize the TENORM waste prior to disposal and landfill owners and operators to screen every incoming load for radiation concentrations.

MDEQ is holding public hearings on the proposed regulations on September 7th in Helena and on September 20th in Sidney. Be sure to check back here at Environmental Law Next for additional developments as more states propose these regulations.

Today, the Environmental Integrity Project released a report finding that in the first six months of the Trump administration, the federal government has collected 60% less in civil penalties in environmental enforcement actions than it did, on average, during the equivalent periods of the Clinton, George W. Bush and Obama presidencies.   Between inauguration day and July 31st, only $12 million has been paid by defendants in actions brought by EPA and the Department of Justice, spread over 26 cases.  The previous three administrations averaged $30 million during their first six months.

Below the headline figures are perhaps more interesting numbers on the amount of money violators are being required to invest to fund injunctive relief, such as pollution control equipment, and other measures to comply with environmental standards.  EPA has only been estimating costs in this category for about 20 years, so there is no reliable data from the first year of the Clinton administration.  In the first six months of President Obama’s first term, however, 22 reported cases required more than $1.2 billion be spent on injunctive relief.  Under President Trump, the amount has been only $197 million.

Although the sample size is limited, and most if not all of the cases involved were brought by the previous administration, these numbers provide a good deal of insight into how the Trump administration is approaching environmental enforcement.  The penalties agreed to by the Trump administration are down not just in the aggregate, but per enforcement action.  The Obama administration recovered three times as much money as the Trump administration in penalties with only eight more cases.  It would therefore not be surprising if the pace of settlements increases in coming months and years.  The regulated community may come to see this moment as a good time to get out from under enforcement litigation on favorable financial terms, while viewing unnecessary delay as a risk.

The Michigan legislature recently introduced Senate Bill 503 to tighten up Michigan’s existing disposal guidelines pertaining to TENORM or Technologically Enhanced, Naturally Occurring Radioactive Material. Michigan has always been ahead of the curve when it comes to TENORM regulation.  Michigan’s current TENORM disposal guidelines were established in 1996.  They provide that the disposal of Radium-226 contaminated materials, from any source, containing a concentration not exceeding 50 pCi/g can be accepted without regard to radioacitvity in a Type I (hazardous waste) or Type II (municipal solid waste) landfill.  At the time, Michigan was the only state that explicitly allowed radium-bearing wastes to be disposed of in municipal, nonhazardous waste landfills.

Michigan’s TENORM regulations were assessed by the Argonne National Laboratory in a study funded by the U.S. Department of Energy and American Petroleum Institute in 1999.  The Argonne study concluded that the Michigan disposal guidelines of 50 pCi/g of Radium-226 would not adversely impact human health or the environment, provided the TENORM wastes were placed deeper than approximately 10 feet below the landfill cap.

In 2014-2015, the Michigan Department of Environmental Quality (MDEQ) assembled a panel of experts to review Michigan’s TENORM disposal guidelines to determine if they sufficiently protect the public health and the environment.  The TENORM Disposal Advisory Panel reviewed the 1999 Argonne study, current federal and state regulatory standards, the nature of TENORM and how it decays over time, and the design and operation of modern landfills.  Based on its study, the Panel agreed that the disposal limit was safe, but made several recommendations for MDEQ in a White Paper, including requiring landfills that accept TENORM waste to restrict its placement to at least 10 feet below the landfill cap, restrict the total volume placed annually to limit worker exposure and monitor leachate and ground water monitoring wells.

Senate Bill 503 implements many of the recommendations in the White Paper and provides the following:

  • The disposal in a landfill of TENORM with a concentration of Radium-226, Radium-228 or a combination thereof over 50 pCi/g is prohibited.
  • TENORM shall be deposited at least 10 feet below the landfill cap and be “kept separate from other waste in the landfill.”
  • The landfill shall not dispose of more than 2,000 cubic meters of TENORM per year.
  • Prior to delivering TENORM to a landfill for disposal, generators shall test the TENORM for Radium-226 and Radium-228 and provide the results, as well as the proposed date of delivery and the name and address of the landfill, to the State.
  • The landfill is required to independently test all waste received by the landfill for Radium-226 and Radium-228.
  • The landfill is also required to test the landfill leachate and groundwater for Radium-226 and Radium-228.

Senate Bill 503 was introduced on July 12, 2017 and was referred to the Committee on Natural Resources.

A federal district court in Oklahoma has held that CERCLA may not be used as a regulatory standard to state a claim for negligence per se. The plaintiffs in Bristow First Assembly of God, et al. v. BP, p.l.c., et al., N.D. Okla., No. 15-CV-523, brought a series of claims against a group of oil and pipeline companies that were alleged to have a prior interest in the Church’s property, which they had been advised by the Oklahoma Department of Environmental Quality was contaminated and no longer safe to use.  Among them was a count brought under a theory that the defendants’ failure to clean up the site was a violation of a continuing duty to remediate damages from their operations under CERCLA and therefore constituted negligence per se.

Judge Terence Kern dismissed the claim, finding that “Plaintiffs have failed to establish that CERCLA sets a standard of conduct on which a negligence per se claim can be based.” The specific issue was apparently one of first impression in the 10th Circuit.  The Court, however, relied on decisions of district courts elsewhere in the country to support its decision.  Most convincingly, the court in W. Greenhouses v. United States, 878 F. Supp. 917 (N.D. Tex. 1995), reasoned that violations of neither CERCLA nor RCRA can support a negligence per se allegation because they are strict liability statutes.  They therefore set no standard of care.  Negligence per se relies on borrowing a standard of care from statute in lieu of applying one established by common law.  No strict liability regime can serve that function.

The decision in Trinity Indus., Inc. v. Greenlease Holding Co., 35 F. Supp. 3d 698 (W.D. Pa. 2014), also relied on by the court in Bristow First, applied somewhat different logic. In that court’s opinion, CERCLA is an environmental statute that is not “tailored to protect a particular class of individuals,” and therefore “does not establish the applicable standard of care for purposes of negligence law.”  This reasoning is easier to quibble with.  The statute requires the remediation of contaminated property, so the occupants of those sites are at least among the group of individuals CERCLA sets out to protect.  Negligence per se claims that attempt to drag CERCLA liability into the realm of tort are likely best challenged not on that ground, but for the absence of a fault-based standard of care in that statute.

We will be following this issue and other legal developments related to the intersection of statutory and common law environmental claims.  Check Environmental Law Next in the future for more information and analysis.

Ever since the EPA’s 1985 rulemaking on the Definition of Solid Waste, 50 Fed. Reg. 614 (1985), the question of how one distinguishes legitimate recycling from sham recycling has puzzled both regulators and recyclers. The question is vital because sham recycling is equivalent to illegal disposal and exposes the perpetrator to enforcement and significant penalties. In contrast, legitimate recycling is highly encouraged and satisfies the central purposes of the Resource Conservation and Recovery Act. So telling the two apart is important.

In 1989, Sylvia Lowrance, the then-Director of Solid Waste for EPA, signed a memorandum, entitled, “FOO6 Recycling,” that drew from earlier rulemakings and set forth a summary of the criteria for distinguishing between sham and legitimate recycling. Among these criteria was a comparison between the chemical composition of the purported recyclable material (or “secondary material”) and the analogous raw material or product. Included in her discussion was the question, “Are the toxic constituents actually necessary (or of sufficient use) to the product or are they just “along for the ride?” This “along for the ride” concept has since greatly influenced the question of sham vs. legitimate recycling because it raises the specter that the recycler is actually surreptitiously disposing of hazardous waste under the cover of beneficial recycling. But a lingering question for the last several decades has been how much toxics can actually be “along for the ride” and still be legitimate?

Fast forwarding to 2015, EPA addressed head-on the sham recycling question and set forth four criteria to tell a sham from the real thing. Importantly, the fourth criterion effectively replaced the old “along for the ride” criterion. See 40 C.F.R. 260.43(a)(4); 80 Fed. Reg. at 1725-28. This new criterion requires that the “product of the recycling process must be comparable to a legitimate product or intermediate,” and gives a recycler three options for satisfying it.

Where there is an “analogous” product, the recycled product is comparable if (a) it does not exhibit a hazardous characteristic not exhibited by the “legitimate” product; and (b) the two products have comparable levels of hazardous constituents. Where there is no “analogous” product, the two products are comparable if the product of the recycling process meets “widely recognized commodity standards and specifications[.]” Last, even if the product has high levels of hazardous constituents as compared to the raw material, the recycling can still be legitimate if recycler carries out certain health and environmental studies to show the toxic constituents are not harmful. 40 C.F.R. 260.43(a)(4)(iii).

But Factor 4 is no longer part of EPA’s regulations. In the just-published case of American Petroleum Institute v. EPA, (No. 09-1038), the D.C. Court of Appeals vacated Factor 4, finding that EPA failed to articulate a concrete standard for determining at what contaminant level a recyclable material was “significant in terms of health and environmental risks.” EPA’s “comparable to or lower than” standard, the court said, does not adequately determine when a recycling is a sham: levels can be high and still be part of a legitimate recycling process. Further, the court noted, this standard does not “reasonably focus on items that are part of the waste disposal problem.” It therefore vacated Factor 4 as it applies to all hazardous material recycling.

The court pinpointed the inherent flaw in the “toxics along for the ride” metaphor: at what concentration level does the presence of these toxics signal a sham? The court also criticized EPA for an over-reliance upon recycling horror stories, rather than actual instances of environmental harm. Unfortunately for EPA, it is back to the drawing board on this 30-year old conundrum of defining legitimate recycling. Meanwhile, those seeking to demonstrate the legitimacy of a recycling process (at least as a matter of federal law), will only need to satisfy the remaining three legitimacy criteria: (a)the secondary material must provide a useful contribution to product; (b) the recycling process must produce a valuable product; and (c) the generator and recycler must manage the secondary material as valuable product. In the end, this all might be a good thing, as it may open up opportunities to fulfill the underlying purposes of the Resource Conservation and Recovery Act, rather than become entangled in “labyrinthine maze” that is the definition of solid waste.

For more on this topic, read my article, “Understanding a Sham: When is Recycling, Treatment?,” published in the Boston College Environmental Affairs Law Review here.

Several environmental organizations have petitioned the D.C. Circuit Court of Appeals and moved to block EPA from implementing a 90-day administrative stay of the New Source Performance Standards covering methane emissions from oil and gas infrastructure.  A group of states, plus the District of Columbia and the City of Chicago, have since moved to intervene in favor of petitioners.  Industry groups and conservative leaning states have lined up to support the agency’s action.  The rule, which focuses on detecting and repairing methane leaks, would have required oil and gas well owners and operators to complete initial monitoring by June 3, 2017.

Petitioners ague that EPA lacks the authority to issue a stay of finalized regulations under the Clean Air Act other than pursuant to 42 U.S.C. § 7607(d)(7)(B), which requires identification of an objection of central relevance to the rule that could not have been raised during the initial public comment period.  The groups claim that these conditions are not satisfied, as all the issues relied on by EPA were extensively deliberated during the public comment period, or at least could have been, and in any event are not centrally relevant.  For example, petitioners attack EPA’s claim that its rationale for including low producing well sites in the leak detection and repair program was not presented to the public, noting that EPA explicitly sought comment on this issue in its 2015 proposal.

Petitioners also contend that the stay is overboard and that the EPA’s failure to narrowly tailor it to the specific issues under reconsideration, or balance the equities involved, is arbitrary and capricious.

In response, EPA submits that 42 U.S.C. § 7607(d)(7)(B) establishes only when the agency must reconsider a rule, but that it has inherent authority to reconsider its decisions.  Its argument runs into a bit of trouble because the authority for the three month stay EPA initiated appears to be tied to a reconsideration pursuant to 42 U.S.C. § 7607(d)(7)(B).  Only secondarily does it defend its decision on the grounds that the conditions required by that section are satisfied.

This legal fight is part of a larger battle between the EPA and the environmental community over the rule.  On June 13, 2017, the EPA proposed an additional 2-year stay of portions of the regulations.  In particular, the agency has proposed to stay the fugitive emissions requirements, the well site pneumatic pump standards, and the requirements for certification of closed vent system by professional engineers.  Even if petitioners are successful before the D.C. Circuit, they will still have an uphill battle to maintain the rules indefinitely.  They do not dispute that the agency can initiate a separate rulemaking and likely permanently eliminate as much of the rule as it would like.

Yesterday, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers proposed a rule to rescind the 2015 Clean Water Rule and recodify the definition of “waters of the United States,” known as WOTUS, that existed before 2015.  EPA and the Corps intend to re-evaluate and revise the WOTUS definition consistent with the Executive Order issued on February 28, 2017.  In the meantime, EPA states that the proposed rule will be implemented consistent with “Supreme Court decisions, agency guidance, and longstanding practice.”

On May 18th, the D.C. Circuit Court of Appeals granted the EPA’s request to stay challenges to the New Source Performance Standards regulating methane emissions from oil and gas infrastructure, pending review of the rule in accordance with President Trump’s Energy Independence Executive Order.  EPA announced in April that it intended to reconsider the rule and was staying a future compliance date.

Since it was issued last year, the rule has been challenged by various oil and gas industry groups on the grounds that the EPA does not have the authority to regulate methane from oil and gas infrastructure. The challengers have signed on to the EPA’s motion to put the cases on hold pending a review of the current rules.

The President’s executive order specifically directed the EPA to review and reconsider the methane rules for new oil and gas infrastructure, and if appropriate, suspend, revise or rescind them. In its motion to put the cases on hold, the EPA argued that its review of the rules could impact the disputes awaiting resolution in the Court.

Various environmental groups, as well as several states, intervened in the dispute opposing the EPA’s motion, asserting that the EPA had not offered any concrete timeline for the review, rendering the hold indefinite.  The court rejected this argument, but did order the EPA to file status reports regarding its review every 60 days.

The precise fate of the rule is still uncertain, but it is likely it will be greatly rolled back, if not eliminated entirely.  EPA administrator Scott Pruitt has a long history fighting against precisely this kind of regulation of the oil and gas industry.  After President Trump’s decision to pull American out of the Paris Agreement, it is difficult to imagine the EPA leaving anything more than the bare minimum of the rule in effect.

By statute, North Carolina has capped the monetary awards available for nuisance claims related to agricultural or forestry operations. The law, H.B. 467, was designed to protect hog farms and other concentrated animal feeding operations (CAFOs) from substantial judgments in odor nuisance lawsuits.   It limits compensatory damages to the reduction in the fair market value of the plaintiff’s property, if the nuisance is found to be permanent, and the diminution of the fair rental value of the property if temporary. The bill passed over the veto of Governor Roy Cooper.

The limits on awards set by H.B. 467 are cumulative. A subsequent action by the same plaintiff or a successor to plaintiff is restricted to the fair market value of the property, less what was recovered in the earlier lawsuit. The limit applies even to lawsuits against separate defendants arising from distinct operations. H.B. 467 does not, however, place limits on available punitive damage awards or bar any otherwise available injunctive relief.

North Carolina joins a handful of other states that have passed similar legislation in recent years aimed at limiting the amount of damages available for agriculture related nuisance claims.

The legislation is a reaction to an increase in odor nuisance lawsuits in North Carolina and elsewhere in the country. In 2013, more than 400 plaintiffs filed nuisance lawsuits against Murphy-Brown, LLC, a subsidiary of Smithfield Foods, Inc., the largest pork producer in the world. Some of those cases are still pending. An early version of the bill would have had retroactive application and limited recovery in the suits that have not been resolved. That provision, however, was changed before the bill passed.

H.B. 467 is a continuation of legislative efforts to insulate the North Carolina livestock industry. A 2013 bill, S.L. 2013–314, amended the state’s right-to-farm law, which prevents operations from becoming a nuisance as a result of changes in the surrounding community. Agricultural facilities cannot benefit from right-to-farm protections if they undergo a fundamental change from previous operations. But the law broadly exempts several categories of changes – including changes in size and technology – greatly curtailing plaintiffs’ recourse against expanded and updated CAFOs.

Collectively, these changes will make it much more difficult for plaintiffs to recover in nuisance actions against North Carolina CAFOs in the future, and will likely turn off many plaintiffs’ lawyers from investing the time and resources into even winnable cases.

By rule published in the Federal Register today, EPA is staying the New Source Performance Standards (NSPS) and Emissions Guidelines (EG) final rules for municipal solid waste landfills, in their entirety, for 90 days pending reconsideration.  The rules are found at 40 CFR Part 60, Subparts Cf and XXX and had been published on August 19, 2016.  The 90-day period is effective from today, May 31, through August 29, 2017.

In a letter dated May 5, 2017, EPA announced that it would be reconsidering the following topics: (1) tier 4 surface emission monitoring; (2) annual liquids reporting; (3) corrective action timeline procedures; (4) overlapping applicability with other rules; (5) the definition of cover penetration; and (6) design plan approval.

This stay has no effect on the existing rules at 40 CFR Part 60, Subparts WWW and Cc, which municipal solid waste landfills must continue to comply with.