Last May, the Trump EPA issued a 90-day stay of two Obama-era landfill methane rules, namely the Standards of Performance for Municipal Solid Waste Landfills (NSPS Subpart XXX) and the Emissions Guidelines (EG).  EPA was responding to concerns by industry groups to reconsider portions of the rules.  After the stay was put into place, the Natural Resources Defense Council (NRDC) and others filed a petition in the D.C. Circuit Court of Appeals for review of the stay.  While that petition was pending, the stay expired on August 29, 2017 and the rules went into effect.

This past week, the NRDC voluntarily dismissed the lawsuit following surprising stipulations by EPA that the stay did not affect the May 30, 2017 deadline for states to submit implementation plans for existing landfills or EPA’s obligation to approve or disapprove those plans by September 31, 2017 or promulgate federal plans for states that did not timely submit state plans by November 30, 2017.  In short, EPA conceded that the deadlines have past and weren’t met.

The environmental groups are claiming victory with EPA’s concessions.  However, it remains to be seen when EPA will begin enforcing the rules.  EPA’s website still states that it intends to complete the reconsideration process and comments from waste industry representatives indicate that they still intend to pursue rule revisions.  With EPA not actively enforcing the rules, more litigation is likely to come.  Check back here at Environmental Law Next for additional updates as they develop.

The cradle-to-grave scheme is at the heart of the Resource Conservation and Recovery Act. RCRA, after first defining what a “hazardous waste” is and requiring permits for facilities accepting these materials, then requires a manifest to accompany the movement of the waste from the point of generation – through transportation – and then finally to the “destination facility.” This manifest, completed by the generator, links a defined hazardous waste with a facility permitted to manage it.

On June 30, 2018, the cradle-to-grave scheme, like newspapers, books, and board games, will go digital. On this day, EPA’s new E-Manifest Rule will become effective. Here are twelve things you should know about this rule:

  1. The E-manifest was not EPA’s idea. Rather, EPA is carrying out the directives set by Congress in the Hazardous Waste Electronic Manifest Establishment Act. 42 U.S.C. 6339(g)
  2. It will take effect in all states, whether the state is authorized to run the RCRA program or not. Authorized states must amend their rules to adopt the program.
  3. The rule will cover not only the well-known federal RCRA hazardous wastes (i.e., the characteristic “D” codes and the listed “F,””K”, “P”, and “U” codes) but also state-only hazardous wastes (such as waste oil in Massachusetts) and PCBs.
  4. Paper manifests, at least for a time, may still be used, but at a price. Here are the current estimated costs for different types of manifest under the program: 
  5. Only the receiving facility pays the fee to the government not the generator or transporter. Undoubtedly, however, many of these receiving facilities may be looking to pass on the costs to their customers.
  6. EPA intends to institute a phase out of paper manifests after three years of operation. During this phase-out period, a generator may still use a paper manifest but the receiving facility will be expected to transfer the data in digital format to EPA.
  7. The receiving facility must pay the fee even if it rejects a waste shipment back to the generator. If the rejected shipment is sent instead to an alternate TSD, that facility pays the fee.
  8. EPA plans to revise the fee schedule every 2 years, which will include higher fees for paper manifests if electronic manifest use does not reach 75% in 4 years. The new fee schedules will not require rulemaking.
  9. EPA’s goal is to eliminate paper manifests after 5 years.
  10. EPA estimates the program will result in $66 million in costs savings, though most of the savings appear to result from decreased burdens on state and federal governments. See 83 Fed. Reg. at 446.
  11. Generators, at least for a time, will still need to prepare Biennial reports, though these are one of the burdens the rule is intended to eliminate.
  12. Users will register for the E-manifest system at RCRAinfo. This system is not up yet.

So now even the RCRA Manifest has entered the digital age. Stay tuned for further updates on this rule.

Continuing on our discussion of the electronic manifest (e-Manifest) system, EPA Administrator, Scott Pruitt, signed the e-Manifest User Fee Final Rule on December 20, 2017.  EPA expects the final rule to be published in the Federal Register in the coming weeks.  The pre-publication version of the final rule is attached here.

Under the final rule, user fees are only being assessed on the hazardous waste and state-only regulated waste receiving facilities.  The “billable event” is the submission of the final manifest copy signed by the receiving facilities.  In assessing the user fee on the receiving facilities only, EPA stated that it was simplifying the billing process and assuming that the receiving facilities will pass on the fees through to the generators by service agreements.

The users will pay different fees depending on the type of manifest submitted.  Given that the user fee is based on cost recovery and that paper manifests are expected to cost more to process, paper manifest fees will be considerably higher than electronic manifests.  EPA is projecting that an electronic manifest will cost $4/manifest, while a mailed copy of a paper manifest will cost $20/manifest.  Image uploads are projected to cost $13/manifest and data file uploads $7/manifest.  These fees are estimates only, based on projections of project costs.  Final user fees will be forthcoming when EPA has a final budget and contracts in place for the system.  EPA will also be publishing revised user fee schedules at two-year intervals.  Based on these estimated numbers, there is a significant incentive for receiving facilities to submit manifests electronically.

The final rule is effective June 30, 2018, which coincides with the launch of the e-Manifest system.  EPA will begin collecting fees on that date.   Receiving facilities will receive an invoice each month and will be directed to the Department of Treasury’s Pay.gov website to submit electronic payments.

We will continue to follow and provide updates from EPA on the e-Manifest system.

 

 

 

The New York Times published a report over the weekend detailing a fall-off in the EPA’s enforcement activities during Scott Pruitt’s tenure as EPA Administrator.  The changes are driven by top down directives from Washington to the regional offices.

The Times found that Scott Pruitt’s EPA started about 1,900 enforcement actions in the nine months since he was confirmed,  around a third fewer than the equivalent period during the Obama administration and a quarter fewer than during the same stretch of the George W. Bush administration.  The analysis found that the civil penalties the current EPA has sought are also less than they were under Pruitt’s predecessors.

Perhaps most significant has been the drop in demands for injunctive relief against alleged violators.  The $1.2 billion of requests made under Pruitt is just 12% of what was sought by the Obama administration in its first nine months.

Data of this kind over the relativity small time period of nine months can be misleading because enforcement actions take time to develop.  Final outcomes – penalties collected and compliance investments compelled – are a better gauge of how aggressive and effective an administration’s enforcement activities are. Nevertheless, several parameters strongly suggest a fundamental shift to a more lax approach to enforcement under Scott Pruitt.

The Times found evidence in addition to enforcement data that shows a purposeful decision by the Agency’s political appointees to rein in enforcement.  For example, it has moved to curtail some of its regional offices’ operating autonomy with respect to issuing information requests to regulated entities.  A confidential May 31, 2017 memorandum from the Director of the Office of Civil Enforcement instituted a new policy.  Now “HQ review is required prior to issuance of information requests under CAA § 114, RCRA § 3007 and CWA §308.”

In response to the New York Times article, EPA issued a release accusing the newspaper of distorting facts about enforcement under the current administration, although the statement does not dispute any specific factual statements in the article.  EPA’s response also asserts that, to date, “no request to gather enforcement information has been denied.”

The article did not include aggregate data on the number of information requests issued since the memorandum was delivered to each of the regional offices.  The Times did, however, discover that, in Region V, requests for information that include a monitoring or testing requirement fell from an average of 4.2 per month to only 1 since May 31st of this year.  It is probably too early, however, to tell if this is indicative of future levels or just a temporary slow-down due to new procedures.

How much control over information requests EPA exercises from Washington is something we will be watching very closely.  They are an essential tool for discovering violations and building enforcement actions.  Which individual information requests, if any, Pruitt’s administration declines to permit might also give an indication of what industries are likely to avoid enforcement generally.  Check back with Environmental Law Next in coming months for more information on this subject.

The U.S. Environmental Protection Agency’s (EPA) e-Manifest system is anticipated to officially launch in June 2018.   The e-Manifest is a nationwide system for tracking hazardous waste shipments electronically and will establish the first national repository of manifest data.  This is a much overdue modernization and consolidation of the current paper system.  The anticipated benefits of the e-Manifest are many, including (1) a reduction of paperwork that is expected to save approximately $75 million annually; (2) nearly real-time shipping tracking capabilities; (3) higher quality data due to better legibility; (4) immediate notice of problems or discrepancies; (5) a unified data system for state and federal wastes; and (6) a single method for reporting manifest data to EPA and states.

Under this new system, EPA is required to collect manifests from any entity required to submit a manifest under federal or state law.  Tens of thousands of generators, transporters, and treatment, storage and disposal facilities will be required to register for the e-Manifest system to submit manifests directly to EPA.  EPA is authorized to collect reasonable fees to pay for the system.  The final rule establishing the user fee methodology is expected later this month. The program will become effective on the same date in all states.

EPA is authorized to develop and implement the e-Manifest system under the Hazardous Waste Electronic Manifest Establishment Act, which was adopted in 2012.  EPA issued a final rule in February 2014, implementing certain provisions of that Act.  We will post an update on the user fee rule as soon as it is available.

An Illinois appellate court recently ruled that the 15 year post-closure monitoring requirement for sanitary landfills under the Illinois Environmental Protection Act sets the minimum, not maximum, period, and that that the operator will be required to continue post-closure monitoring if the threat of future violations of the Act is present.

D&L Landfill, Inc., the petitioner in the case, operated a landfill in Greenville, Illinois until it ceased accepting waste in 1996.  The Illinois Environmental Protection Agency approved its final post-closure care plan the following year.  Fifteen years after the beginning of the “15 year minimum post-closure care period” identified in the plan, D&L filed an application to end all post-closure care.  The application was originally denied because affirmative remedial action was necessary at the site, including repairs to the final cover.  After that was completed, however, the Agency continued to deny post-closure certification on the grounds that groundwater contamination, although trending downward, still exceeded applicable standards.  It relied on 35 Ill. Adm. Code 807.524(c), which requires that the Agency only certify post-closure care has ended if it determines “(1) That the post-closure care plan has been completed; and, (2) That the site will not cause future violations of the Act or this Part.”  As a result, the Agency told D&L, it had to keep monitoring groundwater until the Agency was satisfied there was no longer a threat of exceedances.

D&L argued that the Agency’s position was impermissible under Section 22.17(a) of the Act, which provides that the owner or operator of a sanitary landfill must monitor gas, water and settling at a closed landfill for 15 years after the site is completed “or such longer period as may be required by Board or federal regulation.” 415 ILCS 5/22.17(a).  D&L asked the court to find that absent a regulation that explicitly extending the 15 year monitoring period, its obligations terminated as a matter of law after it completed its 15 year post-closure care plan.  The Court disagreed, finding instead that Section 22.17(a) should be construed liberally to effectuate the Act’s purposes, and the Agency’s interpretation is superior for the purpose of ensuring adequate responses to unforeseen environmental issues that arise during the post-closure period.

The decision could mean much greater uncertainty for landfill owners and operators. Compliance for 15 years with an approved post-closure care plan does not guarantee that their obligations to a site that has long since ceased generating revenue will end.  Moreover, the opinion suggests that the Agency can place the burden on the landfill to prove that no violations will occur in the future before it can obtain post-closure certification.  Accordingly, landfill owners and operators that had been counting on post-closure care costs being fixed at the cost of compliance with their approved plan might be in for an unpleasant surprise.

We will continue to monitor how this may affect landfill owners and operators – check back here for any new developments.

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.