With EPA’s e-Manifest set to officially launch on June 30, 2018, companies need to begin preparing to register for the system.  Here is the latest information from EPA about how the registration will work.

All receiving facilities must have an EPA ID number by June 30, 2018, regardless of whether they will be using paper or e-Manifests.  The receiving facilities are the parties that will be responsible for payment of the user fees and the EPA ID number will be the means for tracking billing.  Generators will also need an EPA ID number if they want to sign electronic manifests or correct manifests post-receipt.  Transporters that do not already have an EPA ID number will need one if they want to sign electronic manifests.

Facilities can obtain an EPA ID number from their states, except that facilities in Iowa, Alaska and New York will need to request one from their EPA Regional office.  Facilities will need to complete EPA’s Site Identification Form 8700-12 to obtain the EPA ID number.  In states that have opted in to the EPA MyRCRAid electronic submittal program, the form can be submitted electronically.  Facilities will need to complete Items 1-10, 18 and 19 on the form.  Under the reason for submittal on the form, the party should mark “on-going regulated activity.”  If a facility already has an EPA ID, they do not need to do anything further.

The e-Manifest system will be linked to EPA’s RCRAInfo program.  Currently, RCRAInfo is used for electronic submittals of the Site ID Form (8700-12) and Biennial Report (8700-13), for states that have opted in to the electronic reporting.  Once e-Manifest launches, RCRAInfo will also be used for the electronic submittal of the Uniform Hazardous Waste Manifest (8700-22) in all states.  The basic instructions for completing the e-manifest will not be materially different from submitting a paper manifest.  The data elements will remain the same, but the instructions will be updated to address completing the electronic form and signing the form electronically.

Companies can start registering site managers now under the RCRAInfo system for those states that have opted in to the Biennial Report and/or My RCRAid under the RCRAInfo system.  The site manager will have permission to view, prepare and sign forms for their sites, in addition to approving other users in their company.  EPA is recommending that each site register at least two (2) site managers, but they can register more and site managers can be registered for multiple sites.  If a company registers now, they will automatically gain access to the e-Manifest system when it launches.  EPA will announce when registration will be open in all states.

The takeaway is:

  • If you don’t have an EPA ID and will be receiving waste, you need to request an EPA ID from either your state or EPA regional office; and
  • Register now at least two (2) site managers for your company for those states that have opted into the Biennial Report and /or My RCRAid programs.

We will continue to keep you posted on developments as they become available.

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. E-manifest rule 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.
  2. 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.
  3. 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: 
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. EPA’s goal is to eliminate paper manifests after 5 years.
  9. 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.
  10. 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.
  11. Users will register for the E-manifest system at RCRAinfo. This system is not up yet.
  12. Rule replaces 6-page manifest form with 5-page form. New top copy goes to e-manifest system instead of destination state. Moreover, copy 2 of current form, which goes to destination state, also eliminated because both destination state and generator state can get copy from electronic database. But 5-page form not yet finalized.

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.

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.

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.

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.”

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.