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 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.

A North Carolina appeals court has ruled that a company may be an “operator” of a hazardous waste disposal facility under RCRA Subtitle C based solely on post-closure involvement at the site.

The case, WASCO LLC v. N.C. Dep’t of Env’t & Nat. Res., Div. of Waste Mgmt., No. COA16-414, 2017 BL 125671 (N.C. Ct. App. Apr. 18, 2017), involved a former textile manufacturing facility. The site became contaminated after perchloroethylene (PCE), a dry-cleaning solvent leaked, from underground storage tanks. At the time the leaks occurred the site was owned by a division of Winston Mills, Inc. Five years after the leaks, Winston Mills entered into an agreement with the North Carolina Department of Environment and Natural Resource that detailed a plan to close the site, and the site was closed three years later. Defendant-petitioner WASCO LLC first became involved at the site years later, when it acquired a company that co-guaranteed indemnification for environmental liabilities at the site.   It subsequently took some action to affirmatively remediate the site and applied for a RCRA Part A permit.

By 2007, however, North Carolina discovered that hazardous waste was migrating offsite and contaminating groundwater. At that time WASCO disclaimed responsibility for further remediation and asserted that all previous involvement had been on a voluntary basis. It could not be an operator, it argued, because it did not become involved with the site until after it was closed and it is impossible to operate a closed site. WASCO asserted that it was not an “operator” under the language of the North Carolina Solid Waste Management Act, which defines the term as “any person, including the owner, who is principally engaged in, and is in charge of, the actual operation, supervision, and maintenance of a solid waste management facility and includes the person in charge of a shift or periods of operation during any part of the day.” N.C. Gen. Stat. § 130A-290(a)(21).

The court rejected WASCO’s arguments. It held that WASCO must be an operator despite its late involvement because the site was not designated as a disposal facility until after the site was closed. Accepting WASCO’s interpretation that operators are only entities responsible for pre-closure activities would, at least in this case, mean that the facility would have no operators at all. It also found that the trial court properly looked not only to the definition of operator in the North Carolina statute, but also at the broader definition in CERCLA, in addition to cases and guidance related to CERCLA and RCRA. These sources, it reasoned, are hazardous waste specific, while North Carolina’s more detailed definition applies to all solid waste management facilities.

Although the belated designation of the site as a hazardous waste disposal facility on account of the unintentional release of PCE distinguishes it from typical RCRA Subtitle C landfills, it is far from clear that this distinction was dispositive for the court. More likely it was guided by the principle of broad liability under RCRA, particularly when hazardous waste is involved.

Nine trade associations, including the American Chemistry Council, the American Petroleum Institute, and the American Forest & Paper Association, have filed a Petition for Review challenging the EPA’s Hazardous Waste Generator Improvements Rule.  The rule was developed by the Obama Administration and was not finalized until after the election, on November 28, 2016.  It is not scheduled to become effective anywhere in the country until May 30, 2017, at the earliest.

The primary purpose of the rule was to reorganize existing regulations applicable to hazardous waste generators to make them more user-friendly.  The rule also clarifies ambiguities in the existing regulations.  It will, however, have significant impacts on some hazardous waste generators.  For more information on substance of the Hazardous Waste Generator Improvements Rule, see our earlier post here.

The Petition for Review does not state which portions of the rule the associations seek to eliminate, nor does it articulate the substantive basis for their challenge. The petitioners did, however, submit comments on the proposed rule, which shed light on which requirements they find most concerning and the arguments they are likely to make before the Court.  In those comments, they listed as the most objectionable part of the rule EPA’s position that any violation of a condition for exemption subjects the generator to all of the applicable rules for non-exempt facilities.  As a result, a generator that runs afoul of a condition for exemption could as a result be subject to penalties for not complying with dozens of requirements that apply to the next higher level of generator, or even those that apply only to treatment, storage and disposal facilities.

The petitioners are also likely to focus their challenge on the portion of the rule that for the first time formally incorporates the requirement that hazardous waste determinations be made at the point of generation, before any dilution, mixing or other alteration of the waste occurs.

We will be following this petition and providing updates on Environmental Law Next as the challenge progresses.