EPA’s final Hazardous Waste Generator Improvements Rule (“Rule”), which goes into effect on May 30, 2017, contains approximately 60 revisions to the hazardous waste generator regulatory program. The revisions focus on improving efficiency, and compliance for hazardous waste generators—which is quite appropriate given EPA’s estimated hazardous waste non-compliance rate of 20 to 30 percent. See Final Rule Preamble at IX.B(1). The Rule also results in a significant reorganization of the hazardous waste generator regulations, which have historically been confusing in their layout and configuration.

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Although the Rule is scheduled to go “into effect” on May 30, 2017, that date will prove inconsequential for most jurisdictions. The May 30, 2017 effective date only applies to states and territories without an authorized RCRA program:  Alaska, Iowa, Indian Nations, Puerto Rico, American Samoa, Northern Mariana Islands, and the U.S. Virgin Islands.  Moreover, under RCRA, authorized states are required to adopt only provisions of the Rule that are “more stringent” than their authorized state programs and are not required to adopt provisions of the Rule that are “less stringent” than their authorized state programs.  Therefore, some states may not adopt all of the Rule’s provisions.

By way of background, hazardous waste generators are regulated according to the amount of various types of waste they generate in a calendar month, with larger generators being regulated more strictly–

Earlier this month, the United States EPA proposed a rule (“Proposed Rule”) that would update and revise National Pollutant Discharge Elimination System (“NPDES”) regulations. Rather than epa-logoreopening the existing NPDES regulations for comprehensive revision, the Proposed Rule would make “specific targeted changes to the existing regulations” that align the regulations with statutory requirements and incorporate case law decisions.  Essentially the update would “modernize” the NPDES regulations.

The Proposed Rule covers 15 topics. These pertain to permit applications; the water quality-based permitting process; permit objections, documentation and process efficiencies; the “vessels exclusion” (which authorizes certain discharges incidental to the normal operation of commercial vehicles); and the Clean Water Act (CWA) section 401 certification process.

For a complete summary of the Proposed Rule, please click here.  Comments on the Proposed Rule will be accepted through July 18, 2016 and may be submitted here.

After years of drought, the El Niño storms have been bringing much-needed rain and snow to California–albeit in quantities significantly less than we hoped for thus far.  In addition to the anticipated snow packs, flowing rivers, and replenished reservoirs, the California landscape has been marked by the return of ephemeral vernal pools, which may appear as seemingly insignificant ponds or puddles.

However, under the Clean Water Rule (“CW Rule”) which was promulgated mid-last year, and which defines which waters are “jurisdictional”—meaning, protected as “waters of the United States” under the Clean Water Act (“CWA”)—the reach of federal jurisdiction may include those seemingly insignificant ponds or puddles.

If such a pond or puddle is deemed a “vernal pool” that is covered by the CWA, then the pond or puddle is subject to a myriad of CWA regulatory requirements, including the federal prohibition on discharges of pollutants except in compliance with the CWA (§ 301), the requirement to obtain a permit prior to discharge (§§ 402, 404), water quality standards (§ 303), oil spill liability and oil spill prevention and control measures (§ 311), certification of compliance with State water quality standards (§ 401), and enforcement (§ 309).

Today the U.S. Environmental Protection Agency published a proposed rule in the Federal Register which would add a vapor intrusion component to the Hazard Ranking System, the system EPA uses to evaluate sites for placement on the National Priorities List (“NPL”).  We forecasted and discussed the publication of this proposed rule in a blog post earlier this month.  Under the proposed rule, the Hazard Ranking System evaluation could directly consider “human exposure to hazardous substances, pollutants, or contaminants that enter regularly occupied structures through subsurface intrusion in assessing a site’s relative risk, and thus, enable subsurface intrusion contamination to be evaluated for placement of sites on the NPL.”  Click here to see the proposed rule.

Comments may be submitted on the proposed rule through April 29, 2016.

A  proposed rule that would add a vapor intrusion component to the Hazard Ranking System (“HRS”), the primary screening tool for the CERCLA National Priorities List (“NPL”), is scheduled for publication in the Federal Register this month.  NPL listing is a prerequisite for designation as a federal Superfund site.  Previously, the HRS did not take into direct consideration the vapor intrusion pathway, and NPL listing was based upon only the ground water migration, soil exposure, surface water migration, and air migration pathways.  The proposed rule represents a renewed effort by the U.S. Environmental Protection Agency to expressly account for vapor intrusion in the NPL evaluation process, following a prior version of this rule proposed in 2010.

Proponents of the rule contend that vapor intrusion presents unique risks to human health that the HRS does not adequately account for, while industry opponents assert the new criteria would result in the identification of few, if any, new NPL sites and that the lengthy Superfund process is not the appropriate vehicle to address any sites that may involve more imminent threats to human health.

Upon publication in the Federal Register, there will be a sixty-day public comment period.   For more information, please click here.  Check back to the blog for future updates.

Yesterday, the Department of Toxic Substances Control (“DTSC”) released its draft Stage 1 Alternatives Analysis Guide (“Guide”) under the California Safer Consumer Products program.  Public comments are being accepted on the Guide through October 24, 2015, and DTSC is specifically asking commenters to “provide the names of tools, methods, approaches, and data sources not already mentioned, as well as examples for steps and approaches, to complete an [alternatives analysis].”

By way of background, California’s Safer Consumer Products program took effect on October 13, 2013, and seeks to reduce certain chemicals from consumer products.  The program establishes a list of “candidate chemicals” of concern and “priority products” that contain candidate chemicals.  Candidate chemicals are identified here.  Initial priority products include paint stripper with Methylene Chloride; spray polyurethane foam with unreacted MDI; and children’s foam-padded sleeping products with TDCPP (or TCEP).

Manufacturers and other supply-chain participants of priority products will be required to submit priority product notifications to DTSC sixty (60) days after the effective date of the regulation establishing a product-chemical combination as a final priority product.  Subsequently, alternatives analyses will be required, in which manufacturers and other supply-chain participants will need to submit information regarding whether there is a “safer” way to make priority products.  Thereafter, DTSC is required to implement a regulatory response, which could include mandated product labeling requirements, safety measures, and bans.

     Earlier this month, the California State Water Quality Control Board (“State Water Board”) approved a General Order for Waste Discharge Requirements (“WDRs”) for composting operations, which will streamline and standardize permitting processes and regulate water quality at new and existing composting facilities.  While the General Order was approved with very little fanfare or media coverage, its implications are significant.

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    The General Order, which applies to State composting facilities that process at least 500 cubic yards of material per year, will impose a regulatory scheme on a large number of the organics facilities already operating in the State.  Moreover, the General Order’s facility coverage is likely to expand in the coming years, given the recent passage of California Assembly Bill 341 (“A.B. 341”) (2011), which encourages the addition and expansion of State composting facilities by establishing a State policy goal that at least 75 percent of the solid waste generated in the State be source-reduced, recycled, or composted by 2020.

Last week, in Michigan v. EPA, the U.S. Supreme Court held that it was unreasonable for the U.S. Environmental Protection Agency (“EPA”) to refuse to consider costs in connection with its finding that it was “appropriate and necessary” to regulate hazardous air pollutant (“HAP”) emissions from power plants under the federal Clean Air Act (“CAA”).

By way of background, the CAA instructs EPA to regulate HAP emissions from power plants if it concludes that regulation is “appropriate and necessary.”  The “appropriate and necessary” language stems from the 1990 CAA amendments, wherein Congress established a procedure for determining the applicability of the HAP program to power plants.  Those amendments require EPA to regulate power plants as ordinary major sources if, after conducting several studies, EPA finds that it is “appropriate and necessary.”

After EPA completed the required studies in 1998, it concluded that regulation of power plants was in fact “appropriate and necessary.”  EPA’s “appropriate” finding was based on a conclusion that power plants emitted mercury and other HAPs which posed a risk to human health and the environment and that emission reduction controls were available.  EPA’s “necessary” finding was based on its conclusion that then-existing requirements did not eliminate risks.  In conjunction with its conclusions, EPA determined that “costs should not be considered” in determining whether power plant HAPs should be regulated.  A Regulatory Impact Analysis issued by EPA estimated that EPA’s decision would cost power plants $9.6 billion per year, whereas quantifiable regulatory benefits would be worth $4 to 6 million per year.