June 4, 2010
The New York State Electronic Equipment Recycling and Reuse Act was signed into law by Governor Paterson on May 28, 2010. Beginning April, 2, 2011, the Act requires manufacturers to accept electronic waste for collection, handling, and recycling or reuse. Covered electronic equipment includes computers (as well as accessories such as monitors, keyboard and printers), televisions, and “small electronic equipment,” which includes portable digital music players, video recorders and video game consoles. The Act sets state-wide collection standards that slowly increase over the first three years. In addition, the Act sets manufacturer-specific acceptance standards based on their market share. The Act requires “convenient collection” from consumers, but does not include the “direct collection” requirement that was the focus of industry’s litigation concerning similar electronic waste legislation passed by the City of New York in 2008.
The Firm represented the Natural Resources Defense Council in connection with an amicus brief filed by NRDC in the litigation challenging the City law. NRDC has been a staunch supporter of producer responsibility principles. The State Act preempts the challenged City law, effectively mooting that litigation. A copy of the Act is available here.
May 28, 2010
On May 3, 2010, the New York State Department of Environmental Conservation (“DEC”) released the long awaited revised DER-10: Technical Guidance for Site Investigation & Remediation. The document becomes effective June 18. DER-10 is DEC’s authoritative guidance on how to characterize the nature and extent of contamination at a site and how to design an appropriate work plan to investigate and remediate a contaminated site.
There have been significant changes to the laws governing contaminated site cleanup since DER-10 was first published in draft form in December 2002. The New York Brownfields Cleanup Program (“BCP”) has come into being, and significant changes have been made to the State Superfund statute and its implementing regulations, 6 NYCRR Part 375. DEC has revised DER-10 to reflect these changes, conform its guidance to the newer regulatory regime, and address concerns from the regulated community that elements of the 2002 draft version of DER-10 were unmanageable or confusing.
The revised DER-10 makes significant changes to chapters addressing remedy selection, site management, periodic review and closeout. The first chapter, containing general provisions including definitions, was also significantly revised. In Section 1.3, DEC added definitions and modified others to conform them to the BCP and the modified State Superfund and Part 375 language. For example, “engineering control” and “environmental easement” were added and cite to their regulatory definitions. See 6 N.Y.C.R.R. §§ 375-1.2(q), (p). Other definitions were deleted because they were never used in practice or were poorly defined. The revised DER-10 also better defines certain elements that are not included in the regulations. For example, day care facilities, which are not classified in the regulations, are classified as a restricted residential use in the guidance.
One of the major changes to DER-10 is in Section 1.5, which relaxes certain work plan and report certification requirements. Under the 2002 draft version, DER-10 provided that only a professional engineer licensed or authorized to practice in New York could certify work plans and reports. The revised 2010 version disposes with this restrictive language, and now creates a spectrum of persons who may prepare and certify work plans and reports, which includes: New York State licensed professional engineers; qualified environmental professionals; remedial parties; and site owners at the time of certification. While most plans and reports must still be certified by either a qualified environmental professional or NY licensed engineer, remedial parties and site owners may certify periodic review reports if they relate to land or groundwater use restrictions. The revised DER-10 also includes specific certification language, consistent with the BCP and Superfund Program that must be included on the title page of all submissions and must be fully executed when a document is submitted to DEC’s Division of Environmental Remediation for approval.
Chapter 4 provides the framework for remedy selection and the means and methods to identify, evaluate and select a remedy or alternative remedies to address the contamination at a site. The section provides detailed reporting and documentation requirements based on whether the site is in the Superfund program (state or federal), BCP, Environmental Restoration Program, Voluntary Cleanup Program, or petroleum spills program. It also provides DEC’s Remedial Action Objectives (“RAOs”) and preference hierarchy for removing and containing identifiable sources of contamination – removal and/or treatment at the top; treatment of source at point of exposure at the bottom. See 4.1(d).
Chapter 6 has been significantly revised; sections 6.1 (Site Management), 6.2 (Site Management Plan), and 6.3 (Periodic Review) were added. Site management, the last phase of the remedial program, commences once a Certificate of Completion (“COC”) or closure letter is issued. DER-10 describes necessary activities for proper and effective site management, including inspections by the person responsible for site management and reporting of all results in a periodic review report. The guidance requires that design, implementation, periodic review, and closeout of site management are described in a Site Management Plan (“SMP”); DEC’s website will provide a template for the SMP.
DEC also decided to rescind some TAGMs (Technical and Administrative Guidance Memoranda) developed in the 1980s and 1990s and incorporate the substance of those TAGMs into DER-10. For example, fugitive dust will no longer be monitored pursuant to a TAGM; instead, a fugitive dust and particulate monitoring program has been included as Appendix 1B in the revised DER-10. Consolidating these TAGMs into DER-10 will facilitate access to these materials for the regulated community.
DEC is planning to host a training session in Fall 2010 to answer questions and help the public understand the changes in DER-10. Notice of the meeting will be posted on DEC’s website, and DEC will solicit questions and comments prior to the meeting.
May 13, 2010
On May 4, 2010, following significant revisions (reportedly at the behest of the Office of Management and Budget), the Environmental Protection Agency (“EPA”) released proposed regulations governing management of coal combustion residuals generated by coal fired power plants, commonly known as coal ash (the “Proposed Rule”). In Fall 2009, EPA indicated it would release the Proposed Rule by the end of 2009.
EPA has proposed two options for managing coal ash.
The first option would regulate coal ash as special waste under the Resource Conservation and Recovery Act’s (“RCRA”) hazardous waste provisions. Under this option, a comprehensive program of federally enforceable requirements for management and disposal of coal ash would be created. Measures would be adopted to phase out the wet handling of coal ash. Additionally, states would be authorized to develop a permit program or use the federally-established program. This option would include storage, manifest, transport, and disposal requirements for coal ash as well as mechanisms for corrective action and financial responsibility. Failure to comply would be subject to direct federal enforcement.
The second option would regulate disposal of coal ash under RCRA’s non-hazardous waste provisions. EPA would set performance standards for waste management facilities that handle coal ash. States that adopt their own coal ash management programs would be responsible for enforcing the rule and would have the option to establish a permit program. Surface impoundments built after the rule goes into effect would be required to have composite liners, but there will be no land disposal restrictions. Although citizen suits could be filed for failure to comply with the rule, this option does not provide for direct federal enforcement. This option also does not provide for any financial assurances, but EPA plans to develop a proposed regulation pursuant to the financial assurance requirements in Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) § 108(b) that would cover coal ash facilities. This option would go into effect earlier than the first option.
Under both options, landfills that accept coal ash will be required to conduct groundwater monitoring, even if they were built before the Proposed Rule is finalized. Landfills built after the rule goes into effect would also have to install liners. The Proposed Rule does not address depositing coal ash as backfill in mines, known as minefills. Nor does it affect the current status of coal ash that is beneficially reused. The Bevill exemption, which lists specific wastes that are exempt from regulation under RCRA, includes the beneficial reuse of coal ash (e.g., fly ash in cement and concrete). However, EPA is soliciting comments regarding the uses of coal ash in unencapsulated form, such as in road fill and agricultural applications. EPA is also soliciting comments on how to define “beneficial use.” Based on the comments submitted, EPA could determine that unencapsulated uses should be regulated or could redefine which “beneficial uses” remain exempt.
Once the proposed rule is published in the Federal Register, the public will have 90 days to submit comments.
For more information about the Proposed Rule and how to submit comments visit EPA’s website.
January 22, 2010
The promulgation of a proposed rule regulating coal ash has been delayed amid numerous meetings between industry representatives, environmental groups and federal agencies. On October 16, 2009, the Environmental Protection Agency (“EPA”) sent its proposed coal ash rule to the Office of Management and Budget (“OMB”). EPA Administrator Lisa Jackson had promised that a proposed coal ash rule would be published by the end of 2009. The rule may regulate coal ash as a “hazardous waste” under the Resource Conservation and Recovery Act (“RCRA”). However, the “noteworthy” number of meetings between industry groups, environmental groups and OMB, and the over 2,300 pages of documents OMB must review, have delayed the release of a proposed rule.
Industry representatives believe that regulating coal ash under RCRA would negatively impact companies who produce the ash as well as companies who beneficially reuse it (e.g., as structural fill or agricultural uses). Tom Addams, executive director of the American Coal Ash Association, a utility industry group, stated “[a] hazardous determination would make builders reluctant to use coal ash not because of what it may contain, but because of tort activity. If litigation was filed on a national basis, it would be mind-boggling to see what the defense costs were.” Industry representatives also believe that the toxic materials in coal ash are not in high enough concentrations for the ash to be regulated as “hazardous.”
Environmental groups want coal ash to be regulated as a “hazardous waste” because it contains mercury, lead, and other potentially toxic constituents. Representatives of these groups are concerned that industry may influence the outcome of the proposed rule.
The coal ash proposal could be published in the coming weeks.
More information about the meetings between industry, environmental groups and OMB is available at the OMB website.
August 18, 2009
On Thursday August 13, 2009, Judge Deborah A. Batts of the United States District Court in Manhattan ruled that certain provisions of the Bigger Better Bottle Bill (“Bill”) could be implemented immediately. This ruling followed the issuance of a preliminary injunction in May that halted enactment of the entire Bill until April 1, 2010. Judge Batts’ ruling determined that:
- NY State may begin collecting 80% of the unclaimed deposits on all non-water bottled beverages from the bottling industry;
- The beverage industry is required to increase the handling fees paid to redemption centers for taking empty bottles;
- All provisions involving “bottled water” cannot go into effect until at least October 22, 2009 when a follow up hearing will be held; and
- No decision was rendered on the New York-specific UPC bar code.
The Bill, which was passed in April, was challenged in May when Nestle, the Polar Corp., and the International Bottled Water Association (collectively, the “water companies”) filed suit in the U.S. District Court for the Southern District of New York. The water companies claimed that the Bill was unconstitutional because it violated the Dormant Commerce Clause, the Equal Protection Clause, and Substantive Due Process of the U.S. Constitution. Judge Thomas P. Griesa of the United States District Court in Manhattan ruled in favor of the water companies when he determined that certain provisions of the Bill were unconstitutional. In particular, the requirement that a NY State-specific UPC be placed on all bottles sold in the state was found unconstitutional due to infringement on interstate commerce. For more information on Judge Griesa’s reasons for issuing the preliminary injunction see our prior post on that ruling.
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August 11, 2009
Almost thirty years after Congress instructed EPA to require facility owners and operators to set aside funds for the cleanup of property that may be contaminated by hazardous substances, a federal court in California has held EPA may take additional time to draft and issue the regulations. The court held that while Congress required EPA to issue such regulations, it granted EPA some discretion in when to do so. EPA has stated that it intends to require financial assurance for hardrock mining facilities first, and will also assess the need to regulate hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.
The regulations at issue are required under the federal Superfund law, the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), passed in 1980. The statute is commonly said to have been motivated by the notorious hazardous waste contamination discovered buried at Love Canal, NY. Section 108 of CERCLA requires EPA to issue financial assurance requirements for certain types of facilities, based on the risk of injury from hazardous substances in operations at those facilities. The regulations, once issued, would require the operator of a covered facility to set aside funds or otherwise make funds available for a possible future cleanup of hazardous substances at the property. Without such funds, costly cleanups may force potentially responsible parties into bankruptcy leaving taxpayers with the bill, or lengthy litigation may ensue over the allocation of costs. EPA was first required to publish a notice of those classes of facilities which presented the “highest level of risk of injury” by December 11, 1980. CERCLA § 108(b)(1).
The December 1980 deadline passed, without EPA publishing the required notice. The statutory requirement languished, until in recent years it received renewed attention. EPA was sued in federal court in 2008, on the theory that EPA had failed to perform a non-discretionary duty under CERCLA. The suit was brought under to CERCLA’s citizen suit provision, which allows a private litigant to force non-discretionary agency action. In February 2009, the Northern District of California held in Sierra Club v. Johnson (N.D. Cal. No. C 08-01409) (“Johnson“), that EPA had a mandatory duty to publish classes of facilities which presented the greatest risk of injury. In July, 2009, EPA published a notice these classes of facilities in the Federal Register, pursuant to the court’s order. In its notice, the agency determined that it would promulgate the first financial assurance requirements for hardrock mining facilities, based on the extent of contamination from such facilities, and the high costs of cleanup.
EPA did not limit its inquiry to hardrock mining; the notice also stated that EPA will examine the need for financial assurance at the following types of facilities: “hazardous waste generators, hazardous waste recyclers, metal finishers, wood treatment facilities, and chemical manufacturers.” 74 Fed. Reg. 37,219. EPA states that it intends to publish a notice of this “second wave” of types of facilities by December, 2009. Id.
However, the Northern District of California held that EPA is under no date-certain deadline to issue the financial assurance requirements. Instead, the court held, “that although Section 108(b) requires EPA to promulgate financial responsibility regulations and incrementally impose such requirements, Section 108(b) provides EPA with discretion as to when to promulgate such regulations. Unlike the duty to publish notice of classes, Section 108(b) does not include a date-certain deadline for the promulgation of financial responsibility regulations …” Johnson, Order, at 4-5 (Aug. 5, 2009). In so doing, the court rejected “a bright line rule that only duties with date-certain deadlines are non-discretionary for the purpose of citizen suits under CERCLA,” and instead looked to legislative history to help determine whether EPA’s duty to promulgate regulations by a particular date was non-discretionary. Id. at 5.
To maintain a claim that EPA has “unreasonably delayed” its duties under CERCLA, the court held that plaintiffs may continue to press their claims under another statute, the Administrative Procedure Act (APA), but must do so in another court. The court stated, “plaintiffs may bring an APA claim in the Court of Appeals for the D.C. Circuit alleging EPA unreasonably delayed in promulgating the financial responsibility regulations required under Section 108(b).” Id. at 6. Unless and until such a litigation is brought and decided, the timeline for financial assurance requirements under CERCLA will remain unclear.
EPA that although Section 108(b) requires EPA to promulgate
financial responsibility regulations and incrementally impose such requirements, Section 108(b)
August 10, 2009
A recent opinion from the U.S. District Court in the Northern District of Oklahoma may limit the recovery of natural resource damages (NRD) under the federal Superfund law.
In addition to the cleanup of Superfund sites, potentially responsible parties under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) may also be held liable for harm to natural resources caused by the release of hazardous substances, known as natural resource damages (NRD). Natural resources as defined by the statute include “land, fish, wildlife, biota, air, water, ground water, drinking water supplies, and other such resources belonging to, managed by, held in trust by, appertaining to, or otherwise controlled by the United States … any State or local government, any foreign government, [or] any Indian [T]ribe.” 42 U.S.C. § 9601(16). These governmental “trustees” are responsible for pursuing NRD claims.
In State of Oklahoma v. Tyson Foods, Inc., the Oklahoma Attorney General sued several Arkansas poultry farms under CERCLA for the contamination of the Illinois River watershed. On July 22, the U.S. District Court for the Northern District of Oklahoma rejected these NRD claims since the state had not joined the Cherokee Tribe, a trustee with jurisdiction over parts of the river. The court held that the Tribe was an indispensable party to the lawsuit, and without the participation of the Tribe or a clear division of the amount of natural resources held by each trustee, it dismissed the NRD claims under Rule 19 of the Federal Rules of Civil Procedure (“Required Joinder of Parties”). 2009 WL 2176337 (N.D. Okla. 2009).
The Tyson Foods decision conflicts with others that have indicated a single trustee may bring CERCLA claims for the full amount of natural resource damages, even in the absence of other affected trustees. See, e.g., United States v. Asarco, Inc., 471 F.Supp.2d 1063 (D. Idaho 2005). If Tyson Foods stands, the decision could render recovery of NRD under CERCLA more difficult, especially where a governmental PRP also happens to be a trustee of the affected resources.
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