Environmental Compliance

By Patrick D. Joyce, Jeryl L. Olson, and Craig B. Simonsen

iStock_000011623330_MediumSeyfarth Synopsis: In a significant proposal, EPA moves to ban the use of TCE in aerosol degreasing and spot cleaning at dry cleaning facilities, as part of a larger effort to ban TCE in other industrial uses.

The U.S. Environmental Protection Agency is proposing to ban certain uses of Trichloroethylene (TCE) – one of the most commonly used solvents – because of alleged health risks from its use as an aerosol degreaser and for spot cleaning in dry cleaning facilities. 91 Fed. Reg. 91592 (Dec. 16, 2016). The proposed rule was issued under the recently-amended Section 6(a) of the Toxic Substances Control Act.

This is a significant and controversial step. Not only is this EPA’s first use of Section 6(a) in 25 years, it is EPA’s first use of the “new” Section 6(a), which was revised in June 2016. In addition to the current proposed ban, EPA has indicated it intends to issue a proposal to ban TCE in vapor degreasing, and will publish one final rule banning TCE use in aerosol degreasing, spot cleaning at dry cleaning facilities, and vapor degreasing.

TCE is a volatile organic compound (VOC) that is both produced and imported into the United States, with use estimated to be around 250 million pounds per year. TCE is a clear, colorless liquid with a sweet odor and it evaporates quickly. TCE is used industrially as a solvent, a refrigerant, and in dry cleaning fluid. The majority of TCE is used (about 84 percent) in a closed system as an intermediate chemical for manufacturing refrigerant chemicals. Much of the remainder (about 15 percent) is used as a solvent for metals degreasing. Only a small percentage accounts for other uses, including use as a spotting agent in dry cleaning and in consumer products.

While the use of TCE in aerosol degreasing and spot dry cleaning constitute the least common use of the solvent in the United States, under this current proposal, EPA will prohibit the manufacture (including import), processing, and distribution in commerce of TCE for use these limited uses. However, EPA has indicated it is also developing a proposal to ban the use of TCE in other industries and in other operations with higher volume uses of the chemical (i.e., vapor degreasing). EPA’s final rule will includes the current proposed ban on aerosol use and spot cleaning in dry cleaning facilities, as well as the upcoming proposed ban on vapor degreasing.

The proposed ban on aerosol and dry cleaning uses includes requirements that manufacturers, processors, and distributors of TCE notify retailers and others in their supply chains of the prohibitions on use in aerosol degreasing and spot dry cleaning, and it is presumed the ban on vapor degreasing will have similar notification requirements.

Comments will be received on the proposed rule, Docket No. EPA–HQ–OPPT–2016–0163, until February 14, 2017.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis and Craig B. Simonsen

Dentist or dental officeSeyfarth Synopsis: In another rule aimed at small business, the EPA has just issued a rule for Effluent Limitations Guidelines and Standards for the Dental Category. The rule will add more federal compliance costs to already tight dental office budgets.

The U.S. Environmental Protection Agency issued last week its pretreatment standards to reduce discharges of mercury from dental offices into publicly owned treatment works (POTWs).  We had blogged previously when the rules were proposed in October 2014.

Dental offices discharge mercury present in amalgam used for fillings. According to the Agency, “amalgam separators are a practical, affordable and readily available technology for capturing mercury and other metals before they are discharged into sewers that drain to POTWs.” EPA anticipates that once captured by a separator, mercury may be recycled.

Approximately fifty percent of dental amalgam is elemental mercury by weight. Dental amalgam is a dental filling material used to fill cavities caused by tooth decay. It has been used for more than 150 years in hundreds of millions of patients. EPA expects compliance with this final rule will annually reduce the discharge of mercury by 5.1 tons as well as 5.3 tons of other metals found in waste dental amalgam to POTWs.

EPA indicated that the rule will apply to offices, including large institutions such as dental schools and clinics, where dentistry is practiced that discharge to a POTW. “It does not apply to mobile units or offices where the practice of dentistry consists only of the following dental specialties: oral pathology, oral and maxillofacial radiology, oral and maxillofacial surgery, orthodontics, periodontics, or prosthodontics.”

The final rule purports to ease administrative burdens from those initially proposed. “Administrative burden was a concern of many of the commenters on the 2014 proposed rule and EPA has greatly reduced that burden through streamlining the administrative requirements in this final rule.” The Agency claims that to simplify implementation and compliance for the dental offices and the regulating authorities, the final rule establishes that dental dischargers are not Significant Industrial Users (SIUs) as defined in 40 CFR part 403, and are not Categorical Industrial Users (CIUs) or “industrial users subject to categorical pretreatment standards” as those terms and variations are used in the General Pretreatment Regulations, unless designated such by the Control Authority.

“While this rule establishes pretreatment standards that require dental offices to reduce dental amalgam discharges, the rule does not require Control Authorities to implement the traditional suite of oversight requirements in the General Pretreatment Regulations that become applicable upon the promulgation of categorical pretreatment standards for an industrial category.” This, the EPA asserts, will significantly reduce the reporting requirements for dental dischargers that would otherwise apply by instead requiring them to demonstrate compliance with the performance standard and BMPs through a one-time compliance report to their Control Authority.

The approach will also eliminate additional oversight requirements for Control Authorities that are typically associated with SIUs, such as permitting and annual inspections of individual dental offices. “It also eliminates additional reporting requirements for the Control Authorities typically associated with CIUs, such as identification of CIUs in their annual pretreatment reports.”

In its proposal EPA estimated that there approximately 160,000 dentists working in over 120,000 dental offices who use or remove amalgam in the United States – “almost all of whom discharge their wastewater exclusively to POTWs.” According to the EPA news release at that time, “this is a common sense rule that calls for capturing mercury at a relatively low cost before it is dispersed into the POTW.”

Specifically the rule requires dentists to cut their dental amalgam discharges to a level achievable through the use of the “best available technology,” known as amalgam separators, and the use of other Best Management Practices. Amalgam separators are devices designed to remove amalgam waste particles from dental office wastewater.

In response to the proposed rule the American Dental Association said that it believes the “new federal regulation represents a fair and reasonable approach to the management of dental amalgam waste…. The rule includes reasonable exemptions, a phase-in period and considerations for dental practices that have already installed the devices.”

The compliance date for existing facilities is three years from the rule publication in the Feedral Register.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Patrick D. Joyce, Jeryl L. Olson, and Craig B. Simonsen

Blog - Fracking WaterSeyfarth Synopsis: With significant objection from Industry, EPA has issued its Final Report on whether hydraulic fracturing activities can impact drinking water resources under certain circumstances.

The U.S. Environmental Protection Agency published its controversial final report on “Hydraulic Fracturing for Oil and Gas: Impacts from the Hydraulic Fracturing Water Cycle on Drinking Water Resources in the United States.” In the report, which has already been subject to great objection from Industry, EPA issued its finding that hydraulic fracturing (fracking) activities in the U.S. may have impacts on the water lifecycle, affecting drinking water resources. The Agency had put out a draft of the report for public comment in June 2015, which we blogged on at that time. 80 Fed. Reg. 32111.

The report was prepared at the request of Congress. Its purpose was to follow water resources used for fracking through the entire water cycle from water acquisition, to chemical mixing at the well pad site, to well injection of fracking fluids, to the collection of fracking wastewater (including flowback and produced water), and finally, to wastewater treatment and disposal. EPA claimed that the study “identified conditions under which impacts from hydraulic fracturing activities can be more frequent or severe.” The report also identified “data gaps [that] limited EPA’s ability to fully assess impacts to drinking water resources both locally and nationally.” The final conclusions were based on review of over 1,200 cited sources.

In response to EPA’s report, the American Petroleum Institute (API) blasted the EPA’s “abandonment of science in revising the conclusions to the Assessment Report….” API and the fracking industry requested changes to EPA’s Draft Report that EPA did not incorporate in the Final Report. As a result, API Upstream Director Erik Milito said, “the agency has walked away from nearly a thousand sources of information from published papers, technical reports and peer reviewed scientific reports demonstrating that industry practices, industry trends, and regulatory programs protect water resources at every step of the hydraulic fracturing process.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Kay R. Bonza, and Craig B. Simonsen

shutterstock_132968252

Seyfarth Synopsis: With the EPA adding the consideration of vapor intrusion in its Superfund site investigations, hundreds of sites that previously would not rank high enough to qualify for listing on the National Priorities List of contaminated sites would now likely qualify.

The U.S. Environmental Protection Agency (EPA) has just released a pre-publication version of its final rule to add a subsurface intrusion (SsI) component to the Superfund Hazard Ranking System (HRS).  EPA defines subsurface intrusion as the migration of hazardous substances, pollutants, and contaminants from the unsaturated zone or the surficial (shallow) ground water into overlying structures. The most common form of subsurface intrusion is vapor intrusion.  Vapor intrusion occurs when vapor-forming chemicals from sources including dry cleaning solvents and industrial de-greasers in ground water or soil migrate into buildings and other enclosed spaces, posing a threat to indoor air quality.

We had blogged previously when the Agency proposed this new rule. See EPA Plans to Ease Path to Superfund Listing: Vapor Intrusion Component to be Added to the Hazardous Ranking System. Before this rulemaking, the EPA addressed SsI at sites only when those sites were listed on the National Priorities List (NPL) for another contamination issue.  By adding the consideration of vapor intrusion to the HRS, hundreds of sites that previously would not rank high enough to qualify for listing on the NPL could now qualify based soley on the threat of vapor intrusion. NPL listing is a prerequisite to EPA spending sums over $2 million to investigate and conduct remedial actions under Superfund.  NPL-listed sites are generally more expensive to remediate and more difficult to sell than are other environmentally distressed properties.

In his blog on the topic Mathy Stanislaus, Assistant Administrator for the Office of Land and Emergency Management, indicates that the new rule will allow the “EPA site assessment program to address two additional types of sites: those that either have only subsurface intrusion issues, and those with subsurface intrusion issues that are coincident with a groundwater or soil contamination problem.”

In its support materials for the proposal, EPA noted that the Government Accountability Office (GAO) had concluded that “if vapor intrusion sites are not assessed and, if needed, listed on the NPL, there is the potential that contaminated sites with unacceptable human exposure will not be acted upon.”  The HRS is Appendix A to the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), and is used by EPA to identify hazardous waste sites eligible to be added to the NPL.

The Agency has also provided an FAQ and an Interim SsI Superfund Chemical Data Matrix Table.

According to EPA’s news release on the rule, “this regulatory change does not affect the status of sites currently on or proposed to be added to the NPL. This modification only augments criteria for applying the HRS to sites being evaluated in the future.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Jeryl L. Olson, Andrew H. Perellis, Kay R. Bonza, Patrick D. Joyce, and Craig B. Simonsen

Book with Environmental Law word on table in a courtroomSeyfarth Synopsis: The EPA’s new “Hazardous Waste Generator Improvements Rule,” while containing some changes that industry welcomes, also contains new requirements that present challenges for the regulated community. We will be publishing a series of blogs on the more complex and important compliance issues coming out of these rules prior to the May 2017 effective date of the rules.

The U.S. Environmental Protection Agency has finally published its Hazardous Waste Generator Improvements Rule, 81 Fed. Reg. 85732 (November 28, 2016).  The Agency is promoting the idea that the final rule updates the hazardous waste generator regulations to make the rules “easier to understand, facilitate better compliance, provide greater flexibility in how hazardous waste is managed, and close important gaps in the regulations.”

While we agree the rules are better organized (for example, the definitions of “very small quantity generators,” “small quantity generators,” and “large quantity generators” are now conveniently located in one place in the 40 CFR Part 262 Generator Standards),  it is important for the regulated community to understand the substantive changes of the new rules, particularly as they relate to container labeling, satellite accumulation areas and new closure requirements for “central accumulation areas” (formerly known as less-than-90-day-storage -areas). In our series of blogs we will discuss these issues as well as new and revised notification, recordkeeping and reporting requirements, among other topics.

The rule will become effective on May 30, 2017. For those states and territories that are not authorized for the RCRA program (Alaska, Iowa, and the Indian Nations, and the territories Puerto Rico, American Samoa, N. Mariana and U.S. Virgin Islands), the rule will go into effect on that day. Authorized states will be required to adopt any provisions that are more stringent than the current state RCRA generator regulations in order to retain their authorized status. Provisions that are either less stringent or the same as current RCRA regulations can be adopted at the state’s discretion. However, the rule (both good and bad) will not become effective in authorized states until those states have both adopted the rule and EPA has authorized those newly adopted provisions.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Andrew H. Perellis, Kay R. Bonza, and Patrick D. Joyce

Seyfarth Synopsis: With a dramatic change from a progressive democratic to a conservative republican administration, we anticipate that EPA is not only likely to pivot away from an enforcement heavy to a more business friendly agenda, it is also likely to abandon many of the previous administration’s landmark climate regulations and take a more measured approach to climate change.

The U.S. presidential election outcome has left many with questions about what to expect with the new administration and a Republican-controlled Congress. However one thing is certain: we will experience a 180 degree shift in current environmental policy when Donald Trump takes office in January 2017.  Below is a synopsis of the key environmental changes we expect to see under the Trump administration, although, of course, nothing is certain given the overall lack of information regarding Mr. Trump’s policy proposals and no background as to how he will act as an elected official.

Regulatory Reform

Mr. Trump has stated that he will likely issue a temporary moratorium on all new environmental regulation, and plans to strike regulations which his administration deems “unnecessary” and that “kill jobs and bloat government.”  Specific rules Mr. Trump has singled out to “eliminate” include: the Interior Department’s proposed Stream Protection Rule to safeguard communities from coal mining operations; the EPA and Army Corps of Engineers’ Clean Water Rule redefining water bodies subject to federal jurisdiction and protection; and EPA’s Clean Power Plan which requires states to develop strategies to reduce carbon dioxide emissions from power plants.

In addition, currently proposed EPA rules will likely not be made final, and environmental regulations facing challenges in the courts could be weakly defended by the Justice Department at the direction of the new administration. It is also possible any regulations that make it to the U.S. Supreme Court will be struck down by a conservative Court. Rescinding regulations that do not fall in line with the new administration is a possibility, but one that requires another EPA rulemaking process that may face challenges by environmental groups and states in support of the regulations.

Energy

Mr. Trump has indicated he has plans to revamp U.S. energy policies to make the U.S. a net energy exporter by opening onshore and offshore leasing on federal lands and waters to encourage production of energy resources. He also has hinted at plans to review all “anti-coal regulations,” rescind the coal mining lease moratorium on new federal coal leases announced in January 2016, and open up more public land for fossil fuel extraction. Eliminating the proposed Stream Protection Rule will remove regulatory requirements for the coal mining industry to consider the effects of their operations on groundwater, surface water, and endangered species, making it cheaper and easier to mine coal.  At the same time, the new administration is likely to focus on promoting policies and regulations to develop the infrastructure necessary for the export of fossil fuels.

While the fossil fuel industries may receive less scrutiny under environmental regulations under the Trump administration, the new administration may not change the renewable energy sector significantly because individual states have made significant progress in this area. For example, many states now require utilities to draw a percentage of their generation capacity from renewable energy sources and have implemented policies and set future goals to increase the use of renewable sources.  Corporations are increasingly procuring their own power, from rooftop solar energy to utility-scale wind farms, all of which are contributing energy to the electric grid.  Federal regulation that may interfere with states’ progress in the renewable energy sector is unlikely given Mr. Trump’s disfavor for regulations and the Republican position against limiting states’ rights.

Climate Change

Under the new administration, and with climate change skeptic Myron Ebell on the shortlist to become EPA Administrator, regulations for controlling greenhouse-gas emissions face a high likelihood of being scrapped, including the Clean Power Plan, mentioned above, and the Obama administration’s Climate Action Plan.  It is also highly like the U.S. will back out of the Paris Agreement, where more than 190 countries agreed to reduce their carbon dioxide emissions and limit global warming to below two degrees Celsius.  The agreement calls for “appropriate financial flows, a new technology framework and an enhanced capacity building framework” to support action by developing and vulnerable countries.  While formally withdrawing from the agreement may prove difficult due to a time-specific exit clause barring exit for three years from the date of ratification, followed by a one-year waiting period upon a request to withdraw, the new administration could opt to ignore the agreement and refuse to provide financial aid.  Without the participation of the U.S., the world’s second-largest greenhouse gas polluter, the goal to limit global warming may be unattainable.

Supreme Court and Agency Decision-making

With a Republican president and Republican-controlled Congress, a conservative Justice will almost certainly be appointed to the U.S. Supreme Court and as a result, we expect the Court to be less deferential to agency decision-making. We had previously blogged about the U.S. Supreme Court’s decision in Perez v. Mortgage Bankers Association and indicated that conservative leaning Supreme Court justices have called into question whether agency interpretations of their own regulations should be given any judicial deference.  The appointment of a conservative Justice could tip the scale in favor of curbing the level of deference given to agency interpretations, thereby prompting agencies like the EPA to undertake the formal rulemaking process more frequently to amend their interpretations of existing rules.

EPA’s National Enforcement Initiatives

The EPA selects National Enforcement Initiatives (NEIs) every three years, to prioritize its resources on the most significant environmental risks that can be mitigated by government action, and those issues where noncompliance is a significant contributing factor.  The NEIs for fiscal years 2017 – 2019 went into effect on October 1, 2016, and include: a focus on reducing air pollution from the largest sources and reducing hazardous air pollutants; ensuring energy extraction activities comply with environmental laws; reducing pollution from mineral processing operations and reducing risks of accidental releases at industrial and chemical facilities; and protection the nation’s waters from industrial pollutants, raw sewage, contaminated stormwater, and animal waste.

These enforcement priorities will very likely shift under the new administration which has the ability to redirect resources from one priority to another. Given Mr. Trump’s focus on revamping the U.S. coal industry, he is likely to de-emphasize the enforcement of environmental laws in the energy extraction sector and instead opt for a business-friendly approach.  The EPA as a whole may begin to approach enforcement more reactively when incidents prompt intervention, rather than proactively to prevent environmental disasters.  Enforcement may be replaced by increased agency initiatives to promote compliance assistance and more heavily consider the costs of environmental compliance on the regulated community.  Decreased enforcement activity could in turn lead to citizen suits to force the EPA to enforce its regulations.

Conclusion

Navigating environmental policy under the new administration will likely involve paying closer attention to state regulatory regimes that will move to the forefront in instances of reduced federal regulation. EPA could shift a large portion of environmental regulation and enforcement to the states, subjecting multi-state companies to different state-specific regulatory requirements.  We will continue to monitor the changes sure to take place for environmental compliance and enforcement under the Trump administration and will provide more clarity as the situation unfolds.  However, keep in mind that the EPA is like a cargo ship out on the ocean; it takes time to change course.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Brent I. Clark, Kay R. Bonza, and Craig B. Simonsen

iStock_000011623330_MediumSeyfarth Synopsis: OSHA “strongly supports” EPA’s proposed updates to its existing regulations governing significant new uses of chemical substances under the Toxic Substances Control Act. The proposed changes seek to reconcile EPA requirements with OSHA and NIOSH requirements.

Dr. David Michaels, the Assistant Secretary of Labor for the U.S. Occupational Safety and Health Administration (OSHA), recently weighed in in favor of the U.S. Environmental Protection Agency’s (EPA) rulemaking concerning the Significant New Uses of Chemical Substances: Updates to the Hazard Communication Program and Regulatory Framework, Minor Amendments to Reporting Requirements for Premanufacture Notices. 81 Fed. Reg. 49598 (July 28, 2016).

We had blogged previously about the passage of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (Chemical Safety Act). In signing the Bill on June 22, 2016, President Obama indicated that “The Frank R. Lautenberg Chemical Safety Act for the 21st Century will make it easier for the EPA to review chemicals already on the market, as well as the new chemicals our scientists and our businesses design.”

EPA’s regulations establishing workplace restrictions on the use of new chemicals had not previously considered existing OSHA controls. EPA subsequently proposed changes to its regulations governing significant new uses of chemical substances under the Toxic Substances Control Act (TSCA) to align these regulations with revisions to the OSHA Hazard Communications Standard (HCS), the OSHA Respiratory Protection Standard, and the National Institute for Occupational Safety and Health (NIOSH) respirator certification requirements pertaining to respiratory protection of workers from exposure to chemicals. EPA’s proposed changes that reference OSHA regulations include: (1) a requirement that persons subject to significant new use rules (SNURs) use engineering and administrative controls to protect workers before resorting to use of personal protective equipment, similar to OSHA’s regulation at 29 C.F.R. § 1910.134(a)(1); (2) revisions to require a written hazard communication program that includes criteria for classifying chemical hazards in each workplace, similar to OSHA’s regulation at 29 C.F.R. § 1910.1200; and (3) a requirement that any safety data sheet developed to comply with OSHA or other requirements be submitted as part of the reporting requirements under the TSCA.

Assistant Secretary Michaels commented on the record in support of the EPA’s proposed revision to 40 C.F.R. § 721.63, Protection in the Workplace, to align with the OSHA’s Respiratory Protection Standard, at 29 C.F.R. § 1910.134(a)(1)). “OSHA supports a requirement for those subject to applicable significant new use rules (SNURs) to determine and use appropriate exposure controls per the hierarchy of controls to ensure worker protection.” With regard to the respiratory protection requirements in 40 C.F.R. § 721.63, Assistant Secretary Michaels commented that “most manufacturers and processors are already subject to and complying with the most updated NIOSH regulation for testing and certifying respirators. This proposed change also achieves compliance with 29 C.F.R. § 1910.34(d)(1)(ii), OSHA’s requirement that employers select NIOSH-certified respirators for the protection of workers should respirators be necessary.” Finally, Michaels commented that the EPA’s effort to align the classification of chemical hazards with the United Nations’ Globally Harmonized System of Classification and Labelling of Chemicals, adopted by OSHA in 2012, provides “a common and coherent approach to classifying chemicals based on their hazardous properties” and will “reduce duplication in effort and burden for those subject to these requirements.”

Those in the chemical manufacturing and processing, and petroleum and coal manufacturing industries may wish to keep an eye out to see if EPA’s proposed amendments are adopted, as the new rule may ease the regulatory burden of complying with parallel EPA and OSHA regulations.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Seyfarth OSHA Compliance, Enforcement & Litigation Team or the Environmental Compliance, Enforcement & Permitting Team.

By Jeryl L. Olson

Urban PlannerSeyfarth Synopsis: The U.S. Army Corps of Engineers (USACE) has just issued a Regulatory Guidance Letter which provides to property owners (including developers) the right of appeal USACE Approved Jurisdictional Determinations.

On November 1, the U.S. Army Corps of Engineers (USACE) issued a Regulatory Guidance Letter (No. 16-01, October 2016) (RGL) which provides to property owners (including developers) the right of appeal of USACE Approved Jurisdictional Determinations (AJDs).

Jurisdictional determinations are used by USACE to confirm formal determinations by the USACE of the applicability of the Clean Water Act or Rivers and Harbors Act to tracts of land, i.e., whether property contains wetlands or other water features. While jurisdictional determinations are discretionary, the USACE commonly issues jurisdictional determinations regarding the presence of wetlands when requested by owners.  In the new RGL, USACE has acknowledged that AJDs can have significant impacts on the use or development of property, and that such decisions can be appealed.

Both AJDs and Preliminary Jurisdictional Determinations (PJD) are common tools used by USACE to inform property owners about USACE decisions as to the presence of wetlands, streams, intermittent streams or other water courses on property, however, historically USACE has taken the position that its final AJDs were non-reviewable once issued. Because AJDs were until now not subject to appeal, property owners obtaining “unfavorable” USACE determinations of wetlands on their property were left with no reasonable alternatives for challenging such USACE determinations.

Owners could proceed to develop a property notwithstanding the determination, and await an enforcement action with potential criminal and civil penalties, or owners could proceed with the lengthy and costly permit process, and thereafter challenge the permit decision requiring a permit for development of or to a wetland.

As a result of the Supreme Court ruling earlier this year (U.S. Army Corps of Engineers v. Hawks Co., 136 St. 1807 (May 2016)) affirming AJDs are “final agency action” and thus immediately subject to appeal, USACE issued the RGL acknowledging the Supreme Court ruling that AJDs (but not PJDs) are reviewable.  The October 2016 RGL specifically supersedes all previous Regulatory Guidance Letters issued by USACE with respect to the reviewability of AJD determinations by USACE.

The new Regulatory Guidance Letter includes newly-developed USACE forms that may be used (but are not mandatory) in requests for AJDs and PJDs.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Jeryl L. Olson, Patrick D. Joyce, and Craig B. Simonsen

bottleSeyfarth Synopsis: EPA publishes new Retail Strategy in an attempt to address the unique challenges the retail sector faces in complying with RCRA’s hazardous waste regulations.

The regulation of hazardous waste in stores, warehouses and during reverse logistics processes in the retail sector has been fraught with difficulty for the retail industry, in large part due to competing, and inconsistent rules by state and local governments. and California. The U.S. Environmental Protection Agency (EPA) has indicated it is looking to balance its goals of minimizing impacts to the environment, without undue regulatory burdens on an industry that does not have significant experience in the morass of RCRA requirements.

We have previously blogged extensively on this topic, encouraging the guidance now being considered by EPA : “DOT Publishes Final Rule on “Safe Reverse Logistics” for Retail “Returns” of Hazardous Materials to Distribution Centers,” “OSHA Enforcement Memo and Interim Policy on the Process Safety Management Retail Exemption,” “EPA Rulemaking on Hazardous Waste Management in the Retail Sector, and “Warning! Retailers’ Environmental Enforcement Initiative in New York”.

According to EPA, it’s Strategy for Addressing the Retail Sector under RCRA’s Regulatory Framework is a “next step” in EPA’s goal to increase clarity for retailers on how retail hazardous wastes should be handled. EPA notes that its ongoing outreach efforts, combined with the comments received it received on the February 2014 Notice of Data Availability (NODA) for the Retail Sector (79 Fed. Reg. 8926), have “improved the Agency’s understanding of the challenges arising when managing unused/intact consumer goods that have become unsalable at retail stores and are moving through the reverse distribution system.”

EPA’s going-forward Strategy uses a three-pronged approach:

  1. Issue Agency policy, guidance and rulemaking to ensure a better fit between RCRA regulations and the retail sector.
  2. Research retail hazardous waste management practices and related issues in the area of reverse distribution, universal waste and other challenges.
  3. Using the results of that evaluation and research, identify additional approaches to address outstanding RCRA retail sector issues if needed.

In the near term, EPA intends to focus its efforts on finalizing the related Pharmaceuticals and Generator Improvements rules, which only tangentially address retail hazardous waste. Over the longer term, EPA intends to more directly address the retail sector’s concerns by:

  1. Issuing a guide to recycling aerosol cans, which EPA found make up the largest percentage of retail hazardous wastes (35%);
  2. Proposing rules to add aerosol cans, pesticides, an/or electronics to the federal universal waste rules, allowing for simplified disposal; and
  3. Developing a policy that directly addresses the reverse distribution process for the retail sector as a whole.

In an attempt to show that it has not simply been sitting around over the 2+ years since the NODA and the highly publicized state enforcement cases against retailers, EPA has provided a diagram showing the flow of retail items and relationships among various organizations that manage consumer goods and wastes based on the research it has completed so far.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Environmental Compliance, Enforcement & Permitting Team.

By Jay W. Connolly and Aaron Belzer

bottleSeyfarth Synopsis: New California regulations provide more specific guidance on the content of Prop 65 “safe harbor” warnings, and on the corresponding methods for providing such warnings.

Come August 30, 2018, consumer products to be released into the California marketplace must meet new regulations under California’s infamous Proposition 65. On August 30, 2016, the California Office of Administrative Law approved the adoption of new regulations for clear and reasonable warnings under Proposition 65.

Proposition 65, known as the Safe Drinking Water and Toxic Enforcement Act of 1986, requires businesses with 10 or more employees to give “clear and reasonable” warnings to California consumers before knowingly and intentionally exposing them to known carcinogens or reproductive toxins (“Listed Chemical”). Proposition 65 requires the Governor of California to publish and periodically update a list of known carcinogens and reproductive toxins. To date, almost 1,000 substances appear on this list.

Under the existing regulations, a warning is “clear’ if it effectively communicates that the Listed Chemical in question is known to the State of California to cause cancer and/or birth defects or other reproductive harm. It is “reasonable” if the method used by a business to transmit the warning is reasonably calculated to make the warning message available to the individual before exposure (for a consumer product, before purchase). The existing regulations provide “safe harbor” guidance regarding types of warning methods and general warning language for various exposures that are deemed “clear and reasonable” under Proposition 65.

The new regulations provide more specific guidance on the content of these “safe harbor” warnings, and on the corresponding methods for providing such warnings. Notably, the new regulations require the warnings to provide more detailed information to the public, including: (a) a clear statement that a person “can be exposed” to a Listed Chemical (rather than just a statement that a product or area “contains” a Listed Chemical); (b) the names of one or more Listed Chemicals that are the subject of the warning; and (c) a link to a website maintained by the California Office of Environmental Health Hazard Assessment (“OEHHA”) containing supplemental information. The new regulations also establish safe harbor warning methods for internet and catalog sales, requiring that businesses provide the warning on the webpage or in the catalog, as well as on the product. The new regulations may also require businesses to provide the warning in both English and in one or more foreign languages. For example, for consumer product exposures, a business must provide the warning both in English and in any other language used on a product’s sign, label or shelf tag.

The new regulations also clarify the relative responsibilities for providing consumer product exposure warnings between product manufacturers, producers, packagers, importers, suppliers, distributors and retailers. The new regulations require a manufacturer, producer, packager, importer, supplier or distributor of a product that is subject to Proposition 65 either: (1) to affix a warning to the product, or (2) to provide directly to the authorized agent for a retail seller written notice, which, among other things, identifies the exact name or description of the product requiring a notice, and encloses all necessary warning materials such as labels, labeling, shelf signs or tags, and warning language for products sold on the Internet for the products at issue. The written notice must be renewed annually, or within 90 days when a different or additional Listed Chemical or endpoint (cancer or reproductive toxin) needs to be added to the warning.

The retailer, in turn, is responsible for the placement and maintenance of the warning materials, including warnings for products sold over the Internet, that the retailer receives from a manufacturer, producer, packager, importer, supplier or distributor of a product. Similarly, the retailer is responsible for providing the warning if: (1) the retailer is selling the product under its own (or an affiliate’s) brand or trademark; (2) the retailer itself is responsible for introducing a Listed Chemical into the product; or (3) the retailer has covered, obscured, or altered a warning label affixed to the product.

The new regulation becomes operative on August 30, 2018. In the interim, business can comply with the current regulations or the new regulations. Indeed, warnings on products manufactured before the operative date that comply with the current regulations are still considered clear and reasonable. Similarly, a business that is a party to a court-ordered settlement or final judgment establishing a warning method or content is still considered to be providing a “clear and reasonable” warning for purposes of the new regulation, if the warning complies with the order or judgment. Nonetheless, businesses may want to begin planning for the new regulations, particularly if they are contemplating introducing new products to the market, or are contemplating other changes to the labels on their existing products.

Jay W. Connolly is a partner in Seyfarth’s San Francisco office and Aaron Belzer is an associate in the firm’s Los Angeles office. They regularly represent and advise clients in Proposition 65 matters and developments. If you have any questions regarding this development or related issues please contact your Seyfarth Shaw LLP attorney, Jay Connolly at jconnolly@seyfarth.com, or Aaron Belzer at abelzer@seyfarth.com.