Earth Day 2021: CERCLA and RCRA in The Biden Administration: Elevating Climate Change and Environmental Justice in Addressing Hazardous Wastes
We close out the Corporate Environmental Lawyer Blog's weeklong celebration of Earth Day with the two federal programs aimed at cleaning up existing toxic waste sites and preventing the creation of new ones: the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) and the Resource Conservation and Recovery Act (“RCRA”). The Trump Administration considered the remedial and regulatory roles of the CERCLA and RCRA programs as core EPA functions, so it did not target them for regulatory rollbacks like it did for many federal clean air (including climate change), clean water, and environmental review requirements. Nonetheless, the new occupant of the White House will change the focus of both these programs—in large part by elevating climate change and environmental justice considerations in decision-making.
Early in the Trump Administration, Scott Pruitt, then the EPA Administrator convened a Superfund Task Force that identified five priorities: (1) expediting cleanup and remediation, (2) invigorating responsible party cleanup and reuse, (3) encouraging private party investment, (4) promoting redevelopment and community revitalization, and (5) engaging partners and stakeholders. The Task Force set forth 42 recommendations to achieve those goals.
Following the Task Force recommendations, the Trump Administration prioritized 54 sites and completed remediation and delisted over 50 sites from the National Priorities List. The focus was often sites with redevelopment potential. At many of those sites, surprisingly aggressive settlements with potentially responsible parties funded the work. At the same time, however, the number of unfunded orphan sites (those with remediation plans but no funding source) grew as federal appropriations were limited. By January 2021, there were at least 34 unfunded orphan sites, many in at-risk areas.
The Biden Administration is expected to retain the goals and many of the recommendations from the Task Force, but it will redeploy resources to meet its priorities. Climate change (a phrase that literally had been removed from the Superfund Strategic Plan), and environmental justice (which seeks to address the disproportionately high health and environmental risks found among low-income and minority communities) will reemerge as key considerations in CERCLA decision-making, especially in site prioritization and remediation plans. A 2019 GAO report indicated that these issues are often linked. It identified roughly 2/3 (975/1570) of the NPL listed Superfund sites as vulnerable to climate-related risks—hurricanes, flooding, wildfires and/or rising sea levels. Many of these sites were also located near low-income and minority communities. Biden will seek to pair his climate change and environmental justice goals with his redevelopment and infrastructure plans through Brownfield grants and other incentives.
The Biden Administration has also signaled it will address emerging contaminants. As noted by Steve Siros in Wednesday's Corporate Environmental Lawyer Blog, EPA is likely to designate per- and polyfluoroalkyl substances (“PFAS”) as “hazardous substances” under CERCLA and may set a maximum contaminant level (“MCL”) for these compounds under the Safe Drinking Water Act (“SDWA”). These actions could have a significant impact on new and existing cleanups. First, designating PFAS a “hazardous substance” would require facilities to report PFAS releases, which could trigger more investigations and cleanups. Second, any PFAS limits under the SDWA or state regulations would become Applicable or Relevant and Appropriate Requirements (“ARARs”) that would have to be considered in CERCLA listing and remedy decisions. Finally, these changes would require PFAS contamination to be evaluated in EPA’s five year review at each site and potentially trigger reopeners in prior settlements. Tighter standards for other chemicals, such as 1,4-dioxane, could have similar results.
Resources are already being deployed to support these efforts and additional funding for Brownfield and Superfund projects is in the works. The American Rescue Plan Act of 2021 provides $100 million for EPA grants to address disproportionate environmental harms to at-risk populations and air quality monitoring. According to the American Jobs Plan Fact Sheet dated March 31, 2021, the Administration is proposing an additional $5 billion for Brownfield and Superfund sites and an additional $10 billion to monitor and remediate PFAS. The Administration is also proposing to restore the Superfund tax, which expired in 1995, to ensure that resources are available in the Superfund Trust to address unfunded site cleanups. Similarly, the Administration is considering reversing the financial responsibility exemption for chemical manufacturers, petroleum and coal products manufacturers and electric power generation, transmission and distribution facilities that was issued in the waning days of the previous Administration.
Like CERCLA, RCRA was not a focus of the Trump Administration’s regulatory rollbacks—though funding cutbacks affected rule development and enforcement. The Biden Administration has already signaled that it intends to reenergize enforcement, including criminal prosecutions, which may lead to an increase in federal overfiling in RCRA enforcement actions, especially in states with lax enforcement histories.
Trump’s most significant RCRA actions addressed coal ash, referred to as Coal Combustion Residuals (“CCR”). The Trump CCR rules, which were promulgated after the Obama-era CCR rule was vacated, are being reviewed for consistency with Biden’s Executive Order Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. Likewise, the CCR Permit Program and the Beneficial Use Rules or Electric Utilities, which were pending on Inauguration Day, are subject to the Presidential memorandum freezing regulations pending review.
Biden’s focus on environmental justice and climate change will impact RCRA permit evaluations and enforcement, both in process and in substance. Procedurally, those seeking RCRA permits, and even RCRA permitted facilities, may be subject to additional notification requirements, more community involvement, and greater scrutiny. Substantively, the social cost of carbon and chemical exposure risks will become part of the evaluation.
Biden’s other climate change initiatives may have more significant RCRA impacts down the road. For example, the push toward electric vehicles will reduce the demand for gas stations at current levels. That change, combined with the fact that underground storage tanks installed or upgraded to comply with the 1988 underground storage tank standards are nearing the end of their useful lives, will trigger tank closures throughout the country. More broadly, the transition from a fossil fuel economy to a clean fuel economy will reveal many other environmental issues that will require substantial efforts and resources to address.
The Biden Administration is already changing the course of environmental law. With CERCLA and RCRA, the shifts will be more subtle than in other areas, but the focus on climate change and environmental justice will have profound impacts on whose voices are heard and where, and how, resources are deployed. The Corporate Environmental Lawyer Blog will continue to monitor and report on developments in these areas and others. In the meantime, thank you for sharing Earth Day (and Earth Week) with us!
NextEra Energy Resources LLC (“NextEra”), the largest generator of wind energy in North America, is currently locked in legal disputes with local townships over its new wind energy project, the “Tuscola Wind III Energy Center.” NextEra’s subsidiary, Tuscola Wind III LLC (“Tuscola”), plans to construct the 55 turbine wind farm across the Fairgrove, Almer, and Ellington Townships of Tuscola Country, Michigan. The project, if completed, will be the third wind farm constructed by NextEra in Tuscola County. The proposed $200 million dollar wind farm is projected to supply wind energy for up to 50,000 homes.
After reaching agreements with nearly 100 landowners to secure land for the project, Tuscola submitted a Special Land Use Permit (“SLUP”) to the local townships for construction and operation of the wind farm. However, two of the townships, Almer and Ellington, denied the permits and enacted one year moratoriums on the construction of wind farms. According to Tuscola, its permits were blocked by newly elected members of the Townships’ Boards who were affiliated with a regional anti-wind citizens advocacy group. The company alleged that the organization was engaged in a systematic effort to block the Tuscola project and that the group had used “tactics of intimidation, threats of lawsuits, referenda, and recalls . . . in an effort to prevent the development of wind projects.”
The company is now fighting back. In lawsuits filed in the Eastern District of Michigan, NextEra is seeking to have the Board of Trustees’ denial of the SLUP overturned. On November 3, 2017, the district court issued its first decision on the matter, affirming the denial of the SLUP by the Almer Township. The court found that the Township’s Board had properly denied the application after it determined that the purposed wind farm would violate Almer’s noise zoning ordinance. The court noted that although Almer’s noise ordinance was admittedly ambiguous, the Board should be provided deference to interpret the meaning of its own ordinance. Finding that the board’s interpretation of the ordinance was reasonable, the court elected not to overturn the decision.
On March 13, 2018, the district court reached a markedly different result in Tuscola’s parallel suit against the Ellington Township. Here, the District Court overturned the Ellington Township’s denial of the SLUP. Unlike the Almer Township Board, it appears Ellington’s Board refused to even consider the merits of Tuscola’s SLUP, and relied entirely on its newly enacted moratorium to block consideration of the application. The Court concluded that the township’s moratorium was an inappropriate suspension of its zoning ordinance, and was thus void. Therefore, the Board could no longer rely on the moratorium as a reason to refuse to consider the SLUP application. Left open by the decision was whether Ellington could successfully deny the SLUP on other grounds or what timeframe the township had to approve/deny the permit. Interestingly, the Ellington decision arrived exactly one day after the district court reaffirmed its earlier holding in the Almer case (Both decisions were authored by the same Judge).
Finally, in the newest twist, landowners of property proposed for the Tuscola Wind III site have now filed suit in Tuscola County Circuit Court seeking a court order to ouster the newly elected board members alleged to be part of the anti-wind organization. The ultimate resolution of Tuscola’s dispute may end up relying in part on the success of this new suit.
By Andi Kenney
On January 19, 2018, OSHA issued a citation to Spirit Aerosystems, Inc., alleging one willful and five serious violations of the OSHA hexavalent chromium standard (29 CFR 1910.1026) and assessing $194,006 in penalties.
In the citation, OSHA alleges that the manufacturer of aerostructures (including portions of fuselages) willfully failed to prevent employee exposures to levels above the permissible exposure limit (PEL) of 5.0 ug/m3 8 hour time weighted average (TWA) and to implement feasible engineering and work practice controls “to reduce employee exposure to the lowest achievable level.” The citation notes an employee who was sanding and grinding was exposed to hexavalent chromium at 9.0 ug/m3 on a time weighted average, 1.8 times the PEL.
The citation further alleges that Spirit Aerosystems did not perform periodic monitoring every three months, did not perform monitoring when process changed, did not demarcate a regulated area for hex chrome, allowed employees to leave the hex chrome work area without removing contaminated clothing and equipment, and did not adequately train employees regarding the OSHA hex chrome standard.
The citation is notable for several reasons. First, it is an indication that OSHA is still actively enforcing the hex chrome standard. Second, it underscores OSHA’s position that an increased scheduled work load is a process change that would require additional exposure monitoring. Third, it affirms that the aircraft painting exception, which establishes a 25 ug/m3 exposure limit, does not apply to grinding and sanding operations. Finally, it raises questions about how far an employer has to go to reduce exposures—does the employer’s obligation to implement controls require it to reduce exposure “to the lowest achievable level” as alleged in the citation or does the employer meet its obligation if it reduces exposure to the PEL?
By Andi Kenney
On October 26, 2017, EPA published a proposed rule requiring manufacturers and importers of mercury and mercury-added products or any other person who intentionally uses mercury in a manufacturing process to provide EPA with both quantitative and qualitative information about the elemental mercury and mercury compounds involved in their activities. 82 FR 49564 (October 26, 2017).
Under Section 8(b)(10)(B) of the Toxic Substances Control Act (TSCA), EPA must publish an inventory of mercury supply, use, and trade in the United States” in 2017 and every year thereafter. This reporting rule is authorized by Section 8(b)(10)(D) of TSCA which requires covered persons to provide EPA with the information the Agency needs to prepare that inventory.
The list of potentially affected industries is wide ranging and includes, among many others, mining, chemical manufacturing, plastics and resin manufacturing, medicinal and pharmaceutical manufacturing, coating and adhesive manufacturing, tire and rubber product manufacturing, fabricated metal products (including ammunition) manufacturing, circuit board and semiconductor manufacturing, office and industrial equipment manufacturing, watch and measuring equipment manufacturing, lighting and household appliance manufacturing, battery and electrical equipment manufacturing, boat and RV manufacturing, toy and jewelry manufacturing, and hazardous and non-hazardous waste facilities.
The reporting requirements focus on those who first manufacture mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process. The proposed rule would not apply to persons generating, handling or managing mercury-containing waste, unless that person manufactures or recovers mercury and uses it or stores it for use. Nor would it apply to those merely engaged in the trade of mercury, those importing mercury-added products for personal use and not for commercial purposes, those manufacturing mercury incidentally (such as by burning coal) or those importing a product that contains mercury solely as a component in a mercury-added product (such as a toy with a mercury-added battery). It would, however, apply to mercury or mercury-containing by-products manufactured for commercial purposes and to the storage of mercury and mercury-added products after manufacture.
EPA is proposing an initial reporting deadline of July 1, 2019, with subsequent reports due every three years thereafter. Each report would cover only the preceding calendar year.
EPA is accepting comments on the proposed rule until December 26, 2017.
On January 18, 2017, the Department of Labor published a final rule adjusting civil penalties under the Occupational Safety and Health Act for inflation as required by the Federal Civil Penalties Inflation Adjustment Act of 2015. As required by the Act, the adjustment is based on changes to the Consumer Price Index for all Urban Consumers. Unlike last year’s catch-up adjustment, which increased penalties by 78%, this year’s inflation adjustment is a little over 1%. The new penalties compared to the pre-August 2016 penalties can be found here.
On May 12, 2016, the U.S. Occupational Safety and Health Administration ("OSHA") issued a final rule addressing employers' workplace injury and illness reporting and recording obligations. 81 Fed. Reg. 29624-94. One portion of the new rule addresses retaliation against employees who report a work-related injury or illness (collectively, "injury") to an employer. Specifically, new § 1904.35(b)(1)(iv) provides: "You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness." 29 CFR § 1904.35(b)(1)(iv). OSHA also added another new rule: An employer “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 CFR § 1904.35(b)(1)(i).
The new rule, particularly § (b)(1)(iv), was challenged in federal court, with plaintiffs seeking a nationwide preliminary injunction prohibiting the rule's enforcement. TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). On November 28, 2016, the court denied plaintiffs' request for an immediate injunction, but said that its decision on the preliminary injunction does not reflect its decision on the merits of plaintiffs' legal challenges to the rule. Without the preliminary injunction, OSHA may begin enforcing the new rule as of December 1, 2016.
By Andi Kenney
On November 18, 2016, OSHA finally published a final rule updating the walking-working surfaces and fall protection standards for general industry. Percolating since 1990 (55 FR 13360), reopened in 2003 (68 FR 23528) and again in 2010 (75 FR 28862), revisions to the walking-working surfaces and fall protection standards were long overdue. OSHA’s 500+ final rule gives employers new options to combat slip, trip and fall hazards (Subpart D) while adding employer requirements to ensure those new options provide for enhanced safety. It adds a new section under the general industry Personal Protective Equipment standard (Subpart I) that specifies employer requirements for using personal fall protection systems and clarifies obligations for several specific industries, including telecommunications, pulp, paper and paperboard mills, electrical power generation, transmission and distribution, textiles and sawmills.
The final rule addresses fall protection options (including personal fall protection systems), codifies guidance on rope descent systems, revises requirements for fixed and portable ladders, prohibits the use of body belts as part of a personal fall arrest system, and establishes training requirements on fall hazards and fall protection equipment. OSHA Administrator Dr. David Michaels stated, "The final rule will increase workplace protection from those hazards, especially fall hazards, which are a leading cause of worker deaths and injuries." OSHA notes the final rule also increases consistency between general and construction industries, which it believes will help employers and workers that work in both industries.
The International Bar Association’s Water Law News was published this week and includes an article written by Lynn Grayson regarding the Flint, MI water crisis. Her article titled Flint, Michigan Water Crisis: Lessons Learned provides a detailed factual account of the circumstances, decisions and governmental actions that led to the discovery of elevated levels of lead in Flint’s drinking water.
The article addresses possible lessons learned from the Flint situation, including regulatory oversight failures, aging infrastructure and environmental justice considerations. In her opinion, a quote from Michigan Governor Snyder when he testified before the House Committee on Oversight and Government Reform best summarizes what happened in Flint: “. . . Let me blunt: this was a failure of government at all levels—local, state and federal officials—we all failed the families of Flint.”
Founded in 1947, the International Bar Association (IBA) is the world’s largest leading organizations of international legal practitioners, bar associations and law societies. The IBA influences the development of international law reform and shapes the future of the legal profession throughout the world.
Workers Comp: Will the Opt-Out Initiative Alter the 100 Year Old Social Compact Between Employers and Employees for Work-Related Injuries and Illnesses?
Dissatisfaction with existing workers compensation programs seems to be the norm these days. Employers are fed up with the costs of the programs, the sense that they provide incentives for employees to make false claims or to exaggerate real claims, and the bureaucratic process for claims resolution, among other issues. Employees are frustrated by the process for pursuing claims and the compensation schedules. As a result, the majority of states are considering changes to their workers compensation programs.
In honor of the fifth anniversary of our entry into the blogosphere, we are excited to announce a major revamp of the Corporate Environmental Lawyer’s design. In addition to the blog’s sophisticated new look, our readers will enjoy:
- Mobile and tablet responsive technology
- A trending-categories cloud list
- Easy-to-use social sharing buttons
Streamlined navigation menus
- Access to all five years of posts
In the five years since our Environmental and Workplace Health & Safety (EHS) practice created the Corporate Environmental Lawyer, we have written more than 500 posts, provided critical updates and insights on issues across the EHS legal sectors, and been ranked among LexisNexis’s top 50 blogs. As we wish to continue to grow the blog and provide our readers with the information they want to know, Corporate Environmental Lawyer editors, Steven M. Siros and Genevieve J. Essig, encourage you to participate by suggesting new topics. We look forward to continuing to provide content covering the issues that are driving changes in environmental law.
Chemicals, natural and synthetic, are all around us. We can’t live life without them--and we wouldn’t want to. But some chemicals are toxic to humans and the flora and fauna with which we share the earth. Replacing toxic substances found in the workplace, distributed in commerce and contained in wastes with less harmful materials protects employees, consumers and the environment at the same time. Safe Chemical and Green Chemistry initiatives seek to do just that.
OSHA estimates that each year more than 190,000 employees become ill and 50,000 die as a result of chemical exposures. Environmental and health and safety regulations restrict only a small percentage of the chemicals in use. Active chemical management systems designed to minimize or eliminate chemical hazards by finding safer alternatives can have a significant impact on employee health. Employers have often found that switching to safer chemicals reduces costs by reducing employee absences, medical expenses, disposal costs, and sometimes material costs. Additional benefits often include greater efficiencies and/or performance, improved employee morale and the benefits associated with being an industry leader and socially responsible employer.
OSHA has developed a tool kit to help employers interested in transitioning to safer chemicals. The tool kit outlines a seven step approach to understanding the chemicals being used in the workplace and finding and evaluating opportunities for improvements. It also includes a number of links to additional useful information. The tool kit can be found here.
Removing harmful chemicals from the workplace reduces the presence of harmful chemicals on our jobsite, on our roads, rails and waterways, in our products and ultimately in our landfills—a win for everyone and the environment.
On May 24, OSHA published a proposed rule to amend its walking-working surfaces and personal protective equipment standards, Subparts D and I of the General Industry Standards. The proposed revisions are intended to reduce the number of workplace injuries and fatalities due to slips, trips and falls by requiring the use of updated technologies and current industry practices. Among other changes, the revisions in Subpart D would require employers to provide fall protection to all employees working at heights of four feet or more and would establish specific requirements for the fall protection system used. Revisions to Subpart I would establish criteria and performance requirements for the use of personal fall protection systems.
The revisions would also make general industry requirements more consistent with those in the construction and maritime industries. Like the construction standard, the proposed rule would eliminate the preference for guardrails and would, instead, permit employers to choose from one of several conventional fall protection systems (guardrail systems, safety net systems, travel restraint systems, and personal fall protection systems) or non-conventional means, such as establishing designated areas for work, provided established criteria are met.
This new proposed rule supersedes the proposal published in the Federal Register on April 10, 1990 (55 FR 47660) and republished on May 2, 2003 (69 FR 23528) but retains many of its provisions. One notable difference, however, is that the recent proposal eliminates the option to designate qualified climbers, except in outdoor advertising. OSHA seeks additional comment on that issue as well as on the application of the rule to rolling stock and motor vehicles, fall protection on stacked materials, and building anchorages for rope descent. Comments are due by August 23, 2010.