Category Archives: Solid Waste

It’s Good to Be a Brownfield Site — As Long As It’s Not Too Brown

Tucked away in the recesses of the Inflation Reduction Act is a provision that reminds everyone why they love Superfund so much.  On its face, it’s simply an incentive for renewable energy development, giving an adder to the amount of the investment tax credit (ITC) or production tax credit (PTC) to which certain renewable energy projects would otherwise be entitled, if they are located in an “energy community”. … More

The Law Is An Ass, RCRA Edition

Late last month, the 9th Circuit Court of Appeals ruled that a public water supplier could be liable in a citizens’ suit brought under the imminent and substantial endangerment provisions of RCRA, where the plaintiff alleged that the groundwater used by the supplier had been contaminated by the disposal of hexavalent chromium by a wood treatment facility upgradient of the supplier’s well field.

Blaming the victim doesn’t quite cover this. … More

Injunctions In RCRA Citizen Suits — Broad, But Not Infinite

Two recent cases illustrate the potential scope of, and the potential limitations on, injunctive relief in RCRA citizen suits.  First up, Schmucker v. Johnson Controls.

Contamination was detected at the Johnson Controls manufacturing facility in Goshen, Indiana.  In response, Johnson Controls performed substantial remediation under the auspices of the Indiana Department of Environmental Management’s Voluntary Remediation Program.  Nonetheless, significant contamination remains at the site,… More

Carbon Free Boston — Or How to Save the World in a Few Easy Steps

Boston’s Green Ribbon Commission has just released Carbon Free Boston, which outlines a pathway to a carbon-free city by 2050.  It’s a thoughtful and careful report.  My immediate reaction was two-fold.  Of course we have to do all this and of course this will be nearly impossible.

The transmittal letter to Mayor Walsh acknowledges the immensity of the undertaking:

The report’s analysis makes clear the great magnitude of the change needed to achieve carbon neutrality.… More

Are Discharges to Groundwater Potentially Subject to the Clean Water Act? A Circuit Split Tees It Up.

The Sixth Circuit ruled earlier this week that discharges to groundwater are not subject to Clean Water Act jurisdiction.  We now have the requisite circuit split, opening the possibility of Supreme Court review.  For those who might still be open-minded, I commend both the majority and dissenting opinions in the 6th Circuit; they are each as clear and as persuasive as they could be.

Although I have long thought that it does not make sense to regulate discharges to groundwater under the CWA,… More

EPA To Rename OSWER: How About “The Office That Should Be Eliminated As Soon As Possible”?

According to the Daily Environment Report (subscription required), EPA is going to change the name of the Office of Solid Waste and Emergency Response to the Office of Land and Emergency Management.  What a grand name; surely it is an improvement.

I don’t think that this quite rises to the level of rearranging deck chairs on the Titanic titanic(though I certainly have clients who would not object if OSWER sank without a trace),… More

If Congress Wants to Limit EPA’s Discretion, Perhaps It Should Do a Better Job Legislating

Earlier this week, the D.C. Circuit Court of Appeals rejected both industry and environmental group petitions challenging EPA’s determination of what is a solid waste in the context of Clean Air Act standards for incinerators and other combustion units.  It wasn’t actually a difficult case, but it does provide a lesson for Congress.  When the technical nature of EPA’s decisions was layered on top of the fundamental deference given EPA’s interpretation of the statute under Chevron,… More

Is There Any End to Post-Closure Care Under RCRA?

Late last month EPA issued draft guidance on adjusting post-closure periods under RCRA.  hwlf-csIt’s not good news.

Although the Guidance is technically neutral concerning shortening or lengthening post-closure periods, let’s not kid ourselves; this is all about extending post-closure care.  For how long?  How does forever sound?

Why do I think that this is all about extensions?  First, if anyone can give me any examples where EPA has ever decreased this type of monitoring/oversight period,… More

RCRA Still Poses Some Interpretive Problems (To Put It Gently)

In a potentially significant opinion last week, in Little Hocking Water Association v. DuPont, Judge Algenon Marbley gave hope to citizen plaintiffs everywhere, with a remarkably expansive reading of the imminent and substantial endangerment language in RCRA’s citizen suit provision.  The decision covers a lot of ground, and is well worth reading (and, in fairness, Judge Marbley did reject some of plaintiffs’ claims).

The most significant holding was that DuPont’s emissions of perflourooctanoic acid,… More

When Is a Solid Waste Not a Solid Waste? An Eternal Question

This year, EPA has proposed a rule to regulate GHG emissions from existing sources, the legality of which turns, in significant part, on the meaning of a “source” under section 111(d) of the Clean Air Act.  It has also proposed a rule clarifying the definition of “waters of the United States” under the Clean Water Act.  Having dealt with gases and liquids, EPA has turned to solids (it’s a metaphor,… More

When Will My Leftover Turkey Power My Electric Car: A Post Thanksgiving Reflection on the Promise and Challenge of Food Waste Bans

Food is a big part of why Thanksgiving is my family’s favorite holiday.  Over the years, we have tried to eat sensibly and sustainably, and to waste less food. But on the Monday after Thanksgiving, I suspect we are not alone as we contemplate the wilted salad, the wan sweet potatoes, and the last of the now not-so-attractive leftover turkey.  Indeed, one recent study by NRDC estimated that Americans throw away 40% of their food.… More

Economic Development Is Not an Unqualified Environmental Evil (In Case You Didn’t Know)

I do not want to suggest that most environmentalists are Luddites or that the environmental movement is opposed to economic development. Indeed, hardly a speech is made today that does not tout the economic benefits of environmental protection. Less focus is given, however, to the environmental benefits of economic development.

I therefore thought it worth noting that, according to a recent study published in Environmental Science and Technology,… More

One Step At A Time Is Just Too Late: The DC Circuit Strikes Down EPA’s Deferral of GHG Regulation of Biomass Emissions

On Friday, in Center For Biological Diversity v. EPA, the D.C. Circuit Court of Appeals struck down EPA’s rule deferring regulation of GHG emissions from “biogenic” sources.  EPA had promulgated the rule, delaying regulation of emissions from biogenic sources from July 20, 2011, to July 21, 2014, on the ground that the carbon cycle is sufficiently complex that EPA is not yet in a position to judge what the actual carbon impact of different biogenic sources might be. … More

Massachusetts Releases Its Revised Solid Waste Master Plan: Are We Really on a Pathway to Zero Waste?

On Tuesday, MassDEP announced release of its updated Solid Waste Master Plan, subtitled “Pathway to Zero Waste.”  The Plan’s most significant discussion relates to the state of the solid waste market and the Plan’s goal for disposal reduction.  The Plan announces a goal of reducing solid waste disposal by 30% from 2008 to 2020, from 6,550,000 tons to 4,550,000 tons.  However, the Plan acknowledges that,… More

Coming to a Steam Electric Generating Plant Near You in May 2014 — New Effluent Limitation Guidelines

Last Friday, EPA announced release of its draft proposal to revise the effluent guidelines and standards for the steam electric power generating industry, last revised in 1982.  The proposal was in conformance with a litigation settlement with environmental groups, which also calls for a final rule by May 22, 2014.

The proposed rule actually sets out four different regulatory options, and they are sufficiently complicated that EPA’s Fact Sheet on the proposal does not even attempt to summarize them. … More

Stop the Presses: Utility Poles in Place Are Not Point Sources; Neither Are They Solid Waste

As we noted last month, the Supreme Court has determined that logging roads are not point sources subject to stormwater regulation under the Clean Water Act.  On Wednesday, in Ecological Rights Foundation v. Pacific Gas and Electric, the 9th Circuit Court of Appeals, relying in part on the decision in Decker v. Northwest Environmental Defense Center, held that releases of pentachlorophenol and other pesticides from in-place utility poles also do not constitute point source discharges. … More

MassDEP Begins to Roll Out Its Regulatory Reforms: Good News on the Solid Waste Front

As I’ve previously discussed, MassDEP has been embarked on an effort – prompted by shrinking budgetary resources – to promulgate a package of regulatory reforms.  While the package was announced in March 2012 and updated last October, we only saw the first set of actual proposed regulations last week, when MassDEP announced changes to both its asbestos regulations and its solid waste regulations. … More

MassDEP Issues a New Solid Waste Master Plan: A Difficult Road to Achieve Some Ambitious Goals

Late last week, MassDEP announced release of the 2010-2020 Solid Waste Master Plan, subtitled “Pathway to Zero Waste.”  James Collins might describe that as a Big Hairy Audacious GoalI have nothing against Big Hairy Audacious Goals, but sometimes they are implemented through Big Hairy Audacious Regulations.  Time will tell if that’s the case here.

The Master Plan goals are to reduce solid waste by 30% by 2020 and 80% by 2050 – not quite zero waste,… More

MassDEP Issues Final Rules for Anaerobic Digestion Facilities: Let’s Hope They Work

This week, MassDEP announced that it had finalized regulatory revisions intended to encourage anaerobic digestion projects in the Commonwealth. The regulations are the culmination of a long stakeholder process . Since our firm knows from personal experience MassDEP’s ability to tie itself in knots on this issue, there is little doubt that this package was necessary as a practical matter.

Highlights of the regulations include:

  • An exemption from the site assignment process for anaerobic (and aerobic) digestion operations
  • A general permit for digestion operations receiving no more than 100 tons per day (30 day rolling average) – That’s up from a 60 tpd limit in the original proposal
  • Site-specific permits for facilities receiving more than 100 tpd
  • Revisions to wastewater regulations allowing digesters at publicly owned treatment works to receive organic waste from off-site.…
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FTC’s New Guidance Has Teeth to Go After Greenwashing

Companies who want to market their products as being good for the environment will need to back up their claims more carefully, in light of the Federal Trade Commission’s new environmental marketing guidelines, released this week. The “Guides for the Use of Environmental Marketing Claims,” or Green Guides, updated for the first time since 1998, discourage companies from using broad claims like “green,” “eco-friendly”, or “environmentally preferable”… More

Ban the Bottle or Preserve Our Liberty? Concord Bans the Sale of Certain Plastic Water Bottles

This may not be the most earth-shattering stories reported in this space, but it is a Massachusetts story, and the rhetoric surrounding the issue is sufficiently noteworthy that I thought I would, er, note it. Concord, Massachusetts, has apparently become the first community in the nation to ban the sale of certain plastic water bottles.

According to the Boston Globe, the ban was championed by Concord resident Jean Hill,… More

Wondering About the Status of EPA’s CCR Rule? So Are 11 Environmental Groups

I have had a number of clients ask me recently about the status of EPA’s efforts to regulate coal combustion residuals under RCRA. It turns out that some environmental groups have been asking themselves the same question. Being environmental groups, however, they did more than ask about it. They sued.

As most readers know, EPA published two separate proposals for regulating coal ash – one under Subtitle C and one under Subtitle D – on June 21,… More

EPA Compromises (Again) on the Boiler Rule: Will It Get Any Credit?

On Friday, EPA proposed certain revisions to its rule on air emissions from boilers and commercial and industrial solid waste incinerators (CISWI). As with other major rules under development in the past few years, EPA has taken fairly substantial steps to limit the reach of the rule to those boilers and CISWI that are of greatest concern. Without engaging in formal cost-effectiveness analysis, EPA has sought to make the rule as cost-effective as possible.… More

GHG Protocol Finalizes Scope 3 and Product Life Cycle Methodology

The most popular suite of tools to measure and manage greenhouse gases just got a lot more complete — allowing companies to track the impact of their products from natural resources and raw materials, through manufacturing, use and disposal, and providing a detailed framework to measure companies’ “everything else” Scope 3 emissions.   

The Greenhouse Gas Protocol Initiative (a collaboration between the World Resources Institute and the World Business Council for Sustainable Development) finalized its two newest global greenhouse gas standards on October 4. The GHG Protocol are the most widely used suite of accounting tools for measuring,… More

The Regulatory Process Works: EPA Promulgates Revised Boiler Rules

As almost everyone knows by now, EPA finally issued its long-awaited final rule on Boilers, Commercial and Industrial Solid Waste Incinerators (CISWI), and Sewage Sludge Incinerators (SSI) yesterday. The rule is too complicated even to summarize here. EPA has a useful fact sheet for that purpose.

I’d like to focus on a few broader issues. The rule has widely been seen as the Obama administration’s first formal acknowledgment of the anti-regulation political climate currently sweeping Washington. Indeed,… More

Product Stewardship or Just Cost-Shifting?

Product stewardship is definitely in vogue. The Daily Environment Report has just noted that the United State Conference of Mayors has adopted a resolution calling for “Extended Producer Responsibility For Products.” I understand the arguments in favor of product stewardship. From an economic point of view, the disposal costs associated with products and product packaging can be seen as an externality. Internalizing those costs would give manufacturers and distributors incentives to minimize those costs,… More

Just What We Need: More Community Engagement in Superfund Sites

Last week, EPA’s Office of Solid Waste and Emergency Response announced release of its Community Engagement Implementation Plan. Who could be against community engagement? It’s as American as apple pie. It’s environmental justice. It’s community input into decisions that affect the community. It’s transparency and open decision-making.

Call me a curmudgeon, but I’m against it. Study after study shows that, in terms of the actual risks posed by Superfund sites, we devote too many of our environmental protection dollars to Superfund sites,… More

To Be Hazardous or Not to Be Hazardous: EPA Floats Two Options for Regulating Coal Combustion Residuals

Environmentalists have been pushing for years to overturn the Bevill Amendment and get coal combustion residuals (CCR) regulated as a hazardous waste. The failure of an impoundment at the TVA facility in Kingston, Tennessee, in 2008 almost guaranteed that EPA would do something to regulate CCR. Like Hamlet, however, EPA seems to be having trouble making up its mind. Earlier this week, EPA announced two different potential regulatory approaches,… More

Still Hope For New Municipal Waste Combustors in Massachusetts?

Yesterday’s New York Times had a very interesting article regarding the use of advanced municipal waste combustor technology in Europe. As the article notes, such plants are relatively commonplace in Europe, whereas literally no new waste-to-energy plants are being built in the United States. Ian Bowles, our own Secretary of Energy and Environmental Affairs – and someone who has generally been a very successful promoter of renewable energy technology –… More

Dog Bites Man, Monday Edition: Massachusetts Retains Its Municipal Waste Combustor Moratorium

As most of my Massachusetts readers know, on Friday, Secretary of Energy and Environmental Affairs Ian Bowles and DEP Commissioner Laurie Burt announced that Massachusetts would retain its moratorium on new construction or expansion of municipal waste combustors. Although the overall outcome is not really a surprise from this administration, a few points are worth noting.

The announcement says nothing about new technologies, such as plasma arc gasification. Arguably,… More

More News From the Coal Front: Mountaintop Mining Takes One Hit — and May Face Another

This week, the practice of mountaintop removal – chopping the tops off mountains in order extract the coal – received two blows: one from EPA and one from Congress. First, EPA offices Region 3 and Region 4 announced that they plans to assess the Central Appalachia Mining’s Big Branch project in Pike County, Ky., and the Highland Mining Company’s Reylas mine in Logan County, W.Va., before permits are issued for those projects.… More

Regulation of Coal Ash: The Ball’s In EPA’s Court For Now

Although it appeared initially as though Congress might be the first to move towards greater regulation of coal ash following the TVA spill, EPA has seized the initiative. Yesterday, Administrator Jackson announced a two-pronged initiative. First, EPA has issued information requests to facilities maintaining coal ash impoundments in order to gather information necessary to support new regulations. Second, she confirmed that EPA will indeed then promulgate regulations designed to prevent future spills.… More

Regulatory Fallout from the TVA Coal Ash Release

The magnitude of the recent release of coal ash from the TVA dam is hard to fathom, though the pictures certainly give some sense of its magnitude. Now, as regulators and Congress attempt to get their collective arms around the import of the release, some of the regulatory implications of the release are starting to emerge. According to a report in yesterday’s Greenwire, Congressional hearings this week may include a discussion regarding whether coal ash should continue to be exempt from regulation as a hazardous waste under RCRA

The exemption of coal ash is critical to coal-fired power plants. … More

Say It Loud, Say It Clear; The Inside of a Building Is NOT the Environment

In a recent decision, the 7th Circuit Court of Appeals confirmed that neither CERCLA nor RCRA provide convenient ways for the buyer of a building containing asbestos to finance the abatement of that asbestos. In Sycamore Industrial Park Associates v. Ericsson, the seller of the building replaced the old heating equipment shortly prior to sale, but left the old system, including piping, in place. The buyer sought to make the seller pay for the asbestos abatement on the ground that the seller has disposed of the old equipment by abandoning it in place when it installed the new system.… More