January 2021 – HazMat Management

PFAS – EPA Interim Guidance on How to Say Goodbye to Your “Forever Chemicals”

January 21, 2021/in Column, News, Regulation /by hazzmatt1

Written by Janessa Glenn, Dawn Lamparello, Steve Morton, and Cliff Rothenstein, K&L Gates LLP

In response to Congressional direction in the National Defense Authorization Act for Fiscal Year 2020, Public Law No: 116-92, on 18 December 2020, the Environmental Protection Agency (EPA) issued “Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances” (Interim Guidance) as part of its continuing efforts to regulate the large body of perfluoroalkyl and polyfluoroalkyl substances, collectively referred to as “PFAS.” See, Interim Guidance.

EPA issued the Interim Guidance, not as a rulemaking or policy statement, but to provide current scientific information on disposing of or destroying PFAS and PFAS-containing materials. PFAS are often referred to as the “forever chemicals” because they do not break down easily or quickly in the environment. Thus, they present a unique challenge for disposal/destruction. The Interim Guidance outlines three methods that may be effective and are currently available for disposal or destruction—landfill disposal, underground injection disposal, and thermal treatment for destruction (incineration)—and discusses the data gaps and challenges for each, along with noting the need for further research into these methods for future guidance. EPA intends for this information to inform the decision making process of those managing the destruction/disposal of this material.

PFAs are used in fighting fires

The Interim Guidance identifies six waste streams that commonly contain PFAS:

Aqueous film-forming foam (used in fire suppression);
Soil (directly through land application or spills, or indirectly through particles released from stack emissions, for example) and biosolids (the Interim Guidance refers to the definition in 40 C.F.R. Part 503 for “sewage sludge,” also called “biosolids”);
Textiles, other than consumer goods, treated with PFAS;
Spent filters, membranes, resins, granular carbon, and other waste from water treatment;
Landfill leachate containing PFAS; and
Solid, liquid, or gas waste streams containing PFAS from facilities manufacturing or using PFAS.

Congress specifically identified these six areas in the National Defense Authorization Act for Fiscal Year 2020 as the waste EPA was required to address through issuance of the Interim Guidance. As a result, while EPA recognizes the information could be useful to other PFAS and PFAS-containing materials, the Interim Guidance only covers these six materials.

The Interim Guidance addresses the three disposal and destruction techniques currently used by industry discussed above: landfill disposal, underground injection disposal (liquid phase only), and thermal treatment for destruction (incineration). None is favored or rejected by EPA. However, as EPA clearly recognizes, the science behind potential migration of PFAS and PFAS-containing chemicals into the environment during any of these three disposal/destruction methods is still in its infancy. Accordingly, the Interim Guidance recognizes that in some cases it may be best to store PFAS and PFAS-containing materials for a period of two to five years while scientific advances in this area are made.

EPA’s inclusion of destruction in commercial incinerators, cement kilns, and lightweight aggregate kilns in the Interim Guidance was not surprising. EPA acknowledged data gaps related to temperatures, residence times, and emission characterization data. EPA had planned an experimental burning in a New Jersey incinerator to learn more about how PFAS reacts to incineration; however, that test was canceled due to vocal objections by environmental groups concerned about potential resulting air pollution. The New Jersey Department of Environmental Protection said protestors misunderstood the testing, thinking PFAS-containing firefighting foam shipped from New York would be burned, when in truth the experiment involved burning CF4, a chemical with similar bonding properties to PFAS chemicals, but that is considered a safe, nontoxic surrogate compound to PFAS.

EPA has pledged to move forward over the next three years with its efforts to further study thermal destruction of PFAS, but individual states are acting in the meantime. New York adopted a state law banning incineration of PFAS-containing aqueous film-forming foam. The PFAS Waste Incineration Ban Act of 2019 (H.R. 2591) was introduced during the 116th Congress but was not adopted into law. The bill would have not only banned the incineration of PFAS-containing firefighting foam, but would also have required EPA to identify and then ban incineration of other wastes containing PFAS. It is unclear whether such legislative actions will be a priority going forward.

The Interim Guidance is just one part of EPA’s larger PFAS Action Plan. The Biden administration is expected to aggressively continue EPA’s current work on the items listed in that Action Plan, including setting maximum contaminant levels for PFAS in drinking water and designating certain PFAS as CERCLA hazardous substances. Congress is also expected to push for PFAS legislation such as the PFAS Action Act, which among other things would designate PFAS as a CERCLA hazardous substance and mandate the promulgation of a national primary drinking water standard.

Public comment on the Interim Guidance is invited and closes on 22 February 2021. Comments must include Docket ID No. EPA-HQ-OLEM-2020-0527 and can be submitted at: Public Comment (preferred method) or by mail or hand delivery.

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About the Authors

Janessa Glenn is counsel at the K&L Gates LLP‘s Austin office where she concentrates her practice on a variety of administrative law issues, environmental regulatory issues, and environmental litigation. Janessa practices both before state agencies, including contested case proceedings, and in state court related judicial review of agency decisions.

Dawn Lamparello concentrates her practice in environmental law, including related regulatory compliance and litigation concerning various federal and state environmental statutes. Dawn counsels clients in connection with CERCLA site studies and remedies, as well as RCRA waste management issues, across the United States.

Steve Morton is a partner in the firm’s Austin office. He has 34 years of experience obtaining necessary environmental permits, defending government or third-party claims before administrative agencies and courts, and assisting clients on regulatory and statutory developments before administrative agencies and the Texas Legislature.

Cliff Rothenstein is a government affairs advisor in the firm’s public policy and law practice in Washington, D.C. He brings more than 30 years of expertise developing and executing federal environmental and transportation legislation, policies, and regulations.

Ammonia-Nitrogen Spill results in $500,000 fine for Quebec Intermunicipal Board

January 18, 2021/in Environment, News, Spills, Waste Management /by hazzmatt1

The Régie intermunicipale du centre de valorisation des matières résiduelles du Haut-Saint-François et de Sherbrooke, also known as Valoris, recently pleaded guilty in the Sherbrooke, Quebec courthouse to one count of contravening subsection 36(3) of the Fisheries Act, which prohibits the discharge of a deleterious substance into waters frequented by fish.

The guilty plea was the result of investigation by officers of Environment and Climate Change Canada. Between March 13, 2014, and October 12, 2016, Valoris released effluent containing ammonia nitrogen, which is lethal to rainbow trout, from its leachate-treatment system at its sanitary landfill site and from its composting platform, into the Bégin stream, a tributary to the Saint-François River.

Valoris was fined $500,000, which will be directed to the Government of Canada’s Environmental Damages Fund. In addition to the fine, the court ordered Valoris to take action to ensure its water-treatment system is closely monitored.

Environment and Climate Change Canada administers the Environmental Damages Fund, which is a Government of Canada program that was created in 1995. The Fund follows the polluter pays principle and ensures that court-awarded penalties are used for projects that will benefit the environment.

University of Saskatchewan Researcher awarded $2.5 million to optimize contaminated site remediation approaches

January 18, 2021/in Environment, News, Remediation /by John Nicholson

Over the last five years, University of Saskatchewan soil scientist and Industrial Research Chair (IRC) Steve Siciliano and his team have developed techniques that can reduce hydrocarbons in the soil by more than 90 per cent.

Now, the Natural Sciences and Engineering Research Council (NSERC) and Federated Co-operatives Limited (FCL) are each providing $1.25 million to renew the five-year term to build on this success and further optimize soil remediation approaches.

“The overall goal of this innovative research program is to improve how we clean up and manage these impacted sites in a safe and sustainable manner,” said Dr. Siciliano.

USask soil scientist and Industrial Research Chair (IRC) Steve Siciliano. (Photo: University of Saskatchewan)

“Over the next five years, we will further develop and validate our approach of using naturally occurring biological stimulants and nutrients to further increase hydrocarbon degradation, particularly at sites where traditional approaches have proven ineffective, and reduce hydrocarbons in soil to minimal levels.”

Canada has more than 30,000 sites contaminated with hydrocarbons or other pollutants. These sites pose significant social and economic costs to cities, towns, and villages.

NSERC and FCL invested a combined $2 million during the IRC’s five-year first term (2015-2020). Researchers introduced environmentally friendly solutions to impacted soils to stimulate microbial populations that naturally break down petroleum molecules.

The traditional method of cleanup involves excavating impacted soils and relocating them to a landfill or treatment site. Reducing contamination on site is safer, cheaper and more sustainable as the environment is not disturbed and existing business can continue without disruption.

“The research has proven to be successful and FCL has already applied the findings outside of the initial six locations,” said FCL’s Vice-President of Strategy Pam Skotnitsky. “Our investment demonstrates our responsibility and commitment to the overall health and well-being of our communities. We continue to work together with our academic and industry partners to find innovative solutions that are openly shared and have long-term, widespread benefits.”

IRCs are funded jointly by NSERC and industry and must be in an area of high priority for both the university and the industrial partner. The funding supports salaries for students and other research personnel, equipment and materials.

“NSERC is proud to support research endeavours aimed at creating a better future for all Canadians,” said NSERC Vice-President (Research Partnerships) Marc Fortin. “This renewed collaboration will support the development of new techniques to remove hydrocarbon pollution from the soil of contaminated sites, resulting in cleaner soils across our country. This research will allow Dr. Siciliano and his team to continue to be leaders in the field of soil remediation, and create positive impacts on our environment.”

In addition to its share of the matched funding, FCL will provide $1.9 million of in–kind support. USask in-kind contributions include $1 million. More than 50 USask undergraduate and graduate students will contribute to the research.

SOURCE: University of Saskcatchewan

Midas Gold Reaches Agreement to Begin Environmental Restoration at Abandoned Mine Site in Idaho

January 18, 2021/in Industry, Industry chat, News /by hazzmatt1

Midas Gold Corp., presently headquartered in British Columbia, recently announced, following three years of extensive discussions, that U.S. federal agencies have authorized and directed the Company to perform agree-upon clean up actions to address contaminated legacy conditions within Idaho’s abandoned Stibnite mining district that are negatively impacting water quality.

While Midas Gold did not cause the legacy environmental problems at Stibnite, the recently signed agreement points to the need for timely environmental action. The Agreement between the company the the U.S. government allows the Company to voluntarily address environmental conditions at the abandoned mine site without inheriting the liability of the conditions left behind by past operators.

Should the Stibnite Gold Project move forward with proposed mining and restoration activities, the Agreement will also allow for comprehensive site cleanup by directing the Company to address legacy features including millions of tons of legacy mine tailings that fall outside of the Project footprint and would otherwise not be addressed.

With the Agreement in place, Midas Gold is now moving forward with plans to relocate its corporate headquarters from British Columbia, Canada to Boise, Idaho and intends to redomicile the Company to the United States.

Agreement Reached to Address Legacy Water Quality

Through an Administrative Settlement Agreement and Order on Consent (“ASAOC” or the “Agreement”) signed on January 15, 2021 by the Environmental Protection Agency (“EPA”) and U.S. Forest Service, with concurrence by the U.S. Department of Justice, Midas Gold has been instructed to clean up certain contaminated conditions within the Stibnite mining district in Idaho. The sources of contamination to be addressed by the Agreement are decades old and largely stem from tungsten and antimony mining during World War II and the Korean War, long before Midas Gold started planning for redevelopment of the site.

The cleanup Agreement was entered into under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and is the result of almost three years of discussion with the Environmental Protection Agency (EPA). The U.S. EPA also lead discussions with U.S. Department of Justice, U.S. Forest Service, State of Idaho, and two Idaho tribes. Before finalizing the agreement, the EPA also conducted government-to-government consultation with the Shoshone-Bannock Tribes and Nez Perce Tribe.

“For decades, ground and surface water at Stibnite have suffered from elevated levels of arsenic and antimony,” said Laurel Sayer, CEO of Midas Gold Corp. and Midas Gold Idaho. “Yet, because the problems stem from historic mining activity, there are no responsible parties left to address the issues at hand. While we did not cause the problems impacting water quality today, we have always been clear on our intentions to be a part of the solution. We know redevelopment of the Stibnite Mining District for mining activity must include restoration of legacy features. So, when we saw the need to address sources of water contamination more quickly at Stibnite, we knew we had to offer our help.”

Stibnite provided the U.S. with key minerals to support the war effort during World War II and the Korean War. This picture shows a miner working at site in 1943.

Importantly, the Agreement does not change the permitting process or anticipated permitting schedule for the Stibnite Gold Project through the National Environmental Policy Act (“NEPA”), nor does it alter any potential CERCLA liability or CERLCA defenses for Midas Gold or federal entities should the Stibnite Gold Project be fully permitted and move into operations. The Agreement only allows for specified EPA directed cleanup actions to occur.

“Today’s agreement develops a clear pathway for comprehensive cleanup activity at a long abandoned mine site and marks an important opportunity for meaningful water quality improvement at Stibnite,” said John C. Cruden, outside counsel for Midas Gold and former Assistant Attorney General for the Environment and Natural Resources Division in the Department of Justice in President Obama’s Administration.

The Agreement comes with a determination by federal regulators that due to historical activity, site conditions presently constitute an “actual or threatened release of hazardous substances” and that time critical removal actions are necessary to protect human health and welfare and the environment. In order to provide investment and cleanup the legacy environmental hazards and waste left behind at Stibnite, Midas Gold reached an agreement with federal agencies under CERCLA to define the cleanup work the Company will conduct and to clarify how to protect the Company from inheriting the environmental liability of past actors who abandoned the site. This situation is not unique to Midas Gold but one that has stalled cleanup work at abandoned mine sites across the country. This Agreement may well provide an example for cleaning up abandoned mining sites elsewhere in the nation.

“Water quality in the Stibnite Mining District has been a known problem for decades. As the closest community to the site, I can tell you that cleanup is long overdue,” said Willie Sullivan, Yellow Pine Resident and board member of the Yellow Pine Water Users Association. “This agreement between the EPA and Midas Gold is the first meaningful step toward real improvements in water quality conditions for the East Fork South Fork Salmon River and downstream communities like Yellow Pine. We have seen Midas Gold’s commitment to doing business the right way and their willingness to help with clean up now tells me they are the right partner for this effort.”

Clean-up Phases

The ASAOC consists of three primary phases. The first phase of the Agreement is designed to significantly improve water quality over the next four years. It includes several CERCLA “time critical removal actions” consisting of water diversion projects designed to move water so it may avoid contaminated areas of the site, and removal of over at least 325,000 tons of historical mine waste from problematic locations that are currently affecting water quality. In addition, Midas Gold has agreed to conduct a full biological assessment, Clean Water Act evaluation, and a cultural resource survey. To ensure all that important work will be done, Midas Gold is providing US$7.5 million in financial assurance for Phase 1 projects.

Phases 2 and 3 of the ASAOC would move forward if the Stibnite Gold Project receives permission to proceed with mining under the National Environmental Policy Act (“NEPA”) and would provide the opportunity for comprehensive and site-wide cleanup of legacy features and waste by including permission to address legacy areas that are not included in the restoration activities proposed by the Stibnite Gold Project.

To read more on this Agreement additional information may be found here: www.MidasGoldIdaho.com/news/asaoc/

SOURCE: Midas Gold

Is Hazardous Waste Management Part of the Circular Economy?

January 18, 2021/in Column, Environment, Feature /by hazzmatt1

Written by Supreet Kaur, ALTECH Environmental Consulting Ltd. and John Nicholson, Editor, Hazmat Management Magazine

There is a growing movement from every sector of the economy that recognizes that there needs to be a focus on a sustainable future by minimizing waste and maintaining natural resources. With the increase in industrialization, the main problem in the management of hazardous waste is that it poses a harmful impact on environment and human health.

The term “circular economy” is a new buzzword and has been identified as part of society’s move toward a sustainable future with the inclusion of the 3Rs and extended producer responsibility. Can you apply circular economy practices to the management of hazardous waste?

Hazardous waste is the potentially dangerous by-product of a wide range of activities, including manufacturing, farming, water treatment systems, construction, automotive garages, laboratories, hospitals, and other industries. The waste contains chemicals, heavy metals, radiation, pathogens, or other materials. These wide range of toxic chemicals affecting environment and human health and involving several routes of exposure, depending on types of waste. Some toxins, such as mercury and lead persist in the environment for many years and accumulate over time.

Hazardous waste disposal is a challenge for many businesses and industries. Almost every size of industry, and some commercial enterprises, generate hazardous waste. The need for efficient hazardous waste management and disposal is important in order to minimize the risks to lives and the environment.

It has been demonstrated that it is possible to recycle some specific hazardous waste streams. In fact, recycling is best way to manage hazardous waste to minimize the amount of hazardous waste.

The circular economy is aimed at continual use of resources and eliminating waste. Many industries are focusing on the circular economy to reduce their carbon footprints, reusing their products, and cost-effective methods of waste management.

At the point when waste is reused, everybody benefits in view of lower energy use, diminished ozone depleting substance, characteristic asset preservation, lower removal costs and, frequently, more effective creation by utilizing reused materials.

An example of an important industrial chemicals that eventually becomes a hazardous waste are natural and inorganic solvents. Solvents are incorporated in paints and cements, cleaners and degreasers, drugs and many other products. Solvents are also used in a wide assortment of businesses including hardware, car, drug and paint manufacturers. Many companies are require the safe management of their spent solvents.

Chemical Recycling in Canada

Fielding Environmental, headquartered in Mississauga, Ontario, is an example of a chemical recycler in Canada. It has been serving industry clients for over 55 years, specializing in the recovery of solvents, glycols and refrigerants from automotive, coating and paint, printing and pharmaceutical industries. It is the most accredited solvent recycler in Canada. Moreover, it is largest Canadian recycler company in recycling waste ethylene and waste propylene glycol.

Fielding has technologies which not only collect waste from several industries but also extract the best from these resources. They recover all the positive qualities in it and transform waste into new products. Fielding is able recycle waste solvents to a purity that allows the same organization to reuse it without limitations. If a customer prefers not to take back a recycled solvent, Fielding uses it as a feedstock in the synthesis of new products that is sold nationally as well as internationally.

The company not only focuses on waste management but mainly works on waste optimization. Waste optimization is to change the waste into new product or use it as fuel. “If we want to build circular economy, we have to change the waste paradigm”, Ellen McGregor, CEO of Fielding environmental.

If any solvent is unsuitable for recovery, Fielding utilizes it as a fuel. In this way, all incoming waste is either recycled or has its energy value recovered (sometimes referred to as the 4th R – reduce, reuse, recycle, and recover [energy]). Fielding believes this is the best approach to managing incoming hazardous waste.

“We need to redefine the 3R (reduce, recycle, reuse) waste management hierarchy. A hierarchy put disposal and incineration in the same pyramid. We need to break these things apart. We need to include energy recovery us the pyramid.” Ms. McGregor added.

Ms. McGregor stated that all levels of government have a role to play in encouraging the 3Rs with respect to hazardous waste and in respecting the important role of hazardous waste companies in communities. “Government has to play role in whole notion of procurement. There must be X-percentage of recycling components in products manufactured. Also, government has to ensure that companies in circular economy are welcomed in community. Recyclers need to be in urban areas so they have access to quality roads and other facilities,” She added.

“Fielding is all about the waste optimization we are trying that our material does not find their way to our soil, air and water,” Ms. McGregor said. “98% of our business serves the circular economy.”

Emergency Preparedness and Prevention under the U.S. Hazardous Waste Generator Improvements Rule

January 14, 2021/in Column, Environment, HazMat, Industry chat, News /by hazzmatt1

Written by Ryan W. Trail, Williams Mullen

Generators of hazardous waste have long understood the importance of emergency preparedness and prevention to regulatory compliance and facility safety. Contingency planning and coordination with emergency service providers have been requirements of United States Resource Conservation and Recovery Act (RCRA) regulations for many years. For states that have adopted the Hazardous Waste Generator Improvements Rule (HWGIR), however, new and more stringent requirements for emergency preparedness and prevention now apply. These states include Virginia, North Carolina and South Carolina, as well as 28 other states. All authorized states are required to adopt most aspects of the HWGIR, including those aspects discussed below, but many have not yet done so.

Under the old regulations, generators of hazardous waste (both small and large quantity) had to make arrangements with local emergency response entities, which may be called upon in the event of a release, fire, or explosion involving hazardous waste at the facility. Facilities were required to make the emergency responders familiar with the layout of the site, the risks associated with the type(s) of hazardous waste onsite, the locations where employees would likely be throughout the site, and possible evacuation routes. While not specified in the regulations, many facilities accomplished this by inviting local emergency response personnel to tour the facility.

Under the HWGIR, generators must still make arrangements with emergency response personnel. However, the associated recordkeeping requirements have changed. Previously, there was no affirmative duty to document the arrangements. Generators who were unable to make the necessary arrangements were required to document this shortcoming, but otherwise no recordkeeping obligation existed. The HWGIR added a requirement that the generator must keep documentation of the fact that it made arrangements with local emergency responders. The arrangements must be noted in the facility’s operating record.

Hazardous waste contingency plans are another essential element of emergency preparedness and prevention under both the prior regulations and the HWGIR. A contingency plan ensures facility and emergency response personnel have complete and accurate information to respond safely and efficiently to an emergency involving hazardous waste.

The HWGIR created new obligations for facilities with hazardous waste continency plans. One significant update is the requirement to produce a Quick Reference Guide as part of the contingency plan. The Quick Reference Guide is intended to summarize the broader contingency plan and must include eight elements essential for local responders when an emergency occurs:

Types/names of hazardous wastes and the hazard associated with each;
Estimated maximum amount of each hazardous waste that may be present;
Identification of hazardous wastes where exposure would require unique or special medical treatment;
Map of the facility showing where hazardous wastes are generated, accumulated and treated and routes for accessing these wastes;
Street map of the facility in relation to surrounding businesses, schools and residential areas for evacuation purposes;
Locations of water supply (e.g., fire hydrant and its flow rate);
Identification of on-site notification systems (e.g., fire alarm, smoke alarms); and
Name of the emergency coordinator(s) and 7/24-hour emergency telephone number(s) or, in the case of a facility where an emergency coordinator is on duty continuously, the emergency telephone number for the emergency coordinator.

A facility that became a large quantity generator after the date the HWGIR became effective in its state must submit a Quick Reference Guide of its contingency plan to local emergency responders at the time it becomes a large quantity generator. However, for large quantity generators in existence on the effective date of the HWGIR in their state, the Quick Reference Guide need only be submitted when the contingency plan is next amended. A facility is required to amend its contingency plan if any of the following occur:

Applicable regulations are revised;
The plan fails in an emergency;
The facility changes—in its design, construction, operation, maintenance, or other circumstances—in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;
The list of emergency coordinators changes; or
The list of emergency equipment changes.

Violations for inaccurate, incomplete or deficient hazardous waste contingency plans are common among RCRA enforcement actions. With the HWGIR now in effect in many states, facilities may soon be amending their contingency plans. New requirements for documenting arrangements with emergency responders and creating and maintaining a Quick Reference Guide could easily be overlooked. It is important for hazardous waste generators to review emergency preparedness and prevention requirements of the HWGIR carefully to ensure continued compliance.

Hazardous Waste Generator Improvements Rule, 81 Fed. Reg. 85732 (Nov. 28, 2016)

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About the Author

Ryan Trail represents companies facing complex environmental regulatory issues in the industrial, manufacturing, real estate and banking industries. He helps companies maintain compliance with constantly evolving environmental laws and regulations, and he counsels landowners, potential purchasers and lenders on environmental liabilities related to contaminated real estate. Ryan also helps clients obtain and comply with numerous environmental permits, including industrial wastewater discharge permits, stormwater permits and air permits.

Here’s the Deal: New Directions in Environmental Enforcement Under Biden?

January 14, 2021/in Column, Environment /by hazzmatt1

Written by Gerald F. George, Davis Wright Tremaine LLP

On December 23, 2020, the federal government published its inflation-adjusted civil penalties for a variety of environmental statutes, including the Clean Air Act (CAA) and the Clean Water Act (CWA). Those $25,000 per day or per violation penalties in the original statutes have now reached substantially higher levels, mostly in the $50,000-$60,000 range, but CAA penalties could reach $100,000.

That is a predictable change. What is less predictable is how enforcement will play out in the coming year with a new administration. Will the annual inflation adjustment to civil penalties be accompanied by greater enforcement?

The Trump Administration ended the year the same way it started its term in 2017, by attempting to roll back the environmental regulations and policies applied previously. The near-term result for enforcement is unclear, in part, because virtually every change made by the Trump Administration has been challenged in court, with a uniquely low success rate for the federal government.

With many of those challenges still pending, one wonders how the Biden Administration will approach these cases. The more important question for the regulated community is the approach the Biden Administration will take toward enforcement in general. Even with the Trump changes, the incoming administration retains a lot of regulatory authority.

Two reactions seem obvious. One is resurrection of an unspoken principle for challenging regulation: be careful. You may win this case, but you will still have to deal with the regulator when the case is over. Taking a hard-nosed approach can backfire if it means the regulators will be hanging on you like a cheap suit for the next four years, or you need agency approval for an essential expansion.

More optimistically, we are almost certain to see a resurrection of Supplemental Environmental Projects (SEPs), environmentally beneficial projects implemented by a violator in connection with a settlement. SEPs have been used in EPA settlements since 1984 to create semi-win-win resolutions for alleged environmental violations.

A violator might pay a penalty, but would offset some, if not most, of that by funding an environmentally friendly project. The community and the environment would benefit from the project; the company might even pay more out of pocket, but will see its money used for something positive, not just dumped into the U.S. Treasury general fund.

While questions about the propriety of SEPs have been raised over the years, the issue had always been resolved in favor of authorizing settlement projects directly related to the violations—part of the remedy, not unappropriated “free money” for boat ramps at the local reservoir. The Trump Administration took a harder line, resulting in the EPA and Department of Justice (DOJ)’s ending the use of SEPs in settlements.

The issue of SEPs then arose in the courts in two contexts. In Michigan, the federal government settled a long-running CAA case with the violator for a civil penalty. The private plaintiff in the case settled separately with the defendant, committing to further steps to improve air quality and to implementation of an SEP. The federal government objected to the settlement, but lost last year in the district court in U.S. v. DTE Energy Co.

In an unrelated case arising in Massachusetts, an environmental group challenged the implementation of the DOJ policy. In Conservation Law Foundation v. William Barr, the federal government argued not that SEPs were barred, but whether or not the government’s acceptance of an SEP in a settlement was within its discretion.

Whether one agrees with the policy, the prosecutorial discretion position makes sense. It also means that a decision favorable to the federal government would not bar it from reverting to its prior policy authorizing SEPs.

SEPs are extremely useful in structuring settlements. A minor loss of income to the U.S. Treasury is more than offset by the environmental benefits to the public, and the parties focus their discussions on addressing environmental problems, not on trying to save a few dollars in penalties.

Further, SEPs are particularly attractive in suits involving public agencies, where cash-strapped facilities can at least put their limited funds to work on real environmental problems important to their constituencies. It is galling to see a municipality paying money into the U.S. Treasury for failure to implement treatment improvements it cannot afford, making the cost of future compliance even more unaffordable.

In any event, fights over the size of penalties are a crapshoot for everyone and may well end up costing more than they save. E.g., Citgo’s effort to defeat a major penalty demand in connection with a spill from its refinery in Louisiana ($8 million penalty at District Court reversed by a Court of Appeals, $81 million penalty imposed on remand).

The next four years of environmental enforcement litigation will be interesting to watch. But aside from the litigation over old and new regulations, I predict enforcement will look more like what existed pre Trump, if not more aggressive.

It would behoove the regulated community to be ready to return to use of the traditional tools for defense of claims involving strict liability statutes. Watch the bottom line of your business, and avoid a hostile relationship with your (we hope) friendly, but ever present regulator.

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About the Author

Gerald George is a seasoned environmental attorney and litigator, with extensive experience in successfully resolving federal and state enforcement actions, natural resource damage actions, and citizen suits. Gerald also advises on regulatory matters involving air, water, waste, and environmental impact review laws. He has more than 40 years’ experience in civil lawsuits, including 30 years of handling major environmental litigation throughout the country.

$20 Million U.S. TSCA/Lead-Based Paint Penalty: Expensive Reminder to Manage and Audit Contractors’ Joint Regulatory Liabilities

January 5, 2021/in Column, HazMat, Health & Safety, News /by hazzmatt1

Written by Patrick Larkin and Maram T. Salaheldin Clark Hill PLC

Renovation of homes built before 1978 frequently disturbs lead-based paint (LBP) and poses significant health risks, particularly for children. For this reason, companies that perform or subcontract renovation services are required to provide very specific, written LBP warnings and education materials to residents. Failure to comply with these obligations can result in significant penalties for non-compliance. The U.S. Environmental Protection Agency (EPA) enforces these rules on all companies that “perform renovations for compensation.” This means that retail sellers of renovation products (e.g., windows or woodwork) can face EPA enforcement for noncompliance even where they subcontract installation to third parties.

On Dec. 17, 2020, U.S. EPA and the Department of Justice (DOJ) announced a nationwide settlement with Home Depot related to home renovations that occurred between 2013 and 2019. The settlement resolves alleged violations of the EPA’s Lead Renovation, Repair, and Painting (RRP) Rule involving renovations performed by Home Depot’s contractors across the country on homes built before 1978. EPA identified hundreds of instances in which Home Depot failed to contract renovations or repairs with certified contractors, as well as instances in which Home Depot failed to establish, retain, or provide the required documentation to demonstrate compliance with the RRP Rule.

EPA’s proposed settlement with Home Depot includes a $20.75 million penalty—the largest such penalty to-date under the Toxic Substances Control Act (TSCA).

Compliance Lessons

Companies in the construction industry and beyond can learn several significant lessons from the Home Depot violations, including the importance of:

Understanding Your Liability: Businesses sub-contracting regulated activities to third parties are not necessarily insulated from liability. Here, since Home Depot contracted with customers and received compensation to perform renovations of pre-1978 housing, it remained liable under the RRP Rule, regardless of its use of subcontractors. Home Depot failed to actively assess and control risk from noncompliance by itself and its subcontractors, resulting in a significant penalty. Understanding your liability, particularly in the context of subcontracting, is an important step towards reducing enforcement exposure for your business.
Being Proactive about Compliance: Another important step to reducing your enforcement exposure is implementing a compliance management system to identify potential issues before they become a problem. A strategic option to reduce such exposure can be the use of environmental self-audit/self-disclosure programs, such as EPA’s Audit Policy. The EPA Audit Policy allows companies to reduce or eliminate penalty exposure from noncompliance at their facilities. In addition, under the LBP Consolidated Enforcement Response and Penalty Policy, renovators may succeed in receiving gravity-based penalty reduction for any RRP Rule violations that qualify for such reduction under EPA’s Audit Policy. While navigating the EPA self-audit program can be challenging, the benefits can often be great for businesses. Small businesses and new business owners, in particular, may wish to take advantage of the tailored incentives potentially available to them, including the ability for new owners to enter into audit agreements with EPA to receive affirmative resolution and negotiated timelines for completing corrective actions.