Audit, Compliance and Risk Blog

EPA-UPS settlement provides reminder to get hazardous waste compliance details right

Posted by Jon Elliott on Fri, Oct 28, 2022

On October 19, 2022 the US Environmental Protection Agency (EPA) and the United Parcel Service (UPS) settled a massive enforcement case covering violations of hazardous waste management requirements under the Resource Conservation and Recovery Act (RCRA) at 1,160 UPS facilities across forty-five (45) states and the territory of Puerto Rico. Most of the identified violations resulted from UPS’ misclassification of the quantities of hazardous waste generated at its facilities, and resulting failures to meet the additional requirements actually applicable at the mis-classified facilities. The national prosecution followed an investigation and subsequent Consent Agreement and Final Order (CAFO) in EPA’s Region 6 (Arkansas, Louisiana, New Mexico, Oklahoma, Texas and 66 Tribal Nations), which developed after enforcement at a single UPS site in Arkansas. The new nationwide settlement also appears in a CAFO, in which UPS agrees to pay more than $5 million in fines and to undertake enhanced compliance programs. The settlement is a good reminder to all organizations generating hazardous waste, that failures to meet RCRA-related administrative requirements can create enforcement liability even if wastes are managed responsibly.

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Tags: EHS, EPA, Hazardous Waste

EPA proposes Re-Re-Revisions to Accidental Release Prevention Rules

Posted by Jon Elliott on Mon, Sep 12, 2022

No, the title is not a stutter; I’ve written it that way to emphasize that the new Environmental Protection Agency (EPA) proposal to revise its Accidental Release Prevention (ARP) program rules under the Clean Air Act (CAA) represents only the latest step in nearly-decade-long changes to these requirements across the last three Presidential administrations. ARP was enacted after the 1990 Clean Air Act (CAA) Amendments, and its often known by its core requirement that targeted facilities prepare Risk Management Programs (RMPs) to prevent and respond to potential catastrophic releases of chemicals.

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Tags: EPA, chemical safety, Environment, Toxics Release

Circuit Court sends Roundup pesticide review back to EPA for another try

Posted by Jon Elliott on Mon, Jul 11, 2022

On June 17, the Ninth Circuit (federal) Court of Appeals issued an important ruling on national pesticide regulation, directed at the chemical glyphosate, which is the active ingredient in the ubiquitous weedkiller Roundup (originally marketed by Monsanto, which was bought by Bayer in 2018). The order remands to the Environmental Protection Agency (EPA) the agency’s determination that glyphosate does not pose “any unreasonable risk to man or the environment,” citing evidence that such risks may indeed be present. The case, Natural Resources Defense Council v. EPA, interprets and applies the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). This decision is the latest step in controversies dating to 2009, when EPA began its latest FIFRA hazard review and reregistration determination for glyphosate.

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Tags: EPA, FIFRA, pesticides

Department of Justice Reviving Use of Supplemental Environmental Project Agreements

Posted by Jon Elliott on Mon, Jun 13, 2022

On May 12, 2022, the US Department of Justice (DOJ) published an interim final rule that revokes a Trump-era prohibition against its attorneys’ use of payments to third parties, including via “supplemental environmental projects (SEPs)”, in settlements with violators of federal environmental laws. (I discussed Trump Administration policies several times, most recently HERE). In these cases, DOJ acts as the attorney for the agencies, such as the Environmental Protection Agency (EPA), that enforce laws and regulations allegedly violated. This rule change would codify policy changes presented in a memorandum from Attorney General Merrick Garland to US attorneys. This change is designed to restore flexibility to DOJ’s US attorneys to trade penalty dollars for more rapid commitments by wrongdoers to undertake actions to offset harms caused by their violations.

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Tags: EPA, DOJ, SEP, Environment, Climate

EPA to decide whether discarded PVC is hazardous waste

Posted by Jon Elliott on Mon, May 30, 2022

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On May 4, 2022, the US Environmental Protection Agency (EPA) published notice of a proposed consent decree in litigation brought by the environmental group Center for Biological Diversity (CBD). EPA proposes to issue a decision responding to a petition filed by CBD in 2014, about whether to list discarded polyvinyl chloride (PVC) as hazardous waste under the Resource Conservation and Recovery Act (RCRA). CBD filed the suit early in 2021, after EPA had taken no action on its petition for seven years, claiming that the agency’s inaction violated a duty to act. EPA is now ready to commit to issue a proposed decision no later than January 20, 2023, and a final decision by April 12, 2024.


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Tags: EPA, Environment, plastics, PVC

EPA proposes new bans on asbestos-containing products

Posted by Jon Elliott on Mon, May 02, 2022

The Environmental Protection Agency (EPA) has proposed to ban a number of longstanding uses of chrysotile asbestos, using expanded authority provided as part of amendments adopted to the Toxic Substances Control Act (TSCA) in 2016. This proposal is EPA’s latest step to apply its expanded authority to review and restrict uses of asbestos, renewing agency efforts from the 1980s that were blocked by litigation.

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Tags: EPA, Environment, Climate, asbestos

EPA proposes to require worst case release planning by onshore facilities

Posted by Jon Elliott on Mon, Apr 25, 2022

On March 28, the US Environmental Protection Agency (EPA) proposed regulations requiring “non-transportation-related onshore facilities” to prepare response plans covering possible releases of hazardous substances, and submit those plans to EPA. This proposal implements longstanding but unused EPA authority under the Clean Water Act (CWA). The remainder of this note discusses the proposal.

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Tags: EPA, climate change, Environment, Climate

Biden Administration again proposes to expand EPA’s budget significantly

Posted by Jon Elliott on Mon, Apr 18, 2022

On March 28, the Biden Administration issued its budget proposal for federal Fiscal Year (FY) 2023 (October 1, 2022 through September 30, 2023). The administration proposes a $11.9 billion budget for the Environmental Protection Agency (EPA), a 29% ($2.6 billion) increase above EPA’s adopted 2022 budget of $9.6 billion – similar to the administration’s FY 2022 proposal of $11.2 billion (which I wrote about HERE), which Congress cut considerably.

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Tags: EPA, climate change, Environment, Climate

Mandatory GHG EPA Reports Due April 1, 2022

Posted by Jon Elliott on Tue, Feb 22, 2022

The US Environmental Protection Agency (EPA) continues to expand and refine environmental compliance requirements, including those related to greenhouse gas (GHG) emissions. In particular, facilities and organizations subject to EPA's mandatory GHG emission reporting rules should be preparing to submit reports covering calendar year 2021. The remainder of this note summarizes these requirements.

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Tags: EPA, Greenhouse Gas, ghg, Environment

EPA and Corps of Engineers propose another re-definition of “Waters of the United States”

Posted by Jon Elliott on Mon, Jan 03, 2022

The Clean Water Act (CWA) empowers federal agencies to regulate activities that may affect “waters of the United States”—sometimes called “navigable waters.” These activities include water quality planning and discharge regulation by the US Environmental Protection Agency (EPA) and delegated states, and regulation of projects that may lead to “dredge and fill” of waters, requiring permits from the US Army Corps of Engineers (Corps).

However, CWA does not define this critical term. For many years, agencies used regulatory definitions jointly developed by EPA and the Corps in rules that date primarily from 1986, which included ambiguities that increased agency discretion but also frustrated landowner aspirations in some cases. However, beginning in 2001 a series of decisions by the US Supreme Court frayed the expansive edges of the regulators’ interpretations. First, in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the Court ruled that the Corps lacks jurisdiction over “isolated” waters and wetlands that are not “adjacent” to navigable waters—such as “prairie potholes,” mudflats, and freshwater seasonal ponds. Then, in Rapanos v. United States, the Court ruled in 2006 that the Corps can exert jurisdiction over non-adjacent wetlands where there is a “significant nexus” between the wetlands and navigable waters (in addition, the wetlands must be at least “relatively permanent”).

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Tags: EPA, clean water, Environment, PCBs, Wetlands, waters, water