Audit, Compliance and Risk Blog

The Environmental Protection Agency (EPA) applies its authority under the Resource Conservation and Recovery Act (RCRA) to set national requirements for containers – such as drums – that may be contaminated after use to accumulate hazardous chemicals and wastes. These rules include the “empty container rule” first promulgated in 1980. On August 11, 2023 EPA published in the Federal Register a “Used Drum Management and Reconditioning Advance Notice of Proposed Rulemaking” (ANPRM), setting forth the agency’s thinking about existing container management requirements and possible enhancements and regulatory and non-regulatory alternatives to its existing approaches. The rest of this note summarizes EPA’s ruminations, which may lead to a formal rulemaking.

On May 24, 2023, the Environmental Protection Agency (EPA) released a memo (“Lithium Battery Recycling Regulatory Status and Frequently Asked Questions”) clarifying regulatory requirements for spent lithium-ion batteries, under the Resource Conservation and Recovery Act (RCRA). EPA’s memo acknowledges that lithium-ion batteries power our electronics, lawnmowers, e-scooters, electric bicycles, and rapidly increasing numbers of electric cars, so numbers of spent batteries are also growing rapidly. In this memo, EPA evaluates RCRA’s applicability to lithium-ion batteries, particularly:

• Universal waste handling provisions
• Hazardous waste recycling provisions
• Other RCRA requirements

Based on its analysis, EPA offers clarification that most waste lithium-ion batteries are “likely” hazardous waste, which can be managed under universal waste handling standards until they reach a destination facility for recycling or discard. The rest of this note summarizes information in EPA’s memo.

California’s Department of Toxic Substances Control (DTSC) established waste management rules for solar photovoltaic (PV) modules, to become effective on January 1, 2021. These rules are adopted under the state Hazardous Waste Control Law (HWCL), applying “universal waste” authority permissible under the federal Resource Conservation and Recovery Act (RCRA) and Environmental Protection Agency (EPA) RCRA regulations. EPA defines five universal waste categories, and also allows states to define additional categories (I wrote about this HERE). The remainder of today’s blog summarizes these universal waste PV requirements (which include dozens of revisions to proposed state rules I discussed HERE).

I’ve written numerous times in this space about specific efforts by the Trump administration to reduce environmental regulation and enforcement. A new study from the University of Michigan Law School quantifies reductions in the administration’s criminal enforcement levels. The report is part of the school’s “Environmental Crimes Project,” and includes the first two years of the Trump Administration as the latest in a 14-year series of federal environmental enforcement data. Readers should note that federal criminal environmental enforcement is brought by the US Department of Justice (DOJ) on behalf of the US Environmental Protection Agency (EPA); EPA and delegated state agencies bring their own civil cases, and most state criminal enforcement is brought by state prosecutors on behalf of state regulatory agencies (I summarized agency enforcement in the first year of the Trump administration HERE).

Forty years ago, the federal “Superfund” law -- Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) – was enacted to provide legal requirements and procedural methodologies to speed identification and cleanup of contamination. Today, cleanups continue and the requirements and procedures continue to evolve. In April, the United States Supreme Court issued its latest decision interpreting a Superfund provision, this one defining clearer limitations on when the owners of contaminated land can force Responsible Parties for that contamination to pay for cleanup more extensive (and expensive) than cleanup ordered by the Environmental Protection Agency (EPA). The case is Atlantic Richfield Company v. Christian.

The federal Chemical Safety and Hazard Investigation Board – which usually refers to itself as the Chemical Safety Board or CSB – began operations in 1998. CSB conducts independent investigations of major chemical accidents, issues accident-specific findings, and offers specific or general recommendations for improved chemical handling and regulation (I wrote about one set of proposals here). Since its authorization in the 1990 Clean Air Act (CAA) Amendments, CSB has also had authority to establish chemical accident reporting regulations.

The Resource Conservation and Recovery Act (RCRA) assigns the US Environmental Protection Agency (EPA) to define and then regulate “hazardous wastes.” RCRA provides EPA considerable discretion, and one way the agency applies that discretion is by separating hazardous wastes into categories that are subject to distinct waste management requirements. One basis for these categorizations is relative risk – since 1995, EPA has defined a limited set of lower-risk wastes as “universal wastes” subject to special rules intended to encourage recycling (40 CFR part 273).

The Resource Conservation and Recovery Act (RCRA) assigns the US Environmental Protection Agency (EPA) and state hazardous waste agencies regulate “hazardous wastes,” including categories defined as “universal wastes” that are subject to reduced management requirements. EPA defines five categories, but also allows states to define additional categories (I wrote about this here). California’s Department of Toxic Substances Control (DTSC) has just proposed to add a new category of state-regulated universal waste covering “photovoltaic [PV] modules” to its regulations under the state’s Hazardous Waste Control Law (HWCL). The remainder of today’s blog summarizes these proposed universal waste PV requirements.

The Resource Conservation and Recovery Act (RCRA) assigns the US Environmental Protection Agency (EPA) to define and then regulate “hazardous wastes.” EPA applies its considerable discretion to separate hazardous wastes into categories subject to distinct waste management requirements. One basis for these categorizations is relative risk – the more hazardous the waste the greater the controls required, and the smaller the threshold quantities necessary to trigger regulation. Beginning in 1995, EPA has defined a limited set of very common lower-risk wastes as “universal wastes,” and made them subject to special rules intended to encourage recycling (40 CFR part 273). The rest of this note summarizes universal waste requirements.

After a long rulemaking, the US Environmental Protection Agency (EPA) has just promulgated rules defining certain waste pharmaceuticals as “hazardous wastes” under the Resource Conservation and Recovery Act (RCRA), and establishing standards for their management by selected healthcare and “reverse distribution” waste management facilities. These regulations replace general RCRA generator and treatment requirements otherwise applicable to hazardous wastes.