14 March 2018

Sidley Environmental Trends

Topics discussed this week include:

  • U.S. Court of Appeals sides with industry on definition of solid waste rule.
  • Climate change nuisance suit to remain in federal court.
  • Mandamus denied in climate change litigation.
  • EPA proposes to allow aerosol can recycling.
  • EPA dismisses civil rights claim against coal ash landfill.
  • EPA finalizes selected changes to fugitive emission requirements for oil and natural gas sector.
  • Bisphenol A has minimal health effects, FDA says.
  • Court blocks Prop 65 labeling for glyphosate on free speech grounds.

U.S. Court of Appeals sides with industry on definition of solid waste rule. On March 6, the DC Circuit modified its July 2017 ruling in API v. EPA, which upheld in part and vacated in part the Environmental Protection Agency’s (EPA) 2015 definition of solid waste rule (2015 DSW rule). The 2015 DSW rule defined when certain hazardous materials were deemed discarded as opposed to recycled. In its 2017 opinion, the court vacated the 2015 DSW rule’s “verified recycler exclusion” and reinstated a more flexible 2008 provision that exempts third-party recyclers of hazardous secondary material from solid or hazardous waste regulationThe court also partly vacated “Factor 4,” one of EPA’s four revised “legitimacy” criteria applied to determine if recycling of hazardous materials was legitimate. In addition, the court ruled that spent catalysts were ineligible for ”transfer-based exclusion,” a 2008 DSW exemption for third-party recyclers. EPA, industry groups and environmentalists filed petitions for reconsideration. On reconsideration, the court (1) reversed its prior determination to hold that spent petroleum catalysts do qualify for the transfer-based exclusion from hazardous waste requirements, (2) vacated Factor 4 in its entirety and (3) clarified that the effect of vacating Factor 4 in its entirety would be a) the other legitimacy factors in the 2015 DSW rule remained in effect, (b) Factor 3 remains a mandatory factor and (c) the 2008 version of Factor 4 would replace the vacated 2015 version.

Climate change nuisance suit to remain in federal court. In a Feb. 27 order, the U.S. District Court for the Northern District of California denied a motion by Oakland and San Francisco to remand their climate change nuisance suit back to state court. Last year, the two municipalities filed suit in California Superior Court against a group of multinational oil and gas producers alleging that the defendants’ products caused a public nuisance, as use of their products would allegedly contribute to climate change that would result in loss of life and damage to public and private property due to storm surge and sea level rise. The defendants removed the case to federal court, and the court upheld removal, finding the suit is “necessarily governed by federal common law.” According to the court, based on the allegations in the complaint, “the scope of the worldwide predicament demands the most comprehensive view available, which in our American court system means our federal courts” as opposed to a “patchwork” of state court rulings. The court allowed the cities to immediately appeal the decision. The judge also invited lawyers for both sides to conduct a four-hour “tutorial” on climate change science covering the “history of scientific study of climate change” and the “best science now available on global warming” and other climate effects.

Mandamus denied in climate change litigation. On March 7, the U.S. Court of Appeals for the Ninth Circuit denied without prejudice the request by the U.S. Department of Justice (DOJ) to issue a writ of mandamus and halt the district court proceedings in Juliana, et al. v. United States. In Juliana, a group of child plaintiffs has alleged that the U.S. government has violated their constitutional rights by not acting to stop the use of fossil fuels despite the alleged effects of the fuels on global climate change. The district court had denied the government’s motion to dismiss, and DOJ had argued that allowing the case to proceed would result in “burdensome discovery obligations on the federal government that will threaten the separation of powers.” The court found the government had not met the criteria for extraordinary mandamus relief at the still early phase of litigation. As such, absent reconsideration or a further appeal, the matter will return to the district court. The district judge had previously indicated that the court intended to move the case quickly and set the matter for trial before the end of 2018.

EPA proposes to allow aerosol can recycling. On March 5, the EPA announced a proposed rule that would add hazardous waste aerosol cans to the category of universal wastes regulated under the Resource Conservation and Recovery Act (RCRA). In its proposal, EPA stated that adding aerosol cans to the universal waste rule simplifies handling and disposal of the wastes for generators and ensures that aerosol cans are sent to appropriate facilities, where they will be managed as a hazardous waste with all applicable RCRA requirements. EPA expects that this charge will result in an increase in the number of aerosol cans diverted from the non-hazardous-waste stream into the hazardous waste stream because it would allow generators, especially those that generate this waste sporadically, to send it to a central consolidation point. Furthermore, because the proposed rule allows universal waste to be consolidated into a larger shipment for transport to a destination facility, EPA believes it would be more economical for generators to send hazardous waste aerosol cans to recycling for recovery of metal values rather than sending them for disposal.

EPA dismisses civil rights claim against coal ash landfill. In 2013, an administrative complaint was filed with the EPA’s External Civil Rights Compliance Office alleging that the Alabama Department of Environmental Management (ADEM) violated Title VI of the Civil Rights Act by allowing a coal-ash landfill to operate near the majority African-American town of Uniontown, Alabama. On March 1, EPA closed its investigation into the matter, finding that there was insufficient evidence to conclude that any violations occurred. The complaints allege that ADEM racially discriminated by permitting a landfill in an overwhelmingly black community and further failed to protect Uniontown residents from unlawful intimidation in the wake of their initial civil rights claim. While not finding sufficient evidence that the permit issuance and modification for the landfill violated civil rights laws, EPA did suggest a number of measures that the state agency could use to take a greater leadership role, engage in partnerships with public and private entities and share information to ensure that issues affecting the community are understood and that decisions are effectively communicated.

EPA finalizes selected changes to fugitive emission requirements for oil and natural gas sector. On March 12, EPA announced amendments to provisions of the 2016 New Source Performance Standards (NSPS) for the oil and natural gas production and distribution sectors. Among other requirements, the NSPS had established a leak detection and repair (LDAR) program to detect and repair sources of fugitive emissions of volatile organic compounds and methane from various components. The amendments revise the LDAR program by removing a requirement that oil and gas operators conduct repairs during unscheduled or emergency shutdowns. Owners and operators are still required to complete repairs during the next scheduled shutdown opportunity or within two years, whichever comes first. In April 2017, EPA announced its intention to reconsider certain aspects of the 2016 NSPS, and that process is ongoing.

Bisphenol A has minimal health effects, FDA says. According to findings of a Food and Drug Administration (FDA) study, bisphenol A, a chemical found in plastic bottles and food packaging, has minimal adverse effects on health. The FDA’s National Center for Toxicological Research conducted the study as part of ongoing research on potential negative health effects of the chemical with the National Toxicology Program and the National Institute of Environmental Health Sciences (NIEHS). Additional findings from academic researchers are expected in 2019. The draft report will be peer-reviewed at an April 26 NIEHS meeting. Several states — including California, Vermont and New York — have passed bans on bisphenol A in products, including baby bottles and reusable food and beverage containers. Others, such as Connecticut, have banned BPA-containing thermal paper. The European Union issued new regulations on Feb. 21 that restrict BPA that comes into contact with food and prohibits the chemical in certain drinking cups and bottles. Chemical and industry groups have typically pointed to FDA findings to emphasize the safety of bisphenol A. The new results are consistent with the FDA’s previous findings that low levels of BPA are safe.

Court blocks Prop 65 labeling for glyphosate on free speech grounds. In a Feb. 26 ruling, a federal district court has issued a preliminary injunction blocking California from requiring labeling of products containing the herbicide glyphosate under the state’s Proposition 65 law. Prop 65 requires that employees and consumers be warned when they are exposed above threshold levels to a chemical listed as “known” to cause cancer or reproductive harm. One route to listing under Prop 65 is a finding by an “authoritative body.” In July 2017, California’s Office of Environmental Health Assessment found that glyphosate should be listed under Prop 65 and trigger warning requirements based on an International Agency for Research on Cancer finding that it is “probably” carcinogenic to humans. Monsanto, which manufactures the glyphosate-containing herbicide RoundUp, and joined by interested trade groups, challenged the state’s listing decision and the potential warning requirements that might by triggered by the listing. In granting the preliminary injunction, the court found a statement that glyphosate is a carcinogen is not “uncontroversial” because almost all other regulatory bodies, including EPA, have determined that there was no or insufficient evidence that glyphosate causes cancer. Therefore, the court held, forcing a manufacturer to label a product as a carcinogen violates the company’s First Amendment rights. The Supreme Court has held that the government may require a business to engage in commercial speech without violating the First Amendment, but only when it requires the speaker to disclose “purely factual and uncontroversial information” about a commercial product. Here the court found “the required warnings are false and misleading.” The ruling does not require California to remove glyphosate from the Prop 65 list, although it halts the labeling mandate while the case proceeds.

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