landfillUnder the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. §§6901 et seq., hazardous waste land disposal units in operation after November 19, 1980 are subject to the RCRA hazardous waste management regulatory program. After closure of a hazardous waste land disposal unit where waste remains in place, RCRA regulations require the owner or operator (“owner/operator”) to perform post-closure care activities and provide financial assurance for the estimated costs of the post-closure care. The regulations require a 30-year post-closure care period, though the post-closure period may be extended by EPA or an authorized state if it can be demonstrated that an extension is “necessary to protect human health and the environment.”
Continue Reading EPA Issues Guidance on Extending the Timeframe for Hazardous Waste Management Unit Post-Closure Care Under RCRA

chemical factoryOn January 13, 2017, the U.S. Environmental Protection Agency (EPA) published its much anticipated proposed reset to the Toxic Substances Control Act (TSCA) Chemical Substance Inventory in the Federal Register. The new TSCA amendments require EPA to subdivide the existing inventory into lists of active and inactive substances. The proposed rule sets out reporting and procedural requirements for chemical manufacturers and processors to notify the Agency which chemicals should be considered active.

The proposal requires “retrospective” notification for substances listed on the TSCA Inventory that were manufactured in or imported into the US for non-exempt business purposes between June 21, 2006 and June 21, 2016. Properly notified substances would be designated by EPA as active. Substances on the inventory that do not receive a valid notice will be designated as inactive. Inactive substances may not be manufactured, imported, or processed for a non-exempt commercial purpose under TSCA. EPA is also proposing “forward-looking” procedures for converting inactive substances to active substances in the event a company intends to resume manufacture, import, or processing of an inactive substance.Continue Reading EPA Proposes Process for Manufacturers to Keep Chemicals in Commerce

chemical factoryOn December 21, 2016, the U.S. Environmental Protection Agency finalized amendments to its Risk Management Program (RMP). The EPA Administrator, Gina McCarthy, signed the final rule but it has not yet been published in the Federal Register.


The Accidental Release Prevention regulations under section 112(r) of the Clean Air Act, also called the Risk Management Program regulations, require covered facilities to develop and implement a risk management program and coordinate with state and local officials. Approximately 12,500 facilities are covered by the RMP and will be affected by the revised rule. These facilities include petroleum refineries, large chemical manufacturers, water and waste treatment systems, chemical and petroleum wholesalers and terminals, food manufacturers, packing plants and other cold storage facilities with ammonia refrigeration systems, and some gas plants.Continue Reading EPA Administrator Signs Final Amendments To The Risk Management Program (RMP) For Chemical Facilities

chemicalsWe have recently become aware of recent EPA action to enforce the reporting obligation contained in Section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) that applies to electroplating processes. This enforcement issue is of particular concern to both captive and job shop electroplaters. The EPA’s enforcement position is not a new issue; in fact it was discussed with EPA in the late 1990’s; however, many electroplating facilities, both captive and job shop, are perhaps not calculating and accurately documenting threshold determinations and releases of hazardous substances that may be required to be reported on Form R. Section 313 of EPCRA, and EPA’s implementing regulations at 40 C.F.R. §§ 372.22 and 372.30 require the reporting of releases of listed hazardous substances by the owner or operator of a facility that has 10 or more full-time employees; is covered by certain SIC codes; meets one of the criteria set forth in 40 C.F.R. s § 372.22(b)(1)-(3); and that they manufactured, processed or otherwise used a toxic chemical in an amount exceeding an applicable threshold quantity of that chemical during a calendar year. If a facility is required to report such releases, a toxic chemical release inventory form (Form R) must be submitted to EPA and to the state.
Continue Reading Be Aware of Recent EPA Enforcement Regarding Form R Threshold Determinations for Electroplating Baths

oil drumThe U.S. Environmental Protection Agency (EPA) regulations under the Resource Conservation and Recovery Act of 1976 (RCRA) impose a comprehensive and often onerous program regulating the disposal and recycling of hazardous wastes. If you generate a secondary material that would need to be managed as a hazardous waste if you disposed of it, but the

The Environmental Working Group (“EWG”), a nonprofit, nonpartisan organization, issued a report on July 21, 2016 recommending the ten chemicals it thinks should be assessed first under the amended Toxic Substances Control Act (TSCA).

chemical chart
“10 Chemicals EPA Should Act on Now” Source: EWG, via EPA’s 2014 TSCA Work Plan

Continue Reading Environmental Working Group Recommends Ten Chemicals EPA Should Assess First Under Amended TSCA

Product Liability Monitor

July 8, 2016
New Developments
Federal Preemption of Pesticide Failure to Warn Claims
By Alan Hoffman

In 2005, the United States Supreme Court decided Bates v. Dow Agrosciences LLC, 544 U.S. 431 (2005), concerning preemption of state law failure to warn claims by the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §136 et


On October 23, 2015, the U.S. Environmental Protection Agency (EPA) published in the federal register its highly anticipated final rules implementing the Clean Power Plan’s goal of significantly limiting carbon dioxide emissions from existing, new, modified, and reconstructed fossil fuel-fired electric generating units (EGUs). EPA also published its proposed model state trading rules and federal plans for implementation of the required emission reductions from existing EGUs. The rules were finalized on August 3, 2015 and published on EPA’s website at that time.

These rules, which will significantly impact the electric power sector, also have the potential to impact manufacturing operations. Businesses with high energy demands may see the effects of the rules in their electricity bills. However, the rules could also present an opportunity for manufacturers of control equipment for coal-fired steam EGUs as well as natural gas combined cycle units and zero-emitting renewable energy generating units.Continue Reading EPA’s Release of Clean Power Plan Has Potential to Impact Manufacturing Operations

In a split decision announced earlier today (Utility Air Regulatory Group v.  Environmental Protection Agency, No. 12-1146, slip op. (June 23, 2014)) the United States Supreme Court ruled the Environmental Protection Agency exceeded its authority in requiring sources of air pollution to comply with the Clean Air Act’s prevention of significant deterioration (PSD) and Title V major source permitting programs solely because of a source’s greenhouse gas emissions.  Further, the Court held that EPA is permitted to include greenhouse gas emissions in determining best available control technology (BACT) for sources that would be subject to PSD on the basis of emissions other than greenhouse gas emissions is a permissible interpretation of the Act.
Continue Reading The Supreme Court Limits EPA’s Authority to Regulate Greenhouse Gases

As you’ve likely heard, the Environmental Protection Agency (EPA) has now officially taken the position that greenhouse gases like carbon dioxide are fair game for regulation and in fact are required to be regulated under the Clean Air Act. While this development may be cheered by environmental conservation groups and climate scientists, those who will actually have to implement the technology necessary to comply with EPA’s new regulations are less thrilled. Another pitched battle is about to take place before the Supreme Court on this issue, and large manufacturers, utilities, and other owners of large sources of greenhouse gases should take note.
Continue Reading Planes, Trains and Automobiles…And Factories, Refineries, And Power Plants? Court to Hear Challenge to Expansion of Greenhouse Gas Regulations