Posted on February 13, 2017
Have any of you been feeling like this lately? I certainly have! Which is why, after struggling to come up with a topic for this blog, I decided not to write about the uncertain future of the US EPA or the man who has been nominated to lead that agency, concerns about the US withdrawing from the Paris Agreement, the frightening implications of climate change and unchecked global warming, the erosion of the Chevron doctrine, or the increasing disrespect for the judiciary. Instead, I chose a topic that made me smile.
On February 1, 2017, the organizers of the Tokyo 2020 Olympics and Paralympics announced that the Olympic medals for the 2020 Games will be made entirely out of recycled materials from computers, mobile phones and other small electronic devices. This public initiative is in direct response to Recommendation 4 of Olympic Agenda 2020, which states that sustainability must be integrated into all aspects of the planning and execution of the Games. The organizers have partnered with mobile phone operator NTT DoCoMo and the Japan Environmental Sanitation Center for a nationwide collection effort to gather 8 tons of metal from recycled electronics. It will involve over 2,000 collection boxes placed at offices and stores throughout Japan beginning in April 2017. The donated electronics will undergo chemical processing to separate out various metals to provide enough gold, silver and bronze for 5,000 medals. The chemical production process is expected to result in 2 tons of metal: 42 kg of gold, 4920 kg of silver and 2944 kg of bronze.
Olympic host cities traditionally have purchased the precious metals needed to make Olympic medals from mining firms. A few host cities previously used recyclable materials in their medals. Thirty percent of each of the silver and bronze medals from the Rio 2016 Olympics were made from recycled materials and the ribbons on which the medals were hung were made 50% from polyethylene terephthalate (PET) plastics. The recycled silver came from mirrors, waste solders and X-ray plates while the bronze came from waste from the Brazilian Mint. The gold was mercury free and in compliance with sustainability standards from extraction to refining. At the Vancouver 2010 Olympics, a local mining and metals company processed 6.8 metric tons of recycled circuit boards for materials for medals. The Japanese initiative, however, is the first to involve extensive public participation and, if successful, will be the first to have medals composed entirely of recyclables. Japan has scant mineral resources, so apart from being sustainable and raising public awareness about waste minimization and the multitude of opportunities for e-waste beneficial reuse, this project will also result in cost savings.
As technology continues to advance and drive the electronics market forward, electronic products—and particularly smart phones—quickly become outdated and are discarded for the next model or generation. And, the life cycle of an electronic device ends at the consumer. While recycling and disposal of e-waste is regulated in Japan, enforcement can be lax and public awareness and compliance low.
Of course, we face similar obstacles in the United States. On the federal level, while EPA has some authority to address e-waste under the Resource Conservation and Recovery Act, it does not have broad authority to implement a comprehensive federal program covering recycling of e-waste. The EPA relies largely on voluntary compliance programs, which are not well publicized. Given the current political climate, we are unlikely to see significant advancement in addressing the e-waste problem, even though having one comprehensive set of rules regarding e-waste recycling and beneficial reuse likely would be more efficient for the manufacturers and distributors of electronic products as well as for the public.
At least in New York, things on the e-waste recycling front are more optimistic. New York has been praised for its e-waste recycling program under the Electronic Equipment Recycling and Reuse Act, which provides comprehensive regulation impacting manufacturers, retailers, consumers and recyclers throughout the life cycle of electronic devices. The New York State Wireless Recycling Act requires wireless telephone providers that sell phones to accept up to 10 old cell phones per person per day. At the local level, New York City is participating in an initiative to contribute zero waste to landfills by 2030. As part of this initiative, NYC urges consumers to donate old electronics through donateNYC, or to participate in the take-back or drop-off program mandated by the Wireless Recycling Act.
Regardless of whether an e-waste program is voluntary or mandatory, at the foreign, federal, state or local level, the public must be educated, engaged and willing to comply with the program for it to be effective. While it’s too early to tell how effective Japan’s Olympic initiative will be, it certainly is a smile-worthy, innovative way to engage the public.
Posted on October 11, 2016
Our ACOEL delegation to Cuba was an incredible opportunity to engage substantively with the lovely people of Cuba. My personal experience is that the Cuban People are joyful, happy, warm, generous, well-educated and proud of Cuba. Cuban literacy rates are extraordinarily high (97%), and with government funded education, the population has high rates of secondary education, including masters and PhD graduates, in science, medicine, engineering, architecture, and law as well as the creative arts, music, art, dance and so much more.
As a second career lawyer and chemical engineer, I loved engaging in Cuba’s electrifying mix of science and engineering education, creativity and equality. But my fascination was also challenged by the need to fully appreciate contextual implications of Cuba’s post-revolutionary government, including government-controlled media and government-provided and government-directed education and careers, healthcare, housing and food distribution. This is a wholly different mindset from U.S. capitalism, of course, which takes time and engagement to fully explore and understand. With its socialist roots and communist goals, most important in Cuba is equality: equality between bricklayers and brain surgeons, as well as between women and men. And while Cubans exhibit pride in their cultural emphasis on equality, a quality the U.S. is struggling to achieve in many respects, this emphasis may result in disincentive regarding the more challenging career choices. Also, with government-controlled investment, we saw stark contrasts between recent and historic choices in investment, targeted skills and effective implementation contrasting with apparent inefficiencies and possibly strategic neglect. For example, Havana’s recently completed opera house, which we were told was completed within three years by Cuban workmen, is a marvel of execution. It is simply breathtaking and a great example of Cuban potential. Yet several doors down are majestic and palatial structures built in the 1800’s, for which rooves and windows have long given way to healthy vegetation, and even trees, within roofless walls.
As environmental lawyers, of course, we were visiting to learn about Cuban environmental policies and to see if Cuba might be receptive to ACOEL’s offer of pro bono assistance. Recall that the timing of Cuba’s disengagement from the U.S. occurred somewhere around Kennedy’s disastrous Bay of Pigs in April 1961 and the Cuban Missile Crisis in October 1962, which were contemporaneous with awakening of the U.S. consciousness regarding environmental policy with the first publication of Rachel Carson’s “Silent Spring” in September 1962. In light of this, I did not expect to see evidence of U.S.-based or otherwise familiar environmental policies, practices or approaches. In our discussions throughout our visit, however, Cuba’s great interest in protecting the environment was quite clear, particularly Cuba’s focus on protecting native species and surface water and Cuba’s commitment to the Paris Agreement.
Cuban historic domestic industries include textiles, footwear, cement, flour milling, fertilizer, nickel and steel production; mining for nickel, copper, chromium and manganese; and agriculture including tobacco (cigars!), henequen (agave), rice and coffee. With Cuba opening up to the world, the Cuban government has received many proposals for development projects in the country including, of course, hotels and golf resorts, but also a long list of projects that can replace current imports and benefit from Cuba’s natural resources including: radial tires, petroleum, automobiles and trucks, refrigeration and air conditioning, stainless steel and alloys, aluminum cans and glass bottles, tableware and other goods for the hotel industry, industrial waste treatment and waste-to-energy project proposals, pharmaceuticals, containers and equipment for drug storage, delivery and other medical uses, cell phones, concentrated animal feeding operations, animal and agricultural goods processing (for example, fruits and vegetables, soy bean, yeast, spirits (rum!), sugar, coffee, cacao, dairy, shrimp, chicken, pork, beef, charcoal), and many more industrial, commercial and consumer goods.
With the natural beauty and unique species native to the Cuban archipelago, the Cuban Government quite rightly demands demonstration up front that all projects will result in no unacceptable impact to the environment and native species. However, in making this demonstration, proposed projects would greatly benefit from design and implementation of environmental management systems and approaches similar to those long implemented by the United States. For example, there may be a need for more air pollution control requirements for sooty stacks, even if Cuba is surrounded by ocean; limitations on releases of pollutants to the environment; and a systematic method of identifying, characterizing and managing solid and hazardous wastes produced by industry. Also, many indicated they had concerns regarding water resources and expressed an interest in water conservation, efficient use of water resources and protection of surface and drinking water resources. Certainly, when and if the lovely historical ghost structures so common throughout Cuba are to be preserved or redeveloped, systematic methods of renovation or redevelopment would be helpful. And finally, as Eileen will share in her blog, there are opportunities and great enthusiasm in sustainability and conservation, including sustainable energy projects, and potentially exploration of more efficient approaches to electricity distribution, such as distributed energy generation, renewable energy and energy conservation. But beyond the technical standards, more than anything, Cuba’s greatest opportunity may be in developing and adopting an integrated environmental program that will result in predictable, consistent and fair implementation, monitoring and enforcement, with reasonable penalties for noncompliance.
I am hopeful ACOEL has an opportunity to assist Cuba, and that our ACOEL Fellows catch our Cuban Enthusiasm and volunteer to join us in Cuba pro bono projects!
Posted on September 2, 2016
Do air emissions of pollutants constitute a “disposal” under the federal hazardous waste laws? The Ninth Circuit said “no” in Pakootas, et al. v. Teck Cominco Metals, Ltd. based upon its reading of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). The decision both sets important precedent and showcases the judicial process to discern legislative intent when a statute’s plain language is stressed by an unusual fact pattern. If air pollutants can create CERCLA disposals, then emissions from any stationary or mobile source, including animal emissions of methane (which is considered a pollutant subject to CERCLA by EPA), may be the basis of cleanup liability.
The decision involves a smelter located just north of the border with British Columbia. An earlier decision in that case held that a foreign-based facility can be liable under CERCLA for slag discharges into a river running to the United States. Plaintiffs then alleged the facility arranged for disposal by emitting hazardous air contaminants which were carried by the wind and deposited in Washington State. The district court denied a motion to dismiss and certified the matter for immediate appellate review.
Reading the plain language of CERCLA, the Ninth Circuit found that “a reasonable enough construction” of the law would be that the facility “arranged for disposal” of its air pollutants. No legislative history or EPA rules shed light on this subject. However, the Court concluded it was not writing on a blank slate. Noting that CERCLA incorporates the definition of “disposal” from the Resource Conservation and Recovery Act (RCRA), the Court cited its prior decision in Ctr. for Cmty. Action and Envtl. Justice v. BNSF Rwy. Co., which held that diesel particulate emissions “transported by wind and air currents onto the land and water” did not constitute “disposal” of waste within the meaning of RCRA. To be a disposal, the solid or hazardous waste must first be placed into or on any land or water and thereafter be emitted into the air. The Court also cited its en banc decision in Carson Harbor Vill., Ltd. v. Unocal Corp., holding that passive migration was not a disposal under CERCLA.
The Court thereby found that arranging for “disposal” did not include arranging for air “emissions.” This interpretation of “disposal” was largely consistent with CERCLA’s overall statutory scheme. The Court expressed concern that plaintiffs’ more expansive reading would stretch CERCLA liability beyond the bounds of reason. “[I]f ‘aerial depositions’ are accepted as ‘disposals,’” the Court said, “‘disposal’ would be a never-ending process, essentially eliminating the innocent landowner defense.”
The Court did not discuss in detail the statutory interplay with the Clean Air Act, which regulates air emissions under a complex regulatory and permit scheme. Under CERCLA, federally permitted releases are excluded from liability. But because air permits often specify the control equipment parameters rather than an emission limit, a CERCLA plaintiff may allege that the mere existence of a permit does not provide a blanket immunity from liability and the facility would remain liable for any releases that were not expressly permitted, exceeded the limitations of the permit, or occurred at a time when there was no permit. The Court in passing did note its skepticism that the federally permitted “release” exception evidenced any Congressional intent regarding the meaning of “disposal.”
The Ninth Circuit is the highest court to exclude air emissions from the reach of CERCLA and RCRA. The Court’s citation to Carson Harbor does not provide an exact analogy since a passive landowner has not “arranged” for the initial release of hazardous substances, as compared to the smelter operations which result in air emissions. But the Court’s unwillingness to create potentially unlimited CERCLA liability for air emissions is compelling. Under CERCLA, liability is strict, joint and several and retroactive. Air emissions are widely transported and dispersed in relatively small concentrations by large numbers of potential sources, making CERCLA liability findings and allocations difficult if not impossible.
The Court thereby divined Congress’ intent to make CERCLA’s scheme workable, apart from a literal reading of its text. For judges to “repair” statutory language in this way is controversial. The decision is reminiscent of the U.S. Supreme Court holding that the Obama health care plan provides tax credits to millions of people who purchase insurance from a federal marketplace, even though the statute only provides credits for those who purchase from marketplaces “established by the state.” According to Justice Roberts, that was the only way the law would work, and despite the plain wording in the statute, “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.” CERCLA also is not a model of clarity, and the Ninth Circuit similarly incorporated practicality as a factor in discerning Congress’ intent to avoid overreaching in assigning liability for the cleanup of toxic chemical releases.
Posted on January 11, 2016
Seth Jaffe’s recent post about the tension between Colorado’s governor and attorney general over who has the right to speak on behalf of Colorado in the Clean Power Plan litigation brought to mind the very first piece of environmental litigation I ever worked on, Village of Wilsonville v. SCA Services. In the late 1970s, SCA (which later became part of Chemical Waste Management) began operating a large hazardous waste landfill, fully permitted by Illinois EPA, in Wilsonville, Illinois, and the residents were predictably displeased. (Hint to those of you who operate similar NIMBY-ish facilities – don’t do as SCA did and disseminate marketing materials displaying the site as the “bullseye target” on a regional map showing concentric circles of distances to the facility.)
Not satisfied with some pretty effective self-help efforts (e.g. the Village dug a three-foot wide trench for “sewer repairs” across the only road into the site, thereby halting all truck traffic into and out of the facility), the Village sued SCA and Illinois EPA (the permitting agency) seeking permit revocation and a halt to operation of the facility. The case got off to an unusual start in the trial court (our firm was not retained until the unsuccessful appeal to the Illinois Supreme Court) when then-Attorney General William Scott, who had appeared in the case on behalf of Illinois EPA, stuck his finger in the air, felt which way the wind was blowing, and abandoned the defense of Illinois EPA to file his own complaint and join with the Village against the defendants, including the State agency. Perhaps unlike Colorado, Illinois law is pretty clear that the Attorney General has independent enforcement powers when it comes to environmental matters, so Scott’s volte-face didn’t cause much of a stir other than at Illinois EPA, which had never before been left hanging in the wind like this.
Bill Scott probably remains the Illinois Attorney General best known for environmental enforcement; the first line in his obituary correctly notes that he “achieved an international reputation for his battle on behalf of the environment during his four terms” as Attorney General. Scott tried but never made it to the Governor’s chair, though he clearly had what it takes. Like Otto Kerner, Dan Walker, George Ryan, and Rod Blagojevich - Illinois governors #33, 36, 39 and 40 respectively - Scott later served time in federal prison.
Over the years, notable cases of tension between disparate agencies of the same sovereign have spread from Wilsonville to Colorado to China. A recent news article notes, “Prosecutors in eastern China have filed a lawsuit against a county-level environmental protection department, accusing it of ‘failing to fulfil its regulatory duties’ in its supervision of a local sewage firm.” Apparently the United States is a successful exporter of something; I’m not sure what to call it, but it isn’t as desirable as the Fab Four or iPhones.
Posted on October 12, 2015
The U.S. Environmental Protection Agency (EPA) is proposing two new hazardous waste rules that EPA believes will strengthen environmental protection and reduce regulatory burdens. The first is an update to the hazardous waste generator rules; the second is a new set of management standards for hazardous waste pharmaceuticals.
These proposed rules have had a long gestation, and the generator proposals have been decades in the making. Both proposed rules were signed by EPA on August 31, 2015 and will be published in the Federal Register for public comment within the next few weeks.
While touted as providing needed flexibility, the rules are far from simple. The axiom of environmental regulation holds true: complex rules only become more complex over time.
Hazardous Waste Generators
The proposed updates to the Hazardous Waste Generator Rules include more than 60 changes. Among the more notable changes is EPA’s proposal to allow a waste generator to avoid changes in generator status when generating larger amounts of waste only occasionally, provided the episodic waste is properly managed and additional notifications are submitted. In addition, the rules would explicitly allow a conditionally exempt small quantity generator facility to send hazardous waste to a large quantity generator facility under common control. In this case, a company could transfer waste from one of its locations to another. That sounds logical, but there are “strings attached” to both proposals in the form of additional requirements or conditions for access.
There are numerous other changes proposed, or highlighted for comment, some of which are likely to make waste management and compliance more complicated. These provisions include:
- New provisions on documenting waste determinations
- Regular reporting by Small Quantity Generators
- Additional labelling of containers for contents and hazards
- Longer record keeping period for inspection logs
- Required arrangements with responders (not just attempts)
- Additional procedures for closure
- Additional training for employees at Satellite Accumulation Areas
These proposed changes are sure to provoke comments and controversy. In several of these areas, there will be more “opportunities for environmental excellence” (also commonly referred to as opportunities for violations).
Hazardous Waste Pharmaceuticals
The newly proposed Hazardous Waste Pharmaceuticals Rule includes a tailored, sector specific set of regulations for the management of hazardous waste pharmaceuticals by “Health Care Facilities” (including pharmacies) and “Reverse Distributors” (businesses that accept the return of pharmaceuticals). The rule would only apply to pharmaceuticals that already meet the definition of RCRA hazardous waste and that are generated by health care facilities. However, for the first time, “Reverse Distributors” would be regulated under hazardous waste rules.
EPA is not proposing to change the list of pharmaceutical wastes that are considered hazardous wastes, with the exception of possible changes to address low-concentration nicotine products. The Agency is also generally requesting comment on what criteria it might use to identify new pharmaceutical wastes. The Agency abandoned its 2008 proposal that would have added new pharmaceuticals and applied new universal waste standards. In fact, EPA has announced that universal waste management is prohibited.
Although already prohibited under most circumstances, EPA is adopting an explicit ban on flushing pharmaceuticals down the sink and toilet. The Agency estimates that this will prevent the flushing of more than 6,400 tons of hazardous waste pharmaceuticals annually. (Really? That seems pretty high…)
EPA hopes that the new rule will make hazardous waste management easier for health care professionals by removing the traditional manufacturing-based hazardous waste generator requirements and instead providing a new set of regulations that are “designed to be workable in a health care setting.” The Agency was sympathetic to the view that the existing hazardous waste rules were viewed as complex and difficult to comply with in a health care setting. (Gee, haven’t all generators reached that conclusion for their industries?) While these may be simplified as compared to existing hazardous waste rules, complying with the management standards will still require effort and diligence.
The pre-publication versions are available on EPA’s website:
Posted on April 29, 2015
A plaintiff seeking to characterize a business transaction as “disposal” under CERCLA may now feel like a polar bear looking for a patch of thick ice.
On March 20, 2015, a divided panel on the Fourth Circuit Court of Appeals, in Consolidation Coal Co. v. Ga. Power Co., affirmed a District Court's ruling holding that transformer sales did not evidence an intent on to dispose of hazardous materials, and therefore did not support a finding of “arranger liability” under “CERCLA” even when words like “scrapping” and “disposal” were used. Looking to the framework of the Supreme Court’s 2009 ruling in Burlington Northern Burlington Northern and Santa Fe Railway Co. v. United States and the Fourth Circuit’s 1998 ruling in Pneumo Abex Corp. v. High Point, Thomasville & Denton Railroad Co., the 2-1 majority held that while a party who sells a product that contains hazardous substances also “‘intends’ to rid itself of that hazardous substance in some metaphysical sense… [an] intent to sell a product that happens to contain a hazardous substance is not equivalent to intent to dispose of a hazardous substance under CERCLA.” Rather, in the court’s words, “there must be something more.”
Georgia Power, a major Georgia electrical utility that supplies power to most of Georgia, sold used electrical transformers containing PCBs to Ward Transformer Company. Ward repaired and rebuilt used transformers for resale. In the process, Ward’s Raleigh, North Carolina, facility became contaminated with PCBs. After the Ward site was added to the National Priorities list, Consolidated Coal Company and another company bore most of the cleanup costs as PRPs under CERCLA, spending approximately $17 million each in cleanup costs.
Any attorney who has ever tried or been involved with a CERCLA case knows that Georgia Power, given these facts, looks like a prime target to sue for contribution.
In their appeal to the Fourth Circuit Court of Appeals, Consolidated Coal argued the District Court improperly considered the low value of the used transformers and Ward’s ability to profit from their resale. This, Consolidated Coal contended, overlooks the possibility that Georgia Power had a “dual intent” to make money from the sales of transformers and thus had an intent to dispose of the hazardous materials as an arranger. Thus, according to Consolidated Coal, Georgia Power’s “secondary motive” for the transformer sales -- to dispose of PCBs –- was sufficient to create arranger liability under CERCLA.
The Court concluded that there was no direct or substantial evidence that Georgia Power intended, “even in part,” to arrange for disposal. Furthermore, the use of the words “scrapping” or “disposal” in Georgia Power’s documents had “limited bearing” on their intent to “dispose” of transformers as the word is construed in CERCLA, let alone the PCBs within those transformers. The Court was also not swayed by the fact that the transformers were sold in lots and that some of the transformers were partially disassembled, or that old oil was required to be removed from the transformer as part of the reconditioning process. According to the Court, all Georgia Power did was to sell its transformers to the highest bidder.
While these cases remain fact sensitive, the trend lines suggest CERCLA plaintiffs alleging “disposal” may be on thin ice.
Posted on December 15, 2014
"A long time ago in a [May 19, 1980 Federal Register] far, far away [or so it seems]", EPA declared its authority to regulate all hazardous secondary material, whether discarded or reused, under the Resource Conservation and Recovery Act (RCRA), and that it would exercise its authority to promote properly conducted waste reclamation. Ever since then, a kind of Empire/Rebellion struggle has played out over the scope and extent of broad based recycling exclusions to the RCRA solid waste definition.
Over the years, recycling exclusions generally focused on particular industries. However, EPA’s last final rule, issued in the October 30, 2008 Federal Register during the Bush administration, contained several much broader exclusions. Those exclusions covered a waste generator’s onsite recycling, offsite recycling in the U.S., and transfers of hazardous secondary materials for recycling conducted outside the U.S.
The 2008 rule prompted litigation from both industry and the Sierra Club. The Sierra Club also filed an administrative petition seeking EPA repeal of the final rule. On September 7, 2010, EPA reached a settlement agreement with the Sierra Club under which EPA agreed to issue a notice of proposed rulemaking and a final rule that addressed the Sierra Club’s concerns. EPA’s final rule announced on December 10 is the latest chapter in the ongoing saga.
The new final rule rolls back many of the Bush era provisions that minimized agency filings and involvement. It contains revisions to the onsite generator recycling exclusion, replaces the exclusion for offsite recycling in the U.S., eliminates the exclusion covering recycling outside the U.S., and introduces a new exclusion for recycling of certain solvents. It also contains some new requirements applicable to all recycling activities, and to new variances and non-waste determinations for recycled materials.
EPA’s new final rule is intended to provide greater safeguards against sloppy and sham recycling. These provisions address accumulation of hazardous secondary materials when there is no near term prospect for recycling, and require an up-front demonstration that the recycling process will generate a valuable product suitable for reuse. They also require offsite recycling by a facility with a Part B permit or interim status under the RCRA regulations, or by facility that has obtained a variance after meeting the same types of requirements imposed upon permitted and interim status facilities.
Offsite recyclers and waste generators engaged in onsite recycling must adopt new procedures that include notification and periodic updates of recycling activity, demonstration that the recycling is legitimate, documentation of when accumulation has commenced for the material being recycled, and compliance with recordkeeping requirements and with emergency response and preparedness procedures like those imposed on hazardous waste generators. In addition, the new rule provides a definition of “contained" that is intended to ensure proper storage of hazardous secondary materials.
Beside adding safeguards to two of the three exclusions instituted in 2008 and eliminating the third one, the new rule introduces an exclusion to cover the recycling of 18 commercial grade solvents. Under that exclusion, such solvents must be used in one of four industrial sectors that do not include waste management, and the remanufactured solvents must be employed for specified uses that do not include cleaning or degreasing.
The solvent exclusion is subject to notification and recordkeeping requirements similar to those contained in the previously described recycling exclusions. In addition, there must be compliance with the tank and container standards covering Part B permitted facilities and with air emission control requirements imposed under the federal Clean Air Act or, where not applicable, to the air emission standards covering Part B permitted facilities.
In its 2011 proposal, EPA sought to impose the new notification and containment requirements on facilities covered by a pre-2008 exclusion or exemption. In the preamble to its new rule, EPA has deferred adoption of those requirements have been deferred in order to more fully consider the comments and concerns that were raised. One pre-2008 exclusion that received particular attention is scrap metal recycling, since scrap metal being recycled may be left on the ground rather than in a receptacle.
This link summarizes the new provisions and identifies a few other items of interest.
Posted on December 11, 2014
A thought occurred to me recently, and not for the first time, about the decisions of the New Jersey state judiciary, including our Supreme Court, in the area of environmental law generally and site remediation particularly. My realization was that those decisions are driven as much by a desire to facilitate the remediation of contaminated sites as they are by principled interpretation of statutes, regulations, canons of construction and the like.
Such an approach, of course, is understandable on one level, as New Jersey environmental statutes are ameliorative in nature, a cleaner environment is in the interest of everyone, and our fair state has suffered environmentally from its industrial legacy more than most jurisdictions. But on a deeper level, courts are supposed to decide cases in accordance with law, and deciding cases with a particular goal in mind may result in an injustice to the litigants. Moreover, fuzzy reasoning could provide inaccurate guidance to the bar and public.
In one recent case, for example, the Supreme Court of New Jersey was called upon to determine the degree of causation that the New Jersey Department of Environmental Protection (“NJDEP”) needed to establish in order to impose liability on a discharger of hazardous materials. Rather than simply requiring proximate cause, the court hemmed and hawed its way along, formulating the appropriate standard at various points as a “real, not hypothetical” connection, and as a “reasonable nexus or connection” between the alleged discharger and the discharge.
The Court ultimately held that the standard of causation needed to establish liability varies with the form of relief requested. Unfortunately, the Court provided no support for this approach, which conflates the proof needed to establish liability with what is necessary to impose damages. This leads to the conclusion that the Court was reluctant to impose a difficult burden of proof on the state and, presumably, private litigants which could result in judgments for defendants and hence, in the Court’s view, deter remediation of contaminated sites.
In another recent case, the Supreme Court had to determine the interplay between the jurisdiction of a state agency and state trial courts in adjudicating liability for site remediation. The Court reversed the trial and appellate courts and held that a litigant could seek relief in court before the contours of the remediation had been firmly established.
Undergirding the Court’s reasoning was pragmatism – the earlier we allow a contribution plaintiff to pursue other responsible parties, the more the defendants will be encouraged to participate in the remediation process, thereby facilitating more and faster cleanups. While the result was correct as a matter of existing law, the reasoning was weighted far too heavily with an eye towards the result.
Finally, in a case that recently was argued and awaits adjudication, the Supreme Court was asked to determine whether a statute of limitations exists under the New Jersey Spill Compensation and Control Act, our state’s CERCLA analog, and, if so, how long it is and when it begins to run. Implicit in many of the questions the Court asked the advocates was which resolution would facilitate the faster remediation of more sites – no statute of limitations at all, which would allow remedial claims to be brought at any time and not foreclose an action, or a limitations period which would incentivize the plaintiff and defendants to move forward more quickly to clean up sites.
Remediating the environment, and making sure responsible parties are held to their obligations, are plainly laudable goals. But a little less focus on the ultimate environmental outcome and greater adherence to the principles of adjudication, statutory interpretation and the like would improve the quality of justice without sacrificing environmental protection.
Posted on October 15, 2014
Product Stewardship. It sounds friendlier than “Product Responsibility” or “Extended Producer Responsibility,” but it means the same thing: arranging for collection and recycling or disposal of unused or waste products. Mandatory in the European Union and the subject of aggressive national programs in Germany and a growing number of countries worldwide, the U.S. has continued its state-by-state approach promoting recycling – but for a growing number of products and in more and more jurisdictions.
We may have initially started with glass, paper, and metal in the 1970’s, but the range of products and materials covered is now broad: from batteries, tires, beverage containers, electronics, and tires, to carpets, mattresses, and paint. Pharmaceuticals may be in the offing. A new final rule from the U.S. Drug Enforcement Administration would allow voluntary drug collection options for retail pharmacies, drug distributors, and hospitals/clinics with an on-site pharmacy.
Of course, there is a “trade association” – the Product Stewardship Institute -- whose members are state and local governments and businesses and NGOs. According to PSI, two states -- California (my birth state) and Maine (my adopted state) -- lead the country with seven or more different types of programs for products. (To see how your state compares, see http://productstewardship.site-ym.com/?State_EPR_Laws_Map.)
Legislatively, some of these programs were developed on a product-by-product basis, but both California and Maine have adopted over-arching framework product stewardship laws or regulations allowing the addition of more products. And some municipalities aren’t being shy – the Ninth Circuit just upheld a 2012 ordinance from Alameda County, California requiring manufacturers to pay for collection and disposal of consumers’ unused medications.
Some of these programs are after-market recycling operations. Others are closer to product “take-back” requirements. The common features of these schemes are a deadline for a program submission (e.g., from a trade association and retailers), fees and potential cost-sharing, management regulations and limited government oversight, and proper recycling or disposal options. “Reverse distribution” options have been favored by some retailers, who benefit from the additional foot-traffic of potential shoppers – if they can stand the paperwork and regulatory burdens.
If you believe the literature, everyone is a winner: municipalities have less waste to manage thereby reducing their disposal costs; recycling and reclamation occur reducing energy and greenhouse gasses; wastes are properly managed; and coveted “green” jobs are created. Obviously, some costs are transferred to businesses in the short term (though as consumers or taxpayers, we all ultimately pay).
More than a few manufacturers and industries are on board. Some trade associations -- like the American Coatings Association -- have created non-profit organizations to promote and operate state programs. ACA has set up PaintCare Inc., a non-profit operating paint collection programs in seven states, with more to come.
In advising the Republic of Kazakhstan on possible product stewardship plans, our firm had occasion to consider “best in world” programs. By contrast to the U.S., the European Union has incorporated Extended Producer Responsibility into the E.U.’s Waste Framework Directive, 2008/98/EC. At this point, Germany is probably leading the E.U. through its Closed Substance Cycle Law (KrWG), intending to promote the “circular economy” by requiring products stewardship to be addressed during the design phase. The goal? Development, manufacture and marketing of products that are reusable, recyclable, durable and technically suitable for environmentally safe disposal. While the U.S. plays out these issues on a jurisdiction-by-jurisdiction and product-by-product basis, Germany is trying a very ambitious comprehensive, national approach. The German effort has run into the complicated realities of sharing collection costs among and between manufacturers and German state and local waste management programs. The country faces additional challenges of collecting and recycling automobiles and all packaging materials, two of the more interesting programs being implemented.
Don’t expect a national law in the U.S. anytime soon, but watch this Product Stewardship trend – it is one of the more interesting developments in environmentalism – and look around. What products will be next in your state? Or in your county? And yes, Kazakhstan is weighing adoption of an Extended Producer Responsibility law this fall.
Posted on February 25, 2014
In an article earlier this week, the Boston Globe reported on concerns that the Massachusetts Department of Environmental Protection is planning to weaken cleanup standards for hazardous waste sites in Massachusetts, seemingly in response to pressure from developers. The article is so wrong and the concerns are so misplaced that some response is necessary.
First, we expect MassDEP to regulate in the face of uncertainty. That means that MassDEP must set cleanup standards without perfect knowledge. As a result, most people – and certainly the environmentalists complaining about the regulatory changes – would expect MassDEP to err on the side of conservatism, making the cleanup standards more stringent than may be necessary.
At the same time, science evolves and we’d expect MassDEP to alter cleanup standards periodically in response to changed science. Moreover, if MassDEP originally erred on the side of being overly conservative, one would expect that, as science improves, many standards could be relaxed – and that that would be a good thing.
What’s most troubling about the article and the NGO position here is the idea that environmental protection is still a black hat / white hat arena and that if something is good for economic development, then it must be bad for the environment. I thought we’d gotten past that in Massachusetts. Indeed, brownfields redevelopment is the prototypical example given of environmental protection being used to advance economic goals. That’s why it’s both stunning and deeply depressing to see lines such as this in the article:
"Critics worry the rules will spur developers to build on contaminated land, known as brownfields."
Better instead that we should plow under the greenfields and leave the brownfields vacant and without any cleanup, I suppose. I thought we already tried that strategy and concluded it didn’t work.