Tag Archives: waste management

Latest on EPA’s Coal Ash Regulatory Proposal

Earlier this week the House Subcommittee on Rural Development, Entrepreneurship & Trade held a hearing on EPA’s proposal to classify coal ash (also known as coal combustion products (CCP)) as federally-regulated hazardous waste.  Read more about the proposal.

The press release released by the Subcommittee stated:

During the hearing, entrepreneurs in the recycling industry said that a hazardous waste classification carries a stigma and would raise liability fears, making it difficult to use coal ash in building materials.  Lawmakers also questioned whether the EPA had evaluated the full impact the proposed rule might have on small businesses.  In one exchange with lawmakers, the EPA witness conceded that stiffer regulation of coal ash could potentially cause a 6 percent increase in electricity rates.

Should coal ash be classified as hazardous waste, there is also a potential for third party claims for existing building materials that contain the material.  Stay tuned.

Just Announced: Wal-Mart’s Super-Sized Hazardous Waste Settlement

Media outlets including USAToday and San Diego News Network are announcing an environmental settlement reached by Wal-Mart and environmental regulators.  The settlement is valued at $27.6 million and caps a five-year investigation of the retailer’s management of wastes such as cleaning chemicals, paints and pesticides across 236 stores in California.

While this is one of the largest settlements of its kind in the US, it is unlikely to have any significant impact on the financial condition of the world’s largest retailer, which is ranked #1 on the 2010 Fortune 500 list, posting more than $378billion in revenues and $12.7billion in profit for 2009.

Incubating Environmental “Black Swans” In the Nest

Our last entry discussed the concept of “Black Swan” events, a term created by noted author Nassim Nicholas Taleb to describe an event that is (a) so low in probablility that it is unforeseeable and (b) so catastrophic in impact that it changes history.

Certainly, risk assessments are predictive in nature and no one can predict the future with complete certainty.  But in our view, one of the best tools available for risk assessments is an open mind.    This can be a challenge in the EHSS world as we generally have engineering and other technical backgrounds.  We have been trained to seek absolutes and eliminate uncertainties.  At Elm, we believe that involving external support helps to identify and explore events (and their related exposures) that are relevant but get “technically rationalized” by internal staff.

With the BP oil spill and the December 2008 Kingston, Tennessee coal ash pond failure, we began thinking about some of the Black Swan events discussed with clients in the past.  Below are a handful of EHSS Black Swan risk events that we have discussed with clients over the past years – and some that are currently on our mind.

  • Radical change in EPA’s regulation of coal ash management (discussed several years before the Kingston event, and vehemently opposed by the client)
  • Catastrophic failure of GHG emissions trading market
  • Dramatic failures/errors in GHG footprint calculation methodology
  • Nationalization of privately-owned CO2 emissions assets
  • Regulation and class-action level public concerns over chemical content of consumer goods
  • Waste disposal liability for and public pressures about exporting electronic wastes
  • Dramatic increase in OSHA/EPA enforcement – frequency, severity and targeted industries/sites
  • Major expansion of pollution exclusions/limitations in insurance policies
  • Increased success of US-based NGOs in successfully obtaining US venue for lawsuits concerning EHSS allegations for non-US sites/projects/activities
  • Unprecedented shareholder and SEC pressure on public companies related to EHSS matters
  • Increased importance of EHSS in supply chains and procurement decisions

Perhaps these seem far-fetched to you or your company.  But if that is the case, the egg of that – or another – Black Swan is quietly incubating somewhere in your organization.

2009 Closes with the Opening of Public Comment Period for EPA’s Expanded Financial Assurance Proposal

EPA published an Advanced Notice of Proposed Rulemaking (ANPRM) to expand the universe of industries, operations and sites subject to federal financial responsibility requirements.  EPA has identified the following industry sectors, and one group of facilities because they comprise 1,073 sites, or approximately 70 percent of all non- Federal, proposed, finalized, and deleted sites on the NPL.

–       the Chemical Manufacturing industry (NAICS 325),

–       the Petroleum and Coal Products Manufacturing industry (NAICS 324),

–       the Electric Power Generation, Transmission, and Distribution industry (NAICS 2211),

–       the Waste Management and Remediation Services industry (NAICS 562) (including municipal and industrial landfills),

–       the Chemical Manufacturing industry (NAICS 325),

–       the Wood Product Manufacturing industry (NAICS 321),

–       the Fabricated Metal Product Manufacturing industry (NAICS 332),

–       the Electronics and Electrical Equipment Manufacturing industry (NAICS 334 and 335),

–       the Petroleum and Coal Products Manufacturing industry (NAICS 324), and

–       facilities engaged in the recycling of materials containing CERCLA hazardous substances.

EPA is requesting comments on a wide range of information, including critical environmental risk-oriented information.  Some of this requested data may not be formalized – or even exist – within all companies potentially subject to the future rule.  For instance, the Agency requests the following information (for any or all of the industry categories discussed in this notice):

–       Data on facility operations within these industries, and on the classes within these industries.

–       Data on the risk profile for facilities in the various industries, including data addressing the scope of past and expected future environmental responses.

–       Data on the risk evaluation approaches used by various industries (or by industry insurers) when seeking (or providing) insurance or bonding coverage.

–       Data explaining how frequently various financial assurance mechanisms are used by the various sectors, and the factors causing some to be chosen over others.

–       Information on the reliability, availability, and affordability of existing financial responsibility mechanisms. For example:

  • What factors or information are used by issuers to determine the amounts of coverage provided?
  • How are fees or coverage amounts adjusted to account for risk information, such as from risk assessments, site-specific exemptions, or positive risk management incentives?

A 30-day public comment period begins the day of publication of the ANPRM in the Federal Register.

EPA Says Happy Holidays in Their Own Way

In case you haven’t yet seen it, EPA wrapped up the year with three significant announcements.

First, the Agency published its 2009 compliance enforcement results.  The summary statistics are here.   A few points from their website

  • In fiscal year (FY) 2009, the Environmental Protection Agency’s enforcement and compliance program concluded civil and criminal enforcement actions requiring polluters to invest an estimated $5.4 billion to reduce pollution, clean up contaminated land and water, achieve compliance and fund environmentally beneficial projects. Civil and criminal defendants committed to reduce pollution by approximately 570 million pounds annually once all required controls are fully implemented.
  • Approximately 57% of pollution reductions and 71% of pollution control investments obtained through the Agency’s FY 2009 enforcement actions focused on water and air pollution priority problems.
  • In FY 2009, EPA opened 387 new environmental crime cases, the largest number of criminal case initiations in five years.

Second, EPA announced it has settled with Duke Energy to resolve violations of the Clean Air Act’s new source review requirements found at the company’s Gallagher coal-fired power plant in New Albany, Ind., located directly across the Ohio River from Louisville, Ky.   The lawsuit was filed in 1999.

Under the settlement, Duke will spend approximately $85 million to reduce air pollution at the plant through a combination of fuel switching and air pollution control equipment, $1.75 million on the civil penalty, and another $6.25 million on environmental mitigation projects.

The Duke settlement is the 17th settlement secured by EPA and DOJ as part of a national enforcement initiative targeting coal-fired power plants under the Clean Air Act’s New Source Review requirements.  See the press release.

Lastly, EPA announced it is delaying a decision on the regulatory determination for coal ash.  No timeframe or deadline was offered by EPA.  Read the press release.

Enforcement of E-Waste Export Shows Continuing Off-site Disposal Risk

Today, EPA Region 2 announced that it fined a U.S. company almost $200,000 for illegally exporting non-working computer monitors to Hong Kong in 2007 and 2008, and for failing to promptly respond to EPA’s requests for information.

This action is part of a national effort to crack down on the illegal export of electronic waste.

Traditional waste disposal vendor programs in the U.S. have centered around hazardous waste management.  E-waste may be a somewhat different challenge for internal EHS staff to manage.  IT departments typically drive equipment replacement and disposal programs within companies.  EHS is not normally linked into the IT department, so communication between the two functions may not exist.  However, the connection between the two should be strengthened.

EPA’s enforcement initiative, combined with significant public/media pressure surrounding e-waste exports, highlight the need for companies to incorporate this wastestream into waste vendor audit programs.

Off-site Waste Disposal Continues to Create Liabilities

This week, two attempts at waste disposal beyond the borders of the US resulted in enforcement and made headlines, highlighting the need for companies to understand how their wastes are managed by vendors.

In one case, EPA announced that The Hong Kong Environmental Protection Department intercepted a shipment of over 500 computer monitors that had been sent for disposal in China from two US companies.  The waste was shipped back to the companies, who must properly manage the CRTs as well as comply with other requirements of the enforecement actions.

Another case involves waste generated in the UK that was intercepted by Brazilian authorities.  Over 80 shipping containers were found to contain batteries, computer parts, cleaning product containers, baby diapers, food remains and medical waste, among other items.  The wastes are being shipped back to the UK for proper management.

While these instances are public, others may not catch the attention of the media.  Elm recently assisted one client who was the subject of EPA enforcement related to a waste disposal contractor’s unauthorized disposal of hazardous waste generated at one of the client’s manufacturing locations.  That case demonstrated that the contractor had committed fraud and dumped hazardous waste drums on abandoned property.

In economic conditions that are pushing cost reductions to the limits – and costing jobs/salary reductions – inappropriate waste disposal decisions are a possibility within an organization.  Maintaining a strong waste management program and disposal vendor review can be a simple yet powerful tool in significantly reducing off-site waste disposal liabilities.