Workers who handle hazardous waste or materials must have training per EPA (RCRA) & federal DOT requirements. Workers who handle hazardous waste must be trained annually; workers involved in the shipment of hazardous materials must be trained at least every three years.

A DOT/RCRA Annual Update and Refresher course that meets both RCRA  and DOT 49 CFR training requirements is being conducted by the Environmental Resource Center in Charlotte, NC at the Holiday Inn – Charlotte University on September 8, 2010.  Class begins at 8 am and ends at 5 pm.

Register by calling 919-469-1585 or at http://www.ercweb.com/classes

The Important Details:
What: The Fourth Annual "Green is Good for Business" Conference
When: Tuesday, September 14, 8:30a-7p
Where: Columbia Metropolitan Convention Center, 1101 Lincoln Street, Columbia
Cost: $50 per person; $120 for three

The Conference begins with a keynote speaker from the CEO of TerraCycle.  There will also be presentation on the SC Hospitality Association's "Green Hospitality Alliance" plans for the City of Columbia's new restaurant and bar recycling program.

There is also a FREE Green Business Expo from 5 to 7 p.m., featuring:

• Green Vendors
• Environmental Non-Profits
• Great Food & Drink, including New Belgium beers
• Door Prizes

(Unfortunately, our law firm is hosting a SC Business conference the same evening. Hmm. Maybe I can grab a few green Belgium beers before heading over.)

Click below for more info on the conference:
http://www.columbia.sc.gov/coc/index.cfm/cpac/2010-green-is-good-for-business-conference/

The use of concrete is fundamental in virtually every construction project. And Portland cement is often a chief component in cement.  Because of this, plants which produce Portland cement have been governed under different (most would agree laxer) emissions standards than most other industries. This distinction has allegedly progressed to the point that, in some areas, cement plants are responsible for 90% of hazardous air emissions, including mercury, sulfur dioxide ("SOX"), nitrogen dioxide ("NOX"), and hexavalent chromium, as well as acids and particulate matter..

On August 9^th, the EPA released a 450+ page Final Rule for Hazardous Air Emissions. (Portland Cement Final Rules: New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants: http://www.epa.gov/ttn/oarpg/t3pfpr.html) According to EPA's projections, the final rule will lead to a reduction of 70-90% of most of the hazardous air emissions from cement plants.

 

Environmentalists have championed the stricter regulations. (See NRDC's Article: A Big Step Toward Cleaner Cement ) 

 

The Final Rule for cement plants follows on the heels of a draft proposal for the regulation of coal ash, which is also often used in the production of concrete as a substitute for cement. (See the 5/24/10 entry in this blog). Although both could likely affect the cost of concrete production, tightening the regulation of the two most common components of concrete at approximately the same time will likely keep the playing field even from a regulatory standpoint. Of course, as always, advances in technology could provide (or reinstate) a competitive edge. It remains to be seen which industry will be successful in capturing that edge in the future.

Liability under CERCLA includes those who "arrange" for the disposal of hazardous materials if those materials are "released" at some point into the environment (either intentionally or accidently). (CERCLA § 107(a)(3) defines an “arranger” as “any person who … arranged for disposal or treatment … of hazardous substances owned or possessed by … any party or entity, at any facility … owned or operated by another party or entity and containing such hazardous substances.”) A Federal district court in the State of Washington has held that the Washington Department of Transportation (WDOT) falls within the scope of "arranger liability" based on its actions in designing, constructing, and maintaining stormwater management systems which eventually discharged into the Commencement Bay-Nearshore Tideflats Superfund Site in Tacoma, Washington. (See United States v. Washington State Department of Transportation (WSDOT), 2010 WL 2302502 (W.D. Wash, June 7, 2010).

 

The decision is already being criticized in many circles, mainly for the potential impact upon any entity – private or public – involved in construction or other type of development. Every contractor, engineer, and landowner involved in stormwater management could be a PRP (CERCLA-speak for "potentially responsible party"), not to mention the highway department in every state.

 

The legal criticism of the decision is based on the U.S. Supreme Court's clarification in the Burlington Northern case that an "intent to dispose" of hazardous material is required for arranger liability, and that the WDOT's intent was to dispose of stormwater, not hazardous materials. Obviously this would be the response of anyone involved in a stormwater management system, but, at a basic level, it is well-known that certain stormwater management systems – especially for highway systems – will certainly pick up hazardous materials (and possibly concentrate them, which is even more troublesome).

 

The court's reasoning could be applied to sewer systems or any other conveyances that would likely include hazardous materials, so the potential scope of this decision, if upheld or adopted in other jurisdictions, could be enormous and economically devastating to some entities; therefore, based purely on the economic realities (as opposed to legal reasoning), I don't foresee this opinion surviving appellate court review.

This is an update to a prior entry (http://scenvironmentallawyer.com/2010/04/13/update-dc-circuit-to-reconsider-case-re-unilateral-administative-orders-under-cercla.aspx).

General Electric challenged the EPA's authority to order companies to engage in potentially costly activities to prevent the release or clean up hazardous materials or face substantial penalties for ignoring its order. GE argued that such orders violated due process because EPA could issue such orders without the requirement of a court review. The district court ruled against GE's challenge, and that decision has now been upheld by the DC Circuit Court. (See opinion here: http://caselaw.findlaw.com/us-dc-circuit/1529475.html?DCMP=NWL-pro_envtl )

The DC Circuit Court agreed that the UAO process satisfied Due Process requirements because UAO recipients could obtain a pre-deprivation hearing by refusing to comply and forcing EPA to sue the recipient in federal court. (Note: The DC Circuit Court is very influential in issues related to environmental law and the power of the EPA.)

This case is an interesting microcosm of the eternal debate over government control and administrative power vs. the real or perceived need to protect health and safety. The underlying case had some statistics which showed that UAOs were successfully challenged (i.e., that they had been issued in error or to the wrong entity) in only a miniscule fraction of cases.  Therefore, it appears that, if anything, EPA errs on the side of not issuing a UAO, perhaps to the detriment of health and safety in some cases. Of course, if it is you or your company that erroneously receives a UAO and pursuit of the proper parties is impractical or impossible, such error could be economically devastating.  On the other hand, how many times has EPA refused to issue or delayed issuing a UAO that could have prevented an injury? Such questions are impossible to answer, and our best strategy is to continually try to strike a proper balance between vigorous enforcement and reasonable safety.

The warily-anticipated and oft-delayed EPA proposal to regulate coal ash (aka "Coal Combustion Residuals") has been released in a 500+ page proposed rule. It is actually two alternate proposals – one which treats ash as hazardous under RCRA Sub-Title C and one treats it as non-hazardous under Sub-Title D, but many expect that the final proposed rule will be a "hybrid" approach that depends upon the actual handling process being used for the ash – that is, different regulations will apply for storage, for transportation, and for use of the ash.

Coal Ash is produced by utilities and other industries which burn coal, and almost 50% of current production is used for fill or the production of products for construction, and its beneficial use is a successful example of going "green" – using what would have usually been disposed of in landfills and decreasing the need for raw natural resources for building materials. Concerns have been raised about the content of heavy metals and other hazardous materials in coal ash; however, the failure of the TVA-Kingston wet coal ash impoundment (which was mainly an issue of mechanical damage – not toxic contamination) brought the issue of coal ash regulation to the forefront.

The proposed rule is being reviewed by "stakeholders" (EPA's term for anyone who could be affected by a regulation) and has not yet been printed in the Federal Register (which would trigger an official review/comment period). EPA's notice about the proposed rule is at: http://www.epa.gov/epawaste/nonhaz/industrial/special/fossil/ccr-rule/index.htm

Good summary of the legal paradigm for claims related to the Gulf oil spill (from the NRDC website):

http://switchboard.nrdc.org/blogs/dpettit/what_bp_oil_catastrophe_legal.html#comment7687

What BP Oil Catastrophe Legal Damages Could Look Like

Posted: 03 May 2010 10:17 PM PDT

News reports today state that British Petroleum (BP) is stepping up to the plate and agreeing to clean up the mess it made in the Gulf.  It’s not like BP had any choice.

The federal Oil Pollution Act (OPA), enacted after the Exxon Valdez spill in 1989, imposes strict liability on parties such as BP for an oil spill from an offshore platform.  “Strict liability” in this sense means that no one needs to prove that BP was careless or negligent in order to recover damages under the OPA.  Importantly, BP’s liability for cleanup costs under the OPA is unlimited.

By contrast, BP’s liability for other damages, such as property damage or lost profits from businesses affected by the spill, are limited under the OPA to $75 million.  A proposal has surfaced in the Senate to raise this limit to somewhere in the billions; it’s not clear whether an increase in this liability limit would apply to the current situation in the Gulf.  Damages for personal injury or wrongful death are not covered, or limited, by the OPA.

If you’re thinking that $75 million isn’t what it used to be, the check that BP will need to write for economic and property damage can be larger.  The OPA expressly does not preempt claims under state law or common law.  A potential problem for plaintiffs in those non-federal claims is that they may need to prove negligence, but the flip side is that there is, in general, no cap on damages.

The parties to litigation under the OPA and state law tend to fall into two groups:  governmental bodies and private citizens.  The federal government has remedies directly under the OPA, including federal cleanup costs and costs for natural resource damages such as injuries to marine mammals and seabirds.  Typically, a state Attorney General will bring suit for loss of state resources, cleanup costs incurred by the state, or loss of recreational use of beaches and state waters.  Some state laws also provide for fines on a per gallon basis.  If the Exxon Valdez situation is any guide, we can expect to see class action cases brought on behalf of businesses that have lost profits and property owners whose land has been damaged or lost value because of the spill.

As a society, we don’t have to put up with situations like these.  We need to transition to an economy based on renewable energy instead of oil.  There is no such thing as a sunlight spill.

A new bill has been introduced to overhaul (or "upgrade" or "expand governmental control" – depending upon your political bent) the Toxic Substances Control Act of 1976  (TSCA). The current bill, called the Safe Chemicals Act of 2010,  would require manufacturers to submit information proving the safety of chemicals they currently produce, as well as any new chemical seeking to enter the market. (The 1976 Act essentially grandfathered-in chemicals being produced at that time.) Below are cites to news articles discussing the bill:

http://www.time.com/time/health/article/0,8599,1982489,00.html

http://ehstoday.com/environment/news/congress-safe-chemicals-act-reform-management-9818/

http://www.ens-newswire.com/ens/apr2010/2010-04-15-091.html

Here is the EPA's summary of the current TSCA: http://www.epa.gov/lawsregs/laws/tsca.html

 

In addition, the EPA has issued an Advance Notice of Proposed Rulemaking (ANPR) concerning its oversight of PCBs (polychlorinated biphenyls), specifically, "on the Agency's potential reassessment of its current authorizations for PCB use and distribution in commerce." See here  for the notice of the public meetings on the proposed changes.

A listing of SC Earth Day events can be found at http://www.earthday.org/events/search/state/SC

EPA has set up a website with Earth Day information (http://www.epa.gov/earthday/) , including a "PICK 5 " program to choose 5 actions you can take to use less resources, reduce pollution, recycle, and more.

Southeastern regional activities are listed at http://www.epa.gov/region4/earthday/

South Carolina's activities include:

Charleston County Recycling's 2010 Earth Day Festival
Charleston County Recycling's 2010 Earth Day Festival will be held on April 17, from 11:00 a.m. to 3:00 p.m. in North Charleston's beautiful Park Circle. The purpose of the Earth Day Festival is to increase awareness about the Lowcountry's environmental issues, while celebrating Charleston's environmental community and highlighting our challenges and successes.
Location: Park Circle, North Charleston, South Carolina
Date and time: Saturday, April 17 – 11:00 a.m. – 3:00 p.m.
Contact: (843) 720-7111, publicinfo@charlestoncounty.org
Learn more about the event 

Celebrate Aiken! Earth Day
Performances by the Community Playhouse Youth Wing coincide with the city's annual Earth Day Celebration.
Location: Hopelands Gardens, Aiken, South Carolina
Date and time: Friday, April 23 – 9:00 a.m. – 1:00 p.m
Learn more about the event 

 

DHEC's web offering is rather bland: http://www.scdhec.gov/environment/earthday/GetInvolved/

WLTX Channel 19 is offering a recycling event at their studio (6027 Garners Ferry Road in Columbia) on Thursday, April 22 from 6:00am until 7:00pm. They will be accepting home electronics, tires, & scrap metal (including some appliances). See the website for more details: http://www.wltx.com/news/story.aspx?storyid=86202

 

 

The Kiawah Island Golf Resort  has some interesting activities all week (from Sun Apr 18-Sat Apr 24),  special workshops, tours and volunteer opportunities. http://www.kiawahresort.com/recreation/kiawah-earth-day.php

 

On the other hand, a search of Earth Day activities on the SC.gov website turns up the following:

"Your search returned no results."  (http://sc.gov/Pages/Search.aspx?q=earth%20day)

Another proud moment.

Join us in Columbia for one of the largest conservation events of the year! 7th Annual Conservation Lobby Day Tuesday, May 4, 2010 (9:30am - 10pm) CLICK HERE TO REGISTER Join us for the 7th Annual Conservation Lobby Day on May 4, 2010. Hundreds of conservation community members from around the state will travel to the State House to meet, greet and encourage elected leaders to support the Common Agenda priorities. The day begins with a morning briefing at the Columbia Museum of Art, after which the group walks to the State House to speak to legislators about conservation bills. During the afternoon, participants attend committee meetings and enjoy free time to watch green films, participate in a happy hour or tour the city, the art museum and the State House grounds. In the evening participants will attend an informal oyster roast under the stars at 701 Whaley Street. Come enjoy the live music and local food with legislative guests. If you only go to the State House once this year to speak to your legislator, this is the day to visit! PLEASE CLICK HERE TO REGISTER BY APRIL 29TH If you would prefer, you can register via email or by calling Debbie Parker at 803-799-0716. Schedule of Events 9:30 AM – 11:30 AM Registration and Briefing Columbia Museum of Art - 1515 Main Street 11:30 AM – 5:30 PM Conservation Day Activities SC State House - 1200 Gervais Street 6:00 PM – 10:00 PM Legislative Oyster Roast Historic 701 Whaley Hosted by: American Rivers Coastal Conservation League Congaree Land Trust Conservation Voters of South Carolina Education Fund League of Women Voters Sierra Club of South Carolina South Carolina Wildlife Federation The Nature Conservancy of South Carolina Upstate Forever U.S. Green Building Council - South Carolina Chapter Additional Sponsors General Electric Firefly Vodka Redwood Creek Vineyards PLEASE CLICK HERE TO REGISTER BY APRIL 29TH If you would prefer, you can register via email or by calling Debbie Parker at 803-799-0716. For more information on the 7th Annual Conservation Lobby Day, please click here! View photos of the 2009 Annual Lobby Day!

About CVSC Contribute Subscribe for Updates 2008 Scorecard Conservation Agenda

 

Conservation Voters of South Carolina
701 Whaley Street, Suite 207
Columbia, SC 29201
www.conservationvotersofsc.org