Environmental Law ReSource : Environmental Lawyer & Attorney : Reed Smith Law Firm : Climate Change, Sustainability

This post was written by David Wagner.

On May 28, the State of New York enacted the Electronic Equipment Recycling and Reuse Act, a law requiring all manufacturers that sell electronic equipment in the state to have in place a free, convenient electronic waste or recycling program by April 1, 2011. Under the new law, each manufacturer will have to recycle or reuse its market share of electronic waste by weight, based on its three-year average of annual sales in the state. They will also have to submit annual reports to the state documenting that they have met goals for collection and recycling. All electronics manufacturers must register with the state by January 1, 2011, and pay a $5,000 registration fee.

The new law, which preempts a New York City e-waste recycling law, covers televisions, VCRs, DVD and MP3 players, game consoles, fax machines, and computers and their peripherals such as monitors, keyboards, mice, scanners and printers.

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This post was written by Lou Naugle, Chris Rissetto and  David Wagner .

Almost 10 years after the United States committed in an international agreement to strengthen its hazardous waste regulations, the U.S. Environmental Protection Agency (EPA) issued a final rule that governs the shipping of hazardous waste between the United States and other countries. Details on the new rule can be found in The Sentinel, Reed Smith's quarterly newsletter that discusses export, customs and trade developments.

According to EPA, the new measures will increase regulatory oversight of the international shipping of hazardous waste and provide stricter controls. The final rule, which will be effective on July 10, 2010, is also designed to make international shipment regulations under the Resource Conservation and Recovery Act more consistent with those of the Organization for Economic Cooperation and Development (OECD), a consortium of 31 Member countries that includes the United States. Key changes to the rules include:

• Modifying the requirements concerning international shipment of hazardous waste destined for recovery among OECD countries;
• Establishing notice and consent requirements for SLABs intended for reclamation in another country;
• Changing the hazardous waste import-related requirements for U.S. hazardous waste management facilities to confirm that individual import shipments comply with the terms of EPA’s consent; and
• Revising the EPA address to which exception reports concerning hazardous waste exports are to be sent.

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This post was written by Steve Nolan and Lou Naugle.

On May 4, 2009, in Burlington Northern & Santa Fe Railway Co. v. United States, the Supreme Court addressed two issues under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq. (CERCLA), which it had never reached before. The first issue was the reach of the useful product defense, which has been generally recognized in principle by the lower courts. The second was the question of what showing is required of defendants to avoid joint and several liability that, for more than 25 years, the lower federal courts have imposed almost as a matter of course.

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This post was written by Indeg Kerr and Siobhan Hayes.

In the UK, the High Court issued judgment at the end of March in the civil litigation to decide on liability following the 2005 explosion at the Buncefield oil storage depot. The judgment raises a number of practical management issues to be considered by anyone operating a facility covered by the Control of Major Accident Hazards Regulations 1999 (COMAH) or simply managing hazardous substances in significant quantities. This article provides an overview of the judgment and outlines significant issues to consider.

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This post was written by David Wagner.

The UK's Department for Business Enterprise and Regulatory Reform (BERR) published a consultation on April 7 soliciting public comment on European Commission proposals to revise the WEEE and RoHS Directives. The consultation paper highlights the significant changes and poses questions for industry and others to address. Among other revisions, the proposal would establish under WEEE new collection targets for Member States and new targets for recovery and reuse/recycling. The proposal would also likely increase WEEE financing costs for producers. The proposed revisions to RoHS would include the possible review and restriction of four substances, specifically: hexabromocyclododecane (HBCDD); bis (2-ethylhexyl) phthalate (DEHP); butyl benzyl phthalate (BBP); and dibutylphthalate (DBP). Consultation responses (i.e., public comments) are due May 13, 2009.

The WEEE Directive (or Directive on Waste Electrical and Electronic Equipment) aims to minimize the environmental impact of electrical and electronic equipment by encouraging its reuse, recycling and recovery when it is discarded at end of life. The RoHS Directive (or the Restriction on the use of certain Hazardous Substances Directive) ensures that all Member States observe similar restrictions on the levels of six hazardous substances in the same categories of electrical and electronic equipment.
 

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 This post was written by David Weiss and Megan Demeter.

On March 9, 2009, the California Supreme Court issued its decision in State of California v. Allstate Insurance Co., Case No. S149988. In this unanimous decision, the Court resolved several issues in favor of the policyholder regarding the application of pollution exclusion provisions in the State’s comprehensive general liability insurance policies. The case arises out of the State of California’s liability for environmental contamination at the “Stringfellow Acid Pits” a state designed and operated waste disposal facility in Riverside County, California.

First, the Court addressed the relevant “discharge” for determining whether the “sudden and accidental” exception to the pollution exclusion applied and, therefore, reinstated coverage that otherwise would have been excluded. The contamination at issue was caused by the escape into the environment of pollutants that had been placed into containment ponds on the site. The Court affirmed the Court of Appeal’s decision that the relevant discharge for purposes of determining whether the discharge was “sudden and accidental” is the release of waste from the containment ponds rather than the initial disposal of waste into the ponds as the insurers argued. 

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This post was written by Louis A. Naugle and Mark A. Mustian.

A few months ago, EPA began a process toward possible regulation of the disposal of unused pharmaceuticals into sanitary sewer systems, by publishing notice of its intent to submit an Information Collection Request in order to better understand and document the current handling and disposal practices of unused pharmaceuticals. See, 73 FR 46903 (Aug. 12, 2008). Just last week, EPA announced a separate but related proposed rulemaking, in which EPA is proposing changes to the handling and disposal of unused pharmaceuticals that are currently classified and handled as hazardous waste (the “Unused Pharmaceuticals Rulemaking”). In this proposed Unused Pharmaceuticals Rulemaking, EPA plans to add pharmaceutical wastes that are RCRA hazardous waste to the list of materials that are classified as universal wastes. See, 73 FR 73519. This proposed change will potentially reduce costs for facilities that currently dispose of their unused pharmaceuticals as RCRA hazardous waste. The impact of EPA’s overall efforts to regulate the large and unknown volume of pharmaceutical waste not currently handled as hazardous waste is unclear.

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This post was written by Louis A. Naugle and Mark A. Mustian.

On Aug. 12, 2008, EPA announced its intention to submit an Information Collection Request (“ICR”) to the Office of Management and Budget, for collection of information from the Health Services Industry. 73 FR 46903 This ICR is the first step by EPA toward possible regulation of the disposal of unused pharmaceuticals, and the implementation of effluent limitations for disposal of unused pharmaceuticals to sanitary sewer systems. 

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