EPA’s Recycling Restrictions Overturned by Court

July 11, 2017

When EPA redefined the definition of solid waste in 2015 to encourage recycling of hazardous secondary materials, the Agency established regulations to ensure that these materials were legitimately recycled.  Four factors had to have been met to demonstrate legitimacy, 1) the hazardous secondary material must provide a useful contribution to the recycling process, 2) the recycling process must produce a valuable product or intermediate, 3) the persons controlling the secondary material must manage the hazardous secondary material as a valuable commodity, and 4) the product of the recycling process must be comparable to a legitimate product or intermediate. The American Petroleum Institute sued EPA to remove factors 3 and 4 because it the Agency was unlawfully regulating non-discarded materials. In a July 7, 2017 decision, the Court of Appeals for the District of Columbia Circuit agreed with API regarding factor 4, and ordered EPA to remove it from the hazardous secondary material legitimacy test.

The court also is requiring EPA to modify the requirements of the Verified Recycler option for off-site management of hazardous secondary materials, by reinstating the prior transfer-based requirements that applied before the 2015 solid waste revisions, while retaining the emergency preparedness requirements in the new Verified Recycler rule.

EPA Rollback of Methane Pollution Protections Invalidated by Court

A federal court struck down an EPA attempt to suspend critical protections against leaks of methane and other dangerous air pollution from oil and gas operations. The 2-1 ruling by the D.C. Circuit Court of Appeals here resulted from the first lawsuit filed by the Natural Resources Defense Council and others against the EPA over of its attempts to undo federal efforts to fight climate change.

EPA Biofuels Mandate for 2018

The EPA recently signed a proposed rule setting the minimum amount of renewable fuels that must be supplied to the market in calendar year 2018 under the Renewable Fuel Standards (RFS) program.  The action proposes volume requirements and associated percentage standards that maintain renewable fuel volumes at levels comparable to the 2017 standards.

The levels of renewable fuels proposed for 2018 are slightly lower than those required in 2017, but are 25% lower than the target Congress established in 2007. The EPA says the proposed numbers are based on market realities though the National Biodiesel Board believes the proposal underestimates their ability to meet demand. The oil and gas industry has long opposed blending renewable fuels.

Some key elements of the recent action:

·         Non-advanced or conventional renewable fuel volumes are maintained at the 15-billion gallon target set by Congress.

·         The biomass-based diesel standard for 2019 would be maintained at the 2018 levels of 2.1 billion gallons.

·         EPA is beginning technical analysis that will inform a future rule to reset the statutory volumes for cellulosic, advanced, and total biofuels. The law requires this reset when certain conditions are met.

Proposed and Final Renewable Fuel Volume Requirements for 2014-2019



Proposed 2018

Proposed 2019

Cellulosic biofuel (million gallons):




Biomass-based diesel (billion gallons):




Advanced biofuel (billion gallons):




Renewable fuel (billion gallons):




*Biomass-based diesel standard is final for 2018.

Coalition of Attorneys General Challenges EPA over Chlorpyrifos

A coalition of six Attorneys General is taking legal action against the Trump administration over a toxic pesticide shown to harm children’s neurological development.

The Attorneys General moved to intervene in a lawsuit against the EPA in the Ninth Circuit Court of Appeals, after filing their own legal objections with the EPA last month. In March 2017, EPA Administrator Scott Pruitt took action that allowed the continued use of chlorpyrifos on food crops even while the agency failed to identify a safe level for the pesticide. Chlorpyrifos is widely used, including on fruits and vegetables consumed by millions of Americans, and is shown to negatively impact proper development and functioning of the central nervous system and brain.

“The EPA’s first responsibility is to protect the health and safety of Americans,” said Maryland Attorney General Frosh. “Chlorpyrifos is a special threat to infants, children and pregnant women. Despite its own finding that use of the chemical does not meet the Food Act’s safety standard, Scott Pruitt’s EPA jeopardizes the health of millions of citizens who are exposed to unsafe chlorpyrifos residues.”

The Attorneys General charge that the EPA failed to make a key safety finding needed to continue to allow levels of chlorpyrifos on fruits and vegetables consumed by the public. They are seeking to intervene in League of United Latin American Citizens et al v. Pruitt, in which environmental, human health, and farmworker groups are asking the Court to find that the EPA cannot lawfully continue to allow chlorpyrifos “tolerances”—or permitted residues—on food without finding that they are safe.

In 2014, two members of the group sought help from the Court to compel the EPA to take final action on their petition to revoke all chlorpyrifos tolerances and eliminate its use on food. In November 2015, the Agency proposed a revocation of all chlorpyrifos tolerances on food, finding that it was unable to conclude that the risk from aggregate exposure meets the applicable safety standard under the Federal Food, Drug and Cosmetic Act (Food Act). In December 2015, the Court directed EPA to take final action by the end of 2016; in November 2016, the EPA issued a second notice related to the proposed rule, again noting that the use of chlorpyrifos on food continues to present a risk that does not meet the Food Act’s safety standard.

In an abrupt change of position, on March 29, 2017, EPA Administrator Scott Pruitt issued an administrative order denying the 2007 petition by the non-governmental organizations, and blocked the proposed rule revoking chlorpyrifos tolerances. Although EPA’s order left food tolerances in effect, the agency failed to make a key safety finding under the Food Act. The Food Act requires EPA to leave tolerances in effect only if it finds them to be safe, and to revoke tolerances if the Agency is unable to determine that the levels are safe. Administrator Pruitt’s March 2017 order puts off until October 2022, if not longer, any decision on whether to revoke or modify current residues or tolerances for the pesticide.

In June 2017, the coalition of non-government organizations challenged the EPA Administrator’s order in the Ninth Circuit Court of Appeals in Seattle. The Attorneys General are seeking to intervene in that case, and also have filed legal objections with EPA directly, arguing that the Administrator’s order leaving in place current chlorpyrifos residues on food violates the Food Act because they have not been found safe.

Chlorpyrifos is one of the most widely used insecticides in the United States. It is used on numerous food crops, including those consumed by infants and young children such as apples, strawberries, bananas, pears, peaches, nectarines, and cherries. Residues of the pesticide have been repeatedly documented in baby foods and juices. The USDA’s Pesticide Data Program shows that detection of chlorpyrifos residues is common on many foods. For example, residues were found on over 42% of almonds sampled in 2007 and 2008 (the only two years almonds were tested).

The pesticide acts by inhibiting an enzyme that is key to the proper development and functioning of the central nervous system and brain. Several studies have shown that children born to women exposed to chlorpyrifos during pregnancy had cognitive and motor development delays in the first three years, and structural changes in the brain, lower working memory and IQ scores at age seven, and movement disorders (including arm tremors) by age 11.

Chlorpyrifos has been subjected to regulatory review for nearly 20 years, and its toxic harms are well-documented. Most recently, EPA’s own scientists twice were unable to identify a safe level for the pesticide on food.

The motion to intervene includes Attorneys General from Maryland, Massachusetts, New York, Vermont, Washington, and the District of Columbia.

A Guide to Pollution Prevention Planning in Texas

This guide details the steps in the pollution prevention planning process for Texas facilities that must comply under the Waste Reduction Policy Act—small and large quantity generators and those who report on the Toxics Release Inventory Form R. 

Marina PDR Operations Fined $77,500 for Stormwater Violations

The EPA recently announced that it reached an agreement with Marina PDR Operations, LLC, resolving its alleged failure to apply for and obtain coverage under the 2008 National Pollutant Discharge Elimination System (NPDES) Multi-Sector General Permit for its discharges of stormwater runoff from the Marina Puerto Del Rey (Marina PDR) into the Caribbean Sea. The company agreed to pay a civil penalty of $77,500.

“The EPA is working to reduce the amount of pollution entering water bodies,” said Acting EPA Regional Administrator Catherine McCabe. “Complying with stormwater regulations helps to protect receiving bodies of water, like the Emajagua River, that eventually discharges into the Caribbean, thus protecting coral and marine habitats.”

Marina PDR is a facility that offers mainly storage and maintenance services for boats, including painting and repairs to hulls, fiberglass, and engines. Prior to the settlement announced recently, EPA brought Marina PDR Operations into compliance with stormwater runoff limits by issuing an Administrative Compliance Order to the company. The order required the company to obtain coverage under the 2015 NPDES Multi-Sector General Permit for its stormwater runoff associated with activities from Marina Puerto Del Rey. By complying with the general permit, the company reduced pollutants going into the Caribbean Sea, including an estimated pollutant reduction per year of 6,519 lb of total suspended solids, 190 lb of aluminum, and 815 lb of iron found in sediments and runoff from activities generated at the marina.

Under the federal Clean Water Act, NPDES requires that certain industrial facilities, including marinas, have controls in place to minimize pollutants from entering nearby waterways through stormwater runoff. Without adequate preventative measures, stormwater can flow over these sites and pick up pollutants, including sediment, oil, and grease. The polluted stormwater runoff can flow directly to the nearest waterway and can cause water quality impairments such as siltation of rivers, beach closings, and fishing restrictions. In Puerto Rico, polluted runoff could also cause habitat degradation to coral reef ecosystems.

Businesses Cited for Selling Toxic Jewelry

The California Department of Toxic Substances Control (DTSC) is pursuing enforcement actions against 11 retailers and suppliers for allegedly selling costume jewelry for children and adults containing dangerous levels of lead and cadmium. Some of the items had labels falsely claiming to be “Lead Free” or “Lead Compliant.”

DTSC’s Office of Criminal Investigations removed the toxic jewelry during inspections earlier this year at eight retail stores in Oakland and three wholesale suppliers in downtown Los Angeles. Consumers are urged to discard or return the items, which include hair accessories, necklaces and bracelets. Photos of the jewelry and the names of the stores where they were found can be viewed here.

“California has laws restricting lead and cadmium content in jewelry, but the manufacture and distribution of these noncompliant items continues to be a problem,” said Hansen Pang, OCI Chief Investigator. “DTSC will continue to work to keep toxic jewelry, particularly the children’s variety, out of the marketplace.”

DTSC issued Notices of Violation against all 11 businesses and is in the process of distributing fact sheets to retailers in Oakland to educate them about state requirements. State law prohibits the sale of jewelry with excessive lead and cadmium, and requires retailers to obtain certification from suppliers that jewelry is in compliance. Failure to comply may result in penalties up to $2,500 a day for each violation.

Parts of the children’s jewelry contained up to 96% lead, which far exceeds legal limits of either 0.06% or 0.02%, depending upon the jewelry material. Up to 99% cadmium was found in parts of the children’s jewelry, which exceeds the 0.03% legal limit.

Exposure to lead can cause serious health problems, especially in children, ranging from behavioral problems and learning disabilities to organ failure and even death. Cadmium is a known carcinogen, and chronic cadmium exposure can lead to kidney damage, bone loss, and death.

The recent inspections were conducted as part of an initiative by the California Environmental Protection Agency’s Environmental Justice Task Force to investigate and address environmental concerns in Oakland. The task force conducts multi-agency compliance and enforcement initiatives in environmentally burdened communities throughout the state.

In 2013 and 2015, DTSC obtained settlements and judgments totaling more than $575,000 against companies in Southern California that distributed jewelry containing high concentrations of lead. The fines stemmed from a 2012 lawsuit by DTSC and the California Attorney General’s Office.

California’s Metal-Containing Jewelry Law prohibits the manufacture, shipping, sale, or offering for promotional purposes jewelry that contains excessive amounts of lead or cadmium. Retailers are required to obtain certifications from suppliers that all jewelry and its components are in compliance with the law; suppliers are required to have documentation showing jewelry items sold in California are in compliance with the law.

These enforcement actions, as well as other results of the CalEPA Environmental Justice Task Force, will be discussed at upcoming community meetings in Oakland on July 13 and 20, 2017. More information about these meetings is available here.

Click here for Frequently Asked Questions.

TCEQ Approves Fines Totaling $875,769

The Texas Commission on Environmental Quality has approved penalties totaling $727,287 against 49 regulated entities for violations of state environmental regulations.

Agreed orders were issued for the following enforcement categories: seven air quality, one industrial hazardous waste, three industrial wastewater discharge, two municipal solid waste, seven municipal wastewater discharge, nine petroleum storage tank, 16 public water system, three water quality, and one waste disposal well.

Default orders were issued for the following enforcement categories: one air quality, two municipal solid waste, and two petroleum storage tank. Included in the total are fines of $142,979 against Exxon Mobil Corporation in Kleberg County for air emissions violations in 2008 through 2014. Of the total, as part of a Supplemental Environmental Project, $57,192 will be paid to the Texas PTA for the Texas Clean School Bus Replacement Program, to replace older diesel buses with newer buses that meet more stringent emissions standards.

On June 20, the TCEQ Executive Director also approved a total of 50 penalties, totaling $148,482.

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