Waste

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I.  General Background

On December 17, 2024, the Railroad Commission of Texas (RRC) adopted new comprehensive regulations governing the handling, storage, treatment, and disposal of oil and gas waste. The rules were published January 3, 2025, in the Texas Register and become effective on July 1, 2025. They codify formerly informal guidance and ad hoc permitting practices and also update existing oil and gas waste regulations to align with technological advancements.

In what should be welcome news to industry and others who generate hazardous waste in California (including contaminated soil), the California Environmental Protection Agency (CalEPA), through the Department of Toxic Substances Control (DTSC), released a Draft Hazardous Waste Management Plan: A Modern Approach to a Circular Economy (Plan) on March 15. As provided in the Plan, DTSC proposes to potentially simplify the characterization of hazardous waste, provide for alternative management standards for certain hazardous wastes, and adopt certain existing U.S. EPA recycling exemptions and exclusions.

What Happened

On Monday, October 14, 2024, the California Department of Resources Recycling and Recovery (CalRecyle) opened a public comment period on changes to the previously proposed regulations implementing the Plastic Pollution Prevention and Packaging Producer Responsibility Act (Act). The 15-day written comment period runs through Tuesday, October 29, 2024.…

On July 20, the New York State Department of Environmental Conservation (NYSDEC) sent a letter to Brownfield Cleanup Program (BCP) applicants, consultants, and attorneys that provides an update regarding 2023 Certificate of Completion (COC) milestones and affordable housing deadlines. With respect to BCP submittals, the letter emphasizes the importance of applicants making the submittals necessary to obtain COCs in a timely manner, and warns that failure to do so could result in insufficient time for the NYSDEC to issue COCs by the end of the year. Pursuant to the letter, applicants must meet the following milestones:

EPA announced yesterday its intent to revise some portions of the 2020 Steam Electric Effluent Limitation Guideline Reconsideration Rule (2020 ELG Rule). EPA’s press release and the pre-publication version of its Federal Register notice sent a clear message that the agency is aiming at membrane technology to control flue gas desulfurization (FGD) wastewater discharges from coal-fired power plants. The notice also states that the agency will reconsider the technology selected for bottom ash transport, and it may revise or eliminate the subcategories created by the 2020 ELG Rule for high-flow facilities, low-utilization facilities, and for facilities that commit to retire or repower coal-fired units by 2028.

On January 8, the California Office of Environmental Health Hazard Assessment (OEHHA) proposed to amend the short-form warning regulations under the Safe Drinking Water and Toxic Enforcement Act of 1986, commonly known as Proposition 65. In August 2018, new Proposition 65 warning regulations became effective that significantly changed the required language and manner in which Proposition 65 warnings should be provided. Most significant was the new requirement to specifically list at least one chemical that a consumer could be exposed to in the warning. These regulations, however, provided an alternative warning option — dubbed the “short-form” warning — which does not require the identification of any chemicals in the warning. While OEHHA originally may have intended the use of the short-form warning only on products where space was limited, the actual terms of the regulation do not prohibit the use on products where space is not an issue.

In light of the potential for distribution of the vaccine, employers are revisiting their plans for return to work and the many challenges that office re-openings might bring, including the requirement that employees wear personal protective equipment (PPE), such as masks and gloves, and the disposal of such equipment. Most companies (non-health care or COVID-19 treatment facilities) generally assume that masks and gloves are simply solid waste and can go in dumpsters per Occupational Safety and Health Administration (OSHA) and Center for Disease Control (CDC) guidelines. While this designation may be appropriate (based on the state and local requirements), however, it is prudent for even non-health-care-related employers to have a plan in place to maintain a clean workplace and manage PPE disposal procedures if an employee exhibits COVID-19 symptoms. Moreover, many workplaces are contemplating the potential of offering COVID-19 testing and vaccination on-site, and employers interested in offering such services should be mindful of the potential for more stringent waste disposal requirements for used PPE. As you might expect, there are no straight-forward answers with the new phenomenon of PPE and COVID-19 as the federal Medical Waste Tracking Act of 1988 expired in 1991. Whether PPE is a medical waste will generally depend on a state’s rules and may depend on an employer’s knowledge about the potential for COVID-19 exposure.

Environmental justice has received greater attention in 2020, both because it is an election year, but also because of the increased focus on racial inequality since the killing of George Floyd in May 2020. Many states are considering legislation on this topic, but on August 27, 2020, New Jersey passed a significant environmental justice bill, the first to require denial of a permit on environmental justice ground.