Waste

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In a victory for common sense, the North Carolina Court of Appeals rejected a landowner’s attempt to recover $1.4 million in damages for environmental cleanup costs for a property that would only have had a value of $108,500 in the absence of the contamination – given that the landowner had no legal obligation to clean up the contamination. BSK Enterprises, Inc. v. Beroth Oil Co., No. COA15-189 (N.C. Ct. App. March 2, 2016). The Court of Appeals concluded “where the cost of remediation greatly exceeds or is disproportionate to the diminution in value of the property, the measure of damages should be the diminution in value cause by the contamination.” The link to the opinion can be found here.

California’s environmental prosecutors have scrutinized hazardous waste management for several years now, particularly at major retailers.  This focus has led to California settlements with Costco, CVS, Home Depot, Lowe’s, Wal-Mart, and Walgreens, among other retailers.  The settlements resolved alleged mismanagement of hazardous waste generated from material such as consumer products, pharmaceuticals, and general home improvement products.

The basis of an effective Environmental, Health and Safety (EHS) program remains the strength of its management system and how thoroughly it is integrated into business practices. This year, Troutman Sanders is thrilled to be the presenting sponsor at the North Carolina Chamber Environmental Compliance Conference, which takes place next Thursday, January 28th in Durham, North Carolina. This conference is designed to provide employers with an in-depth understanding of current critical issues and practices related to the effective implementation of EHS programs as well as tools to navigate the regulatory landscape. Attendees will join expert panelists and top North Carolina Department of Environmental Quality (NCDEQ) officials in proactive discussions on pressing regulatory issues, legislation, policy decisions, and other initiatives on water, waste, air and natural resources that affect business. This conference provides NC DEQ officials with valuable feedback from the regulated community while providing businesses with an excellent forum on emerging environmental trends and issues.

In 2011, U.S. EPA issued guidance concluding that generators of p-listed pharmaceutical wastes did not need to count the weight of non-RCRA empty containers in determining their generator status. Instead, EPA determined that “it is only the residue in the non-RCRA empty container that is considered a p-listed hazardous waste; the container itself is not a hazardous waste.” Containers that Once Held P Listed Pharmaceuticals, November 4, 2011.  This EPA memo was long-awaited by retail pharmacies and other healthcare facilities, as it provided a mechanism to forego counting containers that previously held warfarin-family pharmaceuticals toward generator status.  This was particularly helpful, given that where a facility accumulates more than 1 kilogram (2.2 pounds) of acute hazardous waste at any one time, the facility is subject to stringent Large Quantity Generator of hazardous waste (LQG) regulations.  While such generators may still be subject to LQG requirements based on generation of other p-listed waste such as nicotine replacement therapy products, EPA’s November 4, 2011 memo significantly reduced the likelihood that retail pharmacies and other healthcare facilities would be subject to LQG regulation.

EPA recently announced it is centralizing its violation self-disclosure process in a new eDisclosure portal.  Through the portal, registered users will be able to disclose routine violation and their corrections to EPA.  The portal is based on EPA’s “Incentives for Self-Policing: Discovery, Disclosure, Correction and Prevention of Violations” policy issued in 2000 to encourage voluntary discovery, prompt disclosure and correction of violations by incentivizing the regulated community with potential penalty reductions for self-reporting.

Atlanta lawyer Karlie Webb recently authored an article for the winter edition of the State Bar of Georgia Environmental Law Section newsletter, “Perspectives” on the EPA’s sector-specific rules for hazardous waste pharmaceuticals. She discusses the proposed requirements and the impacts on healthcare facilities. To read the article, click here.

On Monday, August 31, 2015, EPA released a pre-publication version of a proposed rule revising RCRA’s hazardous waste generator regulations. EPA’s stated goals for the proposal are to improve compliance, address regulatory gaps, give hazardous waste generators greater flexibility, and make the regulations more user-friendly. This summary highlights some of the changes proposed by EPA.

For the better part of a decade, the regulated community, policymakers, and regulators have grappled with how best to manage hazardous waste pharmaceuticals.  On August 31, 2015, the curtain rose on a new era with the pre-publication of a new proposed standard for stemming the flood of pharmaceuticals entering our water supply and streamlining waste management practices to protect our nation’s drug supply.