In 2024, creating a circular economy continued, with an emphasis on recycling, as discussed in this Chapter last year in greater detail. Keeping with this concept, certain states, such as Oregon and Illinois, either passed or had rules, regulations, and/or policies regarding recycling become effective throughout the year of 2024. States also began incorporating other industries into these recycling policies and regulations, such as the garment and textile industry.
On May 8, 2024, the Environmental Protection Agency (EPA) published a final rule establishing regulatory requirements for legacy coal combustion residuals (CCR) surface impoundments and “for CCR management units at active CCR facilities and at inactive CCR facilities with a legacy CCR surface impoundment.” This final rule (the Legacy Final Rule) was promulgated pursuant to the EPAs authority under subsection D of the Resource Conservation & Recovery Act (RCRA), providing amended regulations and requirements regarding the disposal of CCRs.
The Legacy Final Rule was in response to the United States Court of Appeals for the D.C. Circuit’s holdings in Utility Solid Waste Activities Group v. Environmental Protection Agency (referred to as USWAG). The court vacated and remanded certain CCR exemptions back to the EPA that had been addressed as part of a 2015 final rule by the EPA, where the EPA had promulgated minimum criteria related to CCRs. More detail regarding the court’s opinion and the background leading up to the Legacy Final Rule can be found in this Chapter in the 2023 and 2022 publications of The Year in Review.
On November 8, 2024, a final rule was published by the EPA making corrections to the Legacy Final Rule published on May 8, 2024. The corrections made clear that the effective date of the Legacy Final Rule was November 8, 2024, not November 4, 2024, as was previously published, and fixed inadvertent deletions from the existing regulatory provisions made effective in 2015. These corrections to the Legacy Final Rule became effective on February 6, 2025, as it appears no adverse comment was received by the EPA prior to December 9, 2024.
In Electric Energy, Inc. v. EPA, issues related to the 2015 final rule governing CCRs were again brought before the United States Court of Appeals for the D.C. Circuit. However, in this matter, the court ultimately determined that it did not have jurisdiction over the issues brought forth by the parties and subsequently dismissed the parties’ petitions.
This matter was brought forth by a group of petitioners that consisted of companies and facilities, including owners and operators of CCR disposal sites. Many of the petitioners were subject to closure requirements set forth in the EPA’s 2015 final rule governing the disposal of CCRs. Specifically, the 2015 rule provided,
[A]mong other things, restrictions on the location of coal residual units; requirements pertaining to lining of coal residual units, their structural integrity and relation to groundwater; and criteria for recycling coal residuals for beneficial uses, such as by substituting it for cement in road construction. See 40 C.F.R. §§ 257.60-74. And the Rule also indicates that a coal residual unit is considered an “open dump”—and therefore must be retrofitted or closed—when “groundwater sampling . . . reveals an excess of [c]oal [r]esidual constituents in the water table.”
Regarding closure, the rule provided related deadlines, as well as the potential for an extension of those deadlines if particular requirements were met and approved by the EPA. While the EPA was determining whether to grant or deny a party’s request for an extension, a tolling of the deadlines may be enacted, and if the request was granted, the EPA would then set new deadlines for that party.
Ultimately, multiple companies, including the petitioners filed requests for extensions. Of relevance, for those requests denied, the EPA provided reasons for the denials and referenced some of the reasonings for the denials in a later press release and letters to other petitioners. This resulted in the filing of two cases that were consolidated where the petitioners alleged the EPA violated the Administrative Procedure Act (APA) and RCRA because the petitioners alleged the denials, press release, and letters culminated in either a legislative rule or a legally binding amendment to the 2015 rule, and either had occurred without the requisite notice-and-comment rulemaking procedures.
The Court began and ended its analysis on jurisdictional grounds because the petitioners had sought review under RCRA. The D.C. Circuit held that RCRA provided it “with original [and] exclusive jurisdiction over ‘petition[s] for review of action of the Administrator in promulgating any regulation, or requirement under this chapter or denying any petition for the promulgation, amendment or repeal of any regulation.’” The court began its analysis by reviewing whether the EPA’s press release, letters, and reasons constituted a legislative rule or amendment to the existing 2015 rule. The petitioners alleged such had occurred through the announcement of “a new prohibition on closing coal residual units with waste in contact with groundwater” and through the expansion of “the types of waste storage units and practices subject to the coal residuals regulations.”
The court determined that there was not a new regulation or amendment implemented because obligations regarding groundwater in relation to closure had already existed in the 2015 rule. Further, the court held that the reasoning in the EPA’s denials did not constitute a rule or amendment to provide it with jurisdiction because these reasonings were adjudications that provided clarification and further insight into interpretation of the existing regulations. Thus, the court found that it did not have jurisdiction under RCRA, and any petition on a denial from the EPA would have to go through the normal appeal procedures beginning with a challenge filed in the appropriate district court for review.
On June 13, 2024, the EPA published a final rule listing acceptable alternatives and substitutes, based on their use conditions, for commercial and/or industrial-related refrigeration. The EPA incorporated “by reference standards which establish requirements for commercial refrigerating appliances and commercial ice machines, safe use of flammable refrigerants, and safe design, construction, installation, and operation of refrigeration systems,” which could also include obligations from RCRA and/or other regulations that could be implicated by the manufacture, use, handling, and/or disposal of the listed alternatives and substitutes. This final rule was effective on July 15, 2024.
On July 26, 2024, the EPA published a final rule regarding amendments and corrections to hazardous waste manifest and electronic manifest (“e-Manifest”) regulations under RCRA. These amendments include, but are not limited to, requirements for the submission of export manifests to the EPA’s e-Manifest system by “hazardous waste exporters of manifested hazardous waste shipments out of the U.S.,” the linking of RCRA manifest tracking for export and import shipments to movement document confirmations, the finalization for changes to the Toxic Substance Control Act (TSCA) manifest regulations to align with RCRA manifest and e-Manifest regulations regarding polychlorinated biphenyls (PCB) wastes, and more. This final rule became effective on January 22, 2025. However, due to electronic system updates associated with implementation of certain regulations, some regulations may not fully go into effect until as late as around December 1, 2025. Such effective dates for affected regulations are specifically noted therein.
On October 11, 2024, the EPA published a final rule regarding the management of certain hydrofluorocarbons (HFCs) and substitutes. The focus of the rule was on “establishing certain regulations for HFCs and their substitutes for the purposes of maximizing reclaiming and minimizing releases of HFCs from equipment and ensuring the safety of technicians and consumers.” Two separate sets of regulations were established.
The first set of regulations were established under subsection (h) of the American Innovation and Manufacturing Act of 2020. These regulations created the Emissions Reduction and Reclamation Program that manages HFCs and certain substitutes, providing requirements for, but not limited to, the following: (1) “[l]eak repair of appliances that contain at least 15 pounds of a refrigerant that contains an HFC or a substitute for an HFC with a global warming potential (GWP) above 53, with specific exceptions;” (2) “[a] reclamation standard limiting the amount of virgin HFCs that can be contained in reclaimed HFC refrigerants;” (3) “[t]he servicing, repair, disposal, or installation of fire suppression equipment that contains HFCs, with the purpose of minimizing the release of HFCs from that equipment;” (4) “[r]emoval of HFCs from disposable cylinders before discarding; and” (5) labeling, reporting, and recordkeeping.
Separate from this first set of regulations, the second set established alternative standards under RCRA “for ignitable spent refrigerants when ‘recycled for reuse.’” These second set of standards apply and are limited to:
HFCs and other substitutes that are lower flammability . . . because of the lower risk of fire from the collection and recycling for reuse of these refrigerants, and the greater market value of these refrigerants, which support[ed] the [EPA’s] conclusion that these spent refrigerants w[ould] be recycled for reuse and not stockpiled, mismanaged, or abandoned.
This final rule was effective on December 10, 2024.
On December 11, 2024, the EPA published a final rule addressing and finalizing five out of eight previously withdrawn amendments from a direct final rule published in August 2023. These five amendments addressed make final technical corrections to existing rules, including the Hazardous Waste Generator Improvements Rule, the Hazardous Waste Pharmaceuticals Rule, and the Definition of Solid Waste Rule. The technical corrections consist of, but are not limited to, corrections to incorrect and outdated relevant citations, clarifications regarding acute hazardous waste accumulation limits, and clarifications regarding the application of regulations when closing a waste accumulation unit, as opposed to the closing of all units, and so forth. The five final amendments went into effect on February 10, 2025.
In 2024, the United States Court of Appeals for the Sixth Circuit issued an opinion permitting the plaintiff, StarLink Logistic, Inc. (StarLink), to proceed on certain claims against the defendant, ACC, LLC (ACC), for alleged violations of the Clean Water Act (CWA) and RCRA. In relation to RCRA, StarLink was permitted “to seek remediation of its property” arising out of its claim that ACC violated RCRA by “managing solid waste in a manner that ‘present[ed] an imminent and substantial endangerment to health or the environment.’”
The appeal arose out of the United States District Court for the Middle District of Tennessee’s “dismissal of some of [StarLink’s] claims for lack of jurisdiction and the district court’s grant of summary judgment to Defendant ACC . . . as to [StarLink’s] remaining claims.” The primary issue on appeal was whether a 2012 consent order that approved remedial measures addressing pollution effects from ACC’s closed landfill precluded StarLink from proceeding on its claims against ACC.
The Sixth Circuit held that the 2012 consent order did not preclude StarLink from seeking remediation of its property under RCRA because remedial measures to StarLink were not available and could not have been addressed through the consent order and related proceedings. Specifically, the Sixth Circuit determined that the Tennessee Department of Environment and Conservation did not have authority to provide remedial relief to private parties, such as StarLink. Thus, the Tennessee state courts did not have jurisdiction to modify the consent order because the department was “acting within its scope of authority by not ordering remediation.” Finally, because remedial measures for StarLink could not be addressed through the consent order, permitting StarLink to proceed under RCRA for remediation of its property would not second-guess the 2012 consent order insofar as remediation would not have been available to StarLink otherwise. For these reasons, the Sixth Circuit held that StarLink was permitted to seek remediation for its property under RCRA, even though a consent order existed and had been approved between ACC and the department addressing pollution effects from ACC’s closed landfill.
In Santa Clarita Valley Water Agency v. Whittaker Corporation, the United States Court of Appeals for the Ninth Circuit addressed issues related to a jury trial on certain claims, and issues arising from a bench trial for claims under RCRA and the Comprehensive Environmental Response, Compensation, & Liability Act (CERCLA). In relation to the RCRA claim, the plaintiff, Santa Clarita Valley Water Agency (SCVWA), requested the court for injunctive relief related to pollution on the defendant, the Whittaker Corporation’s (Whittaker), property. Whittaker had previously produced munitions and explosives on its property, which it had acquired from a different company that had also produced munitions and explosives. Both companies had improperly disposed of waste over the years of ownership through “practices such as dumping the chemicals onto the ground and burying them under the ground.” This caused contamination of the soil and groundwater under the property, which investigations and testing showed had migrated in the groundwater pathways, leading to further contamination away from the property site.
SCVWA brought a RCRA claim against Whittaker for injunctive relief “to require Whittaker to install groundwater monitoring wells off-site, to investigate the extent of perchlorate and VOC plumes migrating from Whittaker’s site, and to delineate the extent of the plumes.” The district court denied SCVWA’s claim because it found that many efforts had been and were being implemented to clean up Whittaker’s site, which mitigated any imminent and substantial endangerment under RCRA. The Ninth Circuit affirmed the district court’s decision, agreeing that extensive government oversight had occurred for Whittaker’s site, alleviating the threat of imminent and substantial endangerment. The court found that California’s Department of Toxic Substance Control entered a remediation order against Whittaker around 2002 and Whittaker had engaged in removing toxic substances and installing over two hundred monitoring wells to comply with that order. The court also determined that approval had been made for the completion of remediation of one unit on the site, which encompassed groundwater contamination of the site in the consideration. Thus, the Ninth Circuit determined that it did not need to take action in excess of the actions that were already taken and presently ongoing for the remediation and affirmed the dismissal of SCVWA’s claim under RCRA.
In Wai Ola Alliance v. United States Department of the Navy, the United States District Court for the District of Hawai’i addressed the defendant, the U.S. Department of the Navy’s (Navy), motion to dismiss the Wai Ola Alliance’s (WOA) claims, for alleged violations of RCRA and the CWA. WOA alleged violations of RCRA and the CWA had occurred through the contamination of a fresh-water aquifer by petroleum-based fuels that had spilled, leaked, released, or discharged through the Navy’s underground storage tanks and connected pipelines. The court took judicial notice that an emergency order had been issued regarding releases from the underground storage tanks around May 6, 2022, and that a consent order had been issued by the EPA around June 2, 2023, requiring “the Navy to submit to U.S. EPA monitoring, defueling, and closure plans, according to specifications included in an attached ‘Statement of Work.’” However, the court also noted that the consent order did not contain any requirements for remediation of the aquifer, which was part of the relief requested by WOA.
Ultimately, the court performed an analysis regarding jurisdiction. It determined that to the extent WOA’s claims were being addressed by the emergency order and the consent order, a stay on the claims was appropriate for the time being, and thus, the court granted a stay on those items for one year. The court determined this was the appropriate remedy, so as to permit WOA to proceed if the issues alleged by WOA were not remediated by the efforts made under the emergency and consent orders. As to the remaining allegations that were not addressed by the emergency and consent order, the court determined that the parties could proceed in litigation on those claims, effectively denying the Navy’s motion to dismiss.
In Lanfri v. Goodwill of Silicon Valley, the United States Court for the Northern District of California denied the defendant, Goodwill of Silicon Valley’s (Goodwill), motion to dismiss the plaintiff, Kevin Lanfri’s (Lanfri) claims brought under RCRA. Lanfri, who was the owner and operator of a laundry and drycleaning facility, had been under investigation by the Regional Water Quality Board (RWQB) for PCE contamination. In his complaint, Lanfri alleged that Goodwill was liable in part for the contamination that led to the RWQB’s investigation.
In Goodwill’s motion to dismiss, it argued that Lanfri failed to allege “imminent and substantial endangerment” under RCRA, and noted, that courts have granted summary judgment on RCRA claims when an agency is already fully addressing the contamination and “the plaintiff is unable to identify any additional efforts beyond what the agency is pursuing that would reduce the danger further.” However, the court found that the allegations in the complaint were sufficient to plead a claim under RCRA, noting that “substantial” did not require a quantification of endangerment. Further, the court held that “[t]he mere existence of the RWQCB remediation efforts does not establish that they will be sufficient or that the Court cannot offer Lanfri any further relief on [his] RCRA claim.” Thus, the court denied Goodwill’s motion and permitted the case to proceed.
In Millman v. RTX Corporation, the United States Court for the Northern District of Indiana denied the defendants, the RTX Corporation’s (RTX) and the L.D. Williams, Inc.’s (Williams), motion to dismiss the plaintiffs, Eric Powell and Laury Powell’s (Powells), and the Estate of Opal Millman’s (Estate), claims under RCRA based on alleged issues related to standing and redressability. First, like the previous case, the court noted that whether an agency was addressing the allegations of contamination did not necessarily preclude a plaintiff from proceeding on their claims under RCRA. Further, the court noted that whether or not the claim was ultimately viable was not an issue that would preclude a plaintiff from having standing. Second, the court addressed RTX’s arguments regarding redressability, by again noting that the involvement of an agency does not necessarily eliminate the availability of relief. Finally, the court addressed RTX’s arguments regarding lack of standing for an estate to pursue claims. Specifically, in this matter a claim under RCRA was being pursued against RTX by the Estate. The argument was made that the Estate should not be permitted to pursue a RCRA claim because the purpose of “RCRA is to ‘minimize the present and future threat to human health and the environment.’” While the court noted the appeal of such an argument, and that the issue was novel in its jurisdiction, it found that an estate was able to pursue a claim under RCRA in a United States District Court for the Central District of California. Relying on this case, and a lack of authority to the contrary from the defendants, the court permitted the Estate to proceed on its claim under RCRA.
In Bio Energy (Washington), LLC v. King County, Washington, the United States District Court for the Western District of Washington determined that the defendant, Bio Energy (Washington), LLC’s (BEW), “plant condensate” production was not excluded from the term “solid waste” under RCRA and similar state laws. At issue was whether the plant condensate fell into “the following exclusion from RCRA’s definition of solid waste: ‘Industrial wastewater discharges that are point-source discharges subject to regulation under section 402 of the [CWA].’” The court’s analysis reviewed whether the plant condensate was subject to regulation under the CWA. Ultimately, it determined that the plant condensate was not subject to the CWA, precluding it from falling into the RCRA exclusion. As such, the plant condensate was determined to be a solid waste subject to applicable regulations under RCRA.
