Retailers Face Hazardous Waste Disposal Challenges in the Wake of Hurricane Harvey

In the wake of natural disasters, like Hurricane Harvey, many are quick to assess and analyze the effects of flooding and damage to Superfund toxic waste sites and from hazardous waste spills– understandably so. Many other sites, such as retail stores, were damaged by the extensive flooding caused by the hurricane.  Now many retailers and local businesses face challenges in disposing of their hazardous waste.  While Texas did provide some relief from some environmental rules to aide recovery efforts, federal hazardous waste disposal rules still apply.

Stores that were damaged by floodwaters or lost power for an extended period of time may have to dispose of numerous hazardous waste products, including household cleaners, pesticides, and certain beauty products. Similarly, medications and refrigerated pharmaceuticals—like insulin—may no longer be usable and must be properly disposed as hazardous waste.

EPA has not announced that it is relaxing waste management regulations because of the situation in Houston.  Therefore, the requirements for disposal of hazardous waste according to the Resource Conservation and Recovery Act (RCRA) are still in effect.  This means that if unuseable products qualify as hazardous waste, retailers can’t just throw out these materials in the trash. The store’s size and the volume of hazardous waste it handles will determine its status as a “generator” under RCRA.  Depending on the store’s status as a generator, certain containment, recordkeeping, and disposal requirements and restrictions apply. In some cases, that means cleanup efforts for contaminated retail sites may take a long time, and cost retailers a lot of money in hazardous waste disposal fees.

Some retailers are required to have emergency preparedness plans and provisions depending on their hazardous waste generator size.  It is prudent for those plans to address possible flooding as a result of naturals disasters, such as hurricanes.  For those retailers who are not required to conduct emergency preparedness planning under RCRA, it is imperative to do so as sound business practice.

Seventh Circuit Adopts Carcinogen Exposure Test

The Federal Court of Appeals for the Seventh Circuit recently joined the 6th and 9th Circuits in holding that a plaintiff seeking recovery for harm from carcinogen exposure must demonstrate that the exposure was a “substantial contributing factor” to the injury. The opinion notes that cancer causation “is dosage dependent—that is, the risk of contracting lung cancer from asbestos depends on the length of time of exposure and the amount of exposure. To determine whether any exposure constitutes a substantial contributing factor, therefore, one would have to understand the timing and amount of exposure.” The court rejected arguments that de minimis exposures are compensable, holding that the “any exposure” theory “ignored fundamental principles of toxicology that illnesses like cancer are dose dependent.” The court also rejected a cumulative exposure theory, under which “every minute of exposure adds to the cumulative exposure and thus becomes a substantial contributing factor,” finding that such an approach is “merely more of the same.”

While these are toxic tort cases, the opinions may be relevant to regulatory consideration of similar issues. For example, EPA must consider exposure in regulating new and existing products under the 2016 TSCA Amendments. Exposure also must be considered in making the “substantial risk” determination under TSCA Section 8(e). These opinions suggest that the courts will take a hard look at exposure data in these and other similar regulatory contexts. The case is Krik v. Exxon Mobile Corp., 7th Cir. No. 15-3112 (decided August 31, 2017).

EPA Defends “Exceptional Events” Rule

In pleadings recently filed with the Federal Court of Appeals for the D.C. Circuit, EPA has defended the “Exceptional Events” rule issued by the Obama Administration last October. The rule is designed to excuse exceedances of national ambient air quality standards (NAAQS) where they are caused by natural events such as wildfires or dust storms. It is particularly important in western states where such events occur frequently.

EPA revised the rule in response to state and industry complaints that the prior rule was overly cumbersome and unevenly applied. Various environmental groups challenged the new rule in the D.C. Circuit, arguing that it excuses some events that are caused at least in part by human activity, such as windblown dust from construction or mining activities. EPA counters that Congress did not define “natural event” in the relevant statute, and that the agency opted for a middle ground that covers events in which human activity plays little or no direct causal role. The agency also notes that the rule only allows the exclusion where” reasonable emission controls” have been adopted.

The exceptional events rule is likely to play a critical role in evaluating NAAQS exceedances caused by the recent hurricanes and western wildfires. Under EPA’s current interpretation, it cannot excuse violations of permit or SIP provisions, but it can be used to ensure that future SIP or permit provisions are not based on extreme conditions. Historically, the primary tool for excusing SIP or permit violations caused by natural disasters has been provisions that excuse violations caused by startup, shutdown or malfunction (SSM) conditions. But those protections have been eroded as a result of recent court decisions and related Obama Administration policies that the Trump Administration is now trying to revise. Much of the regulatory response to the recent disasters in the air quality arena will be shaped by the fate of the exceptional events and SSM rules, which will in turn be shaped by the occurrence of the disasters and the likelihood that we will continue to experience them.

Consumer Product Safety Commission to Regulate Non-Polymeric Organohalogen Flame Retardants

On September 20, 2017, the Consumer Product Safety Commission (CPSC or Commission) voted to regulate non-polymeric organohalogen flame retardants (OFRs).  With this vote, CPSC granted a petition from a group of NGOs to initiate rulemaking under the Federal Hazardous Substances Act (FHSA) to address hazards posed by the substances.  In addition, the Commission requested that manufacturers of children’s products, furniture, mattresses, and electronics casings immediately eliminate the use of OFRs.  The Commission also urged distributors and retailers to inquire about the existence of OFRs in their products.

The Commission noted that it has the authority to address products containing OFRs on a class-wide basis.  The Commission further noted that in order to determine that OFRs as a class constitute a “hazardous substance” under FHSA, CPSC need only determine that OFRs are toxic.  Under FHSA, a substance is toxic if it has the capacity to produce injury or illness through ingestion, inhalation, or absorption through any bodily surface, and may cause substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use of those products.

To address OFRs, CPSC will convene a Chronic Hazard Advisory Panel (CHAP) to assess and issue a report on the risks to consumers’ health and safety from the use of non-polymeric OFRs in the following products:

  • Durable infant and toddler products, children’s toys, child care articles and other children’s products;
  • Upholstered furniture sold for use in residences;
  • Mattresses and mattress pads; and
  • Plastic casings surrounding electronics.

The Commission also directed that a Guidance Document on Hazardous Additive, Non-Polymeric Organohalogen Flame Retardants be published in the Federal Register.  A prepublication draft of the Guidance has been released.

These actions by the CPSC come more than two years after Earthjustice and the Consumer Federation of America petitioned CPSC to adopt rules to protect consumers and children from the health hazards caused OFRs.  Groups joining the petition include the American Academy of Pediatrics, Consumers Union, and the International Association of Fire Fighters.

Clorox Sued for Deceptive Marketing Practices

A group of consumers recently sued Clorox for unjust, unfair, and deceptive practices in misrepresenting the environmental and other benefits of “Green Works” products in violation of California and New York law.  The complaint was filed in the U.S. District Court for the Northern District of California.  Plaintiff’s seek class action status.

The complaint alleges that Clorox has made false representations that Green Works products are naturally derived, environmentally sound, and safer alternatives to other cleaning products.  For example, the complaint asserts that the products contain unnatural and harmful chemical ingredients which are associated with skin irritation, allergic reactions, immune system toxicity, and aquatic toxicity.

The complaint includes a number of charges that Clorox has violated California and New York law.  The complaint alleges that Clorox has violated California’s Consumers Legal Remedies Act with unfair methods of competition and unfair and deceptive acts and practices by falsely representing that the Green Works products are naturally derived, green, environmentally sound, and relatively safe products compared to other cleaning products.  It alleges that Clorox has violated California’s Unfair Competition Law by engaging in unlawful, fraudulent, and unfair conduct; that “misleading marketing, advertising, packaging, and labeling of Products is likely to deceive reasonable consumers.”  In addition, the complaint alleges that Clorox has violated New York General Business Law through false advertising concerning the Green Works products.

Remedies sought by the plaintiffs include relabeling to remove representations that the products provide “natural” benefits and are environmentally sound and naturally derived.  In addition, the plaintiffs seek restitution and that Clorox disgorge all revenues obtained as a result of its unlawful, fraudulent, and unfair conduct.

New Prop 65 Regulations Become Operative on August 30, 2018

New consumer warnings will be required under California’s Prop 65 on August 30, 2018.  On September 2, 2016, California’s Office of Environmental Health Hazard Assessment (OEHHA) issued a final rule amending Article 6 of the regulations implementing Proposition 65 (Prop 65) that requires enhanced warning messages. Prop 65 requires a “clear and reasonable” warning on products that expose California consumers to chemicals of concern (“Prop 65-listed chemicals”).  The new regulation has changed what constitutes a “clear and reasonable” warning.  As the final rule becomes effective on August 30, 2018, businesses should begin to assess their products, consider the clear and reasonable warning requirements, and prepare for the deadline to minimize the risk of enforcement litigation.

The final rule imposes requirements on content and methods of transmission, which includes disclosure of one or more Prop 65-listed chemicals that resulted in the warning and an accompanying symbol.  An abbreviated warning, however, will be permitted when a company provides an “on-product” warning.  If an “on-product” warning is used, the business need not disclose the specific Prop 65 chemical(s).

Until the August 30, 2018 effective date, companies selling into California can use either the old or the new regulatory warnings. Indeed, businesses are not required to re-label products that are already in the stream of commerce.  OEHHA has ensured that “the regulations allow the old safe harbor warnings to remain and be considered compliant if the product was manufactured prior to the effective date of the new regulations.”  As such, if a business is selling into California, compliance with the new regulatory warnings must be in effect on all manufactured products on August 30, 2018.

It is prudent for businesses to begin the compliance process shortly because it will take time to assess which products are sold into California, to design new product labels and/or compliant materials, to approve such materials, and to implement the necessary changes.