Hazardous & Solid Waste / RCRA
Our attorneys assist clients with every stage of the “cradle to grave” process, including hazardous waste and generator status determinations and waste accumulation, storage, shipping, source reduction and recycling requirements. We also pay close attention to regulatory exemptions applicable to our clients’ businesses or processes, counsel clients that need to secure necessary permits or approvals, and advise clients on potential facility and process modifications.
Alston & Bird attorneys have a wide range of experience defending enforcement actions brought by the U.S. Environmental Protection Agency (EPA), state environmental agencies, state attorneys general and local district attorneys relating to all aspects of hazardous materials and hazardous waste law. In addition, we have extensive experience defending clients in RCRA citizen suits.
California and State Hazardous Waste Laws
Our state program services include comprehensive experience with the unique and complex California state regulatory regime and other state programs the EPA has delegated federal regulatory authority to, as well as non-delegated state regulatory programs. Our attorneys have extensive experience defending clients in formal and informal proceedings before the California Department of Toxic Substances Control, regional water quality control boards, local county health and fire departments and California Certified Unified Program Agencies (CUPAs).
Retailer Hazardous Waste Enforcement
Increasingly, our practice includes representation of large retail chains, grocery and drug stores and suppliers to those retailers as more consumer goods are classified as containing toxic ingredients or as hazardous waste under California law. We represent retailers and suppliers in a wide variety of lawsuits and enforcement actions, which often commence with issues such as retail hazardous waste, Proposition 65, and weights and measures and often later include claims of false advertising, unfair competition, consumer class action litigation and unfair business practices. In addition to defending litigation, we routinely help clients develop compliance programs. Many of our clients have seen a significant reduction or total elimination of penalties assessed in enforcement actions.
Hazardous Materials Transportation
Alston & Bird represents a variety of clients in the transportation of hazardous materials by highway, rail, water, air and pipeline. Major clients in this area include a variety of shippers, carriers and packaging suppliers. We have an in-depth understanding of federal hazardous materials regulations as well as international codes, such as the ICAO’s Technical Instructions, the ADR and the IMDG Code. Alston & Bird routinely counsels clients on the proper identification and packaging of hazardous materials, employee training requirements, special packaging and labeling requirements, quantity limits and exemptions.
We represent clients in compliance matters and enforcement defense before transportation agencies such as the Federal Aviation Administration, Federal Railroad Administration, U.S. Coast Guard, Pipeline and Hazardous Materials Safety Administration and Transportation Security Administration.
Alston & Bird provides assistance to clients on a number of other transportation-related issues, including domestic and foreign rules relating to international shipments of toxic chemicals such as the Toxic Substances Control Act (TSCA) and the European Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH).
Toxic Substances Control Act (TSCA)
Alston & Bird represents clients whose products and activities are subject to the EPA’s broad chemical regulatory authority under the TSCA. We regularly provide counseling on regulatory interpretation; compliance with premanufacture notifications (PMN) and significant new use rules (SNUR); reporting and recordkeeping requirements, including “substantial risk” notification requirements and the EPA’s Inventory Update Rule; chemical import certification and export notification requirements; and compliance with related chemical regulatory laws governing pesticides, foods, drugs and cosmetics.
In addition, we have particular strength in counseling and advocacy on state chemical management activities, including California’s Green Chemistry Initiative and Proposition 65, other state green chemistry laws, and state chemical-specific restrictions on products. For more information, contact our Chemical & Product Regulation Group.
- Represents nation’s largest electronic waste recycler in $14 million dispute with EPA agencies regarding proper waste classification.
- Drafted contracts to facilitate the purchase and sale of slightly spent solvents and other similar materials that might otherwise be classified as hazardous waste. Legally classifying the materials as non-hazardous waste enabled the companies to save costs associated with transporting and handling hazardous waste and reduced exposure to environmental liability.
- Conducts global due diligence for Fortune 50 company on a hazardous materials service expansion in 30 international jurisdictions.
- In an agency enforcement action for 18 hazardous waste sites, negotiated potential multimillion-dollar penalties down to $250,000. In a related case, we recovered a total of $6.5 million for the client from its former insurance carriers for cleanup costs at these sites.
- Handled self-disclosure and EPA negotiations for a client that discovered potential Emergency Planning and Community Right-to-Know Act (EPCRA) violations at 71 facilities in 20 states across eight EPA regions. Obtained a no-penalty determination.
- Counsels on and creates hazardous materials compliance program for large scrap metal recycler.
- Defended a criminal proceeding in San Diego pertaining to alleged hazardous materials transportation violations; succeeded in getting the case dismissed on federal preemption grounds.
- Defended an RCRA criminal enforcement action by the California EPA, persuading the agency to not only drop the criminal charges against our client, but also forego any civil enforcement.
- Represented a used-oil recycling business in criminal RCRA violations linked to a worker’s death and fire, resulting in a minimized fine for the company and a decreased sentence for the company president.
- Represented a pesticide manufacturer in the local prosecutor’s criminal investigation of pesticide exposure in drinking water; the matter resulted in no criminal charges being filed.
- Handled all aspects of a major RCRA criminal investigation by the EPA and Department of Justice relating to the alleged improper storage and disposal of acid; negotiated a non-criminal civil penalty.
- Counseled client through FAA Notice of Violation that company received after package that had been shipped from its facility was found leaking at an air freight facility. FAA agreed to drop the NOV altogether following meetings with civil investigators and legal staff to show that client had no involvement or awareness of unauthorized shipment.
- Assisted client in negotiations with FAA related to a package containing hazardous materials that was accepted for transportation at retail store location and was found damaged and leaking at an air freight facility. Successfully negotiated the proposed penalty down by approximately 40 percent. Also assisted the client with revisions to its in-store package acceptance guidelines.
- Advised client on potential liability for packages that did not comply with hazardous materials regulations, including packaging and marking requirements. Analysis included review of past penalty and enforcement cases involving similar allegations to advise client of potential risk.
- Advised several clients on Hazardous Materials Regulations and their applicability and scope, including packaging and labeling requirements, limited quantity and consumer commodity exceptions, and international/EU hazardous materials (dangerous goods) requirements.