We are approaching either the end or the second and final term of what many have called the most unlikely president in the history of the United States. One of the hallmarks of the Trump Administration is the across-the-board regulatory reform that has some cheering and others jeering. From the environmental protection aspect, beyond the regulatory reform, there are still some ongoing environmental enforcement actions that are worth noting.
Legacy of Regulatory Reform and Recent Enforcement Action
In considering what might be the legacy of President Trump, the BBC wrote, “He can point to a significant record of right-wing accomplishments. Tax reform. Two Supreme Court nominees safely installed on the bench. The travel ban. The bonfire of federal regulations. Criminal justice reform. Legislative action aimed at ameliorating the opioid crisis” (emphasis added).
If you care to look at the list of some of the reforms, see Regulatory Reform Report: Completed Actions for Fiscal Year 2019.
In just a few months, we will know if this regulatory reform will continue or if we might see some of the regulations come back from the ashes.
In the meantime, there continues to be some federal enforcement action.
Environmental Enforcement at DuPont
The U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice (DOJ), and the state of Texas have announced a settlement with E.I. Du Pont de Nemours and Company (DuPont) to resolve alleged hazardous waste, air, and water violations at its former La Porte, Texas, chemical manufacturing facility.
The issue dates back to 2014 when, as reported by the U.S. EPA, “…24,000 pounds of methyl mercaptan resulted in the death of four workers and forced the company to permanently close the chemical manufacturing plant in 2016.”
There were several regulations cited in the violation, including (but not limited to):
The Resource Conservation and Recovery Act (RCRA): failure to determine if a solid waste was a hazardous waste; treatment, storage, or disposal of a hazardous waste without a permit; failure to determine land disposal restrictions; failure to provide financial insurance.
The Clean Water Act (CWA): failure to implement secondary containment for a tank storing diesel fuel, and failure to fully implement their Spill Control and Countermeasure Plan.
In addition to the seven items listed under injunctive relief, DuPont will pay a civil penalty of $3.295 million.
Environmental Enforcement at J.R. Simplot
The other enforcement action that we’ll mention is a site in Wyoming. The U.S. EPA and the U.S. DOJ announced a settlement with J.R. Simplot Company and its subsidiary, Simplot Phosphates LLC (Simplot), involving Simplot’s Rock Springs, Wyoming, manufacturing facility.
The enforcement involved both RCRA and the Emergency Planning and Community Right to Know Act (EPCRA).
The U.S. EPA announced, “This settlement resolves allegations under the RCRA at the facility, including that Simplot failed to properly identify and manage certain waste streams as hazardous wastes. The settlement requires Simplot to implement process modifications designed to enable greater recovery and reuse of phosphate, a valuable resource. The settlement also requires Simplot to ensure that financial resources will be available when the time comes for environmentally sound closure of the facility.”
In addition, J.R. Simplot also failed to report under EPCRA (Form R Toxic Release Inventory). They have agreed to submit revised EPCRA reports for the period 2004 – 2013.
Under the settlement, Simplot also agrees to implement specific waste management measures valued at nearly $20 million. These measures include new methods to recover and reuse phosphate. The U.S. EPA referred to this as “significant,” perhaps because there is global concern about running out of phosphate, which is essential for crops.
This settlement requires that Simplot secure and maintain approximately $126 million in dedicated financing to ensure funding for closure and long-term care.
Finally, Simplot will also pay a $775,000 civil penalty to resolve both the RCRA and EPCRA claims.
Violations of environmental regulations, whether under this administration or future administrations, can be a costly headache. One of the tools at your disposal is the environmental compliance audit and audit privilege. If you are considering this, you should speak with your environmental advisors, legal and technical. We can provide you with names of lawyers in your area and can assist you with the compliance assessment.
If you have questions or would like to discuss an environmental compliance assessment, please contact me, and I will put you in touch with someone from our compliance staff.
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