Ogden City, Utah, has announced that it has suspended deliveries of recyclables to its recycling provider. According to a news release from the city’s website, Ogden stopped delivering recyclables to its provider March 3 because the city’s recycling trucks were being directed to dump their loads outdoors, which the city says is a violation of the provider’s operating permit from Ogden City. The operating permit requires all dumping, sorting and baling to take place inside of a building. 

“Outdoor dumping can lead to significant problems for neighboring properties, including odors, blowing debris and the attraction of seagulls,” the city states. “The city was not willing to allow these types of permit violations to persist, which resulted in the decision to suspend deliveries.” 

According to Ogden City’s website, the city was forced to start making deliveries of recyclables to the Weber County Transfer Station in March as there has been no other locally available option for processing the volume of recyclable material produced by city residents.

“Although the recyclable materials have been sent to the landfill since March, Ogden City expects to resume making recycling deliveries once challenges with the city’s provider are resolved, or once a viable alternative solution is in place,” the city says.

The U.S. Environmental Protection Agency (EPA), the U.S. Department of Justice and the state of Texas have announced a settlement with Wilmington, Delaware-based E.I. DuPont de Nemours and Company (DuPont) to resolve alleged hazardous waste, air and water violations at its former La Porte, Texas, chemical manufacturing facility.

In 2014, the La Porte facility was the site of a chemical accident where the release of nearly 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. As part of a separate settlement in 2018, DuPont paid a $3.1 million civil penalty for violating EPA’s chemical accident prevention program. Under this settlement agreement, DuPont will pay a $3.2 million civil penalty.

“This settlement concludes EPA’s efforts since 2008 to address impacts to the environment at the La Porte site,” EPA Office of Enforcement and Compliance Assurance Assistant Administrator Susan Bodine says. “Although DuPont’s chemical manufacturing facility never reopened after the 2014 explosion, there are other operations located on the DuPont-owned property. This settlement ensures both proper management of the wastes generated by those operations as well as the cleanup of contamination from past operations.”

“This settlement represents [Texas Commission on Environmental Quality’s] (TCEQ’s) ongoing commitment to protecting human health and the environment, and is a crucial step in the restoration process,” TCEQ Executive Director Toby Baker says.

This settlement resolves alleged violations of the Resource, Conservation and Recovery Act (RCRA), the Clean Water Act (CWA) and the Clean Air Act (CAA) from DuPont’s past chemical manufacturing operations. The alleged RCRA violations include failure to make hazardous waste determinations; treatment, storage or disposal of hazardous waste without a permit; and failure to meet land disposal restrictions. The alleged CWA violations include failure to fully implement the facility’s oil spill prevention plan, and alleged CAA violations include failure to comply with applicable emissions standards at the company’s biological water treatment unit.

Even though the facility closed in 2016, DuPont continues to operate a wastewater treatment system on-site and, as a result of this settlement, will perform sampling and analysis to determine the extent of any existing soil, sediment or groundwater contamination within or around impoundments remaining on-site which may contain wastes from the closed chemical manufacturing plant. DuPont will perform this work pursuant to Texas’ Risk Reduction Program and perform any necessary cleanup.

The consent decree was lodged on July 9 in the U.S. District Court for the Southern District of Texas.

The U.S. Department of Justice and U.S. Environmental Protection Agency (EPA) has announced a settlement with Boise, Idaho-based J.R. Simplot Co. and its subsidiary, Simplot Phosphates LLC (Simplot), involving the company’s Rock Springs, Wyoming, manufacturing facility.

“The U.S. leads the world in food production largely due to efficient and environmentally responsible farming, including the use of fertilizers,” Susan Bodine, EPA's assistant administrator for Enforcement and Compliance Assurance, told Water Technology. “This settlement with one of the leading fertilizer manufacturers advances EPA’s goals by creating environmentally beneficial waste management practices that reduce overall waste volume and ensure that the U.S. taxpayer will not be responsible for future costs associated with closure of this facility.”

According to a release, this settlement resolves allegations under the Resource Conservation and Recovery Act (RCRA) at the facility, including that Simplot failed to properly identify and manage certain waste streams as hazardous wastes. In addition, the settlement resolves alleged violations of the Emergency Planning and Community Right-to-Know Act (EPCRA) for Simplot’s failure to report certain quantities of toxic chemicals in accordance with EPCRA standards.

As a result, Simplot is now required 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.

Simplot’s Rock Springs facility manufactures phosphate products for agriculture and industry, including phosphoric acid and phosphate fertilizer, through processes that generate large quantities of acidic wastewater and a solid material called phosphogypsum. The phosphogypsum is deposited in a large pile known as a gypstack, and acidic wastewater is also routed to the gypstack. The gypstack at the Wyoming facility is fully lined and has a capacity to hold several billion gallons of acidic wastewater.

Under the settlement, Simplot agrees to implement specific waste management measures valued at nearly $20 million. Significantly, these measures include extensive new efforts to recover and reuse the phosphate content within these wastes and avoid their disposal in the gypstack. The settlement also includes a detailed plan setting the terms for the future closure and long-term care of the gypstack.

In order to secure the funding needed for when the facility is eventually closed, the settlement requires Simplot to immediately secure and maintain approximately $126 million in dedicated financing.

“EPA commends Simplot’s efforts to enhance production efficiency, reduce waste, and provide financial assurance that will protect the environment,” said EPA Regional Administrator Gregory Sopkin. “The Rock Springs facility will be the first phosphoric acid production place in the nation to secure financial assurance of its gypstack solely through surety bonds, ensuring that taxpayer dollars will not be required for future closure or cleanup at the facility.”

Simplot also agrees to submit revised EPCRA Form R reports (Toxic Release Inventory) for 2004 to 2013 to include estimates of certain metal compounds manufactured, processed, or otherwise used at the facility.  Simplot will also pay a $775,000 civil penalty to resolve both the RCRA and EPCRA claims.

The agency previously has required through judicial and administrative settlements that 12 phosphate fertilizer facilities complete extensive injunctive relief and bring their operations into compliance with RCRA.

Municipal recycling first emerged in Ontario in the 1980s. Since then, it has transformed into what currently is known as the Blue Box Program, a recycling system that is operated by municipalities but is partially financed by brand-holders, first importers or franchisors of printed paper and packaging. These entities also are known as stewards.

In the past decade, this system has encountered increasing challenges related to fluctuating commodity markets and growing levels of contamination in the recycling system. The system has also witnessed an evolution in the mix of the materials that end up in Ontario’s Blue Boxes, resulting in reduced revenues and increased processing costs for municipalities.

The recent Stewardship Ontario v. Resource Productivity and Recovery Authority arbitration decision highlights some of the cost contribution and division of responsibility issues that have affected the participants in the Blue Box system as a result of these challenges. The decision provides helpful insights for other jurisdictions considering a shared responsibility model for the recycling of printed paper and packaging materials.

Historical background

In the late 1990s, Ontario created the interim Waste Diversion Organization (WDO) to develop provincewide recycling initiatives for various types of material. In 2002, it enacted the Waste Diversion Act (WDA) to promote recycling and provide for waste diversion programs.   

Pursuant to the WDA, the WDO and an industry funding organization, Stewardship Ontario, entered into a program agreement to develop a diversion program for Blue Box recyclables. The program was known as the Blue Box Program Plan (BBPP). It required that stewards contribute 50 percent of the costs of the municipal recycling programs for printed paper and packaging (PPP). WDO would determine the amount of stewards’ funding required from Stewardship Ontario.

A decade after the program was established, disputes over stewards’ funding and the rising costs of materials that made their way into Ontario’s Blue Boxes reached a boiling point. In 2014, these disputes went into arbitration to decide stewards’ funding obligations.

In 2016, the province of Ontario began its transition to an individual producer responsibility model for the management of a variety of materials, including PPP. It enacted the Waste Free Ontario Act and replaced the WDO with the Resource Productivity and Recovery Authority (RPRA). The responsibility for determining stewards’ funding then switched to the RPRA.

By 2018, Stewardship Ontario again disputed the RPRA’s assessment of stewards’ funding obligation for 2019. It argued that the RPRA’s charges, amounting to $126.4 million, were not authorized. The charges included a costs-containment charge, an in-kind advertising charge and charges for municipal costs associated with recycling non-PPP materials.

In his decision following the arbitration of the dispute, the arbitrator, Ronald G. Slaght, found that the RPRA did not have the authority to levy in-kind advertising charges on stewards. However, he found that the RPRA’s costs-containment charge and charges associated with the recycling of non-PPP materials were authorized.

Bas Emmen

The decision

Costs-containment charge. The steward costs-containment obligation was introduced in 2016 to place some financial responsibility on stewards for the growing costs of their packaging choices on municipal recycling systems. Arbitrator Slaght agreed that municipalities were obligated to contain and properly manage costs associated with the Blue Box program. However, the BBPP, and every direction issued by ministers, made it clear that stewards also had a responsibility to act to contain municipal costs.

The arbitrator also upheld the formula the RPRA used to assess the costs-containment charges. He found that its intended purpose was to provide a means for the RPRA to ensure that stewards made some contribution toward the increased costs on municipalities resulting from the shifting mix of materials ending up in Blue Boxes. It was not meant to calculate on a dollar-by-dollar basis the real effect of these changes.  

In-kind advertising charge. Through in-kind advertising, newspaper industry stewards provide advertising space in publications for communities to promote waste diversion in lieu of cash to Ontario municipalities. On the RPRA’s assessment of in-kind advertising costs, the arbitrator was unable to find support for the RPRA’s inclusion of in-kind contributions by the newspaper industry, noting that the RPRA’s significant powers to impose costs on stewards were not absolute.  

Non-PPP materials. A number of items collected in a typical Blue Box Program, such as office paper, are not included in the definition of Blue Box materials in the BBPP. As a result, municipalities have long imposed charges on stewards for certain residue materials and the contamination that comes with the program.

Stewardship Ontario challenged the RPRA’s non-PPP charges on the basis that they were for materials that were not part of the definition of PPP under the BBPP. In his decision to uphold the charges, the arbitrator found that the financial obligation of stewards was intended to support municipal recycling programs without being constrained by precise definitions in the BBPP.  

Conclusion

The Blue Box funding arbitration involving the RPRA and Stewardship Ontario brings into focus some of the challenges of allocating responsibility among various actors in a recycling system. These challenges endure despite prior arbitration in 2014.

The decision comes at an important juncture in the landscape of waste management in Ontario as the province undertakes a transition of its Blue Box recycling system to full producer responsibility. By 2026, producers of printed paper and packaging materials will have the financial and operational responsibility for Ontario’s Blue Box system. The decision highlights the importance of such a transition given the degree to which industry choices affect recycling costs. By having full responsibility for paper products and packaging materials, producers will be able to make design decisions that decrease recycling system costs while maximizing efficiencies.

Denisa Mertiri is a legal consultant and principal at Toronto-based Green Earth Strategy. She provides legal and policy advice to clients on waste management, single-use reduction, circular economy and EPR laws. Mertiri has worked with the city of Toronto and other municipalities in Ontario on Ontario’s transition to EPR and on single-use reduction and circular economy policies. Alexandra Potamianos is an incoming third-year JD student at Osgoode Hall Law School, Toronto.