December 13, 2021
New York State Department of Environmental Conservation (DEC) Commissioner Basil Seggos reminded affected stakeholders-including entities that sell or distribute disposable food service containers, such as retail food stores, restaurants, hospitals, and schools, among others-that New York's ban on expanded polystyrene foam containers and loose fill packaging, commonly referred to as "packing peanuts," begins Jan. 1, 2022. The ban builds on New York's environmental leadership in preventing litter, reducing waste, and supporting recycling through measures such as the ban on plastic carryout bags, the bottle bill, and food scrap recycling and food waste prevention efforts. New York is among the first states to ban polystyrene foam containers and loose fill. An estimated 65 percent of New Yorkers are already subject to local foam bans. Initially, DEC will focus its efforts on outreach and education to ensure a smooth transition for affected stakeholders, with enforcement to follow.
"It's simple, New York's statewide ban on polystyrene foam containers and packing peanuts will reduce the waste headed to landfills and combustors," Commissioner Seggos said. "The foam ban will reduce litter, clean up the recycling stream, and support the state's ongoing transition to more sustainable containers and packaging alternatives. This is the logical next step to remove single-use products from our waste stream to protect the environment for generations to come."
New York's ban, which begins on Jan.1, prohibits any person engaged in the business of selling or distributing prepared food or beverages for on- or off-premises consumption from selling, offering for sale, or distributing disposable food service containers that contain expanded polystyrene foam in New York. In addition, no manufacturer or store will be allowed to sell, offer for sale, or distribute polystyrene loose fill packaging in the state. Disposable food service containers made of expanded polystyrene foam banned under the law include bowls, cartons, hinged "clamshell" containers, cups, lids, plates, trays, or any other product designed or used to temporarily store or transport prepared foods or beverages, including containers generally recognized as designed for single use.
DEC is currently reviewing public comments received on proposed regulations to implement the ban. The proposed regulations were released earlier this year
and DEC anticipates releasing final regulations in the coming months. DEC's ongoing outreach to affected entities is focused on education, followed by potential enforcement.
Expanded polystyrene (EPS) foam is a major contributor to environmental litter, causing negative impacts to wildlife, waterways, and natural resources. EPS foam is lightweight, breaks apart easily, and does not readily biodegrade, rendering it persistent in the environment and susceptible to becoming microplastic pollution. In addition, EPS foam containers and loose fill packaging are not accepted by most recycling programs in New York State because the foam is difficult to recycle, easily contaminates the recycling stream, is often soiled, and has low value.
Examples of covered food service providers required to comply with the ban include:
- Food service establishments, caterers, temporary food service establishments, mobile food service establishments, and pushcarts as defined in the New York State Sanitary Code;
- Retail food stores, as defined in Article 28 of the Agriculture and Markets Law, which include any establishment where food and food products are offered to the consumer and intended for off-premises consumption;
- Delis, grocery stores, restaurants, cafeterias, and coffee shops;
- Hospitals, adult care facilities, and nursing homes; and
- Elementary and secondary schools, colleges, and universities.
Under the law, any facility, regardless of its income, operated by a not-for-profit corporation or by a federal, state, or local government agency that provides food and meals to food insecure individuals at no or nominal charge may request a financial hardship waiver of the requirements of the law. Examples include:
- Community meal programs;
- Food pantries; and
- Places of worship.
Covered food service providers may also be eligible to request a hardship waiver if they meet the following criteria: have an annual gross income under $500,000 per location; do not operate 10 or more locations in New York State; and are not operated pursuant to a franchise agreement. Retail or wholesale stores that sell EPS foam food and beverage containers or loose fill packaging are not eligible to apply for financial hardship waivers.
The law and DEC's proposed regulations to implement the law include exemptions for raw meat, pork, seafood, poultry, or fish sold for the purpose of cooking or preparing off-site by the customer and prepackaged food filled or sealed prior to receipt at a covered food service provider. The law does not apply in New York City because the city has a local polystyrene ban in place and meets the law's population threshold. Other local laws enacting a polystyrene ban are preempted by the state law, except any county law enacting a polystyrene ban providing environmental protection equal to or greater than the state law or if the county files a written declaration with DEC of its intent to administer and enforce its local law. Currently, an estimated 65 percent of New York State's population is subject to a ban on polystyrene foam containers and/or packing peanuts.
DEC's outreach and education efforts about the ban are underway, helping those affected by the new law get up to speed with the requirements. DEC continues to conduct outreach and education through the website, educational webinars, newsletters, listservs, magazines, social media, phone calls, and e-mail communications with stakeholders and the public. In addition, DEC is working in close partnership with other State agencies such as the Departments of Health and Agriculture and Markets to distribute outreach materials to retailers and covered food service providers directly affected by this law. DEC is also working with other partners, such as the Pollution Prevention Institute, NYS Center for Sustainable Materials Management, and NYS Association for Reduction, Reuse and Recycling to ensure affected providers receive information regarding the ban.
Please visit DEC's website
with more information about the proposed regulations to implement the Expanded Polystyrene Foam Container and Polystyrene Loose Fill Packaging Ban.
New Law Will Reduce the Use of Single-Use Utensils, Condiments, Straws Beginning January 1
Beginning Jan. 1, 2022, restaurants in the state of Washington will no longer automatically include single-use food service items like utensils, condiments and straws with food orders. A new state law
restricts the use of these items and prohibits packaged bundles of single-use items in order to reduce waste and litter – although customers can still request individual items if needed.
Single-use food serviceware items covered by the new requirements include:
- Utensils (knives, forks, spoons, chopsticks)
- Cocktail picks, splash sticks, and stirrers
- Condiment packets, sachets, or sauce cups
- Cold cup lids, except those provided at drive-through windows or events with over 2,500 people
Under the new law, to receive a single-use food serviceware item, customers must request it, confirm their choice when asked, or select the item they want from a self-serve station.
“Automatically including disposable silverware, straws and condiments with every order creates a huge amount of waste, much of which ends up littering our roads and damaging our environment,” said Laurie Davies, manager of the Solid Waste program at the Washington Department of Ecology. “This law nudges people to help reduce unnecessary waste.”
Nearly one trillion single-use food service products are disposed or littered each year in the United States, according to a 2021 Upstream report
. Single-use food serviceware items are also a major contaminant in Washington’s recycling system that decreases the value of recycled materials. Reducing their use will protect the state’s rivers and streams, help the recycling system run more efficiently, and contribute to a growing culture of waste reduction and reuse.
The Washington Department of Ecology plans to focus on education to increase compliance with the new law. The agency worked with a variety of partners to develop informational flyers and outreach material (in 17 languages) that will be available online
as a downloadable toolkit before the law goes into effect. Anyone can print and share the material. Local governments, businesses and non-profits are encouraged to use it as a resource to inform staff and customers about the new law.
While lids, forks, ketchup packets and other items will be available upon request, customers are encouraged to bring their own durable, reusable food serviceware items to help reduce single-use waste. Ecology encourages people to explore sustainable options for reusable travel utensils, and develop habits that keep those items clean and available for use on the go.
Most Washingtonians quickly adapted to the state’s plastic bag ban
earlier this year, and now bring reusable bags when they head to the store.
New Smog Check Regulation for Heavy Duty Trucks and Buses in California
The California Air Resources Board has approved a ‘smog check’ regulation for medium- and heavy-duty trucks and buses. While these heavy-duty vehicles with a gross vehicle weight rating (GVWR) greater than 14,000 pounds comprise only 3 percent of all vehicles on California roads, they are responsible for more than 50 percent of nitrogen oxides and fine particle diesel pollution from all mobile sources in the state.
The action taken by CARB will cover roughly 1 million heavy-duty trucks and buses operating in California. The twice-a-year inspections will ensure that the emissions control systems maintain the same efficiency as the vehicle ages. By 2037, the program is estimated to deliver reductions of 82 tons per day of NOx and fine particle diesel pollution. The Board also directed a four-times per year testing frequency for trucks with on-board diagnostics to be phased in over time.
“This first-in-the-nation program will prevent trucks and buses from emitting unhealthy pollutants from their engines for the life of the vehicle,” said CARB Chair Liane Randolph. “This commonsense measure will provide the pollution reductions we urgently need to achieve federal air quality standards and deliver cleaner air to impacted communities near ports, freeways, and warehouses."
The new program is expected to yield $75 billion in health benefits, prevent 7,500 air-quality related deaths and 6,000 hospitalizations and emergency room visits from 2023 to 2050. These benefits are 18 times the estimated cost of the program at $4 billion.
The program is designed to provide a convenient approach for compliance to businesses and vehicle owners, prevent highly polluting trucks and buses from being registered, and will result in the rapid repair of malfunctioning emissions control equipment when it breaks.
The new program implements SB 210, authored by Senator and ex-officio Board member Connie Leyva in 2019, directing CARB to develop and implement a new, comprehensive Heavy-Duty Inspection and Maintenance program to control emissions more effectively from non-gasoline on-road heavy-duty vehicles. It will also include independent owner/operators who were exempt from the current program
of periodic smoke inspections.
“I am beyond excited that this historic program will finally be implemented across California and that it will result in the largest reduction in NOx emissions since the Truck and Bus Regulations were adopted in 2008. Just as passenger vehicles have already been doing for decades, it is long overdue that big diesel trucks undergo smog check testing so that we can continue to clean our air and improve public health across California. By keeping polluting dirty trucks off our freeways and roads, we will take an important step forward in further cleaning the air across our state,” Senator Leyva said. “The benefits this program will bring to our environment, our communities and the health and wellbeing of our families is a clear win-win for all Californians.”
The Heavy-Duty Inspection and Maintenance program will roll out a statewide network of roadside emission monitors to screen for high emitting trucks, starting with the San Joaquin Valley and South Coast and expanding over time. It will also require vehicles with a GVWR greater than 14,000 pounds operating in California to perform periodic testing and submit the data to CARB. As with passenger cars and light-duty trucks, California registration of these heavier vehicles will require passing the inspection. Unlike light-duty smog checks, however, there is no requirement to go to a ‘brick and mortar’ heavy-duty smog check station.
Heavy-duty vehicle owners will be able to complete the required test and deliver the information remotely without having to travel to designated testing locations. For telematics users, an onboard diagnostics (OBD) inspection that draws emissions control performance data from the vehicle’s internal computer, an inspection can be completed automatically without taking the vehicle out of operation. OBD systems have been required by CARB on heavy-duty vehicles since 2013. Older heavy-duty vehicles without on-board diagnostic systems would continue the current opacity testing requirements with an added visual testing component, twice each year.
The Heavy-Duty Vehicle Inspection Program will continue to augment the new testing requirements with inspections and testing randomly carried out at border crossings, California Highway Patrol weigh stations, fleet facilities and randomly selected roadside locations.
Wastewater Helps Decipher the Popularity of New Synthetic Drugs
Over the years, hundreds of new synthetic drugs that mimic the effects of illegal and legal substances have emerged. The underground nature of each drug’s development and distribution makes its international popularity hard to track. Now, using wastewater from the days near the 2021 New Year holiday, researchers in ACS’ Environmental Science & Technology Letters
report an increased international usage of some synthetic drugs, including eutylone and 3-methylmethcathinone (3-MMC) compared to the previous year.
New synthetic drugs, also known as new psychoactive substances (NPS), include drugs made in clandestine labs without consistent methods or ingredients, as well as pharmaceuticals that are diverted into the illegal NPS market. Abuse of these substances can lead to overdose and death. NPS are tracked by forensic toxicologists, drug enforcement authorities and public health officials, but their global pervasiveness is still elusive because each agency obtains and stores their information in different ways, and not every user or dealer is identified. In contrast, wastewater epidemiology — a comprehensive survey of community-level drug consumption or disease presence — can provide widespread, consistent and near real-time information. And because everyone goes to the restroom at some point, all users are monitored with this analysis. Previously, Richard Bade, Cobus Gerber and colleagues used this technique to find out how popular various NPS were during the 2019-2020 New Year period in eight countries. However, with the regular variability of NPS distribution and the COVID-19 pandemic’s restrictions, the researchers wanted to track which drugs were prevalent during the more recent New Year holiday, adding additional sites and countries.
In the days surrounding Jan. 1, 2021, the researchers collected raw wastewater samples from 25 treatment plants in 10 countries across Asia, Oceana, Europe and North America. With liquid chromatography-mass spectrometry, they searched for 27 unmetabolized NPS. Eleven of these compounds were detected, with only one site in Fiji having no measurable amount for any of the substances. The team found that most of the compounds were synthetic cathinones, also known as “bath salts.” Within this class of NPS, methcathinone, eutylone and 3-MMC were detected most often and had the highest per capita levels in wastewater. However, methcathinone also can result from the degradation of two legal decongestants, ephedrine and pseudoephedrine, so the researchers were hesitant to link it only to illicit drug consumption. Finally, when the researchers compared the 2020-2021 New Year period to the prior year’s holiday, eutylone and 3-MMC had an increased international presence. They report that 3-MMC was found for the first time in New Zealand, despite international travel restrictions. By expanding the number of sites and countries investigated, the researchers say they have provided new insights into the constantly shifting global NPS consumption patterns.
Two of the study’s authors are co-founders of a company that provides commercial wastewater epidemiology services, and one of the authors is the founder of a wastewater testing nonprofit project.
New Regulations Will Require Most New Small Off-Road Engines To Be Zero Emission by 2024 in California
The California Air Resources Board approved a measure that will require most newly manufactured small off-road engines such as those found in leaf blowers, lawn mowers and other equipment be zero emission starting in 2024. Portable generators, including those in recreational vehicles, would be required to meet more stringent standards in 2024 and meet zero-emission standards starting in 2028.
The new requirement, an amendment to CARB’s existing small off-road engine regulations first adopted in 1990, applies to manufacturers and will impact new equipment (Model Year 2024 and later) only. Californians can continue to operate their current CARB-compliant gasoline-powered SORE equipment; there will be no “ban” on using older models or used equipment purchased in the future. Older models on store shelves can also be purchased even if they are gasoline-powered.
This move by CARB aligns with Governor Gavin Newsom’s Executive Order signed in September 2020 that moves the state closer to a zero-emission future. It also provides significant emissions reductions of smog-forming pollution needed for California to achieve stringent federal air quality standards in the future.
“Today’s action by the Board addresses these small but highly polluting engines. It is a significant step towards improving air quality in the state and will definitely help us meet stringent federal air quality standards,” said CARB Chair Liane Randolph. “It will also essentially eliminate exposure to harmful fumes for equipment operators and anyone nearby.”
Despite their small size, these engines are highly polluting. The volume of smog-forming emissions from this type of equipment has surpassed emissions from light-duty passenger cars and is projected to be nearly twice those of passenger cars by 2031. Today, a commercial operator using one backpack leaf blower for one hour generates the same smog-forming emissions as a car driving 1100 miles. These regulations will reduce emissions of smog-forming emissions by 72 tons per day.
The amended regulation will set SORE
emission standards to zero in two phases:
- First, for model year (MY) 2024 and all subsequent model years, emission standards will be zero. These emission standards of zero will apply to engines used in all equipment types produced for sale in California, except generators and large pressure washers. Emission standards for generators and large pressure washers will be more stringent than the existing standards by 40-90 percent starting in MY 2024, but not zero.
- The second phase will be implemented starting in MY 2028, when the emission standards for generators and large pressure washers will be zero.
Zero-emission equipment in the SORE sector is widely available. It is quieter, cleaner, has less vibration, and has greatly improved over the last few years. Since 2018, CARB has operated the Zero-Emission Equipment Roadshow, which loans the equipment free of cost for 3 weeks to municipalities and other entities that express interest. There are approximately fifty pieces of professional equipment from eight manufacturers included in the Roadshow. The Roadshow has been to 25 organizations throughout the state. Many users who may have complained about early models have become enthusiastic supporters (examples include the Los Angeles Unified School District, UC Irvine, Santa Barbara Parks and Rec, Capitol Park in Sacramento, and more).
Incentive funds will be available to commercial purchasers of new zero-emission equipment through CARB's Clean Off-Road Equipment Voucher Incentive Project (CORE), which was created to accelerate deployment of cleaner off-road technologies. The Legislature has allocated $30 million to be dedicated to sole proprietors and other small landscaping businesses in California to help them purchase zero-emission small off-road equipment, including leaf blowers, lawn mowers and string trimmers.
American Honda Motor Corporation, Inc. To Pay Nearly $7 Million for Violations of Air Quality Regulations on Small Off-Road Engines
The California Air Resources Board (CARB) reached a settlement agreement
with American Honda Motor Corporation, Inc. (Honda) of Torrance, California for $6.9 million for violations of CARB’s air quality regulations. This is the second enforcement action against Honda in the past two years.
In 2019, CARB testing revealed several small off-road engine (SORE) products did not meet CARB evaporative emission standards. These standards control the amount of raw fuel that is allowed to evaporate from these engines, which are typically used in lawn and garden equipment like lawn mowers and pressure washers. Honda’s engines failed to meet the 24-hour evaporative standards determined by testing engines while cycling from typical night-to-day temperatures found in California. Honda failed these tests demonstrating evaporative emissions of gasoline above the legal limit. Honda also failed to follow Small Off-Road Engine Evaporative Emission Control System Certification Procedures.
Small off-road engines are a major source of pollution in California. In California in 2021, these small engines surpassed light-duty passenger cars as a source of smog-forming emissions. This includes the emissions of raw fuel that continue to evaporate from these engines, lawn mowers and other equipment even when they are powered off. To address this major source of smog-forming emissions, CARB is working on a regulation
to transition these small off-road engines to zero-emission technologies. This will help California meet its required federal clean air standards, clean the air and significantly reduce harmful emissions for those who work all day with these small off-road engines.
“This case reinforces the importance of CARB’s testing and investigative work,” said CARB Executive Officer Richard W. Corey. “The scope of this violation and impact to California’s air pollution challenge is significant -- more than 150,000 small off-road engines used without proper certification that also failed to meet California’s evaporative emissions standards. The excess raw fuel from these engines goes directly into the air where it becomes a fundamental building block of ozone and smog. The case also underscores the need to transition to clean equipment that does not rely on burning fuel.”
In addition to the penalty and as a condition of settlement, Honda is required to submit and implement a corporate compliance plan to fulfill all CARB regulations going forward. Honda will also forfeit about 80,000 banked emissions credits they have accumulated under the program as part of the settlement.
Honda cooperated with CARB to resolve all allegations of violating SORE and Evaporative Emissions Regulations. Honda’s settlement includes a $3.9 million civil penalty that will go to CARB’s Air Pollution Control Fund, which provides funding for projects and research to improve California's air quality. The remaining $3 million will fund several Supplemental Environment Projects (SEP), including installation of air filtration systems in Oakland schools, an air quality education program for students in Contra Costa and San Diego counties, and an HVAC replacement project to improve the air quality and efficiency of air conditioning and filtration systems in West Fresno elementary schools.
Previously, in April 2020, CARB settled with Honda
for nearly $2 million for exceeding the certified evaporative model emission limit under the SORE regulations.
Cotton Bleaching Company To Pay Nearly $1.5 Million for Acid Spill that Killed More than 270,000 Fish in the North River
Massachusetts Attorney General Maura Healey, the EPA and the Baker-Polito Administration announced that Barnhardt Manufacturing Company, a North-Carolina-based cotton bleaching company, has agreed to pay nearly $1.5 million to settle allegations that it spilled dozens of gallons of concentrated sulfuric acid from its Colrain facility into the North River, killing more than 270,000 fish, including thousands of state-listed rare species.
The state and federal settlements will also require the company to take steps to comply with water pollution, hazard management, and chemical accident prevention laws at their bleaching facility and associated wastewater treatment facility.
“The sulfuric acid spill caused by this company was devastating for the Colrain community and left long-lasting damage to the North River,” AG Healey said. “Today’s settlements will hold Barnhardt accountable for harming this rich ecosystem and will provide significant funding to restore nearby natural resources and fisheries.”
According to the AG’s complaint, on Sept.1, 2019, between approximately 53 and 60 gallons of concentrated sulfuric acid sprayed out of an outdoor above-ground storage tank at Barnhardt’s Colrain facility directly onto the ground. The AG’s Office alleges that Barnhardt knew the storage tank had a leak and neglected to repair it. Dozens of gallons of acid allegedly flowed into a nearby brook and down a three mile stretch of the North River, a pristine river and popular recreational fishery that feeds into the Deerfield River. According to the complaint, the acid dissolved nearly everything in its path, killing more than 270,000 fish and damaging more than 14 acres of protected wetland resource areas and over 12 acres of designated habitat of two state-listed rare species—the Longnose Sucker fish and the Ocellated Darner dragonfly. Barnhardt also allegedly discharged wastewater from its facility in excess of permitted limits on numerous occasions, improperly operated and maintained its wastewater treatment facility, and mismanaged hazardous waste oil.
The AG’s Office alleges Barnhardt’s acid spill and facility operations violated numerous Massachusetts environmental laws and regulations, including the state Wetlands Protection Act, Endangered Species Act, Clean Waters Act, and Hazardous Waste Management Act, and gave rise to significant damages under the Commonwealth’s Oil and Hazardous Material Release Prevention and Response Act and Inland Fisheries Statute.
EPA’s administrative settlement alleges, among other things, that the company failed to maintain its sulfuric acid tank in violation of the General Duty Clause of the Clean Air Act, which requires users of extremely hazardous substances to take steps to prevent and mitigate accidental releases.
Under the terms of the settlement with the AG’s Office, Barnhardt is required to comply with state regulations to protect water quality and natural resources at and around its facility and undertake additional training, planning, and operations to prevent future releases. Barnhardt will also pay up to $500,000 in penalties, including $200,000 to the Commonwealth’s Natural Heritage and Endangered Species Fund. Barnhardt will also fund the replacement and/or enhancement of one or more culverts located in the Deerfield River watershed in Colrain, at a cost of $300,000. Additionally, Barnhardt will pay the state more than $360,000 to fund environmental restoration projects in the Colrain area, to compensate for the harm to natural resources and fisheries, and to reimburse the costs of assessing natural resource damages.
EPA’s settlement requires a civil penalty payment of approximately $305,000 to the U.S. Treasury and work to ensure that chemical hazards at the plant are identified and addressed.
“EPA’s case complements the Commonwealth’s by addressing the root cause of the spill,” says EPA Acting Regional Administrator Deb Szaro. “It’s critical that companies handling hazardous chemicals identify hazards and ensure that their facilities are designed and maintained safely. Carefully following the Clean Air Act’s chemical accident prevention provisions helps prevent releases from occurring in the first place.”
The state settlement was negotiated in collaboration with the Massachusetts Department of Environmental Protection (MassDEP) and the Massachusetts Division of Fisheries and Wildlife (DFW). EPA brought its administrative case on a separate but parallel track.
“The North River is an important fishery and recreational asset that was severely affected by the release of industrial acid from the Barnhardt facility,” said Energy and Environmental Affairs Secretary Kathleen Theoharides. “This appalling situation was entirely preventable, and we trust that the settlement and improvements at the facility will prevent similar events in the future while helping to restore these local fisheries and natural resources.”
“The acid spill in Colrain devastated natural resources in the North River. This settlement will help prevent future spills from happening and compensate the public for the environmental damage that was caused,” said MassDEP Commissioner Martin Suuberg. “This settlement will also help ensure that Barnhardt complies with its effluent limits and toxicity levels as required under the Clean Water Act regulations.”
“I would like to thank the Deerfield River Chapter of Trout Unlimited, local anglers, and the many fishing guides who serve as our ‘eyes and ears’ on the river and first reported the fish kill that led to this action,” said Massachusetts Department of Fish and Game Commissioner (DFG) Ron Amidon. “We are very pleased that the Attorney General’s Office negotiated a settlement that provides $292,000 to the Division of Fisheries and Wildlife for fisheries and rare species restoration, and $300,000 to the Town of Colrain for culvert improvements that will further benefit cold water fish and native wildlife. We look forward to working with the local partners on efforts that will benefit trout and other wildlife in the North River and greater Deerfield River watershed.”
This case was handled for Massachusetts by Assistant Attorney General Turner Smith, Deputy Chief of AG Healey’s Environmental Protection Division, with the assistance of Assistant Attorney General Tracy Triplett, along with MassDEP Chief Regional Counsel Christine LeBel and technical staff members Brian Harrington, Matthew Sokop, Daniel Kurpaska, Saadi Motamedi, David Howland, Dave Slowick, Joel Rees, and Dave Foulis; MassDEP’s Natural Resources Damages Program Coordinator Michelle Craddock; DFG General Counsel Jennifer Sulla; and Chief of Regulatory Review Jesse Leddick, Senior Endangered Species Review Biologist Misty-Ann Marold, and Assistant Director of Fisheries Todd Richards, all of the DFG’s Division of Fisheries and Wildlife.
Additional $12 Million Fine for Illegally Using Pesticide at Corn Growing Fields
In court documents filed on December 8 in Hawaii, Monsanto Company agreed to plead guilty to 30 environmental crimes related to the use of a pesticide on corn fields in Hawaii, and the company further agreed to plead guilty to two other charges related to the storage of a banned pesticide that were the subject of a 2019 Deferred Prosecution Agreement (DPA).
Monsanto admitted in a plea agreement that it committed 30 misdemeanor crimes related to the use of a glufosinate ammonium-based product sold under the brand name Forfeit 280. After using the product in 2020 on corn fields on Oahu, Monsanto allowed workers to enter the fields during a six-day “restricted-entry interval” (REI) after the product was applied.
The plea agreement calls for Monsanto to serve three years of probation, pay a total of $12 million and continue for another three years a comprehensive environmental compliance program that includes third-party auditor.
As a result of the conduct in which Monsanto allowed workers on 30 occasions to enter fields sprayed with Forfeit 280 during the REI, the company violated a 2019 DPA related to the storage of a banned pesticide
. According to the documents filed, Monsanto will plead guilty to two felony charges filed in 2019 that the government would have dismissed if the company had complied with federal law. In conjunction with the DPA related to the two felony charges of illegally storing an acute hazardous waste, Monsanto pleaded guilty in early 2020 to a misdemeanor offense of unlawfully spraying a banned pesticide – specifically methyl parathion, the active ingredient in Penncap-M – on research crops at one of its facilities on Maui.
“Monsanto is a serial violator of federal environmental laws,” said United States Attorney Tracy L. Wilkison. “The company repeatedly violated laws related to highly regulated chemicals, exposing people to pesticides that can cause serious health problems.”
“The defendant in this case failed to follow regulations governing the storage of hazardous wastes and the application of pesticides, putting people and the environment at risk,” said Scot Adair, Special Agent in Charge of the EPA’s criminal enforcement program in Hawaii. “Today’s plea agreement shows that EPA will hold responsible those who violate laws designed to protect communities from exposure to hazardous chemicals.”
In the new case, Monsanto admitted that “due to a lack of oversight and supervision by Monsanto,” its workers violated a change to the REI period after the spraying of Forfeit 280 “by entering the fields 30 times to perform field-corn scouting within six days of spraying.” (“Corn scouting” consists of checking the corn for things such as weeds, insects and disease.) The REI change for Forfeit 280 – which was extended from 12 hours to six days – was part of an industry-wide change for products containing glufosinate ammonium prompted by an EPA decision in late 2016.
Monsanto admitted that it violated the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which regulates the registration, sale, distribution and use of pesticides, by failing to comply with Forfeit 280’s labeling. The label for Forfeit 280 stated: “It is a violation of Federal law to use Forfeit 280 in a manner inconsistent with its label.” Monsanto illegally used Forfeit 280 on Oahu facilities known as Lower Kunia and Haleiwa.
In the 2019 case related to Penncap-M, Monsanto pleaded guilty to a misdemeanor offense of unlawfully spraying the banned pesticide on corn seed and research crops at its Valley Farm facility on Maui in 2014. Monsanto admitted using Penncap-M in violation of FIFRA, even though the company knew its use was prohibited after 2013 pursuant to a “cancellation order” issued by the EPA. The company further admitted that, after the 2014 spraying, it told employees to re-enter the sprayed fields seven days later – even though Monsanto knew that workers should have been prohibited from entering the area for 31 days.
The felony offenses covered by the DPA – the two charges to which Monsanto will plead guilty – are the unlawful storage of an acute hazardous waste in violation of the Resource Conservation and Recovery Act (RCRA). Penncap-M was a “restricted use pesticide” that could not be purchased or used by the public, and it could only be used by a certified applicator because of the possible adverse effects to the environment and injury to applicators or bystanders that could result.
From March 2013 through August 2014, even though the pesticide was on the company’s lists of chemicals that needed disposal, Monsanto stored 160 pounds of Penncap-M hazardous waste at a facility on Molokai, which made Monsanto a “Large Quantity Generator” of hazardous waste under RCRA. “Monsanto knew that Penncap-M had the substantial potential to be harmful to others and to the environment,” it admitted in the documents filed.
In addition to spraying the banned pesticide at one of its three facilities on Maui, Monsanto also stored a total of 111 gallons of Penncap-M at Valley Farm and two other sites known as Maalaea and Piilani. Just like on Molokai, the storage of Penncap-M at the three Maui sites made Monsanto a “Large Quantity Generator” of acute hazardous waste at the three locations, according to court documents.
Furthermore, when it transported Penncap-M to its Valley Farm site in 2014, the company violated federal law when it failed to use a proper shipping manifest to identify the hazardous material and when it failed to obtain a permit to accept hazardous waste at that site.
In relation to the DPA and the prior guilty plea, Monsanto paid $10.2 million – a $6 million criminal fine under the DPA, a $200,000 fine for the FIFRA offense, and $4 million in community service payments to Hawaiian government entities.
In the plea agreement, Monsanto agreed to pay another $6 million criminal fine, as well as an addition $6 million in community service payments. Four Hawaiian agencies will receive $1.5 million payments:
- The Department of Agriculture, Pesticide Use Revolving Fund – Pesticide Disposal Program/Pesticide Safety Training;
- the Department of the Attorney General, Criminal Justice/Investigations Division;
- the Department of Health, Environmental Management Division, to support environmental-health programs; and
- the Department of Land and Natural Resources, Division of Aquatic Resources.
As a result of the two actions taken by the Justice Department, Monsanto has agreed to pay a total of $22.2 million for the two RCRA felonies and the 31 FIFRA misdemeanor offenses.
Monsanto has agreed to have representatives appear in United States District Court in the near future to enter guilty pleas to a total of 32 offenses. The sentence detailed in the court documents are subject to the approval of United States District Judge J. Michael Seabright.
This case is the result of an investigation by the U.S. Environmental Protection Agency, Criminal Investigation Division. This matter is being prosecuted by Assistant United States Attorneys Erik M. Silber and Dennis Mitchell of the Environmental and Community Safety Crimes Section and Mark A. Williams, Chief of the Environmental and Community Safety Crimes Section. In this case, these prosecutors are acting as special attorneys appointed by the Attorney General pursuant to 28 U.S.C. § 515. The United States Attorney’s Office for the District of Hawaii was recused from this investigation.
Pipeline Company Sentenced for Largest-Ever Inland Oil Spill
The pipeline company responsible for the discharge of 29 million gallons of oil-contaminated produced water – a waste product of hydraulic fracturing – was sentenced to pay a $15 million criminal fine and serve a three year period of probation by U.S. District Court Judge Daniel M. Traynor in Williston, North Dakota.
Summit Midstream Partners LLC pleaded guilty to criminal charges that it violated the Clean Water Act, as amended by the Oil Pollution Act of 1990, by negligently causing the discharge into U.S. waters in 2014, and deliberately failing to immediately report the spill to federal authorities as required. More than 700,000 barrels were discharged thereby contaminating Blacktail Creek and nearby land and groundwater. By law, the federal fines in this case will go to the Oil Spill Liability Trust Fund used to respond and clean up future oil spills.
“Summit is being held criminally accountable for its crimes of negligently discharging more than 29 million gallons over more than 4 months and then knowingly failing to report the discharge,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “Summit gave misleading and incomplete statements to the government about the duration and size of the spill. Through the civil and criminal cases, Summit is being held responsible for its misconduct and must implement more rigorous environmental management to prevent and detect future spills as a condition of probation.”
“The defendant in this case failed to take adequate measures to detect a spill of oil-contaminated water from their pipeline and provided incomplete and misleading information to government officials on the duration and volume of the spill,” said Acting Assistant Administrator Larry Starfield of the EPA’s Office of the Enforcement and Compliance Assurance. “Investigations revealed that the spill occurred over 143 days and released more than 29 million gallons of contaminated waters into the environment, including tributaries of the Missouri River. This case sends a clear message that EPA and our law enforcement partners will hold responsible companies that fail to take appropriate steps to detect and prevent spills.”
A detailed statement of facts has been filed in court and is publicly available here. According to the factual admission agreed to by the company, “Summit’s negligence included the design, construction and operation of the Marmon Water Gathering System pipeline, as well as the negligent failure to find and stop the spill after learning of objective signs of a leak.” Summit started pipeline operations without meters at both ends of the pipeline to conduct “line balancing” or otherwise having a reliable leak detection system in place. “Even after the company learned of major drops in pressure and volume – objective signs of a leak – the company negligently continued operations and thus caused millions of additional gallons to be discharged into U.S. waters without learning the cause or pausing operations,” according to the joint factual statement.
The criminal fine is in addition to a $20 million civil penalty imposed on Summit Midstream Partners LLC and a related company, Meadowlark Midstream Company LLC, to resolve civil violations of the Clean Water Act and North Dakota water pollution control laws. On Sept. 28, the civil consent decree was approved by the U.S. District Court for the District of North Dakota.
The criminal investigation was conducted by EPA’s Criminal Investigation Division. EPA’s Office of Enforcement and Compliance Assurance, EPA Region 8, the North Dakota Department of Environmental Quality, the North Dakota Industrial Commission, the U.S. Fish and Wildlife Service, the U.S. Department of Interior and the North Dakota Department of Game and Fish provided assistance to the criminal investigation.
The criminal case was prosecuted by Senior Litigation Counsel Richard A. Udell, Senior Trial Attorney Christopher J. Costantini, Trial Attorneys Stephen J. Foster and Erica H. Pencak of the Environmental Crimes Section of the Department of Justice’s Environment and Natural Resource Division and Assistant U.S. Attorney Gary Delorme.
Giumarra Vineyards Required to Improve Chemical Safety
EPA announced a settlement with Giumarra Vineyards Corporation for alleged violations of Clean Air Act chemical safety requirements. The violations pertain to the facility’s anhydrous ammonia refrigeration system that is used for grape packing and storage. Under the terms of the consent agreement and final order with EPA, Giumarra will pay $188,882 in civil penalties and make significant safety improvements to the facility to ensure protection of the public and first responders from dangerous chemicals.
Anhydrous ammonia can cause serious, often irreversible health effects when released. In addition to potential impacts from inhalation of or skin contact with this substance, it is highly flammable.
“It is paramount that any facility that handles extremely hazardous substances such as anhydrous ammonia reduce the risk of releases,” said EPA Pacific Southwest Regional Director of Enforcement and Compliance Division, Amy Miller. “We’re encouraged that Giumarra will invest in making the facility safer and provide first responders important hazardous chemical information as a result of this settlement.”
On September 12, 2019, EPA conducted an inspection of the Giumarra facility at 11220 Edison Highway in Bakersfield, California. EPA identified significant violations of Clean Air Act chemical safety requirements and Emergency Planning and Community Right-to-Know Act requirements.
At the time of the inspection, conditions revealed the ammonia refrigeration system was not designed to meet safety standards. The inspection found several deficiencies, including:
- Inadequate documentation that the facility’s refrigeration system was designed to prevent releases of anhydrous ammonia.
- Failure to promptly address critical safety recommendations.
- An insufficient operation and maintenance program for the refrigeration system.
- Insufficient emergency response training for employees if an accidental release of ammonia were to occur.
- Inaccurate hazardous chemical reporting to first responders and safety regulators.
In addition to paying a penalty of $188,882, Giumarra agreed to make significant safety improvements to its facility. Several such safety upgrades to the refrigeration system have already been made, including improvements to a machinery room emergency ventilation system, installation of a safety shower and eye wash station and pressure relief valves, repair of damaged refrigeration equipment, and the addition of safety signage and labeling. The facility will be replacing pressure vessels in its ammonia refrigeration systems. It will also replace the louvered doors in its ammonia machinery rooms with solid panel doors to comply with industry standards, among other tasks.
Thousands of facilities nationwide make, use, and store extremely hazardous substances, including anhydrous ammonia. Catastrophic accidents at ammonia refrigeration facilities—historically about 150 each year—result in fatalities and serious injuries, evacuations, and other harm to human health and the environment. EPA inspects these facilities as part of the Agency’s National Compliance Initiative, which seeks to reduce risk to human health and the environment by decreasing the likelihood of accidental releases and mitigating the consequences of chemical accidents.
To find information on chemical accidental prevention requirements under the Clean Air Act, please visit: https://www.epa.gov/rmp
Torrance Chemical Company Fined for Safety Violations
EPA announced a settlement with JCI Jones Chemicals, Inc. over Clean Air Act violations at its chemical facility in Torrance, California. JCI supplies chemicals to disinfect water systems and manufactures some chemicals on-site. JCI will pay a $200,000 penalty and restore its facility to compliance with the chemical accident prevention requirements of the Clean Air Act.
“Preventing accidental releases is paramount in our mission to protect human health and the environment,” said Amy Miller, EPA’s Enforcement and Compliance Assurance Division Director for the country’s Pacific Southwest region. “This settlement ensures JCI takes appropriate steps to make its facility safer for neighboring communities.”
In 2015 and 2017, EPA inspectors found violations of the Clean Air Act’s Chemical Accident Prevention requirements
at the JCI facility at 1401 W. Del Amo Blvd. Among other violations, EPA found that JCI failed to address corrosion deficiencies in pipes, replace chlorine hoses prior to the replacement date, translate operating procedures for its Spanish-speaking employees, and adequately address in its hazard analysis the previous derailment of a railcar carrying sulfur dioxide.
In addition to paying the penalty, JCI has agreed to follow a schedule for translating its operating procedures and safe work practices into Spanish, to adopt a computerized maintenance management system, and to implement an accelerated schedule for emergency response exercises.
U.S. Minerals Pleaded Guilty In August To Negligent Endangerment, a Misdemeanor, Under The Clean Air Act
U.S. District Judge Dana L. Christensen sentenced U.S. Minerals as recommended in a plea agreement to a maximum of five years of probation and to pay a $393,200 fine. The criminal fine is in addition to civil penalties totaling $106,800 imposed by the Occupational Safety and Health Administration in a related civil proceeding, bringing the total amount to be paid by U.S. Minerals to $500,000.
Probationary conditions require U.S. Minerals to implement a medical monitoring program for employees who were exposed to elevated levels of arsenic during their work at the Anaconda plant and a nationwide environmental health and safety plan at all five of its plants throughout the United States. The Anaconda plant ceased operations in June. The company operates plants in Illinois, Wisconsin, Kansas, Texas and Louisiana.
“Despite repeated warnings and enforcement actions from regulators, U.S. Minerals continued to poison its workers and put profits before the well-being of its employees. U.S. Minerals’ history of misconduct showed a lack of care for employee safety and an utter disregard for regulations intended to protect human health and the environment. This case ends U.S. Minerals’ criminal conduct in Montana and will hold it accountable at its other plants,” U.S. Attorney Johnson said. “I want to thank Assistant U.S. Attorney Ryan G. Weldon, Special Assistant U.S. Attorney Eric E. Nelson, the Environmental Protection Agency’s Criminal Investigation Division, the U.S. Department of Labor, Occupational Safety and Health Administration, the National Institute for Occupational Safety and Health, and the Montana Department of Public Health and Human Services for investigating this case and bringing these wrongdoers to justice.”
“U.S. Minerals exposed its employees to toxic levels of arsenic, a hazardous air pollutant known to pose significant health risks,” said Special Agent in Charge Lance Ehrig of EPA’s Criminal Investigation Division in Montana. “Today’s sentencing demonstrates that EPA and its partners will hold corporations accountable when they ignore environmental regulations and jeopardize the health of workers.”
“The continued dedication of the Environmental Protection Agency and the United States Department of Justice, working in collaboration with the Occupational Safety and Health Administration, achieved justice and improved health and safety working conditions for the employees of U.S. Minerals nationwide. By working together, we leveraged a multi-agency front and held U.S. Minerals accountable for violating multiple federal laws and overexposing employees to inorganic arsenic,” said Jennifer Rous, Regional Administrator for OSHA’s Denver Region.
The government alleged in court documents that U.S. Minerals manufactured silicate abrasive, a substance sold to industrial and governmental customers. Raw materials used in the production process were obtained from a waste copper slag pile, located within the Anaconda Superfund site. Processing the slag generates dust, which releases inorganic arsenic into the air. The government further alleged that from July 2015 until February 2019, U.S. Minerals negligently released inorganic arsenic, a hazardous air pollutant, into the air and exposed employees. Exposure to arsenic is known to cause lung and skin diseases, including an increased risk of skin cancer, and may also cause cardiovascular effects and other cancers.
The government further alleged that in 2015, the National Institute for Occupational Safety and Health (NIOSH) and OSHA each inspected the site and found numerous violations of health and safety standards that resulted in $106,800 in OSHA penalties.
In 2018, the Montana Department of Public Health and Human Services learned of health-related issues affecting U.S. Minerals employees, visited the site and informed the company that its employees were exposed to “apparent inhalation hazards” from dust. A second inspection found the violations were unresolved. Montana shut down U.S. Minerals in February 2019. When the state allowed operations to resume in March 2019, employees continued to test high for arsenic and lead.
Assistant U.S. Attorney Ryan G. Weldon and Special Assistant U.S. Attorney Eric E. Nelson prosecuted the criminal case, which was investigated by the Environmental Protection Agency’s Criminal Investigation Division, OSHA, NIOSH, and the Montana Department of Public Health and Human Services. The U.S. Department of Labor’s Office of the Solicitor litigated the OSHA matter.
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