March 15, 2021
- The facility has 10 or more full-time employee equivalents (i.e., a total of 20,000 hours or greater; see 40 CFR 372.3);
- The facility is included in a NAICS code listed in Table I; and
- The facility manufactures (defined to include importing), processes, or otherwise uses any EPCRA Section 313 chemical in quantities greater than the established threshold in the course of a calendar year. Reporting thresholds are listed in Section B.4.
In 1993, Executive Order 12856, which remains in effect today, extended these reporting requirements to federal facilities, regardless of their SIC or NAICS code.
The following changes have been incorporated into TRI reports (known as Form R and Form A) for reporting year 2020 reports, due July 1, 2021.
: Section 7321 of the National Defense Authorization Act for Fiscal Year 2020 (P.L. 116-92) (NDAA) added 172 Per- and Polyfluoroalkyl Substances (PFAS) with an effective date of January 1, 2020, to the TRI list. Reporting on these chemicals is effective for Reporting Year 2020, so the first reports are due by July 1, 2021, for the 2020 chemical data. A list of these chemicals is available on the TRI-Listed Chemicals webpage.
Corrections to TRI Reporting Requirements
: A rule was published on July 14, 2020 (85 FR 42311)
, updating identifiers, formulas, and names for certain TRI-listed chemicals described in the Code of Federal Regulations (CFR) and updating the text that identifies to which chemicals the 0.1% de minimis
concentration applies, to remedy a cross-reference to a no-longer-accurate OSHA regulatory citation. These corrections maintain previous regulatory actions and do not alter existing reporting requirements.
The rule also included correcting inaccurate Chemical Abstracts Service Registry Numbers (CASRNs). The CASRN for phosphorous (yellow or white) was changed from 7723-14-0 to 12185-10-3 because 12185-10-3 is the correct CASRN for the yellow or white form of phosphorous. Esnure that the phosphorous reported on is the yellow or white form and use the correct CASRN. The CASRN for d-trans-allethrin was changed from 28057-48-9 to 28434-00-6 since the old CASRN has been dropped by CAS. You should report for d-trans-allethrin using the new CASRN.
In addition, the rule updated the formula for the cyanide compounds category to exclude hydrogen cyanide which is individually listed and should not be reported under the cyanide compounds category.
Updated De Minimis Levels for Pyridine, Methyl Acrylate, Quinoline, and Vinylidene Chloride Beginning with Reporting Year 2020: Per the requirements of 40 CFR 372.38(a), the de minimis levels for pyridine (110-86-1), methyl acrylate (96-33-3), quinoline (91-22-5), and vinylidene chloride (75-35-4) have changed from 1.0% to 0.1% since these chemicals are now classified as OSHA carcinogens due to assessments by the International Agency for Research on Cancer (IARC).
To help with tracking and collecting data for reporting year 2021, beginning with reporting year 2021, the de minimis levels for 1,2-phenylenediamine (95-54-5) and 1,2-phenylenediamine dihydrochloride (615-28-1) will be changed from 1.0% to 0.1% as they will also be classified as OSHA carcinogens due to assessments by IARC.
: If your facility was impacted by COVID-19 (e.g., temporarily shut down, reduced production or operations) during RY2020, you may be reporting different quantities on the Form R than usual. Note that TRI reporting regulations have not changed; you are still required to consider all chemical activities on-site during the calendar year in determining whether they must report to TRI. Additional guidance on reporting Section 8 data (i.e., production-related and non-production-related data) is found in Section D.8.8
of EPA’s instructions.
To help you get the training you need, Environmental Resource Center has a number of upcoming live webcast training courses. Stay in compliance and learn the latest regulations from the comfort of your office or home. You’ll receive the same benefits as our seminar attendees including expert instruction, comprehensive course materials, one year of access to our AnswerlineTM
service, course certificate, and a personalized user portal on Environmental Resource Center’s website.
Environmental Resource Center training is the best way to learn about the environmental, safety, and hazardous materials transportation requirements that apply to your site. Learn from the experts and get your site-specific questions answered at these sessions this week:
OSHA Must Decide on Mandating Covid Workplace Masks Today (March 15, 2021)
On January 21, President Biden issued Executive Order 13999 entitled “Protecting Worker Health and Safety
.” Section 2(b) of the order required OSHA to “consider whether any emergency temporary standards on COVID-19, including with respect to masks in the workplace, are necessary, and if such standards are determined to be necessary, issue them by March 15, 2021.” By the time you read this, the temporary standard may have been issued, or OSHA might announce its decision to delay or not issue the standard. We’ll cover OSHA’s decision in next week’s Tip of the Week. Can’t wait? Get a copy of OSHA’s ruling as soon as it becomes available by sending an email to firstname.lastname@example.org
New OSHA National Emphasis Program to Protect High-Risk Workers from Coronavirus
In response to President Biden's executive order on protecting worker health and safety, OSHA has launched a national emphasis program
focusing enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus. The program also prioritizes employers that retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.
"This deadly pandemic has taken a staggering toll on U.S. workers and their families. We have a moral obligation to do what we can to protect workers, especially for the many who have no other protection," said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Jim Frederick. "This program seeks to substantially reduce or eliminate coronavirus exposure for workers in companies where risks are high, and to protect workers who raise concerns that their employer is failing to protect them from the risks of exposure."
NEP inspections will enhance the agency’s previous coronavirus enforcement efforts, and will include some follow-up inspections of worksites inspected in 2020. The program’s focused strategy ensures abatement and includes monitoring the effectiveness of OSHA’s enforcement and guidance efforts. The program will remain in effect for up to one year from its issuance date, though OSHA has the flexibility to amend or cancel the program as the pandemic subsides.
"With more people being vaccinated and the number of infections trending down, we know there is light at the end of the tunnel. But until we are past this pandemic workers deserve a Labor Department that is looking out for their health," added Frederick.
OSHA state plans have adopted varying requirements to protect employees from coronavirus, and OSHA knows many of them have implemented enforcement programs similar to this NEP. While it does not require it, OSHA strongly encourages the rest to adopt this NEP. State plans must notify federal OSHA of their intention to adopt the NEP within 60 days after its issuance.
In a related action, OSHA has also updated its Interim Enforcement Response Plan
to prioritize the use of on-site workplace inspections where practical, or a combination of on-site and remote methods. OSHA will only use remote-only inspections if the agency determines that on-site inspections cannot be performed safely. On March 18, 2021, OSHA will rescind the May 26, 2020, memorandum on this topic and this new guidance will go into and remain in effect until further notice.
OSHA will ensure that its Compliance Safety and Health Officers have every protection necessary for onsite inspections. When conducting on-site inspections, OSHA will evaluate all risk and use appropriate protective measures, including appropriate respiratory protection and other necessary personal protective equipment.
New OSHA Enforcement Plan for COVID
OSHA announced that its new enforcement of workplace safety and health requirements will reduce the risk of workplace transmissions of SARS-CoV-2. The agency's updated Response Plan prioritizes enforcement and focuses on employers that are not making good faith efforts to protect workers.
The following summarizes OSHA's updated strategy:
- OSHA will continue to implement the U.S. Department of Labor's (DOL) COVID-19 Workplace Safety Plan to reduce the risk of COVID-19 transmission to OSHA CSHOs during inspections.
- Pursuant to the March 12, 2021, National Emphasis Program (NEP) for COVID-19, DIR 2021-01 (CPL-03), OSHA will prioritize COVID-19-related inspections involving deaths or multiple hospitalizations due to occupational exposures to COVID-19. In addition, this NEP will include the added focus of ensuring that workers are protected from retaliation.
- Where practical, OSHA will perform on-site workplace inspections:
- OSHA's goal is to identify exposures to COVID-19 hazards, ensure that appropriate control measures are implemented, and address violations of OSHA standards and the General Duty Clause.
- OSHA will at times use phone and video conferencing, in lieu of face-to-face employee interviews, to reduce potential exposures to CSHOs. In instances where it is necessary and safe to do so, in-person interviews shall be conducted.
- OSHA will also minimize in-person meetings with employers and encourage employers to provide documents and other data electronically to CSHOs.
- In all instances, Area Directors (AD) will ensure that CSHOs are prepared and equipped with the appropriate precautions and personal protective equipment (PPE) when performing on-site inspections related to COVID-19 and throughout the pandemic.
- To the extent possible, all inspections should be conducted in a manner to achieve expeditious issuance of COVID-19-related citations and abatement.
- In cases where on-site inspections cannot safely be performed (e.g., if the only available CSHO has reported a medical contraindication), the AD will approve remote-only inspections that may be conducted safely.
- Inspections conducted entirely remotely will be documented and coded N-10-COVID-19 REMOTE.
Study Indicates that Humidity in Breath Makes Cotton Masks More Effective at Slowing the Spread of COVID-19
Researchers have come up with a better way to test which fabrics work best for masks that are meant to slow the spread of COVID-19. By testing those fabrics under conditions that mimic the humidity of a person’s breath, the researchers have obtained measurements that more accurately reflect how the fabrics perform when worn by a living, breathing person.
The new measurements show that under humid conditions, the filtration efficiency — a measure of how well a material captures particles — increased by an average of 33% in cotton fabrics. Synthetic fabrics performed poorly relative to cotton, and their performance did not improve with humidity. The material from medical-procedure masks also did not improve with humidity, though it performed in roughly the same range as cottons.
This study, conducted by scientists at the National Institute of Standards and Technology (NIST) and the Smithsonian’s Museum Conservation Institute, was published in ACS Applied Nano Materials. An earlier study
by the same research team showed that dual-layer masks made of tightly woven cotton fabrics with a raised nap, such as flannels, are particularly effective at filtering breath. That study was conducted under relatively dry conditions in the lab, and its main finding still stands.
“Cotton fabrics are still a great choice,” said NIST research scientist Christopher Zangmeister. “But this new study shows that cotton fabrics actually perform better in masks than we thought.” The researchers also tested whether humidity makes the fabrics harder to breathe through and found no change in breathability.
Scanning electron microscope images of cotton flannel (left) and polyester (right). Cotton fibers absorb moisture from breath, which increases filtration. Each segment of the image scale bars is 50 micrometers, or millionths of a meter — roughly the width of a human hair.
The Centers for Disease Control and Prevention (CDC) recommends
that people wear masks to slow the spread of COVID-19. When worn correctly, those masks filter out some of the virus-filled droplets that an infected person exhales and also offer some protection to the wearer by filtering incoming air.
This study is one of several, conducted by NIST and other organizations, that contributed to the first standards for fabric masks meant to slow the spread of COVID-19. Those standards were recently released by the standards-developing organization ASTM International
The filtration efficiency of cotton fabrics increases in humid conditions because cotton is hydrophilic, meaning it likes water. By absorbing small amounts of the water in a person’s breath, cotton fibers create a moist environment inside the fabric. As microscopic particles pass through, they absorb some of this moisture and grow larger, which makes them more likely to get trapped. Most synthetic fabrics, on the other hand, are hydrophobic, meaning they dislike water. These fabrics do not absorb moisture, and their filtration efficiency does not change in humid conditions.
For this study
, the team tested fabric swatches, not actual masks. First, they prepared dual-layer fabric swatches by placing them inside a small box where the air was maintained at 99% humidity — roughly the same as a person’s exhaled breath. For comparison, a second set of swatches were prepared at 55% humidity. After the fabrics reached an equilibrium with the humidified air, the researchers placed them in front of a pipe that emitted air at about the same velocity as exhaled breath. That air carried salt particles in a range of sizes typical of the droplets that a person exhales when breathing, speaking and coughing. This salt particle method is recommended
by the CDC’s National Institute for Occupational Safety and Health (NIOSH) for measuring the filtration performance of mask-making materials.
The researchers calculated filtration efficiency by measuring the number of particles in the air before and after it passed through the fabric. They measured breathability by measuring the air pressure on both sides of the fabric as the air passed through it.
The researchers tested nine different types of cotton flannel, which under humid conditions increased their filtration efficiencies from 12% to 45%, with an average increase of 33%. They tested six types of synthetic fabric, including nylon, polyester and rayon. All performed poorly in comparison to cotton flannel regardless of humidity. Medical-procedure masks and N95 respirator masks provided the same filtration efficiency under both high and low humidity conditions.
“Cotton fabrics are still a great choice. But this new study shows that cotton fabrics actually perform better in masks than we thought,” said NIST research scientist Christopher Zangmeister. While the change in performance for cotton flannels is large, they don’t actually absorb very much water. Under humid conditions, a two-layer cotton flannel mask absorbs about 150 milligrams of water from human breath, the equivalent of just one or two drops. If fabric masks actually get wet in other ways, they may become difficult to breathe through, and the CDC advises
that people not wear them for activities such as swimming. If masks become wet due to weather, they should be changed.
While this research provides useful information for people who wear face masks, it also holds lessons for scientists who are working to improve masks and measure their performance.
“To understand how these materials perform in the real world,” Zangmeister said, “we need to study them under realistic conditions.”
Man Arrested for Felony Commercial Littering
The Florida Department of Environmental Protection (DEP) announces the recent arrest of a Tampa resident on felony charges related to illegal dumping on private property.
Earlier this month, DEP's Environmental Crimes Unit (ECU) initiated an investigation upon discovering that large amounts of bentonite clay, a substance commonly used in horizontal drilling operations, were dumped on a private property in a remote area of Palmetto, Florida.
During surveillance conducted over a two-day period, ECU agents captured the suspect using a commercial vehicle to illegally dump an estimated 1,000 gallons of the clay, covering approximately 704 square feet of soil at the property.
On March 4, DEP arrested the suspect and charged him with two counts of felony commercial littering. The suspect was transported and booked into the Manatee County Jail without incident. DEP is coordinating with the suspect's employer to ensure proper cleanup of the area.
“DEP will not permit bad actors to jeopardize the health of our environment,”said DEP Secretary Noah Valenstein. “Perpetrators will be investigated and held accountable by DEP’s Environmental Crimes Unit, a team that works day in and day out to ensure the protection of Florida’s natural resources. We encourage all residents to do their part to safeguard their neighborhoods and report all confirmed or suspected environmental crimes immediately.”
Clean Fuel Standard Act Passed New Mexico Senate
When enacted, the Clean Fuel Standard Act will establish a market-based approach to cut greenhouse gas emissions from transportation fuels, requiring fuel producers and importers to reduce the amount of carbon in fuels used in New Mexico — a 10% reduction by 2030 and a 28% reduction by 2040. That’s the equivalent of taking over 46,000 cars off the road every year for 15 years.
“Thank you to my colleagues in the Senate for supporting this legislation, which will result in huge economic benefits for New Mexico,” said sponsor Sen. Mimi Stewart. “I’m sure the more than 20 companies who have expressed interest in expanding or establishing operations in New Mexico if a Clean Fuel Standard passes are also celebrating today.”
“Lower carbon fuels – like hydrogen and electricity – will pave the way to a greener economy and cleaner transportation sector,” said New Mexico Environment Department Cabinet Secretary James Kenney. “Today, we took a step forward in jump starting new and expanded investment in New Mexico.”
While a Clean Fuel Standard requires fuel producers to reduce the carbon intensity of transportation, it also establishes a voluntary, market-based credits program available to all types of industries who reduce emissions from their operations. Credits may be generated from any business in any sector of our economy – including the agriculture, chemical, dairy, energy, film, forestry, manufacturing, mining, oil and gas, waste management and wastewater treatment industries.
“This forward-thinking legislation will boost private investment in innovative technologies that will assist New Mexico in transitioning to cleaner energy sources while attracting new businesses and creating jobs,” said New Mexico Economic Development Department Secretary Alicia J. Keyes.
New Mexico’s large agriculture industry would also benefit by becoming suppliers for New Mexico’s low carbon fuels market, selling the large quantities of biomass (for example, tallow and cow manure from dairy farms in Clovis, pecan shells from orchards in Doña Ana County and other organic waste from operations) they produce.
“This will open the doors for New Mexico farmers, ranchers and dairy producers to be able to supply the biomass to produce clean energy fuels,” said New Mexico Agriculture Secretary Jeff Witte.
Fuel producers and importers can meet a lower carbon fuel standard by purchasing credits if they are not able to produce fuels that meet the carbon standard. The Clean Fuel Standard Act does not apply to retailers of transportation fuels, like gas stations.
“New Mexico is now one step closer to establishing a Clean Fuel Standard which will help reduce emissions – a key priority for this administration,” said Energy, Minerals and Natural Resources Department Cabinet Secretary Sarah Cottrell Propst. “This bill proves that we can tackle the climate crisis while diversifying our economy.”
One of the most often-asked questions on a Clean Fuel Standard is how price at the pump will be affected for New Mexico consumers. Research indicates that in California, where a Clean Fuel Standard is already in place, gasoline prices per gallon are actually lower than they were when the Clean Fuel Standard program was implemented. Estimates show that California’s Clean Fuel Standard contributes 1% at most to the price of each gallon of gas.
The legislation, sponsored by Sen. Mimi Stewart and Rep. Nathan Small, requires the New Mexico Environment Department (NMED) to develop rules within 24 months of the bill becoming law. The Clean Fuel Standard Act does not present a numerical standard for any fuel, as that will be selected during the NMED rulemaking process.
The legislation now heads to the House. More information about the Clean Fuel Standard Act and letters of support for the Clean Fuel Standard are available here
Natural Gas Foam Can Reduce Water Use in Fracking
Southwest Research Institute has completed a pilot-scale facility to create and test natural gas foam as a safe and stable alternative to water for hydraulic fracturing, commonly known as fracking. The six-year project is part of an effort to show that stable natural gas foam can be generated on-site at fracking locations using commercially available products.
Fracking involves injecting high-pressure fluids into wells thousands of feet deep to fracture rock formations and stimulate the flow of oil and natural gas. This process typically requires millions of gallons of water to inject sand and chemicals into these fractures to enhance production.
“Fracking doesn’t always occur near water resources, so the water has to be trucked in,” said Griffin Beck, the project’s principal investigator. “That process is time-consuming, and can wreak havoc on local roads and related transportation infrastructures, not to mention the tens of millions of gallons of water consumed by the fracking process.”
In 2014, Beck and his SwRI colleagues began exploring natural gas foam as an alternative to water. Natural gas, they noted, is abundant in areas where fracking occurs and is often discarded through burning, which produces harmful carbon emissions. Additionally, pumping pressurized water can cause a hindrance in many reservoir types, especially clay, which swells in contact with water and prevents oil from escaping.
The SwRI team determined the most efficient way to create the natural gas foam was to use standard compressors to pressurize the natural gas, and then mix it with water to create the natural gas foam. “The foam is created by jetting the natural gas stream into the pressurized water,” Beck said. “The process utilizes up to 80% less water than typical fracking treatments.”
The team then created a test facility to investigate the properties of the natural gas foam, demonstrating that it could be created on-site as an additional step to the fracking process. Beck and his colleagues created a foam generation apparatus capable of supplying high-pressure foam to a fracture test stand.
Beck found that the foam’s viscosity allowed it to carry sand particles into fractures as efficiently as pressurized water. Additionally, he found that the foam’s properties produced less swelling in clay environments and possibly even increased production rates. Currently only a fraction of the petroleum in most reservoirs can be extracted.
“We created a reservoir model to test the foam’s efficiency,” Beck said. “We compared production to a reservoir treated with water and with natural gas foam. The model showed a 25% improvement in cumulative oil production.”
Beck hopes to eventually see the foam tested in the field. The project is scheduled to complete in March 2021, with $2.67 million in funding from the U.S. Department of Energy. For more information, visit Foam Research Facility
Bacterial Film Separates Water from Oil
Researchers have demonstrated that a slimy, yet tough, type of biofilm that certain bacteria make for protection and to help them move around can also be used to separate water and oil. The material may be useful for applications such as cleaning contaminated waters.
In the journal Langmuir
, North Carolina State University researchers reported
the findings of an experiment in which they used a material produced by the bacteria Gluconacetobacter hansenii
as a filter to separate water from an oil mixture.
“It’s really remarkable to think that these little bugs can make this stuff that is so perfect in many ways,” said Lucian Lucia
, the study’s corresponding author and an associate professor of forest biomaterials and chemistry at NC State.
The biofilm the bacteria make and release into their environment is made of cellulose, which is the same material that gives plants a sturdy structure in their cell walls. However, when bacteria make cellulose, it has a tightly packed, crystalline structure, researchers said.
“It’s one of the purest, if not the purest, forms of cellulose out there,” Lucia said. “It’s very well structured. It’s very water loving, and it’s got a very high crystallinity, so it packs very beautifully. Once you strip out the bacteria, you have this amazingly tough material that has a real robustness, or toughness.”
The bacteria make the film to protect themselves, the researchers said. “If you leave something like an unwashed dish out, it can turn all slimy and gross – that’s a biofilm,” said study co-author Wendy Krause
, associate professor of textile engineering, chemistry and science at NC State. “Different bacteria make different biofilms. The bacterial film that we’re studying is made of cellulose. The bacteria are making it because they live on it and in it. They’re making their home.”
In the experiment, researchers used the bacteria as factories of cellulose nano-fibers. They then removed the bacteria and their non-cellulose residue. Finally, the researchers used the cellulose membrane to see if it could separate water from a solution containing both oil and water.
They found the material was effective at removing water, and it was sturdy. “The oil doesn’t want to go through the membrane; it has a repulsive effect to it,” Lucia said. “It’s super fat-hating.” “If the oil and water were highly mixed, it doesn’t matter,” Krause added. “You could put an immersion blender into the solution, and the membrane will still separate the water and oil.”
Researchers see a variety of potential applications for the material in situations where you need to recover water from an oily mixture – whether it be to clean water contaminated with a textile dye or for environmental remediation. In future work, the researchers want to explore how they can tailor the membrane by chemically modifying it for certain applications.
The study, “Bacterial Superoleophobic Fibrous Matrices: A Naturally Occurring Liquid-Infused System for Oil-Water Separation,” was published online in the journal Langmuir
on Feb. 19.
Premier Performance Fined $3 Million for Selling Defeat Devices
EPA announced that Premier Performance of Rexburg, Idaho, one of the nation’s largest sellers of aftermarket automotive parts, has agreed to pay a $3 million penalty under the Clean Air Act for illegally selling emissions-control defeat devices to businesses and individuals throughout the U.S.
EPA alleged that from approximately January 2017 to February 2019, the company and three of its related companies -- JB Automotive in Iowa, RallySportDirect in Utah, and Stage 3 Motorsports in Arizona -- manufactured or sold at least 64,299 parts or components that bypass, defeat, or render inoperative the manufacturers’ technology and design necessary to reduce vehicle emissions to meet state and federal Clean Air Act standards.
EPA estimated that -- in terms of oxides of nitrogen (or NOx) -- the emissions impact of removing emission controls from just one pickup truck is equivalent to putting about 300 new pickup trucks on the road. EPA estimates this action will prevent the release of approximately 3.5 million pounds of air pollution per year.
“These companies sold tens of thousands of aftermarket defeat devices, and as a result, tens of thousands of trucks now operate without the filters, catalysts and other emissions controls that help keep our air clean,” said Ed Kowalski, Director of EPA Region 10’s Enforcement and Compliance Assurance Division. “These settlements will prevent future violations by requiring the companies to ensure that the products they sell do not adversely affect emissions.”
Tampered diesel pickup trucks emit large amounts of NOx and particulate matter, both of which contribute to serious public health problems in the United States. These problems include premature mortality, aggravation of respiratory and cardiovascular disease, aggravation of existing asthma, acute respiratory symptoms, chronic bronchitis, and decreased lung function. Numerous studies also link diesel exhaust to increased incidence of lung cancer.
To meet emission standards intended to protect public health, manufacturers employ certain hardware devices -- such as exhaust gas recirculation, diesel particulate filters, and selective catalytic reduction -- as emission control systems to manage and treat exhaust to reduce levels of particulate matter, non-methane hydrocarbons, NOx, and carbon monoxide released into the air. These hardware systems are operated and monitored by software systems.
In an agreement
reached in February, the companies have agreed to stop manufacturing and selling all products that violate the CAA and have advised EPA that they have implemented work practice standards and procedural safeguards to prevent the sale of defeat devices.
The parts were designed and marketed for use on makes and models of diesel pickup trucks and engines manufactured by Cummins Inc., FCA US LLC, General Motors Company, and Ford Motor Company.
EZ Lynk Caught Selling Emissions Control Defeat Devices
Audrey Strauss, United States Attorney for the Southern District of New York, and Larry Starfield, Acting Assistant Administrator for the EPA Office of Enforcement and Compliance Assurance announced that the United States has filed a civil lawsuit against Cayman Islands-based EZ LYNK, SEZC, a related company, Prestige Worldwide, SEZC, and their U.S.-based founders and owners, Bradley Gintz and Thomas Wood. The lawsuit alleges that Defendants manufacture and sell a defeat device designed to permit car and truck owners to remove computerized emissions controls in violation of the Clean Air Act. The complaint also alleges that EZ LYNK, GINTZ, and WOOD violated the Clean Air Act by refusing to provide EPA with information about the manufacture, sale, and use of EZ LYNK’s defeat device.
U.S. Attorney Audrey Strauss said: “Emissions controls on cars and trucks protect the public from harmful effects of air pollution. EZ Lynk has put the public’s health at risk by manufacturing and selling devices intended to disable those emissions controls. Through our lawsuit, we will prevent Defendants from continuing to sell this product and impose civil penalties to hold them to account.”
EPA Acting Assistant Administrator Larry Starfield stated: “EZ Lynk refused to cooperate with EPA’s investigation, and all the while continued to sell aftermarket defeat devices that resulted in harmful air pollution. This is not acceptable and EPA will work diligently with the Department of Justice to stop the illegal activities and ensure that EZ Lynk complies with the Clean Air Act.”
The complaint filed in Manhattan federal court alleges that for more than four years, Defendants violated the Clean Air Act’s prohibition on defeat devices. Among other things, the complaint alleges that the Clean Air Act requires motor vehicle manufacturers to design vehicles to meet detailed standards for limiting the emission of harmful air pollutants, which are linked to premature death and cause heart and lung disease, heart attacks, and aggravated asthma, among other serious illnesses. To achieve these limitations, vehicles contain both hardware components and software that work together to maintain vehicle emissions within legal limits. The Clean Air Act makes it illegal to manufacture, sell, offer to sell, or cause to be sold any part or component that has a principal effect of defeating emissions controls, if the defendant knew or had reason to know the product is put to this use.
EZ LYNK manufactures and sells a product permitting drivers to “delete” computerized emissions controls in their vehicles, in violation of the Clean Air Act. Referred to as the “EZ Lynk System,” this product consists of three components: the Auto Agent, which is a physical device that plugs into vehicle computer systems to install software designed to “delete” emissions controls; the EZ Lynk Cloud, which is a cloud computing platform that stores the deletion software; and the Auto Agent App, a smartphone application that connects the Auto Agent to the EZ Lynk Cloud, allowing customers to acquire and install deletion software through their smartphones. EZ LYNK has sold its product to thousands of drivers across the United States.
EZ LYNK also knows and has reason to know that the principal effect and use of this product is to defeat emission controls. Among other things, EZ LYNK maintains an online “EZ Lynk Forum” on social media to encourage and assist drivers looking to disable their vehicle emissions controls using the EZ Lynk System. Hundreds of drivers have visited the EZ Lynk Forum to post their experiences “deleting” emissions controls using the EZ Lynk System. EZ LYNK representatives have explicitly approved many of the posts, and in some instances have offered technical support to drivers disabling emissions controls. For example:
- A driver posted, in part, “Finally made the jump and deleted my 14 Ram 2500: Holy hell this thing is awesome! The EZ lynk worked flawlessly, albeit I was a nervous wreck during the tune flash,” adding that “the guys at EZ lynk are doing great work!” The driver tagged an EZ Lynk representative, who later “loved” the post.
- Another driver posted to the EZ Lynk Forum, “Had a few small issues with my ez lynk install. Got in touch with the tech support. All issues resolved. Couldn’t be happier with my ez lynk. Truck has shown huge improvement with the deletes and new tunes.” An EZ Lynk representative “loved” the post.
- A driver posted to the EZ Lynk Forum, “Installed ez Lynk on my 14 ram 3500 fully deleted the other day [but] as soon as it loaded” experienced a malfunction. The driver asked if anyone else had experienced the same problem. An EZ LYNK representative responded, providing detailed instructions to fix the problem. The driver then wrote “[p]roblems fixed with the help of EZ Lynk’s Technical Support Representative.”
In fact, some drivers have used the same EZ Lynk Forum maintained by EZ LYNK to urge others to keep quiet about their use of the EZ Lynk System to defeat emissions controls. For instance, one driver wrote, “If everyone keeps their mouth shut about deleting sooner or later the EPA will calm down.” Since the EZ Lynk System launched in mid-2016, EZ LYNK has manufactured and/or sold at least tens of thousands of EZ Lynk Systems.
Defendants Gintz and Wood own EZ LYNK and control, direct, and manage the marketing and sale of the EZ Lynk System as well as the technical support for the EZ Lynk System. Defendant Prestige, which is also owned by Gintz and Wood, facilitates EZ LYNK’s sale of the EZ Lynk System in the United States by purchasing the Auto Agent devices from EZ Lynk and selling them onward to distributors that sell the devices within the United States.
EZ LYNK’s illegal activity was compounded by its refusal to provide EPA with basic information about the manufacture, sale, and use of the EZ Lynk System. The Clean Air Act requires manufacturers like EZ LYNK to provide information that EPA may reasonably require to determine whether the manufacturer’s product complies with the Clean Air Act. As alleged in the complaint, despite repeated requests, EZ LYNK has refused to provide EPA with much of the requested information about the manufacture, sale, and use of the EZ Lynk System. EZ LYNK’s efforts to stymie EPA’s investigation also violate the Clean Air Act.
In its complaint, the United States seeks an injunction barring the sale of the EZ Lynk System, the assessment of civil penalties against all Defendants, and other relief.
Ms. Strauss thanked the attorneys in EPA’s Air Enforcement Division and program staff at EPA’s Office of Transportation and Air Quality for their critical work on this case. Ms. Strauss also thanked Nicole Veilleux, Senior Counsel in the Environment and Natural Resources Division of the U.S. Department of Justice, for her assistance. This case is being handled by the Environmental Protection Unit of the Office’s Civil Division. Assistant U.S. Attorneys Mónica Folch and Jennifer Jude are in charge of the case.
Active Energy Sued for Illegal Pollution of North Carolina’s Lumber River from Toxic Site
On behalf of Winyah Rivers Alliance, the Southern Environmental Law Center has sued to stop Active Energy Renewable Power and Lumberton Energy Holdings— subsidiaries of the U.K. company, Active Energy Group—from illegally polluting the Lumber River in violation of the Clean Water Act. The complaint filed
by the conservation groups in the U.S. District Court for the Eastern District of North Carolina outlines concerns regarding unpermitted discharges into the river and its tributary, Jacob’s Branch, from Active Energy’s property contaminated with toxic solvents in Lumberton, N.C.
“Active Energy Renewable power can’t pollute the Lumber River without a state permit to limit pollutants,” said Heather Hillaker, staff attorney at the Southern Environmental Law Center. “Given the harmful toxins present on Active Energy’s property, pollution limits and frequent monitoring are crucial to protect the health of the Lumber River, people, and wildlife.”
In the absence of this required permit, the company can store wastewater on site, sell it, or store it off-site, but it cannot pollute the Lumber River without a lawful permit to monitor for and limit toxic pollutants that are present on its contaminated Brownfield property and could be discharged into the river. By not applying for a permit from the state, Active Energy has evaded disclosing information to interested communities about its treatment of contaminated wastewater at the site, current pollution limits, and more rigorous monitoring for known toxins present on its site. It also denies communities nearby and that rely on the river the opportunity to participate in the permitting process and provide comment to the state as part of that process. Residents of nearby communities that are predominantly Native American and Black already are exposed to multiple sources of industrial pollution.
“For almost two years, Active Energy has been violating laws that help keep the waters of our designated wild and scenic Lumber River safe and clean,” said Winyah Rivers Alliance’s Lumber Riverkeeper, Jefferson Currie II. “By refusing to even submit a wastewater permit application, this company is showing the community and our members how little it cares about the health and safety of the anglers, swimmers, boaters – everyone who lives in Lumberton and Robeson County.”
Despite plans to start manufacturing wood pellets at the contaminated site in early 2021, Active Energy does not have the required Clean Water Act permit for its ongoing industrial wastewater discharges and is operating in violation of the law. The company plans to construct a wood pellet mill at the site to turn virgin wood into a coal-like substance called “black pellets” or CoalSwitch for export to wood pellet markets in Europe and Asia. Although Active Energy is currently discharging wastewater from the site and will only increase its wastewater discharges with future mill operations, the company holds no permit authorizing either its present or future wastewater discharges.
While the company has repeatedly told investors that it plans to rapidly scale up production to approximately 440,000 tons of black pellets per year once the Lumberton pellet mill is operational, its air permit currently only allows emissions from a 43,800 ton per year operation. Active Energy has not disclosed to either regulators or nearby communities what pollution will be emitted into the air or water from its expanded facility.
Discharge monitoring reports filed by the company with EPA and the North Carolina Division of Water Resources show unpermitted water discharges of pollutants from Active Energy’s current operations, including suspended solids, nitrogen, zinc, copper, and chromium. Some of these pollutants can harm fish and other aquatic life in the river. The area of the Lumber River immediately downstream of Active Energy’s unpermitted discharges is a state and federally designated scenic river due to its unique natural, recreational, fish and wildlife, and cultural values.
Lab Analyst Sentenced for Falsifying Test Results
A former environmental laboratory analyst was sentenced by U.S. District Court Judge Pamela A. Barker to two years of probation and ordered to pay a $2,500 fine for falsifying laboratory test results.
Andrew K. Ecklund, age 58, of Tallmadge, Ohio, pleaded guilty in November of 2020 to nine counts of wire fraud stemming from a scheme to falsify laboratory analysis reports in order to improve work efficiency.
“Regulations are critically important to ensuring the health and safety of the environment and the general public," said Acting U.S. Attorney Bridget M. Brennan. “When any person subverts quality control procedures and then misrepresents test results identifying levels of hazardous substances, they will be held accountable for their actions."
“Both environmental regulators and the regulated community rely on accurate laboratory results to make important decisions on the protection of human health and the environment,” said Special Agent in Charge Jennifer Lynn of EPA’s Criminal Investigation Division in Ohio. “Quality control is one of the most important aspects of sample analysis. This sentencing demonstrates that analysts who cover up failed quality control measures and then misrepresent test results will be held accountable.”
“Today’s sentencing confirms that the Defense Criminal Investigative Service (DCIS) is committed to protecting the integrity of the procurement process,” stated Special Agent in Charge Patrick J. Hegarty, DCIS Northeast Field Office. “The DCIS will continue to work with its partner agencies to ensure that similar conduct is thwarted and that the U.S. Department of Defense is made whole.”
According to court documents, Ecklund was previously employed as a laboratory analyst with an environmental testing company operating in Northeast Ohio. The company was paid to analyze environmental samples for organizations and government agencies across the United States and to do so according to U.S. EPA regulations. As a laboratory analyst, Ecklund was responsible for testing samples for the presence and concentration of hazardous substances and unacceptable levels of pollutants using industry standards, methodology and quality control measures.
On nine separate occasions between on or about January 3, 2012, and on or about July 25, 2015, Ecklund took steps to make it appear that certain samples had passed quality control testing measures, when in fact, they had failed. In particular, Ecklund failed to properly calibrate and tune the quality control instruments, which was the foundation of the quality control process. This failure resulted in unreliable measurements of pollutants and hazardous substances, and therefore invalidated the testing process.
By disguising these invalid tests and making them appear valid, Ecklund was able to increase his productivity by avoiding having to shut down his instruments for repair and not retesting the samples, as required by EPA regulations. As a result of his actions, the test results provided by the company to their customers were invalid.
After the laboratory testing was complete, the company was required to submit an analysis report to their customers. Each report identified the laboratory analyst who conducted the testing and described any deviations from the testing methodology, including the quality control measures. Ecklund failed to disclose on these reports that the samples had failed the quality control measures and the actions he took to make it appear that they had passed.
The investigation preceding the indictment was conducted by the Ohio EPA, Ohio Attorney General’s Office, Army Criminal Investigation Command, Department of Defense, Office of Inspector General, and U.S. EPA Criminal Investigation Division, all of which are members of the Northeast Ohio Environmental Crimes Task Force. The case was prosecuted by Assistant U.S. Attorney Brad J. Beeson.
Former Oilfield Manager Pleads Guilty in Connection with OSHA Worker Fatality Investigation
A Montana man pleaded guilty in federal court in the District of North Dakota to a felony charge of obstructing an OSHA proceeding stemming from the 2014 death of an oilfield worker in Williston, North Dakota. Stephan Todd Reisinger, 50, of Kalispell, was a maintenance manager at Nabors Completion and Production Services Company (NCPS) at its Williston facility. He supervised approximately 40 employees, including 28-year-old U.S. Marine Corps veteran Dustin Payne. On Oct. 3, 2014, Payne welded on an uncleaned tanker trailer that had previously carried “produced water,” a liquid waste that is generated by oil wells and which contains flammable chemicals. The tank exploded and Payne was fatally injured.
Federal law makes it illegal to weld on tanks or other containers that have not been thoroughly cleaned to remove all flammable materials and explosion hazards. “It is critical that OSHA be able to fully investigate worker safety fatalities,” said Acting Assistant Attorney General Jean E. Williams for the Justice Department’s Environment and Natural Resources Division. “The Justice Department will prosecute those who impede OSHA’s ability to find out the truth in the course of any safety investigation.”
“Federal workplace laws are designed to protect workers and enhance safety in order to prevent injuries and deaths,” said Special Agent in Charge Andrea M. Kropf of the U.S. Department of Transportation Office of Inspector General, Midwestern Region. “We will continue to work with our federal and law enforcement partners to hold those accountable who jeopardize transportation and hazardous material workers’ safety.”
In a plea agreement with the government, Reisinger admitted to knowing the tanker trailers hauled produced water. During an investigation into Payne’s death, he made false statements in an interview with OSHA, including that he did not know of the hazards and composition of produced water. Reisinger falsely stated that he thought “just water” was in the tanks.
C&J Well Services, the corporate successor to NCPS, previously pleaded guilty to charges related to Payne’s death and on Aug. 28, 2019, was sentenced to pay $2.1 million in fines and restitution. NCPS policies mandated special training for welders and internal auditing procedures to make sure that welding rules were actually being followed. However, NCPS did not provide welding-specific training to Payne or other welders at the Williston facility. As a result, Payne and other welders repeatedly welded on uncleaned tanks that contained flammable hydrocarbon residue.
OSHA, the U.S. Environmental Protection Agency - Criminal Investigation Division and the U.S. Department of Transportation Office of the Inspector General, with additional support from the Bureau of Alcohol, Tobacco, Firearms, and Explosives investigated the case.
Senior Trial Attorney Christopher Costantini of the Environment and Natural Resources Division’s Environmental Crimes Section and Assistant U.S. Attorney Gary Delorme for the District of North Dakota prosecuted the case.
Chicago Container Shipping Company Cited After Employee Suffers Leg Amputation, Crushed Pelvis When Run Over by Powered Industrial Vehicle
Working at a Chicago shipping facility, an employee suffered a leg amputation and crushed pelvis after he fell off and was then run over by a powered heavy-lift vehicle used to move and stack steel containers. The 30-year-old recent hire suffered injuries after being allowed to ride unsecured on the vehicle.
ITS Technologies and Logistics LLC – operating as ITS Conglobal – for one willful
violation and two serious violations, and proposed penalties totaling $156,038.
OSHA investigators found the intermodal cargo container shipping facility allowed employees to ride unsecured on the reach stacker, in violation of company and OSHA safety procedures. Additionally, ITS Conglobal failed to provide employees refresher training or evaluate them every 3 years on their ability to safely operate powered industrial vehicles, as required.
“This worker's life-altering injuries could have been prevented if ITS Conglobal had followed its own and federal safety regulations against employees riding improperly on moving powered industrial vehicles,” said OSHA Chicago South Area Director James Martineck. “Each year, hundreds of employees suffer injuries from powered industrial vehicle hazards and it remains one of OSHA's top 10 cited safety standards
. Employers must review and enforce workplace safety procedures.”
OSHA has specific regulations and required training for the operation of powered industrial vehicles
. From 2011 to 2017, 614 workers
lost their lives in forklift-related incidents and more than 7,000 nonfatal injuries with days away from work occurred every year.
Based in Darien, Illinois, ITS ConGlobal is an intermodal infrastructure services provider for global and rail shipping. The company has about 4,000 employees in more than 120 facilities throughout the U.S., Mexico and Central America and provides shipping services with North American railroads, global container shipping and leasing companies, and chassis operators.
Contractor Cited for Exposing Workers to Serious Trenching, Excavation Hazards
Excavation work is among the most dangerous in the construction industry. Trenches can collapse around and atop workers, crushing and burying them quickly and sometimes fatally – which has long made trench and excavation protection a vital OSHA concern.
OSHA cited Cherokee Pride Construction Inc. of Sapulpa, OK for serious violations related to excavation work. Inspectors arrived at a Broken Arrow job site in September 2020 and found employees in standing water as they installed water lines in two trenches as part of a street widening project. OSHA determined the company failed to ensure required cave-in protection was used, an appropriate means of escape existed and that workers wore hard hats, as required.
OSHA cited the company for two willful, four repeat and three serious violations, and has proposed penalties totaling $205,500. The agency cited the company three times in 2017 for failing to provide trench workers personal protective equipment, a means of escape and hazard recognition training, allowing standing water inside the excavation sites, and failing to fix ladder defects.
“OSHA recognizes the incidents of workers seriously hurt from trenching and excavation hazards,” said OSHA Area Director Steven A. Kirby in Oklahoma City. “The agency's national emphasis program on trenching and excavation focuses its resources on preventing the potential for collapses.”
Hess Corporation Cited for SPCC Violations at North Dakota Gas Plant
EPA announced a Clean Water Act (CWA) settlement with Hess Corporation, Hess Midstream Operations LP, and Hess Tioga Gas Plant LLC (Hess), in which the companies have agreed to pay $195,000 for alleged Clean Water Act violations associated with the operation of the Tioga gas plant facility in Williams County, North Dakota.
On October 7, 2015, EPA conducted an inspection of the Tioga gas plant and found multiple deficiencies, including: inadequate secondary containment for the two largest tanks and containment ponds; no containment for two produced water tanks and for other smaller oil storage containers; and an inadequate Spill Prevention Control and Countermeasure Plan (SPCC) plan. In addition, EPA found that Hess failed to prepare an adequate Facility Response Plan (FRP) for the plant demonstrating the facility's preparedness to respond to a worst-case oil discharge. Hess has since remedied the deficiencies in its SPCC Plan and FRP.
Discharge from the facility has the potential to impact an unnamed tributary of Paulsen Creek, a tributary to the White Earth River. EPA’s analysis indicates potential impacts associated with a worst-case spill scenario from this facility could extend 61 miles to White Earth Bay on Lake Sakakawea. "Adequate spill prevention and response plans include important requirements and measures that protect public health and the environment," said Suzanne Bohan, director of EPA Region 8’s Enforcement and Compliance Assurance Division. "EPA will continue to make sure facilities like the Tioga gas plant comply with the federal requirements that safeguard our communities and our rivers and streams.”
The Oil Pollution Prevention requirements of the Clean Water Act are intended to prevent discharges of oil and facilitate responses if discharges occur. All facilities with 1,320 gallons of oil that have the potential for a spill to reach waters of the United States are required to have SPCC Plans. Facilities with storage capacity of one million gallons or more, and with the potential to impact fish, wildlife and sensitive environments, are also required to meet FRP requirements. The Oil Pollution Prevention requirements of the Clean Water Act are administered by the EPA and the Coast Guard.
The $195,000 penalty will be deposited into the Oil Spill Liability Trust Fund, a fund used by federal agencies to respond to discharges of oil and hazardous substances. Since the 2015 inspection, Hess has submitted SPCC and FRP plans that satisfy regulatory requirements and has demonstrated the ability to effectively implement its FRP.
Daylight Saving Time: Spring into the New Season with Safety
Sunday, March 14, was the beginning of Daylight Saving Time when we turned our clocks one hour forward. The U.S. Consumer Product Safety Commission (CPSC) wants you to add safety to your spring routine by changing the batteries in smoke and carbon monoxide (CO) alarms.
Smoke and CO alarms need fresh batteries installed each year, unless they have sealed 10-year batteries. Alarms also need to be tested every month to make sure they are working properly. Place smoke alarms on every level of your home, inside each bedroom and outside sleeping areas. CO alarms should be placed on every level of your home and outside sleeping areas. Follow the manufacturer’s instructions for placement and mounting height. If either the smoke or CO alarm sounds, go to a safe location outside your home and call the fire department.
“Smoke and carbon monoxide alarms save lives,” said CPSC Acting Chairman Robert Adler. “Working alarms with fresh batteries buy your family valuable time to escape from a fire or a lethal buildup of carbon monoxide in your home.”
According to a recent CPSC report, there was an annual average of nearly 362,000 unintentional residential structure fires, 2,300 deaths, more than 10,400 injuries, and $6.69 billion in property losses from 2015 through 2017.
According to CDC, about 400 people die each year from carbon monoxide poisoning in the U.S.
- Known as the silent killer, because you cannot see it or smell it, this poisonous gas can come from many sources, such as portable generators.
- If you choose a plug-in type CO alarm, make sure that it also has battery backup.
- Never operate a portable generator inside a home, garage, basement, crawlspace, shed, or on the porch close to the house.
- Prevent fires by having your fuel-burning appliances, like your furnace and fireplace, inspected by a professional each year.
- Keep space heaters away from curtains, beds, and anything combustible.
- Make sure fire sprinklers water supply is open.
Create a fire escape plan:
- Make sure there are two ways out from each room, usually a door and a window, and a clear path to outside from each exit.
- Ensure that everyone in the home knows the plan, and practice the escape plan twice yearly.
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