COVID PPE Deductible as Medical Expense per IRS Memo

April 05, 2021
The Internal Revenue Service issued a memo that indicated that money paid for personal protective equipment, such as masks, hand sanitizer and sanitizing wipes, for the primary purpose of preventing the spread of the COVID-19 are treated as amounts paid for medical care under §213(d) of the Internal Revenue Code. Because these amounts are expenses for medical care under §213(d), the amounts are also eligible to be paid or reimbursed under health flexible spending arrangements (health FSAs), Archer medical savings accounts (Archer MSAs), health reimbursement arrangements (HRAs), or health savings accounts (HSAs). However, if an amount is paid or reimbursed under a health FSA, Archer MSA, HRA, HSA or any other health plan, it is not deductible under §213. See the IRS memo for additional details.
COVID-19 Mask Study Finds Layering, Material Choice Matter
Wearing a face mask can protect yourself and others from COVID-19, but the type of material and how many fabric layers used can significantly affect exposure risk, according to a study from the Georgia Institute of Technology.
The study measured the filtration efficiency of submicron particles passing through a variety of different materials. For comparison, a human hair is about 50 microns in diameter while 1 millimeter is 1,000 microns in size.
“A submicron particle can stay in the air for hours and days, depending on the ventilation, so if you have a room that is not ventilated or poorly ventilated then these small particles can stay there for a very long period of time,” said Nga Lee (Sally) Ng, associate professor and Tanner Faculty Fellow in the School of Chemical and Biomolecular Engineering and the School of Earth and Atmospheric Sciences.
The study was conducted during spring 2020, when the pandemic triggered a global shutdown of most institutions. Communities faced massive shortages of personal protective equipment, prompting many people to make their own homemade masks. Georgia Tech quickly set up the study since it already had “a great system for testing filtration efficiency using existing instruments in the lab,” Ng recalled.
The study’s findings were used to shape homemade face mask recommendations here last April, with the comprehensive study findings published on March 22 in the journal Aerosol Science and Technology.
In all, the researchers tested 33 different commercially accessible materials not limited to cloth fabrics, including single-layer woven fabrics such as cotton and woven polyester, blended fabrics, nonwoven materials, cellulose-based materials, materials commonly found and used in hospitals, and various filter materials.
“We learned there was a lot of variability in filtration performance even in the same type of material,” Ng said. 
"We found commercially available materials that provide acceptable levels of submicron particle rejection while still maintaining air flow resistance similar to a surgical mask,” said Ryan Lively, an associate professor and John H. Woody Faculty Fellow in the School of Chemical and Biomolecular Engineering. “These materials combine fabric fiber density, a maze-like structure, and fiber surface chemistry to effectively reject submicron particles.”
The best-performing materials for homemade masks were blackout drapery and sterilization wrap widely used for packing surgical instruments. Both materials are commercially available.
The researchers said people should avoid using filters such as a HEPA/MERV or vacuum bags unless they are certified to be fiberglass-free since often such filters on their own may release glass fibers that can be inhaled. Other materials to avoid for masks include loose-knitted material, batting fabric, felt, fleece, or shiny, reusable shopping bags.
Multilayered samples performed much better than single-layer samples, but people should pay attention to breathability. The two-layered and three-layered samples tested show an overall filtration efficiency of about 50% for submicron particles. Mask fit is also important since particles can easily escape through gaps at the nose or through the sides of the mask.
The analysis showed that properly fitted and multilayer masks reject 84% of particles expelled by a person when one person wears it. Two people donning these types of masks reduces particle transmission by 96%.
A final takeaway of the research was the importance of universal mask wearing.
“The best way to protect ourselves and others is to reduce exhaled particles at the source, and the source is our face,” Ng said, adding, “That really gets amplified when everyone starts wearing masks.”
She expressed optimism that the findings will motivate people to more widely embrace mask wearing if they are sick and need to be in public.
“Not everyone understands the importance of airborne virus transmission, and the importance of wearing a mask,” she said. “I hope that the practice will continue to help reduce the release of these viral particles into the environment and help protect others.”
In addition to Ng and Lively, the researchers included Taekyu Joo, Masayuki Takeuchi, Fobang Liu, Matthew P. Rivera, and Bahnisikha Dutta from Georgia Tech; Joy Barr and Eric Parker from; Emily S. Blum and John H. Tipton from the Global Center for Medical Innovation; and Julia Varnedoef from Cobb County (Georgia) Schools.
The work was supported by the Center for the Science and Technology of Advanced Material and Interfaces (STAMI) at Georgia Tech.
Wastewater Treatment Plant Superintendent Jailed for Falsifying Monitoring
The former Superintendent of the Sioux City Wastewater Treatment Plant, who conspired to cheat on environmental testing at the plant, was sentenced on April 1, 2021, to three months in federal prison.
Jay Earnest Niday, age 63, from Sergeant Bluff, Iowa, received the prison term after a October 6, 2020 guilty plea to one count of conspiracy and one count of knowingly falsifying, tampering with, and rendering inaccurate a monitoring device or method required to be maintained under the Clean Water Act.
The evidence at Niday’s guilty plea and sentencing hearings showed that Niday was employed as the Superintendent of the Sioux City Wastewater Treatment Plant (WWTP).  The WWTP is a large regional sewage treatment plant for wastewater from industrial, commercial, and residential sources throughout Siouxland, including Sergeant Bluff, Iowa, South Sioux City, Nebraska, North Sioux City, South Dakota, and Dakota Dunes, South Dakota.  The WWTP’s more than 20 industrial users produce a large volume of high-strength wastewater.  Under a Clean Water Act (CWA) permit, the WWTP was required to treat wastewater before discharging it into the Missouri River, which has heavy local recreational use.  Between March 15 and November 15 each year, when public use of the Missouri River was at its highest levels, the WWTP was also required to disinfect its wastewater to remove potentially dangerous human pathogens, including fecal coliform bacteria or E. coli.
The WWTP treated its wastewater with liquid chlorine, which kills bacteria but is potentially toxic to aquatic life.  The WWTP’s permit required the WWTP to periodically test its wastewater not only for the presence of fecal coliform bacteria or E. coli, but also total residual chlorine (TRC) levels, to ensure that the Missouri River was not polluted.
Beginning no later than 2011, and continuing until at least June 2015, Niday and others knowingly withheld from the Iowa Department of Natural Resources (IDNR) serious problems with the WWTP’s new treatment process, known as “the MLE process.”  Niday and others concealed this fundamental problem with the MLE process from the IDNR.
Niday and others knew that the WWTP did not work properly and could not consistently disinfect the millions of gallons of wastewater that the WWTP was discharging into the Missouri River each day.  In March 2013, an engineering firm prepared a “draft master plan” contemplated under a $1 million contract with the City and provided it to Niday and another person.  The draft master plan discussed the disinfection problems at the WWTP at length and concluded the WWTP’s treatment process could not provide adequate disinfection of the WWTP’s influent given the apparently high toxicity in its significant industrial users’ effluent.  Instead of following the recommendations in the draft master plan, Niday instructed the engineering firm to not finalize the report.
Niday and his coconspirators employed a fraudulent testing procedure that ensured the WWTP would always pass its effluent tests for fecal coliform, E. coli, and TRC.  Specifically, early in the morning on testing days for bacteria, Niday and a subordinate manager, Shift Supervisor Patrick Schwarte, instructed first‑shift operators at the WWTP to increase the rate of liquid chlorine supplied to the wastewater.  After an hour or two passed, and an artificially high level of chlorine was fully mixed into wastewater, they ordered the WWTP’s first-shift operators to use hand-held colorimeters to gauge the levels of chlorine.  Only when the colorimeter “maxed out” would the Superintendent take a sample for fecal coliform or E. coli.  This fraudulent procedure allowed for the chlorine in the wastewater to reach sufficient concentrations to avoid showing elevated levels of fecal coliform or E. coli, which would violate the WWTP’s CWA permits.  The WWTP never reported any exceedances of its CWA permit limits for bacteria or residual chlorine after July 2012.
The liquid chlorine rate was increased from about 2.5 gallons per hour, to somewhere between 70 to 120 gallons per hour, for up to two hours. On non-testing days, WWTP employees maintained the chlorine feed rate at minimal levels, well below the designed feed rate of the WWTP and at a rate clearly insufficient to ensure the WWTP consistently and adequately disinfected its wastewater, as the WWTP’s CWA permits required.  Then, in the afternoon on fecal coliform or E. coli testing days, well after the high amounts of chlorine had dissipated from the WWTP’s chlorine contact basin, and when an insufficiently low rate of liquid chlorine was supplied to the basin, Niday and Schwarte would test again for TRC.  In the afternoon, they were certain the TRC would pass, because only a minimal rate of liquid chlorine was supplied to the chlorine contact basin at that time.  Again, this minimal rate was clearly insufficient to ensure the WWTP consistently and adequately disinfected its wastewater, as required.
Niday was sentenced in Sioux City by United States District Court Chief Judge Leonard T. Strand.  Niday was sentenced to three months’ imprisonment and fined $6,000.  He must also repay $2,500 in court-appointed attorney fees and serve a two-year term of supervised release after the prison term.  There is no parole in the federal system.
“Jay Niday deliberately worked with others to cheat on environmental tests, knowing he was polluting the Missouri River,” said Acting United States Attorney Sean R. Berry.  “His actions not only put recreational users of the river at risk, but also endangered the river’s aquatic life.  Niday’s blatant disregard for the law, the safety of the community, and his reprehensible treatment of a vital waterway was outrageous.”
“By intentionally tampering with the disinfection processes at the Sioux City Wastewater Treatment Plant, Jay Niday placed the community and its natural resources in jeopardy of sustaining significant environmental damage,” said Special Agent in Charge Lance Ehrig of EPA’s Criminal Investigation Division for Iowa.  “Today’s sentencing demonstrates that such violations will be vigorously prosecuted.”
“Jay Niday knowingly manipulated data at a wastewater treatment plant that received millions of dollars in EPA state revolving funds,” said Daniel Hawthorne, Special Agent in Charge of the EPA Office of Inspector General’s Western Region Field Office.  “This sentencing fulfills the OIG’s commitment with our law enforcement partners to ensure that falsifying data and undermining the integrity of taxpayer dollars will not be tolerated.”
Niday was released on the bond previously set and is to surrender to the Bureau of Prisons on a date yet to be set.
The case was prosecuted by Assistant United States Attorneys Timothy L. Vavricek and Matthew J. Cole and investigated by the EPA Criminal Investigation Division, the EPA Office of Inspector General, and the FBI.
Hacker Indicted for Tampering with a Public Water System
Wyatt A. Travnichek, 22, of Ellsworth County, Kansas was charged with one count of tampering with a public water system and one count of reckless damage to a protected computer during unauthorized access. He was indicted on a federal charge accusing him of tampering with a public water system, according to Acting U.S. Attorney Duston Slinkard.
“Our office is committed to maintaining and improving its partnership with the state of Kansas in the administration and implementation of the Safe Drinking Water Act of 1974,” said Acting U.S. Attorney Duston Slinkard. “Drinking water that is considered safe is essential to the protection of the public’s health.”
The indictment alleges that on or about March 27, 2019, in the District of Kansas, Travnichek knowingly accessed the Ellsworth County Rural Water District’s protected computer system without authorization. During this unauthorized access, it is alleged Travnichek performed activities that shut down the processes at the facility which affect the facilities cleaning and disinfecting procedures with the intention of harming the Ellsworth Rural Water District No. 1, also known as Post Rock Rural Water District.
“By illegally tampering with a public drinking water system, the defendant threatened the safety and health of an entire community,” said Lance Ehrig, Special Agent in Charge of EPA’s Criminal Investigation Division in Kansas. “EPA and its law enforcement partners are committed to upholding the laws designed to protect our drinking water systems from harm or threat of harm. The indictment sends a clear message that individuals who intentionally violate these laws will be vigorously prosecuted.”
Upon conviction, the alleged crimes carry the following penalties:
  • Tampering with a Public Water System: Up to 20 years in federal prison and a fine up to $250,000.
  • Reckless Damage to a Protected Computer During Unauthorized Access: Up to 5 years in federal prison and a fine up to $250,000.
The EPA, Kansas Bureau of Investigation and FBI conducted the investigation. Assistant United States Attorney Christine E. Kenney is prosecuting the case.
New Toxicological Profiles for 1,1,2-Trichloroethane, Hexachlorobutadiene, and Endrin
Toxicological Profiles (Tox Profiles) published by the Agency for Toxic Substances and Disease Registry (ATSDR), are a unique compilation of toxicological information on a given hazardous substance. Each peer-reviewed Tox Profile reflects a comprehensive and extensive evaluation, summary, and interpretation of available toxicological and epidemiological information on a substance.
1,1,2-Trichloroethane is primarily used as a captive intermediate in the production of 1,1-dichloroethene (vinylidene chloride), but may also be used as a solvent, especially in chlorinated rubber manufacture but also for fats, oils, waxes, and resins. ATSDR found significant respiratory, hepatic, neurological, and immunological effects for 1,1,2-Trichloroethane.
Endrin, which is a pesticide no longer used in the US, was found to cause neurological effects (e.g., altered activity, convulsions) and hepatic toxicity. Hexachlorobutadiene, which is a a byproduct of chlorinated hydrocarbon synthesis, was found to cause hepatic and renal toxicity.
Walmart Fined $409K for Selling Hair Products that Contribute to Smog-Forming Emissions
The California Air Resources Board (CARB) announced a $409,000 settlement with Walmart, Inc. of Bentonville, Arkansas for selling private label hair finishing spray that violated state air quality regulations. The product was manufactured by Canada-based Apollo Health and Beauty Care, Inc., specifically for Walmart.
The settlement stems from a 2018 investigation when CARB inspectors tested the hair products and found that they did not comply with state limits for volatile organic compounds (VOCs) in the Hair Finishing Spray category. These VOCs react in the atmosphere to form ground-level ozone, one of the most harmful components of smog. 
Walmart pulled all cans immediately from California store shelves and was cooperative with the investigation. The affected cans were from the “Equate” brand line and included the Firm, Mega Firm, and Extra Firm Hold Hair Spray. 
“The cumulative impact of thousands of cans of non-compliant hair spray and other comparable products adds tons of pollutants to our environment each day that contribute to air pollution including ozone,” said CARB Chief Executive Officer Richard W. Corey. “We work diligently to find and test these items to protect our air quality in our efforts to ensure all Californians have clean air to breathe. Walmart acted quickly to address the products that exceeded the legal standards, and has assured us they will not work with the manufacturer again until all problems are corrected.”
In addition to paying the fine, Walmart plans to provide an educational platform for its online marketplace sellers to bring awareness to CARB’s consumer products regulations.  
Walmart agreed to pay a civil penalty of $261,800 to the Air Pollution Control Fund, and $147,200 toward a Supplemental Environmental Project (SEP). The SEP is the Side Street Projects – Woodworking Bus, a unique program that teaches basic wood-working skills, tool-based design and fabrication in school buses and trailers modified to be mobile woodshop classrooms.  The program serves more than 3,000 elementary school students, many from low-income families, in Los Angeles County, focusing on students in the Pasadena Unified School District.
“Side Street Projects will replace diesel-powered buses customized to be woodworking classrooms with new propane-powered buses that go above and beyond current CARB regulations,” said California Air Resources Board Member Hector De La Torre. “Their goal is to ensure a safer, cleaner learning environment for children and reduce toxic diesel emissions, especially in low-income neighborhoods. Supporting the instructional program while eliminating dirty diesel buses is a potent combination for our schools, and in line with CARB’s mandate to improve air quality.”
The Woodworking Bus Program was developed in response to shop classes being removed from public schools. Side Street Projects has completed multiple capital projects and built woodworking buses since 1997. They currently have two buses and two trailers that deliver the woodworking curriculum. 
Contractor Agrees to Cease Digging Excavations, Pay $135K in Penalties, After 2020 Fatal Long Island Trench Collapse
A Long Island superstructure, foundation and concrete company will pay $135,612 in penalties stemming from the collapse of an approximately 30-foot deep trench in Oyster Bay that led to the deaths of two workers.
Following a January 2020 investigation, the U.S. Department of Labor’s Occupational Safety and Health Administration found that RC Structures Inc. of Roslyn did not provide a protective system to prevent a trench collapse, and did not remove the employees from the trench after a competent person employed by the company had identified a cave-in hazard. OSHA also found the trench lacked an adequate ladder or other safe means of exit and that the company allowed stacked concrete and excavated materials to be stored at the trench’s edge.
In addition, employees working adjacent to and beneath an operating excavator lacked head protection, exposing them to struck-by hazards. OSHA cited RC Structures for willful and serious violations in July 2020. The company contested its citations to the independent Occupational Safety and Health Review Commission. 
“A trench can collapse suddenly and with great force, crushing and burying workers in an instant. Amid such dangerous conditions, employers must follow all excavation safety requirements and remove employees to prevent tragedies like this,” said OSHA Long Island Area Director Kevin Sullivan in Westbury, New York.
RC Structures agreed to pay the penalties and certify that it will no longer dig excavations. The agreement also commits the company to do the following:
  • Develop an excavation safety checklist to identify hazards and protective measures for work in excavations and ensure that a competent person on site will consult and complete the checklist whenever employees enter excavations.
  • Engage a qualified professional safety and health consultant to conduct at least one on-site assessment of excavation safety while employees are performing work in an excavation.
  • Provide company-wide training on ladder safety and hardhat use to its employees.
“No settlement can undo the collapse and its consequences, but it obligates this employer to corrective actions to enhance safe work in excavations and prevent future collapses, injuries and deaths. The U.S. Department of Labor is committed to enforcing workplace safety laws and achieving settlements designed to prevent hazards from recurring,” said regional Solicitor of Labor Jeffrey S. Rogoff in New York City.
OSHA’s Trenching and Excavation webpage includes resources to help protect workers in trenches and prevent trench cave-ins.
OSHA’s Long Island Area Office conducted the inspection. Trial Attorney Molly J. Theobald of the regional Office of the Solicitor in New York negotiated the settlement agreement.
$222K Fine for Lube Oil Spill
The Washington Department of Ecology and Achilles USA, Inc., have reached a settlement over a penalty for two spills at Achilles’ Everett facility in 2018. Under the settlement, the company will pay $222,200 for the two spills which flowed into a retention pond and impacted wildlife.
In July 2018, an Achilles employee was improperly moving totes containing lubricating oil when one fell and ruptured, spilling the contents into the building’s stormwater system. The oil was flushed to an outside retention pond frequented by wildlife. During cleanup, responders found a second source of lubricating oil draining into the pond. The oil came from a collection pit inside the facility that had overfilled due to lack of maintenance.
A total of 340 gallons of lubricating oil spilled to the retention pond and took three weeks to clean up. Six oiled geese and one snake were captured and cleaned. Additional oiled wildlife were observed, including blue herons, but could not be captured for cleaning.
Last year, Ecology penalized the company $327,200 for the spills, not reporting them, and negligence. The settlement resolves that penalty. In addition to the penalty, Ecology billed Achilles $11,925 to recover the state’s costs in responding to the spills. The company is also subject to a separate Natural Resources Damage Assessment of $3,855 based on a scientific evaluation of the spills’ environmental harm. Achilles has both reimbursed the state’s costs and paid its Natural Resources Damage Assessment.
“We are glad the company has taken its responsibilities seriously and hope there will be no further incidents,” said Dale Jensen, Ecology Spills Prevention, Preparedness and Response Program Manager.
On the settlement, Achilles stated, “Environmental Responsibility is an important priority for all employees of Achilles USA. Since July of 2018, we have invested over $200,000 into Spill Prevention equipment and employee training. We have also upgraded our Environmental Policies and Spill Prevention plans.  We are confident that these improvements will help prevent any contaminants from reaching our containment pond in the future.”
The settlement was submitted to and accepted by the Washington Pollution Control Hearings Board. Proceeds from penalties and damage assessments support grants issued by Ecology to public agencies and non-profit organizations for environmental restoration projects.
$135,000 Penalty for Ammonia RMP Violations
Introduced in the aftermath of chemical disasters in Bhopal, India, and Institute, West Virginia, Section 112(r) of the Clean Air Act requires companies of all sizes that use certain listed regulated flammable and toxic substances to develop and implement a Risk Management Program (RMP), which includes:
  • A hazard assessment that details the potential effects of an accidental release, an accident history of the last five years, and an evaluation of worst-case and alternative accidental release scenarios.
  • A prevention program that includes safety precautions and maintenance, monitoring, and employee training measures.
  • An emergency response program that spells out emergency health care, employee training measures and procedures for informing the public and response agencies (e.g., the fire department) should an accident occur.
Facilities that store more than 10,000 pounds of anhydrous ammonia, or threshold quantities of other listed chemicals, are properly designed, operated, and maintained to minimize the risk of an accidental release.
EPA and the U.S. Department of Justice have reached a settlement with Othello-based Multistar Industries, Inc. after the agencies found the company violated RMP chemical accident prevention requirements meant to protect the public and first responders from dangerous chemicals.
The company’s Othello, Washington facility stores and distributes anhydrous ammonia and other chemicals. Exposure to high concentrations of anhydrous ammonia – commonly used in industrial refrigeration, agricultural, and cold storage facilities – can lead to serious lung damage and even death.
Following inspections in 2013 and 2017, EPA alleged Multistar failed to comply Specifically, EPA alleged that Multistar failed to properly design its ammonia storage and distribution system, adequately maintain inspection and testing records on certain equipment, and develop and implement written operating procedures for certain aspects of its ammonia operations consistent with industry standards. 
Multistar also failed to promptly update deficiencies identified in required compliance audits and failed to meet requirements of a 2016 compliance order Multistar entered into with EPA.
“Facilities that store hazardous materials like anhydrous ammonia have an obligation to follow regulations designed to protect our communities and environment from potentially catastrophic consequences of accidents,” said Ed Kowalski, director of EPA Region Enforcement and Compliance Assurance Division in Seattle. “Failure to comply with the law puts first responders and members of the surrounding community in harm’s way.”
In addition to requiring Multistar to pay a $135,000 penalty, the settlement  requires the company to pay penalties if it violates the risk management program requirements at its ammonia storage and distribution facility, and provide compliance records and reports to EPA on a semi-annual basis.
This case is part of EPA’s Chemical Accident Risk Reduction National Compliance Initiative which focuses on minimizing the likelihood of chemical accidents and reducing the risk to people’s health and the environment.
The consent decree, lodged in the U.S. District Court for the Eastern District of Washington, is subject to a 30-day public comment period and approval by the federal court.
Nevada and California Companies Ordered to Stop Selling Illegal Disinfectants
EPA has ordered Macoma, LLC and FN Nano, Inc., located in Las Vegas and Reno, Nevada, as well as JT Construction Group, Inc. and BZ Nano, located in Glendale, California, to stop selling the unregistered disinfectant FN Nano Photocatalytic coatings, aka FN Coatings, FN NANO2 Photocatalytic Film. This product is an unregistered disinfectant pesticide being sold in violation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). According to EPA, these practices are particularly problematic during the COVID-19 pandemic, and EPA will continue to take enforcement actions such as this ‘Stop Sale’ order to protect public health.
EPA has issued the ‘Stop Sale’ order to prevent the companies from continuing to distribute or offer for sale these unregistered disinfectants. The products have been available for sale on their websites and are marketed for use in medical facilities, schools, offices, and homes.
“Effective disinfectants are vital to our communities in a pandemic.,” said EPA Pacific Southwest Enforcement Director Amy Miller. “If disinfectants are not registered, not effective, or make false claims, EPA will take action.”
Public health claims for pesticide products, including disinfectants, can only be made following proper testing and registration with the EPA. The agency will not register a pesticide until it has been determined the product will not pose an unreasonable risk to human health when used according to the label directions. Unregistered products can be harmful to human health, cause adverse effects, and may not be effective against the spread of germs.  A list of EPA-registered COVID disinfectant products, is available here.
Over $400K Penalty for Selling Unregistered Pesticides
EPA announced a settlement with Hu-Friedy Mfg. Co., LLC, of Chicago, Illinois, to stop selling and distributing unregistered and misbranded pesticide products. The settlement includes a civil penalty of $464,737.50 to resolve alleged violations of the Federal Insecticide, Fungicide, and Rodenticide Act.
“EPA is committed to ensuring that companies comply with federal pesticide laws,” said EPA Region 5 Acting Administrator Cheryl Newton. “These rules help guarantee that consumers have access to products that are effective and can be used safely.”
Hu-Friedy primarily produces and distributes dental hygiene equipment and supplies. EPA alleges that the company offered for sale pesticide products as part of a kit, which was not EPA registered, and as a result, the composition and labeling of the products had not been reviewed for efficacy and safety. In addition, EPA alleges that Hu-Friedy had made claims for an EPA-registered pesticide product that are not allowed under the product’s EPA registration and could mislead the public regarding the product’s safety and effectiveness.
EPA and Hu-Friedy have entered into a consent agreement and final order resolving these alleged FIFRA violations. Hu-Friedy has come into compliance by ceasing the sale and distribution of the products and has agreed to pay a $464,737.50 penalty to the federal government.
Colorado Ordered Staff to Ignore Air Pollution Violations
The entire air modeling staff for the State of Colorado contend that they are now directed to issue illegal permits, ignore violations, and refrain from verifying pollution emissions, according to a complaint filed through Public Employees for Environmental Responsibility (PEER). The air pollutants at issue, sulfur dioxide, nitrogen dioxide, and particulates, drive unhealthy levels of ozone long plaguing Colorado’s Front Range.
The air permit modeling team within the Colorado Department of Public Health and Environment (CDPHE) reveals a March 15, 2021 order from the Air Division Director to cease checking for these criteria pollutants in existing and pending permits. Under this new policy, permit applicants no longer have to demonstrate that their facilities comply with air quality standards. This order also stymied a review of previous permits showing many violations.
Colorado’s Front Range, encompassing the nine counties around Denver, has been in violation of National Ambient Air Quality Standards, set by the U.S. Environmental Protection Agency (EPA), since 2012.  Last year, Governor Jared Polis acknowledged the public health concerns by reclassifying the region as being in “serious” nonattainment, an action that should have resulted in more stringent enforcement, not less.
“Colorado’s critical air quality safeguards are being monkey wrenched by high level officials,” stated PEER Rocky Mountain Director Chandra Rosenthal, a former U.S. Department of Justice attorney. “How can air pollution standards be enforced if emissions are not verified?”
In their complaint to EPA’s Office of Inspector General (IG), the air permit modelers seek a performance review and audit of the CDPHE Air Division.  Colorado’s air program operates under a federal delegation with EPA funding. Deviation from EPA requirements can result in federal sanctions against the state, ranging from loss of funding to Colorado being stripped of its air permitting authority altogether.
PEER attorneys also wrote, on behalf of the air modelers, to CDPHE Executive Director Jill Hunsaker Ryan pointing out that these disclosures of air pollution violations are covered by the Colorado Whistleblower Protection Act which forbids retaliation for reporting violations of law.  PEER requested to meet with Ms. Hunsaker Ryan.
Notably, CDPHE quietly removed the guidance document for air quality permits from the agency website in mid-March.  Nor was there any public notice of this major policy change.
“Colorado law assures state workers that they can report violations of law such as these without fear of official reprisal,” added Kevin Bell, staff counsel for PEER, a national law firm and organization dedicated to protecting environmental whistleblowers. “This is a case where speaking truth to power is the essence of public service.”
Companies Sued for Illegal Asbestos Work at Former Springfield YMCA
Four companies have been sued for their role in the improper removal, transport, and/or storage of asbestos during an asbestos abatement project at the former Springfield YMCA building, which hosts daycare programs and contains more than 100 affordable housing units, Attorney General Maura Healey announced. Springfield is an environmental justice community, and its residents are disproportionately subjected to environmental harms and risks
“We allege that the defendants’ reckless disregard of basic workplace procedures and failure to take proper precautions put the health and safety of workers, building occupants, and the surrounding community at risk,” said AG Healey. “Those who deal with asbestos have a duty to do so in a safe and legal way to protect workers and the public from the serious harms of asbestos exposure, and we will take action against those who don’t comply.”
The AG’s complaint, filed in Suffolk Superior Court, alleges that Ray Services Inc. (Ray), an asbestos abatement company; O’Reilly, Talbot, & Okun Associates, Inc. (OTO), an environmental consulting company; Allegrone Construction Co. (Allegrone), a general contractor; and Service Transport Group (STG), a transportation company, each violated the state’s Clean Air Act and its corresponding regulations.
According to the complaint, in March 2019, Ray employees illegally removed dry, spray-on fire-proofing material containing asbestos by scraping the material off ceiling ducts, pipes, and beams in unoccupied classrooms in the building. The AG’s Office further alleges that Ray workers wore improperly fitted personal protective equipment that did not protect their faces. The complaint alleges that STG provided a rusted-through waste storage container, located next to the building’s recreation area, to store the asbestos that Ray removed from the building. These improper storage practices allowed the loose asbestos-containing material to accumulate outside of the container and exposed the asbestos to the ambient air. Additionally, the AG’s Office alleges in its complaint that Allegrone and OTO had an unlawful role in these asbestos abatement activities, which caused or contributed to a condition of air pollution.  
“Asbestos is a known carcinogen and Ray Services’ failure to follow required work practices, including wetting friable spray-on fireproofing materials prior to removal, could have exposed employees and children at the property to hazardous levels of asbestos fibers,” said Michael Gorski, Director of the Massachusetts Department of Environmental Protection (MassDEP) Western Regional Office in Springfield. “It is fortunate that MassDEP performed the unannounced compliance inspections of the abatement activities and ordered Ray Services to immediately correct the violations, assess the potential release of asbestos fibers to areas of the building outside the work area, and perform cleanup of these areas as necessary.”
Asbestos is a mineral fiber that has been used in a wide variety of building materials, from roofing and flooring, to siding and wallboard, to caulking and insulation. If asbestos is improperly handled or maintained, fibers can be released into the air and inhaled, potentially resulting in life-threatening illnesses, including asbestosis, lung cancer, and mesothelioma. Asbestosis is a serious, progressive, and long-term disease for which there is no known effective treatment. Mesothelioma is a rare form of cancer that is found in the thin membranes of the lung, chest, abdomen, and heart, that may not show up until many years after exposure, and that has no known cure, although treatment methods are available to address the effects of the disease.
AG Healey’s Office has made asbestos safety a priority. In November 2019, AG Healey released a report, highlighting the work of her office’s “Healthy Buildings, Healthy Air Initiative.” Since September 2016, the AG’s Office, with the assistance of MassDEP, has successfully brought asbestos enforcement cases that together have resulted in nearly $4.5 million in civil penalties. In her May 2020 brief on the environmental factors that compound the COVID-19 pandemic’s disparate impact on environmental justice communities in Massachusetts, AG Healey identified pursuing enforcement cases in such communities as an important step to address the longstanding impact of environmental injustice on the state’s families.
For more information on asbestos and asbestos-related work, visit MassDEP’s website outlining asbestos construction and demolition notification requirements.
Assistant Attorney General Laila Atta of AG Healey’s Energy and Environmental Bureau is handling the case, with assistance from Chief Regional Counsel Christine LeBel and Environmental Analyst John Moriarty of MassDEP’s Western Regional Office in Springfield.
Verso Luke LLC, and Verso Corporation Cited for Pulping Liquor Releases
Maryland Attorney General Brian E. Frosh and Maryland Environment Secretary Ben Grumbles announced a settlement with Verso Luke LLC and its parent company, Verso Corporation, owners of the Luke Paper Mill in Western Maryland, for seepages into the North Branch Potomac River that threatened public health and the environment. The consent decree settles a lawsuit filed in the U.S. District Court for the District of Maryland by the Environmental Integrity Project (EIP) on behalf of the Potomac Riverkeeper Network (PRKN) on March 24, 2020, alleging that the release of pulping liquor at the Verso Luke Mill created an imminent and substantial endangerment to Maryland under the federal Resource Conservation and Recovery Act (RCRA). The State of Maryland intervened in the lawsuit on May 28, 2020, alleging, in addition to the RCRA claim, violations of state environmental laws.
“Verso repeatedly discharged toxic pulping liquor into Maryland’s waters,” said Attorney General Frosh. “These repeated discharges degraded water quality and were harmful to fish and wildlife. Today’s settlement requires Verso to stop its discharges of pulping liquor, develop and implement a remediation plan, and pay a significant penalty to the State for its repeated violations.”
“This is a healthy shot in the arm for the Potomac River that has endured toxic leaks and a stiff penalty for the polluting company that failed to protect it,” said Secretary Grumbles. “Our enforcement settlement holds the polluter accountable for the cleanup and begins a new chapter of opportunity for beneficial reuse of the property to help the citizens and communities in the region.”
Under the terms of the settlement, Verso will be required to continue its investigation into the source of the seepages and the extent of the contamination. Verso is also required to permanently stop the discharge and remediate the contaminated site. In addition, Verso is required to pay a civil penalty of $650,000, reimburse the State’s attorneys’ fees, and pay past and future costs to the State for the oversight of the investigation and remediation. This settlement would allow the future redevelopment of the site while allowing the investigation and remedial work to continue.
Home Free Lead Inspections, LLC Cited for Shoddy Work
Maryland Attorney General Brian E. Frosh and Maryland Environment Secretary Ben Grumbles announced a settlement with Home Free Lead Inspections, LLC (Home Free) and two of its inspectors, Charles Gillis and David Gillis. The settlement resolves allegations that Home Free and the two inspectors failed to properly perform lead-based paint inspections, issued lead-free inspection certificates for properties that had not been thoroughly inspected, failed to provide notification prior to performing inspections, and failed to submit timely inspection certificates to the Maryland Department of the Environment (MDE).
Home Free Lead Inspections was accredited by MDE as a lead paint abatement services contractor in 2015. Charles Gillis and David Gillis, an owner of Home Free Lead Inspections, were accredited by MDE as lead inspectors in 2015. Between 2015 and 2018, Home Free issued approximately 923 lead-free inspection certificates based on inspections performed by the Gillises. Following an investigation, MDE issued an Emergency Suspension of Accreditation to Home Free and Charles Gillis. An accredited inspection contractor hired by MDE as part of the investigation identified lead-based paint at 147 of 215 properties previously inspected by the Gillises. Home Free inspected properties across Maryland but principally in Baltimore City and Baltimore County.
“Lead paint poisoning results in devastating, long term effects on those exposed, particularly children,” said Attorney General Frosh. “Home Free and its inspectors jeopardized the health of hundreds of residents, failed to comply with numerous state laws, and will pay a significant penalty as a result of this settlement.”
“Maryland’s program to prevent the environmental injustice of childhood lead poisoning is a priority, especially in Baltimore, and enforcement is absolutely essential to its continued success,” said Secretary Grumbles. “Shoddy inspections are unacceptable, and we are committed to excellence through education, training, and necessary and proper enforcement as seen in the significant financial penalty included in this settlement.”
In February 2020, the State filed suit against Home Free, Charles Gillis and David Gillis in the Circuit Court for Baltimore City. As part of the settlement, Home Free agreed to a judgment of $400,000, and David Gillis and Charles Gillis agreed to a judgment of $95,000 collectively.
Childhood lead poisoning is a completely preventable disease. Children are at the greatest risk from exposure to lead from birth to age 6, while their neurological systems are developing. Exposure to lead can cause long-term neurological damage that may be associated with learning and behavioral problems, and with decreased intelligence. Since Maryland’s lead law was enacted in 1994, the number of childhood lead poisoning cases in the state has decreased by 98%.
In making the announcement, Attorney General Frosh and Secretary Grumbles thanked Assistant Attorneys General Christopher Corzine and Andrew Gaudreau, and MDE’s Lead Poisoning Prevention Program for their work on the settlement. The settlement is subject to court approval.
$177,490 Fine for Serious Forklift Injury
A forklift struck and seriously injured a 60-year-old seasonal employee as she walked toward a pallet to label products for shipping at a Ripon facility where vegetables are canned for Libby’s and several other brands.
A subsequent OSHA investigation led the agency to propose $177,490 in penalties to Seneca Foods Corp. for two repeat and three serious safety violations involving forklift training and machine safety procedures at the canning facility.
In its November 2020 inspection, OSHA also found that another employee had suffered a fractured finger when it was caught in machinery that the company failed to lockout to prevent unintentional movement, as required. OSHA cited Seneca Foods for similar violations in 2019 at its Gillett facility.
“Employers are responsible for ensuring forklift drivers are re-trained after being involved in an accident or near miss,” said OSHA Area Director Robert Bonack in Appleton, Wisconsin. “OSHA has specific regulations for disabling machines and equipment prior to maintenance and service. Injuries can be prevented by ensuring employees receive required training and follow safety procedures.”
Based in Marion, New York, Seneca Foods is one of North America’s leading providers of packaged fruits and vegetables and distributes to more than 90 countries. The company sources from more than 1,600 American farms for sale under the Libby’s, Aunt Nellie’s, Green Valley and Seneca brands.
$20,000 Fine for Wastewater Violations
Jordan Sands, a sand mining and processing company based in North Mankato, has paid a $20,000 civil penalty to the Minnesota Pollution Control Agency (MPCA) for wastewater violations.
MPCA staff inspections confirmed that the company failed to monitor numerous pollutant parameters, failed to verify the accuracy of meters designed to monitor flow and discharges, and failed to implement corrective actions to achieve limits on certain pollutants in its discharges. In addition, between 2014 and 2019, nearly 190 required discharge monitoring reports were either missing or submitted late.
In addition to paying the civil penalty, Jordan Sands was required to submit a plan to the MPCA documenting how the company will ensure that all monitoring parameters are sampled and reported as required, and ensure that appropriate staff receive proper pollution-prevention training.
$12,000 Penalty for Construction Stormwater Violations
Washington County and Hugo-based Arnt Construction Company, Inc., have paid a $12,000 civil penalty to the Minnesota Pollution Control Agency (MPCA) for construction stormwater violations in Willernie related to construction on Stillwater Road/County Road 12.
The MPCA, partnering with Rice Creek Watershed District, determined that a vacuum truck had malfunctioned and discharged sediment and sediment-laden water into an adjacent wetland that feeds into Lost Lake. This incident was not reported to the State Duty Officer and MPCA as required, nor was it recovered and cleaned up within an acceptable timeframe. In addition, 21 storm drains at the site lacked the required protections to prevent sediment from washing into them.
Washington County and the company were also required to install storm drain inlet protections at all 21 drains, recover the sediment from the wetland, and submit a plan to address recovery and reporting of subsequent discharges.
$17,525 Penalty for Industrial Wastewater Violations
Northstar Materials, Inc., dba Knife River Materials, has paid a $17,525 civil penalty to the Minnesota Pollution Control Agency (MPCA) for industrial wastewater violations at a nonmetallic aggregate mining facility near Mentor. The Bemidji-based company also submitted a plan for meeting its permit requirements, including instituting best management practices, installing floating silt curtains and earthen berms in its mine pit, and adding settling basins.
An MPCA staff inspection confirmed that sediment-laden mine pit water had discharged into Judicial Ditch 64, and then into nearby Lower Badger Creek. For 18 days, the company discharged dredged mine pit water to surface water — which is not permitted — and then installed berms to stop the discharge. The company’s discharges also exceeded permitted limits and caused nuisance conditions in surface waters. The company did not report the problems to the Minnesota State Duty Officer or the MPCA as required and failed to recover the sediment that had left the site.
The company was required to stop discharging dredged mine pit water directly to surface water at all of its sites. Also, the company had to submit a procedure for how to report and respond to discharges that exceed permit limits.
California's Carpet Industry to Pay $1 Million for Recycling Failures
The organization representing carpet manufacturers will pay the state $1,175,000 in penalties for its repeated failure from 2013 through 2016 to meet recycling and landfill diversion goals under California’s Carpet Product Stewardship Law. The settlement agreement follows a California Third District Court of Appeal ruling affirming administrative civil penalties against Carpet America Recovery Effort (CARE).
"Recycling carpet is critical for California to meet its climate and waste diversion goals," California Department of Resources Recycling and Recovery Director Rachel Machi Wagoner said. "With the nation’s first carpet recycling program, California can model how designing products to be recycled creates a circular, renewable economy with less pollution."
California landfills an estimated 1.2 billion pounds (627,926 tons) of carpet each year. From 2013 through 2016 California’s Carpet Product Stewardship law required the carpet industry’s stewardship organization to make continuous meaningful improvement to:
  • Increase carpet recycling in California
  • Increase landfill diversion of used carpet
  • Increase the recyclability of carpet
  • Incentivize market growth of new products made from used carpet
CalRecycle launched an initial enforcement action against CARE in March of 2017, citing the group’s repeated failure to demonstrate continuous meaningful improvement in carpet recycling rates and other program goals.
  • 2013 had a 12.2% carpet recycling rate
  • 2014 had a 12.1% carpet recycling rate
  • 2015 had a 10.1% carpet recycling rate
  • 2016 had a 10.9% carpet recycling rate
Following subsequent enforcement hearings, CalRecycle adopted the findings of an administrative law judge and imposed an $821,250 penalty against CARE for noncompliance in 2013 through 2015. The penalty was later affirmed by Sacramento County Superior Court and the California Third District Court of Appeal (read full decision here). CalRecycle issued an additional $274,500 administrative penalty against CARE for noncompliance in 2016 following guidance from the Sacramento Superior Court and consistent with the decision from the Sacramento Office of Administrative Hearings.
As part of a settlement agreement, CARE will pay the administrative penalties, with a slight reduction in interest to CalRecycle by June 15, 2021. CARE also agreed to dismissals with prejudice, which equates to no further legal challenges on these matters.
In 2010, California became the first, and remains the only, state in the nation to require a statewide carpet recycling program designed and implemented by carpet manufacturers with governmental oversight. The primary purpose of the program is to increase the amount of postconsumer carpet that is diverted from landfills and recycled into new products.
  • 81 million square yards of carpet was sold in California in 2019, equal to the areas of over 12,600 football fields.
  • Carpet can be recycled into a number of products, including carpet backing and backing components, carpet fiber, carpet underlayment, plastics and engineered materials, and erosion control products. 
  • Carpet America Recovery Effort (CARE) has operated the nation’s only mandated carpet recycling program since 2011.
  • Carpet collectors and recyclers are paid various financial incentives by CARE to collect and recycle discarded carpet. Consumers pay a $0.35/square yard assessment to fund these incentives and other program activities.
Free Amazon HD 10 Tablet with RCRA and DOT Training
Annual training is required by 40 CFR 262.17(a)(7). Learn how to complete EPA’s new electronic hazardous waste manifest, and the more than 60 changes in EPA’s new Hazardous Waste Generator Improvements Rule. Environmental Resource Center’s Hazardous Waste Management: The Complete Course is available via live webcasts. If you plan to also attend DOT Hazardous Materials Training: The Complete Course, call 800-537-2372 to find out how you can get your course materials on an Amazon Fire HD 10 tablet at no extra charge.
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