Important Change in the IATA/ICAO Regulations - IATA

December 19, 2003

The ICAO Dangerous Goods Panel recently issued an addendum making the air eligibility marking optional (the marking had been scheduled for implementation as a mandatory IATA/ICAO requirement on January 1, 2004). If used, the marking must conform to the applicable requirements of the ICAO Technical Instructions concerning use of the marking and IATA The addendum also includes advance notice of changes effective next year in the 2005-2006 ICAO Technical Instructions, including requiring the following additional certification statement on the transport document (shipping paper): "I declare that all of the applicable air transport requirements have been met". The addendum is available on the Internet for public viewing at

The air eligibility marking was adopted in the DOT Hazardous Materials Regulations (HMR) in docket HM-215E, with an effective date of October 1, 2004. In light of the decision made by the ICAO Dangerous Goods Panel, the Office of Hazardous Materials Safety (OHMS) is evaluating the marking requirement to determine whether the HMR should also be amended to make the marking optional. OHMS is committed to harmonizing with the ICAO Technical Instructions, and other international regulations, to the greatest extent practicable. Therefore, this issue will be addressed through the public review process in a future rulemaking.

Iron Pipe Manufacturer, Top Managers Charged in 8-Year Conspiracy to Pollute, Endanger Employees, and Impede Investigations

A federal indictment was unsealed in Trenton, N.J., charging a Phillipsburg, N.J. manufacturer of cast iron pipe and five of its managers with committing flagrant environmental abuses, including regular discharge of oil and paint into the Delaware River and maintaining a dangerous workplace that contributed to the death of one employee and the maiming of numerous others.

The 35-count indictment was unsealed with the arrests of Atlantic States Cast Iron Pipe Co. plant manager John Prisque, maintenance supervisor Jeffrey Maury, engineering and environmental manager Daniel Yadzinski, and finishing superintendent Craig Davidson. The arrests took place at the plant. Former Atlantic States human resource manager Scott Faubert was to surrender at the federal courthouse in Trenton.

The indictment charges Atlantic States, a subsidiary of McWane Inc. of Birmingham, Alabama, and the named managers with conspiracy to violate federal clean air and water regulations and laws governing workplace safety, as well as obstruction of criminal and regulatory investigations by the federal Environmental Protection Agency and Occupational Safety and Health Administration.

The privately held McWane Inc. and its subsidiary companies are among the largest manufacturers in the world of ductile iron pipe with more than a dozen plants in the United States and Canada. McWane’s products are used primarily for municipal and commercial water and sewer installations.

“This company has a notorious history of wanton pollution of our environment, evading detection at all costs, and ruling the workplace through fear and intimidation of employees, all of which is alleged in this indictment,” said Christopher J. Christie, U.S. Attorney for New Jersey. “The indictment paints a picture of an anything-goes philosophy in Atlantic Pipe’s pursuit of maximum worker output and profits at the cost of worker heath and safety. These were not mere accidents. Rather, the indictment charges that it was company policy to put employees in harm’s way, pollute the environment and continuously cover up criminal acts.”

Atlantic States and the individual defendants were charged in connection with, among numerous other things, the following events alleged in the indictment:

  • Repeated cover ups from health and safety inspectors of crushing injuries to employees, broken bones, amputations and burns from furnaces and molten iron, including among numerous others: a December 2002 incident in which a safety device was removed from a cement mixer, which then amputated three fingers from an employee’s hand; and another where an employee lost an eye and had his skull fractured by a broken saw blade with its safety guard removed.
  • The March 24, 2000 death of employee Alfred Coxe, who was run over by a forklift with faulty brakes. Before OSHA inspectors arrived, the defendants allegedly repaired the forklift, and later performed a misleading demonstration to make it appear the brakes were fully operational, and lied to inspectors about the incident and subsequently lied, under oath (Faubert and Maury), in a deposition in a lawsuit brought by Coxe’s widow.
  • The pumping of petroleum-contaminated wastewater on Dec. 4 and 5, 1999, from a cement pit into a stormwater drain that led to the Delaware River, causing an 8.5-mile oily slick on the river.
  • The weekly discharge, and the subsequent concealment, of between 50 and 100 gallons of petroleum-contaminated wastewater from at least July 1996 to September 2002, and other specific instances of larger discharges of asphalt paint and oil-contaminated water into the Delaware River.
  • Using the plant’s cupola - a high-intensity, multi-story furnace for the permitted use of melting scrap iron for the pipe fabrication process - for the regular incineration of tires and waste paint.
  • Routine release and concealment of high levels of pollutants into the air, including carbon monoxide, in violation of government permits and in criminal violation of the federal Clean Air Act. One method alleged in the indictment involved the pre-planned melting of plate and structural steel in the cupola, rather than scrap iron, with the effect that it produced lower pollution emissions during smoke stack tests and deceived state and federal regulators.

The indictment alleges that the company and its managers oversaw, allowed or encouraged those and other criminal acts, in an effort to maximize production of iron pipe and to minimize production costs, workers compensation claims and time off for injured employees. The conduct described in the indictment allegedly occurred between Oct. 31, 1995 and August 2003.

The indictment alleges that the defendants concealed health and safety violations by routinely falsifying reports to OSHA inspectors, by ordering employees to lie to them, altering existing conditions in advance of OSHA inspections, reinstalling safety devices after accidents to make it appear that they were installed at the time of accidents, and, in February 2000, by obstructing the execution of a search warrant at the Phillipsburg plant.

The indictment alleges that the company and its managers continuously concealed environmental violations through false statements to the New Jersey Department of Environmental Protection and federal EPA, the altering of pollution data and manipulation of emissions testing procedures and through obstruction of lawful on-site investigations.

The company and plant managers furthered the concealment of the environmental and health and safety violations by maintaining a repressive work environment of intimidation, fear and retaliation, in which employees were threatened with termination or other discipline if they failed to follow orders that led to instances of pollution, or if they complained about safety concerns or pursued workers’ compensation claims for job-related injuries, according to the indictment.

The indictment charges the company and each of the defendants with conspiracy, which for the individuals carries a maximum penalty of five years and a $250,000, and for the company carries a maximum fine of $500,000. The company is charged in all counts of the indictment.

Prisque, 54, of Bethlehem, Pa., was charged additionally with four counts of obstruction of an OSHA investigation, three of which carry a maximum prison sentence of five years, one of which carries a maximum 20 years. Prisque is also charged with one count each of violating the Clean Water Act and violating CERCLA (Superfund), each of which carries a maximum prison sentence of three years. He is also charged with one count of violating the Clean Air Act, with a maximum prison sentence of five years.

Faubert, 40, of Easton, Pa., is charged also with two counts of making false statements to OSHA, each of which carries a maximum prison sentence of five years, and two counts of obstructing an OSHA investigation.

Maury, 36, of Phillipsburg, is charged also with separate counts of making false statements to the New Jersey Department of Environmental Protection and OSHA; with obstruction of an OSHA investigation; seven counts of violating the Clean Water Act; and one count of violating CERCLA.

Yadzinski, 60, of Easton, Pa., is charged also with making false statements to the NJDEP and one count of violating the Clean Air Act.

Davidson, 39, of Nazareth, Pa., is also charged with one count of making false statements to NJDEP and 16 counts of violating the Clean Water Act.

Justice Department Announces FY2003 Record Year for Recovery of Civil Penalties in Environmental Cases

Attorney General John Ashcroft and Assistant Attorney General Tom Sansonetti of the Justice Department’s Environment and Natural Resources Division, reported that Fiscal Year 2003 was a record breaking year for the recovery of civil penalties in environmental cases. Court awards and consent decrees achieved by the Department and United States Attorney’s Offices resulted in more than $203 million in penalties for civil violations of the nation’s environmental laws. In contrast during the three previous years, awards averaged approximately $75 million.

“The record-setting $203 million in civil penalties that were obtained this year sends a powerful message to polluters and would-be polluters: we will prosecute and punish those who break the law and endanger the lives and land of our citizens,” said Attorney General John Ashcroft.

“The assessment of civil penalties in Fiscal Year 2003 is strong evidence of the Division’s commitment to ‘leveling the playing field’ for those who do business in America while complying with the law,” said Assistant Attorney General Tom Sansonetti. “The Division will continue to move aggressively against individuals, partnerships and companies that seek to avoid the cost of environmental compliance and thereby gain an economic advantage over their competitors that do comply. We shall seek penalties that force the non-complier both to revert the economic benefit reaped by non-compliance and to pay a stiff penalty to serve as a deterrent to others.”

The Environment Division also obtained the largest civil penalty in history against a single company for violations of an environmental statute when it settled its Clean Water Act enforcement action against the Colonial Pipeline Company for a $34 million penalty and a comprehensive repair and maintenance program for its 5,500 mile pipeline. The case resolved charges that Colonial violated the Clean Water Act on seven occasions by spilling 1.45 million gallons of oil from its pipeline in five states.

Of the $203 million in civil penalties recovered, $144.6 million were assessed for violations of the Clean Air Act, $53 million for violations of the Clean Water Act or Oil Pollution Act, $4.3 million for violations of the Comprehensive Environmental Response, Compensation and Liability Act, and $920,000 for violations of the Resource Conservation and Recovery Act.

The record breaking recovery figure also includes payment of $128 million in nonconformance penalties by Caterpillar, Inc. under the terms of a consent decree. The decree with Caterpillar was one of seven decrees negotiated with manufacturers of heavy duty diesel engines and resolved allegations that the manufacturers used devices to defeat their engines’ emissions control systems in violation of the Clean Air Act. Under six of the decrees, the manufacturers were obligated to meet specified emission standards beginning October 1, 2002 or pay per-engine nonconformance penalties. While other companies met their obligations under the decrees, Caterpillar did not. Caterpillar’s payment of non-conformance penalties serves to level the playing field with those manufacturers who are complying with the terms of the decrees and reinforces the message the Attorney General sent in March to the regulated community that “leveling the playing field” is one of his three top civil environmental priorities.

The $203 million total includes a $5.25 million civil penalty assessed against Earthgrains Baking Companies, Inc. in resolution of the first enforcement action brought under a new initiative against industrial bakeries for violations of the ozone protection provisions of the Clean Air Act. Earthgrains had failed to properly control leaks of chlorofluorocarbons, an ozone depleting substance, from its industrial refrigeration units, thereby contributing to the depletion of the earth’s ozone layer in recent years.

Other settlements which resulted in the imposition of significant penalties include those with Olympic Pipe Line Company and Shell Pipeline Company LP for environmental violations leading to a 1999 fatal pipeline rupture in Bellingham, Washington. The settlements require Olympic and Shell to pay the United States and State of Washington a total of $15 million in civil penalties. And, in a landmark settlement with grain industry giant Archer Daniels Midland Company, the company has agreed to pay a $4.6 million penalty for excess emissions of regulated air pollutants. The company will also spend an estimated $328 million on environmental improvements at 52 plants in 15 states which is expected to reduce harmful emissions by at least 63,000 tons per year.

Emery Worldwide Airlines Sentenced for Multiple Violations of HMTA

Emery Worldwide Airlines, Inc. has been sentenced for multiple violations of the Hazardous Material Transportation Act (HMTA). U.S. District Judge Walter Herbert Rice ordered Emery to pay the maximum $6 million fine ($500,000 for each of the 12 counts) and placed the company on probation for three years. During its period of probation, Emery will implement and maintain a compliance program designed to detect and prevent future violations.

Emery Worldwide Airlines is a wholly owned subsidiary of CNF, Inc. specialized in air transportation services for business to business shippers of heavyweight cargo. Its major operational hub is near the Dayton International Airport in Vandalia, Ohio. Emery’s operations included the transportation of freight classified as hazardous material under regulations issued by the Department of Transportation.

On September 30, 2003, Emery Worldwide Airlines, Inc. pled guilty to violating a DOT regulation that requires the operator of an aircraft transporting hazardous materials to give the pilot in command of the aircraft written notification of hazardous material loaded on the plane. By its plea, Emery admitted that on twelve occasions between November 1998 and July 1999 it transported hazardous material on aircraft leaving the hub without providing the required written notification to the pilot. The type of hazardous materials involved included freight classified as flammable liquid, non-flammable gas, explosive and radioactive materials, and miscellaneous dangerous goods.

EPA and Army Corps Issue Wetlands Decision

EPA and the Army Corps of Engineers (Corps) announced that they would not issue a new rule on federal regulatory jurisdiction over isolated wetlands.

The Supreme Court's 2001 decision in the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (commonly referred to as to "SWANCC") overturned the Corps' assertion of federal jurisdiction over certain isolated wetlands based on the presence of migratory birds. EPA and the Corps responded by issuing revised guidance to their field offices. At the same time, the Agencies reaffirmed federal jurisdiction over the majority of wetlands not impacted by the decision.

After soliciting public comment to determine if further regulatory clarification was needed, the EPA and the Corps have decided to preserve the federal government's authority to protect our wetlands. The agencies will continue to monitor implementation of this important program to ensure its effectiveness.

The Administration is currently implementing 30 programs to protect and restore millions of acres of our Nation's wetlands. These include the Food Security Act's "Swampbuster" requirements and the Wetlands Reserve Program, both under the authority of the U.S. Department of Agriculture. EPA programs include its "Five-Star Restoration" grant program, the EPA wetlands grants programs and the National Estuary Program. Other federal programs include: the Fish and Wildlife Service's "Partners in Wildlife" program, the National Marine Fisheries Service's Coastal Wetlands Restoration Program and the Migratory Bird Conservation Commission, composed of the Secretaries of Interior and Agriculture, the Administrator of EPA, and Members of Congress.

Air Quality Proposal to Cut Power Plant Emissions is Signed

Citing health and clean air benefits, EPA Administrator Mike Leavitt signed a proposal that would result in the deepest cuts in sulfur dioxide (SO2) and nitrogen oxides (NOx) emissions from power plants in more than a decade.

The Interstate Air Quality proposal would reduce power plant emissions in a total of 29 eastern states and the District of Columbia in two phases. Sulfur dioxide emissions would drop by 3.6 million tons in 2010 (a cut of approximately 40 percent from current levels) and by another 2 million tons per year when the rules are fully implemented (a total cut of approximately 70 percent from today's levels). NOx emissions would be cut by 1.5 million tons in 2010 and 1.8 million tons annually in 2015 (a reduction of approximately 65 percent from today's levels). Emissions will be permanently capped and cannot increase.

SO2 and NOx contribute to both ozone and particulate pollution. SO2 and NOx can be transported on the wind, causing environmental and health problems hundreds of miles away. Fine particles can pose serious health risks, especially for people with heart or lung disease (including asthma) and older adults and children. Ground-level ozone can irritate the respiratory system, aggravate asthma, reduce lung capacity and increase people's susceptibility to respiratory illnesses like pneumonia and bronchitis.

EPA will now take public comment on the Interstate Air Quality proposal. A final rule is planned for 2005. For more information, go to