October 18, 2021
The Clean Water Act prohibits the discharge of pollutants from a point source to navigable waters unless otherwise authorized under the Act. Navigable waters are defined in the Act as “the waters of the United States, including the territorial seas.” Thus, “waters of the United States” (WOTUS) is a threshold term establishing the geographic scope of federal jurisdiction under the Clean Water Act. The term “waters of the United States” is not defined by the Act but has been defined by EPA and the Army in regulations since the 1970s and jointly implemented in the agencies’ respective programmatic activities.
The definition of “waters of the United States,” is critical to determining what waterways are subject to EPA and Army Corps of Engineers jurisdiction. If a waterway is not subject to these agency’s jurisdiction, the waterway might not be subject to water quality standards, total daily maximum loads (TMDLs), and sections 311 (oil and hazardous substances), 402 (NPDES permits, nor section 404 (dredged and filled material). The definition has changed many times based on the agencies’ interpretation of the law, political pressure, and court decisions.
On October 13, EPA and U.S. Department of the Army (the agencies) called for communities to participate roundtables to provide input on the regional implications of “waters of the United States.” The regional roundtables will engage stakeholders representing diverse perspectives in meaningful dialogue to help inform the agencies’ work to develop an enduring definition of WOTUS that supports public health, environmental protection, agricultural activity, and economic growth.
“Crafting a lasting definition of WOTUS means that we must bolster our understanding of how different regions experience and protect our nation’s vital waters,” said EPA Assistant Administrator for Water Radhika Fox. “These roundtables will provide a great opportunity to deepen our shared knowledge. They also represent one opportunity—in a suite of strategic tools—the agencies are utilizing to obtain input on this important topic.”
EPA and Army announced a process for stakeholders to submit nomination letters with a slate of participants to potentially be selected as one of ten geographically focused roundtables. EPA and Army are seeking to understand perspectives:
Highlighting how different regions are affected by the various WOTUS definitions.
Learning about stakeholder experiences, challenges, and opportunities under different regulatory regimes.
Facilitating engagement across diverse perspectives to inform the development of a durable and workable definition of WOTUS.
The agencies’ experience implementing previous definitions of WOTUS has highlighted the regional variability of water resources and the importance of close engagement with stakeholders to better understand their unique circumstances. The regional roundtables will provide opportunities to discuss geographic similarities and differences, particular water resources that are characteristic of or unique to each region, and site-specific feedback about implementation.
The agencies are inviting stakeholders to organize a targeted set of interested parties and regional representatives to participate in these discrete roundtables. Each nomination for a roundtable must include a proposed slate of participants representing perspectives of agriculture; conservation groups; developers; drinking water/wastewater management; environmental organizations; environmental justice communities; industry, and other key interests in that region. The agencies request that organizers submit their self-nomination letter via email not later than November 3, 2021.
On Jun 9, 2021, EPA and Army announced their intent to revise the definition of WOTUS to better protect our nation’s water resources. On July 30, 2021, EPA, Army, and USDA announced a series of engagement opportunities, including the agencies’ intent to convene ten regionally focused and inclusive roundtables during the fall and winter. For more information visit: www.epa.gov/wotus
EPA to Broaden TRI Reporting Requirements for Ethylene Oxide
EPA is taking a critical first step forward to expand the scope of Toxics Release Inventory (TRI) reporting requirements to include certain contract sterilization facilities that are not currently reporting on ethylene oxide (EtO) releases.
Under the Emergency Planning and Community Right-to-Know Act (EPCRA), the EPA Administrator has discretionary authority to extend TRI reporting requirements to specific facilities based on a chemical’s toxicity, the facility’s proximity to other facilities that release the chemical or to population centers, any history of releases of the chemical at the facility, or other factors that the Administrator deems appropriate.
EPA has sent letters
to 31 facilities providing notice that it is considering requiring those facilities to report EtO releases to the TRI under this discretionary authority. Some of these facilities will receive notice that they may also be required to report ethylene glycol releases to the TRI. Ethylene glycol is produced using ethylene oxide; thus, both chemicals may co-occur at facilities. Ethylene oxide and ethylene glycol have been on the TRI toxic chemical list since its inception in 1987.
“EPA is committed to taking action to protect people from exposure to EtO, especially children, workers and residents in underserved and overburdened communities,” said Assistant Administrator for the Office of Chemical Safety and Pollution Prevention Michal Freedhoff. “Requiring companies that use the largest amounts of EtO in this industry sector to report on this chemical will help inform EPA’s future actions and ensure that communities have access to the best information available so they can take necessary action.”
EPA shares the public’s concerns about the harmful effects of EtO on human health and the environment, such as its carcinogenicity. Workers in facilities that use EtO and communities—including historically underserved communities—located adjacent to these facilities are at the highest risks of exposure to EtO. Additionally, because their bodies are still growing, children are expected to be more susceptible to the toxic effects caused by EtO. These factors make it imperative for EPA to know where EtO is being released and in what amounts. Making more information about releases of EtO publicly available through the TRI will assist EPA in identifying and responding to any human health and environmental threats those releases cause.
In selecting these 31 facilities, EPA considered a variety of EtO data. EPA believes these 31 contract sterilization facilities use the highest amounts of EtO in the contract sterilization facilities sector. The facilities are likely to exceed the 10,000 pounds per year “otherwise used” TRI reporting threshold for EtO. EPA also selected these facilities based on other factors, including their proximity to a population center (e.g., the density of the population, including children, living near the facilities), their history of releases of ethylene oxide and ethylene glycol (e.g., past receipt of TRI reporting forms on ethylene oxide and ethylene glycol from these facilities), and other factors the Administrator determines are appropriate (e.g., proximity of the facilities to nearby schools and communities, especially those with potential environmental justice concerns).
The selection of these 31 facilities are the first stage of an ongoing effort to broaden TRI reporting requirements for contract sterilizers. EPA will continue to monitor additional contract sterilization facilities using EtO that might be required to report to the TRI and, if appropriate, notify them that EPA is considering whether to require reporting.
The notice letters give each facility 30 days to respond to EPA with information to help inform the agency’s final decision. Such information might include, for example, evidence of permanent operational changes such that the facility no longer uses EtO. EPA will consider any information submitted by facilities during the 30-day response period before deciding whether to issue an order applying TRI reporting requirements for EtO to each facility. EPA intends to notify these facilities of its final decision following the 30-day response period and to issue an order applying TRI requirements to some or all of the facilities, as appropriate.
EPA has required three New England facilities to report publicly on their use and releases of toxic chemicals, which helps ensure public and community awareness.
"Companies' proper and timely reporting of toxic chemicals used at their facilities ensures that members of the public have access to information about the use and releases of chemicals in their community," said EPA New England Acting Regional Administrator Deborah Szaro. "Thanks to EPA's actions, these facilities are now in compliance with reporting laws that help protect these communities."
Facilities are required to report annually on their use and releases of toxic chemicals and substances under the federal Emergency Planning and Community Right-to-Know Act (EPCRA). The reports are filed in EPCRA's Toxic Release Inventory (TRI
) database, which is readily available to the public. Complying with EPCRA's and TRI requirements helps ensure that communities are informed about chemical usage and releases that may affect public health and the environment.
Technic, Inc. agreed to pay a penalty of $50,601 for allegedly failing to timely file TRI reports for formaldehyde, methanol, and silver and nitrate compounds at its facility in Woonsocket, Rhode Island for the year 2019. Technic corrected its violations in November 2020 by submitting reports on its usage of these chemicals.
TEI Biosciences, Inc. agreed to pay a penalty of 34,895 for allegedly failing to timely file TRI reports for chloroform in 2017 and 2018 at its facility located in Boston, MA. TEI has since corrected its violations, as the company filed these reports in December 2019 and submitted reports for the year 2020.
Nutmeg Container Corporation (Nutmeg), a division of Unicorr Packaging Group, one of the largest protective packaging manufacturers in the Northeast, agreed to pay a settlement penalty of $11,322.50 for allegedly failing to timely file a TRI report for diisocyanate compounds at its manufacturing facility in Putnam, Connecticut in 2019. Nutmeg has since corrected its violations and submitted reports on its usage of these chemicals after being contacted by EPA.
Under federal TRI regulations, companies that use listed toxic chemicals must report their chemical usage and releases each year to EPA. This information serves as the basis for the Toxic Release Inventory, which is a collection of data that can be reviewed by communities, government, and industry. Because the information is available to the public, companies have an incentive to reduce harmful chemical use and improve their environmental performance. TRI reporting
informs surrounding communities about a facility's toxic chemicals that could potentially impact public health and the environment.
PMNA Fined Over $3 Million for Hazardous Waste, Air and Water Violations
The U.S. Department of Justice, the Eastern District of Texas, the EPA, and the Texas Commission on Environmental Quality (TCEQ) have announced a settlement with E.I. Du Pont de Nemours and Company (DuPont) and Performance Materials NA, Inc. (PMNA) to resolve alleged violations of hazardous waste, air, and water environmental laws at the PMNA Sabine River chemical manufacturing facility in Orange, Texas. Under this settlement agreement, DuPont and PMNA will conduct compliance audits, control benzene emissions, and perform other injunctive relief to address violations at the facility. Defendants will also pay a $3.1 million civil penalty and attorney’s fees to the State of Texas. These measures will benefit nearby communities already overburdened by pollution by reducing uncontrolled emissions of hazardous air pollutants and unpermitted discharges from surface impoundments at the facility.
In a joint complaint filed on October 13, 2021, the United States, on behalf of the EPA, and the State of Texas asserted claims against DuPont and PMNA for alleged violations of the Resource Conservation and Recovery Act (RCRA), the Clean Water Act (CWA), the Clean Air Act (CAA), Section 7.002 of the Texas Water Code, Tex. Water Code § 7.002, and applicable regulations, at the former DuPont facility now owned and operated by PMNA. The alleged RCRA violations include failure to make hazardous waste determinations, the treatment, storage or disposal of hazardous waste without a RCRA permit, and failure to meet land disposal restrictions. The alleged CWA violations include unpermitted discharges of process wastewater in violation of the facility’s Texas Pollutant Discharge Elimination System permits. The alleged CAA violations include failure to comply with the national emission standards for hazardous air pollutants for benzene waste operations and for miscellaneous organic chemical manufacturing for certain waste streams.
“The Eastern District of Texas is a proud home to numerous natural resources including lakes, rivers, and streams, which span the district,” said U.S. Attorney Nicholas J. Ganjei for the Eastern District of Texas. “We are also home to some of the leading names in industry. Generally, these two co-exist harmoniously. However, when industry violates applicable laws and harms the environment, the Eastern District of Texas is committed to taking steps to hold that actor accountable and require better compliance in the future.”
“The petrochemical industry must operate in compliance with environmental laws,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “We will continue to hold operators accountable to address pollution from industrial operations that violate the law, such as those at the Sabine River facility, and to enhance public health and the environment, particularly in surrounding communities overburdened by industrial pollution.”
“This settlement ensures proper management of hazardous wastes, requires a comprehensive review of the facility’s environmental compliance across all media, and ensures cleanup of contamination from past operations,” said Acting Assistant Administrator Larry Starfield of the EPA’s Office of Enforcement and Compliance Assurance. “This case not only benefits the environment but demonstrates our commitment to advancing justice and equity to communities across Texas.”
“TCEQ is committed to protecting human health and the environment consistent with sustainable economic development,” said Executive Director Toby Baker for the Texas Commission on Environmental Quality (TCEQ). “This settlement is a representation of that commitment.”
Under the settlement, an independent third party will conduct multimedia compliance audits to review the facility’s compliance with RCRA, the CWA and the CAA, as well as related state laws and regulations. Additionally, the defendants will undertake measures to monitor and control benzene emissions and pH levels in wastewaters. They also will conduct soil, sediment or groundwater sampling to determine the extent of contamination within and from certain surface impoundments. The defendants will perform this sampling and necessary cleanup work pursuant to the Texas Risk Reduction Program.
The consent decree was lodged with the U.S. District Court for the Eastern District of Texas on Oct. 13, 2021 and is subject to publication in the Federal Register and an opportunity for public comment.
Updated Environmental Justice Tool
The California Environmental Protection Agency released an updated version of CalEnviroScreen, a California innovation that has become the national gold standard of geospatial data tools used to drive more equitable decision-making.
Developed by CalEPA’s Office of Environmental Health Hazard Assessment (OEHHA), CalEnviroScreen identifies California communities with the highest pollution burdens and vulnerabilities. State and local agencies, non-governmental organizations and business groups use CalEnviroScreen to better understand and address environmental concerns in California communities.
Since its initial release in 2013, CalEnviroScreen has helped state, regional and local policymakers prioritize activities and funding to assist communities that are disproportionately impacted by pollution. CalEnviroScreen is used to aid in administering environmental justice grants, promote compliance with environmental laws, prioritize site-cleanup activities and identify opportunities for sustainable development. Areas identified by CalEPA as “disadvantaged communities” based on CalEnviroScreen scores are eligible for a significant share of the California Climate Investments from the state’s Greenhouse Gas Reduction Fund and other benefits from specific Climate Investment programs.
“Environmental injustice in California and throughout the nation results in communities of color being exposed to significantly more pollution than their white counterparts,” said Secretary for Environmental Protection Jared Blumenfeld. “By bringing visibility to these often-overlooked communities, CalEnviroScreen helps us focus funding, enforcement and attention where it is needed the most. Only by solving inequalities facing Californians will we achieve lasting environmental improvements.”
The new CalEnviroScreen version 4.0 analyzes the latest data from 21 indicators of environmental, public health and socioeconomic conditions in California’s 8,000 census tracts. These indicators range from air and drinking water contaminants to pesticide use, toxic releases, cleanup sites, low birth weight infants, poverty and unemployment. The latest version also features a new indicator on children’s exposure to lead from housing.
The new version also includes several improvements to existing indicators that expand on earlier versions to incorporate additional pollution sources affecting Californians. These include chrome-plating facilities, dairies and feedlots, and certain industrial and manufacturing pollution sources in Mexico affecting California communities along the southern border. The update also uses more localized air pollution data, as explained in OEHHA’s “Summary of Changes in CalEnviroScreen Version 4.0PDF download
.” A website mapping tool that allows the public to explore CalEnviroScreen results by indicator
or by individual census tract
is available on OEHHA’s CalEnviroScreen 4.0 webpage
“CalEnviroScreen uses rigorous science in order to advance environmental justice,” said OEHHA Director Dr. Lauren Zeise. “We develop, refine and update the indicators so that they best reflect the various forms of pollution that may be present in our communities, and the factors that can cause people to be more vulnerable to pollution’s harmful effects.”
A supplemental analysis accompanying the CalEnviroScreen findings, “Analysis of Race/Ethnicity and CalEnviroScreen 4.0 ScoresPDF download
,” shows the dramatic differences in the racial composition of the state’s census tracts depending on their pollution burdens and vulnerabilities. The analysis found that the population of the top 10% of neighborhoods with the highest pollution burdens and vulnerabilities consist of 91% people of color, while the population of the 10% of neighborhoods with the lowest pollution burdens and vulnerabilities is 67% white.
OEHHA released a draft version of CalEnviroScreen 4.0 in February 2021. OEHHA solicited public comments on the draft at a March 2021 webinar and at six virtual public workshops in April 2021. A written public-comment period ran from February to May 2021. OEHHA and CalEPA are committed to continuing to update the tool through an open and public process. CalEnviroScreen 4.0 reflects the public input on the draft and previous versions.
Plastics Recycling Deadlines Loom — Will Companies Meet Their Goals?
Many of the world’s largest consumer product companies, including Cocoa-Cola, Unilever and PepsiCo, have set ambitious targets for replacing virgin plastics with recycled ones— typically 25% of their total packaging by 2025. So far, however, most companies have made only modest progress and will need to ramp up their efforts to reach these lofty goals, according to a new cover story
in Chemical & Engineering News, an independent news outlet of the American Chemical Society.
In the U.S., only about 10% of plastics are recycled into new products, compared with nearly 33% in Europe, writes senior editor Alex Tullo. Facing mounting consumer pressure, many companies have made big promises to increase the amount of recycled plastics they use in packaging to 25–50% by 2025 or 2030. However, most currently hover at a recycling rate between 2 and 12%, meaning that they will need to greatly accelerate their efforts in order to succeed. Meeting these goals will require new technologies to help make plastics easier to recycle, as well as widespread collaboration and investment among brand owners, consumers, recycling facilities, chemical companies and others.
In traditional mechanical recycling, facilities sort through consumers’ recyclables collected by local trash haulers, separating plastics from metal, glass and other materials. To ease this tedious process, AMP Robotics has developed a machine learning-based technology that identifies different types of plastics and pulls unwanted materials off the line with a pneumatic arm. Next, the separated plastics are shredded, washed, melted and repelletized. Then, plastics destined for food packaging undergo additional finishing steps. Although recycling firms have developed new technologies, such as solvent extraction, to recycle different types of plastic more efficiently, consumer product companies must redesign their packaging, for example, by removing multiple plastics and metalized layers, to make them easier to recycle. Also, experts say that consumers need to do their part by putting more of their used plastics into the recycling bin.
Colorado Businesses Recognized for Environmental Leadership
Colorado’s Environmental Leadership Program has awarded 154 Colorado companies with a spot on this year’s ELP membership roll. To qualify, each of these companies had to demonstrate an impressive commitment to environmental stewardship. ELP members represent a diverse array of businesses across the state, large and small, with unique and inspiring projects to reduce their environmental impact.
This year, ELP also has announced Castle Rock Water as the 2021 winner of the annual 24-Karat Gold Award. The winner is chosen by fellow ELP members who feel the honoree has gone above and beyond required job duties to create and implement a sustainability initiative that has made a large impact on the environment, the economy and the community. Castle Rock Water stood out for its innovative water reuse project in its community, which could ultimately save one-third of the town’s annual water consumption. To learn more about Castle Rock Water’s winning project, and to hear from their team, check out the 24K Gold Winners Page
The 2021 ELP Awards and Recognition program will be a digital celebration
of these environmental leaders, making the event easily accessible for anyone who would like to take part in celebrating and learning more about these leading Colorado companies.
ELP recognizes companies as bronze-, silver- or gold-level leaders for voluntarily going beyond compliance with state and federal regulations and for their commitment to continual environmental improvement. This year’s program includes several new businesses, including five new Gold Leaders, five new Silver Partners, and 10 new Bronze Achievers.
Carboy Winery, a new Bronze Achiever, saved roughly 400,000 wine bottles and corks from ending up in the landfill through the creative use of kegs and brite tanks for their wine distribution. New Gold Leader, Kodak Moments, developed a technology to distill and reuse their film's subwash, which has reduced their generation of chemical waste by up to 5,000 gallons a year. Other examples of creative sustainability projects by ELP members include: selling hand-crafted native bee habitat boxes, giving away free trees to plant, installing solar-powered phone chargers, and using packaging made from recycled ocean plastic.
LyondellBasell Companies Agree To Reduce Harmful Air Pollution at Six U.S. Chemical Plants
Three U.S. subsidiaries of Dutch chemical giant LyondellBasell Industries N.V. (Lyondell) have agreed to make upgrades and perform compliance measures estimated to cost $50 million to resolve allegations they violated the Clean Air Act and state air pollution control laws at six petrochemical manufacturing facilities located in Channelview, Corpus Christi, and LaPorte, Texas, and Clinton, Iowa. Lyondell will also pay a $3.4 million civil penalty. The settlement, announced by the Department of Justice and the EPA, will eliminate thousands of tons of air pollution from flares.
According to the complaint, the companies failed to properly operate and monitor their industrial flares, which resulted in excess emissions of harmful air pollution at five facilities in Texas and one in Iowa. Lyondell’s subsidiaries regularly “oversteamed” the flares at their facilities and failed to comply with other key operating constraints to ensure the volatile organic compounds (VOCs) and hazardous air pollutants contained in the gases routed to the flares are effectively combusted.
The EPA identified potential environmental justice concerns at the two Channelview facilities for exposure to particulate matter (2.5 micron), ozone, toxic cancer risk, and respiratory hazard. The significant emissions reductions of VOCs, HAPs, and greenhouse gases that the settlement
secures at the Channelview facilities serve to reduce exposure in the community to some of the same air pollutants that they are disproportionately exposed to.
“The Justice Department and EPA will continue to enforce the law against petrochemical plants that violate the Clean Air Act,” said Assistant Attorney General Todd Kim of the Justice Department’s Environment and Natural Resources Division. “In particular, we are committed to reducing harmful air pollution from unnecessary and improper flaring, especially near overburdened communities with environmental justice concerns.”
“This settlement will require LyondellBasel to install pollution control and emissions monitoring equipment at six facilities in Texas and Iowa, reducing emissions of greenhouse gases and other harmful gases by thousands of tons per year,” said Acting Assistant Administrator Larry Starfield for EPA’s Office of Enforcement and Compliance Assurance. “Those controls, plus a requirement for fence line monitoring of benzene emissions, will result in significant benefits for the local communities in Texas and Iowa.”
The settlement requires the companies to install and operate air pollution control and monitoring technology to reduce flaring and the resulting harmful air pollution from 21 flares at the six facilities. Once fully implemented, the pollution controls are estimated to reduce emissions of climate-change-causing greenhouse gases, including CO2, methane, and ethane, by almost 92,000 tons per year. The settlement is also expected to reduce emissions of ozone-forming VOCs by almost 2,700 tons per year and of toxic air pollutants, including benzene, by nearly 400 tons per year.
The pollutants addressed by the settlement can cause significant harm to public health. VOCs are a key component in the formation of smog or ground-level ozone, a pollutant that irritates the lungs, exacerbates diseases such as asthma, and can increase susceptibility to respiratory illnesses, such as pneumonia and bronchitis. Chronic exposure to benzene, which EPA classifies as a carcinogen, can cause numerous health impacts, including leukemia and adverse reproductive effects in women. Flares are also often large sources of greenhouse gas emissions.
Flares are devices used to combust waste gases that would otherwise be released into the atmosphere during certain industrial operations. Well-operated flares should have high “combustion efficiency,” meaning they combust nearly all harmful waste gas constituents, like VOCs and hazardous air pollutants, and turn them into water and carbon dioxide. The agreement is designed to improve Lyondell’s flaring practices. First, it requires Lyondell to minimize the amount of waste gas that is sent to the flares, which reduces the amount of flaring. Second, Lyondell must improve the combustion efficiency of its flares when flaring is necessary.
Lyondell will take several steps to minimize the waste gas sent to its flares at each facility. At certain facilities, Lyondell will operate flare gas recovery systems that recover and “recycle” the gases instead of sending them to be combusted in a flare. The flare gas recovery systems will allow Lyondell to reuse these gases as a fuel at its facilities or a product for sale. Lyondell will also create waste minimization plans for each facility to further reduce flaring. For flaring that must occur, the agreement requires that Lyondell install and operate instruments and monitoring systems to ensure that the gases sent to its flares are efficiently combusted.
Lyondell will also perform air quality monitoring that is designed to detect the presence of benzene at the fence lines of the six covered plants. Monitoring results must be publicly posted, providing the neighboring communities with more information about their air quality. The monitoring requirements also include triggers for root cause analysis and corrective actions if fence line emissions exceed certain thresholds. Flare compliance is an ongoing priority for EPA under its National Air Toxics Initiative.
The consent decree, lodged in the Southern District Court of Texas, is subject to a 30-day public comment period and final court approval.
Pipelines To Pay $8.7 Million To Resolve Oil Spill
The owner and operator of a pipeline have agreed to pay a $1.5 million civil penalty under the Clean Water Act and $7.2 million in damages and mitigation to resolve federal and state Oil Pollution Act and Clean Water Act claims arising from a 2010 spill of over 1,800 barrels of oil into a globally rare dolomite wetland from a pipeline near Lockport, Illinois. The complaint, filed along with the settlement, alleges that the crude oil spill injured a critical habitat for the federally-endangered Hine’s emerald dragonfly.
“EPA and our partners have worked extensively to clean up and mitigate damage from this pipeline breach that released more than 1,800 barrels of crude oil into wetlands,” said Acting Assistant Administrator Larry Starfield for EPA’s Office of Enforcement and Compliance Assurance. “Today’s settlement marks the culmination of a 10-year project to clean up the spill and prepare the site for restoration activities.”
“Pipeline companies have a responsibility to protect our waters, people, wildlife and diverse habitats from oil spills, and will be held accountable for the harms they cause,” said Assistant Attorney General Todd Kim for the Justice Department’s Environment and Natural Resources Division. “This major settlement will not only deter future oil spills, but also help restore and enhance the diminishing habitat of an endangered species.”
“The settlement funds will help us improve the remaining habitat for the dragonfly and increase their population, as well as provide benefits for other wildlife injured by the spill,” said Regional Director Charlie Wooley for the U.S. Fish & Wildlife Service’s Great Lakes Region.
“Illinois wetlands are some of our most valuable natural resources that provide residents and visitors with opportunities for recreation and study, as well as providing scarce habitat for some of Illinois’ endangered species,” said Attorney General Kwame Raoul for Illinois. “I am pleased that this settlement will mitigate contamination from the oil spill and support the restoration of wetlands near Lockport for future generations.”
“In partnership with federal and state trustees, the Corps reviewed the extent of the unauthorized fill material in the Hine’s emerald dragonfly wetlands and approved a comprehensive mitigation proposal to offset the impacts,” said Chief Kathleen Chernich of the East Section Regulatory Branch for the U.S. Army Corps of Engineers, Chicago District. “We were proud to partner with the federal and state trustees to craft a solution that is designed to mitigate more than 100 acres of wetland losses caused by the spill.”
The December 2010 spill resulted from a breach in a 12” buried pipeline that discharged crude oil into a wetland adjacent to the Illinois-Michigan Canal near Lockport, Illinois. West Shore Pipe Line Co. of Lemont, Illinois, the owner of the crude oil pipeline, and Houston-based Buckeye Pipe Line Co., the operator, previously undertook responsibility for the cleanup of the spill site overseen by the EPA.
In the settlement
, Buckeye and West Shore have also agreed to pay $7.2 million for injury to the Hine’s emerald dragonfly and other natural resources in the wetland which the federal and state trustees, and the U.S. Army Corps of Trustees (Corps), will jointly use to plan, design and perform restoration projects to compensate for the harms caused by the oil spill, as well as mitigation for impacts to wetlands.
The action was filed by the Department of Justice and the State on behalf of the federal and state trustees for natural resources. The designated federal trustees for the natural resources impacted by Buckeye’s oil spill are the U.S. Department of the Interior’s Fish and Wildlife Service. The designated state trustees are the Illinois Department of Natural Resources and the Illinois Environmental Protection Agency. The federal and state trustees have worked together to perform substantial injury assessment work and are engaged in joint restoration planning efforts. The complaint was also filed on behalf of the U.S. Army Corps of Engineers to address violations of a Clean Water Act section 404 permit in connection with the cleanup of the oil spill in waters of the United States.
Signal Peak Energy Admits Violating Health, Safety Regulations at Roundup Area Coal Mine
Signal Peak Energy, LLC, which operates an underground coal mine near Roundup, has admitted to criminal charges that it willfully violated health and safety standards and has agreed to pay a $1 million fine as part of proposed plea agreement, Acting U.S. Attorney Leif M. Johnson said.
Signal Peak Energy, through a representative, pleaded guilty during an initial appearance and plea hearing to an information charging it with four counts of willful violation of a health and safety standard, a misdemeanor. The maximum penalty is a $250,000 fine.
A plea agreement recommends that a criminal fine of $250,000 for each count of conviction, for a total fine of $1 million, is the appropriate disposition of the case. The parties further agree that a sentence of probation is appropriate. If the court accepts the plea agreement, the company does not have an automatic right to withdraw its guilty pleas. If the court rejects the plea agreement, the company can withdraw its guilty pleas and proceed to trial.
U.S. Magistrate Judge Timothy J. Cavan presided. A sentencing date before U.S. District Judge Susan P. Watters has not yet been set.
“Signal Peak’s conduct showed a blatant and callous disregard for its own workers’ health and safety and for protecting the environment. Companies that habitually and willfully violate regulations will be investigated and prosecuted to the full extent of the law,” Acting U.S. Attorney Johnson said.
The Signal Peak Energy prosecution is part of a broad corruption investigation into mine management and operations that resulted in not only worker safety and environmental misdemeanor convictions, but also in individual convictions and charges for some former mine officials and associates for embezzlement, tax evasion, bank fraud, money laundering, drugs and firearms violations.
Individual convictions of former mine officials included Larry Wayne Price, Jr., former vice president of surface operations, who was sentenced to prison for defrauding companies of $20 million; and Zachary Ruble, former surface mine manager, who was sentenced to probation for conspiring to defraud Signal Peak Energy of $2.3 million.
A third former mine official, Dale Lee Musgrave, former vice president of underground operations, has pleaded not guilty to an indictment alleging cocaine trafficking and false statements in mine records and is pending trial.
Associated individual cases include Stephen P. Casher, a former Rocky Mountain Bank loan officer, who was sentenced to prison and fined on bank fraud and money laundering charges for a loan scheme involving Larry Price Jr.; James and Timilynn Kisling, owners of Kisling Quality Builders, who were sentenced to probation and fined for conviction of tax evasion in a scheme involving the construction of Larry Price Jr.’s Billings residence; Mark Luciano, a Nevada resident who was sentenced to prison for conviction on trafficking cocaine; and Todd Alan Irwin, a secretary to Larry Price, Jr., who was sentenced to probation for conviction of felon in possession of firearms.
Robert Wayne Ramsey, owner of Peters Equipment Company, has been charged by an information with wire fraud in an alleged equipment sale scheme involving Signal Peak Energy and is pending arraignment.
In the Signal Peak Energy case, the government alleged in court documents that from 2013 through 2018, Signal Peak Energy habitually violated mandatory health and safety standards in the Mine Safety and Health Act during the mine’s operation. These violations included both environmental safety and worker safety standards. These violations also occurred with the full knowledge, direction and participation of the mine’s most senior management during that period, including the president and CEO, the vice president of surface operations, the vice president of underground operations and the safety manager.
The government further alleged that during the summer of 2013, Signal Peak Energy’s senior managers directed mine employees to improperly dispose of mine waste by pumping the waste into abandoned sections of the mine. This waste, known as “slurry,” consisted of wastewater, industrial chemicals used in the mining process and unprocessed soil containing heavy metals, including arsenic and lead over groundwater tolerances. Mine employees pumped this slurry into the abandoned section of the mine for about two weeks, until the section was full. Disposing mine waste in this manner required approval of both the Mine Health and Safety Administration (MSHA) and the EPA, which Signal Peak Energy did not obtain.
In the spring of 2015, the government alleged, Signal Peak Energy agents commissioned the drilling of two bore holes through the ground that led to another abandoned section of the mine. Senior mine managers directed employees to pump more slurry into the abandoned section through the bore holes. This slurry was similar to the slurry improperly disposed of in 2013. Estimates vary, but this pumping occurred for up to six weeks. The pumping stopped after a witness discovered that seals between the abandoned mine works and the operating mine had been breached, causing flooding in the areas of the operating mine. Signal Peak Energy obtained a permit to inject water into the ground through the bore holes, but this permit did not allow for the disposal of slurry waste.
In January 2018, Signal Peak Energy failed to report as required the injury of an employee, identified as John Doe 1, who was working at the mine when his finger was crushed and required amputation. Doe 1 was moving large mining equipment as part of his duties when some of this equipment fell onto his hand. Doe 1met with the safety manager, who began driving him to the hospital for medical treatment. On the way, Doe 1 had a telephone conversation with the vice president of underground operations. The vice president of underground operations pressured Doe 1 not to report the injury as work related and said that he would make it worthwhile for Doe 1. The safety manager witnessed this but did not intervene. The safety manager then dropped off Doe 1 at the hospital rather than accompanying him inside pursuant to mine policy. Doe 1 falsely stated that the injury had occurred at home and was not work related. When Doe 1 returned to work sometime later, the vice president of underground operations gave Doe 1 an envelope containing $2,000.
In May 2018, Signal Peak Energy again failed to report an injury as mandated. An employee, identified as John Doe 2, was working in the underground portion of the mine when rock sluffed off the wall and onto Doe 2’s head, causing a severe laceration. The shift manager immediately called the safety manager. The safety manager met Doe 2 and drove Doe 2 away from the mine with the stated intention to take Doe 2 to the hospital. Instead, the safety manager drove Doe 2 home. Doe 2 waited until the next morning to seek medical attention and falsely stated the injury had been caused by a shelf falling on his head in the garage of his home. Doctors treated the laceration and Doe 2 returned to work for his next scheduled shift. Doe 2 was unable to complete the shift or several of the following shifts because of his injuries. Doe 2’s lost time was charged against his vacation leave without his approval.
Assistant U.S. Attorneys Colin M. Rubich, Zeno B. Baucus and Timothy Tatarka are prosecuting the case, which was investigated by the IRS, FBI and EPA.
Oklahoma City Business Owner Violated Clean Air Act by Tampering with the Emissions Control Systems on Heavy-Duty Diesel Trucks
James Love, of Oklahoma City, pleaded guilty to a single-count felony Information charging him with Tampering with a Monitoring Device and Method Required to be Maintained Under the Clean Air Act, announced Robert J. Troester, Acting United States Attorney for the Western District of Oklahoma.
"By causing the removal of pollution control devices, Love caused diesel trucks to spew pollutants into the air at a rate of up to 300 times caused by normal operating vehicles," said Acting U.S. Attorney Troester. "This conduct increased toxins in our environment linked to cancer and pulmonary, neurological, cardiovascular, and immune system damage. To engage in this conduct for financial gain will not be tolerated."
"Today, the defendant pled guilty to tampering with diesel truck monitoring systems required under the Clean Air Act" said Special Agent in Charge Christopher R. Brooks of EPA’s Criminal Investigation Division in Texas. "He knowingly directed others to reprogram the trucks’ Onboard Diagnostic (OBD) systems to prevent the detection of alterations to the emission controls, thereby exposing the public to significant levels of air pollution."
Public records reflect that, on September 20, 2021, Love was charged by Information with violating the Clean Air Act. The Clean Air Act was enacted by Congress to protect and enhance the quality of the Nation’s air resources to promote the public health and welfare and the productive capacity of its population. In enacting the Clean Air Act, Congress found that the increasing use of motor vehicles has resulted in mounting dangers to the public health and welfare. The Clean Air Act protects the Nation’s air quality by, among other things, reducing vehicle emissions that pollute the air with toxins such as nitrogen oxides, particulate matter, hydrocarbons, and carbon monoxide. The Clean Air Act limits the emission of air pollutants from various classes of motor vehicle engines, including heavy-duty diesel engines.
Public records further reflect that Love owned and operated Southwest Diesel Service, a heavy-duty diesel engine full-service garage located in Oklahoma City. Love admitted that between February 2015 and April 2019, he directed his employees to modify the emissions control systems on heavy-duty diesel trucks. Specifically, Love directed these employees to alter the emissions control components, including removing the diesel particulate filters (DPFs) and plating the exhaust gas recirculation systems (EGRs). He then instructed others to reprogram the vehicles’ on-board computers so that the emissions control systems’ sensors failed to detect the alterations. These modifications prevented the trucks from accurately recording the pollutants they discharged into the atmosphere. They also ensured that the trucks continued to travel on public roads despite operating illegally.
At sentencing, Love faces up to two years in prison and a $250,000 fine. A sentencing hearing will occur in approximately 90 days.
The investigation was conducted by the Oklahoma Environmental Crimes Task Force to include the United States Environmental Protection Agency’s Criminal Investigation Division and the Oklahoma Department of Environmental Quality’s Criminal Investigation Unit. The case is being prosecuted by Assistant U.S. Attorney Charles Brown.
Chemical Manufacturer Cited for Hazardous Waste Violations
The California Department of Toxic Substances Control (DTSC) has asked a judge to issue civil penalties and to order Corteva Inc. and related entities to stop violating hazardous waste control laws at a chemical manufacturing plant near the Sacramento-San Joaquin Delta in Contra Costa County.
In a civil complaint filed by the California Attorney General in Contra Costa County Superior Court, DTSC names Corteva and former or related entities including The Dow Chemical Co., Dow Agrosciences LLC, Corteva Agrisciences, LLC. and E.I. Du Pont De Nemours and Company.
The complaint alleges five causes of action:
- More than 1,000 instances where Corteva or a predecessor illegally treated wastewater with hazardous levels of toxic and corrosive chemicals in 2016, 2017, and 2020 without DTSC authorization.
- Operating numerous tanks that were either open or had open vents which could lead to uncontrolled emissions of toxic chemicals into the air.
- Failing to reply to repeated requests for information and documents related to inspections in 2016 and 2020 that found violations.
- Failing to make a required hazardous waste determination.
- Failing to determine whether the equipment in the wastewater treatment system must be monitored for air emissions.
“This facility is in an environmentally sensitive area and in a community where residents already suffer from high levels of pollution. We cannot let the facility operate unsafely and continue to stonewall us,” said DTSC Director Meredith Williams. “This enforcement action should send a signal to other polluters that DTSC will do whatever it takes to protect our unique natural environment and nearby residents.”
The facility at 901 Loveridge Road in Pittsburg sits less than a mile from the Corteva Wetlands and meets the shore of New York Slough at the confluence of the San Joaquin and Sacramento rivers before they flow into the Suisun Bay, San Pablo Bay and eventually San Francisco Bay. It also is located near populated areas. Schools, a park, a nursing home and residences are within 1.5 miles of the property. The nearest neighborhoods are low-income communities, with a high population of people of color, where residents are already exposed to a disproportionately high level of pollution.
The case was referred to DTSC in 2019 by the U.S. Environmental Protection Agency after a 2016 inspection reportedly found illegal treatment of corrosive and toxic hazardous waste in the wastewater treatment system and potentially hazardous waste streams the company was managing as recyclable.
When the EPA referred the case to DTSC in 2019, DTSC ordered the facility to hand over information related to various aspects of the operation and the handling of hazardous waste. The responses have been incomplete, DTSC alleged in the complaint.
Likewise, the company has not provided all wastewater treatment system tank logs that DTSC requested following DTSC’s own inspection last November. During that inspection, the complaint states, DTSC found hazardous levels of corrosives and chemicals in the plant’s wastewater treatment system, chemicals the company did not have a permit to treat: carbon tetrachloride, tetrachloroethylene, and chloroform. Acute exposure to high levels of carbon tetrachloride can harm the liver and kidneys. Exposure to high levels of tetrachloroethylene can lead to confusion, dizziness and unconsciousness. Chronic exposure to chloroform can harm the liver and central nervous system.
The court has the authority to impose civil penalties of up to $25,000 per day per violation for violations which occurred prior to Jan. 1, 2018, and up to $70,000 per day per violation for violations occurring on or after Jan. 1, 2018.
Guilty of Asbestos Violation
On August 2, 2021, a court sentenced James S. Marshall to complete a one-year term of probation, after pleading guilty to negligent endangerment under the Clean Air Act (42 U.S.C. §§ 7412, 7413(c)(1), (c)(4)). A restitution hearing is scheduled for November 15, 2021.
Marshall worked as a maintenance supervisor with the Finger Lakes Office for People with Developmental Disabilities (OPWDD). As part of his duties, Marshall controlled and supervised facilities under renovation or slated for demolition.
In October 2014, the defendant requested asbestos testing at the Hillcrest Building, owned by the OPWDD. Marshall directed an asbestos inspector to take four samples from just two locations within the 300,000 square-foot building. The results of the four samples came back negative for asbestos. In November 2014, the OPWDD began soliciting bids to cleanout the building based upon these sample results. In December 2014, a third-party contractor won the bid and completed the work in April 2015. OPWDD received notification from Marshall of the successful cleanout shortly thereafter.
Building inspectors subsequently located regulated asbestos-containing material (RACM) throughout the building. In addition to failing to make sure workers adequately wetted the RACM and sealed it in leak-tight containers, Marshall placed others in imminent danger of death and serious bodily injury during the cleanout.
The EPA Criminal Investigation Division conducted the investigation, with assistance from the New York State Department of Labor Asbestos Control Bureau.
California To Defend Rule Limiting Warehouse Pollution in Disadvantaged Los Angeles and Inland Empire Communities
California Attorney General Rob Bonta and the California Air Resources Board (CARB) filed a motion
on October 13 to intervene in support of South Coast Air Quality Management District’s (Air District) rule requiring warehouses to reduce emissions from heavy sources of on-road pollution that visit those warehouses. The Air District’s rule regulates these “indirect sources” by requiring owners and operators of some of the largest warehouses in the state to take direct action to mitigate their emissions. This will reduce air pollution in Los Angeles and the Inland Empire, help California meet state and federal air quality standards, improve the health of our communities, and promote environmental justice. Last month, the California Trucking Association filed a lawsuit challenging the rule as outside the scope of the Air District’s authority, preempted by federal law, and an unlawful tax. In defending the rule, Attorney General Bonta and CARB expect to argue that these claims are meritless and that state and federal law supports the Air District’s authority to adopt the Indirect Source Rule.
“California has long been a pioneer in the fight against climate change – and the Air District’s rule limiting warehouse pollution is no exception,” said Attorney General Bonta. “The fact is: environmental justice and economic development are not mutually exclusive. There is no binary choice here. The Air District’s Indirect Source Rule will have tremendous benefits for those communities hardest hit by pollution, at a relatively low cost to industry. Today, I’m proud to stand in support of this effort to tackle the climate crisis and protect the health of Inland Empire and Los Angeles communities.”
“This is an environmental justice and public health issue,” said CARB Chair Liane M. Randolph. “The communities around these huge warehouse facilities have suffered for years from the effects of businesses and freight haulers who have all but ignored the community impacts of their enterprises. This Indirect Source Rule simply requires them to be much better neighbors. The rule is also part and parcel of local clean air plans developed under Assembly Bill 617 with CARB and South Coast staff, local residents, local businesses and other stakeholders to clean the air in and around these high-traffic routes and locations.”
In recent years, the proliferation of e-commerce and rising consumer expectations of rapid shipping have contributed to a boom in warehouse development, particularly in Los Angeles and the Inland Empire. The COVID-19 pandemic has accelerated this trend, as consumers have shifted away from in-person retail shopping. Unfortunately, the distribution of warehouse facilities — and resulting pollution — has occurred primarily in low-income communities and communities of color. Once a new warehouse is built, the facilities and their associated activities, such as truck traffic, can cause a variety of negative impacts affecting public health. For example, diesel trucks visiting warehouses are substantial sources of nitrogen oxide — a primary precursor to smog formation that has been linked to respiratory problems like asthma, bronchitis, and lung irritation — and diesel particulate matter — a contributor to cancer, heart disease, respiratory illnesses, and premature death.
The Air District’s Indirect Source Rule requires existing and new warehouse facilities larger than 100,000 square feet to select from a menu of emissions-reducing activities, such as purchasing zero-emission vehicles, installing air filtration systems in nearby residences, and constructing rooftop solar panels. The rule is projected to create up to $2.7 billion in public health benefits, far outweighing industry’s projected compliance costs. In just a decade, the rule is expected to prevent up to 300 deaths, 5,800 asthma attacks, and 20,000 lost work days. These benefits will predominately go to communities that have been most impacted by warehouse development, which are overwhelmingly communities of color and low-income communities.
In defending the rule, Attorney General Bonta and CARB expect to argue that:
- The Air District’s Indirect Source Rule fulfills its prior commitment to control indirect source emissions from warehouses;
- State and federal law provides the Air District with the legal authority to adopt the Indirect Source Rule;
- The Indirect Source Rule does not include an illegal tax; and The California Trucking Association’s arguments to the contrary misinterpret the law.
PFAS Fish Consumption Alert Issued in Maryland
The Maryland Department of the Environment (MDE) has issued its first fish consumption advisory based on levels of a chemical compound in a class known as PFAS (per- and polyfluoroalkyl substances).
MDE issued guidelines for eating three species of fish caught in Piscataway Creek in Prince George’s County after sampling fish there and completing a scientific review of health risks posed by levels of PFOS (perfluorooctane sulfonate), one of the more widely studied PFAS chemicals. The recommended monthly limits are for redbreast sunfish and yellow bullhead catfish in the non-tidal portion of Piscataway Creek and largemouth bass in the tidal headwaters of Piscataway Creek.
“Maryland is committed to reducing the risks of PFAS chemicals in our state and continuing our close coordination with scientific, local, state and federal partners,” said Maryland Environment Secretary Ben Grumbles. “Our focus on PFAS in fish tissue and the resulting consumption advisory is another step forward in understanding, communicating, and reducing the potential for harm.”
Maryland has monitored levels of certain chemicals, including polychlorinated biphenyl (PCB) and mercury, in the state’s recreationally caught fish for decades. Findings from such monitoring are the basis for MDE’s fish consumption guidelines
In fall 2020, MDE’s fish tissue sampling program began to include sampling for PFAS. PFAS refers to a group of more than 4,000 human-made chemicals that have been used since the 1940s in a range of products, including stain- and water-resistant fabrics and carpeting, cleaning products, paints, cookware, food packaging and fire-fighting foams. These uses have led to PFAS entering the environment, where they have been measured in soil, surface water, groundwater and seafood. Most people have been exposed to PFAS because of its use in so many common consumer goods.
The EPA has determined that exposure to PFOS over certain levels may increase the risk of developmental health effects during pregnancy or to breastfed infants as well as the risk of cancer, immune system damage or damage to the liver, thyroid or other organ systems.
MDE collected fish from routine monitoring, or core, stations. MDE also added two fish tissue sample locations in Piscataway Creek. MDE found elevated concentrations of PFOS in redbreast sunfish, yellow bullhead catfish and largemouth bass, leading to the new guidelines
. MDE is also expanding sample collection in the larger Potomac area between fall 2021 and fall 2022.
In fall 2020, MDE began sampling of fish tissue for PFAS on the Eastern Shore, which includes stations in the Chester, Choptank, Corsica, Elk and Wicomico rivers and Isle of Wight and Chesapeake bays. The results from that sampling showed no levels of concern.
MDE is collecting additional, targeted monitoring for PFAS in certain specific water bodies that have been identified as having nearby potential sources of PFAS as well as sampling in locations known to be frequented by subsistence anglers and fishers. MDE will assess fish tissue sampling results for PFAS in specific waters and develop advisories when necessary to reduce human health risk.
MDE is putting a priority on the implementation of a science-based comprehensive plan for PFAS risk that is focused first on determining whether there are locations in Maryland where there are unacceptable risks to human health associated with exposures to PFAS and whether there are locations of continuing releases of PFAS compounds. Earlier this year, MDE released a report
on a first phase of sampling of public drinking water systems across Maryland. A report on the results of a second round of sampling of additional public drinking water systems, and a third round of sampling is ongoing.
Auto Parts Manufacturer Willfully Ignored Safety Precautions
A 64-year-old employee suffered an arm amputation, federal workplace safety investigators found, as a result of a Cusseta auto parts manufacturer and supplier’s willful failure to follow required safety standards.
OSHA determined the assembler, working at Leehan America Inc., sustained the severe injury when struck by a forklift on April 14, 2021. OSHA investigators cited the company with a willful violation after learning they allowed the forklift’s driver to operate the vehicle without training. In addition, OSHA cited Leehan America with a repeat violation when they found no machine guarding in place, an amputation hazard for which the agency cited the company in April 2018.
OSHA also found the company failed to ensure the use of energy control procedures and did not provide employees with lockout/tagout devices. Leehan America also failed to conduct forklift evaluations for operators that were trained at least every three years, and examine forklifts and remove unsafe vehicles from service as required.
“Leehan America knew the requirements and willfully ignored them, and a worker suffered a life-changing injury,” said OSHA Area Director Jose Gonzalez in Mobile, Alabama. “Adding to the tragedy is the knowledge that if appropriate safety precautions were taken, the incident was preventable. There is no excuse for taking shortcuts that put workers’ safety and health in jeopardy.”
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