OSHA Penalties Increased

January 18, 2021
In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act Improvements Act to advance the effectiveness of civil monetary penalties and to maintain their deterrent effect. Under the Act, agencies are required to publish “catch-up” rules that adjust the level of civil monetary penalties, and make subsequent annual adjustments for inflation no later than January 15 of each year.
OSHA's maximum penalties for serious and other-than-serious violations will increase from $13,494 per violation to $13,653 per violation. The maximum penalty for willful or repeated violations will increase from $134,937 per violation to $136,532 per violation.
States that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA's. The Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2021 final rule went into effect on January 15, 2021, and the increased penalty levels apply to any penalties assessed after that date. Go to OSHA Penalties page for more information on penalties.
This Week’s Classes
To help you get the training you need, Environmental Resource Center has a number of upcoming live webcast training courses. Stay in compliance and learn the latest regulations from the comfort of your office or home. You’ll receive the same benefits as our seminar attendees including expert instruction, comprehensive course materials, one year of access to our AnswerlineTM service, course certificate, and a personalized user portal on Environmental Resource Center’s website.
Environmental Resource Center training is the best way to learn about the environmental, safety, and hazardous materials transportation requirements that apply to your site. Learn from the experts and get your site-specific questions answered at these sessions this week:
Two New Studies Offer Ways to Avert Accidents and Workplace Injuries for American Workers
Human error is a causal factor in up to 80% of workplace accidents. A new study measuring the eye movements and cognitive processes for at-risk workers, sheds new light on the potential to avert accidents and possibly prevent workplace injuries. The study “Measuring attention, working memory, and visual perception to reduce risk of injuries in the construction industry,” by Behzad Esmaeili, Ph.D., George Mason University challenges the conventional, reactionary paradigm of safety-risk management.
This study, and others exploring the hazards faced by the American workforce, was featured on December 17,2020 during the Focusing on Workers and Risk Decision-Making session at the Society for Risk Analysis virtual Annual Meeting.
Esmaeili’s study used eye-tracking experiments to build an error-detection framework that computes the likelihood of human error in occupational settings. The researchers linked eye movement and workers’ attention with research focused on working-memory load and decision making to understand how and why workers in a dynamic environment fail to detect, comprehend and/or respond to physical risks.
The experiment found that 1) eye movements can be used as precursors of workers’ safety errors, 2) working-memory load and personality traits play a significant role in risk-taking behavior and 3) data mining classifier can be used to compute the likelihood of different types of human errors.
Other contributing factors to human error in the workplace are stress and complexity. In a second study, Vincent Paglioni, University of Maryland, analyzed the impacts of these compounding factors on the relationship between human failures in the operation of power plants. The ability to accurately model human reliability can improve safety analyses in numerous industries, including nuclear power and aviation.
The study, “Temporal behaviors of dependency relationships in human reliability analysis,” fills a major technical gap in Human Reliability Analysis (HRA). “Current HRA models are incorrect in the way that they model time-dependent effects of factors such as stress and complexity. By melding research in psychology, reliability engineering and data science, we can develop more accurate HRA models,” states Paglioni. “The results will improve risk analysis methods to ensure the safety of complex engineering systems.”
Firefighters are essential to the safety of our communities, but in addition to physical and mental stresses at work, firefighters are also subject to chemical exposures that can lead to disease and long-term health issues. Mary Fox, MPH, Ph.D., Johns Hopkins University, conducted a literature and narrative review of firefighter health from articles published in PubMed, Embase and PsycINFO.
The study, “Firefighter health: A case example of translating epidemiological data for public policy,” revealed that firefighters face an increased risk of cardiovascular disease, asthma and PTSD. Fox’s work informed updates to Virginia’s workers’ compensation policies.
Consensus Standards Adopted by DOT
The National Technology Transfer and Advancement Act of 1995 (NTTAA) (Pub. L. 104-113; March 7, 1996) directs Federal agencies to use voluntary consensus standards and design specifications developed by voluntary consensus standard bodies instead of government-developed voluntary technical standards when appropriate.
New or updated pipeline standards often incorporate new technologies, materials, management practices, and other innovations that improve the safety and operations of pipelines and pipeline facilities. The DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) has incorporated by reference more than 80 standards and specifications into the regulations. PHMSA regularly reviews newer editions of currently referenced consensus standards and issues regulations to incorporate by reference updated standards where appropriate. This ensures that the pipeline safety regulations incorporate and facilitate use of the latest safety innovations and materials. In addition to the improvements in the documents themselves, adopting more recent editions of consensus standards prevents conflicts with other standards operators and suppliers may be complying with voluntarily and avoids confusion that can arise when standards required by the regulations are out of date. The lists of publications that PHMSA has incorporated by reference into part 192 (regulating the transportation of natural gas and other gas by pipeline) and 195 (regulating the transportation of hazardous liquids by pipeline) are found at 49 CFR 192.7 and 195.3. Adopted standards include:
API Standards
  • Recommended Practice 651, Cathodic Protection Of Aboveground Petroleum Storage Tanks
  • Recommended Practice 2026, “Safe Access/Egress Involving Floating Roofs Of Storage Tanks In Petroleum Service”
  • Specification 5l, Specification For Line Pipe
  • Specification 6d, Specification For Pipeline And Piping Valves
  • Standard 620, Design And Construction Of Large, Welded, Low-Pressure Storage Tanks
  • Standard 650, Welded Tanks For Oil Storage
  • Standard 1104, Welding Of Pipelines And Related Facilities
  • Ansi/Api Standard 2000, Venting Atmospheric And Low-Pressure Storage Tanks
  • Standard 2350, Overfill Prevention For Storage Tanks In Petroleum Facilities
ASME Standards
  • 8, Gas Transmission and Distribution Piping Systems
  • 8s, Supplement to B31.8 On Managing System Integrity Of Gas Pipelines
  • 10m, Welded and Seamless Wrought Steel Pipe
ASTM Standards
  • A53/A53M, Standard Specification for Pipe, Steel, Black and Hot-Dipped, Zinc-Coated, Welded and Seamless
  • A106/106M, Standard Specification for Seamless Carbon Steel Pipe for High-Temperature Service
  • A333/A333m, Standard Specification for Seamless and Welded Steel Pipe For Low-Temperature Service And Other Applications With Required Notch Toughness
  • A381, Standard Specification for Metal-Arc-Welded Carbon Or High-Strength Low-Alloy Steel Pipe For Use With High-Pressure Transmission Systems
  • A671/671M, Standard Specification for Electric-Fusion-Welded Steel Pipe For Atmospheric And Lower Temperatures
  • A691/691M Standard Specification for Carbon and Alloy Steel Pipe, Electric-Fusion-Welded For High-Pressure Service at High Temperatures
Manufacturers Standardization Society (MSS) of the Valve and Fittings Industry
  • ANSI/MSS SP-44, Steel Pipeline Flanges
  • MSS SP-75, High-Test, Wrought, Butt-Welding Fittings
NACE International
  • SP0204: Stress Corrosion Cracking (SCC) Direct Assessment Methodology
  • 58: Liquefied Petroleum Gas Code
  • 59: Utility Lp-Gas Plant Code
  • 70: National Electrical Code (NEC)
NPDES Authority for Permitting Oil and Gas Discharges Granted to Texas
EPA announced that has approved Texas’ request to administer the National Pollutant Discharge Elimination System (NPDES) program for discharges from produced water, hydrostatic test water and gas plant effluent or oil and gas discharges, within the state of Texas. The Texas Commission on Environmental Quality (TCEQ) will take over responsibility of permitting authority for the discharges of oil and gas ‎activities, pipelines and natural gas processing plants that formerly were under Railroad Commission of ‎Texas jurisdiction.
“After a rigorous review process, we are pleased to announce that the state of Texas will take responsibility of this Clean Water Act program,” said EPA Regional Administrator Ken McQueen. “This action will help Texas administer a process for the regulated community without unnecessary and duplicative permitting processes and ensure the best environmental and economic outcomes.”
“TCEQ looks forward to working on permits pursuant to this program delegation,” said Commissioner Emily Lindley. “For the past year and a half staff worked tirelessly to make sure our application was complete and accurate. This delegation will serve Texans well.”
EPA and TCEQ both agree that states are best equipped to administer their environmental programs. On June 14, 2019, Governor Greg Abbott directed TCEQ to seek NPDES program authority by signing Texas House Bill 2771. The Governor also ordered the transfer of permitting authority for these discharges from the Railroad Commission of Texas to TCEQ upon approval of program authorization and then transfer of program authority from EPA to the TCEQ.
On Oct. 12, 2020, the Governor of Texas requested NPDES permit program approval and submitted a Statement of Legal Authority, copies of applicable state statutes and regulations, and a Memorandum of Understanding to be approved by the EPA Regional Administrator, Ken McQueen and TCEQ Executive Director, Toby Baker.
On Jan. 11, 2020, the public comment period ended. After a thorough review and consideration of all public comments, EPA determined the state met the criteria of the Clean Water Act and other federal regulations for approval of the requested program authorization.
The Clean Water Act created the NPDES program under which the EPA may issue permits for the point source discharge of pollutants to waters of the United States. The Act requires the EPA to authorize a state to administer an equivalent state program upon the Governor’s request, provided the state has the appropriate legal authority and a program sufficient to meet the Act’s requirements.
Companies Ordered to Stop Selling Unauthorized Disinfectant Wipes
EPA has ordered MJB Worldwide LLC and Hy-Vee Inc. to stop the sale and distribution of disinfectant wipes that EPA says are noncompliant with federal law and may represent a danger to consumers.
“During the COVID-19 pandemic, EPA has observed increased production and sale of unregistered products claiming to kill viruses and other pathogens,” said David Cozad, director of EPA Region 7’s Enforcement and Compliance Assurance Division. “The Agency is determined to protect consumers from these unlawful and potentially dangerous products.”
EPA issued the “Stop Sale, Use, or Removal Orders” to MJB Worldwide and Hy-Vee on Jan. 11, 2021. These orders require immediate termination of all distribution and sales of Outlaw Germ Justice Disinfectant Wipes and prohibit all future sales of the product at any Hy-Vee locations in Iowa, Kansas, Missouri and Nebraska.
MJB Worldwide LLC produces and distributes “Outlaw Germ Justice Disinfectant Wipes,” claiming the product kills bacteria and viruses. According to EPA, the company failed to register the product in violation of the Federal Insecticide, Fungicide and Rodenticide Act. Under the law, any manufacturer of a pesticide – including those intended to kill pathogens – must register the product with EPA. The registration process protects public health by evaluating the product’s ingredients; where it is to be used; the amount, frequency and timing of its use; and product storage and disposal practices.
After EPA contacted MJB Worldwide in November 2020 about an unregistered product, the company assured the Agency that it had recalled all Outlaw disinfectant products and that any future production would be done in compliance with federal law. However, on Jan. 6, 2021, an EPA inspector discovered a reformulated version of Outlaw wipes available for sale at a Hy-Vee grocery store in Overland Park, Kansas. The inspector also identified that the product’s label described concentrations of chemicals that could cause severe eye and skin irritation if used improperly.
For more information about EPA’s authority and COVID-19, visit: www.epa.gov/coronavirus. For more information about EPA-registered disinfectants for use against SARS-CoV-2, the novel coronavirus that causes the disease COVID-19, visit: www.epa.gov/pesticide-registration/list-n-disinfectants-coronavirus-covid-19.
Toyota to Pay $180 Million in Settlement for Decade-Long Noncompliance with Clean Air Act Reporting Requirements
The U.S. Department of Justice and the EPA announced that the United States has filed and simultaneously settled a civil lawsuit against Toyota Motor Corporation, Toyota Motor North America Inc., Toyota Motor Sales U.S.A. Inc., and Toyota Motor Engineering & Manufacturing North America Inc. (Toyota) for systematic, longstanding violations of Clean Air Act emission-related defect reporting requirements, which require manufacturers to report potential defects and recalls affecting vehicle components designed to control emissions.
Along with the civil complaint, the United States has filed a consent decree, agreed to by Toyota, that resolves the government’s complaint through Toyota’s payment of a $180 million civil penalty and the imposition of injunctive relief. The $180 million penalty is the largest civil penalty for violation of EPA’s emission-reporting requirements. The injunctive provisions require Toyota to follow compliance and reporting practices designed to ensure timely investigation of emission-related defects and timely reporting to EPA, and include training, communication, and oversight requirements. The consent decree remains subject to a period of public comment and court approval.
“This settlement is yet another important milestone settlement for this Administration, and it continues our unwavering commitment to ensuring that our environmental laws as written, including EPA’s regulations, are rigorously enforced,” said Jeffrey Bossert Clark, Assistant Attorney General of the Justice Department’s Environment and Natural Resources Division.
“For a decade, Toyota systematically violated regulations that provide EPA with a critical compliance tool to ensure that vehicles on the road comply with federal emissions standards,” said Audrey Strauss, Acting U.S. Attorney for the Southern District of New York. “Toyota shut its eyes to the noncompliance, failing to provide proper training, attention, and oversight to its Clean Air Act reporting obligations. Toyota’s actions undermined EPA’s self-disclosure system and likely led to delayed or avoided emission-related recalls, resulting in financial benefit to Toyota and excess emissions of air pollutants. Today, Toyota pays the price for its misconduct with a $180 million civil penalty and agreement to injunctive relief to ensure that its violations will not be repeated.”
“For a decade Toyota failed to report mandatory information about potential defects in their cars to the EPA, keeping the agency in the dark and evading oversight,” said Susan Bodine, EPA’s Office of Enforcement and Compliance Assurance Assistant Administrator. “EPA considers this failure to be a serious violation of the Clean Air Act.”
The complaint filed in Manhattan federal court alleges that from approximately 2005 until at least late 2015, Toyota systematically violated Clean Air Act automobile defect reporting requirements designed to protect public health and the environment from harmful air pollutants.
Clean Air Act regulations require manufacturers to notify EPA by filing an Emissions Defect Information Report (EDIR) when 25 or more vehicles or engines in a given model year have the same defect in an emission control part or an element of design installed in order to comply with emission standards and other EPA regulations. The regulations also require vehicle manufacturers to file a Voluntary Emissions Recall Report (VERR) with EPA when they perform a recall to correct defects in emission-related parts, and to update EPA on the progress of such recalls through Quarterly Reports. These mandatory reporting requirements are critical to the Clean Air Act’s purpose of protecting human health and the environment from harmful air pollutants: They encourage manufacturers to investigate and voluntarily address defects that may result in excess emissions of harmful air pollutants, and provide EPA with important information about emission-related defects for use in its oversight of manufacturers.
For 10 years, Toyota routinely failed to comply with these reporting requirements. During that time, Toyota materially delayed filing an estimated 78 EDIRs, filing many only when disclosing non-compliance to EPA in 2015, at which point some were as much as eight years late. These EDIRs related to millions of vehicles with the potential to exhibit emission-related defects. Toyota also failed to file 20 VERRs and more than 200 quarterly reports.
During the period of noncompliance, Toyota managers and staff in Japan knew that Toyota was no longer even attempting to determine whether it was aware of 25 instances of the same emission-related defect in a model year – the threshold requirement for filing an EDIR. Rather than follow this legally required standard, Toyota unilaterally decided to file EDIRs principally when Toyota was required to file distinct reports with California regulators under a less strict standard – a standard that EPA had rejected as too lenient when Toyota had previously proposed to rely on it for federal reporting. Toyota managers and staff in Japan repeatedly identified the discrepancy between Toyota’s procedures and the plain language of the federal requirements but failed to bring Toyota into compliance.
As a result of its conduct, Toyota deprived EPA of timely information regarding emission-related defects and recalls and avoided the early focus on emission defects contemplated by the regulations. Toyota’s conduct likely resulted in delayed or avoided recalls, with Toyota obtaining a significant economic benefit, pushing costs onto consumers, and lengthening the time that unrepaired vehicles with emission-related defects remained on the road.
Toyota admitted, acknowledged, and accepted responsibility for what is included in the consent decree. Between approximately 2005 and late 2015, Toyota routinely filed emission defect reports to EPA materially late and, in many cases, failed to file such reports at all until a self-disclosure of non-compliance in late 2015.
In March and May 2002, at EPA’s request, Toyota and EPA representatives met to discuss Toyota’s internal process for identifying whether 25 instances of a specific emission-related defect exist in vehicles or engines of the same model year, requiring an EDIR filing.
At a first meeting in March 2002, Toyota described its EDIR process in which Toyota would investigate whether it had 25 defects only upon receiving 25 “product reports” from its dealers, but would supplement that review by filing an EDIR upon receiving warranty claims for an emission-related part in 4 percent of Toyota’s California fleet (a threshold requiring a separate filing to state authorities under California law).
At the meeting, EPA rejected this EDIR process as not timely considering warranty claims, despite the incorporation of the 4 percent California trigger.
At a May 2002 meeting with EPA, Toyota presented its revised process. Under that process, Toyota would commence an investigation to determine whether an EDIR filing was required when it had received warranty claims for an emission-related part for 1 percent of relevant vehicles nationwide; when it received 500 such warranty claims regardless of the percentage; or when it received 25 similar early warning reports.
Toyota noted internally that EPA seemed pleased with this approach, which EPA had described as “more stringent than California.” In 2003, 2004, and 2005, as part of an annual review, Toyota submitted its May 2002 process in writing to EPA as an overview of its EDIR reporting program.
Without notifying EPA, in approximately 2005, Toyota stopped following the May 2002 EDIR process. In approximately 2005, Toyota began filing EDIRs primarily when filing the California reports triggered by the 4 percent threshold. Toyota also filed EDIRs in a small number of instances when it was otherwise filing VERRs with EPA.
From approximately 2005 to 2015, Toyota stopped making any independent determination of whether 25 defects existed requiring an EDIR filing. Multiple times during this period, Toyota staff charged with preparing EDIRs identified that the plain language of the EDIR regulations called for filing an EDIR upon the identification of 25 defects, but that Toyota was not doing so. These staff did not cause Toyota to change its practice.
As a result of this conduct, Toyota filed at least 69 EDIRs materially late. Thirty-nine of these were filed materially late in the ordinary course of Toyota’s business. In late 2015, Toyota self-disclosed another 30 that had not been filed at all. Some EDIRs were ultimately filed as many as eight years after they were due.
Beyond EDIRs, Toyota also failed during this period to file 20 VERRs required for emission-related recall campaigns that it conducted and failed to file more than two hundred Quarterly Reports related to such campaigns. Between 2005 and 2015, Toyota failed to provide its employees with adequate training, resources, or oversight to ensure that Toyota complied with its reporting obligations to EPA. As a result of Toyota’s conduct, EPA did not timely receive mandated information regarding emission-related defects and recalls.
Company Owner Guilty of Violating the Clean Water Act
The president and owner of Oil Chem Inc. pleaded guilty in federal court in Flint, Michigan, to a criminal charge of violating the Clean Water Act stemming from illegal discharges of landfill leachate — totaling more than 47 million gallons — into the city of Flint sanitary sewer system over an eight and a half year period.
Robert J. Massey, 69, of Brighton, Michigan, pleaded guilty before U.S. District Judge Stephanie Dawkins Davis in the Eastern District of Michigan. Sentencing has been scheduled for May 14.
Oil Chem, located in Flint, processed and discharged industrial wastewaters to Flint’s sewer system. The company held a permit issued by the city of Flint under the auspices of the Clean Water Act, which allowed it to discharge certain industrial wastes within permit limitations. The city’s sanitary sewers flow to its municipal wastewater treatment plant, where treatment takes place before the wastewater is discharged to the Flint River. The treatment plant’s discharge point for the treated wastewater was downstream of the location where drinking water was taken from the Flint River in 2014 to 2015.
According to an agreed upon factual statement in the plea agreement filed in federal court, Oil Chem’s permit prohibited the discharge of landfill leachate waste. Landfill leachate is formed when water filters downward through a landfill, picking up dissolved materials from decomposing trash. Massey signed and certified Oil Chem’s 2008 permit application and did not disclose that his company had been and planned to continue to receive landfill leachate, which it discharged to the sewers untreated. Nor did Massey disclose to the city when Oil Chem started to discharge this new waste stream, which the permit also required. Massey directed employees of Oil Chem to begin discharging the leachate at the close of business each day, which allowed the waste to flow from a storage tank to the sanitary sewer overnight.
From January 2007 through October 2015, Massey arranged for Oil Chem to receive approximately 47,824,293 gallons of landfill leachate from eight different landfills located in Michigan. One of the landfills was found to have polychlorinated biphenyls (PCBs) in its leachate. PCBs are known to be hazardous to human health and the environment.
“The Clean Water Act is our Nation’s law for protecting the quality of the waters of the United States, and the health of people who rely on those waters. The criminal conduct here violated the Act and Oil Chem’s permit,” said Jonathan D. Brightbill, Acting Assistant Attorney General for the Justice Department’s Environment and Natural Resources Division. “Robert Massey ignored clear legal prohibitions and requirements in the interest of generating more revenue for his company. He knew better and should have done better. The outcome of this case will deter others, and hopefully chart a new course for this company.”
“Protecting Michigan’s water is one of the most important and sacred things we can do,” said Attorney Matthew Schneider, U.S. Attorney for the Eastern District of Michigan. “The actions of the defendant were done with total disregard for the Flint River and the environment. Fortunately for the people of Flint, these contaminants did not end up in their drinking water, because the discharge point was several miles downstream of the drinking water intake. This case should stand as a warning to other businesses that they will face criminal charges for this kind of pollution.”
“The defendant knowingly ordered the discharge of over 40 million gallons of landfill wastewater, ultimately to the Flint River, putting the environment at risk,” said Jennifer Lynn, special agent in charge of EPA’s Criminal Investigation Division in Michigan. “Today’s plea demonstrates that anyone who intentionally violates the law will be held responsible for their actions.”
Nine Indicted on Criminal Charges in Flint Water Crisis Investigation
Michigan Solicitor General Fadwa Hammoud and Wayne County Prosecutor Kym L. Worthy announced that after 12 months of grand jury proceedings nine individuals have been indicted on a total of 42 counts related to a series of alleged actions and inactions that created the Flint Water Crisis. The Chief Judge of the Seventh Circuit in Genesee County appointed Judge David Newblatt to act as a one-man grand jury to investigate crimes related to the crisis. Indictments were issued after the grand juror listened to and evaluated the evidence presented.
The following defendants were charged by Solicitor General Hammoud and Prosecutor Worthy as part of the criminal investigation into the Flint Water Crisis:
Jarrod Agen – Former Director of Communications and Former Chief of Staff, Executive Office of Gov. Rick Snyder
  • One count of perjury – a 15-year felony
Gerald Ambrose – Former City of Flint Emergency Manager
  • Four counts of misconduct in office – each a five-year felony and/or $10,000 fine
Richard Baird – Former Transformation Manager and Senior Adviser, Executive Office of Gov. Snyder
  • One count of perjury – a 15-year felony
  • One count of official misconduct in office – a five-year felony and/or $10,000 fine
  • One count of obstruction of justice – a five-year felony and/or $10,000 fine
  • One count of extortion – a 20-year felony and/or $10,000 fine
Howard Croft – Former Director of the City of Flint Department of Public Works
  • Two counts of willful neglect of duty – each a one-year misdemeanor and/or $1,000 fine
Darnell Earley – Former City of Flint Emergency Manager
  • Three counts of misconduct in office – each a five-year felony and/or $10,000 fine
Nicolas Lyon – Former Director, Michigan Department of Health and Human Services
  • Nine counts of involuntary manslaughter – each a 15-year felony and/or $7,500 fine
  • One count of willful neglect of duty – a one-year misdemeanor and/or $1,000 fine
Nancy Peeler – Current Early Childhood Health Section Manager, Michigan Department of Health and Human Services
  • Two counts of misconduct in office – each a five-year felony and/or $10,000 fine
  • One count of willful neglect of duty – a one-year misdemeanor and/or $1,000 fine
Richard Snyder – Former Governor of Michigan
  • Two counts of willful neglect of duty – each a one-year misdemeanor and/or $1,000 fine
Eden Wells – Former Chief Medical Executive, Michigan Department of Health and Human Services
  • Nine counts of involuntary manslaughter – each a 15-year felony and/or $7,500 fine
  • Two counts of misconduct in office – each a five-year felony and/or $10,000 fine
  • One count of willful neglect of duty – a one-year misdemeanor and/or $1,000 fine
The defendants turned themselves in and were arraigned before Judge Elizabeth A. Kelly for the Seventh Circuit Court and Chief Judge Christopher Odette for the 67th District Court. Details on their arraignments and subsequent court dates will be forthcoming.
The prosecution team sought and obtained indictments based on evidence that could be proven in court. Status, position or political affiliation of a defendant are not factors in the charges sought. Furthermore, charges were not pursued unless the evidence and law supported it. The secrecy provisions over the grand jury proceedings do not allow for discussion of the grand jury evidence underlying the charges at this time. However, going forward, the cases will proceed in the respective courts to which they are assigned, presided over by those judges in accordance with Michigan law.
“When an entire city is victimized by the negligence and indifference of those in power, it deserves an uncompromising investigation that holds to account anyone who is criminally culpable. That is what all residents in this state are entitled to, regardless of their ZIP code. And that is what this prosecution team did. Our approach was simple—where we believed the evidence would prove a criminal charge, we sought and obtained indictments for those crimes,” said Solicitor General Hammoud. “We must remember that the Flint Water Crisis is not some relic of the past. At this very moment, the people of Flint continue to suffer from the categorical failure of public officials at all levels of government, who trampled upon their trust, and evaded accountability for far too long. We understand that our work is not done and although the criminal justice system alone cannot remedy all the suffering that every person endured, we took our part seriously. We hope others will do the same to ensure this never, ever happens again.”
“This case has nothing to do with partisanship. It has to do with human decency, resurrecting the complete abandonment of the people of Flint, and finally, finally, holding people accountable for the unspeakable alleged atrocities that harmed this city for years,” said Prosecutor Worthy. “Pure and simple this case is about justice, truth, accountability, poisoned children, lost lives, shattered families that are still not whole, and simply giving a damn about all of humanity.”
In April 2014, the water supply reaching thousands of homes, schools and businesses within the City of Flint was switched from water sourced from Lake Huron to the Flint River. As a result of that switch, the Flint Water Crisis quickly became an ongoing public health crisis that has left a lasting impact on thousands of Flint residents. By early 2016, then-Gov. Snyder declared a State of Emergency in Genesee County and an investigation was launched by a private law firm – appointed by then-Attorney General Bill Schuette – that was then designated as the former Office of Special Counsel (OSC).
In late 2018, Attorney General Dana Nessel was elected and upon taking office in 2019, she made decisions to put a conflict wall in place to ensure the criminal investigation and civil litigation following the Flint Water Crisis were conducted by completely separate teams. Nessel decided to lead the civil litigation team. The OSC – which proved to be an unnecessary cost to taxpayers – was no longer needed, and Hammoud and Worthy were tapped to lead the criminal investigation.
Citing grave concerns about the investigative approach and legal theories embraced by the former OSC – particularly regarding the pursuit of evidence, Hammoud and Worthy announced in June 2019 the dismissal without prejudice of all pending criminal charges previously brought by the OSC. The prosecution team’s voluntary dismissal allowed them to move forward in conducting a thorough, methodical and ethical investigation. The dismissal also was not a determination of any defendant’s criminal responsibility, nor was the team precluded from refiling charges against the specified defendants, or adding new charges and additional defendants.
Mining Companies Responsible for 2015 Gold King Mine Disaster Settle
The New Mexico Environment Department (NMED), New Mexico Attorney General’s Office, and the New Mexico Office of Natural Resources Trustee announced an $11 million settlement associated with the 2015 Gold King Mine blowout that released tons of toxic metals and acidic waste into the Animas and San Juan Rivers. The settlement is between the State of New Mexico and defendants Sunnyside Gold Corporation, which oversaw the construction of bulkheads that caused the Gold King Mine and nearby mines to fill with acidic mine water, and its parent companies Kinross Gold Corporation and Kinross Gold U.S.A., Inc. The $11 million paid to the State of New Mexico includes $10 million for environmental response costs and lost tax revenue, as well as $1 million to the Office of the Natural Resources Trustee for injuries to New Mexico’s natural resources.
“Thanks to unprecedented levels of collaboration between state, tribal and local governments, the Animas and San Juan rivers are healthy and clean again – supporting agricultural, recreational and cultural uses,” said Gov. Michelle Lujan Grisham. “But that does not change the fact that the Gold King Mine disaster harmed New Mexicans, harmed our environment, and continues to harm our economy. We have won this battle, but we will continue to fight as we hold the U.S. EPA responsible for this terrible incident.”
“I am clear about the Environment Department’s mission: those who contaminate our precious natural resources will face consequences,” said NMED Cabinet Secretary James Kenney. “If the U.S. EPA truly shares our mission of protecting and preserving the environment, they need to compensate the state for the damages caused to our environment, our economy and our people.”
“This settlement is a step toward holding accountable anyone who pollutes New Mexico. I am pleased to settle this portion of the case. It is now the U.S. EPA who must step up and take responsibility,” said Attorney General Hector Balderas. “I will continue to fight to protect our most vulnerable communities and pristine environment, especially from the federal government, which should be held responsible to these communities too.”
“The Gold King Mine blowout was a gut-wrenching reminder of how New Mexico residents suffer when toxic substances are released into the environment,” said Natural Resources Trustee Maggie Hart Stebbins. “Through this settlement, Governor Lujan Grisham and Attorney General Balderas The Animas River, as it appears today are holding polluters accountable and making sure that New Mexicans along the Animas and San Juan rivers are compensated for their losses.”
As a result of the blowout, more than 3 million gallons of bright yellow mine water contaminated with heavy metals flowed into Cement Creek, a tributary of the Animas River. The toxic plume reached the Animas River and flowed into New Mexico and the San Juan River, which also runs through the Navajo Nation and Utah.
Testing in the Animas River Valley, pictured at right in 2017, shows that water used for irrigation is safe to use and crops grown there are safe to eat.
The spill led to costs incurred by the state, local municipalities and tribal nations to clean up the contamination. The spill also caused pollution to agricultural areas and adversely impacted New Mexicans in the agricultural and recreational tourism industries in the northwest corner of the state. Although extensive testing indicates that water used to irrigate crops in the Animas Valley is now safe and well within irrigation standards, farmers continue to see lower sales due the stigma left behind by the catastrophic release.
As a result, New Mexico sued the EPA, its contractors, and mining companies for damages sustained by the state. The lawsuit includes allegations of negligence, gross negligence, nuisance, and trespass, as well as violations of federal environmental laws. New Mexico seeks cost recovery, damages, injunctive relief, and attorneys’ fees. The case against the EPA and its contractors is still moving through federal court and is expected to go to trial in early 2022. The State of New Mexico intends to hold the EPA and its contractors fully accountable and to the maximum extent the law allows for the harm they caused to the environment and New Mexico economy.
Big West Oil, LLC Cited for Chemical Risk Management Violations at North Salt Lake Facility
EPA announced a Clean Air Act settlement in which Big West Oil, LLC (Big West Oil) has agreed to pay a $344,364 penalty and address violations of Risk Management Plan requirements at its petroleum refining facility in North Salt Lake, Utah. The company has been cooperative in correcting all identified deficiencies and has also agreed to improve the maintenance of process equipment to reduce the possibility of an accidental release of hazardous chemicals at the facility.
“This agreement will improve the safety of those who live and work in North Salt Lake for years to come,” said EPA Region 8 Enforcement Director Suzanne Bohan. “Big West Oil has taken the necessary steps to improve the management of flammable mixtures and hydrofluoric acid at their facility and reduce the hazards of toxic chemicals to workers, the public, and the surrounding community.”
The settlement, filed as a Consent Agreement on January 13, 2021, resulted from a 2016, EPA inspection at the Big West Oil facility that revealed several Clean Air Act Risk Management Plan violations related to the management of flammable mixtures and hydrofluoric acid; including deficiencies associated with process safety information, hazard analysis, mechanical integrity, and operating procedures.
This case is part of EPA’s National Compliance Initiative to reduce risks from chemical accidents, and it addresses compliance within an industry sector– petroleum refining – which can pose serious risks from such accidents. Following recommendations made by the U.S. Chemical Safety and Hazard Investigation Board in April of 2019, EPA Region 8 is focused on ensuring compliance with the Risk Management Plan Rule at petroleum refining facilities that store and process hydrofluoric acid.
The Big West Oil facility is subject to Clean Air Act Risk Management Plan regulations because it stores and processes large quantities of flammable mixtures and hydrofluoric acid, a hazardous substance that is highly toxic, and when released to air, may cause severe injury, burns, or death. The Risk Management Plan Rule, or Section 112(r) of the Clean Air Act, requires facilities holding more than 10,000 pounds of flammable mixture or 1,000 pounds of hydrofluoric acid to develop a Risk Management Plan and submit that plan to EPA.
Risk Management Plans address: the proper design and maintenance of equipment such as pipes and vessels; emergency preparedness; and the ability to minimize releases that may occur. They also provide valuable information to local fire, police, and emergency response personnel to prepare for and respond to chemical emergencies. Making these plans available to the public also fosters communication and awareness to improve accident prevention and emergency response practices at the local level.
Property Owners Fined $350,000 Penalty for Toxic Oil Leaks And Spills
Washington DC Attorney General Karl A. announced a settlement with Andrew Schaeffer and 2201 Channing St., LLC, the owners of a Ward 5 commercial property where a group of auto repair and sales businesses violated environmental laws for several years. The consent judgment comes out of a 2018 lawsuit filed by the Office of the Attorney General (OAG) against Schaeffer, his company, and the businesses operated on his property, for improperly storing hazardous waste and allowing used oil to spill and leak into District storm sewers and other public spaces. According to the lawsuit, these parties repeatedly ignored citations from the District’s Department of Energy and Environment (DOEE). As part of the settlement, Schaeffer and his company will ensure that the assessment and remediation of the 2201 Channing St. NE property complies with the District’s environmental laws, perform environmental assessments and potential cleanup at six other Ward 5 properties owned by Schaeffer and his affiliated companies, and pay the District $350,000 in civil penalties. This settlement partially resolves the suit, but OAG will continue to pursue other defendants that share responsibility for the pattern of environmental violations.
“District businesses have a legal responsibility to ensure hazardous waste they create does not pollute or harm the District’s water systems, such as the Anacostia River, and other natural resources,” said AG Racine. “For years, Mr. Schaeffer and these companies ignored repeated warnings from District authorities that they had caused illegal leaks and spills of used oil on and off the property. As a result of this settlement, the defendants will now clean up their properties and ensure all hazardous waste is properly stored and secured. The Office of the Attorney General will not hesitate to take action against any business that violates the District’s environmental laws.”
The District’s Water Pollution Control Act of 1984 prohibits discharge of pollutants into the waters of the District. The Hazardous Waste Management Act of 1977 comprehensively regulates the handling, storage, management and disposal of hazardous waste, including used oil. It requires generators of hazardous waste to take specific steps to prevent and contain spills and to clean up and manage any spills that do take place.
The auto repair and sales businesses—Right Hour Auto Sales Inc., Wave Rides Company, and Capitol Hill Auto Repair Inc.—were Schaeffer’s tenants and operated out of his property at 2201 Channing St. NE in Ward 5’s Langdon neighborhood. Although the property is currently vacant, these businesses handled and stored hazardous materials, including used automotive oil, as part of their work to repair and service cars. OAG is still pursuing these companies for their role in violating the District’s environmental laws. The property is 400 feet from a storm water catchment basin that discharges into Hickey Run, a tributary of the Anacostia River. In addition to this property, Schaeffer owns six other properties on Kenilworth Ave. NE.
Starting in 2008, DOEE cited the businesses on the property multiple times for a range of violations, including failure to properly store and contain used oil; illegally discharging it onto nearby sidewalks, streets, and storm sewers; and neglecting to respond to spills that occurred. In 2018, DOEE referred the matter to OAG—the first time the department referred a case to OAG as an independent agency for violations of the District’s environmental regulations.
Under the terms of the settlement, the defendants are required to:
  • Pay the District a $350,000 civil penalty: As a result of these violations, the defendants must pay the District a total of $350,000 in penalties over the course of 90 days.
  • Ensure compliance with the District’s Leaking Underground Storage Tank (LUST) Program: A previous assessment of the 2201 Channing St. NE property uncovered an abandoned underground storage tank, triggering the need for a separate compliance assessment under the District’s LUST program. The defendants must complete this process and demonstrate to the District that the property meets cleanup standards.
  • Assess additional sites to determine if any further environmental remediation is needed: Schaeffer owns six additional commercial properties located at 1013-1015, 1075, 1155, 1215, 1235, and 1239 Kenilworth Ave. NE. Within 60 days, the defendants must perform environmental site assessments at each property. Should additional environmental issues exist, Schaeffer and his company are required to correct them and undergo additional site assessments.
TDEC Offers Tennesseans Free Radon Test Kit for Homes
With Tennesseans spending more time at home due to the COVID-19 pandemic, the Tennessee Department of Environment and Conservation (TDEC) encouraged households to take advantage of free radon test kits.
Gov. Bill Lee has declared January as Radon Action Month statewide.
“Knowing the level of radon in your home has always been important, but in the current environment it is even more important to be informed,” Dr. Kendra Abkowitz, director of the Office of Policy and Sustainable Practices at TDEC, said. “The test kits are free, and we urge all Tennesseans to take advantage of this opportunity.”
Radon is the second leading cause of lung cancer in the United States, and it is the No. 1 cause of lung cancer among non-smokers. Radon is a colorless, odorless, naturally occurring radioactive gas that can threaten people’s health when it is trapped in confined spaces. It is produced by the breakdown of uranium in rocks and soils. The only way to know if radon is in a home at levels that are harmful to health is to test for it.
For more information and to request a free test kit, visit https://www.tn.gov/environment/radon or call 800-232-1139.
Radon does not generally present a health risk outdoors because it is diluted in the open air. Radon can, however, build up to dangerous levels inside a house. A house can act like a vacuum, drawing radon through foundation cracks and other openings. Radon may also be present in well water and can be released in a home when the water is used for showering and other household activity.
TDEC manages the Tennessee Radon Program, a statewide awareness and education initiative, where the goal is to educate the public about the risk of radon exposure in indoor environments.
CPSC Safety Warning: Serious Injury or Death Can Occur if Lithium-Ion Battery Cells Are Separated from Battery Packs and Used to Power Devices
The U.S. Consumer Product Safety Commission (CPSC) has issued a warning not to buy or use loose 18650 lithium-ion battery cells. These cells are manufactured as industrial component parts of battery packs and are not intended for individual sale to consumers. However, they are being separated, rewrapped and sold as new consumer batteries, typically on the Internet.
Rechargeable lithium cells without proper protection that are not installed in a device or as part of an integral battery (loose cells) are potentially hazardous to consumers when handled, transported, stored, charged, or used to power devices. Specifically, these battery cells may have exposed metal positive and negative terminals that can short-circuit when they come into contact with metal objects, such as keys or loose change in a pocket. Once shorted, loose cells can overheat and experience thermal runaway, igniting the cell’s internal materials and forcibly expelling burning contents, resulting in fires, explosions, serious injuries and even death.
In addition, thermal runaway can occur in loose cells if consumers use them in inappropriate chargers that allow for charging beyond the cell’s specifications. Unfortunately, a growing number of small consumer products, such as vaping devices, personal fans, headlamps, and some toys, are using loose 18650s as a power source. CPSC is working with e-commerce sites, including eBay, to remove listings selling these loose cells.
Do not use loose 18650 lithium ion cells that are separated from battery packs. They are often misused as a stand-alone consumer battery, but do not have protection circuits. For additional information on high-energy battery safety, please visit: https://cpsc.gov/Regulations-Laws--Standards/Voluntary-Standards/Topics/Batteries/. CPSC urged consumers to report problems with lithium-ion batteries to CPSC at: www.SaferProducts.gov.
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.
Job Openings at Environmental Resource Center
Environmental Resource Center has openings for EHS consultants and trainers. If you are looking for a new challenge, send your resume and salary requirements to Brian Karnofsky at brian@ercweb.com.
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