By: Steven M. Siros
U.S. EPA recently released its 2013 enforcement report, which highlights the $5.6B in fines, restitution and court-ordered environmental projects that U.S. EPA obtained in civil and criminal enforcement proceedings in 2013 (as compared to $200M in 2012). It should be noted, however, that the Deepwater Horizon events themselves accounted for $5B of the $5.6B collected by U.S. EPA in 2013. Two additional matters accounted for $450M of the remaining $600M collected by U.S. EPA.
U.S. EPA acknowledged that it pursued 20% fewer enforcement cases in 2013 although the magnitude of the Deepwater Horizon prosecution provides a partial explanation for this enforcement decrease. However, this enforcement decline is consistent with U.S. EPA's draft Strategic Plan for 2014-2018 which was the subject of an earlier blog post . As discussed in the earlier post, instead of focusing on the numeric volume of enforcement cases, U.S. EPA's strategic plan proposes to target larger and more complex environmental violations and violaters.
Please click here to go to U.S. EPA's 2013 enforcement results website.
U.S. EPA recently issued a draft strategy document in response to a December 2011 Inspector General Report that found inadequate enforcement of environmental laws at the state level. U.S. EPA's draft "National Strategy for Improving Oversight of State Enforcement Performance" outlines several possible enforcement options, including U.S. EPA overfiling and/or removal of a state's delegated authority to administer specific federal programs.
The draft strategy document acknowledges that although many states have effective enforcement programs, "state performance in meeting national enforcement goals and taking necessary enforcement actions varies across the country." Specific issues identified in the strategy document included (1) widespread and persistent data inaccuracy and incompleteness; (2) routine failure of states to identify and report serious non-compliance; (3) routine failure of states to take timely or appropriate enforcement actions; and (4) failure of states to seek appropriate penalties.
In an effort to address these issues, the strategy document proposes a tiered process. In the first instance, U.S. EPA would work with the state regulators in an effort to focus attention on the issue. If that is unsuccessful, the next step would be to elevate the issue to higher levels of management within the state. If the issue remains unresolved, U.S. EPA may elect to take more direct action, including conducting federal-only inspections and/or bringing federal-only cases. Finally, if these efforts fail, U.S. EPA may elect to overfile, withhold grant monies, or in rare circumstances, withdraw a delegated state program.
The draft strategy document has been sent to the states for review and comment. Notwithstanding any comments that might be received from the states, this strategy document clearly illustrates that U.S. EPA is closely evaluating state enforcement activities and appears ready and able (now that the shutdown is over) to step in and take action in situations where it decides that the states are not actively enforcing environmental laws.
On August 1, 2013, President Obama issued an Executive Order titled "Improving Chemical Facility Safety and Security." The Executive Order is in response to recent tragedies involving chemical accidents at U.S. facilities, most recently the explosion at a fertilizer plant in West, Texas. The Executive Order establishes the Chemical Facility Safety and Security Working Group, co-chaired by the Secretary of Homeland Security, the Administrator of the EPA, and the Secretary of Labor. The Working Group is tasked with the following goals:
- Improving Operational Coordination with State, Local, and Tribal Partners.
- Enhanced Federal Coordination.
- Enhanced Information Collection and Sharing.
- Policy, Regulation and Standards Modernization.
- Identification of Best Practices.
Notable requirements in the Executive Order include:
- Assessing the feasibility of sharing data related to the storage of explosive materials and chemicals that are regulated under the Chemical Facility Anti-Terrorism (CFATS) standard with State, Tribal and local emergency responders.
- Developing recommendations on ways to identify chemical facilities that are not in compliance with all federal chemical safety requirements.
- Developing a list of potential regulatory and legislative proposals to improve the safe, secure storage, handling and sale of ammonium nitrate (the chemical at issue in the West, Texas explosion).
- Reviewing the Risk Management Program (RMP) and the Process Safety Management Standard (PSM) to determine if RMP or PSM should be expanded to address additional substances.
- Identifying any chemicals that should be added to the CFATS Chemicals of Interest list.
The Working Group is required to provide a status report to the President by April 28, 2014.
Executive Order, "Improving Chemical Facility Safety and Security" is available at: http://www.whitehouse.gov/the-press-office/2013/08/01/executive-order-improving-chemical-facility-safety-and-security
The USGS has released a new report, Prioritization of Constituents for National and Regional Scale Ambient Monitoring of Water and Sediment in the United States, that addresses the methodology used to prioritize constituents to be assessed. This effort was undertaken in preparation for the third decade of the National Water – Quality Assessment Program (NAWQA) including the time period 2013-2023.
Constituents were prioritized by the NAWQA National Target Analyte Strategy Work Group on the basis of available information on physical and chemical properties, observed or predicted environmental occurrence and fate, and observed or anticipated adverse effects on human health or aquatic life.
The constituents were ranked in three tiers:
- Tier 1 with those having the highest priority on the basis of their likelihood of environmental occurrence in ambient water or sediment, or likelihood of effects on human health or aquatic life;
- Tier 2 for constituents of intermediate priority on the basis of their lower likelihood of environmental occurrence or lower likelihood of effects on human health or aquatic life; and
- Tier 3 of those with low or no priority for monitoring.
Overall, 2,541 constituents were assessed with 1,081 constituents identified for ranking in Tier 1. Constituent groups included volatile organic compounds in water; pesticides in water or sediment; pharmaceuticals and hormones in water or sediment; trace elements and other inorganic constituents in water or sediment; cyanotoxins in surface water; lipophilic organic compounds in sediment; disinfection byproducts in water; high-production-volume chemicals in water; wastewater-indicator and industrial compounds in water; and radionuclides in water.
USGS began the NAWQA program in 1991 to develop long-term and consistent information on U.S. streams, rivers, and groundwater, how the conditions are changing over time, and how natural features and human activities affect these features, according to the USGS website.
The USGS report is available at http://pubs.usgs.gov/sir/2012/5218/sir12-5218.pdf.
On May 28, 2013, Wal-Mart entered a guilty plea with respect to charges filed by the Department of Justice alleging that Wal-Mart violated the Clean Water Act (CWA) at its stores in California and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) at a recycling and repackaging facility located in Missouri. With respect to its California stores, Wal-Mart pleaded guilty to the illegal dumping of corrosive and hazardous liquid wastes into drains that led to publicly owned treatment works at multiple retail stores in Alameda, Contra Costa, Del Norte, Lake, Mendocino, Monterey, Napa, Sonoma, and Santa Clara counties. Wal-Mart agreed to pay $60 million to resolve the California CWA charges. With respect to its recycling and repacking facility in Missouri, Wal-Mart pleaded guilty to violations of FIFRA. According to the plea agreement, Wal-Mart failed to properly train its employees with respect to the required handling of pesticides that were returned to Wal-Mart. Wal-Mart is alleged to have sent these pesticides to its recycling warehouse in Missouri where the pesticides were mixed together and then offered for sale to customers in containers that were not labeled with the required registration, ingredients, or use information for the pesticides. Wal-Mart agreed to pay $14 million to resolve the Missouri charges.
Finally, Wal-Mart entered into a consent order with U.S. EPA pursuant to which Wal-Mart is required to implement a comprehensive, nationwide environmental compliance agreement to manage hazardous waste generated at its stores. The agreement includes requirements to ensure adequate environmental personnel and training at all levels of the company, proper identification and management of hazardous wastes, and the development and implementation of Environmental Management Systems at its stores and return centers. Compliance with this agreement is a condition of probation imposed in the above-referenced criminal cases. As part of this consent order, Wal-Mart also agreed to pay a $7.6 million civil penalty. To see a copy of the consent order, please click here.
The USGS recently made available detailed maps identifying annual usage of 459 pesticides throughout the U.S. The Pesticide National Synthesis Project manages pesticide data from 1992-2009 and provides specific statistics associated with pesticide use per crop and within each county.
The maps were developed for use in national and regional water-quality assessments. The USGS data was collected from surveys of farm operations and USDA statistics on annual harvest-crop acreage. This information was used to calculate use rates for each crop per year.
These maps show interesting information about the nature of pesticide use around the country. Data includes insight into the quantity of pesticide use per U.S. county as well as the specific crop growing in the same area.
The usage maps for all 459 pesticides can be accessed at http://water.usgs.gov/nawqa/pnsp/usage/maps/compound_listing.php.
An Indiana appellate court recently affirmed summary judgment on behalf of The Dow Chemical Company and Dow AgroSciences, LLC (collectively "Dow"), in a personal injury lawsuit premised on alleged design defect and failure to warn claims. See Gresser et al. v. The Dow Chemical Company, Inc., et al. (Ind. Ct. App. April 30, 2013). Plaintiffs purchased a home that had been treated with the pesticide, Dursban TC. Shortly after moving into the home, plaintiffs allegedly experienced adverse health impacts that they attributed to the pesticide. Plaintiffs therefore filed product liability claims against Dow and negligence claims against the pesticide applicator.
Dow filed for summary judgment, arguing (1) that the Dursban was not a defective product and (2) that plaintiffs' claims were preempted under federal law. The trial court granted summary judgment, finding that Dursban was not a defective product and that plaintiffs' claims were preempted. On appeal, the Indiana appellate court noted that Indiana's Product Liability Act ("IPLA") provides a rebuttable presumption that a product is not defective where, before the sale, the manufacturer complies with all applicable codes, standards, regulations or specifications established by an agency of the United States or Indiana. Because Dow had registered the pesticide in compliance with the applicable FIFRA regulations, the court found that Dow was entitled to a statutory presumption that its product was not defective. Plaintiffs presented no admissible evidence to rebut this presumption, and therefore, the court found that Dow was entitled to summary judgment under the IPLA.
With respect to Dow's alternative preemption argument, however, the court found that the trial court's grant of summary judgment on this ground was improper. The court cited to Dow Chemical Co. v. Ebling, 753 N.E.2d 633 (Ind. 2001), noting that "the use of state tort law to further the dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden an applicator's compliance with FIFRA."
To see a copy of this opinion, please click here.