EPA to End Settlements and Consent Decrees

October 23, 2017

EPA Administrator Scott Pruitt issued a directive moving to end consent decrees and settlements. The directive is aimed at limiting people, communities, and organizations from taking the agency to court when it is not complying with the law or fails to enact or enforce regulations on the books. The effect of this directive could be to give the EPA more time to delay enforcement of environmental laws including the Clean Water Act and Clean Air Act, and to discourage people from seeking justice in a court or law. Ultimately, all it will accomplish is to put the public’s health and safety at risk.

The directive could force parties into protracted litigation, even when the agency openly acknowledges that it has broken the law by, for example, missing a statutory deadline for adopting controls that would protect the public from dangerous pollutants. Prior to this directive, when a member of the public filed a claim against the government for not complying with some clear legal requirement, the government was able engage in settlement discussions with the party that brought the suit, and take responsibility for its unlawful conduct by agreeing to take the action already required by law by a certain date.

This directive would prevent or restrict the government from accepting responsibility for its illegal conduct, instead forcing both parties to engage in unnecessary litigation, putting a strain on the resources of both members of the public and the federal government, and prolonging the harms to the public that result from the agency’s failure to comply with the law. It could also have a chilling effect on parties bringing suits seeking to compel government action if they know costly and prolonged litigation will be necessary to obtain relief.

The directive also bars the agency from agreeing to pay attorney’s fees to the party that brings these suits, forcing members of the public to litigate further to recover those fees, and making it that much more difficult to hold the government accountable to the people, even where it admits that it has not complied with the law. This sets up an unfair burden to individuals and communities, especially those that are unable to shoulder the burden of costly litigation.

The full directive and memo can be read here.

San Diego Hazardous Waste and DOT Training

Register for California Hazardous Waste Management and DOT Hazardous Materials Training: The Complete Course in San Diego, CA, on October 31–November 2 and save $100. To take advantage of this offer, click here or call 800-537-2372.

Williamsburg RCRA and DOT Training

Register for Hazardous Waste Management: The Complete Course and DOT Hazardous Materials Training: The Complete Course in Williamsburg, VA, on November 7–9 and save $100. To take advantage of this offer, click here or call 800-537-2372.

Orlando RCRA and DOT Training

Register for Hazardous Waste Management: The Complete Course and DOT Hazardous Materials Training: The Complete Course in Orlando, FL, on November 14–16 and save $100. To take advantage of this offer, click here or call 800-537-2372.

Arsenic in Domestic Well Water Could Affect 2 Million People in the U.S.

Clean drinking water can be easy to take for granted if your home taps into treated water sources. But more than 44 million people in the US get their water from private domestic wells, which are largely unregulated. Of those, a new report estimates that about 2 million people could be exposed to high levels of naturally occurring arsenic in their water. The study, "Estimating the High-Arsenic Domestic-Well Population in the Conterminous United States," appears in ACS’ Environmental Science & Technology.

Long-term exposure to inorganic arsenic, which is found in the earth’s crust and is widely distributed in the environment, can potentially cause a variety of health problems including cancers. Also, recent research suggests that for pregnant women, low-level exposure could affect fetal growth and pre-term birth. Municipal water-treatment systems can filter arsenic out, but monitoring and mitigating contaminants in well water is up to private owners. Determining who might be getting exposed to arsenic from their well water on a national scale hasn’t been adequately sussed out.  So Joseph D. Ayotte and colleagues at the U.S. Geological Survey and the U.S. Centers for Disease Control and Prevention wanted to fill that gap.

To map well-water arsenic levels, the researchers developed a model incorporating tens of thousands of existing arsenic measurements from wells across the U.S. They also considered factors that affect arsenic concentrations, including regional rainfall, geology, and aquifer chemistry. The model identified arsenic hotspots where wells would likely have levels of arsenic higher than 10 micrograms per liter, the threshold concentration set by the EPA as the maximum contaminant level. Hotspots were largely concentrated in New England, a swath of territory in the upper Midwest, the Southwest and southern Texas. Based on these findings, the study estimated that the affected wells serve about 2.1 million people, many of whom might be unaware of the potential health hazard. The takeaway, researchers say, is that all private well owners should test their wells for arsenic. The information could help officials analyze health risks and possible mitigation strategies.

Metal Plater Guilty of Hazardous Waste Violations

Phillip Michael Huddleston, 61, pleaded guilty to violating the federal Resource Conservation and Recovery Act (RCRA) by illegally storing hazardous waste without a permit at Protech Metal Finishing, LLC, a metal plating facility he owned and operated in Vonore, Tennessee. 

John Thomas Hatfield, 43, Protech’s production manager, pleaded guilty on October 2, 2017, to being an accessory after-the-fact to Protech’s illegal storage of hazardous waste.  In order to hinder an investigation of Protech’s compliance with the RCRA, Hatfield represented that containers of hazardous waste were accurately labeled when he knew that they were not.

“These guilty pleas are the result of notable efforts undertaken by multiple law enforcement agencies to enforce provisions in government contracts and the RCRA that protect human health and the environment,” said Acting Assistant Attorney General Jeffrey H. Wood. “In this case, what was at stake was the health and safety of Protech employees and the community of Vonore, Tennessee.”

When Congress passed the RCRA, it determined that the disposal of, and inadequate controls over hazardous waste “will result in substantial risks to human health and the environment.” To that end, the RCRA imposes “cradle-to-grave” tracking, handling, and reporting controls to ensure that companies like Protech properly manage the generation, storage, transport, and disposal of hazardous wastes. The maximum penalty for each felony RCRA count is five years in prison and a fine of $250,000. The maximum penalty for this accessory-after-the-fact count is one year in prison and a fine of $25,000. 

Defendants Hatfield and Huddleston are scheduled to be sentenced by Senior District Court Judge Leon Jordan on January 10 and January 8, 2018, respectively. 

This was prosecuted by Assistant United States Attorney Matt Morris of the U.S. Attorney’s Office for the Eastern District of Tennessee, and Trial Attorneys Cassandra Barnum and Senior Trial Attorney Todd W. Gleason of the Environment and Natural Resources Division. The prosecution is the result of an investigation by the IRS, EPA-CID, TVA-OIG, Department of Defense, and Department of Energy.

VT Volant Aerosystems Fined $37,996 for Waste Violations

VT Volant Aerosystems (Volant) will pay $37,996 to settle violations for mishandling hazardous waste and for a spill that occurred in 2015. Washington Department of Ecology inspectors found 17 violations of dangerous waste regulations at Volant in December 2015 and 12 violations, nine of them repeats from the earlier inspection, in April 2017.

The 2015 inspection followed a spill of process water from a broken pipe inside the facility that contained hazardous methyl ethyl ketone. The spill was cleaned up by the facility.

Since the April 2017 inspection, Volant has cooperated with Ecology on complying with the regulations.

“For several years, we’d inspect, find violations, they’d correct them, and the next time we’d find violations again, many of them repeated,” said Darin Rice, who manages Ecology’s Hazardous Waste and Toxics Reduction program. “This time, Volant is making efforts to stay in compliance. We’re pleased to see this, because following these regulations helps protect public safety and the environment.”

The penalty was originally $57,000, but the company entered into an expedited settlement agreement with Ecology to reduce the recommended penalty by one-third to $37,996. As part of the settlement, Volant waives its right to appeal. Ecology’s expedited settlement process saves the state, its taxpayers, and Volant the expense of costly litigation 

The violations observed in the inspections included:

  • Failure to send dangerous waste to a permitted transfer, storage, and disposal facility
  • Failure to take appropriate mitigation and control actions after a spill
  • Inadequate personnel training program
  • Failure to properly label dangerous waste containers
  • Failure to properly manage universal wastes


Inspections Lead to Enforcement Action Against California Electronic Waste Recycler

The Sacramento County Superior Court has entered a judgment against California Electronic Asset Recovery (CEAR), an electronic waste recycler in Mather, for hazardous waste management violations.

Under the terms of the judgment, the company will pay the Department of Toxic Substances Control a total of $390,000.

The judgment follows a series of DTSC inspections over a three-year period (2012-14) that found multiple violations of the state’s Hazardous Waste Control Law. DTSC has continued to inspect the facility in recent years and has found no violations.

“Compliance with the hazardous waste law is very important in protecting public health and the environment, and DTSC appreciates CEAR taking the steps necessary to comply with the law,” said Keith Kihara, Chief of DTSC’s Enforcement and Emergency Response Division.

CEAR operates an indoor treatment machine that shreds electronic devices and metal components into small pieces and sorts them. Among the items recycled by CEAR are televisions, monitors and computer equipment.

The company’s violations included the illegal treatment, storage and disposal of hazardous waste containing lead, cadmium, copper and zinc, among other compounds, and failure to operate its facility in a manner to minimize the release of hazardous waste.

View documents related to the case here.

EPA Reversal on Radiation

In a policy reversal, the EPA has declared that radiation exposures equivalent to as many as 5,000 chest x-rays “usually result in no harmful health effects,” according to an agency document posted recently by Public Employees for Environmental Responsibility (PEER). For decades, EPA had taken the position that “There is no known safe amount of radiation” and is responsible for enforcing laws such as the Safe Drinking Water Act, which prohibits public radiation exposure at levels the agency now says is safe.

In a September 2017 document titled “Questions & Answers for Radiological and Nuclear Emergencies,” EPA declares, in a FAQ format, the following:

“How much radiation is safe? How much is considered low risk?

According to radiation safety experts, radiation exposures of 5–10 rem (5,000–10,000 mrem or 50–100 mSv) usually result in no harmful health effects, because radiation below these levels is a minor contributor to our overall cancer risk…” 

EPA does not specify which “radiation safety experts” it is now relying upon but it is notable that:

  • The National Research Council of the National Academy of Sciences, and EPA itself, have long estimated that 10,000 millirems could be expected to induce excess cancers in every 86th person exposed
  • Those health effects are for a one-time exposure but EPA is rolling out a new approach that would allow daily public exposure at highly elevated levels every day for up to a year
  • EPA’s longstanding scientific estimate is that 10,000 millirems would produce a risk at least 100 times higher than EPA’s acceptable risk range on radiation exposure to the public


EPA’s new approach is encapsulated in a policy with the paradoxical title of “Protective Action Guides” that allows public exposure to radioactivity following a nuclear release at levels many times the maximum limits of the Safe Drinking Water Act. It was finalized on the very last day of the Obama presidency but apparently has been embraced by the Trump team, as this health non-warning was issued just days ago.

“This signals that in the event of a Fukushima-type accident EPA will allow public consumption of radiation-contaminated drinking water for months,” added Ruch, noting that PEER is preparing to legally challenge the new drinking water Protective Action Guides. “Dr. Strangelove is alive and lurking somewhere in the corridors of EPA.”

Washington Wants Comment on EPA Hazardous Waste Generator Improvements Rule

The Washington State Department of Ecology is now accepting informal public comments on draft changes to Chapter 173-303 WAC, Dangerous Waste Regulations. Amongst other changes, these draft amendments incorporate EPA’s Hazardous Waste Generator Improvements Rule, which was published in the Federal Register (81 FR 85732) in November 2016 and went into effect in several states on May 30, 2017.

This rule finalizes what Ecology described as a much-needed update to the hazardous waste generator regulations to make the rules easier to understand, facilitate better compliance, provide greater flexibility in how hazardous waste is managed and close important gaps in the regulations. Ecology is now asking for public feedback. Comments will be accepted through December 19, 2017. 

The agency will be holding public meetings that will describe the changes and solicit comments on the following dates:

  • Ecology’s northwest regional office, November 9, 2017
  • Dangerous waste rulemaking informational webinar, November 15, 2017
  • Ecology’s eastern regional office, December 4, 2017


To learn more and how to submit comments, visit Ecology’s Rulemaking website: http://www.ecy.wa.gov/programs/hwtr/laws_rules/DWRegs/1603inv.html 

North Pacific Seafoods Fined for Risk Management Violations

The EPA recently that North Pacific Seafoods of Seattle will reduce diesel emissions and the potential for harmful interruption of its refrigeration process as part of a settlement for the company’s failure to comply with the hazardous chemicals risk management requirements of the Clean Air Act at its Red Salmon Cannery in Naknek.

The EPA found that since 2014 the company failed to develop and implement a risk management plan to detect and prevent or minimize accidental releases of the cannery’s large volume of anhydrous ammonia—a potentially deadly chemical—and to provide a prompt emergency response to any such releases. A power failure could shutdown refrigeration equipment, leading to over pressurization in ammonia-containing equipment thus causing relief devices to release ammonia on site.

The information in a facility’s Risk Management Plan helps local fire, police, and emergency response personnel who must prepare for and respond to chemical accidents, and is useful to citizens in understanding the chemical hazards in communities. The company has submitted its risk management plan and returned to compliance.

Under the terms of its agreement with the EPA, North Pacific Seafoods will spend approximately $175,000 on a Supplemental Environmental Project to install a solar power system and upgrade its lighting to LEDs. The company will also pay a $45,743 penalty.

The Clean Air Act requires facilities that store threshold amounts of hazardous chemicals—at Red Salmon Cannery that would be 10,000 lb of anhydrous ammonia—to have an adequate risk management and emergency plan in place, and ensure its workers are adequately trained to respond in case of a spill or accidental release.

Prolonged exposure to anhydrous ammonia—commonly used in industrial refrigeration, agricultural, and cold storage facilities—at high concentrations (around 300 parts per million) is immediately dangerous to life and health, and can lead to serious lung damage and even death. Skin contact with ammonia can cause extensive damage by corrosive burns. Ammonia is also flammable and can explode if it is released in an enclosed space with a source of ignition present.

“Facilities that store and use hazardous materials have a special obligation to understand and carefully follow regulations designed to protect people, our communities and our environment from potentially catastrophic consequences of accidents,” said Ed Kowalski, director of EPA Region 10’s Office of Compliance and Enforcement. “Failure to comply with the law puts workers, first responders, and members of the surrounding community at risk.” 

About the Law

Introduced in the aftermath of chemical disasters in Bhopal, India and Institute, West Virginia. Section 112(r) of the Clean Air Act requires companies of all sizes that use certain listed regulated flammable and toxic substances to develop a Risk Management Program, which includes a(n):

  • Hazard assessment that details the potential effects of an accidental release, an accident history of the last five years, and an evaluation of worst-case and alternative accidental releases scenarios
  • Prevention program that includes safety precautions and maintenance, monitoring, and employee training measures
  • Emergency response program that spells out emergency health care, employee training measures and procedures for informing the public and response agencies (e.g., the fire department) should an accident occur


The information in a facility’s Risk Management Plan helps local fire, police, and emergency response personnel who must prepare for and respond to chemical accidents, and is useful to citizens in understanding the chemical hazards in communities.

Le Sueur Egg-Washing Facility Fined for Wastewater Violations

Minnetonka-based M.G. Waldbaum Company has agreed to pay a $32,900 penalty for wastewater violations at its eggwash facility in Le Sueur, as part of an enforcement action by the Minnesota Pollution Control Agency (MPCA). The facility, which is used to wash freshly laid eggs, generates about 6,000 gallons of wastewater a day. The wastewater is applied to farmland through a spray irrigation system.

Inspections by MPCA staff revealed that the company discharged more contaminants than allowed in its wastewater; did not fulfill all operation and maintenance monitoring, reporting, and record-maintenance requirements; and didn’t follow other necessary procedures. 

The facility’s violations endangered nearby groundwater and lakes and streams. Waldbaum’s wastewater discharges contain fecal coliform bacteria, nitrates and other contaminants. Bacteria and nitrates can be a health hazard if they end up in drinking water. In addition, proper reporting and sampling procedures are critical for:

  • Showing a permitted facility where its processes should be adjusted
  • Alerting the public to environmental issues
  • Providing needed information in the event of a spill or other emergency


M.G. Waldbaum Company has taken corrective steps and has submitted required reports, obtained necessary staff certifications, updated its lab procedures, and created plans for meeting all its permit requirements going forward.

Interscience Fined $54,000 for Alleged Hazardous Materials Violations

The U.S. Department of Transportation’s Federal Aviation Administration (FAA) proposed a $54,000 civil penalty against Interscience of Saint-Nom-la-Breteche, France, for allegedly violating the Hazardous Materials Regulations.

The FAA alleged that on December 21, 2016, Interscience offered six plastic bottles of flammable liquid disinfectant spray to American Airlines for shipment by air from Blagnac, France, to Nuevo Leon, Mexico.

Workers at the American Airlines cargo facility at Dallas-Fort Worth International Airport discovered the shipment.

According to the FAA, the package was not accompanied by a shipper’s declaration of dangerous goods and was not properly classed, described, packaged, marked, labeled or in the proper condition for shipment. The agency also alleges Interscience failed to ensure that each of its employees received required hazardous materials training, and failed to provide emergency response information with the shipment.

$50,000 Penalty for Lithium Battery Violations

The FAA proposed a $50,000 civil penalty against DebMed USA, LLC, of Charlotte, North Carolina, for allegedly violating the Hazardous Materials Regulations. The FAA alleged that on June 22, 2016, DebMed offered 142 lithium metal batteries to American Airlines for transportation by air from Dallas-Fort Worth International Airport to San Francisco, California, in the checked baggage of a DebMed employee.

Lithium metal batteries are prohibited as air cargo on passenger aircraft and are also prohibited in checked baggage. Airline passengers may only carry uninstalled, spare lithium batteries in carry-on baggage when the batteries are for personal use in portable electronic devices.

Airline baggage is not an authorized method for companies to move lithium batteries or other hazardous materials. The rules for carrying lithium batteries and lithium battery- powered devices as an airline passenger are available on FAA’s website.

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Trivia Question of the Week

Which of the following chemicals are present in wildfire smoke? 

a. Carbon dioxide

b. Carbon monoxide

c. Formaldehyde

d. A and b only

e. All of the above


Answer: e