May 20, 2019
Decisions on plastic waste have been reached on May 11 in Geneva, as approximately 180 governments adopted a raft of decisions aimed at protecting human health and the environment from the harmful effects of hazardous chemicals and waste.
Pollution from plastic waste, acknowledged as a major environmental problem of global concern, has reached epidemic proportions with an estimated 100 million tonnes of plastic now found in the oceans, 80-90% of which comes from land-based sources.
Governments this week amended the Basel Convention to include plastic waste in a legally-binding framework which will make global trade in plastic waste more transparent and better regulated, whilst also ensuring that its management is safer for human health and the environment. At the same time, a new Partnership on Plastic Waste was established to mobilise business, government, academic and civil society resources, interests and expertise to assist in implementing the new measures, to provide a set of practical supports – including tools, best practices, technical and financial assistance - for this ground-breaking agreement.
Other far-reaching decisions from the two weeks included the elimination of two toxic chemical groups, which together total about 4,000 chemicals, listed into Annex A of the Stockholm Convention, namely Dicofol and Perfluorooctanoic Acid, and its salts and related compounds. The latter has till now been used in a wide variety of industrial and domestic applications including non-stick cookware and food processing equipment, as well as a surfactant in textiles, carpets, paper, paints and fire-fighting foams.
Important progress was also made under the Rotterdam Convention, which provides a legally-binding framework for information exchange and informed decision-making in the trade of certain hazardous pesticides and industrial chemicals. Two chemicals, the pesticide phorate and the industrial chemical hexabromocyclododecane were added to Annex III of the convention, making them subject to the Prior Informed Consent Procedure, through which countries can decide on future imports of these chemicals. A further decision, to approve procedures and mechanisms on compliance with the Rotterdam Convention – seen as a crucial step for further improving implementation of this key convention - was adopted with great appreciation by Parties.
Working for two weeks in Geneva under the theme of “Clean Planet, Healthy People: Sound Management of Chemicals and Waste”, approximately 1,400 delegates from around 180 countries converged for the meetings of the Conferences of Parties to the Basel, Rotterdam and Stockholm conventions. Participants benefited from the numerous opportunities and events to exchange information on alternatives to these chemicals, as well as best practices.
Speaking at the closing session of the COPs, Rolph Payet, UN Environment's Executive Secretary of the three conventions for, said that “I’m proud that this week in Geneva, Parties to the Basel Convention have reached agreement on a legally-binding, globally-reaching mechanism for managing plastic waste. Plastic waste is acknowledged as one of the world’s most pressing environmental issues, and the fact that this week close to 1 million people around the world signed a petition urging Basel Convention Parties to take action here in Geneva at the COPs is a sign that public awareness and desire for action is high.”
“We were able to list two out of 7 candidate chemicals and will continue working closely with parties to identify feasible alternative solutions to hazardous pesticides, taking due account of food security and market access aspects” added Hans Dreyer, UN Food and Agriculture Organization's Executive Secretary of the Rotterdam Convention.
The two new chemicals listed in Annex A to the Stockholm Convention are the pesticide Dicofol, and Perfluorooctanoic acid (PFOA) its salts and PFOA-related compounds (some applications with time-limited exemptions). Listing in Annex A to the Convention obliges Parties to eliminate these chemicals from use. The two chemicals are listed on the basis of a robust review process addressing risks, management options and alternatives by the UN’s POPs Review Committee. Dicofol is used as a miticide on a variety of field crops, fruits, vegetables, ornamentals and tea and coffee and is known to cause skin irritation and hyperstimulation of nerve transmissions in humans as well as being highly toxic to fish, aquatic invertebrates, algae and birds. PFOA is a widely-used industrial chemical used in the production of non-stick cookware and food processing equipment, as well as a surfactant in textiles, carpets, paper, paints and fire-fighting foams. As a substance of very high concern, it is known to be linked to major health problems including kidney cancer, testicular cancer, thyroid disease and hypertension in pregnancy.
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Connecting Hose to the Wrong Tank Results in Toxic Cloud Over City
Federal prosecutors have charged Midwest Grain Products, Inc., and Harcros Chemicals, Inc., with violating the Clean Air Act for causing a greenish-yellow toxic chlorine gas cloud to form over the city of Atchison, Kansas, in October 2016 (42 U.S.C. § 7413(c ) (4)).
On October 21, 2016, a Harcros driver pulled a truck into Midwest Grain’s facility in Atchison to deliver sulfuric acid. An operator for Midwest Grain helped the driver access the transfer equipment. A toxic gas began to form when the driver mistakenly connected the sulfuric acid line to the sodium hypochlorite line. Both men violated safety rules for failing to monitor the transfer and failing to verify that the connection was correct. More than 140 people sought medical attention after 4,000 gallons of sulfuric acid combined with 5,800 gallons of sodium hypochlorite formed a toxic cloud that covered the city for 45 minutes until emergency personnel arrived to turn off the flow.
This case, United States v. Midwest Grain Products, Inc., et al., No. 5:19-CR-40021 (D. Kansas), was investigated by the EPA Criminal Investigation Division.
Dairy Fined for Anhydrous Ammonia RMP and EPCRA Violations
EPA has reached a settlement with Producers Dairy Foods Inc. over chemical safety and risk management violations at its facility in Fresno, California, Producers Dairy Foods, one of the largest family-owned and operated dairies in the West, has agreed to pay a $89,960 civil penalty and make improvements to its risk management practices. In addition, the company will purchase more than $26,000 in emergency response equipment for the Fresno City Fire Department.
This case is part of EPA’s National Compliance Initiative to reduce risks of accidental releases at anhydrous ammonia refrigeration facilities. Producers Dairy Foods’ industrial refrigeration system uses large quantities of anhydrous ammonia, a toxic chemical highly corrosive to skin, eyes and lungs.
“We’re pleased to resolve these safety issues with Producers Dairy Foods and will continue to work with the business community to improve risk-management practices and promote the safety of nearby communities,” said EPA Pacific Southwest Regional Administrator Mike Stoker. “Through this settlement, our local first responders will receive much needed emergency response equipment to protect the City of Fresno.”
In 2018, EPA inspectors found violations of the Clean Air Act’s Risk Management Plan regulations
at the Fresno facility. The violations included deficiencies in the plant’s process safety information, pipe labeling, operating procedures, mechanical integrity program, and follow-up on compliance audits findings. The company also failed to submit annual chemical inventory on the amount of ammonia at the facility, in violation of the Emergency Planning and Community Right-to-Know Act
In addition to the penalty, Producers Dairy Foods is required to complete a supplemental environmental project to purchase and provide approximately $26,300 worth of emergency response instruments, including protective, communications, and rescue equipment to the Fresno City Fire Department. This equipment will improve the department’s ability to respond to a hazardous materials emergency such as an ammonia release.
The Clean Air Act’s Risk Management Program requires facilities with regulated hazardous substances to document hazard assessments detailing the potential effects of an accidental release and a prevention program that includes safety precautions and maintenance, monitoring, and employee training measures. When properly implemented, risk management plans help prevent chemical releases and minimize their potential impacts at facilities that store large amounts of hazardous substances or flammable chemicals.
$4 Million Criminal Fine for Ship Pollution
Two Greek shipping companies, Avin International LTD and Nicos I.V. Special Maritime Enterprises, were sentenced in the Eastern District of Texas before Judge Marcia A. Crone on charges stemming from several discharges of oil into the waters of Texas ports by the oil tanker M/T Nicos I.V., announced Assistant Attorney General Jeffrey Bossert Clark for the Justice Department’s Environment and Natural Resources Division and United States Attorney Joseph D. Brown for the Eastern District of Texas.
Avin International was the operator and Nicos I.V. Special Maritime Enterprises was the owner of the Nicos I.V., which is a Greek-flagged vessel. The Master of the Nicos I.V., Rafail-Thomas Tsoumakos, and the vessel’s Chief Officer, Alexios Thomopoulos, also pleaded guilty to making material false statements to members of the United States Coast Guard during the investigation into the discharges.
Both companies pleaded guilty to one count of obstruction of an agency proceeding, one count of failure to report discharge of oil under the Clean Water Act, and three counts of negligent discharge of oil under the Clean Water Act on Nov. 26, 2018. Under the plea agreement, the companies will pay a $4 million criminal fine and serve a four-year term of probation, during which vessels operated by the companies will be required to implement an environmental compliance plan, including inspections by an independent auditor. Mr. Tsoumakos and Mr. Thomopoulos both pleaded guilty to one count of making a material false statement and were sentenced to pay fines of $10,000 each on Dec. 20, 2018.
“Our nation, including the State of Texas, rely on America’s ports and coastal waters for trade, recreation, and environmental enjoyment. Foreign companies acting in defiance of the laws and regulations that protect these valued resources threaten adjacent communities as well as marine ecosystems more broadly,” said Assistant Attorney General Clark. “The Division remains committed to pursuing justice for these offenders, and today’s action stands as proof of that commitment.”
“Our coastal waterways are critically important,” said United States Attorney Joseph D. Brown. “Companies that use them are expected to help maintain them by abiding by the Clean Water Act. When they do not, there will continue to be investigations and consequences for those violations. Furthermore, individuals are always expected to tell the truth when investigations are required, and failure to deal truthfully with investigators always makes a situation worse.”
“We are very grateful for the opportunity to work with the Coast Guard Investigative Service, the United States Department of Justice’s Environmental Crimes Section, and the United States Attorney’s Office, who were all instrumental in achieving this significant outcome,” said Captain Jacqueline Twomey of U.S. Coast Guard Sector MSU Port Arthur. “We believe that the results of this case will serve as a deterrent that will ultimately prevent or reduce the damage to the environment. By demonstrating the consequences of this vessel’s illicit actions, the intense collaboration and attention to detail of all team members ensured this vessel and others, with similar intentions that conduct trade in the United States, comply with domestic and international environmental laws intended to eliminate marine pollution around the globe.”
According to documents filed in court, the Nicos I.V. was equipped with a segregated ballast system, a connected series of tanks used to control the trim and list of the vessel by taking on or discharging water, the latter involving an operation called deballasting. At some point prior to July 6, 2017, the ballast system of the Nicos I.V. became contaminated with oil and that oil was discharged twice from the vessel into the Port of Houston on July 6 and July 7, 2017, during deballasting operations. Both Tsoumakos and Thomopoulos were informed of the discharges of oil in the Port of Houston. Tsoumakos failed to report the discharges, which, as the person in charge of the vessel, he was required to do under the Clean Water Act. Neither discharge was recorded in the vessel’s oil record book, as required under MARPOL and the Act to Prevent Pollution from Ships.
After leaving the Port of Houston, en route to Port Arthur, Texas, oil was observed in several of the ballast tanks. After arriving in Port Arthur, additional oil began bubbling up next to the vessel, which was then reported to the U.S. Coast Guard. During the ensuing investigation, both Tsoumakos and Thomopoulos lied to the Coast Guard, stating, among other things, that they had not been aware of the oil in the ballast system until after the discharge in Port Arthur, and that they believed that the oil in the ballast tanks had entered them when the vessel took on ballast water in Port Arthur.
The case was investigated by the U.S. Coast Guard Investigative Service, with assistance from the U.S. Coast Guard Sector MSU Port Arthur, which conducted the inspection of the ship. Additional assistance was provided by the U.S. Environmental Protection Agency’s Criminal Investigation Division, the Jefferson County Sheriff’s Office Marine Unit, and the Beaumont Police Department. The prosecution was handled by Trial Attorney Lauren D. Steele of the Environmental Crimes Section of the U.S. Department of Justice and Assistant United States Attorney Joseph R. Batte of the Eastern District of Texas.
Dynamic Chromium Industries Fined $27,300 for Hazardous Waste Management Violations
The Massachusetts Department of Environmental Protection (MassDEP) has penalized Dynamic Chromium Industries (DCI), Inc. $27,300 for hazardous waste management violations after an inspection determined the facility was treating hazardous waste without a license. The company has taken immediate steps to re-engineer the process to correct the violations and has brought the facility into compliance with the applicable regulations.
MassDEP initially inspected the precision chrome-plating and electroplating facility on 50 Parker Street in Newburyport on November 28, 2017 and found the manufacturing process included the treatment of rinse waters containing chromium, which had not been approved or properly permitted. In addition, containers of chrome debris were not clearly marked, and the hazardous waste accumulation area was not properly delineated.
“Despite these violations, this facility took prompt actions including correctly labeling, accumulating and storing hazardous waste, and eventually upgrading how its manufacturing process line worked, in order to reduce waste, and use less water,” said Eric Worrall, director of MassDEP’s Northeast Regional Office in Wilmington.
DCI installed an ion-exchange system that allows for the re-use of rinse water. Also, the hazardous waste accumulation area has been clearly delineated and hazardous waste containers are properly labeled and packaged prior to being shipped to a licensed hazardous waste facility.
Under the terms of the consent order with DCI, MassDEP agreed to suspend $10,000 of the penalty provided the facility complies with all the applicable regulations and that DCI pays the remaining $17,300.
Bestway of New England Fined $9,620 for Hazardous Waste, Toxics Use Reduction Violations
MassDEP has assessed Bestway of New England, Inc. of South Lancaster a $9,620 penalty for violating the Massachusetts Hazardous Waste and Toxics Use Reduction (TUR) regulations at its facility located at 840 Sterling Road.
During inspections of Bestway’s lumber pressure-treating facility, MassDEP personnel observed that the company had failed to register its waste oil activity or to meet waste oil management requirements, including: marking and signing a waste oil accumulation area, properly labeling waste oil containers with their contents, and posting emergency response information. Inspectors also observed that the company had failed to complete a biennial, written plan addressing its toxic chemical usage, despite certifying that it had. The company’s general manager had signed the plan’s submitted summary as a certified planner, even though he was not.
Since the inspections of the Bestway facility in December, the company has corrected the hazardous waste violations and will address the TUR violations within the timelines of a consent order.
“Failure to properly manage hazardous waste and to plan for reducing the amount of toxics used at a facility puts the environment, the public and employees at undue risk of exposure,” said Mary Jude Pigsley, director of MassDEP’s Central Regional Office in Worcester.
16 Companies Fined for Environmental Violations in Oregon
The Oregon Department of Environmental Quality issued 16 penalties totaling $299,249 for various environmental violations in April 2019. A detailed list of violations and resulting penalties is at: https://go.usa.gov/xEQJn.
Fines ranged from $2,500 to $86,868. Alleged violations included polluting waterways, improperly storing hazardous materials, failing to conduct cleanup actions, performing an unlicensed asbestos abatement, failing to follow requirements for air quality and water quality permits and more.
Alleged violations by category and location:
- Water quality: Eight fines for violations in Beavercreek, Beaverton, Grants Pass, Hermiston, Myrtle Point, Pendleton, Scappoose and Springfield
- Air quality, asbestos: Two fines for violations in Milwaukie and Portland
- Solid waste, hazardous waste: Four fines for violations in Albany, Banks, Eugene and Newberg
- Emergency response/cleanup: Two fines for violations in Chemult and Portland
DEQ issued civil penalties against the following organizations and individuals:
- Aggregate Resources Crushing, LLC, $11,200, Springfield (water quality)
- Allied Septic Service, $3,900, Grants Pass (water quality)
- Walter Betschart, $86,868, Banks (solid waste}
- Hitner Investments, $36,433, Myrtle Point (water quality)
- Khalsa Trans, $9,600, Chemult (emergency response)
- Lamb Weston, Inc., $6,800, Hermiston (water quality)
- City of Pendleton, $10,200 (water quality)
- Donald Pollack, $35,057, Beavercreek (water quality)
- Columbia Boulevard, $2,500 (cleanup)
- Owens-Brockway Glass Container, Inc., $13,800 (air quality)
- Rexius Forest Byproducts, Inc., $6,600 (solid waste)
- SRC Worldwide, $12,400, Albany (hazardous waste)
- T. & L. Sheet Metal, Inc., $4,800 (water quality)
- Vityk Vlad, $29,600, Milwaukie (asbestos)
- Britt Milton Wear, $22,891, Scappoose (water quality)
- Kenneth Wise and Penny Wise, doing business as Newberg Xpress Lube, $6,700, Newberg (hazardous waste)
Organizations or individuals must either pay the fines or file an appeal within 20 days of receiving notice of the penalty.
Penalties may also include orders requiring specific tasks to prevent ongoing violations or additional environmental harm.
Main Rock Products Fined $68,457 for Unpermitted Water Discharge
The company was fined by the Oregon DEQ $68,457 for a number of violations
, including unpermitted discharges from its site that led to a marked increase in sediment in Kentuck Creek.
During an inspection in December 2018, turbidity—a measure of sediment in water -- was 10,693 percent higher at the point of discharge into the creek than upstream from the discharge. The threshold allowed under Oregon state law is 10 percent.
The DEQ also cited the facility for failing to collect sampling data in 2018 and for exposing pollutants to stormwater, including leaving fuel spills, used oil, chemicals, and large volumes of waste uncovered and in uncontained areas, and not having required spill response materials and equipment on site.
Of the current penalty, $20,191 represents the economic benefit the facility gained by not controlling its sediment-laden stormwater over this rainy season.
DEQ required the 50-acre facility to immediately stop all unpermitted discharges and to improve conditions at the site. DEQ will consider recalculating the fine if the company revises and implements its Stormwater Pollution Control Plan, performs monitoring and takes spill prevention measures.
The facility holds a National Pollutant Discharge Elimination System 1200-A general permit, which DEQ’s agent, the Department of Geology and Mineral Industries, implements and administers. Such permits protect aquatic life and human health by requiring permit holders use best management practices and provide monitoring data that demonstrates permit compliance and shows the site is not violating water quality standards.
Kentuck Creek provides important habitat for aquatic life and fish, including the threatened Oregon Coast Coho salmon. Sediment can cause water quality to deteriorate and can harm aquatic life by covering up food sources, abrading
The company has until May 21 to appeal the penalty.
Court Ruled that Drummond is Violating the Clean Water Act on Black Warrior River’s Locust Fork
An Alabama federal judge has ruled that Drummond Company is violating the Clean Water Act by continuously discharging acid mine drainage into the Black Warrior River’s Locust Fork from the Maxine Mine site.
In an order issued May 7, Judge Abdul Kallon rejected Drummond’s arguments that the Clean Water Act does not apply to ongoing pollution originating from a substantial coal mine waste pile left at the site when mining operations ceased.
“We are pleased with the ruling in this lawsuit challenging Drummond’s ongoing dumping of pollutants into the river at its Maxine Mine site, which poses a significant threat to the Black Warrior River’s Locust Fork,” said Barry Brock, senior attorney for the Southern Environmental Law Center. “The court found, as a matter of law, that Drummond is violating the Clean Water Act by discharging acid mine drainage at the site.”
The Southern Environmental Law Center, Black Warrior Riverkeeper, and Public Justice filed the lawsuit in 2016. The ruling granted Black Warrior Riverkeeper’s motion for summary judgment seeking to hold Drummond liable for discharges of contaminants contained in surface water being channeled from the waste pile to the river. Additional liability claims by Black Warrior Riverkeeper, as well as the determination of an appropriate remedy for the site, will be determined later at trial.
“This case is a prime example of the need to address long-standing, serious water pollution violations in Alabama,” said Jim Hecker, co-counsel in the case and Environmental Enforcement Director for Public Justice. “The Riverkeeper’s citizen suit has worked as Congress intended to enforce the law when governmental agencies have not.”
The abandoned underground coal mine is located on the banks of the Locust Fork of the Black Warrior River near Praco, Alabama. When mining operations at the Maxine Mine ceased, an enormous pile of mining waste was left at the site, as well as sediment basins full of coal mining waste and contaminated runoff.
As a result, mining waste and acid mine drainage have been illegally discharging from the site into the Locust Fork and tributaries through surface water runoff and seeps for years. The mine’s waste has also completely filled what was once a flowing tributary of the Locust Fork.
“Drummond’s abandoned Maxine Mine has been illegally discharging coal mine waste and toxic water loaded with heavy metals into the lower Locust Fork for decades,” said Nelson Brooke, Black Warrior Riverkeeper. “Maxine Mine’s discharges are upstream of homes, recreation areas, and drinking water sources. It is about time for this nasty site to be cleaned up.”
Transportation Company Fined $100,000 for Unsecured Containers
On July 20, 2017, a Penner International Inc. tractor-trailer driven by independent contractor Michael Wollman was heading north on Highway 400 when it rear-ended a pick-up truck that swerved in front of it, ultimately leading to a spill of solvent VORTEX WPM onto the highway 1 kilometre south of Highway 88 in the Town of Bradford West Gwillimbury, Canada.
The solvent had been picked up earlier on the same date, at a Mississauga distribution company. The Mississauga distribution company loaded the trailer with twelve stainless steel 1500-kilogram totes containing the solvent but did not secure them to the trailer. Mr. Wollmann did not inquire as to whether the totes were secured or not before he closed the doors to the trailer and drove off.
During transport and at the time of the rear-ending incident, as the totes were not properly secured, they shifted and the valves on two of the totes were knocked open. Solvent spilled from the trailer onto the highway and some also ran down gradient onto the soil of an adjacent construction site.
A one-kilometer evacuation zone was also established around the spill site. The closure remained in force for 10.5 hours, and the construction site’s operations were affected for a few days. The company, which offers services throughout the United States and Canada, was convicted of one violation under Canada’s Environmental Protection Act and was fined $100,000 plus a victim fine surcharge of $25,000 and was given 12 months to pay.
Petroleum Distributor Located on Providence Waterfront Cited for Odors
The Rhode Island Department of Environmental Management (DEM) has issued a Notice of Violation (NOV) to a Providence business for alleged environmental violations arising from the receipt, distribution, and storage of liquid asphalt products for its facility located along the Providence waterfront on Allens Avenue.
DEM issued an NOV to Sprague Operating Resources LLC for alleged violations of Rhode Island's Code of Regulations titled Odors, which prohibits the release of any air contaminant that creates an objectionable odor beyond the owner's property line. The violation carries a $22,500 penalty. Sprague operates a business at 120 Allens Avenue that is engaged in the wholesale distribution of petroleum products.
In September 2017, two tanks at the facility – Tank 1 and Tank 6 – were converted to store liquid asphalt or road grade asphalt. These tanks previously stored petroleum products. Additionally, Tank 5 contains a liquid asphalt product known as roofing flux. Following the conversion of Tank 1 and Tank 6 to the storage of road grade asphalt, DEM began receiving odor complaints in the area surrounding the facility that were characterized as petroleum, asphalt, and/or sulfur in nature. DEM conducted several inspections in response to these complaints.
In December 2018, DEM met with Sprague representatives to discuss the complaints received by DEM and DEM's inspection findings for these complaints. At that meeting, Sprague presented a plan and implementation schedule to install air pollution control equipment to control odors from Tank 1 and Tank 6. According to the plan, Sprague was to submit a permit application to DEM by January 15, 2019, to install the equipment and have the equipment operational by June 15, 2019.
DEM continued to receive complaints of petroleum, asphalt and/or sulfur odors near the Sprague facility, and performed additional inspections that confirmed objectionable odors beyond the property line. DEM inspectors confirmed an objectionable odor on March 22, 2019, as they were traveling on Allens Avenue under the bridge outside the Sprague facility; on May 7, 2019, at the entrance gates to Collier Point Park on Henderson Street in Providence; and on May 8, 2019, at the entrance gates to Collier Point Park on Henderson Street and on Allens Avenue adjacent to Tank 6.
Under the terms of the NOV, Sprague is ordered to immediately cease receiving any product to Tank 1 and Tank 6. No product can be delivered to Tank 1 or Tank 6 until equipment to control odors from the tanks is installed in accordance with a permit issued by DEM, or if DEM approves an alternative interim method to control odors from the tanks and that method is implemented.
Within 30 days, Sprague must submit a report for DEM's review and approval that assesses the need for equipment to control odors and other air pollutants from Tank 5. If the report concludes that equipment is needed to control odors and/or pollutants from Tank 5, the report must include a description and schedule for installing such equipment. If DEM finds deficiencies in this report, Sprague will have 30 days to submit a correction plan to DEM.
In accordance with the RI Administrative Procedures Act, the recipients of NOVs have the right to request a hearing on the alleged violations and the penalties assessed in the actions. Recipients must file a request for a hearing within 20 days of their receipt of the NOV with the Department's Administrative Adjudication Division, which then directs the process for the appeal hearing.
New Jersey Lawsuit Against 3M, DuPont, Others for Making, Selling Toxic Chemicals in Firefighting Foam Products
New Jersey Attorney General Gurbir S. Grewal, Department of Environmental Protection Commissioner (DEP) Catherine R. McCabe, and Acting Division of Consumer Affairs Director Paul Rodríguez announced that the State has filed a lawsuit against companies for manufacturing and selling firefighting foam products in New Jersey for decades despite knowing those products released toxic and harmful chemicals into the environment.
The lawsuit, which includes both environmental and consumer fraud claims, seeks natural resource damages (NRD) along with other damages and penalties. It represents the tenth NRD lawsuit brought by the State since the beginning of the Murphy Administration in January 2018.
At issue in the State’s lawsuit is the manufacture, advertising, and sale in New Jersey of aqueous film-forming foam (AFFF) products that contain –- or break down into when released into the environment -- chemicals known as PFOS (perfluorooctane sulfonic acid) and PFOA (perfluorooctanoic acid). The State’s complaint names the following manufacturers and sellers as defendants: The 3M Company, Tyco Fire Products LP, Chemguard, Inc., Buckeye Fire Equipment Company, Kidde-Fenwal, Inc., National Foam, Inc., E.I. du Pont de Nemours & Company, and The Chemours Company.
“The corporations we’re suing today knew full well the health and environmental risks associated with this foam, and yet they sold it to New Jersey’s firefighters anyway,” said Attorney General Grewal. “Their conduct was unconscionable, and we’re going to hold these companies accountable.”
“To protect our environment and ensure the restoration of damaged natural resources, we must hold responsible the manufacturers who knew of the dangers of these products,” said DEP Commissioner McCabe. “Together with Attorney General Grewal and Acting Director Rodríguez, I am proud to file this suit to protect New Jersey’s residents as DEP continues to lead the nation in proactively reducing exposure to PFAS chemicals, including the PFOS found in these foams.”
Aqueous film-forming foam products are mixed with water to form a foam solution, which is then used to extinguish fuel and other flammable liquid fires. Spraying a fire with AFFF creates a film that coats the fire, blocking its oxygen supply and preventing re-ignition. AFFF was sold to military and industrial facilities, airports, firefighting training academies, state government firefighting entities, and local fire departments across New Jersey and elsewhere. ]
Filed in New Jersey Superior Court, the State’s five-count complaint alleges that the defendant companies manufactured, marketed and sold their AFFF products for decades despite knowing the significant threat they posed to the environment and human health.
“For decades, these companies allegedly deceived New Jersey’s fire departments and other government agencies about the toxicity of their products,” said Acting Director Rodríguez. “With today’s complaint, we are making clear that we intend to hold companies responsible when they misrepresent the safety of their products and, in doing so, put our state’s residents at risk.”
PFOS and PFOA are mobile chemicals that persist indefinitely in the environment, bioaccumulate in humans and animals over long periods of time, and biomagnify as they are consumed up the food chain. PFOS and PFOA attributable to AFFF have been found in groundwater, surface water, sediments, biota, and other natural resources of the state. In combination or alone, PFOS and PFOA are dangerous pollutants, and are associated with a host of human health risks, including immune system suppression and testicular and kidney cancer.
The lawsuit alleges that the defendants are responsible for vast quantities of foam-laced water running off from fuel spills, firefighting events and routine training sessions and then being introduced into New Jersey’s environment, where they can remain indefinitely and present a continuing threat to natural resources and human health.
Specifically, the complaint alleges PFOS and PFOA released from AFFF has contaminated groundwater and surface water in New Jersey – including several lakes – as well as sediment and a variety of wildlife species. The complaint seeks natural resource damages for the PFOS and PFOA contamination.
According to the complaint, DEP’s investigation into aqueous film-forming foam use and resulting PFOS/PFOA contamination remains ongoing. However, investigations have already confirmed PFOS and PFOA contamination in and around several military and other facilities in New Jersey where AFFF was used for many years. Those sites include: Joint Base McGuire-Dix-Lakehurst in Burlington County; Naval Weapons Station Earle in Monmouth County; the former Naval Air Warfare Center in Trenton; and the Federal Aviation Administration (FAA) Technical Center in Atlantic County.
The complaint notes that three bodies of water surrounding Joint Base McGuire-Dix-Lakehurst were found in a 2018 DEP study to have sustained “significant damage” from the chemicals at issue. Those bodies of water include Little Pine Lake, Mirror Lake, and Pine Lake. DEP issued fish consumption advisories for all three water bodies based on PFOS found in fish tissue, and a Do Not Eat advisory for sensitive subpopulations.
The complaint also notes that DEP sampling has shown “elevated levels” of PFOS and PFOA contamination in the Atlantic City Municipal Utilities Authority’s surface water reservoirs, which are located on FAA Technical Center property. Statewide, as investigation continues and additional foam-related PFOS and PFOA contamination sites are identified, it is expected that widespread contamination will be uncovered.
The lawsuit includes product liability claims (both for defective design of their AFFF products, and failure to warn the State and users of their risks), negligence, and creating a public nuisance. Through those claims, the State is seeking natural resource damages, the costs required to fully investigate AFFF contamination in New Jersey, and payment for the costs of remediating and restoring affected natural resources. Additionally, the State seeks economic and consequential damages, including punitive damages, for the defendants’ conduct in causing statewide PFOS and PFOA contamination.
In addition, the State is bringing claims under the Consumer Fraud Act based on the defendants’ deceptive and fraudulent business practices in their advertisement, offer for sale, and sale of AFFF to New Jersey state entities, counties, municipalities, and local fire departments. The State is seeking civil penalties based on those sales, as well as restitution for these affected entities.
The lawsuit marks the latest in a string of collaborative environmental actions between the Attorney General’s Office and DEP. With this filing, the State has now brought 10 NRD cases since the start of the Murphy Administration: three in August 2018; one in December 2018; one in early March 2019 against ExxonMobil; and four in late March 2019 against 3M, DuPont, Chemours and other companies relating to PFAS contamination. In addition to an ongoing “environmental justice” initiative, Attorney General Grewal and Commissioner McCabe have also filed a number of other lawsuits in the past year challenging the federal government’s rollback of rules addressing climate change, clean air, ozone pollution, and clean water.
Washington State Revisions to Clean Water Regulations
- Amending the numeric criteria for total dissolved gas in the Snake and Columbia rivers:
- WAC 173-201A-200(1)(f)(ii)
- Amending specific sections of the rule to meet legal obligations in a 2018 Stipulated Order of Dismissal:
- WAC 173-201A-200(1)(c)(ii)(B)
- WAC 173-201A-210(1)(c)(ii)(B)
- WAC 173-201A-240(5) Table 240 footnote dd
- Aligning the rule with the Washington State Department of Health Shellfish Program:
- Clarifying the descriptions of marine water aquatic life use designations:
- WAC 173-201A-210(1)(a)
- WAC 173-201A-610 Table 610
Other sections of Chapter 173-201A WAC may be amended, as necessary, to support any revisions to the sections noted above.
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