States Sue EPA Over Relaxed Toxic Chemical Regulations

December 03, 2007

Connecticut Attorney General Richard Blumenthal and 11 other states sued the EPA on November 28 to halt new regulations that cripple a 20-year-old program requiring companies to report amounts of toxic chemicals, such as lead and mercury, they release into the environment. According to the complaint, the EPA's revised regulations drastically scale back reporting required under the Toxics Release Inventory (TRI), a program established by Congress after the deadly release of toxic chemicals in Bhopal, India, in 1984.

Under EPA's changes, companies would only have to report releases of most chemicals when they exceed 5,000 pounds, ten times the current reporting threshold. The changes also would slash reporting of certain highly dangerous chemicals, such as lead and mercury.

"Polluters can release ten times more toxins like lead and mercury without telling anyone as a result of this reprehensible, illegal rollback in reporting requirements," Blumenthal said. "The EPA is enabling polluters to hush critics and hide vital information about deadly toxins, especially dangerous to children. The EPA is crippling a hugely successful program that has greatly reduced (the) release of toxic chemicals.

"These regulations make the EPA a pollution enabler—not fighter,” he continued. “Contrary to the EPA mindset, what you don't know can and will hurt you. These changes are a huge, horrific gift to the chemical industry at the expense of the environment and human health, especially the health of children.”
TRI is a federal computerized database that provides information on the type and quantity of toxic chemicals released into the air, water, and soil. The bill was signed into law by President Ronald Reagan, and data has been collected and made available to the public since 1987. Industrial facilities are required to report information to the EPA annually, which is then compiled into a public report.

Disclosure of public information about toxic releases has prompted significant reductions in the release of toxic chemicals across the nation. For example, the Boeing Company reduced its toxic chemical releases by more than 82% since 1991; Monsanto reduced its toxic air emissions by more than 90% between 1988 and 1992; and the Eastman Chemical Company of Tennessee has reduced its releases of TRI chemicals by 83% since 1988.


EPA Must Consider Best Available Technology for Water Pollution Discharges

A San Francisco federal appeals court has ruled that the EPA must annually take into account new water pollution discharge technology when reviewing nationwide regulations setting limits on water pollution releases.

The U.S. Ninth Circuit Court of Appeals decision is the result of a case brought in 2004 by Our Children’s Earth Foundation (OCE) and the Ecological Rights Foundation (ERF). What this means is that the federal government will not be allowed to exempt most industries from updating EPA’s water pollution regulations. “This change simply means that our water is going to be cleaner,” said Tiffany Schauer, OCE’s executive director. “The Ninth Circuit’s ruling is an important vindication for our laws meant to secure clean water.”

"In effect, the Ninth Circuit's ruling tells the EPA to stop stalling and get back to the business of protecting our nation's waters."

EPA issued the regulations at stake, known as “effluent guidelines,” under the federal Clean Water Act, mostly in the 1970s and 1980s, said Ecological Rights Foundation Spokesperson Fredric Evenson. The regulations are supposed to limit all industries’ pollution discharges in the nation to the level attainable with the best available pollution control technology. Though the Clean Water Act requires EPA to review these regulations annually and to make them more stringent as warranted by technological advances, EPA has never updated most of these decades-old regulations.

In recent years, the EPA announced a policy that would narrow its review from 56 industry categories to two to three categories based on which industries posed the greatest water pollution threat. Under the new policy, all non-selected industries would then be exempted from regulatory review.

Industry groups had intervened in the case to support the new policy. The Ninth Circuit emphasized that the administration’s claim that the Clean Water Act does not require EPA to review across all categories of industry “strains credulity to the breaking point.” The Ninth Circuit ruling Ecological Rights Foundation reversed a San Francisco district court judge’s decision that had sided with EPA. The case, Our Children’s Earth Foundation, et al., v. EPA, et al., will now be remanded to the district court for further proceedings.

Congress Wants More Disclosure on Hazardous Waste Burning Proposal

A plan by the EPA would reclassify more than 100,000 tons of hazardous waste, allowing many companies to use this waste as fuel rather than handle it as dangerous hazardous waste. The result is that many companies will burn this waste on-site, instead of sending it to a strictly controlled hazardous waste incinerator. 

Ninety percent of the companies that would now be able to burn this hazardous waste on-site have been identified by EPA as needing "corrective action" for not fully complying with existing federal hazardous waste management regulations.

Representatives Mark Kirk (R-IL), Hilda L. Solis (D-CA), and 23 other members of Congress will send a letter today to EPA Administrator Stephen Johnson asking the agency to complete a full assessment of the environmental problems associated with the proposed rulemaking.

"The Environmental Protection Agency needs to change course on its proposal to increase the burning of deregulated hazardous waste by more than 100,000 tons per year," Congressman Kirk said. "The communities that would see increases in toxic pollutants were not notified until after the EPA comment period ended. This is particularly alarming, given that the EPA's own best-case estimates indicate the waste could release more pollutants than the combustion of fossil fuels. The 86 communities affected nationwide have a right to voice their concerns to this plan."

When EPA introduced the proposed rule this June, they neglected to disclose important information about the amount of waste proposed to be burned at 86 facilities across the country. "By failing to reveal information about the location of facilities likely to burn hazardous waste, the EPA knowingly denied communities the chance to comment. Communities such as those in Los Angeles and the San Gabriel Valley deserve an opportunity to participate in the process, particularly when their health and their environment are at risk," said Congresswoman Solis. "I urge the EPA to re-open this comment period and hope they will listen closely to the concerns of environmental justice communities across this country."

Communities surrounding these facilities were not informed, and it was not until Earthjustice attorneys filed a Freedom of Information Act request that EPA divulged the data.

Hazardous waste contains extremely dangerous levels of toxic chemicals. This rule could expose tens of thousands of Americans to carcinogens and other toxins, putting them at unnecessary risk for cancer, heart and lung disease, and other health impacts. For example, the rule allows waste containing unlimited amounts of highly toxic chemicals—such as benzene, toluene, and acrolein—to be stored, transported, and burned as fuel without the stringent safeguards imposed on hazardous waste.

"In issuing the proposed rule, however, the EPA never made available the exact facilities expected to handle and dispose of the deregulated waste," the letter from Congress states. "This information was released only after the comment period ended. The communities surrounding these 86 facilities were unaware that the rule would directly affect them and should be allowed to comment in light of this new information."

"The gamble that EPA is taking with people's lives to make it easier for companies to burn more hazardous waste is simply wrong," said Earthjustice attorney Lisa Evans. "EPA itself freely admits that they cannot guarantee burning this waste will have little or no adverse impact."

The so-called "emission-comparable fuels" rule is another EPA discretionary rulemaking in a long line of free passes for polluters. In 2006, the U.S. District Court of Appeals found that EPA routinely neglects its duty to protect public health and the environment and instead, "devotes substantial resources to discretionary rulemakings, many of which make existing regulations more congenial to industry." In 2005, the Office of Management and Budget gave EPA its marching orders by publishing a list of regulatory rollbacks sought by industry. The Association of Manufacturers and the American Chemistry Council had put this relaxed hazardous waste burning regulation at the top of their wish list.

"For years, the Bush administration has been handing out these regulatory rollbacks like they were Thanksgiving turkeys," said Ben Dunham, Associate Legislative Counsel for Earthjustice. "Congress is now stepping up and saying 'Enough!' Representatives Kirk and Solis recognize that when the EPA allows more pollution, their constituents are forced to bear the burden."

Of the 86 facilities that would burn hazardous waste on-site, nearly 90% are presently subject to corrective action under the Resource Conservation and Recovery Act (RCRA). Moreover, human exposure to contamination is classified as "not under control" at many of these facilities, meaning many people may be currently "exposed to environmental contamination at unacceptable levels," according to EPA.

EPA documents revealed that under the proposed regulatory rollback, the Clean Harbors Baltimore facility in Baltimore, Md., will store and transport 2,077 tons of hazardous waste without complying with the stringent storage, labeling, and transport requirements that apply to handling hazardous waste; the Systech Environmental Corporation in Paulding, Ohio, will store and transport 10,450 tons of hazardous waste without complying with hazardous waste handling safeguards; and the Safety Kleen Systems facility in Dolton, Ill., just south of Chicago, will burn 1,786 tons of additional hazardous waste annually in boilers not permitted to burn hazardous waste.


Business Strategists Map U.S. Global Warming Solutions

A sweeping new report released by McKinsey & Company offers the most comprehensive assessment to date of the options and opportunities for cutting U.S. global warming emissions to levels that experts say are needed to avert costly and dangerous environmental damages. Using detailed pricing and technological analyses for more than 250 different measures, the study concludes that the needed results are achievable at little or no net cost to the economy, provided action is taken now.

The Natural Resources Defense Council (NRDC) was one of seven cosponsors of the year-long study, which arrives at a crucial juncture in the global warming debate, as businesses and political leaders buckle down to start shaping solutions. The report strongly emphasizes that policy, rather than technology itself, is the key to moving cleaner, more efficient solutions off the shelves, out of the labs, and into the marketplace.

“Global warming is becoming a core driver for business and the American economy. Smart companies know that action is coming, and they are moving to get ahead of the game,” said NRDC President Frances Beinecke. “Strategies to cut emissions and reduce energy demand create both a challenge and an opportunity. With the right measures now, we can unlock tremendous savings throughout the economy.”

Several developments have made 2007 a central turning point. This year saw a competitive global warming strategy emerge at the heart of one of the largest business deals in history: The $44 billion buyout of the utility giant TXU, whose new owners rejected plans for eight coal-fired power plants in favor of a cleaner, more efficient generating portfolio. Meanwhile, a growing list of leading American companies known as the U.S. Climate Action Partnership has issued an unprecedented call for a federal limit on heat-trapping pollution, backed by a market system that rewards quick results and cuts overall costs to the economy.

Earlier this year, the Supreme Court ruled that federal environmental officials must start addressing climate pollution. Twenty-five states are moving ahead with global warming pollution standards of their own, and momentum is quickly building for federal legislation, with a landmark bipartisan bill expected to be voted out of the Senate Environment Committee next week.

Three main steps are necessary to eliminate market barriers and ensure the fastest, most cost-effective results in time to make a difference, according to both NRDC and McKinsey.

Lawmakers first need to create a stable framework that provides investor certainty about required emissions reductions by setting a sensible set of pollution limits as soon as possible. Roadblocks and disincentives that artificially impede the profitability of energy and emissions savings also should be eliminated. Finally, innovation support such as R&D and commercialization tax credits are needed to move proven technologies into the market on a commercial scale.

“We believe that solving the challenge of global warming will spawn a new industrial revolution, with U.S. technology and innovation leading the way,” Beinecke said. “McKinsey has drawn up an excellent roadmap. But it’s up to Washington to get us out of the driveway. We have a chance to get this right, but the window of opportunity is very short.”

In addition to NRDC, the McKinsey study was cosponsored by DTE Energy, Environmental Defense, Honeywell, National Grid, PG&E, and Shell.

California First State to Join Growing Ranks of EPA’s Voluntary Reduction Program

The EPA has announced that the California EPA is diverting millions of mercury-containing fluorescent bulbs from landfills in collaboration with the EPA under the National Partnership for Environmental Priorities (NPEP) program.

The state aims to divert approximately 4.5 million compact fluorescent light bulbs from landfills in just one year. The popular energy-saving bulbs each contain a small amount of mercury.

“Reducing the impact of mercury on human health and the ecosystem is a priority for the EPA,” said Wayne Nastri, administrator for the EPA’s Pacific Southwest region. “We are very pleased to have our state partner Cal/EPA join this program and set an innovative example for other states throughout the country.”

NPEP, a voluntary federal program, aims to reduce the use or release of 4 million pounds of toxic chemicals in the United States by 2011. Because mercury is so persistent in the environment and so toxic at such minute quantities, the EPA launched the NPEP Mercury Challenge in 2004 to focus on the elimination of mercury.

“We already are working hard to reduce mercury through our Take-It-Back program and by combining those efforts with NPEP, we hope to achieve even greater reductions,” said Linda Adams, California’s Secretary for Environmental Protection.

Cal/EPA has committed to reducing mercury through its own California Take-It-Back Partnership, a collaboration of government, private business, and non-profit organizations that provides free, local, and convenient ways for California residents to recycle everyday household wastes such as batteries, fluorescent lamps, and cell phones.

Since the beginning of 2007, about 9 million fluorescent bulbs have been purchased in California, preventing the release of 1.5 billion pounds of C02 compared to traditional incandescent bulbs. While these bulbs are extremely energy efficient, they each contain trace amounts of mercury. The partnership helps keep mercury, a neurotoxin that can cause kidney and brain damage, out of the environment.

EPA Announces 2008 Renewable Fuels Standard

Based on the standard, each party determines the minimum volume of renewable fuel that it must ensure is used in its motor vehicle fuel. The standard for 2007 was 4.02%, equating to roughly 4.7 billion gallons. The overall volume target increases every year, reaching 7.5 billion gallons in 2012. The Energy Policy Act requires EPA to annually determine the standard—which applies to refiners, importers, and non-oxygenate blenders of gasoline—by November 30 for the following year.

The RFS program, which formally began last September, creates new markets for farm products, increases energy security, and promotes the development of advanced technologies that would greatly expand renewable and alternative fuels. It also serves as one of the many pieces to help inform the greenhouse gas regulation that EPA and federal partners are developing under an Executive Order issued by President Bush in May.

EPA Settles With City Electric, Inc., and Municipal Light and Power for Federal CWA Violations

City Electric, Inc., and Municipal Light and Power have agreed to pay a $42,300 penalty to settle alleged Clean Water Act (CWA) violations. According to the EPA, the violations occurred at the Eklutna Transmission Line Project construction site, located just north of Anchorage, near Eklutna, Alaska.

The alleged violations were discovered during an EPA site inspection in May 2006. The alleged violations against City Electric include:

failure to properly select and maintain best management practices to prevent discharge of sediment from the construction site into local water bodies
failure to prepare and implement an adequate Storm Water Pollution Prevention Plan

In addition, EPA found that Municipal Light and Power had failed to obtain coverage under the National Pollutant Discharge Elimination System (NPDES) Construction Storm Water General Permit between March and July 2006. The receiving waters for the storm water discharges from the site are Peters Creek, Parks Creek, Mink Creek, Fire Creek, Eklutna River, and Eagle River.

According to Marcia Combes, Alaska Operations Office Director for EPA, conducting storm water inspections is a very effective way to protect Alaska’s waters.

“Improper management of storm water run-off can have a significant impact on water quality," said Combes. "Developers and construction companies need to comply with EPA's regulations or they may face an enforcement action."


Neglected Oil Spill Nets Quarry Owner a $9,250 EPA Penalty

J.K. Merrill and Sons, owner and operator of a soil and rock quarry located at 1302 West Syphon Road in Pocatello, Idaho, has agreed to pay the EPA a $9,250 penalty to resolve allegations that the company spilled used oil and failed to clean it up.

The spill was first noted during a July 2006, inspection at the facility, which is located on the Shoshone-Bannock reservation near Pocatello. It was brought to their attention during three different EPA inspections between July 2006 and April 2007.

According to Jim Werntz, director of EPA’s Idaho state office in Boise, the penalty was an avoidable expense for the company.

“This spill should have been cleaned up on the spot and it wasn’t,” Werntz said. “Used oil contains many chemicals that can harm groundwater, including petroleum-related chemicals and heavy metals. We gave the company ample time to clean up their mess and they failed to take any action. If a company fails to do the right thing, they will pay a penalty.”

The company generated the used oil through maintenance operations for their heavy equipment.

EPA issued a Notice of Violation in November 2006 for several violations, including the oil spill. The company never responded to the notice of violation, but the spill was cleaned up shortly after the April 2007 inspection.

EPA Notifies BP of Clean Air Act Violations

EPA Region 5 has notified BP Products North America Inc. of alleged violations of multiple Clean Air Act requirements at its Whiting, Ind., refinery. EPA alleged that the BP Whiting refinery, located at 2815 Indianapolis Blvd:

  • Failed to obtain a permit when it made major modifications to its fluidized catalytic cracking unit. The unpermitted modification caused significant increases of nitrogen oxide (NOx), sulfur dioxide (SO2), particulate matter (PM10), and carbon monoxide (CO) emissions.
  • Violated New Source Performance Standards (NSPS) by modifying flares without complying with requirements, exceeding SO2 emission limits, and failing to monitor emissions from several sources. The NSPS are national emission standards for new and modified industrial facilities that contribute significantly to air pollution.
  • Failed to conduct timely performance tests of hydrogen chloride emissions from its catalytic reforming units.

BP has 10 days to request a conference to discuss the violations.

Washington Shipyard Fined for Repeat Sandblasting Violations in Willapa River

A shipyard penalized in 2005 for sandblasting vessels over open water is being fined again by the Washington Department of Ecology. Jackpot Industries, Inc., is now subject to a $23,000 fine for the latest violation in the harbor in the Willapa River.

Ecology spill responders following up on a citizen complaint on Sept. 9, 2007, found Jackpot Industries workers sandblasting over open waters at the Port of Willapa Harbor, with the resulting grit polluting the water below. Sandblast grit contains high levels of heavy metals that can contaminate water and sediments and harm fish.

This was a violation of Ecology’s October 2005 administrative order requiring Jackpot Industries to cease all repair and maintenance work (unless conducted entirely inside the vessel or inside a building) until receiving coverage under a state-issued National Pollutant Discharge Eliminations System permit for shipyards.

Shipyard permits are individually written and site-specific. The permit defines acceptable levels of stormwater discharge and best management practices for preventing pollution.

“Jackpot Industries has been made aware of its responsibilities but continues to ignore the law,” said Garin Schrieve, regional water quality section manager for Ecology. “When companies repeat the same violations, our policy is to escalate the consequences.”

Jackpot Industries officials have known about the need for a permit since late 1997.

At that time, an Ecology inspector was called to Jackpot Industries’ operations to investigate a complaint about over-water sandblasting. Ecology determined Jackpot needed coverage under a discharge permit and explained the requirements to company representatives and Port of Willapa Harbor officials.

Sandblast grit samples taken in 1998 registered high concentrations of heavy metals, such as copper, lead, and zinc. The shipyard voluntarily cleaned up its maintenance yard, resulting in the disposal of 115 tons of sandblast grit. However, Jackpot Industries did not apply for the shipyard permit.

In 2005, Ecology inspectors observed Jackpot Industries workers sandblasting a fishing vessel tied to the Port dock. This violation resulted in a $10,000 penalty and administrative order requiring disposal of contaminated soils, evaluation of the Willapa River for possible contamination, and application for the discharge permit.

Jackpot Industries finished paying the penalty in April 2007 but did not apply for the permit, nor did the company provide evidence of properly disposing of soil contaminated by sandblast grit.

Granite Falls Ethanol Facility to Pay $300,000 Environmental Penalty

Granite Falls Energy LLC will pay a state civil penalty of $300,000 for a variety of alleged violations at the company's ethanol production facility in Granite Falls during 2006 and 2007. The violations were discovered during Minnesota Pollution Control Agency (MPCA) staff inspections of the facility and through a review of operational records the company is required to submit to the MPCA under its environmental permits.

Numerous violations were identified, including producing ethanol above the facility's permitted limit, failure to inspect and maintain production and pollution control equipment, recordkeeping and reporting violations, exceeding permitted water-quality discharge limits, and the production of "wet cake," which is prohibited under the facility's permit. (Wet cake is a by-product of corn ethanol manufacturing that can be used as animal feed, but is subject to special handling, storage, and disposal requirements.)
As a result of the violations, the facility emitted or created a potential to emit more regulated air and water pollutants than permitted.

In addition to paying the civil penalty, the company agreed to resolve the violations through corrective actions, including specific plans on how it will ensure compliance with permit limits and prevent reoccurrence of violations in the future.

When calculating penalties, the MPCA takes into account how seriously the violations affected the environment, whether they were first-time or repeat offenses, and how promptly the violations were reported to appropriate authorities. MPCA also attempt to recover the calculated economic benefit gained by failure to comply with environmental laws in a timely manner.

ADEQ Begins Formal Rule-Making Process to Cut Greenhouse Gas Emissions From Vehicles

Arizona Department of Environmental Quality (ADEQ) Director Steve Owens announced that ADEQ has begun its formal rule-making process to adopt a clean-car program with new standards to reduce greenhouse gas (GHG) emissions from passenger vehicles.

The new rules are being developed pursuant to an executive order on climate change issued last year by Gov. Janet Napolitano. The Arizona Climate Change Advisory Group (CCAG) unanimously recommended that Arizona adopt the new GHG reduction standards.

During 1990–2005, GHG emissions in Arizona grew by 56%, the fastest rate of growth in the country. If unchecked, Arizona’s GHG emissions are projected to grow by 140% between 1990–2020 and by 200% between 1990–2040. Roughly 40% of Arizona’s GHG emissions come from vehicles.

“This is an important step toward reducing greenhouse gas emissions in Arizona and is a critical element in our effort to address climate change,” ADEQ Director Owens said. “Our goal is to have a formal draft rule proposed for public comment by the end of this year or early next year and to have the final rule approved by late spring or early summer.”

The rules will apply to vehicles beginning with the 2011 model year. Arizona’s rules will be based on the Clean Car program adopted by the state of California. States are authorized under the federal Clean Air Act to adopt California’s vehicle emissions standards.

In addition to California, 11 other states have adopted the California GHG vehicle standards. They are Connecticut, Maine, Maryland, Massachusetts, New York, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington. Along with Arizona, at least four other states—Colorado, Florida, New Mexico, and Utah—also have announced plans to adopt the California GHG vehicle standards.

MassDEP Recognizes Staples and Whole Foods Market for Leadership in Waste Reduction and Recycling

The Massachusetts Department of Environmental Protection (MassDEP) yesterday presented Staples Inc. and Whole Foods Market with WasteWise Leadership Awards in recognition of the companies' efforts to promote waste reduction, recycling, and environmental stewardship.

"These two well-known retailers have made environmental responsibility a guiding principle of their corporate cultures," said MassDEP Commissioner Laurie Burt in presenting the awards during a Massachusetts WasteWise regional forum at the Canton headquarters of Dunkin' Brands. "Both Staples and Whole Foods have gone above and beyond when it comes to waste reduction, recycling, and conservation."

Staples offers nearly 3,000 recycled products for sale and provides in-store recycling services for a wide range of used electronics and office equipment: computers and office technology products, ink and toner cartridges, cell phones and other personal electronics, and rechargeable batteries.

The Framingham-based office supply superstore chain also sponsors Earth 911 Business , a website that connects businesses with environmental resources across the country, and is committed to recycling and energy conservation as part of its internal operations. In 2006, Staples recycled more than 26,000 tons of cardboard and 3,800 tons of computer equipment and peripherals, and it worked to reduce its electricity consumption and greenhouse gas emissions through conservation and the use of renewable energy.

Whole Foods Market was a charter participant in the state's voluntary Supermarket Recycling Program Certification (SRPC), and already has certified that 16 of its 18 stores in Massachusetts recycle and compost a wide range of materials—from cardboard, plastic stretch film, and waxed cardboard to organic wastes such as spoiled fruits, vegetables, floral, and deli wastes—and also participate in local food donation programs.

Timken Aerospace to Pay $154,000 Penalty for Violating State Air Pollution Control Requirements

New Hampshire Attorney General Kelly A. Ayotte and Commissioner Thomas S. Burack of the Department of Environmental Services (DES) announce that the Grafton County Superior Court (Arnold, J.) issued an order approving a $154,000 settlement between the state and MPB Corporation d/b/a Timken Aerospace (“Timken”). The settlement resolves a civil enforcement action involving violations of New Hampshire’s Air Pollution Control Act that occurred at the Timken manufacturing facility located in Lebanon.

The terms of the settlement are contained in a consent decree agreed to by both sides. The state’s case against Timken alleges that Timken violated air pollution rules and permit conditions starting in 2003. The list of violations includes, but is not limited to, operating a waste oil boiler for six months without a permit, burning waste oil that did not meet certain permit specifications, and failing to submit emission reports or pay emission fees in a timely manner. The violations were discovered during a compliance inspection in September 2006 at Timken’s Lebanon facility. Timken’s permit had allowed them to burn used oil.

Although Timken did not admit to any of the state’s allegations, it has, nevertheless, taken significant measures to ensure that similar problems never occur in the future. The terms of the settlement provide that Timken will pay a civil penalty in the amount of $154,000 to the state’s general fund. In addition, the company has committed to implementing an environmental management system and to surrendering its air permit to DES. The company cannot reapply for an air permit until 2009.

“The substantial penalty assessed in this case is a reflection of the extent and duration of the documented violations. It is expected that the future compliance measures to be implemented by Timken to monitor its Lebanon facility, such as implementing an environmental management system, will reduce the likelihood of similar problems from occurring in the future,” said DES Commissioner Thomas Burack.
“Keeping New Hampshire’s air quality high is an important part of our environmental protection efforts,” said Attorney General Ayotte. “The state’s environmental laws must be followed.”

Almost $1 Million in Fines for Improper Waste Disposal, Characterization, and Monitoring

The New Mexico Environment Department (NMED) issued two Administrative Compliance Orders and one Notice of Violation to the U.S. Department of Energy Carlsbad Field Office (DOE) for violating its permit at the Waste Isolation Pilot Plant (WIPP) facility located 26 miles east of Carlsbad. Those enforcement actions include combined fines totaling $996,220.

The first Administrative Compliance Order concerns a violation that occurred in June 2007 when DOE accepted a drum with liquid waste from Idaho National Laboratory (INL) for storage and disposal at WIPP. WIPP’s NMED permit contains clear prohibitions on the disposal of certain items, including liquids, that could negatively impact the repository and human health and the environment. WIPP did not discover the noncompliant drum until almost three weeks after emplacement at WIPP. Secretary Curry ordered DOE to remove the drum August 2. DOE removed the noncompliant drum from WIPP and shipped it back to INL on August 17.

While NMED has cited DOE in the past for disposing of improperly characterized waste, this is the first time NMED documented the actual disposal of waste containing prohibited items in the repository. The total fine for that compliance order is $110,700. “WIPP’s permit is a promise to New Mexicans that this facility will be operated safely now and in the future,” said NMED Water and Waste Division Director Jon Goldstein. “We appreciate the speedy action WIPP took to solve this problem; however, this enforcement action should send the message that mistakes like this cannot be allowed to happen in the first place.”

The second Administrative Compliance Order concerns shipments of transuranic waste from Los Alamos National Laboratory (LANL) that DOE and Washington TRU Solutions, LLC (WTS), accepted for storage and disposal at WIPP without ensuring that the waste met the appropriate characterization requirements of the permit. That violation concerns the disposal of 121 containers of dewatered sludge waste between August 2005 and February 2006 for which visual examination (VE) was inappropriately conducted in lieu of in-depth x-ray inspections know as real-time radiography (RTR). NMED first identified that violation following an information request to DOE and WTS and an evaluation of their response.

The Central Characterization Project (CCP), a division of WTS, conducted waste characterization activities for WIPP-bound waste at LANL. WIPP’s Permit allows VE as an approved method only if the waste can adequately and thoroughly be characterized through visual means alone. The perfunctory manner in which VE was conducted to characterize the diverse types of waste in these drums was inadequate to describe all the contents in the containers.

“Unfortunately, video tapes show that technicians only casually examined the surface of the waste in these containers, making it impossible to determine whether prohibited items might be below the surface of the sludge,” said Division Director Jon Goldstein. “WIPP has a responsibility to thoroughly inspect all waste before disposing of it. This is to ensure the repository continues to operate safely long into the future.” The total fine for that compliance order is $847,000. The order also directs DOE and WTS to develop a plan for removing all waste subject to the compliance order from the underground unless they can provide technical justification demonstrating that the waste poses no elevated risk to human health and the environment. DOE and WTS may respond to these compliance orders by ensuring compliance and paying the fines, arranging for settlement with NMED, and/or requesting a hearing.

NMED also issued a Notice of Violation concerning numerous deficiencies in WIPP’s groundwater monitoring program. The violations noted include failure to annually measure water densities in all water level monitoring wells for the past seven years; failure to establish minimum qualification criteria and training standards for WIPP’s Environmental Manager; failure to develop specific procedures for the groundwater level monitoring program, such as determining the groundwater flow rate and direction in the vicinity of the WIPP site; and failure to establish clear data quality objectives for groundwater level data that are collected and reported to NMED monthly and annually. The total fine for that NOV is $38,520. “Groundwater monitoring is a key part of ensuring that WIPP’s operations do not adversely impact the health and environment of area citizens,” said Division Director Jon Goldstein. “We expect the same high standards of compliance from WIPP’s groundwater program that we’ve held their waste characterization activities to over the years.”

NMED discovered those violations earlier this year following an inspection of the site and a review of documents requested after the inspection. DOE and WTS may request to enter into discussions with the department if they dispute these alleged violations.