Subscription Services Not Delivering on Sustainability

January 13, 2020
As the internet increasingly is used for commerce, depending on the location, many consumers also have a growing appetite for convenience and savings, a concept illustrated by online subscription services. These offerings often work in two ways: either by having scheduled automatic product delivery —for example a water filter every three months—or by subscribing to a brand’s random selection of products, delivered to your doorstep on a regular basis.
Whatever the format, home delivery subscription services are claiming their share of the e-commerce boom, totaling over US$2.6 billion in sales in the United States in 2016, according to a study by McKinsey & Company, published in February 2018. By the end of that same year, there were over 3,500 various offerings available to online consumers.
Marketed often as products to improve our lives, the landscape continues to be shaped by a few leaders, who have supported the industry’s 100% annual growth in the five years between 2013 and 2018. Mainstream retailers have recognized the opportunity, and many have rolled out a variety of subscription services.
The three primary factors that have supported this industry’s impressive growth are: replenishment, curation and access, says McKinsey & Company. Over half of subscribers use the service for the curated products, seeking a highly personalized experience, while nearly a third are driven by convenience, attributing their purchase to replenishment. Only 13% of consumers use the services to access special offerings.
However, one of the commonly overlooked considerations is the environmental impact of these subscription services There seems to be a box made for everyone—from beauty/grooming to pre-made meals. Whether you’re receiving a foundation sample, fresh razor or this week’s groceries, there are environmental consequences that we don’t see.
There are interesting positive impacts for some delivery services, specifically as they pertain to food waste. Currently, wasted food accounts for 8 percent of greenhouse gas emissions according to the Food and Agriculture Organization of the United Nations, costing nearly US $1 trillion globally. Assessing the food waste of meal kits against grocery shopping, a University of Michigan research team found that meal kits provide much more accurate portions of food for the same meal, which drastically reduced each households’ food waste and carbon emissions.
The same study compared the impact of travelling to the grocery store and the delivery of meal kits. Combining the delivery of multiple kits proved to be much more efficient than travelling to stores, as the distribution stage accounted for 11 percent of grocery store meal emissions compared to only 4 percent for meal kits. The number could drop even further with the introduction of drones and electric vans into the delivery fleet.
Unfortunately, excess packaging continues to plague the e-commerce and subscription box industry, despite the handful of services that have introduced sustainable materials.
Personal care subscription services are becoming more and more popular in some parts of the world. The trade-off for a ‘mixed bag’ of beauty or grooming products is more single-use plastics consumption. The beauty industry faces particularly significant challenges, with plastic consumption for packaging skyrocketing 120 times since 1960. The lack of infrastructure in place to deal with such high levels of plastic packaging—necessary to maintain product quality and safety—results in an unsustainable use of plastic.
Although direct-to-door-delivery is less carbon intensive, the real damage occurs when a consumer returns their products, with over 1 million packages being sent back per day in December of 2019. In total, nearly 1 billion trees were cut down to fulfill cardboard packaging demands for the 165 billion packages sent in 2017. What’s more is according to returns management company Optoro Inc., the costs associated with reselling a ‘free return’ makes it much more profitable to discard the product entirely, directing billions of pounds of returns to landfill or incinerators, which perpetuates unsustainable consumption practices.
Finally, the most pressing issues that subscription services fail to address is the need to reduce. These services promote consumerism in three key areas: they reward uncertainty, they promote behavioural consistency and they eliminate the need to choose.
Here’s what that means:
In delivering a selection of ‘curated’ products, subscription services generate positive reinforcement by offering the thrill of an unknown reward each installment. They also encourage behavioural consistency, as customers often hold subscriptions to multiple services. And finally, by offering a handful of products and eliminating choice, companies adopt responsibility for what the consumer wants, rather than what the consumer needs.
“Given our increasing resource consumption rates we need to consume differently and more lightly,” says UN Environment Program’s Sustainable Lifestyles Program Officer, Garrette Clark. “Thinking through what we really need, what enhances our well-being and what options are out there that work for us can help adjust our decision-making.”
A growing number of companies are looking to implement more sustainable products into their business models. Despite holding a relatively small share in the subscription box market, these eco-friendly options remain competitive by providing premium, vegan and plastic-free alternatives. As plastic reduction and ethical production practices become more popular, these services offer solutions to a growing demographic of eco-conscious consumers.
Adjusting consumer mindsets and promoting sustainable practices for businesses are two essential steps that need to be taken towards achieving sustainable lifestyles. Turning away from the make-take-waste economy and encouraging consumption reduction is pivotal to develop environmentally sound practices. However, the responsibility does not solely rest on the consumers. Businesses must introduce sustainable solutions into their supply chain and operations to shift consumer culture and behavior.
Free Amazon HD 10 Tablet with RCRA and DOT Training
Annual training is required by 40 CFR 262.17(a)(7).  Learn how to complete EPA’s new electronic hazardous waste manifest, and the more than 60 changes in EPA’s new Hazardous Waste Generator Improvements Rule.  Environmental Resource Center’s Hazardous Waste Training is available at nationwide locations, and via live webcasts.  If you plan to also attend DOT hazardous materials training, call 800-537-2372 to find out how can get your course materials on an Amazon Fire HD 10 tablet at no extra charge.
TDEC Seeks Environmental Achievers
The Tennessee Department of Environment and Conservation (TDEC) invitedTennesseans to submit nominations for the 2020 Governor’s Environmental Stewardship Awards. “We look forward to recognizing outstanding environmental achievements across our state,” Tennessee Gov. Bill Lee said. “These awards recognize those committed to our preserving Tennessee’s natural beauty and environment.”
The Governor’s Environmental Stewardship Awards include 10 categories, including three new categories for agriculture and forestry, water quality, and natural resources. Others are building green, clean air, energy and renewable resources, environmental education and outreach, materials management, sustainable performance, and lifetime achievement.
Any individual, business, organization, educational institution, or agency is eligible, provided it is located in Tennessee and the project was completed during the 2019 calendar year. All nominees must have a minimum of three consecutive years of overall environmental compliance with TDEC. Self-nominations are encouraged.
“We want to encourage responsible environmental practices across our state, and these annual awards are an excellent way to do that,” TDEC Commissioner David Salyers said. “We hope all Tennesseans will recognize the leadership of those who voluntarily strive for environmental excellence.”
A panel of judges representing agricultural, conservation, forestry, environmental, and academic areas will select award recipients based on criteria including level of project or program completion, innovation, and public education. The deadline for nominations is March 31, 2020. Award recipients will be announced in May 2020.
For more information about each category, judging criteria, and nomination forms, go to TDEC’s website at
Grid – Below-Ground Balancing
Oak Ridge National Laboratory researchers created a geothermal energy storage system that could reduce peak electricity demand up to 37% in homes while helping balance grid operations.
The system is installed underground and stores excess electricity from renewable resources like solar power as thermal energy through a heat pump. The system comprises underground tanks containing water and phase change materials that absorb and release energy when transitioning between liquid and solid states.
ORNL’s design relies on inexpensive materials and is installed at shallow depths to minimize drilling costs. The stored energy can provide hours of heating in the winter or cooling in the summer, shaving peak demand and helping homeowners avoid buying electricity at peak rates.
“Shifting demand during peak times can help utilities better manage their loads while saving consumers money and encouraging greater use of renewable energy,” said ORNL’s Xiaobing Liu.
The team published results of the system’s performance from a simulation.
Proposal to Save Protections for Migratory Birds Restored
Representative Lowenthal (D-CA) with 18 bipartisan original co-sponsors introduced the Migratory Bird Protection Act (H.R. 5552) to restore longstanding protections for migratory birds against industrial take — that is, unintentional but predictable killing of birds. Bird populations in North America are plummeting—a stunning 3 billion birds have disappeared from the continent since 1970—and federal law is essential to conserving and recovering these populations.
The Migratory Bird Treaty Act (MBTA), one of our nation’s first conservation laws, was enacted to implement our international treaty commitments to protect populations of migratory birds. Unfortunately, the current administration has crippled the MBTA by declaring that it no longer protects migratory birds from unconstrained incidental take by oil and gas developers and other industries.
The Migratory Bird Protection Act reaffirms the MBTA’s intent to protect migratory birds from industrial activities and provides regulatory certainty to responsible developers in managing incidental take, so long as they follow best management practices to avoid bird deaths. This important and reasonable approach gives industry clear and consistent expectations for protecting birds without jeopardizing our international commitments and conservation legacy.
Statements from environmental groups:
“The Migratory Bird Treaty Act is one of the most successful laws enacted to help protect our nation’s birds, but it has been weakened by recent misinterpretations of the law at the Department of the Interior,” said Mike Leahy, director of wildlife, hunting and fishing policy at the National Wildlife Federation. “It is imperative that we safeguard protections against significant losses of birds even when not deliberate, and the Migratory Bird Protection Act does just that. There is no sense in poking holes in a century-old, proven method of success when one-third of America’s wildlife is at increased risk of extinction. We commend Rep. Lowenthal for taking this crucial step to ensure species like sandhill cranes and snowy egrets are around for generations to come.”
“As the dual crises of climate change and biodiversity loss accelerate, the strength of our bedrock environmental laws is more critical than ever,” said Katie Umekubo, a senior attorney at the Natural Resources Defense Council (NRDC). “The Trump administration’s reckless actions threaten irreversible loss of birds. With the Migratory Bird Protection Act, Congress can reassert the longstanding balance between conservation and industrial activity that will, if done carefully, help ensure the survival of our precious avian species.”
House Adds Momentum to Phase Down of HFCs
A bipartisan group House lawmakers have introduced the "American Innovation and Manufacturing Leadership Act," which adds momentum to a bipartisan drive in Congress to phase down the use of climate-harming hydroflurocarbons (HFCs) and transition to safer alternatives for cooling systems.
The House HFC bill sponsors are Reps. Paul Tonko (D-NY), Pete Olson (R-TX), Scott Peters (D-CA) and Elise Stefanik (R-NY). Their bill is the “American Innovation and Manufacturing Leadership Act” (HR5544). Thirty-two senators are cosponsors of the Senate’s HFC bill, the “American Innovation and Manufacturing Act of 2019." More here.
On January 14, the House Energy & Commerce Subcommittee on Environment and Climate Change will hold a hearing on the House HFC bill. "Promoting American Innovation and Jobs: Legislation to Phase Down Hydrofluorocarbons”will be held at 10:30 a.m. in 2322 Rayburn House Office Building. NRDC's Doniger is scheduled to testify.
A blog on HFCs and congressional efforts to reduce their use is here:
Hazardous Waste TSDF Cited for RCRA Air Violations
EPA announced a settlement with Pacific Resource Recovery Services for improperly managing hazardous waste at their facility in Los Angeles. Under the agreement, the company will spend $100,000 on an air filtration system to improve air quality in classrooms at a school near the facility and pay a $36,000 penalty.
“Compliance with hazardous waste permits is imperative to protect the surrounding community and environment,” said EPA Pacific Southwest Regional Administrator Mike Stoker. “We are pleased the company will invest in the local community by bringing air filters to local classrooms.”
Pacific Resource Recovery Services operates an industrial waste management and recycling facility. During a July 2017 inspection, EPA identified violations of federal Resource Conservation and Recovery Act (RCRA) regulations. RCRA rules require the safe management of hazardous waste to protect public health and the environment and to prevent the need for costly and extensive cleanups.
Violations identified during the inspection included:
  • Failure to properly prevent emissions of volatile organic compounds from tanks.
  • Failure to maintain air emission monitoring equipment.
  • Failure to monitor and inspect equipment to accurately detect and prevent emissions.
The installation, operation and management of the school air filtration system will be managed by the South Coast Air Quality Management District. The district will provide training to school staff to maintain the system, which is expected to remove more than 90% of ultra-fine particulate matter and black carbon from the school’s indoor air.
Appliance Recycler Fined $145,760 for Mishandling and Burning Hazardous Waste
The California Department of Toxic Substances Control today announced an agreement with Bay Area appliance recycler Freon Free, which will pay a penalty of $145,760 for its mishandling and incineration of hazardous waste.
DTSC inspectors found Freon Free was burning hazardous waste without a permit, increasing the risk of an on-site fire or explosion. DTSC also learned that for years Freon Free was improperly treating two to three ammonia-containing refrigerators per week by bolt-cutting refrigerant lines and releasing their contents into a container with water. This manner of treating ammonia without a permit violates legal requirements and could result in serious injury.
“California law sets forth clear guidelines and a certification process for handlers of discarded appliances,” said DTSC Director Meredith Williams. “The inherent dangers posed to the public and environment by certain components, including materials that require special handling, must be taken seriously and mitigated by recycling companies.”
DTSC’s Office of Criminal Investigations and Enforcement and Emergency Response Division conducted on-site inspections at Freon Free locations in Fairfield, American Canyon, and Orland. Inspectors found Freon Free was treating and storing hazardous waste without a permit; removing materials that require special handling at locations that were not certified; inadequately training staff on how to manage waste; and using other hazardous waste management practices that conflict with the state’s Hazardous Waste Control Law and Health and Safety Code.
Under California law, those who recycle discarded major appliances that contain materials requiring special handling, also known as MRSH, must meet certification requirements. Handlers who demonstrate the ability to properly remove and manage waste in accordance with all applicable hazardous waste control laws are approved by DTSC’s Certified Appliance Recycler Program.
To prevent the release of dangerous components in appliances, handlers are required to remove mercury, oils, refrigerants, polychlorinated biphenyls, and any other materials that are regulated as hazardous waste. Freon Free may continue to remove MRSH as part of the agreement.
The consent judgement can be viewed here.
Cannon Air Force Base Cited for Discharging to Groundwater Without a Permit
The New Mexico Environment Department (NMED) issued an administrative compliance order to the United States Air Force for ongoing violations of state law related to the protection of groundwater resources. The administrative compliance order seeks immediate compliance with groundwater discharge permitting requirements and assesses a civil penalty of $1,699,872.60.
In 2018, the state began protecting groundwater resources from three per- and poly-fluoroalkyl substances (PFAS) chemicals, a group of manmade chemicals known to cause adverse health effects. Thereafter, certain entities with groundwater discharge permits began monitoring for and disclosing the presence of these chemicals.
Cannon Air Force Base’s groundwater discharge permit expired on March 31, 2019. Prior to the expiration of the discharge permit and then subsequent to its expiration, NMED notified the Air Force on multiple occasions that PFAS monitoring was required. In spite of state law, the Air Force has been unlawfully discharging wastewater without a groundwater permit since April 1, 2019.
“The Air Force continues to ignore New Mexico’s environmental laws,” said NMED Cabinet Secretary James Kenney. “Rather than address PFAS contamination, the Department of Defense shows no interest in helping afflicted communities and impacted natural resources.”
To remedy the violations, the Air Force must submit a Discharge Permit application along with the civil penalty within 30 days. NMED may assess additional penalties of up to $25,000 a day for continued noncompliance.
NMED and the New Mexico Office of the Attorney General are currently in litigation with the Air Force over the existing PFAS contamination at Cannon and Holloman Air Force bases.
Church to Pay over $50,000 for Stormwater Violations
The corporate entity representing the Roman Catholic Bishop of Sacramento has agreed to pay a $56,400 penalty for allowing stormwater to erode soils and discharge sediment into waterways below a retreat being built in Placer County.
The Central Valley Regional Water Quality Control Board determined that the developer hired by the corporation failed to fulfill requirements of the General Permit for Storm Water Discharges Associated with Construction and Land Disturbance Activities. The alleged violations, which occurred at the Trinity Pines Catholic Center site in November and December of 2018, include failure to include best management practices in their stormwater pollution prevention plan and neglecting to install appropriate measures to prevent sediment and turbid discharges during storms.
“The developer for this project failed to prepare an adequate plan required at all construction sites to hold sediment back during rain events and keep it from flowing offsite and damaging nearby waterways,” said Andrew Altevogt, Assistant Executive Officer for the Central Valley Water Board. “There was no effective erosion control at this location until the deficiencies were pointed out by inspection staff.”
In January 2019, the developer modified the prevention plan and installed stormwater protections that met the permit requirements.
Owners of construction sites larger than one acre must enroll in the stormwater permitting program, which among other things, requires hiring a “stormwater professional” to design and install erosion and sediment controls. Discharges of sediment can cloud the receiving water, which reduces the amount of sunlight reaching aquatic plants. These flows can also clog fish gills, smother aquatic habitat and spawning areas, and transport other materials such as nutrients, metals, and oil and grease which can negatively impact aquatic life and habitat.
Aluminum Recycler Fined $1.3 Million for Air Quality Violations
The Oregon Department of Environmental Quality issued a $1,296,885 penalty Wednesday to Hydro Extrusion USA LLC for multiple air quality permit violations at its aluminum recycling facility in The Dalles.
The fine is the largest air quality penalty ever issued by DEQ, which also regulates land and water quality in Oregon.
“DEQ found Hydro Extrusion operated with flagrant disregard for the rules and conditions of its air quality permit,” said Kieran O’Donnell, DEQ compliance and enforcement manager. “DEQ expects industrial facilities to adhere to the rules that are in place to protect the health of Oregon’s people and environment. Hydro Extrusion chose not to follow these rules, and DEQ is holding the facility accountable to ensure in the future it operates in full compliance with environmental laws.”
Hydro Extrusion is part of Norsk Hydro, a Norway-based company that operates aluminum facilities worldwide, including dozens of locations in the U.S. The facility in The Dalles melts down aluminum scrap so it can be recycled into new products.
DEQ and the U.S. Environmental Protection Agency discovered the violations during an unannounced inspection in April 2019. The facility’s air quality permit allows it to melt only “clean charge”— material that’s free of oil and grease, paints or other coatings. DEQ found the facility processed unclean, coated aluminum scrap for more than a year. Processing this material is prohibited under the facility’s permit.
DEQ also found the facility did not conduct the required tracking and monitoring intended to prevent the processing of unclean charge, failed to keep required records, submitted inaccurate certifications to DEQ, and exceeded the allowable rate of an additive used to improve product quality.
After identifying the violations, DEQ ordered the facility to stop using unclean aluminum, improve its tracking and monitoring program, and submit monthly records so DEQ can verify compliance. Hydro Extrusion has improved its scrap monitoring program at the facility and certified to DEQ that it has stopped processing prohibited material.
The majority of the penalty – $1,063,485 – is the estimated economic benefit the facility gained by avoiding the cost to install and maintain pollution control equipment. If the facility installs control equipment, DEQ may recalculate the economic benefit portion of the penalty.

The largest prior air quality permit penalty issued by DEQ was $303,169. The largest ever penalty in any DEQ program area was $1.4 million for violations relating to a fuel spill from underground storage tanks.
Hydro Extrusion may appeal the alleged violations within 20 days of receiving the penalty notice.
Company Agrees to Stop Selling Illegal Devices That Defeat Emissions Control
The U.S. Department of Justice and the EPA announced a settlement with Punch It Performance and Tuning and Michael Paul Schimmack — and other companies and individuals close to Schimmack (Defendants) — resolving alleged violations of the Clean Air Act (CAA) associated with the manufacture and sale of aftermarket products that defeat the emissions control systems of motor vehicles. The complaint also alleged that certain defendants fraudulently transferred assets after learning of the EPA claims in an effort to avoid payment of penalties in the case.
Under the settlement, lodged today with the U.S. District Court for the Middle District of Florida, defendants, who have stopped manufacturing and selling defeat device products, will pay a civil penalty of $850,000. The defendants also agree to stay out of the business of selling the illegal products, to surrender the computer code used in the products and to stop providing technical and warranty support for the defeat devices already sold.
“EPA will vigorously pursue and prosecute companies who attempt to circumvent emission controls that are required to reduce air pollution,” said EPA Assistant Administrator for Enforcement and Compliance Assurance Susan Bodine. “This case illustrates why stopping the manufacture, sale, and installation of aftermarket defeat devices is an EPA National Compliance Initiative.”
“Companies and individuals who deal in aftermarket defeat devices are threatening the public’s health and violating federal law,” said Assistant Attorney General Jeffrey Bossert Clark. “The Department of Justice is committed to ending this illegal trade, seeking justice for those harmed from this fraudulent activity, and encouraging compliance in the automotive industry through strong enforcement.”
“The Middle District of Florida remains committed to enforcing the Clean Air Act,” said U.S. Attorney Maria Chapa Lopez. “The settlement announced today is a clear statement of our office’s commitment to protect our citizens and the environment.”
The defendants manufactured and/or sold more than 20,000 aftermarket defeat devices. These products were designed for a range of certified motor vehicles and motor vehicle engines including vehicles manufactured by Ford, General Motors, and Fiat Chrysler. The aftermarket products sold by defendants included hardware components and electronic tuning software, known as “tunes,” that hack into and reprogram a motor vehicle’s electronic control module to alter engine performance and enable the removal of filters, catalysts and other critical emissions controls that reduce air pollution.
Under the CAA, it is illegal to manufacture or sell parts or components for motor vehicles and motor vehicle engines that bypass, defeat, or render inoperative elements of design that were installed by the vehicle or engine original equipment manufacturer to comply with CAA emission standards. The complaint filed in the case alleges that each act of manufacturing and each sale constitutes a violation of the CAA.
In addition, the complaint asserts that after EPA notified the defendants in 2016 of its intent to take enforcement action, the corporate defendants transferred real estate and large sums of money to one or more of the individual defendants in their personal capacities. The U.S. alleges these were fraudulent transfers under the Federal Debt Collection Procedures Act.
In addition to their civil penalty of $850,000, defendants will also do the following:
  • Surrender all intellectual property to EPA, including programming, files, software, source code, design, instructions, or other information that could be used to manufacture tunes;
  • Certify that no products have been manufactured or sold since March 2017;
  • Certify that no intellectual property has been transferred to any party other than EPA; and refuse to provide technical support or honor warranty claims for products subject to the consent decree.
EPA has recently begun a National Compliance Initiative on Stopping Aftermarket Defeat Devices for Vehicles and Engines. To read about EPA’s National Compliance Initiative visit:
The proposed settlement is subject to a 30-day public comment period and final court approval. Information on submitting comments is available at the Department of Justice website.
To learn more about the settlement click here.
Safety-Kleen Permit Renewed for St. Charles Facility
The Missouri Department of Natural Resources issued a final hazardous waste permit to Safety-Kleen, allowing the company to continue storing and treating hazardous waste at its facility.
Safety-Kleen operates a commercial hazardous waste storage and treatment facility at the site, located at 4526 Towne Court in St. Charles. Since 1975, this facility has been a temporary accumulation point for spent solvents, paint wastes, lacquer thinner wastes and waste oil produced by Safety-Kleen customers. The majority of Safety-Kleen’s customers are small-quantity generators. Safety-Kleen also stores other types of wastes on a 10-day transfer basis. Once a sufficient quantity of materials is collected in containers and tanks, the hazardous waste is shipped to a Safety-Kleen recycling facility or a contract reclaimer for processing.
Safety-Kleen has been operating at the site under a department-issued Missouri Hazardous Waste Management Facility Part I Permit and an EPA-issued Hazardous and Solid Waste Amendments Part II Permit.
On March 23, 2017, Safety-Kleen submitted a permit application to the department to renew its existing hazardous waste permit.
After a thorough technical review of the permit applications and opportunity for public comment on the draft permit, the department issued a final Part I Permit. The final permit allows the company to continue storing and treating hazardous waste.
EPA decided not to issue a Part II Permit, since EPA has no site-specific conditions for the facility and Missouri is fully authorized for all permitting and corrective action activities at the facility. EPA intends to terminate the current Part II Permit upon issuance of the Part I Permit.
Any parties adversely affected or aggrieved by the department’s decision to approve the permit modification request and issue the final Part I Permit, or by specific conditions of the final Part I Permit, may be entitled to pursue an appeal before the Administrative Hearing Commission by filing a written petition by Jan. 16, 2020 as more fully described on pages 5-6 of the final Part I Permit.
Maintenance Supervisor Charged with Violating Clean Air Act and Making False Statements
U.S. Attorney James P. Kennedy, Jr. announced that a federal grand jury has returned an indictment charging James S. Marshall, 67, of Farmington, NY, with violation of the Clean Air Act, negligent endangerment under the Clean Air Act, and making a false statement. The charges carry a maximum penalty of five years in prison and a $250,000 fine.
Assistant U.S. Attorney Aaron J. Mango, who is handling the case, stated that according to the indictment, the defendant was a Maintenance Supervisor with the Finger Lakes Office for People with Developmental Disabilities (OPWDD), Developmental Disabilities Services Office. As part of his duties, Marshall controlled and supervised facilities being demolished or renovated.
On October 7, 2014, the defendant requested that asbestos testing be conducted at the Hillcrest Building, a building owned by the OPWDD, located on E. Maple Avenue in Newark, NY. On October 8, 2014, Marshall directed an inspector for the asbestos testing company to take four samples from two locations within the 300,000 square foot Hillcrest Building. The results of the four samples came back negative for asbestos.
On November 10, 2014, the OPWDD began soliciting public bids for the cleanout of the Hillcrest building. The specifications for the project stated that swipe testing for asbestos and lead was conducted and the findings for the substances were within normal limits.
On December 2, 2014, the defendant led a mandatory walkthrough of the Hillcrest Building for any individuals seeking to bid on the project. On December 24, 2014, a third-party contractor was awarded the contract for the cleanout of the Hillcrest Building.
The contractor conducted the cleanout between April 6 and April 10, 2015. On April 16, 2015, Marshall sent an e-mail to the OPWDD business office stating that the cleanout of the Hillcrest Building had been completed to his satisfaction.
On April 30 and May 28, 2015, regulated asbestos was found at the Hillcrest Building in a dry condition and was not in any container. According to the indictment, the defendant failed thoroughly to inspect the affected facility for the presence of asbestos prior to the commencement of a renovation activity; failed to ensure that regulated asbestos was adequately wetted during removal activity; failed to ensure that regulated asbestos remained wetted until placed in leak-tight containers; and failed to ensure that all regulated asbestos stripped and removed was disposed of timely. Marshall is also accused of negligently releasing into the ambient air a hazardous air pollutant, and placing another person in imminent danger of death and serious bodily injury during the cleanout of the Hillcrest Building. In addition, the defendant is accused of making a false statement by stating that the asbestos sampler walked through the entire building during testing, as it is alleged that the defendant knew that the asbestos sampler had not walked through the entire building.
The indictment is the result of an investigation by the EPA Criminal Investigation Division, under the direction of Special Agent-in-Charge Tyler Amon. Additional assistance was also provided by the New York State Department of Labor, Asbestos Control Bureau.
The fact that a defendant has been charged with a crime is merely an accusation and the defendant is presumed innocent until and unless proven guilty.
Dover Greens Sued for Violating Asbestos NESHAP
Geoffrey S. Berman, the United States Attorney for the Southern District of New York, and Peter Lopez, Regional Administrator for EPA Region 2 announced that the United States has filed a civil lawsuit against Dover Greens, LLC, for violations of the Clean Air Act and EPA’s National Emissions Standards for Asbestos (Asbestos NESHAP) during renovation of the former Harlem Valley Psychiatric Center in Wingdale, New York. Dover Greens violated the CAA and Asbestos NESHAP when it failed to take the necessary precautions and follow the proper protocols pertaining to the removal, handling, and disposal of asbestos. The Asbestos NESHAP is designed to protect the public health by preventing exposure to airborne asbestos fibers during building demolition or renovations, waste packaging, transportation, and disposal.
Along with the lawsuit, the United States has filed a consent decree, agreed to by Dover Greens, that resolves the violations through payment of a $575,000 financial penalty and the imposition of injunctive relief, including a requirement that Dover Greens provide medical monitoring to individuals potentially exposed to airborne asbestos fibers as a result of these violations. The consent decree remains subject to Court approval.
U.S. Attorney Geoffrey S. Berman said, “Despite knowing that it was required to comply with asbestos safety regulations, Dover Greens conducted renovations in flagrant violation of those regulations, risking the health of members of the public and workers at the facility. The consent decree ensures that Dover Greens will protect people from asbestos exposure in its further work on the Campus and provides medical monitoring for individuals who may have been exposed to asbestos due to Dover Greens’ conduct. Also, by requiring Dover Greens to pay a substantial penalty, we have sent a strong message that this conduct will not be tolerated.”
EPA Regional Administrator Peter Lopez stated, “We are determined to protect public health and the environment. The Clean Air Act and EPA’s National Emissions Standards for Asbestos have been set in place to do just that. This settlement sends the important message that we will not allow groups or individuals to skirt the law and put people at risk.”
The complaint filed in Manhattan federal court today alleges that in October 2013, Dover Greens violated the CAA and Asbestos NESHAP when it rushed to renovate numerous buildings at the Campus (the “October 2013 Work”) in order to prepare the Campus to host a fundraiser. Dover Greens knew that its buildings contained asbestos and that asbestos work practice regulations must be followed. However, it repeatedly failed to comply with these regulations in its work. In particular, the complaint alleges that Dover Greens violated Asbestos NESHAP requirements to inspect the Campus properly and notify EPA before commencing renovation activities; to remove, store, and dispose of asbestos-containing materials safely; and to have a trained representative present during the renovation. As a result of its conduct, Dover Greens’ employees, contractors, and the individuals who attended this fundraiser faced an increased risk of asbestos exposure.
The complaint also alleges that during EPA’s investigation, Dover Greens failed to provide EPA access and information, as required by the CAA.
In the consent decree lodged with the federal court, Dover Greens admitted, acknowledges, and accepts responsibility for the fact that it “failed to follow EPA regulations concerning asbestos when conducting the October 2013 Work.” Dover Greens further admits, acknowledges, and accepts responsibility for the following:
  • Dover Greens failed to inspect the buildings at issue thoroughly for the presence of regulated asbestos-containing material (RACM) and notify EPA prior to commencing the October 2013 Work.
  • Dover Greens failed to (a) ensure that all RACM was removed before beginning the renovation; (b) ensure that all RACM was adequately wetted before stripping it from buildings; and (c) ensure that all RACM remained wet until it was collected and contained for disposal.
  • Dover Greens failed to seal all asbestos-containing materials in leak-tight containers while wet and failed to label containers or plastic bags containing RACM with proper warning labels and the name of the waste generator or the location at which waste was generated.
  • Dover Greens failed to (a) dispose of asbestos waste at a proper disposal site; (b) ensure that properly marked vehicles were used to transport asbestos containing waste; (c) and maintain waste shipment records; and
  • Dover Greens failed to have a trained representative present during the October 2013 Work.
  • The October 2013 Work disturbed asbestos in numerous buildings, potentially exposing Dover Greens’ employees, contractors, and guests to asbestos.
  • When EPA sought to investigate the October 2013 Work, Dover Greens failed to provide EPA inspectors with access to the Campus and failed to provide complete responses to EPA’s requests for information.
Pursuant to the consent decree, Dover Greens will pay a civil penalty of $575,000. The consent decree also requires Dover Greens to offer an initial asbestos medical surveillance exam and, if necessary, pay for ongoing medical surveillance for each individual who may have been exposed to asbestos as a result of the October 2013 Work. Further, Dover Greens agrees under the consent decree to conduct routine inspections of and, if necessary, repairs to all buildings on the Campus in order to prevent the release of asbestos fibers into the environment; ensure that warning signs are properly posted on Campus buildings; provide annual asbestos awareness training to Dover Greens’ maintenance employees; comply with a detailed Asbestos Operations & Maintenance Plan designed to minimize the potential for asbestos exposure to Dover Greens’ employees, building occupants, visitors, and workers; and comply in all respects with the CAA and Asbestos NESHAP when conducting asbestos abatement activity.
To provide public notice and to afford members of the public the opportunity to comment, the consent decree will be lodged with the District Court for a period of at least 30 days before it is submitted for the Court’s approval.
U.S. Attorney Berman thanked the attorneys and enforcement staff at EPA Region 2 for their critical work in this matter. This case is being handled by the Office’s Environmental Protection Unit. Assistant U.S. Attorney Jacob Bergman is in charge of the case.
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