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August 2009 Archives

August 6, 2009

EPA Settles Pesticide Enforcement Case Against Maker of Hospital Disinfectants

On July 31, 2009, EPA announced that it had recently settled a third pesticide enforcement case against Lonza Inc., the nation’s largest manufacturer of hospital disinfectants, for multiple violations of the federal law that regulates pesticides. Most recently, the New Jersey-based company agreed to pay more than $550,000 in fines for allegedly making misleading claims regarding the efficacy of two products.

The settlement is one of the largest civil penalties assessed under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA). Combined with earlier settlements, the penalties total over $640,000. Under a previous settlement, the company also developed a ground-breaking supplemental environmental project, valued at $390,000.

Before any pesticide is sold in the U.S., it must go through EPA’s vigorous registration process. During this process, companies must provide health studies and environmental information about the product to ensure that its proper use does not cause any negative human or environmental effects. It is incumbent upon the manufacturer to ensure that a product functions as stated on the label. If EPA decides to register the product, it grants the manufacturer an EPA registration number, which is listed on the product. EPA also works closely with the manufacturer on the label language to make sure that it is clear and as specific as possible about how the product may be used.

Products cited for inefficacy in the most recent case were: Saniphor No. 450, registered as a tuberculocide, but found ineffective against a bacterium that causes tuberculosis; and 7 Healthcare Disinfectant Neutral Cleaner, which EPA tests determined did not kill the pathogen Pseudomonas aeruginosa, as claimed on the label. In addition, Klear Guard Tub & Tile Foaming Germicidal Cleaner was cited as misbranded for use of a label with missing first aid information. In addition to monetary fines, EPA’s earlier settlement with Lonza Inc. required it to implement the innovative supplemental environmental project.

August 7, 2009

Governor Paterson Signs Executive Order Setting Goal of Reducing Statewide Greenhouse Gas Emissions by 80 Percent by 2050

On August 6, 2009, New York Governor David A. Paterson signed an executive order that sets a goal of reducing greenhouse gas emissions in New York state by 80% by 2050. The order also creates a Climate Action Council comprising state agency heads to develop a plan by Sept. 10, 2010, for meeting the goal. New York is the eighth state to adopt a goal of reducing greenhouse gas emissions by 80% by 2050.

The plan would go beyond the cap-and-trade program established by the Regional Greenhouse Gas Initiative (RGGI) by covering all sectors of the economy and setting a higher goal for emissions reductions. Under RGGI, New York and the nine other participating states will reduce emissions from electric generators by 10% by 2018.

The order sets a goal of reducing greenhouse gas emissions by 80% from the 1990 baseline level of 277 million tons. The state’s current emissions are 290 million tons per year. Under the order, the plan developed by the Climate Action Council will include an inventory of greenhouse gas emissions, an assessment of short-term and long-term actions to reduce emissions, and an analysis of the economic impact of the emissions reductions. The plan, which will be subject to public hearings, also will identify the legal, regulatory, and policy constraints facing the state as it tries to reach the goal.

August 11, 2009

EPA Announces that PCB Level Spiked in Upper Hudson River

On August 3, 2009, EPA Region 2 announced that the level of polychlorinated biphenyls (PCBs) in a recent sample taken from the Upper Hudson River exceeded the federal drinking water standard of 500 parts per trillion (ppt). EPA has concluded, however, that the sample was probably a one-time spike due to heavy rains in the area. EPA announced that it is continuing to investigate the cause of the spike.

The sampling found PCB levels at 514 ppt. Two follow-up samplings in the same area found PCB levels at 337 ppt and 434 ppt, while additional samplings 20 miles downriver found levels at 145 ppt, 136 ppt, and 196 ppt. A temporary suspension of dredging activities in the river was a result of high water levels, not the spike in PCB measurements. Dredging of the river to remove historic PCB contamination began in May 2009.

Additional information on the project is available at http://www.epa.gov/hudson.

August 17, 2009

Judge Clears Most of New York Bottle Bill

On August 13, 2009, S.D.N.Y. Judge Deborah Batts lifted an injunction on most provisions of a set of April amendments to the New York State bottle bill, but continued to block implementation of a provision requiring a 5 cent deposit on bottled water. Judge Batts granted a motion by the state to allow implementation to go forward on provisions applying to bottled soda and beer. Those provisions require beverage companies to return 80% of unclaimed deposits to the state, increase the handling fee paid to bottle redemption centers from 2 cents to 3.5 cents, and set a new collection reporting, registration, and accounting system.

In late May, acting on a challenge by the International Bottled Water Association (IBWA) and other plaintiffs, the federal judge hearing the case at the time blocked implementation of the amendments, which were due to take effect June 1. In her order, Batts said she was lifting the preliminary injunction on parts of the law that were not part of the initial challenge and thus should be left intact and enforceable.

In allowing implementation of the amendments applicable to beverages other than bottled water, Batts said that plaintiff-intervenors challenging them had raised only financial objections. She found that the financial burdens of compliance, however, are not enough to claim violations of due process, as long as the amendments were supported by a rational basis. The state's decision to raise the handling fee “addresses concerns of redemption and recycling centers, some of whom have represented to this court that they are near collapse,” she said. Likewise, the state's decision to retain 80 percent of uncollected deposits “is a rational means to increase state revenue” and “other new accounting mechanisms are merely the means by which the state is seeking to further the new revenue collection."

Batts continued to block implementation of a provision requiring labeling beverage containers with a universal product code limiting their sale to New York. That provision, intended to prevent illegal redemption of containers bought out of state, was not defended by the state in the proceedings and clearly would violate the U.S. Constitution's dormant commerce clause, the judge said.

Turning to the bottled-water deposit, Batts said there “is no question” that the time frame of the June 1 compliance deadline was short. But she suggested that the length of time granted by the preliminary injunction, through April 1, 2010, might be excessive. Noting that the plaintiffs are “actively working” to achieve compliance with the amendments, she gave them until an Oct. 22 hearing to show cause “why due process requires the continued injunction.” International Bottled Water Ass'n v. Paterson (S.D.N.Y. Aug. 13, 2009).

August 18, 2009

EPA and New York City Reach Agreement on Disposal of Monitors and Light Bulbs

On August 17, 2009, EPA Region 2 announced that New York City has agreed to pay $50,000 in penalties and launch a comprehensive program for managing disposal of mercury-containing light bulbs, lead-containing computer monitors, and other hazardous waste.

In an administrative settlement under the Resource Conservation and Recovery Act (RCRA), the City agreed to spend at least $300,000 on a self-audit program to assess compliance with hazardous waste management requirements. The agreement resulted from inspections of buildings managed by the city Department of Citywide Administrative Services (DCAS). The audit will seek to identify, correct, and prevent violations in more than 800 buildings owned or operated by the City. The City also committed to work on increasing recycling of light bulbs and computer monitors.

EPA inspections of seven city facilities conducted from 2003 to 2005, as well as subsequent responses to requests for information, showed that DCAS had failed to make a hazardous waste determination with regard to spent fluorescent lamps or used computer monitors. The agency also found that DCAS had failed to meet labeling requirements or package the waste properly to prevent damage or release into the environment. (EPA Region 2 Press Release Aug. 17, 2009).

August 20, 2009

Public Service Commission Approves Energy Efficiency Programs

On August 20, 2009, the New York State Public Service Commission (PSC) approved $24.4 million in funding for an electric and natural gas energy efficiency program to improve the energy efficiency of large-scale industrial customers. The PSC approved an electric energy efficiency program to be administered by National Grid and a natural gas program to be administered by the New York State Energy Research and Development Authority (NYSERDA).

National Grid’s $13.1 million electric energy initiative program is designed to provide large industrial customers (with a load of 2 megawatts or greater) with financial and technical assistance to replace inefficient energy-using equipment and systems. Rebates will be available for qualifying lighting systems, lighting controls, energy management systems and economizer controls, air compressors, and variable frequency drives. Incentives will also be available for customized (or highly specialized) energy efficiency measure installations.

NYSERDA’s $11.2 million industrial and process efficiency program is designed to serve all industrial gas customers in New York State, with emphasis on large gas customers with electric demand of 2 MW or more. The new funding approved for natural gas efficiency improvements will be combined with previously-approved electric funding for NYSERDA’s existing Flex Tech Industrial Process program to integrate gas and electric efficiency efforts. NYSERDA’s program will focus on key manufacturing sectors in New York such as chemicals and pharmaceuticals, printing and publishing, automotive, food processing, and forest products. Data centers are also included since their energy use profile is similar to manufacturing. In addition, agriculture, mining, extraction, and water and wastewater facilities will be targeted because they have process-oriented operations. Incentives will be available for both electric and gas energy efficiency projects in all of these sectors to reduce the energy used per unit of production.

NYSERDA and National Grid will incorporate reports on these programs into the quarterly program and evaluation reports, annual program reports and evaluations, and monthly scorecard reports already required for the other Energy Efficiency Portfolio Standard programs they administer.

Governor Paterson Signs Executive Order Establishing Program to Review Environmental Regulations

On August 7, 2009, Governor Paterson signed Executive Order No. 25 establishing a regulatory review program to examine state regulations, rules, and paperwork requirements, including those covering the environment. The review will be overseen by a five-member committee, which will have authority to order state agencies to alter or repeal regulations. The committee will be comprised of existing appointed officials in the governor’s office, including his counsel and his budget director.

According to the Order, the purpose of the review process is to reduce the costs, burdens and inefficiencies of rules and paperwork requirements on all regulated entities and the general public, and to eliminate outdated, inadvisable or unwise rules and paperwork. Under the order, DEC and other agencies will issue a public invitation for stakeholders to comment on existing regulations. The comments will be reviewed by the agency and the newly appointed committee.

August 25, 2009

Village Ordered to Improve Stormwater Runoff System

On August 24, 2009, EPA Region 2 announced that the Village of Port Chester has been ordered to improve its stormwater runoff system and correct violations of the Clean Water Act. The action followed EPA sampling that found high levels of fecal coliform and total coliform bacteria in village stormwater in June 2008 and April 2009. The Village discharges stormwater into the Byram River, which empties into Long Island Sound.

The order requires the Village to prepare, implement, and enforce a stormwater management program to identify and correct improper sources of bacteria discharges by the end of 2009. It also calls for monitoring and reporting on stormwater discharges for another six months.

August 26, 2009

Non-Admit Clauses in DEC Consent Orders

At a meeting that members of the Section Cabinet held in June 2009 with DEC General Counsel Alison Crocker, Deputy Counsels Michelle Crew and Phil Lodico, Bureau Chief Ben Conlon, and Michael Lesser, we learned as follows with respect to the referenced issue:

1. Consent Orders are to recite the facts constituting the violations;

2. Those facts are to be explicitly referred to as "violations," i.e., "with respect to the aforesaid violations, the Environmental Conservation Law provides for penalties of up to . . .";

3. Admissions to violations and statements of non-admission - and the like - will not be required/accepted (but see 4 and 5 below);

4. Words like "allege" and "assert" and phrases like "neither admit nor deny" are not to be included;

5. In appropriate situations, for example, particularly egregious violations, explicit admissions to the violations may be required; and

6. Under exceptional circumstances (this concept was not defined, but we imagine that it will be a DEC judgment call), non-admit-type language will be considered but only if the case attorney is willing to accept it and the General Counsel agrees.

August 27, 2009

DEC Exercises Enforcement Discretion for Tank Regulation

On July 8, 2009, the New York State Department of Environmental Conservation (DEC) issued an enforcement discretion memorandum regarding recent changes to the definitions of “petroleum” and “facility” under the Petroleum Bulk Storage (PBS) law, Article 17, Title 10 of the Environmental Conservation Law (ECL).

Recent changes to these definitions make tanks used to store product for operational purposes and tanks used to store asphaltic emulsions subject to the PBS regulations. In the memorandum, DEC states that it will exercise enforcement discretion and will not subject these tanks, which would have been required to be registered and in compliance with the PBS regulations by July 21, 2009, to such registration and storage requirements at this time.

According to DEC, operational tanks are not constructed, operated, or maintained in the same way as traditional storage tanks. As such, they cannot always be inspected and monitored the same way as traditional storage tanks. In the case of tanks storing asphaltic emulsions, DEC has determined that the characteristics of these products are sufficiently different from the characteristics of other petroleum products to warrant additional consideration of their regulatory status. Accordingly, DEC has determined that further review is necessary to determine the appropriate standards and requirements for these tanks.

About August 2009

This page contains all entries posted to Envirosphere in August 2009. They are listed from oldest to newest.

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