Environmental Law Blog

Last month, the Missouri Department of Natural Resources (MDNR), the Missouri Department of Health and Senior Services (DHSS), and the U.S. Environmental Protection Agency (EPA) joined forces to uncover the source of suspicious brain tumors found in residents of a local Missouri town.

According to local officials, 11 Cameron residents have been diagnosed with benign brain tumors since 2002, but that number could be three to four times as much, as residents rush to medical professionals for signs of asymptomatic brain tumors.

MDNR, DHSS, and EPA have been working together to collect groundwater, drinking water, and soil samples from land and water reserves in and around the small community located just north of St. Joseph. Officials focused their testing on the land on and around the former Rockwool plant, which closed more than 20 years ago. Rockwool converted iron into fiber insulation for buildings and then dumped the residue from the manufacturing process onto the land surrounding the plant and at a quarry a few miles away.

Thus far, drinking water tests have come back negative for carcinogens, but groundwater and soil samples found on and around the former Rockwool plant site have tested positive for higher-than-normal levels of arsenic and lead. Officials maintain that, although the levels are higher than they would like to see them, they are not hazardous to health. In fact, Cameron's public drinking water facility has passed its drinking water tests for most, if not all, of the past 10 years.

As State and Federal officials struggle to discern the source of the brain tumors in Cameron, citizens are left to speculate about the cause of these benign brain tumors. We'll keep you updated as more information becomes available to us. In the meantime, if you have a similar or completely different environmental compliant, please fill out the Attorney General's environmental complaint form. The link is to your left.

Did you know that every time you clean the bathroom, you are using a cleaning product that may be a Household Hazardous Waste under the Missouri Solid Waste Management and Hazardous Waste Management Laws?

Well, you are! But, don't worry because you probably haven't violated either the Solid Waste or Hazardous Waste Management Laws. Many common household cleaning, painting, gardening, and lawn care products can be dangerous if handled improperly. When you discard these common products, the remaining contents become Household Hazardous Wastes.

Household Hazardous Wastes generated from a single family dwelling can be legally disposed in your trash; however, you should try to dispose of large quantities of Household Hazardous Wastes or especially dangerous Household Hazardous Wastes at a collection event or facility. A list of community collection events throughout Missouri can be found on the Missouri Department of Natural Resource's web site. And, a list of permanent collection sites can be found there as well.

Some common household products are more dangerous than others. These products include used motor oil, waste tires, and lead-acid (car) batteries. Used motor oil and lead-acid batteries must be disposed at a permitted recycling facility. Waste tires must be shredded before landfill disposal, or they can be turned over to an energy recovery operation.

In addition, some forms of common household waste cannot be disposed in a landfill. For example, yard waste cannot be disposed at a landfill and must be deposited at a composting facility. This may seem like a strange exemption, but Missouri does not consider yard waste to be a good use of landfill space due to the large quantities of waste generated by the average household. Household appliances cannot be deposited in a landfill and must be recycled at a scrap yard or appliance repairman.

The most important thing to remember when handling Household Hazardous Wastes is that qualifying products pose a threat to your health and the environment. Please handle -- and disopose of -- them responsibly.

Last week, the Attorney General's Office sued a developer for allowing untreated sewage to discharge into a tributary of Lake Taneycomo, in violation of the Missouri Clean Water Law. Lake Taneycomo is famous across the country for its abundant rainbow and brown trout populations and is located in the Branson area. Since 2002, the Attorney General's Office has prioritized cases involving water pollution in the White River Watershed through its "Zero Tolerance Initiative."

In May 2008, the Missouri Department of Natural Resources discovered that the wastewater treatment facility serving the Damsite Subdivision was discharging untreated sewage to a tributary of Lake Taneycomo. An earlier inspection last November determined that the facility was discharging untreated sewage to the ground. The Department brought the case to the Attorney General's Office last week, and the Office moved swiftly, showing zero tolerance for pollution of the White River.

The lawsuit, filed in Taney County Circuit Court, asks the court to issue a preliminary and permanent injunction that would require the Damsite Improvement Association, which owns and operates the wastewater treatment facility serving the Damsite Subdivision, to:

(1) Immediately contain and store the sewage generated by the wastewater system in a tank or other similar device;
(2) Empty the tank as necessary to prevent overflows or discharges;
(3) Convey the sewage to an appropriately permitted wastewater treatment facility for treatment and lawful discharge; and
(4) Continue this process until the current wastewater treatment facility can be upgraded and made fully operational or alternative sewage treatment service can be provided.

Under the Missouri Clean Water Law, untreated sewage qualifies as both a water contaminant and a pollutant. And, a wastewater treatment facility is a point source, or a source of direct pollution into the waters of the State. Thus, each owner and operator of a wastewater treatment facility in Missouri must obtain a Missouri State Operating Permit before s/he can legally operate the facility.

Missouri State Operating Permits are the regulatory equivalents of National Pollution Discharge Elimination System Permits under the federal Clean Water Act. Both permits set the limits for allowable water pollution into the waters of the State. Point sources cannot pollute in excess of the limits set in their Permits, or they are deemed in violation of the Missouri Clean Water Law.

Permits also impose reporting requirements on owners and operators of point sources, like wastewater treatment facilities. For example, owners and operators of wastewater treatment facilities are required to monitor treated wastewater that is discharged into the waters of the State and then report the monitoring results to the Missouri Department of Natural Resources. If the reports indicate that the facility has exceeded its allowable pollution limits, then the facility must correct the violation or be sued by the Attorney General's Office.

In the Lake Taneycomo incident, the owners of the wastewater treatment facility failed to meet the pollution limits set by its Missouri State Operating Permit. Recognizing the threat to Missouri's natural resources, the Missouri Department of Natural Resources and the Attorney General's Office took immediate action to eliminate that threat.

The Zero Tolerance Initiative is an example of sector-based enforcement where one targets a particular region or type of pollution for closer scrutiny for an important reason.   Here, we are protecting the White River area which is an important tourism draw that depends on clean water.  Do you have any ideas that could help the AGO further prioritize its enforcement efforts statewide? 

The U.S. Government Accountability Office released its Expert Opinion on the Economics and Policy Options to Address Climate Change to the U.S. Congress (and the public) last May. All of the experts assembled by the GAO agreed that Congress should consider using a market-based mechanism to establish a price for greenhouse gas emissions. Fourteen of the eighteen experts further recommended additional emissions curbing actions to address climate change, such as investment in research and development of low-emissions technologies.

Most experts preferred a basic tax on emissions, but some considered a hybrid market-based option that involves both an emissions tax and a cap-and-trade emissions system. In a cap-and-trade system, companies are assigned a maximum allowable emission rate, or cap. Companies can then "bank" under-cap emissions for future use. Companies also have the option to trade under-cap emissions for a price determined by the market. Experts believe that the emissions trade price should be set somewhere between $1 and $20 until the market stabilizes in order to spur initial participation.

The report indicates that the GAO was particularly concerned about the potential impacts of elevated levels of greenhouse gases in the Earth's atmosphere, such as rising sea levels and a shift in the intensity and frequency of floods and storms. The implementation of a market-based mechanism would likely curb these potentially catastrophic effects of global climate change.

On the other hand, the GAO also noted the increase in energy costs that would likely result from the costs of an emissions tax or cap-and-trade system. Altogether, the GAO felt the benefits to the environment outweighed the costs.

In light of the continued controversy surrounding the science and politics of climate change, what effect do you think the GAO's report will have on the average Missourian's opinion about the government's role in preventing climate change?

In our last post, we explored the general framework of the Superfund Law and how historically-contaminated sites get cleaned up by generators, transporters and dumpers of hazardous wastes.  But what about currently-operating sites that suffer a spill of hazardous substances or sites that require immediate clean-up?  And what role is there for the public? 

The Superfund also contains a provision that requires the person with control of a hazardous substance to notify the government if there is a release of certain amounts of contaminants (reportable quantities) into the environment. The federal EPA's work under the Superfund Law was initially funded by a tax on certain industries. That tax has expired, but EPA continues to fund work either using the Fund, or by entering into agreements with responsible parties who then do the clean up work themselves.

While the states do not have all of the authorities provided to EPA under the law, states do have the authority to conduct a site clean up and then recover their costs from the responsible parties. This has proven to be a powerful tool for most states and has resulted in the clean up of a number of sites, including sites in Missouri. Additionally, many states, including Missouri, work with EPA and participate in site clean ups in partnership with the federal government.

Another important goal of the Superfund Law is involving the public in the clean up process. To that end, Congress has provided EPA with funding that allows EPA to help citizens pay or experts in the fields of geology, engineering, toxicology, biology, chemistry and related fields to help people located in or near a contaminated site. EPA and the states also encourage public involvement in the clean up process by assisting local interested members of the public to form Citizen Action Groups. These groups, or CAGs, meet on a regular basis with representatives from EPA and the MDNR, to discuss the status of the clean up efforts and what to expect next. There are CAGs formed at several sites in Missouri, including in the cities of Herculaneum (Herculaneum smelter site) and Neosho (Pools Prairie Superfund Site.) EPA has a website that has information about both the technical assistance grants and forming a CAG. Interested persons should visit both the EPA's website as well as the MDNR's Hazardous Waste Program website.

What other tools should be available in an emergency?  Is the federal Superfund enough to protect the public welfare or should the State have its own "mini-Superfund" law?

In 1976, the United States Congress passed the federal Resource Conservation and Recovery Act, or RCRA. The RCRA required companies to properly manage and dispose of hazardous wastes generated in production or manufacturing operations at the facility. Initially Congress believed that with the passage of RCRA, the Clean Water Act and the Clean Air Act, it had protected human health and the environment from pollutants and contaminants generated by American business.

However, the discovery of such sites as the Love Canal Site and Missouri's own Times Beach Site revealed that something was missing. In late 1980, Congress passed the Comprehensive Environmental Response, Compensation and Liability Act of 1980, commonly known as the Superfund Law, to fill in that "hole" in the environmental regulatory universe. The Superfund Law included a number of provisions, but chief among them was the goal of promoting the clean up of sites that had been contaminated by historical site operations, as opposed to preventing future contamination, which is the goal of RCRA. Under the Superfund Law, the federal government had the authority to order clean up of a site, or do the clean up itself and then seek to recover those response costs from liable parties. The parties who could be held liable included not only parties who owned the contaminated property, but also those parties who generated the contaminants (even where the generation had occurred years earlier) and parties who had transported the hazardous substances to the site.

Is it fair to make generators and transporters liable as if they were the dumper?  Would historical contamination ever be fully remediated otherwise?

In our next post, we will look at how Superfund works when there is an ongoing release of a hazardous substance. 

Anticipation over Missouri's potential for concentrated animal feeding operation ("CAFO") regulatory reform has been a source of much controversy amongst Missouri's media professionals. In fact, just last week, the Columbia Tribune posed the question: Which form of regulatory control is better? Local control or state-wide regulation?

Local control offers Missouri citizens the most direct opportunity to regulate the CAFOs allowed into their community. Some contend that more often than not, however, local health ordinances keep CAFOs out of counties where they may be most suited to operate because local residents stand by the "Not in My Back Yard" principle.

On the other hand, local control advocates state that state-wide regulation has proven ineffective in preventing odors and potentially harmful air and water releases. Besides, shouldn't local communities and neighboring landowners have input regarding the operation of confined animal operation?

The recent media attention makes it all the more reasonable to pose the ultimate question to you: Which form of regulation would you prefer? Local or state control? What are the costs and benefits of each?

Rock Port, a small Missouri town of approximately 1,300 residents, just became the first town in the nation to fully support its energy needs with wind energy.

With the help of the University of Missouri's Northwest Extension Office, Rock Port harnessed its high concentration of wind resources to develop a wind energy system suitable for utility-scale wind development. According to the U.S. Department of Energy, Northwest Missouri contains a number of locations with potential suitability for wind development.

According to the St. Louis Business Journal, wind farms will bring in more than $1.1 million annually in county real estate taxes, to be paid by Wind Capital Group, a wind energy developer based in St. Louis.

In addition to increased tax revenue, landowners can make money leasing part of their property to Wind Capital Group for the operation of wind turbines. Moreover, electricity from the wind turbines is expected to meet the community's energy needs for the next 15-20 years, without the threat of rate increases.

Rock Port decided to "go green" without any state economic incentive packages. In fact, Missouri does not offer any incentives for individuals or communities to switch to renewable energy resources or adopt greener energy policies.

What do you think would make a good incentive package? Let's brainstorm some realistic incentive packages for Missouri's energy future.

Solid waste can spoil the environment and pose risks to human health unless it is properly managed. The state and most counties and cities have laws and regulations for solid waste management. State law requires permits and engineering controls for operations such as landfills, trash transfer stations, recycling centers and waste tire storage facilities. Operators of such businesses are required to have plans to ensure that the facilities are not causing surface or groundwater contamination, air pollution, or public nuisance. Here are some examples of legal obligations imposed: An operator of an active landfill has to cover exposed trash with soil before the end of each operating day to prevent blowing litter. A closed landfill is required to be covered with a thick cap that has a gentle slope and is covered with grass to prevent erosion and to keep water from passing through the trash and running off into streams and lakes. Waste tires have to be stored in a way that does not allow water to collect and attract mosquitoes because such insects can transmit dangerous diseases.

The Department of Natural Resources is responsible for the state solid waste permit programs and conducts regular inspections of facilities. When an operator is not in compliance with the permit or regulations, the Department may ask the Attorney General to file a lawsuit to force the violator to pay penalties and fix the problems caused by the violations.

Leaving solid waste anywhere other than at a permitted facility, or burning it instead of properly disposing of it, is illegal under state law. Violators may be required to pay to civil penalties and to clean it up. In some cases, the violators can face criminal penalties. There are limited exceptions for related to farming and manufacturing operations, and individuals may be allowed to dispose of personal waste from their own residential activities on their own property, so long as they do not create a public nuisance or affect public health. Questions regarding the proper disposal of solid waste can be directed to county or city health departments, solid waste management districts, the Department of Natural Resources, or the Attorney General.

Raw milk and products made with it are those that have not gone through the pasteurization process. Pasteurization kills harmful organisms by heating the milk to a specific temperature for a set length of time.

In addition to bacteria found in raw milk that may cause illness, it also may be contaminated with E. coli, which can produce toxins that cause a condition called hemolytic uremic syndrome (HUS). HUS is a serious, life-threatening complication that can cause severe, bloody diarrhea, injury to the kidneys and kidney failure. Half of all people with HUS-related diarrhea require dialysis, and three to five percent of these people die. Overall, HUS occurs in about 10 percent of those infected with E. coli. This condition can be especially serious in young children, senior adults and people with weakened immune systems.

Raw milk products can also carry Listeria bacteria that put pregnant women and their unborn or newborn children at risk. Listeria can cause miscarriage, fetal death or illness or death of a newborn. These bacteria can also put the unborn baby at risk even if the mother does not feel ill. Additionally, raw milk can also carry bacteria that cause typhoid fever, tuberculosis, diphtheria and brucellosis.

Raw milk products that should be considered unsafe include soft cheeses such as Brie and Camembert, and Mexican-style soft cheeses such as Queso Fresco, Panela, Asadero and Queso Blanco, unless they are made from pasteurized milk. Other products that could be considered unsafe if made from unpasteurized milk include cream, yogurt, pudding, ice cream and frozen yogurt.

Some people believe that consuming raw milk and raw milk products have benefits over consuming pasteurized milk and milk products, like greater nutritional value, vitamins that are present naturally rather than added, and even protection against tooth decay. Research, however, has shown no benefit from raw milk over pasteurized milk.

Section 196.935 says that only pasteurized graded fluid milk and fluid milk products shall be sold to the final consumer (or to restaurants, soda fountains, grocery stores, or similar establishments) except that an individual may purchase and have delivered to him for his own use raw milk or cream from a farm.

The Soil and Water Conservation Program is a state-funded incentive program designed for the purpose of saving soil and water throughout the state through erosion abatement and sediment control on agricultural lands. In 1984, voters passed and continue to approve a 1/10 of 1% soil and water conservation and parks tax to fund state parks and to conserve soil on Missouri's agricultural lands. The cost-share program is intended to provide financial incentives to landowners to install erosion control practices that they would not otherwise install.

The Soil and Water Districts Commission sets all rules and policies governing the state cost-share program and reviews them as needed or as requested by local soil and water conservation districts. Funds authorized for cost-share assistance on erosion control practices, incentives or demonstration practices are allocated to local soil and water conservation districts. Annually, the commission approves a list of eligible cost-share practices that may be implemented by the local soil and water conservation district. During the annual review of the eligible practice list, the commission considers the current use of each practice and the relative needs for the practice.

Each locally elected soil and water conservation district board of supervisors is given the authority to manage the district's cost-share program within the rules and policies that govern the cost-share program. The district can only utilize those practices approved by the commission.

Landowner claims for cost-share can be denied when they do not comply with program rules. The commission will either approve or deny a claim for cost-share if it is alleged that the practice does not comply with the program rules. A landowner must agree to maintain the practice as approved for a period of years, usually 5 or 10. If the landowner alters or fails to maintain the practice, the district may demand a pro-rata return of the state's cost-share monies.

The Soil and Water Conservation Districts Commission also oversees the Agricultural Non-point Source Special Area Land Treatment Program (AGNPS SALT). The SALT Program addresses soil erosion and reduces or prevents agricultural non-point source pollution in targeted watersheds. Types of agricultural non-point source pollution include soil erosion, excessive nutrient loading from animal waste runoff, nutrient and chemical loading from crop areas, and increased nutrients and chemicals in water supplies caused by improper animal waste management.

Local soil and water conservation districts identify watersheds with existing water quality problems and apply for AGNPS SALT projects from the Soil and Water Districts Commission. The Soil and Water Districts Commissions decides which proposal will be approved as AGNPS SALT projects.

The Soil and Water Conservation Program also updates Missouri soil surveys and provides detailed maps of the different soils throughout the state. Soil scientists also provide soil assistance to landowners and other agencies to effectively make proper soil resource decisions.

The Attorney General provides legal counsel to the Commission and represents it in litigation. Questions concerning practices eligible for state cost-share can be directed to the local district office or the Department of Natural Resources.

Is this program a priority for Missouri in the 21st Century? Should Missouri continue to actively promote soil conservation, or should we focus on other objectives and allow federal regulators to handle these issues?

The federal Environmental Protection Agency reports that 290 million scrap tires are generated each year. Missourians alone generates approximately 5 million scrap tires each year.  A variety of pests, including mosquitoes capable of carrying the West Nile Virus, breed and live in old tires. Tires also take up much-needed landfill space. Tires release harmful pollutants into the environment, particularly if they catch fire. One passenger car tire may produce 2 gallons of oil when burned. And they mar the beauty of Missouri's rolling hills and blight our urban landscapes.  Its easy to see why we have to do something about waste tires.

Missouri law prohibits the dumping of solid waste. Section 260.270.1(1), RSMo. This includes scrap tires. Scrap tires may only be taken to or disposed of at facilities granted permits by the Missouri Department of Natural Resources. Scrap tire haulers and collection points also must have permits issued by DNR. Section 260.270.1, RSMo. Before being disposed of, scrap tires must first be cut, chipped or shredded. Section 260.270.1(6), RSMo. Violations of the tire law may be prosecuted as misdemeanors. Violators may also be ordered to pay civil penalties.

Missouri law imposes a fee of fifty cents for each new tire that is sold in Missouri. Section 260.273.2, RSMo. This tire fee is deposited in the Solid Waste Management Fund, which was established to provide a funding resource that could be directed to a variety of different projects, including cleanup activities and the elimination of illegal dumping operations in Missouri. Section 260.335, RSMo."

The Attorney General's Office has prosecuted numerous cases that lead to the cleanup of illegal scrap tire dumps.  We will continue to work with the Missouri Department of Natural Resources to address waste tire sites when they arise.  If you know about a waste tire site with more than 500 scrap tires, you can submit a complaint to us online by clicking here.

The Lewis and Clark State Office Building, which houses the Missouri Department of Natural Resources, was completed in Jefferson City in March of 2005. This was Missouri's first "green building" to receive the highest platinum ranking awarded by Leadership in Energy and Environmental Design (LEED). The building cost approximately $17 million to construct, but the average energy costs for the Lewis and Clark State Office Building are about half those for the average state building.

The U.S. Green Building Council founded the LEED Green Building Rating System, which is a nationally recognized third-party certification program that supports green building design, operation, and construction. The ratings consist of silver, gold, and platinum. More information about the LEED-certification program can be obtained at http://www.usgbc.org. 

In September of 2005, the Alberici Corporation headquarters in St. Louis became the state's second platinum LEED-certified building. In 2007, St. Louis was ranked #7 in the US for the most LEED-certified buildings. Kansas has received a gold rating for its EPA Region 7 Office located in Kansas City, KS. Illinois is not too far ahead with one gold and two platinum LEED-certified buildings.

Currently Portland, OR and Seattle, WA are tied for the most LEED-certified and registered projects. In 2000, Seattle became the first city in the US to adopt a city-wide sustainable building policy. The policy requires all city construction projects (both new construction and remodeling) over 5,000 square feet to obtain a silver LEED-certification. The city is also encouraging the private construction sector to incorporate sustainable materials and methods into future projects.

It is estimated that green buildings cost about 0.5 to 6.5 percent more to build than a non-green building. This increase in cost can be very significant when applied to large municipal projects, but the long-term savings in energy costs have always been emphasized as the selling point for these buildings. The New Building Institute and CoStar Group both recently released studies confirming that energy savings are significant in LEED-certified and ENERGY STAR buildings. For more details about the two studies, click here.

As we are entering into what some call an "energy crisis" and the price of oil continues to rise, the cost of heating and cooling homes and business is drastically rising as well. Should Missouri's state funded building projects be required to obtain LEED certification? Is Missouri ready to be a leader in sustainable living? How can Missouri government help encourage green building?

The U.S. Environmental Protection Agency strengthened its national ambient air quality standard for ground-level ozone, the primary component of smog. The new rule, which reduced the amount of allowable ground-level ozone from 0.080 parts per million to .075 parts per million took effect on March 12, 2008.

The Clean Air Scientific Advisory Committee, a panel of experts appointed by EPA to make recommendations for the new standard, recommended that EPA lower its standard to somewhere between .060 and .070 parts per million. In spite of the discrepancy between the Committee's recommendations and EPA's final rule, EPA estimates that the revised standards will yield health benefits valued between $2 billion and $17 billion.

According to the EPA, breathing air containing ozone can reduce lung function and increase respiratory symptoms. The increased stress on respiratory systems can aggravate asthma, some heart conditions, lung disease, and other respiratory conditions. Ozone exposure also has been associated with increased susceptibility to respiratory infections, medication used by asthmatics, doctor visits, emergency department visits and hospital admission for individuals with respiratory disease.

In addition to health effects, ozone exposure can cause damage to sensitive vegetation and trees due to reduced growth and productivity, increased susceptibility to disease and pests, and damaged foliage. Ozone exposure can also cause reduced or sub-standard crop yield.

EPA last reviewed the national ambient air quality standard for ground-level ozone in 1997. In light of the twelve-year gap between EPA's ozone studies, should EPA have adopted the stricter standard advocated by the Clean Air Scientific Advisory Committee? Should Missouri support the new standard?

According to the Centers for Disease Control and Prevention ("CDC"), the West Nile Virus is a potentially serious arbovirus (insect-borne virus) that infects the central nervous system. Approximately 150 people infected with West Nile Virus develop serious neurological symptoms from the disease. Approximately 20 percent of people infected with West Nile Virus develop mild symptoms, and the remaining 80 percent of people infected with West Nile Virus do not show any symptoms at all.

In 2007, 77 Missourians reported West Nile Virus illness, and 5 of those people died from the disease. West Nile Virus generally emerges in mid-to-late July, but due to this year's flooding, mosquitos are expected to carry the West Nile Virus starting in June. In fact, the St. Louis Post-Dispatch reported the first case of West Nile Virus in Illinois and Missouri today.

West Nile Virus is transmitted by the bite of an infected mosquito or, in rare cases, through transfusions, transplants or mother-to-child. Mosquitoes become infected when they bite infected birds.

To protect the public from the health threats associated with West Nile Virus, the CDC recommends the initiation of surveillance after mosquitoes become active in the Spring. An effective surveillance program includes bird morbidity/mortality surveillance, live bird surveillance, horse health surveillance, mosquito-based surveillance, and human case activity surveillance.

Are our state and federal health agencies doing enough to monitor for West Nile Virus?  In light of the current flooding and increased risk for infection, should Missouri take the threat of West Nile Virus more seriously and make an enhanced surveillance program an immediate priority?