Fall 2010: Vol. 14, No. 3

Supreme Court Lets Pesticide Victory Stand

Washington, D.C. – The pesticide industry has again been rebuffed in its attempt to exempt the spraying of pesticides into lakes, ponds, and streams from the Clean Water Act’s permitting program. On February 22, the U.S. Supreme Court refused to consider a challenge to an order by the Sixth Circuit Court of Appeals that nullified a 2006 EPA rule granting the exemption.

The decision marks an end to four years of litigation over the illegal rule, which was adopted by the Bush Administration at the urging of pesticide manufacturers and agribusiness groups. NELC, helping to lead a nationwide coalition of attorneys, sued EPA on behalf of Environment Maine and the Toxics Action Center, and in 2009 won a strongly-worded ruling from the Sixth Circuit rejecting the Bush Administration’s position as contrary to the plain language of the Clean Water Act. Several industry groups asked the Sixth Circuit to reconsider its decision, but were denied.

Unwilling to submit to that court’s judgment, and apparently hoping to woo conservatives on the higher court, the industry groups then petitioned for Supreme Court review, lining up a host of amicus parties, including 38 sitting members of Congress, to file written briefs in support. Despite this display of industry influence, the Supreme Court accepted NELC’ s position and announced in February 2010 that it would let the lower court ruling stand.

“Now the focus shifts to EPA,” said NELC attorney Joe Mann. “The agency has a clear mandate to develop meaningful permits for these discharges that will protect our nation’s waters from the harmful effects of pesticides.”

NELC Will Sue To Clear The Air At Nation’s Largest Refinery

Houston, TX – On July 7, NELC attorneys announced that they intend to sue ExxonMobil Corporation in federal court for thousands of violations of the federal Clean Air Act at its Baytown refinery and chemical plant complex. The suit would be the third case filed by NELC since 2008 to stop illegal air emissions at facilities along the Houston Ship Channel.

“This is the largest refinery in the country, and it should be setting an example of responsible environmental citizenship.” JOSH KRATKA, NELC

ExxonMobil’s air emissions are governed by controversial “flexible permits” issued by the Texas Commission on Environmental Quality, which have been criticized by U.S. EPA as being too lenient. In two separate notices sent to the company, NELC alleges that persistent “upsets” at the complex-equipment breakdowns and other malfunctions-have resulted in the release of more than ten million pounds of illegal pollution over and above the amounts already allowed by these lax permits.

Pollutants released from the ExxonMobil complex include:

• benzene and 1,3-butadiene, which are known to cause cancer;
• sulfur dioxide, which causes respiratory problems and acid rain; and
• volatile organic compounds and carbon monoxide, which contribute to the formation of ground-level ozone, or smog.

The NELC notices detail hundreds of additional violations, such as improper operation of flares, monitoring failures, and missing or improperly operated equipment.

When state and federal environmental agencies fail to stop companies from violating the law, the Clean Air Act allows private citizens to file an enforcement suit after providing 60 days notice to the violator and the agencies. The notices to ExxonMobil were sent on behalf of Environment Texas and Sierra Club.

“The State of Texas has not only bestowed overly generous emission limits on Exxon’s Baytown refinery and chemical plants, it has compounded the problem by failing to effectively enforce even those weak limits,” explained NELC Senior Attorney Josh Kratka. “This is the largest refinery in the country, and it should be setting an example of responsible environmental citizenship.”

Fighting Aquatic Pesticides: Interview With Gail Palmer

Gail Palmer works with POWR (Protect Our Water Resources) West, a non-profit organization in western Massachusetts dedicated to educating the public about the risks of pesticides and the availability of non-toxic alternatives. Because of the decision by the Sixth Circuit Court of Appeals invalidating a Bush-era exemption (see pg. 1, “Supreme Court … “), aquatic pesticides must now be regulated un der the Clean Water Act, although the extent of the ruling’s practical impact is still unclear.

Why should we be concerned about pesticides?

Pesticides are, by definition, toxic to certain life forms, and their harmful effects often are not limited to the pests they are meant to kill. Too often people assume that pesticides are safe for humans and the environment when inadequate study has been done to prove this. For example, only last year did EPA start testing a long list of widely used pesticides to determine whether they are endocrine disruptors -chemicals that can cause adverse developmental, reproductive, neurological, and immune system effects.

Why do we depend on pesticides? 

Chemical treatments are quick and can be cost-effective if one doesn’t factor in the costs to the environment and public health.

Are there alternative ways to eradicate nuisance weeds? 

Yes; we are limited only by our creativity. Initially, we need to stop the cycle that leads to overgrowth: lawn fertilizer and leakage from septic systems drain straight into our waterways, propagating the weeds. Beyond this, benthic barriers, or “blankets” placed over infested areas, have been successful in blocking sunlight and thus killing the vegetation.  Mechanical weed -pulling has also has been successful in some lakes.

The court’s decision gave EPA two years (until April 2011) to develop a permitting program for pesticide applicators. What should these permits include?

EPA should require analysis of alternatives to pesticides, including methods to prevent overgrowth. It should also consider requiring comprehensive watershed management plans. Here in Western Massachusetts, some communities have used such plans to identify nutrients from upstream agriculture and neighboring septic and drainage systems, and to analyze opportunities for breaking the overgrowth cycle by looking at the sources that support the growth of aquatic vegetation. Some communities use integrated management plans that include spot treatments of pesticides in conjunction with non-toxic alternatives. Such planning may be more complicated, but it is working here because it allows local communities to play a meaningful role in managing an issue that directly affects their well-being.

What effect will the Sixth Circuit’s ruling have?  

Although it’s not a silver bullet, I’m hoping that the initial, perhaps psychological, effect will be to cause people to stop and think about the impacts of pesticides. But the ultimate impact will depend on the substance of EPA’s permitting process. Industry groups have been lobbying hard for “rubber-stamp” permits that make no real changes, and it is up to us to make sure that this doesn’t happen.

Cleanup Begins At Rhode Island’s Easton’s Bay

Newport and Middletown, RI –In2008, NELC attorneys began two Clean Water Act lawsuits to address longstanding bacterial contamination in the waters and beaches near Newport, Rhode Island.  The suits, against the City of Newport and the adjacent town of Middletown, tackle two distinct problems: overflows from Newport’s sewer system into Newport Bay; and sewage overflows from Middletown , and stormwater discharges from Newport and Middletown , into Easton’ s Bay. This second problem has now been moved significantly closer to a solution. 

As noted by Newport resident Ted Wrobel, a plaintiff in both lawsuits, the beaches along Easton’ s Bay have been valued as swimming areas by local residents and vacationers alike since prior to the Revolutionary War. In recent decades, however, the state Department of Health has had to close these beaches on a regular basis because of high bacteria counts. 

In January, NELC attorneys joined Middletown’s attorneys in filing a consent decree in federal district court in Providence, Rhode Island, to settle the lawsuit against Middletown. The consent decree defines a clear path to ending the sewer overflows and stormwater pollution, with penalties for failing to meet deadlines. By the end of 2010, Middletown is required to analyze feasible solutions to the overflows, and to begin implementing a construction plan designed to eliminate all overflows. The town is also required to evaluate a set of storm water alternatives, and to implement one that is design ed to ensure compliance with water quality standards in Easton’ s Bay.

Meanwhile, Newport is following through on its plans to build an ultraviolet treatment system to reduce bacteria levels in the stormwater it discharges onto Easton’ s Beach. The city sought and obtained federal funding for the project, and NELC attorneys are in negotiations with the city as to the operating and monitoring standards for the treatment facility once it is built.