Environmental Law Blog

Lead mining began in Missouri in 1720.  Today, Missouri's Lead Belt is the largest lead-producing area in the world.  After nearly 300 years of mining and smelting, however, the EPA will get tough on lead emissions in the air.  According to the St. Louis Post, the new standard proposed by EPA will be 80-93% more stringent than the current one. 

The health risks posed by lead -- particularly to children -- are well-documented.  So "getting the lead out" seems like a no-brainer.  But it isn't that simple.  As with Newton's Third Law of physics, for each action there is an equal and opposite reaction.  The environmental and public health benefits can be achieved only with increased costs for lead producers (and other companies that emit lead) to achieve emissions that meet the new standard.  The industry may pass those costs on to consumers or workers in one way or another.  That doesn't mean we shouldn't move ahead with environmental progress, only that we must be cognizant of how such changes affect all Missouri citizens.  As you follow this blog, you will see that this is a common theme in environmental law.  No progress is made in a vacuum.

With that in mind, what will this new standard mean for the communities with children affected by smelting, and what about those that rely on the mines and smelter for jobs and taxes for public services?  Since changes are being made for the benefit of all Americans, should others share in any financial burdens faced by these Missouri communities and citizens?  Tell us what you think. 

Each day, Americans benefit from the environmental laws and regulations passed by federal, state and local governments. Unfortunately, those laws and regulations can be cumbersome to read and understand. So the Attorney General's Office has put together a primer on each of the major, federal environmental regulatory schemes. Today, we will talk about the Clean Air Act. In future posts, we will discuss other areas of environmental law, like the Clean Water Act and the Resource Conservation and Recovery Act.

The Clean Air Act, located at 42 U.S.C. § 7401, et seq., is largely based on regional ambient air quality standards. Ambient air is the outside air you breathe each and every day. Under the Clean Air Act, Congress directed the U.S. Environmental Protection Agency (EPA) to develop ambient air quality standards for each of six criteria pollutants. The criteria pollutants are sulfur oxides, particulate matter (commonly referred to as smog or soot), carbon monoxide, ozone, nitrogen dioxide and lead. The criteria pollutants were selected because of the dangerous effect they can have on human health if exposure reaches certain levels.

In order to implement the national ambient air quality standards, or "NAAQS," the Clean Air Act allows states to develop their own State Implementation Plans, or "SIPs." The SIP must provide regulatory controls designed to meet the ambient air quality standards found in the Clean Air Act according to air quality control regions. Generally speaking, the SIP can provide stricter regulatory controls if the state deems it necessary in order to comply with the NAAQs in certain air quality control regions. In Missouri, however, that is not the case.  Section 643.055, RSMo, basically precludes the Missouri Air Conservation Commission from enacting requirements that are stricter or that will be imposed sooner than mandated by federal law.  In any event, each air quality control region is categorized as attainment if it is meeting the NAAQs; nonattainment if is not meeting the NAAQs; or non-classifiable if the EPA does not have sufficient data to classify the region as attainment or nonattainment. The EPA has the option to approve or deny each state's SIP based on whether it believes the state's SIP will adequately implement the Clean Air Act's goal of achieving attainment in all of the nation's air quality control regions. If the EPA denies the SIP, then the EPA must develop a Federal Implementation Plan, or "FIP" for the state.

The last post explained the broad ambient air protection inherent in the Clean Air Act and the NAAQS, and this post builds on that information. 

In addition to the national ambient air quality standards as enforced by SIPs or FIPs, states also must enforce New Source Performance Standards, or "NSPS," National Emission Standards for Hazardous Air Pollutants, or "NESHAPS," and New Automobile Standards. NSPS apply to specific categories of pollutants that must be regulated if emitted from new stationary, or industrial, sources. Under this program, new pollution sources are even allowed to offset permitted emissions by reducing emissions from old sources in some circumstances. Under the NESHAP, the source of the pollution is irrelevant. States can regulate in many ways to protect human health from hazardous substances, like arsenic, asbestos, benzene, beryllium, and mercury. Because of the New Automobile Standards, new cars have to meet tailpipe emission standards, which call for a 90% reduction in emissions.

In addition to the regulatory controls SIPs provide to bring nonattainment regions into compliance with the NAAQs, states must also prevent attainment regions from deteriorating into nonattainment regions. To achieve this goal, states must designate each air quality control region or portion thereof as either attainment or nonattainment for each criteria pollutant. If a new pollution source wants to emit any pollution into a region classified as attainment, then the new source must obtain a Prevention of Significant Deterioration, or "PSD," permit. PSD permits have successfully prevented attainment regions from earning a nonattainment classification across the country.

As you can see, the state and federal clean air laws are quite complex.  We have only just scratched the surface with this introductory overview of the Clean Air Act.  Let us know if you want to learn more about how the law protects the air we breathe.

County officials are planning to divide the unincorporated areas of St. Louis County into eight trash collection districts. The hauler who submits the most cost-effective bid will be awarded a three-year contract with the County to provide trash hauling services for one of the eight districts. Some County residents are upset because, they argue, the contracts could put small haulers out of business, thereby increasing the overall cost of trash collection. Additionally, they believe the County's plan eliminates their ability to choose their own trash hauler. On the other hand, proponents of the County's plan maintain that the consolidation of trash hauling schedules will reduce wear and tear on roadways.

St. Louis County is not required to provide trash collection services to the unincorporated areas of the County by state law, but the County enacted its own local ordinance, which requires the County to have a contract with a solid waste collection and hauling service for all of its residents. Section 260.247, RSMo, generally requires political subdivisions, including counties, to give two-year's notice to private entities currently providing trash collection services to an area if the political subdivision expands its collection services into an area currently serviced by private entities.

Opponents to the County's plan cite § 260.247, RSMo as requiring the County to provide the two-year's notice to private haulers. Proponents of the plan claim that the County's home rule charter exempts the County from the statute because it infringes on the County's police power to legislate, or regulate, freely.

What do you think? Should a "home-rule" county be exempt from statutes like this one? What implications would it have on the economy and the environment if certain local government bodies are not subject to the same solid waste management laws as others?

Last Tuesday, the St. Louis Business Journal announced that the Doe Run Co. recently completed the State Implementation Plan (SIP) for its Herculaneum lead smelter. The SIP was designed to improve air quality and meet the National Air Quality Standard for lead on an ongoing, consistent basis. As we discussed earlier, SIPs are state plans designed to meet federal ambient air quality standards by air quality region.

Jefferson County, where Herculaneum is located, is one of two counties nationwide classified as a non-attainment area for lead. The other county is located in Montana. For a map of the various attainment classifications across the country for all criteria pollutants, check out the EPA's online Green Book.

Lead mining and smeltering is an important economic industry in Missouri. However, lead can cause serious neurological problems in children and can even interfere with growth, lessen intelligence, harm hearing, and affect behavior, possibly making the child more excitable and less able to concentrate. In addition, lead can adversely affect reproduction in men and women and can cause kidney problems, high blood pressure, and memory and concentration problems. Renewed efforts to meet SIP requirements definitely bode well for Missouri in our quest to reach attainment classification, improve public health, and protect the environment.

But, do you think it will be enough? What else should Missouri do to ensure that Jefferson County is eventually classified as attainment for lead?

Do you know that you can calculate your carbon footprint online? Just go to the Nature Conservancy's website at http://www.nature.organd follow the "Carbon Calculator" link. Whether you agree with the science supporting or weakening the argument for global warming, everyone can agree that Missourians should work to reduce air pollution. Air pollution causes health problems, such as respiratory disease, asthma, lung cancer, and irritation of the eyes, to name a few. Most, if not all, industrial and individual sources of carbon emit additional air pollutants. In fact, electric power plants are the single largest industrial source of some of the worst air pollutants, including sulfur dioxide and nitrogen oxides. Both of these pollutants can cause severe damage to a person's respiratory system, sometimes resulting in death, and both pollutants cause acid rain.

Several states have taken steps to reduce their carbon emissions. In May 2007, Missouri Representatives Beth Lowe and Jenee M. Low referred proposed legislative bill HB 1268, or the Missouri Global Warming Solutions Act of 2007, to the Special Committee on Energy and Environment for research and review. The bill would amend the Missouir Air Conservation Law, located at chapter 643, RSMo., to include eight new sections relating to the reduction of carbon dioxide emissions, with penalty provisions. The bill is still with the Committee, but its drafters clearly had the reduction of Missouri's carbon footprint in mind.

In addition to state measures, individual citizens have taken notice of the carbon emission problem on a national level. To reduce your carbon footprint (and consequently reduce emissions of other harmful pollutants) you can follow these easy tips:

1. Walk or bike instead of driving a car or taking the bus. Cars and trucks run on fossil fuels, which release carbon dioxide into the atmosphere. Automobiles account for more than 20% of the total carbon emissions in the United States.
2. Host a telephone or video conference instead of traveling to a work-related meeting. The burning of jet fuel causes the release of carbon monoxide, which can have cardiovascular effects; nitrogen oxides, a powerful lung irritant; and volatile organic compounds, which can cause eye and respiratory tract irritation, visual disorders and memory impairment.
3. Switch to compact fluorescent light bulbs. Each fluorescent light bulb that replaces an incandescent bulb saves 100 pounds of carbon emissions over the life of the bulb.
4. Recycle, recycle, recycle. And, support the recycling industry by using recycled products as often as you can. Recycled glass, metal, paper and plastic use less energy to manufacture than products made from raw materials. Furthermore, recycled paper saves trees and, consequently, wildlife habitat.
5. Eat locally. Shipping food across the nation results in excessive air pollution emissions. If you eat foods grown locally, much less energy is needed for your groceries to go from the source to your dinner table.

What do you currently do to reduce your carbon footprint? Do you agree with the science supporting or weakening the argument for global warming? Should the Missouri General Assembly more enthusiastically support the Missouri Global Warming Solutions Act of 2007, or should the proposed bill stay in the Committee?

Some may say that all litigation is a nuisance, but that's not what this post is about.  Instead, this is about litigation related to land uses that amount to nuisances for neighboring landowners. 

Once upon a time, the Crown recognized that it was a "nuisance" for villagers to throw garbage and waste into the streets.  What was offensive in one man's house was just as offensive to all in the public streets and rivers.  So, in 1388, the Parliament passed the first known nuisance law. The "Dung Law" spoke in Olde English to today's problems,

"[f]or that so much Dung and Filth of the Garbage and Intrails as well as of Beasts killed, as of other Corruptions, be cast and put in Ditches, Rivers and other Waters, . . . that the Air there is greatly corrupt and infect, and many Maladies and other intolerable Diseases do daily happen, . . . to the great Annoyance, Damage and Peril of the Inhabitants, Dwellers, Repairers, and Travellers . . .; all they which do cast and lay all such Annoyances . . . in Waters . . . shall cause them utterly to be removed, avoided, and carried away . . . every one upon Pain to lose and to forfeit to our Lord the King . . ..

Missouri law largely embraces the ancient concept embodied in the Dung Law.  The Missouri Supreme Court ruled in 1971 that "an owner may use his property as he desires recognizing that same right in another." See Bower v. Hog Builders Inc., 461 S.W.2d 784, 793 (Mo. 1971).  Basically, a nuisance is a land use that unreasonably interferes with another's reasonable use of his or her land.  And this brings us back to another longstanding concept deeply rooted in British law -- and in Missouri law -- that "a man's home is his castle."  

Interestingly enough, a nuisance lawsuit is about preserving and protecting a landowner's property rights.  The law precludes one from using his land in such a way that it unreasonably interferes with another's right to the peaceful use and quiet enjoyment of her property. 

Should this centuries-old rule still be the law of the land?  Can you think of examples where the public good should trump one landowner's right to the peaceful and quiet enjoyment of her property?  More on our property rights later.

Missouri is known for its beautiful Ozark hills.  Unfortunately, those pastoral hills shelter some unsanitary and poorly-run dog breeding operations commonly called "puppy mills."

The Animal Care Facilities Act (ACFA), located at section 273 of the Revised Missouri Statutes, protects animals in the pet industry by requiring any animal shelter, pound or dog pound, boarding kennel, commercial kennel, contract kennel, pet shop, exhibition facility, dealer or commercial breeder to be licensed and inspected annually.

To work in the animal care industry, potential "dealers" must comply with the Missouri Department of Agriculture's (MDA) regulations that establish standards relating to adequate food water, shelter (including sanitation and ventilation), veterinary care, facility construction, handling, and transportation. The licensee must also keep records per shelters, pounds and dog pounds. Currently, 1,943 licensees are registered with the MDA statewide.

Last March, Attorney General Jay Nixon obtained a court order to stop the owner of a kennel in Gasconade County from selling or shipping any more dogs infected with parvovirus, a highly contagious viral disease. Nixon filed the lawsuit against Safe Haven Puppy Rescue and Rise-N-Shine Kennels, after inspectors from the Missouri Department of Agriculture (MDA) determined that the owner had recently sold and shipped three dogs that were diagnosed with parvovirus. This facility failed to meet minimum health and operating standards under the ACFA. The owner was ordered to rectify those deficiencies.

The Attorney General's Office is set to appear in Gasconade County Circuit Court today (Tuesday) to ask the judge to extend the injunction. If the injunction stands, the owner will not be able to sell any of her dogs in Missouri. And, any dogs already infected with parvovirus will remain quarantined in their kennels.

In this case, the ACFA effectively prevented the spread of a deadly, infectious disease. Can you think of any other measures the State should legally take when dealing with unlicensed dealers?  How can Missouri shake the mantle of being a"puppy mill" state? 

According to the EPA, more than 40% of our assessed waters still do not meet the water quality standards that states, territories, and authorized tribes have set for them. This amounts to more than 20,000 impaired waterbodies, including individual river segments, lakes, and estuaries.

The Clean Water Act protects impaired waters through the TMDL and section 303(d) programs. Under section 303(d), states, territories, and authorized tribes are required to develop lists of impaired waters that do not meet water quality standards despite the implementation of minimum pollution control technologies. The law requires that these jurisdictions establish priority rankings for waters on the lists according to their beneficial uses and develop TMDLs for these waters.

Although someone may try to tell your that "TMDL" stands for "too many darn lawyers", TMDL actually means "Total Maximum Daily Load." A TMDL is a calculation of the maximum amount of a pollutant that a waterbody can receive and still meet water quality standards.  It can be compared to an apple pie.  A baker must follow a specific recipe to prepare and bake an apple pie like Grandma used to make.  And when the pie comes out of the oven, everyone wants a slice and the baker has to divvy the pie up fairly.  Not everyone will be happy with the size of his or her piece.  The same is true with a TMDL.

To develop a TMDL, the state must first classify a waterbody for its beneficial use, i.e., drinking water supply, recreation, or aquatic life support. Once the beneficial uses are established, a TMDL is calculated for particular pollutants according to the waterbody's beneficial uses and the assimilative or carrying capacity of the waterbody. The TMDL must include a margin of safety to ensure that the waterbody can be used for the purposes designated by the state. The state then allocates a percentage of the TMDL to each of the pollutant's sources along the waterbody through the permitting process.  It sounds like a neat and tidy process, but in reality it is very complicated and often challenged by both environmental groups and industry. 

EPA publishes TMDL reports by region and state online.

Until the early 1970s, states, territories, and authorized tribes virtually ignored the TMDL program. That changed when the EPA started to feel pressure from citizen groups and legislators. Now, EPA takes the TMDL program and impaired waters list more seriously. In your opinion, is the TMDL program enough? Should the EPA and states be doing more to protect Missourians from polluted waters? What if the scientists are wrong about the maximum concentrations allowable before harm will occur to human health and environment?

Friday, Yahoo! News posted an article on its homepage highlighting the new organizational trend of cutting workweeks to four days. The companies cited express their desire to reduce fuel consumption, and consequently carbon emissions, as their primary motivation. Secondary benefits include helping their employees make ends meet by reducing their commuting expenses 20 percent and increased employee morale. The Columbia Police Department recently switched to four-day work weeks.  Police Officers now work four days each week, ten hours per day--though law enfrocement continues around the clock. 

The Attorney General's Office is unlikely to benefit from a "four day work week."  Statistically, the AGO employee works longer days on average than her counterpart in any other state agency.  When duty calls, we answer the bell.  The AGO has worked to reduce energy use, however.  For example, we use some flex fuel vehicles in our fleet, reduced the air cooling in our computer server room, use a bulletin board on our intranet site to encourage and facilitate employee carpooling, and so forth. 

What do you think the State of Missouri should do? How would you feel if government office buildings were only open 4 or 5 days a week instead of 5 or 6 days? Would the benefits outweigh the costs or vice-versa? Are carbon-based workplace changes an over-reaction?