Environmental Law Blog

Across the nation and in Missouri, the improper disposal of pharmaceuticals and other emerging microbial contaminants has evolved into a significant concern.

According to the Missouri Department of Natural Resources, pharmaceuticals enter the environment when medication residues pass out of the body into sewer lines or the items are flushed down the drain and into our wastewater treatment facilities. Pharmaceuticals can include prescription and over-the-counter medicines, dietary aids, any other product consumed by individuals for health reasons. Domestic sewage is considered a major source of pharmaceuticals in the environment. For tips on how to dispose of pharmaceutical wastes without harming your water supply, check out the Missouri Department of Natural Resources fact sheet.

Microbial contaminants are microorganisms that are discharged into wastewater treatment systems after manufacturing, industrial, common household, agricultural or other activities. The United States Geological Survey (USGS) is researching the most common specific sources of these sometimes dangerous contaminants as well as the most common pathways for microbial contaminants to our rivers and streams.

Why are these new contaminants so bad for the environment? Both pharmaceutical and microbial contaminants harm the beneficial bacteria, or "good bugs," that break down waste in septic systems or wastewater treatment plants. These wastewater treatment facilities are not engineered for pharmaceutical or microbial contaminant removal, so the contaminants are then released into nearby lakes, rivers or groundwater.

The USGS first studied the effects of wastewater and combined sewer overflows on national water quality in the Blue River Basin, Kansas City Missouri and Kansas from July 1998 through October 2000. A team of scientists studied the contaminants indicative of wastewater, including antioxidants, caffeine, detergent, antimicrobials, and pharmaceuticals. The team discovered that water quality in the basin was affected by human wastewater during regular periods and heavy rainfall periods, alike, suggesting that wastewater discharges that result from heavy rainfalls do not necessarily increase the likelihood of these contaminants getting into our drinking water-they are already getting there.

The USGS conducted its second national study on the Upper Shoal Creek Basin in Southwest Missouri from 1999 trough 2000. Scientists discovered that concentrations of nitrogen were unusually large, which could be almost entirely attributed to discharge from wastewater treatment plants. Scientists further concluded that the trend of increasing fecal coliform densities corresponded with precipitation rises and consequential human wastewater treatment discharges, rather than changes in land use or animal operations.

Drinking these contaminants through our public drinking water systems can be harmful, but scientists have not yet collected enough data to understand the potential effect of pharmaceutical and microbial contaminants in water on human health. Certain studies have also indicated that fish and plant wildlife are being adversely affected by the presence of these emerging contaminants in their habitats.

Unfortunately, the improper disposal of pharmaceuticals escapes the restrictions on water pollution set forth in the Clean Water Act. According to the Clean Water Act, any entity that causes or permits the pollution of the waters of the United States with a water contaminant constitutes a point source. But, generally, point sources are limited to companies, organizations, or farm operations.

What do you think Missouri should do about this wide-spread, growing problem? Currently, neither state nor local law restrict human disposal of pharmaceutical or microbial contaminants into wastewater treatment systems in Missouri or any other state. However, Columbia has joined several cities around the nation in investigating the pharmaceutical presence in its drinking water. The Columbian Missourian details the investigative plan, according to local health officials, in an April 22, 2008, article. Can you think of a creative solution?

An interesting column appeared in the opinion section of the Columbia Tribune today. The commentator offers several reasons to oppose Concentrated Animal Feeding Operations (CAFOs). We talked about some of the reasons to support CAFOs in an earlier post. What would you say to Mr. Midkiff to rebut his opposition argument?

Environmental problems come in all shapes and sizes.  Some are easy to fix and can be corrected with a little hard work and a shovel.  Others take time, money and expertise--things not everyone has at their immediate "disposal." 

It is easy to say that the responsible person should pay whatever it takes to clean up his or her mess.  Sometimes that is simply not possible.  A penniless person can cause a significant environmental impact without spending a dime just as easily as person who has money but ignores the law.  The law deals with the latter and ultimately solves the problem much more easily than it does with the former.  The law appropriately considers ability to pay, through complex computer models that can examine an individual's finances and determine whether they can in fact pay what is required.  It all comes down to this: when a defendant doesn't have two nickels to rub together, he will not be able to hire an engineer or a contractor to fix the failing drinking water system or wastewater treatment facility.  Another surprisingly common example occurs when the responsible person dies without cleaning up the mess -- and leaves little or nothing in the bank.  Sites like these are known as "widows & orphans." 

Today, we aggressively and steadfastly pursue compliance.  We do the best we can to creatively solve these difficult problems when the opportunity arises, but some sites simply languish.  Missouri needs a "widows & orphans" fund to provide the resources in appropriate cases to solve intractable environmental problems and thereby protect the public.  Short of a dedicated fund established by the state and managed by the AGO, how can Missouri better protect the public from these environmental problems?  Would you support the creation of a "widows & orphans" fund in the state treasury? 

The Attorney General's Office appeared before the EPA yesterday in order to provide comment on EPA's ongoing review of the National Ambient Air Quality Standards (NAAQS) for lead. (For a "primer" on the Missouri Air Conservation Law, see below).

EPA issued an Advance Notice of Proposed Rulemaking (ANPR), inviting input from interested industry professionals, government officials, and concerned citizens on policy options and other issues related to the EPA's NAAQS for lead. Specifically, EPA asked us (the public) for help in informing the EPA's future decisions on the adequacy of the current lead NAAQS.

The Attorney General's Office responded to EPA's call by agreeing with the Clean Air Scientific Advisory Committee's recommendation to substantially lower the level of the primary (public-health based) lead NAAQS.

The Attorney General's Office further recommended that the EPA evaluate the lead NAAQS based on the highest monthly reading, rather than the second highest, as proposed by some industry groups. Missouri believes that, due to the increased concern in public health circles regarding the gravity of the health risks posed by lead contamination, why not take the most health-protective stance . . . particularly when all data shows that the most vulnerable to lead poisoning are our children?

Finally, the Attorney General's Office recommended that the EPA require current lead contaminant sources to immediately develop new State Implementation Plans (SIPs) if they are located in areas that have been classified as "nonattainment" under the current NAAQs. The EPA's current proposal allows those known sources to use the SIPs developed under the old NAAQs for lead during a grace period of 5 years. The Attorney General's Office argued that these air contaminant sources should be required to immediately start assembling plans to meet the lower standard.

Missouri is the only state in the nation with an ambient air quality region classified as nonattainment for lead. We, therefore, have a much stronger interest in how nonattainment areas are treated under the proposed rule. Do you agree with the Attorney General's position? Or, should the EPA allow all lead sources at least five years to control their emissions?

As Missouri prepares to take on flood water from its northern neighbors, many are left wondering how a 500-year flood could happen twice in 15 years.

The terms "100-year" and "500-year" flood are used to describe the estimated probability of a flood event happening in any given year. Using historic weather and hydrograph data, experts can determine the estimated rate of flow or discharge of a river or creek. A 100-year flood has a 1 percent probability of occurring in any given year, and a 500-year flood has a .2% probability. Though unlikely, it is possible to have two 100- or even 500-year floods within years or months of each other. This is why we are hearing about the 100-year flood of 1993 and the 500-year flood of 2008, even though the floods are merely 15 years apart.

What does this have to do with environmental law, you ask? In 1944, Congress enacted the Flood Control Act, which charged the U.S. Army Corps of Engineers with the duty to provide quality, responsive engineering services to the nation including, among other things, planning, designing, building and operating massive civil works projects. Congress mandated the Corps to manage these projects to serve the dominant purposes of flood control and navigation, and to incidentally benefit a host of secondary purposes including fish & wildlife, water supply and recreation. Although the Corps must sereve many masters, the law is crystal clear that flood control is paramount when purposes collide. Everything else must yield.

Currently, the Corps is working with state and local levee districts to coordinate flood-fighting activities in Indiana, Minnesota, Wisconsin and Iowa. Immediately following the Floods of '93, the Corps planned and executed flood control strategies in all of the areas affected by the Floods of '93. Now we will find out if the Corps' work was sufficient.

The St. Louis Post Dispatch published an article this morning, highlighting Missouri's expected flood levels due to the extreme saturation and catastrophic flooding going on up North. As that water reaches Mississippi River towns, all Missourians can do is wait and hope the Corps's post-1993 flood improvements can withstand the pressure of all that water. Meanwhile, Missourians along the Missouri River and many other swollen tributaries are bracing for flooding, and hoping that this disaster doesn't spread any further.

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?

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?

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?