Environmental Law Blog

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?

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. 

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?

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?

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? 

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 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.