USGS Releases Water And Sediment Priority Constituents Monitoring Report
By E. Lynn Grayson
The USGS has released a new report, Prioritization of Constituents for National and Regional Scale Ambient Monitoring of Water and Sediment in the United States, that addresses the methodology used to prioritize constituents to be assessed. This effort was undertaken in preparation for the third decade of the National Water – Quality Assessment Program (NAWQA) including the time period 2013-2023.
Constituents were prioritized by the NAWQA National Target Analyte Strategy Work Group on the basis of available information on physical and chemical properties, observed or predicted environmental occurrence and fate, and observed or anticipated adverse effects on human health or aquatic life.
The constituents were ranked in three tiers:
- Tier 1 with those having the highest priority on the basis of their likelihood of environmental occurrence in ambient water or sediment, or likelihood of effects on human health or aquatic life;
- Tier 2 for constituents of intermediate priority on the basis of their lower likelihood of environmental occurrence or lower likelihood of effects on human health or aquatic life; and
- Tier 3 of those with low or no priority for monitoring.
Overall, 2,541 constituents were assessed with 1,081 constituents identified for ranking in Tier 1. Constituent groups included volatile organic compounds in water; pesticides in water or sediment; pharmaceuticals and hormones in water or sediment; trace elements and other inorganic constituents in water or sediment; cyanotoxins in surface water; lipophilic organic compounds in sediment; disinfection byproducts in water; high-production-volume chemicals in water; wastewater-indicator and industrial compounds in water; and radionuclides in water.
USGS began the NAWQA program in 1991 to develop long-term and consistent information on U.S. streams, rivers, and groundwater, how the conditions are changing over time, and how natural features and human activities affect these features, according to the USGS website.
The USGS report is available at http://pubs.usgs.gov/sir/2012/5218/sir12-5218.pdf.
Wal-Mart Pleads Guilty And Agrees To Pay $82M Fine For Improper Disposal Of Hazardous Substances
By Steven M. Siros
On May 28, 2013, Wal-Mart entered a guilty plea with respect to charges filed by the Department of Justice alleging that Wal-Mart violated the Clean Water Act (CWA) at its stores in California and the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) at a recycling and repackaging facility located in Missouri. With respect to its California stores, Wal-Mart pleaded guilty to the illegal dumping of corrosive and hazardous liquid wastes into drains that led to publicly owned treatment works at multiple retail stores in Alameda, Contra Costa, Del Norte, Lake, Mendocino, Monterey, Napa, Sonoma, and Santa Clara counties. Wal-Mart agreed to pay $60 million to resolve the California CWA charges. With respect to its recycling and repacking facility in Missouri, Wal-Mart pleaded guilty to violations of FIFRA. According to the plea agreement, Wal-Mart failed to properly train its employees with respect to the required handling of pesticides that were returned to Wal-Mart. Wal-Mart is alleged to have sent these pesticides to its recycling warehouse in Missouri where the pesticides were mixed together and then offered for sale to customers in containers that were not labeled with the required registration, ingredients, or use information for the pesticides. Wal-Mart agreed to pay $14 million to resolve the Missouri charges.
Finally, Wal-Mart entered into a consent order with U.S. EPA pursuant to which Wal-Mart is required to implement a comprehensive, nationwide environmental compliance agreement to manage hazardous waste generated at its stores. The agreement includes requirements to ensure adequate environmental personnel and training at all levels of the company, proper identification and management of hazardous wastes, and the development and implementation of Environmental Management Systems at its stores and return centers. Compliance with this agreement is a condition of probation imposed in the above-referenced criminal cases. As part of this consent order, Wal-Mart also agreed to pay a $7.6 million civil penalty. To see a copy of the consent order, please click here.
Pesticide Use Data Now Available From USGS
By E. Lynn Grayson
The USGS recently made available detailed maps identifying annual usage of 459 pesticides throughout the U.S. The Pesticide National Synthesis Project manages pesticide data from 1992-2009 and provides specific statistics associated with pesticide use per crop and within each county.
The maps were developed for use in national and regional water-quality assessments. The USGS data was collected from surveys of farm operations and USDA statistics on annual harvest-crop acreage. This information was used to calculate use rates for each crop per year.
These maps show interesting information about the nature of pesticide use around the country. Data includes insight into the quantity of pesticide use per U.S. county as well as the specific crop growing in the same area.
The usage maps for all 459 pesticides can be accessed at http://water.usgs.gov/nawqa/pnsp/usage/maps/compound_listing.php.
Compliance With FIFRA Regulations Provides Defense From Product Liability Lawsuit
By Steven M. Siros
An Indiana appellate court recently affirmed summary judgment on behalf of The Dow Chemical Company and Dow AgroSciences, LLC (collectively "Dow"), in a personal injury lawsuit premised on alleged design defect and failure to warn claims. See Gresser et al. v. The Dow Chemical Company, Inc., et al. (Ind. Ct. App. April 30, 2013). Plaintiffs purchased a home that had been treated with the pesticide, Dursban TC. Shortly after moving into the home, plaintiffs allegedly experienced adverse health impacts that they attributed to the pesticide. Plaintiffs therefore filed product liability claims against Dow and negligence claims against the pesticide applicator.
Dow filed for summary judgment, arguing (1) that the Dursban was not a defective product and (2) that plaintiffs' claims were preempted under federal law. The trial court granted summary judgment, finding that Dursban was not a defective product and that plaintiffs' claims were preempted. On appeal, the Indiana appellate court noted that Indiana's Product Liability Act ("IPLA") provides a rebuttable presumption that a product is not defective where, before the sale, the manufacturer complies with all applicable codes, standards, regulations or specifications established by an agency of the United States or Indiana. Because Dow had registered the pesticide in compliance with the applicable FIFRA regulations, the court found that Dow was entitled to a statutory presumption that its product was not defective. Plaintiffs presented no admissible evidence to rebut this presumption, and therefore, the court found that Dow was entitled to summary judgment under the IPLA.
With respect to Dow's alternative preemption argument, however, the court found that the trial court's grant of summary judgment on this ground was improper. The court cited to Dow Chemical Co. v. Ebling, 753 N.E.2d 633 (Ind. 2001), noting that "the use of state tort law to further the dissemination of label information to persons at risk clearly facilitates rather than frustrates the objectives of FIFRA and does not burden an applicator's compliance with FIFRA."
To see a copy of this opinion, please click here.