EPA Region 7 Reaches $112,684 Settlement with Albaugh, LLC for Alleged FIFRA Violations

EPA and Albaugh, LLC recently reached a $112,684 settlement to resolve allegations that Albaugh violated the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”) by distributing pesticides that were misbranded and contained ingredients that did not match the products’ confidential statements of formulation. The significant penalty underscores EPA’s continued focus on pursuing pesticide registrants for violations of FIFRA – with a particular emphasis on noncompliant pesticide labels. Furthermore, the fact that the alleged violations were the result of a 2013 inspection of Albaugh’s St. Joseph, Missouri facility is a reminder to regulated entities that enforcement may occur years after a violation is discovered. Accordingly, maintaining relevant documentation and institutional knowledge after an inspection can be critical for responding to or defending a future enforcement action.

FIFRA prohibits the distribution or sale of misbranded pesticides. A pesticide is “misbranded” under FIFRA Section 2(q)(1)(A) if its labeling is false or misleading in any particular. This includes, among other things, when a pesticide’s label does not contain necessary directions for use (FIFRA Section 2(q)(1)(F)) and when a label does not contain a warning or caution statement which may be necessary to protect human health and the environment (FIFRA Section 2(q)(1)(G)). FIFRA Section 12(a)(1)(C) also makes it unlawful for any person to distribute or sell a registered pesticide which has a composition that is different than the composition in its confidential statement of formula.

Albaugh’s alleged violations were discovered during an inspection of Albaugh’s pesticide products that were fully packaged and ready for shipment. The inspector photographed product labels, collected certified copies of product labels, took samples of product for analysis, and reviewed and copied invoices for the sale and shipment of products. EPA later used these documents to substantiate its allegations against Albaugh.

A copy of the signed Consent Agreement and Final Order can be accessed here.

Coyote Ugly – Criminal Conviction for Unlawful Use of Pesticide Which Caused Coyote Deaths

On Sept. 27, 2016, Ted Nelson, Jr. was sentenced to eight months in custody with one year of supervised release upon payment of $2,500 in restitution following a two-day trial in April for alleged violations of the Federal Insecticide, Fungicide and Rodenticide Act (“FIFRA”). The conviction arose from allegations that between Jan. 1, 2015 and May 12, 2015, Mr. Nelson knowingly and with wanton disregard for the consequences of his actions, injected the restricted use pesticide Carbofuran (aka Furadan 4F) into the carcasses of cows in order to kill predators, including coyotes. The pesticide used by Mr. Nelson was extremely toxic to wildlife and its label strictly prohibited it from being used for baiting purposes. Several animals, including coyotes and an adult Bald eagle, were killed as a result of ingesting Carbofuran-tainted carcasses.

This case underscores an oft-overlooked fact about FIFRA – that it not only regulates the manufacture, sale or distribution of pesticides, but also governs the use of pesticides and strictly prohibits the use of any pesticide by any person in a manner inconsistent with the pesticide’s label.

You can read more about the case in the Department of Justice’s press release, accessible here.

Recent Sierra Club v. Dominion Power Lawsuit Could Open the Flood Gates for Clean Water Act Citizen Suits

The U.S. EPA’s National Pollutant Discharge Elimination System (“NPDES”) program is the cornerstone of Congressional efforts to reduce water pollution from point source discharges. This year marks the 44th anniversary of the 1972 Clean Water Act Amendments, which first established the NPDES program, but after all these years the scope of the program is still a source of constant litigation. One of the most recent and significant lawsuits to address the scope of the NPDES program is Sierra Club v. Virginia Electric and Power Company [d/b/a Dominion Virginia Power], No. 2:15-cv-00112, which is currently pending in federal court in the Eastern District of Virginia. This case and a series of similar recent lawsuits throughout the country have the potential to greatly expand the NPDES program and the type of discharges that must be permitted.

The Dominion court held a four-day bench trial in June of this year, and the court could issue a decision any day now. Although the court’s decision would not apply in other jurisdictions, the outcome will be important to watch for several reasons:

  1.  This is not an isolated lawsuit. There have been several other citizen suits in just the last few years alleging that discharges to groundwater have violated the Clean Water Act. It is entirely conceivable that there will be more citizen suits addressing this issue in the near future.
  2. The 4th Circuit has not yet addressed whether the NPDES program governs groundwater seeps. And if the court’s ultimate decision in Dominion is appealed to the 4th Circuit, the 4th Circuit could create a split with the other Courts of Appeals that only the U.S. Supreme Court could resolve.
  3. Although the Dominion lawsuit involves disposal facilities for CCR, the principles at issue could easily be applied to other types of landfills, lagoons and surface impoundments that many industrial operations utilize.

I recently published an article with more background and detail on Sierra Club v. Dominion.

Superfund Environmental Contamination Case Recently Reversed by 8th Circuit

The 8th Circuit Court of Appeals recently reversed class certification in Ebert v. General Mills, Inc. involving alleged environmental contamination. The decision highlights the complexities faced in putative class action toxic tort cases, especially those involving vapor intrusion. Ebert stresses the fact that causation, liability and damages determinations are not only inextricably linked, but also that these concepts often involve highly individualized assessments that may not be suitable for resolution in class actions.

I recently published an article on this decision with more background and detail on this decision.

EPA Committed to Preserving Formaldehyde Focus

On July 27, 2016, the EPA issued the pre-publication version of its Final Rule on Formaldehyde Standards for Composite Wood Products. The EPA worked closely with the California Air Resources Board to ensure consistency with CARB’s existing requirements for composite wood products.

Under the Final Rule, in August 2017, composite wood products sold, supplied, manufactured or imported must be labeled to be compliant under the new Toxic Substances Control Act Title VI. The EPA is also setting procedures to establish eligibility for third-party certification and accreditation bodies.

I invite you to read more about the EPA rule in an article I recently published.

Taft Environmental Attorneys Deveau and Gardner Successfully Represent Client in Insurance Coverage Dispute

On July 25, U.S. District Judge Jon E. DeGuilio denied Old Republic Insurance Co.’s motion for summary judgment against Taft client Gary/Chicago International Airport Authority. The judge ruled that the absolute pollution exclusion in 16 policies that the insurer issued to the Authority can’t be enforced under Indiana law because it doesn’t list any specifically excluded pollutants or contaminants. Taft attorneys Frank Deveau and Melissa Gardner represented Gary/Chicago International Airport Authority in this win. Deveau is quoted in the Law360 article about the case titled “Insurer’s Pollution Exclusion Not Enforceable, Judge Says.” Read the article here. (Law360 subscription required)

Bilott and Team Score Another Victory With $5.1M Verdict Against DuPont

Taft environmental partner Rob Bilott’s work against chemical pollutants in drinking water scored another victory yesterday. An Ohio federal jury awarded $5.1 million to cancer survivor, David Freeman, who says DuPont’s chemical dumping caused his cancer and found DuPont liable for actual malice. Also assisting in this most recent trial is Taft partner David Butler.

The following articles outline the latest victory in more detail:

U.S. Supreme Court Holds Clean Water Act Jurisdictional Determinations Subject to Judicial Review

A recent unanimous decision by the U.S. Supreme Court, U.S. Army Corps of Engineers v. Hawkes Co. Inc., held that an approved jurisdictional determination by the U.S. Army Corps under the Clean Water Act was a final agency action subject to judicial review. Although the scope of the court’s decision will likely be litigated in the future, it appears to provide for the first time an avenue for real estate developers, farmers and other property owners to determine with certainty if they must obtain a permit under the Clean Water Act when working in wetlands and other waters.

I recently published an article with background on the issue and more details on the decision.

NPDES Regulations: New Proposed Changes

EPA recently published a wide-ranging series of proposed changes to the National Pollutant Discharge Elimination System (“NPDES”) regulations. While EPA does not believe that its proposed revisions will generally result in new or increased workload or information collection by authorized states or the regulated community, regulated entities should familiarize themselves with EPA’s proposed changes to determine any adverse or beneficial impact on their activities.

The proposed changes cover 15 topics in the following major categories:

•    NPDES permit applications
•    The water quality-based permitting process
•    NPDES permit objection, documentation and process efficiencies
•    The vessels exclusion
•    The Clean Water Act Section 401 certification process

I recently published an article on some of the more significant changes proposed by EPA.

The below table, taken from the EPA’s May 18 proposed rule change, briefly summarizes EPA’s proposed NPDES topics for revision.