Monday, September 10, 2012

Scott's Fined for Contaminating Bird Seed with Pesticide

According to a release from the Environmental Protection Agency, Scotts Miracle-Gro was sentenced today to pay the highest criminal penalty and the highest civil penalty in the history of the federal pesticide program for eleven criminal violations of the Federal Insecticide, Fungicide, and Rodenticide Act "(FIFRA"). Scotts pleaded guilty to "illegally applying insecticides to its wild bird food products that are toxic to birds, falsifying pesticide registration documents, distributing pesticides with misleading and unapproved labels, and distributing unregistered pesticides."

In addition to paying a criminal penalty of $4 million, Scotts agreed to  pay more than $6 million in civil penalties and spend $2 million on environmental projects to resolves additional civil pesticide violations.  EPA said the penalties were appropriate for the "widespread company noncompliance with pesticide laws."

How does this happen?  Scott's is the worlds largest marketer of residential pesticides, who you would think as a corporation would want to protect its reputation.  However, Scott's admitted to applying a pesticide to its bird food products during storage even though the warning label stated the pesticide was "extremely toxic to fish and toxic to birds and other wildlife.” The illegally treated bird seed was sold for two years, even six months after an employee warned management of the dangers to wildlife.

Aside from the fact that they were caught, the only good news is that Scott's is contributing $100,000 each to the Ohio Audubon’s Important Bird Area Program, the Ohio Department of Natural Resources’ Urban Forestry Program, the Columbus Metro-Parks Bird Habitat Enhancement Program, the Cornell University Ornithology Laboratory, and The Nature Conservancy of Ohio to support the protection of bird populations and habitats through conservation, research, and education.

The existence of "widespread company noncompliance" in the country's major marketer of residential pesticides gives pause.  What level of million dollar penalties is needed for it to become economically advantageous to follow the law?

Monday, August 27, 2012

Bloomberg Supports Research to Make Fracking Safe

 On August 23rd, Mayor Bloomberg and George Mitchell, the designer of hydraulic fracturing for nature gas, announced in an op-ed article in the Washington Post that through their foundations they are supporting research to make fracking safe.  A day later the New York Times reported that Bloomberg Philanthropies was giving $6 million to the Environmental Defense Fund to get stronger regulations in the states that now allow fracking.  Mitchell's foundation is contributing $1.6 million.

Bloomberg successfully opposed fracking in the New York City watershed and has opposed fracking in the  Delaware River Basin. His turnabout seems to be based at least in part on his strong opposition to coal buring power plants and the air pollution they have caused in the northeast.  In the Post article, Blumberg and Mitchell cite for reasons for their support:

  • The new supply of natural gas through fracking should reduce the price of energy to consumers:
  • It should spur industrial job growth by lowering energy costs;
  • It will  reduce dependence on coal, which should improve air quality and fight climate change; and
  • It allows renewable energy to be integrated more easily into the electric grid.
The article calls for five principles for sensible fracking:
  • Full disclosure of chemicals used in the fracking process;
  • Better regulation of well construction and operation;
  • Minimal water consumption, protection of groundwater, and safe disposal of flowback;
  • Improved air pollution controls by stopping the leaks of methane to the atmosphere; and
  • Reduced impacts on roads, ecosystems and communities.
EDF has been active on fracking for some time.  The five principles announced by Bloomberg are already being advanced by EDF in their fracking critique, Getting It Right. EDF has a history of stepping up to work with industry.  Memorably, in 1990 EDF worked with McDonald's to find a way to reduce the solid waste produced by their restaurants, including elimination of the polystyrene "clamshell" package for hamburgers.  One can only hope their work here will bring safer operations to states already authorizing fracking and cause those not yet fracking to wait for improved regulations and policies. Unfortunately, the more they succeed, the less competitive become alternative energy sources.

Thursday, August 9, 2012

U.S. Fish &Wildlife Service Offers New Map of Threatened and Endangered Species

In New York we are guided by federal and state lists of threatened and endangered species.  A new feature offered by the U.S. Fish & Wildlife Service is a state-by-state map of the threatened and endangered species of the United States.  By clicking on New York, you will find stories on featured species along with links to the national program, laws and regulations, grants, programs for kids and other information.  

The site lists 19 federally-listed threatened and endangered species in New York, including the well known Shortnose Sturgeon, Karner Blue Butterfly, Indiana Bat, Bog Turtle, Piping Plover and Canada Lynx. Each species is linked to a species profile, including photographs, population, location, federal register documents, action plans, conservation plans, recovery status, critical habitat and other resources.  

The federal and state lists of threatened and endangered species play a significant role in regulatory permitting throughout the state.  This Fish & Wildlife map is a particularly useful service for applicants, agencies and citizens involved in permit proceedings.  

Wednesday, August 1, 2012

U.S. Fish & Wildlife Service Proposes to List an Endangered Species in the Marcellus Shale

It seemed inevitable that with fracking occurring in more than half the states, eventually it would run into conflict with the Endangered Species Act.  Last week, the Fish & Wildlife Service ("Service") proposed to list the Diamond Darter, an extremely rare fish once thought extinct but rediscovered in West Virginia in 1980.  According to a release from the Center for Biological Diversity, the proposed listing resulted from the settlement last year of litigation brought by the Center to accelerate listing decisions on 757 species.

The Diamond Darter is not likely to be found in New York.  According to the Center, the Diamond Darter was once found in Kentucky, Ohio, West Virginia, Indiana and Tennessee, but now survives only in the Elk River in West Virginia.  In the last thirty years, only fifty individuals have been collected. The Southeastern Fishes Council listed the Diamond Darter as one of the "desperate dozen", one of the twelve most endangered fish in the southeast.

The Service is proposing to protect the fish's "critical habitat" in West Virginia and Kentucky, including 122 miles along the Elk River. This habitat lies over the Marcellus and Utica shale in a region already affected by mountaintop removal coal mining, oil and gas drilling and increased interest in fracking.  However, at this time the Elk River is still considered a "high quality stream" by the West Virginia Department of Natural Resources, with over 100 species of fish and 30 species of mussels, including 5 federally listed mussel species.

The listing proposal notes that the Elk River watershed is one of the more densely drilled areas of the State,
with over 5,800 oil or gas wells in the watershed, and in the lower section of the Elk River, which
contains the Diamond Darter, over 2,320 active wells and 285 abandoned wells. The number of Marcellus Shale fracking wells in the Elk River watershed is relative low but expected to increase rapidly in the future.

The proposal notes many concerns with fracking:
"When compared to more traditional methods, Marcellus Shale wells usually require more land disturbance, and more water and chemicals for operations.  In addition to the size and length of any required access, 36
roads, between . . . 2 and 5 ac are generally disturbed per well. Each well also requires about 500 to 800 truck trips to the site. Construction of these wells in close proximity to the Elk River and its tributaries could increase the amount of siltation in the area due to erosion from the disturbed area, road usage, and construction."

"During the drilling process, each well may utilize between 7 and 15 million liters (2 and 4 million
ga) of water.  This water is typically withdrawn from streams and waterbodies in close proximity to the location where the well is drilled.  . . . .Increasing water withdrawals has been shown to be associated with a loss of native fish species that are dependent on flowing-water habitats.  Darters were one group of species that were noted to be particularly vulnerable to this threat."

The Service also notes impoundment, spills and other threats, summarized as follows:

"These threats are ongoing, severe, and occur throughout the species’ entire range.  We have no information indicating that these threats are likely to be appreciably reduced in the future, and in the case of gas development, we expect this threat to increase over the next several years as shale gas development continues to intensify."

The proposed listing is a textbook study of the myriad potential impacts of fracking on endangered species.  The proposal is open for public comment for sixty days from the date of publication in the Federal Register, expected imminently.

Excessive water withdrawals can reduce the quality and quantity of habit

Tuesday, July 31, 2012

Drought Underscores Importance of Supporting Local Farms

According to weather forecasts, crops in the southwestern Midwest will continue to bake as the region endures the most severe drought in decades.  Corn and soybean crops have been especially hard hit, which will cause prices for food, including corn products, beef, chicken and dairy products, to temporarily spike.
As a result, farmers in the Hudson Valley region may experience an economic boom this year as their crops sell for record prices. This temporary economic benefit is in addition to the growing local food economy. A recent article in the New York Times states that “the movement toward local food is creating a vibrant new economic laboratory for American agriculture,” which in turn fosters “more stable, predictable and measurable [local farm sales].”  PR Newswire reports that Jerry Cosgrove, Associate Director of the Local Economies Project and a local foods expert in the Hudson Valley, agrees with the New York Times article’s focus on “the fact that local food production is a great way to strengthen local economies.” In fact, the local food industry banked in at $4.8 billion back in 2008, a number that is sure to keep growing despite the poor economic climate.  
Economics aside, the drought reaffirms the need to support local agriculture to assure the continued availability of local food sources.  Local farmer's markets provide access to corn and other crops that may not be readily available in other parts of the country.
A quick review of available zoning laws reveals that nearly every community in Dutchess County allows agriculture as a permitted use.  However, communities can do more to encourage the continued growth of agriculture through zoning. For example, the Town of Red Hook has recently created the “Agricultural Business District” to support farming operations and related industries while discouraging residential development projects which often fragment important farmlands and result in conflicts between agricultural and residential uses.  Many uses that support agriculture, such as wineries, distilleries, cold storage facilities, farm equipment repair and agritourism uses are permitted and subject to a streamlined review process.  
Other methods that communities can use to support agriculture include purchasing development rights, requiring new residential devlopment to provide a buffer around existing farms,  permitting roadside stands in every district, and using an average density, rather than a minimum lot size, which allows for greater protection of open space.  More information on supporting farming with zoning can be found on the American Farmland Trust website.

Monday, July 30, 2012

EPA Announces Public Comment Period on Possible Cancellation of Pesticide Associated with Honey Bee Colony Collapse

Only July 27, the EPA announced in a Federal Register notice, that it is inviting public comment on the possible cancellation of the registration of clothianidin, the pesticide associated with honey bee colony collapse.  We reported previously that on July 19 the EPA denied a petition filed by beekeepers and honey producers, among others, asking for the emergency suspension of the registration of clothianidin.  EPA is now accepting comments on the agency's denial of emergency suspension as well as on the petition for permanent cancellation of the registration.

Interested persons may submit comments to EPA by referencing docket identification number EPA-HQ-OPP-2012-0344; FRL-9355-1. Comments may be submitted electronically by going to and following the instructions. Further information on how to submit comments is set forth in the Federal Register notice cited above.

NRDC Report Finds that State Disclosure Laws for Fracking Fluids are Inadequate and Poorly Enforced

NRDC recently released a report on state fracking chemical disclosure laws and their enforcement.  The report found that more than half of the states with fracking activity currently have no disclosure requirements at all. Of the state disclosure laws, none require comprehensive disclosure. In those states requiring some degree of disclosure, enforcement was found to be uneven.
NRDC lists the following reasons, among others, why the chemical constituents of fracking fluids should be publicly disclosed.  Disclosure in advance of the fracking would allow neighboring landowners to establish a baseline for the presence or absence of those chemicals in their groundwater. In the event any contamination is detected, disclosure of the contents of the fracking fluid would help determine the source of the contamination. Medical professionals and first responders would have ready access to the information, rather than having to go through the process of attempting to get confidential information from state agencies, if they have it. Finally, if it is true, as the industry claims, that there is little or no risk to the public from fracking fluids, full disclosure would allow open discussion and analysis that may (or may not) confirm their position.
The study found that of the 29 states with fracking activity, only fourteen required some level of public disclosure as of June, 2012.  The states with disclosure requirements in effect as of the time of the study were Alabama, Arkansas, Colorado, Indiana, Louisiana, Michigan, Montana, New Mexico, North Dakota, Ohio, Pennsylvania, Texas, West Virginia, and Wyoming. In many of those states, the report found that information was difficult to obtain. State disclosure websites were found to be difficult to navigate and individual wells difficult to locate.
The site, touted by some industry spokesmen as the full disclosure center, was found by NRDC to be "severely limited". The disclosure form contained fields for only a limited subset of the information that state disclosure rules required. The site did not contain the full required disclosure for any of the states covered by the site. 
In this report, NRDC considered New York to be a state in which fracking activity is being conducted with no chemical disclosure law in place. This is because the moratorium on fracking only applies to high volume, high pressure hydraulic fracturing. Fracking using less than 300,000 gallons of water has been occurring and continues to be permissible. New York's proposed fracking regulations would allow drillers to claim the constituents of their frack fluids is confidential business information so that public disclosure would not be permitted except in emergency situations.