FTC issues warning to manufacturers of “biodegradable” dog waste bags.

The FTC recently sent letters to 20 dog waste bags manufacturers warning that their environmental claims that their products are “biodegradable” may be deceptive. (http://www.ftc.gov/news-events/press-releases/2015/02/ftc-staff-warns-marketers-sellers-dog-waste-bags-their). This is part of the FTC’s enforcement of the revised “Green Guides” of 2012 with changes to what is considered acceptable environmental claims for consumer products. Under the revised Green Guides “[i]t is deceptive to make an unqualified biodegradable claim for items entering the solid waste stream if the items do not completely decompose within one year after customary disposal.” The FTC is concerned and issued the letters requesting clarification of the claim because most waste bags end up in landfills where plastics biodegrade in much longer than one year.

The FTC also raised concerns about the manufacturers’ compostability claims. The revised Green Guides specify the degree that a product is compostable if the item cannot be composted safely in a home compost device and if the necessary municipal composting facility is unavailable to a “substantial majority of consumers or communities where the item is sold.” Dog waste is generally not safe to compost at home, and very few facilities accept this waste, according to the FTC.

These letters are merely warnings. The recipients – to continue to make their claims – will need to show professional, reproducible scientific evidence that their products will completely biodegrade within a reasonably short time period after customary disposal and, for compostable claims, show competent scientific evidence that the entire item will become usable compost in a safe, timely manner after being placed in an appropriate compost facility or home compost pile. Otherwise, they need to alter their claims.

This should be a warning to all marketers and product manufacturers to be careful about environmental claims and that the FTC is enforcing the Green Guides.

Federal court finds no violation of ESA or Eagle Protection Act for wind farm.

A federal court in Maine rejected a challenge to a permit issued by the U.S. Army Corps of Engineers for the Oakfield wind power project. The court determined that the Army Corps did not violate the Endangered Species Act (ESA) or the Bald and Golden Eagle Protection Act (Eagle Protection Act) in issuing the permit. A number of recent court decisions has allowed agencies to permit projects and not be limited by these rules.

A lawsuit was filed against the Army Corps over the issuance of a Clean Water Act Section 404 permit that allowed the Oakfield wind project developer to fill in certain wetlands during project construction. In short, the permit was challenged the permit on the grounds of ESA and EPA, arguing that the Army Corps improperly relied upon incomplete data to analyze the impact of the project’s construction on Atlantic salmon. The court denied the claims, stating that ESA requires use of best data available, which can include incomplete data. EPA was cited as the Army Corps issued the permit without first requiring the project developer to secure an incidental take permit given the project’s potential for taking a bald eagle. The court rejected this argument. The Eagle Protection Act imposes penalties on those who illegally take protected species. A take is defined as a purposeful action against a protected species; but the court ruled that issuing such a permit was not purposeful harm.

A number of recent court decisions state that federal agencies are not obligated to obtain permits under EPA or the Migratory Bird Treaty Act when issuing permits for private projects. This trend is a positive development for developers of both renewable and conventional energy projects, allowing them to proceed more smoothly and reducing the litigation risk faced by developers.

CCES can help your firm or entity determine the viability of future projects and products with technical analyses of potentially applicable rules and regulations. Any firm or entity should get competent legal counsel. However, CCES can assist in performing technical assessments of rules and how to most cost-effectively comply. Contact us today at karell@ccesworld.com or at 914-584-6720.

The USEPA recently announced a proposed new rule to reduce smog, the cacophony of compounds that build up in the atmosphere, triggered by sunlight and the presence of nitrogen oxides and volatile organic compounds (VOCs). Smog causes haze, making it difficult to see a landscape. More important, many components of smog are harmful to human health. Areas with high ground-level ozone levels have been linked to asthma and cancer. We measure smog by an indicator compound, ozone. This is ozone in our atmosphere, not to be confused by the necessary ozone in the stratosphere. Few processes emit ozone; it is formed by chemical reactions of nitrogen oxides and VOC that occur in the atmosphere catalyzed by sunlight.

There are currently National Ambient Air Quality Standards (NAAQS) for ozone, above which a monitored area is at risk of adverse public health effects. The agency is proposing to reduce (strengthen) ozone’s NAAQS from 75 ppb to within a range of 65 to 70 parts per billion (ppb); and taking comment on a level as low as 60 ppb. This is part of the USEPA’s job to review all NAAQS standards every five years, as stated in the Clean Air Act, passed by Congress and signed by the President.

USEPA scientists examined numerous scientific studies of health effects of ozone exposure in the last five years, over 1,000 new, mainly peer-reviewed studies published since the last update. A number of these studies indicated that exposure to ozone at levels below 75 ppb — the level of the current standard — can still pose serious threats to public health and the environment.

If this rule is promulgated and the NAAQS standard is lowered, a number of additional communities around the nation will be considered not in attainment with the new standard. States with these areas will be required to promulgate and enforce stricter rules pertaining to emissions of smog’s forerunners, nitrogen oxides and VOCs, in hopes of reducing ambient concentrations of ozone to the new standard in these non-attainment areas. The good news is that a number of recently finalized or proposed federal air pollution rules, including new light duty vehicle emission and fuel standards (“Tier 3”), will help to significantly cut emissions of smog-forming compounds, lessening the burden on the states to promulgate new rules to meet the proposed standards.

Not surprisingly, a number of business and manufacturing groups oppose the proposed lowering of the ozone NAAQS, stating that the resulting tightening of emission regulations would adversely affect how industry operates and may cause many firms to halt expansion plans in the US, jeopardizing the recent comeback in manufacturing.

CCES has the experts to help your facility assess your nitrogen oxide and VOC emissions, and determine, design, install, and test cost-effective options to minimize emissions of these and other compounds to provide greater operating flexibility in the wake of potential new rules. Contact us at 914-584-6720 or at karell@CCESworld.com.

In September 2014, the USEPA issued a revision of its Clean Air Act policy on “Timely and Appropriate Enforcement Response to High Priority Violations.” Last issued in 1998, the new enforcement policy applies primarily to major and synthetic minor stationary sources of air pollutants with aggressive actions on accelerated timetables.

The new policy makes two major changes from the 1998 policy. First, the new policy replaces the matrix used to identify high priority violations (HPV) with the following six categories of violations that will receive high priority enforcement response:

1. Failure to obtain a New Source Review (NSR) permit and/or install Best Available Control Technology (BACT) (attainment areas) or Lowest Achievable Emissions Reductions (LAER) (non-attainment areas).

2. A violation of any federally-enforceable emission limit, standard, or required operating parameter issued under Prevention of Significant Deterioration (PSD) or nonattainment area provisions, where such violation occurs continuously, regularly, or intermittently for at least 7 days (Seven Day Violation).

3. A Seven Day Violation of any emission limit, standard or required operating parameter in an applicable New Source Performance Standard (NSPS).

4. A Seven Day Violation of any emission limit, standard, or required operating parameter of an applicable National Emission Standard for Hazardous Air Pollutants (NESHAP).

5. A violation of any federally-enforceable work practice, testing, monitoring, recordkeeping or reporting requirement that the agency deems to substantially interfere with its ability to enforce or monitor a source’s compliance.

6. Any other violation the enforcement agencies determine is appropriately treated as a high priority violation.
While the first five criteria are very specific, the 6th criteria does add some uncertainty if the agencies rely heavily on it. The new policy became effective on October 1, 2014.

The other major change made under the new policy is flexibility in the treatment of HPV enforcement. Under the former policy, once a violation was determined to be a HPV, it could only be resolved through an enforceable agreement. Under the new policy, a HPV may be removed from HPV enforcement and not require such an agreement if the enforcement agencies conclude the evidence of a HPV is weak or if the HPV does not involve continuing violations or a threat to public health. This change is presumed to be an incentive to a violating facility to quickly return back to compliance. The USEPA is giving itself broad discretion to remove a violation from HPV enforcement.

CCES has the technical experts to help your facility prepare the appropriate permit applications and the technical expertise to meet Clean Air Act PSD, NSR, NSPS, and NESHAP program requirements and the technical expertise to resolve any alleged violations. Contact us today at 914-584-6720 or at karell@CCESworld.com.