Environmental Law Blog

Three types of wetland mitigation are available in Missouri. First, mitigation banks are sites or a suite of sites, where resources (such as wetlands, streams, and other riparian areas) are restored, established, enhanced, and/or preserved for the purpose of providing compensatory mitigation for environmental impacts authorized by 404 Nationwide permits. Developers can purchase credits from mitigation banks in order to satisfy their mitigation obligations. Conveniently, the mitigation is already completed, so the mitigation occurs instantly.

Second, in-lieu fee program credits are allowed where permitted environmental impacts are located within the service area of an approved in-lieu fee program, and the sponsors of those programs have the appropriate number of resource-type credits available. Similar to a mitigation bank, an in-lieu fee program sells compensatory mitigation credits to permittees whose obligation to provide compensatory mitigation is then transferred to the in-lieu program sponsor. Id. In Missouri, the only in-lieu fee program sponsor is the Stream Stewardship Trust Fund, which is managed by the Missouri Conservation Heritage Foundation.

Third, developers applying for Section 404 Nationwide permits can agree to take personal responsibility for mitigation projects. In so doing, the developer must propose a project that meets the approval of the Corps, the Missouri Department of Natural Resources, and the Missouri Department of Conservation.

Currently, the Stream Stewardship Trust Fund ("SSTF") is the only in-lieu fee program authorized in the State of Missouri. The Missouri Conservation Heritage Foundation sponsors the SSTF, which mostly provides in-lieu fee credits for streams and other forms of continually flowing waters of the United States.

Costs associated with participating in the SSTF are based on market forces and the anticipated cost of stream mitigation projects in the area where stream impacts were permitted. Current SSTF credits are worth approximately $35 each. Compensatory mitigation payments are based on average cost estimates to correct activity-specific impacts to stream resources.

The Foundation holds mitigation resources collected in an interest-bearing escrow account, in an investment instrument, or banking institution. The Foundation must account for the funds held, subject to an audit by the Corps at any time. Annually, the Foundation must provide the Corps with an account statement that states the balance of the SSTF, investment instrument in which the SSTF invests, and a list of stream projects and associated costs supported by the SSTF.

Under the Clean Water Act, a developer must obtain Section 401 Water Quality Certification ("401 Certification") before it can obtain a Section 404 Nationwide permit from the U.S. Army Corps of Engineers for "dredge and fill" activities if the activities will have environmental impacts on "waters of the United States." The Corps' regulations define "dredged material" as material that is excavated or dredged from waters of the United States. "Fill material" is any material used for the primary purpose of replacing an aquatic area with dry land or changing the bottom of the elevation of a waterbody. A developer will probably need a Section 404 Nationwide permit from the Corps if she, for example, builds a building or parking lot on or near a creek. As a delegated program under the Clean Water Act, the State of Missouri is responsible for issuing 401 Water Quality Certifications.

By issuing a 401 Certification, the State of Missouri verifies that a proposed development project will not violate water quality standards. As part of the 401 Certification, Missouri may require project developers to take specific actions to ensure the protection of the quality of the waters surrounding the development site. These required actions are called conditions. One of the more common conditions required of project developers is compensatory mitigation. Compensatory mitigation means "the restoration (re-establishment or rehabilitation), establishment (creation), enhancement, and/or, in certain circumstances, preservation of aquatic resources for the purposes of offsetting unavoidable adverse impacts which remain after all appropriate and practicable avoidance and minimization has been achieved." 33 CFR § 332.2 (2008).

Before Missouri can require compensatory mitigation for jurisdictional wetlands as a condition in a 401 Certification, the Corps must first determine that the wetland in question constitutes a jurisdictional wetland, or "waters of the United States," under the Clean Water Act. If the wetland constitutes waters of the United States, then the Corps must determine the wetland's jurisdictional classification.

Depending on the classification of the wetland and the degree of proposed environmental impact, the State then must determine how much compensatory wetland mitigation must be required of the project developer. Some examples of jurisdictional classifications and accompanying mitigation ratios are: (1) farmed wetlands with a 1-1.5 mitigation ratio, (2) wooded wetlands with a 2-4 mitigation ratio, and (3) open water with a 1-1 mitigation ratio.

Once the Department assigns a mitigation ratio to the development project, the project developer must submit an application to the Department for 401 Certification that details how the developer will achieve the mitigation ratio in a way that least impacts the environment. The portion of the 401 Certification detailing the mitigation plan is conveniently called the Mitigation Plan. The Mitigation Plan must be submitted and approved before work can begin on the project.

Missouri prefers that developers conduct or arrange for mitigation to occur on-site and in-kind. In other words, developers should arrange for mitigation to occur in the same watershed as their development and the mitigation project should restore the same type of waters that were impacted by the project. For example, if a developer fills in a stream, then Missouri could require the developer to create another stream in the same watershed as the development project.

The State of Missouri depends on the Missouri River for many uses. The River serves as the water supply for approximately one-half of Missouri's 5.6 million citizens. More than half of the water delivered by public water supplies to Missourians is for domestic use. Thousands of acres of Missouri farm land are adjacent to or otherwise directly affected by the flow of the Missouri River, particularly when the river rises. A number of large Missouri metropolitan areas-including the two largest, St. Louis and Kansas City-are located on the Missouri River.

The United States Army Corps of Engineers (the "Corps") operates six dams and reservoirs on the main stem of the Missouri River. Those dams and reservoirs are located in Montana, North Dakota, South Dakota, and Nebraska. Pursuant to the Flood Control Act of 1944, the Corps adopted and published a Master Water Control Manual in 1979, later revised in 2004, for the purpose of systematically operating the main stem Missouri River reservoirs.

During the process leading up to adoption of the 2004 Master Manual, the Corps considered alternatives to managing the River's water resources, ranging from no change from the prior manual to allowing the river to run its course as if the dams did not exist. The Corps, however, did not study the environmental effect of a bimodal spring rise intended to stimulate the spawning activities of the pallid sturgeon, an endangered fish species native to the Missouri River. Despite the Corps' failure to study the environmental effect of a bimodal spring rise, the Corps adopted the bimodal spring rise as part of the Master Manual in 2004. In so doing, the Corps rejected the various alternatives to the bimodal spring rise that were formally studied.

To effectuate the spring rise, the Corps releases extra water from the northern dams twice each year in order to alert the pallid sturgeon that it is spawning season. According to the Corps, the rise is necessary for the survival of the fish, but the Corps has never presented any evidence to support that assertion.

The process leading to the adoption of the 2004 Master Manual has been the subject of much litigation. The Flood Control Act of 1944 charges the Corps with the dominant functions of maintaining both flood control and navigation along the Missouri River System. The State of Missouri often finds itself at odds with its upstream neighbors over the relationship between these two functions. Navigation and flood control along the Missouri River are essential to commercial shipping and agricultural activities up and down the Missouri River throughout central Missouri. Therefore, the State of Missouri needs the Corps to release water from the northern dams at strategic times throughout each year, while withholding water during periods of heavy rainfall.

On the other hand, northern states experience droughts and other, less severe periods of regular water shortages throughout each year. Those states need the water from the Missouri reservoirs to support their recreation industry. The resulting conflicts often lead to litigation among the State of Missouri, the Corps, and various northern states. This litigation usually attracts the attention of both the local and national media, which is how you have traditionally been informed about Missouri River issues. If you have any questions about the general policies behind the State of Missouri's position or specific cases you've read about in the past, feel free to ask away.

Many of you have never heard of mountaintop removal mining operations, but the United States Environmental Protection Agency estimates that this type of mining will account for the clearing of 2,200 square miles of Appalachian forests by the year 2012. Mountaintop removal mining is a form of surface mining that involves using explosives to remove up to 1,000 vertical feet of overburden (the rock, soil and ecosystem that lie above the coal seam in a mountain) to gain access to underlying seams of coal.

Mountaintop removal mining, as a form of surface mining, is governed by the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The Office of Surface Mining, an agency within the Department of the Interior, administers the SMCRA, which regulates the environmental effects of all coal mining in the United States.

Currently, mining companies are not allowed to dispose of the removed overburden within 100 feet of an intermittent or perennial stream, unless the company can prove the mining activity won't hurt water quality or quantity. This 100-feet buffer zone is commonly referred to as the Stream Buffer Zone Rule.

Citing a need to clarify the Stream Buffer Zone Rule, EPA proposed a rule change in 2004. Due to environmental groups' protests, EPA conducted an Environmental Impact Assessment in 2005 and 2006 and issued the resulting Environmental Impact Statement this November. Under the proposed rule, the Stream Buffer Zone would not apply to "permanent excess spoil fills and coal waste disposal facilities." In other words, the Rule would exempt giant valley fills and sludge-filled lagoons, which are illegal under the current rule if the valleys and lagoons are within 100 feet of an intermittent or perennial stream.

Like every difficult environmental problem, EPA has encountered both opposition and support for the change to the Stream Buffer Zone Rule. Opponents worry that relaxing the Stream Buffer Zone Rule will result in extreme deterioration in water quality and quantity in and around the Appalachian Mountains. Opponents also worry that relaxing the Rule will encourage more mountaintop removal mining, which is environmentally destructive in and of itself.

On the other hand, supporters point to the fact that more than half of the electricity generated in the United States is produced by coal-fired power plants, and that electricity has to come from somewhere. Moreover, mountaintop removal mine is two and one half times as efficient as underground, or traditional, mining and much more cost-effective.

EPA is trying to pass the proposed changes to the Stream Buffer Zone Rule before the executive administration changes on January 20, 2008. Do you think EPA is doing the right thing? What alternatives to amending the Stream Buffer Zone Rule could entice both proponents and opponents to reach a compromise?

In Missouri, developers of residential housing subdivisions are required to follow strict guidelines for the treatment of wastewater generated by the homes constructed within the subdivision's boundaries. According to the Missouri Clean Water Law, if a subdivision is platted into seven or more lots that are smaller than 40,000 square feet (.92 acres), then the developer must provide that the subdivision will be served by a centralized wastewater treatment and collection system. If the subdivision is platted into seven or fewer lots, then the developer is free to install individual on-site wastewater treatment systems, such as septic tanks.

The Missouri Department of Health and Senior Services ("MDHSS") regulates the installation, maintenance and permitting of on-site wastewater collection systems. However, according to MDHSS regulations, developers of subdivisions must first contact the Missouri Department of Natural Resources ("MDNR") in order to determine whether their subdivision will require a centralized wastewater treatment system before applying for any approvals for permits from the MDHSS for on-site wastewater treatment systems. This safeguard is designed to assist developers in making appropriate planning decisions about which method of wastewater treatment must be provided to their subdivisions, according to Missouri law.

Several methods for the centralized collection and treatment of wastewater are available to residential housing subdivision developers, including but not limited to, wastewater treatment lagoons, connection to existing wastewater treatment systems, individual wastewater treatment plants, and no-discharge/land application systems. Developers should contact an engineer to determine which method of wastewater treatment would be serve their subdivision based on the soil, groundwater, and geologic conditions of the land surrounding the subdivision, and the applicable regulatory standards.

If you are a subdivision developer, consult the DNR's Residential Housing Subdivision Rule, 10 CSR 20-6.030, for all of the regulatory testing, monitoring and permitting requirements for centralized wastewater treatment systems. If your subdivision is exempt from the rule, contact your local county health department official for the regulatory and permitting requirements for on-site wastewater treatment systems.

Ethanol has rapidly become one of the most important fuel extenders and alternative fuel blends in America (think "E-85" pick up trucks). According to the Soy Daily, an online web magazine located at http://thesoydailyclub.com, 95% of the United States' ethanol is produced from corn, and as of August of 2007, there were 124 ethanol plants in operation throughout the United States. More than 200 additional plants have been proposed.

One bushel of corn can produce at least 2.8 gallons of ethanol, and one acre of corn can produce approximately 500 gallons of ethanol, which is enough to fuel six cars for one year with a 10% ethanol-blend. Missouri law mandates a 10% ethanol-blend in all of the gas sold in this State for that very reason.

The United States' increasing reliance on ethanol has, however, sparked some controversy. On the up side, ethanol production creates a higher-yielding market for farmers throughout the corn belt; it creates jobs, reduces our foreign dependency on oil, and may be the key to saving family farms. In fact, increased production and use of renewable fuels, like ethanol, could create an additional $91.5 billion in family income over the next 15 years. Furthermore, consumers could save approximately $7.8 billion between 2002 and 2016 in the form of reduced government farm subsidies by expanding their purchases of renewable fuels. For more pro-ethanol facts and consumer information, check out www.iowacorn.org.

Some scientists have pointed out, however, that for each gallon of ethanol produced, typical ethanol plants consume 3.5 to 6 gallons of water and produce 12 gallons of a sewage-like effluent as a result of the fermentation and distillation process. The sewage-like effluents threaten fish and plants because they contain chemicals that deprive the water of oxygen as they decompose. Moreover, the corn belt has lost more than 70 percent of its wetlands as farmers seek out more land to meet the increasing demand for corn. Wetlands serve a vital function in the fish and wildlife ecosystems of every state in the country. And, last but not least, ethanol production is extremely energy intensive; most ethanol plants burn natural gas or coal to meet energy needs.

Environmental threats aside, farmers cannot produce more corn than their fields will allow them to grow. As demand for corn increases, supplies have largely remained the same. As a result, food costs may rise as the demand for ethanol increases. For more information on the potentially negative side to over reliance on ethanol, check out the Soy Daily's website at http://thesoydailyclub.com.

What do you think Missouri should do when it comes to ethanol production and policy? Is ethanol the key to future energy independence or should we keep searching for a more environmentally-friendly solution, such as using switch-grass for ethanol production?

Missouri has joined eight other states in suing the Environmental Protection Agency because they believe EPA created a loophole in the federal Clean Water Act that threatens waterways and drinking water.  This new loophole also threatens the Missouri River by making it easier for upstream states to divert water outside the Missouri River basin.  Any water that is pumped outside the Missouri River basin in upstream states will never flow through Missouri.  More than half of all Missourians rely on the River for drinking water.

EPA's "Water Transfer Rule" exempts the transfer of polluted water from one body of water to another. Formerly, a permit was requried for such transfers.  Under the new rule, an entire class of water polluters will be exempt from Clean Water Act permitting requirements.  The new rule allows contaminants to be dumped into drinking water sources, lakes and streams by water transfer operations--without any permit or regulatory oversight by the states.

Transfer operations include an ocean ship dumping salt water into the Great Lakes or a contaminated lake's water being pumped into a pristine river. Water transfers routinely occur throughout the country for irrigation projects, city drinking water, dams and ecological restoration. More often than not, these transfer waters are polluted with various contaminants that are not present in the waters in which the polluted waters are dumped.

Moreover, transfer waters often include invasive species. Invasive, or non-native, species have not evolved alongside native species and are not subject to the same ecological checks and balances as native species. For example, according to the Missouri Department of Conservation, sericea lespedeza, an Asian plant purposefully planted along roadsides in Missouri to prevent erosion, has no natural predators here and spreads aggressively, often displacing native plants.

The lawsuit leading up to the implementation of EPA's Water Transfer Rule marked the first time in EPA's 24-year history that EPA sided with a water polluter in a case. In that case, EPA joined the sugar industry and a water district in defending against claims by Florida Wildlife Federation, Friends of the Everglades and the Miccosukee Tribe that pumping massive quantities of polluted urban and agricultural wastes into Lake Okeechobee violated the Clean Water Act. EPA enacted the Water Transfer Rule on June 9 in an effort to "beat" the federal court's decision.

We'll keep you posted as this lawsuit progresses. In the meantime, do you agree with EPA? Should one be able to dump polluted waters from one water body into a clean water body? Or, is water just water?

Open burning is illegal in Missouri, but many people don't know what it means. Open burning is the burning of any material in which air contaminants are emitted directly into the air without first passing through a stack or chimney, according to the Missouri Air Conservation Law and Regulations.

Some open burning is permitted under the Missouri Air Conservation Law, but much to the surprise of many Missouri residents, most open burning is illegal and subject to a fine of up to $10,000. The open burning of most trade, construction, and demolition waste, as well as petroleum-based products, and waste tires is prohibited because toxins that are released into the atmosphere as a result of the burning activity are harmful to human health.

In fact, studies show that the open burning of a single household's trash could release pollutants in higher levels than the burning of the trash of thousands of homes by a municipal waste incinerator because the lower combustion temperatures of the incinerator are designed to prevent complete incineration. These pollutants can include dioxins, volatile organic compounds, formaldehyde, hydrogen chloride and naphthalene.

As a result, any waste generated by business, trade, industry, salvage or demolition operation cannot be burned without a permit issued by the Department of Natural Resources. Even then, permits will only be issued for untreated wood. Wastes that can never be burned include tires, rubber, hazardous materials, styrofoam, plastic, petroleum-based products, demolition waste, treated wood, and any asbestos containing material.

So, what can you safely burn in Missouri? Missouri allows the open burning of household refuse from four dwelling units or less provided it originates on the same premises. However, this exemption does not apply to mobile home parks or apartment complexes and only includes materials from routine household activities, such as paper waste and food waste. Open burning is allowed, with zoning restrictions, in the Kansas City, St. Joseph, and Springfield metropolitan areas. Open burning is strictly prohibited in the St. Louis metropolitan area.

Missouri also allows the open burning of yard waste provided that the waste originates and is burned on the same premises. Yard waste includes trees, tree leaves, brush or other vegetation. Check with your local city ordinances for time and date restrictions on the open burning of yard waste.

Missouri residents can burn for fire training purposes, agricultural purposes, land clearing operations, wood processing facility operations, and for recreational purposes. However, these permitted fires should not include anything except vegetative woody materials or untreated wood products where possible.

If you aren't sure whether you can burn something without a permit, contact your local fire department or natural resources office. It's always better to be safe than sorry.

Litter is both an eyesore and a health hazard because it attracts diseases, provides a home for pests and serves as a breeding ground for their young. As a result, whether you refer to it as trash, litter, garbage, solid waste, or refuse, litter cannot be dumped onto our private or public land in Missouri.

Three laws make littering a crime in Missouri. First, under the Solid Waste Management Law, no one can dump waste in any place except a licensed solid-waste disposal area.  There are a few exceptions to the general rule that bans dumping.  For example, a homeowner may dump residential waste generated in his home on his own property so long as it does not cause a nuisance.  And a farmer may store solid waste on his property for use in normal farming operations. The Law gives state and local officials the authority to compel an illegal dumper to clean up the unauthorized solid waste disposal area, no matter what the cost. In addition, the violator may face a fine of up to $100.00 per day until the garbage is removed. For more on the Solid Waste Management Law, check out our earlier post on Landfill operations.

Second, the Litter Laws of 1979 make it illegal to throw rubbish of any kind onto any land or water owned by the state or federal government, as well as, the private property of another without his or her consent. Under the Litter Laws, consent is a defense to littering on private property, but anyone dumping refuse onto another person's land is probably violating the Solid Waste Management Law anyway unless the other persons' land is a licensed solid waste disposal facility. Littering is a Class A misdemeanor, so anyone convicted of littering may be imprisoned in the county jail for up to one year and fined up to $1,000.00.

Third, the county commission in each county may choose to use the County Option Dumping Ground Law to further punish litterers. Under this law, individuals who want to operate an open dump in counties that have adopted the law must apply to the county for a license. Anyone who dumps garbage on land that is not licensed may be fined up to $1,000.00 or imprisoned up to one year in the county jail.

In addition to criminal sanctions, persons adversely affected by littering can sue the illegal dumper in civil court for trespass (if the dumping occurred on the person's property) or public or private nuisance (if the dumping occurred on adjacent property).

To report illegal dumping in your area, simply contact your local sheriff's department, highway patrol office, or conservation agent. Have the following information ready to relay to the authorities: description of the violator's vehicle, license number of the vehicle, location of illegal dumping, and description of offenders.  Or, you can submit an online complaint to the Attorney General's Office here.  Let's work together to clean up illegal dumps.

Last week, the United States Court of Appeals for the District of Columbia invalidated a rule issued by the U.S. Environmental Protection Agency that would have prevented state and locate authorities from supplementing inadequate monitoring requirements for air pollution sources under the Clean Air Act.

The 1990 Amendments to the Clean Air Act compel certain stationary sources of air pollution to obtain permits from state and local authorities that identify all emission limits for the source and also include monitoring requirements sufficient to assure compliance with the permit terms and conditions. Sometimes, the monitoring requirements set forth in the Clean Air Act itself do not assure compliance with the Clean Air Act's emissions standards. For example, some standards require daily compliance with emissions standards but only call for yearly monitoring.

EPA originally issued a guidance document, and attempted to promulgate a rule, that allowed state and local authorities to "fill the gap" left by the Clean Air Act. In other words, EPA allowed state and local governments, such as the Missouri Department of Natural Resources, to require daily emissions monitoring to assure compliance with Clean Air Act emissions standards.

Industry sued the EPA alleging that the EPA had overstepped its authority under the Clean Air Act because the Clean Air Act did not expressly provide for emissions monitoring by state and local governments. Rather than fight the litigation, EPA issued an amended rule prohibiting state and local governments from supplementing the Clean Air Act's emission standards.

As soon as the amended rule became final, the Sierra Club sued EPA, arguing that the amended rule violates the Clean Air Act on its face. The United States District Court for the District of Columbia agreed.

In a two-to-one decision, the District Court found that EPA's amended rule was contrary to the statutory directive that each Clean Air Act permit include adequate monitoring requirements. In other words, if the emissions standard required daily compliance, state and local governments must require daily monitoring in order to assure compliance with the daily emissions standard. Yearly monitoring would be inadequate and contrary to the Clean Air Act.

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.

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 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? 

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?

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?