Avoiding Unnecessary Site Assessment Delays

Are environmental consultants providing the necessary technical information for the Technical Standards and Safety Authority (TSSA) to evaluate a site investigation or remedial action report of a fuel storage site?  It appears not.  This can be troubling because when this technical information is missing, it could lead to unnecessary frustrations, specifically a site that is not closed.

The shortcomings of site assessments were pointed out in a 2013 TSSA newsletter, in which they outlined problems encountered when reviewing environmental reports.  According to the TSSA, consultants are not providing their rationale for determining the applicable site condition standards.

Background: In Ontario, if you store and/or handle gasoline, diesel, fuel oil, or other associated products at your facility, you must abide by TSSA guidance documents.

The TSSA Environmental Management Protocol (EMP) outlines the requirements for reporting, assessing, and managing a site following a petroleum leak, spill, or discovery.  The EMP adopted the Background Generic Site Condition Standards set by MOE O.Reg. 511/09 (amended O.Reg. 153/04).

O.Reg. 153/04 and the EMP contain a total of nine possible standard scenarios from which to select.  To select the appropriate standards for the subject property, the QP must obtain information regarding the subject property and surrounding properties (e.g. is potable groundwater used near the subject property, the type of land use, and soil texture to name a few).  Provided you have collected the necessary data, this is fairly easy to evaluate.

The TSSA requires QPs to include “justification” for the standards selected.  By providing this rationale, the TSSA can evaluate the work and ensure the consultant has completed an adequate assessment of site conditions or adequately remediated the site.

These are not new requirements, and your consultant should be evaluating these factors to determine the appropriate standards as a matter of course.  And by “stamping” the report, they are indicating that, to the best of their knowledge, the work was done in accordance with TSSA EMP.  But if they are not evaluating the standard scenarios and providing their justification for their choice, they are providing an incomplete report.

Certainly, conducting site assessment or remediation activity is something you want to get through as efficiently and as quickly as possible – with no surprises.  And to do so, your process must include providing the TSSA the necessary information so they can make a determination on the adequacy of the investigation or remediation.

If you have questions about site investigation or remediation, contact Christopher Paré (cpare@dragun.com) at 519-979-7300.

Thanks to Katherine Rey (krey@dragun.com) who authored this blog.

Toronto Dry Cleaner Fined – A Cautionary Tale For Dry Cleaners?

The official word from Environment Canada on September 23, 2013, was “Ashford Cleaners Inc. was convicted of contravening the Tetrachloroethylene Regulations.”  The Toronto Dry Cleaner was fined $60,000 for offences that included improper storage and containment of tetrachloroethene waste water and residue.

There are at least a couple of noteworthy observations from this August 2013 enforcement action.  But first a little background on the chemical.  Tetrachloroethene is also known as Tetrachloroethylene, PCE, perchloroethene, or PERC.  This chemical, as many are aware, has been used in dry cleaning operations for a very long time.

While the use of the chemical isn’t new, the regulations are relatively new.  Environment Canada implemented the “Tetrachloroethene (Use in Dry Cleaning and Reporting Requirements) Regulations” in February 2003.  This regulation provides rules for the use and storage of PCE, waste water, and residues at dry cleaning facilities.  But the regulation didn’t have a lot of “enforcement teeth.”

To address the enforcement issue, on June 22, 2012, the Environmental Enforcement Act (EEA) was amended, resulting in the creation of the Environmental Violations Administrative Monetary Penalties Act (EVAMPA).  EVAMPA provides authority to issue Administrative Monetary Penalties (AMPs).

So in order to avoid fines and penalties, dry cleaners want to avoid a release, right? Actually, you can be penalized for violations far short of a release.  In addition to regulating equipment specifications and use and storage of PCE, the regulation specifies reporting for importation, recycling, sale, and use of PCE.  A person who imports, recycles, sells, or uses PCE is required to keep and report records to the Minister of the Environment.  If you don’t keep these records, you could be fined.

Finally, it’s at least noteworthy that according to the regulation, you are not allowed to sell PCE to a dry cleaner if the dry cleaning equipment does not comply with the Tetrachloroethene regulation.  So, could a supplier who sold to a dry cleaner that did not comply with the regulations be fined?  That’s a question for legal counsel – but suppliers should consider this.

This recent action should, at a minimum, result in not just dry cleaners, but everyone who handles regulated chemicals to take a second look at their chemical handling practices.  It should also prompt you to evaluate your internal and external reporting/documentation/record keeping practices to avoid unnecessary fines, penalties, and the resultant public relations challenges.

If you have questions about environmental permitting/planning, environmental site assessments/remediation, or litigation support, contact Christopher Parė, P. Geo. (cpare@dragun.com) at 519-979-7300.

Thanks to Allan Clifford Lawton and Christopher Parė, P. Geo who authored this blog

Yakima Dairy Lawsuits: Years in the Making?

It’s a drum we’ve been beating for nearly 10 years.  Activists and regulators have been transparent in regard to their intentions as it relates to agriculture.

To be clear, we are 100% in favor of proper environmental stewardship – but when you are involved in regulatory negotiations and/or battling activists with pre-determined conclusions – it’s not about stewardship.  It is Game On, and the stakes are very high.

In our August 2013 newsletter, we shared with you the title of the EPA Bulletin “Criminal Enforcement Alert, EPA Targets Clean Water Act Crimes – Illegal Pollution by Animal Confinement Operations Punished by Fines and Incarceration.”

In August 2012, we quoted Gene Baur, president and co-founder of Farm Sanctuary who said of livestock farms “…it’s bad for animals, it’s bad for people, it’s an industry that needs to be stopped…it’s (manure) getting into our waterways and destroying our environment.”

In 2010 and 2011, we reported that according to the EPA, number two of the six “Enforcement Initiatives” is, “Preventing Animal Waste from Contaminating Surface and Ground Waters.”

As far back as 2006, we reported that, “According to a report in Environmental Compliance Alert (November 13, 2006), the Environmental Protection Agency (EPA) will target Animal Feeding Operations for National Pollutant Discharge Elimination System (NPDES) permit enforcement.”

So the article in the January 2014 Hoards Dairyman, “Why the Yakima lawsuits matter to every producer,” shouldn’t be too surprising.  If you haven’t read this article, you should.

According to Hoards, “EPA…bullied 11 Yakima dairies to let it do water quality tests for nitrates.  In 2012, five were singled out and given an awful choice: sign a consent decree to install monitoring wells and collect samples for eight years to determine if there is a water quality problem, how bad it is and where it’s coming from…or try to convince the 9^th Circuit Court that EPA doesn’t have the authority to make such demands.”

Then as Hoard’s reports, “EPA was now more or less out of the picture. But in 2013, two environmental activist groups filed individual lawsuits against the five dairies for nitrogen pollution of groundwater, alleging violation of the federal Resource Conservation and Recovery Act (RCRA) that regulates solid and hazardous waste disposal, including nuclear waste.”

Should RCRA apply to agriculture?  According to the activists’ attorney it should because, “…these people are killing America.”

The Hoard’s article provides more details, including information that might raise some questions about efficacy of the EPA data.

If you are faced with legal action, either from a regulator or from activists, DO NOT go it alone – get good legal and technical counsel.  We can help with the latter.  For more information, contact senior environmental advisor, Jeffrey Bolin, M.S., CHMM.  You can reach Jeff at 248-932-0228, ext 125.

Vapor Intrusion Guidelines Becoming More Conservative?

In a recent letter (dated December 3, 2013) to the San Francisco Bay Regional Water Quality Control Board (Regional Water Board), the US Environmental Protection Agency (EPA) Region 9 offered guidelines and supplemental information for vapor intrusion (VI) evaluations.  The Regional Water Board was evaluating Superfund sites in the South San Francisco Bay Area (South Bay Sites) where trichloroethene (TCE) or tetrachloroethene (PCE) are contaminants of potential concern.

As history has shown us, when the environmental community in California catches a cold, the rest of the environmental communities in the US and Canada sneeze!  In this letter, the EPA recommends incorporating into existing and future VI evaluation work plans a number of activities that would make VI investigations more labor intensive and consequently more costly.  While the concern about “reopeners” for closed sites is intriguing, we’ll leave that for a future blog entry.

As to the guidelines/recommendations, they include:

• Identifying women of reproductive age as the sensitive population of concern.
• Using a “Short-Term Prompt Response Action Level” of 2 µg/m³ in residential settings.
• Implementing interim measures to mitigate TCE short-term exposure by:
  • Increasing building pressurization and/or ventilation.
  • Installing and operating engineered, sub-floor exposure controls (sub-slab and/or crawlspace depressurization; or in some cases a soil vapor extraction system).
  • Eliminating exposure by temporary relocation.
  • Collecting an additional round of sampling in the colder weather months since the highest indoor air concentrations usually occur when outdoor air temperatures are significantly lower than indoor air temperatures.
  • Sampling in commercial buildings with HVAC-off.  Sampling duration should begin a minimum of 36 hours following shut-down of the building ventilation systems.
  • Buildings that were thought to have a low potential for VI (presence of a sub-floor vapor barrier for example) need to be evaluated and sampled for VI.
  • Any proposal to exclude particular off-property buildings from indoor air sampling must be supported by a robust, site- and building-specific multiple-lines-of-evidence analysis.

Some Questions

• Will these conservative criteria in EPA Region 9 be adopted elsewhere?
• Although “guidance” is not enforceable, will regulators consider these guidelines as “law”?
• Does this suggest that we might see more “reopeners” of closed sites based on these VI recommendations?

We don’t necessarily have the answer to these questions.  But whether you are in EPA Region 9 or elsewhere, when it comes to VI, a measured, thoughtful and scientific approach should help you avoid chasing protracted and costly vapor investigations.

Thanks to Dr. Khaled Chekiri (kchekiri@dragun.com) and Jeffrey Bolin, M.S., CHMM (jbolin@dragun.com) who authored this blog entry.  You can reach both Khaled and Jeff at 248-932-0228.

The Science and Politics of Risk Assessments

How much of a role do non-scientific factors play in shaping our environmental and public health policies?  Are we doing a good job in objectively evaluating the data that influence these policies?

In a recent survey, George Mason University set out to see what the scientific community believes drives environmental policy.  The report, “Expert Opinion on Regulatory Risk Assessment” surveyed three professional organizations:  The Risk Assessment Specialty Section of the Society of Toxicology, The Dose Response Section of the Society for Risk Analysis, and the International Society for Regulatory Toxicology and Pharmacology.

The results were not encouraging (if you believe science should drive the decision making process).  The report states in part, “…too little attention is being given to scientific factors and economic costs and benefits, and too much attention is given to environmental groups, the precautionary principle, media coverage, and political concerns.”

The criticism from the professional organizations includes the lack of scientific rigor currently being used.  For example, a major part of risk assessment involves acquiring and evaluation of data.  Yet, only 31% of the respondents report that “in their experience, such underlying raw data are ‘often’ or ‘always’ made available to assessors…”

Similarly, only 24% of the respondents report that “…consistent and transparent criteria are often or always used to evaluate the quality and reliability of studies.”

When asked how much weight risk managers give to a certain factor verses how much weight should be given, it’s quite a contrast.  Ideally, risk managers believe they should focus on science, economic costs/benefits, and legal implications.  In reality, it’s legal implications, political concerns, the precautionary principle, and environmental groups that get the greatest “weight of concern.”

Interestingly, political affiliation of the scientist had little or no bearing on what they believed was important – 99% of liberals and 100% of conservatives believe that scientific factors should have the greatest weight.

Policies relating to protection of our health, the health of our environment, and our economy can have significant and far-reaching impacts.  Relegating decisions regarding these important issues to the most vocal, or what seems to be the most politically advantageous at the moment, is reckless and short sighted…and…in all likelihood, will not change any time soon.

To see a copy of the report from George Mason University, click here.

Vapor risk and ASTM E 1527-13 – Phase I ESA

The ASTM International, Inc., the international standards agency, has introduced ASTM E 1527-13 for the performance of a Phase I Environmental Site Assessment (ESA) prior to the acquisition of a commercial property (see our November 13^th blog entry).  The purpose of ASTM E 1527-13 is to provide a format for meeting the All Appropriate Inquiries (AAI) federal rule.  ASTM E 1527-13, introduced on November 6, 2013, includes the addition of the term “vapor.”  Note that the Environmental Protection Agency (EPA) has not yet approved the use of ASTM E 1527-13 (in the AAI rule); its anticipated to be approved by the end of 2013 or in early 2014.

The addition of vapor in E 1527-13 will add some complexity to transactions.  And though vapor is now a formal part of the assessment process, we continue to caution against knee-jerk reactions, especially as it relates to quantitative testing of vapors.

As it relates to E 1527-13, there are three areas of revisions relating to vapor:

1.   Section 3.2.2 activity and use limitations:  the purpose of which is “to reduce or eliminate potential exposure to hazardous substances or petroleum products in the soil, soil vapor, groundwater and/or surface water on the property…”

2.   Section 3.2.56 definition of migrate/migration:  “…to the movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface.”

3.   Section 13.1.5.7 (and X5.8):  clarifies that “indoor air quality” is a non-scope consideration, only if it is unrelated to releases of hazardous substances or petroleum products.

Note that a vapor migration study (actual physical testing) would be part of the Phase II ESA (i.e., quantitative testing of soil, groundwater, and now vapor).

If you would like to read a more detailed discussion on vapor intrusion, see our article in Michigan Defense Trial Counsel:  Vapor Intrusion — A New and Challenging Issue (co-authors Jeffrey A. Bolin, Dragun Corporation, and Arthur Siegal, Jaffe, Raitt, Heuer, and Weiss).

Vapor migration and vapor intrusion continues to be an evolving and complicated issue.  We encourage you to carefully consider how vapor may impact your transaction, and seek good technical and legal advice.

If you have questions about transactions and or vapor intrusion, contact Mark Resch (mresch@dragun.com) or Jeffrey Bolin (jbolin@dragun.com) at 248-932-0228.

(Thanks to Mark Resch for providing the content of this blog entry)

 

Effective Use of the Absurd

Reductio ad absurdum, or argument to absurdity is the platform on which many activist groups effectively market their message. For example, This manufacturing company discharged a toxic substance in the groundwater, therefore, all manufacturing companies are “big polluters,” so help our cause to close all manufacturing plants.

Animal Rights Activists have used the same approach with success. They find the examples of “bad actors” in farming point and to them and say…farmers at “factory farms” abuse animals, therefore, all large farms are bad, so help our cause to close all factory farms.

It’s unfortunate that groups like People for the Ethical Treatment of Animals (PETA) can find even one example, let alone several regarding animal abuse to further their mission.  Animal abuse is not justifiable…period.  I’ve yet to talk to a farmer or non-farmer who would say otherwise.  But abuse happens, and PETA is more than happy to make effective use of these examples.  They have an impressive PR machine and plenty of money (total revenue in 2012 reported at $31,014,236) to further their effort.  And, with social media at their disposal, their Reductio ad absurdum arguments travel around the world before farming groups have a chance to catch their breath.

PETA’s most recent video is “Factory Farming in 60-Seconds Flat.”  This 60-second video is disturbing, and, if you are PETA, it’s effective in suggesting the absurd:  that is, all large-scale farming abuses animals; won’t you help us stop it?

At the end of this video PETA states, “If you buy milk, eggs, meat, you’re supporting this. Now that you know, what will you do? And who will you share this with?”  Reductio ad absurdum, used very effectively!

On the environmental front, keep a very watchful eye on the Total Maximum Daily Load issue.  It has been in the news in two prominent cases recently and could have a very significant impact on farming.  To see a commentary on one of the Midwest TMDL issues, see this article by attorney Gary Baise.

Are you up against a tough environmental regulatory issue now?  Are you facing unreasonable requests by regulators?  If you don’t think your current environmental consultants are acting in your best interest, we can help.  Ask senior environmental advisor, Jeffrey Bolin, M.S., CHMM about a Peer Review.  You can reach Jeff at 248-932-0228 ext 125.

Should you use ASTM E1527-13 for CERCLA Liability Protection?

On November 6, 2013, ASTM International, Inc. (ASTM) approved the long-awaited ASTM E1527-13, the Standard Practice for Phase I Environmental Site Assessments.  As far as ASTM is concerned, the new E1527-13 officially replaces the 2005 version (E1527-05).  However, if your environmental due diligence goal includes receiving Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability protection under the federal All Appropriate Inquiries (AAI), E1527-13 may not be your best choice.

ASTM considers E1527-13 to have immediately replaced E1527-05.  But from the perspective of the United States Environmental Protection Agency (EPA), the AAI Rule states that E1527-05 may be used to comply with CERCLA. 

While the EPA will reportedly be formally revising the AAI Rule to recognize E1527-13, they have not done so at the time of this writing.  So, until EPA updates AAI, it may be best to continue to use E1527-05 if the goal includes CERCLA liability protection.

Our advice is to formulate a path forward with input from your environmental advisors (environmental consultants and legal counsel) that will afford you the appropriate liability protection.

If you have questions about environmental due diligence, including Phase I or Phase II Environmental Site Assessments, contact Mark Resch (mresch@dragun.com) or Jeff Bolin, M.S., CHMM (jbolin@dragun.com) at 248-932-0228.

(Thanks to Mark Resch for providing the content of this blog entry)

The Most Recent Vapour Intrusion Guidance for Ontario

On September 26, 2013, the Ontario Ministry of the Environment (MOE) published a “Draft Technical Guidance: Soil Vapour Intrusion Assessment” (http://www.downloads.ene.gov.on.ca/envision/env_reg/er/documents/2013/011-2912.pdf).

This new document (which replaces the November 2010 document), is still labeled as “Draft.”  However, it should be carefully considered, especially if you have potential vapour intrusion (VI) issues.  Also, unlike the 2010 version, the 2013 guidance document has a publication number (8477) and does not have the disclaimer “Do Not Cite or Distribute.”  Does this suggest that this guidance document will also be accompanied by more “regulatory enforcement teeth”?  If you have a potential VI issue that may be affected by this new guidance document, you may want to consult with your legal counsel.

When comparing the 2013 guidance to the 2010 version, the following differences are noted:

• Chapter 7 (Methods for Discerning Contributions of Background from Indoor Sources) was removed.  This chapter may have been removed to avoid suggesting any specific method.
• Changes to the “Recommended Health-Based Indoor Air Target Levels for Selected VOCs” in Appendix IV (Note: This was incorrectly listed in the Table of Contents as Appendix VI)

1. Higher Criteria values for Petroleum Hydrocarbons (PHC) F1 and F2.
2. New Criteria for cis-1,2 trichloroethylene (1,2-DCE) and trans-1,2-DCE – previously there were no criteria listed in Appendix IV.
3. New Criteria for PHC-F2 Aromatic (>C12-C16) and Aliphatic (>C12-C16) – previously there were no criteria listed in Appendix IV.

• A link to calculate Criteria for chemicals other than those tabulated in Appendix IV (http://www.ene.gov.on.ca/environment/en/resources/STDPROD_086520.html).

We often refer to VI as a potential Pandora’s Box when not approached with the proper scientific and strategic rigor for good reason; don’t undertake any VI assessment without a well-reasoned plan.  If you have questions about VI and what it could mean to your site assessment and remediation efforts, contact Dr. Khaled Chekiri (kchekiri@dragun.com) or Andrew Tymec (atymec@dragun.com) at 519-979-7300.

SPCC Update and Environmental Enforcement Concerns

By now you are likely aware that the Spill Prevention Control and Countermeasure Plan (SPCC) rules (for agriculture) went into full effect…pretty much.  While the rules were final in May 2013, essentially the enforcement was delayed until after September 23^rd.

While that date has come and gone, the Senate and House have each passed different version of proposals with SPCC exemption language.  To our knowledge, that is as far as the exemption discussions have reached.

SPCC rules aside, a June 28, 2013, Ohio Court of Appeals ruling from a spill on a farm is a reminder about the cost of spills.

According to the court documents:

On the night of February 13, 2008, the Jefferson Township Fire Department received a call reporting an odor of fuel oil and a visible “sheen” on a local waterway, Swisher Creek. The department responded to the call and followed the leak back from the creek to a machine shop on defendant’s property where two 250-gallon fuel oil tanks were being stored behind the building. Jefferson Township Fire Chief Dale S. Ingram was able to ascertain the source of the leak through stains in the snow and observed that the suspect tank was rusted through and completely drained. Ingram contacted defendant and learned the empty tank was filled a few days before with 250 gallons of fuel oil…

What resulted was a nearly $16,000 cleanup (which is relatively minor in the grand scheme of environmental cleanups).  You can read the ruling here.

With the aforementioned in mind…

1. Whether you do or don’t need an SPCC, make sure you know the conditions of your storage tanks and maintain them properly.
2. If you do need an SPCC, don’t wait for enforcement.  Fines, regardless of whether or not you have had any leaks, can get real ugly real fast, and be more expensive than if you have a release.
3. Don’t get lulled into complacency.  Big fines are not just for smoke stack industries anymore.  Consider the EPA’s enforcement action under the Clean Air Act against Safeway Grocery Stores…they were tagged with a settlement in excess of $4 million!
4. Finally, don’t forget EPA’s recent “Criminal Enforcement Alert” directed at agriculture.

Are you up against a tough environmental regulatory issue now?  Are you facing unreasonable requests by regulators?  If you don’t think your current environmental consultants are acting in your best interest, we can help.  Ask senior environmental advisor Jeffrey Bolin, M.S., CHMM about a Peer Review.