EPA Method 5035 in Ontario

If you attended one of our recent seminars (O.Reg. 511: Environmental Site Investigations & Strategic Decisions) regarding the impending changes to O.Reg. 153/04, you may recall that we suggested that it was only a matter of time until the Ontario Ministry of Environment (MOE) would fully implement the new field preservation techniques (USEPA Method 5035) for soil samples collected for Volatile Organic Compounds (VOCs).

Our prediction was fulfilled on February 25, 2011, when the MOE proposed changes to O.Reg. 153/04 in an amendment posted on the environmental registry (these proposed changes are open for comment until April 11, 2011). This new amendment removes one of the previously-approved methods for collection of soil samples for VOCs (using a glass jar with a Teflon®-lined lid with no headspace and no preservative).

Now if you are collecting soil samples for VOC analysis, only two options remain.  One option is using a hermetic sampler (acceptable alternative to USEPA Method 5035). The other option is to field-preserve soil samples using methanol or aqueous sodium bisulphate (consistent with USEPA Method 5035).

As we have previously discussed in our seminars and blogs, when hermetic samplers (no preservative) are employed, the soil samples must be delivered to the laboratory within 48 hours.  However, field preservation with sodium bisulphate or methanol does not have the same, short holding time limitations.

So it appears the question of which techniques you should use for collecting soil VOC samples has been answered; however, it does not appear that everyone is “current” on this issue.  Accordingly, if your project involves collection of soil samples for VOCs, it might make sense to ask a few questions to make sure your samples are collected properly.

Here are a few other proposed changes to O.Reg. 511 to consider:

  • The MOE incorporated higher values for petroleum hydrocarbons (PHC) F1, F3, and F4 in Tables 1, 8, and 9. These changes were a result of MOE’s study “Ontario Typical Range Soil Background Study Project Report” conducted in 2009.
  • The definition of a “well” was altered to not include dewatering or remediation wells.
  • The “Potentially Contaminating Activities” (PCA) list was reduced from 71 to 59 activities by combining similar activities or by removing activities from the list.  Some of the removed activities would likely be captured under the activities that remain on the list.  Of note is the removal of “Printing and Duplicating,” “Photographic Processing,” and “Laboratory and Chemical Analysis” activities.  These activities do not seem to fit under any of the remaining PCAs. It’s safe to say that these types of activities can result in impacts.  So, don’t count on prescriptive lists to define your risks. 
  • Some of the standards for sodium in groundwater in Tables 3, 5, 7, and 9 were increased.  Additionally, some of the standards for mercury and several VOCs in soil were decreased in Tables 4 and 5.

 These are just a few observations we have made after reviewing the MOE’s proposed changes. If you have specific technical questions, contact Clifford Lawton (clawton@dragun.com) or Christopher Paré (cpare@dragun.com) at 519-979-7300.

 By the way, don’t forget to sign up for our April 14th seminar on Environmental Remediation in Burlington, Ontario.

http://www.dragun.com/ca/press/news/remediation/index.htm

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More EPA Enforcement Making News

Further to my point last week regarding administrative oversights leading to costly penalties, I was alerted to this notification over the weekend via a report from the Environmental Protection Agency, Weekly Activity Report for the Week of March 21, 2011 for Region 5.

“On March 22, 2011, Region 5 filed a Consent Agreement and Final Order (“CAFO”) with Cor-Met, Inc. of Brighton, Michigan that simultaneously commenced and concluded an administrative action alleging violations of the Resource Conservation and Recovery Act (“RCRA”). Cor-Met allegedly failed to: (1) label seven 55-gallon containers with the words “Hazardous Waste,” that were observed in an accumulation area during EPA’s inspection; and (2) failed to date the same seven 55-gallon containers with a start accumulation date. The Agency was prepared to file an administrative complaint and seek a civil penalty of $28,895 for these alleged violations.

In accordance with the RCRA penalty policy, and in consideration of Cor-Met’s cooperation and willingness to negotiate a settlement without litigation, Region 5 agreed to settle this matter for $26,005. Cor-Met also certified in the CAFO that they are presently in full compliance with all the statutory and regulatory requirements of RCRA.”

The number one trigger for a regulatory inspection (according to conventional wisdom) is a complaint by an employee or former employee.

To read more about the EPA’s Audit Policy, click here http://www.epa.gov/compliance/resources/policies/incentives/auditing/auditpolicy51100.pdf

If you would like more information about technical assistance with an environmental compliance issue, contact Matthew Schroeder, P.E. (mschroeder@dragun.com) at 248-932-0228.

Refrigeration Co. Pays for Environmental Violations

According to a News Release by the Environmental Protection Agency (EPA), “A refrigerated warehouse company has agreed to pay $75,000 to settle a case brought by the US Environmental Protection Agency for Clean Air Act violations at three cold-storage facilities in Massachusetts.”

While it is not readily apparent in the brief news release, it appears the violations may have been more “procedural” in nature.  The two specific mentions in the release include, “…facilities failed to certify to EPA that they had appropriate CFC recovery or recycling equipment…” and “…company technician serviced appliances containing CFCs on various occasions without being certified by an approved certification program.”

Violations, whether they result in an actual release or are administrative, can be costly.

If you would like to read the News Release from the EPA, here is the link:

http://yosemite.epa.gov/opa/admpress.nsf/d0cf6618525a9efb85257359003fb69d/8000636f6ca5f6c78525785c0065afab!OpenDocument

More EPCRA Enforcement making headlines

According to the EPA Region 5 Weekly Activity Report for the week of March 14, 2011, “Region 5 signed a Consent Agreement and Final Order (CAFO) with Interstate Cold Storage, Inc. (ICS), commencing and concluding an action alleging violations of Section 312(a) of EPCRA. The CAFO alleges that ICS failed to timely submit a completed emergency and hazardous chemical inventory form including ammonia and sulfuric acid for calendar year 2007, for two of its facilities, to the Indiana SERC, the LEPC and the local fire departments with jurisdiction over the facilities. Region 5 proposed a penalty of $154,869, which was reduced to $80,371, in consideration of Respondent’s good faith negotiations, cooperation, size of business and the quick settlement.”

Either I’m seeing more press coverage lately or there is more EPA enforcement.

Hopefully, the regulated community will stay ahead of the curve and avoid “good faith negotiations.”

www.dragun.com

Livestock Air Study “Critique” Begins

Further to our January 14th newsletter, with the completion of the National Air Emissions Monitoring Study (NAEMS), various groups are beginning to weigh in with their opinions.  One of these groups is Environmental Integrity Project (EIP).  The title of their report, “Hazardous Pollution From Factory Farms: An Analysis of EPA’s National Air Emissions Monitoring Study,” is not exactly a “politically neutral” title. 

Following their review of the NAEMS report, EIP offers the following conclusion:

Despite significant influence by the regulated community and problems with both monitoring and data analysis, the NAEMS results document high levels of air pollution around factory farms and demonstrate the need for increased public health protection for rural communities.  This study adds to a growing body of research showing that factory farms are industrial-scale polluters, and EPA’s failure to regulate CAFO pollution under the Clean Air Act and other laws runs afoul of sound science.

EPA should act quickly to use existing emissions research and the results of this study to set emission estimating methodologies that will allow for accurate, site-specific estimates of pollution emitted from the thousands of large CAFOs across the country. Once these methodologies have been established, EPA should protect communities exposed to unsafe levels of particulates, ammonia, hydrogen sulfide, and volatile organic compounds by requiring emissions reporting and the use of technology proven to reduce air pollution.

Here is a link to EIP’s report http://www.environmentalintegrity.org/03_09_2011.php

EIP’s suggestion that the EPA develop emission-estimating methodology is significant.  In the January 31, 2005, Federal Register notice, “Animal Feeding Operations Consent Agreement and Final Order,” there are specific actions required (for those who signed the Agreement) once the estimating methods are available.

(C) Respondent complies with all of the applicable requirements set forth below:

(i) Within 120 days after EPA has published Emissions-Estimating Methodologies applicable to the Emission Units at Respondent’s Source, Respondent submits all Clean Air Act permit applications required by the Permitting Authority for the Source, based on application of those Emissions-Estimating Methodologies (emphasis added).

(a)    For a Source whose emissions exceed the major source threshold in Title I, Part C or D, based on the area’s attainment status (e.g., in an attainment area, more than 250 tons per year of a regulated pollutant), this requirement includes:

(1)   Applying for and ultimately obtaining a permit that contains a federally enforceable limitation or condition that limits the  potential to emit of the Source to less than the applicable major  source threshold for the area where the Source is located; or,

(2)   Installing best available control technology (BACT) in an attainment area, or technology meeting the lowest achievable emission rate (LAER) if the Source is located in a nonattainment area, as determined by and in accordance with the schedule provided by the Permitting Authority for the Source, and obtaining a federally enforceable permit that incorporates an appropriate BACT or LAER limit…

Here is a link to the 2005 Federal Register notice http://edocket.access.gpo.gov/2005/05-1536.htm

The bottom line is the results of this study may have significant implications (economically and operationally) for large livestock operators.

PS. THIS JUST IN – CAFOs required to get CWA permits – ONLY if they discharge!  To read more, go to these links:

http://beefproducer.com/story.aspx/court/strikes/down/cafo/rule/10/47537

http://www.oklahomafarmreport.com/wire/news/2011/03/00164_CAFORuling03162011_043504.php

http://www.nppc.org/

Administrator Lisa Jackson, Testimony Before the U.S. House Committee on Agriculture

As part of a prepared statement before the US House Committee on Agriculture, US EPA Administrator Lisa Jackson said, “…I would like to take a moment today to address some of the mischaracterizations that have been, at times, unaddressed, or that need to be addressed again…”

Administrator Jackson went on to give five examples of how EPA’s intentions have been mischaracterized – mentioning specifically, “emissions from cows,” dust emissions on farms, spray drift, nutrient limits, and regulation of milk as an oil (under the SPCC program).

 Elaborating on the regulation of milk under the SPCC regulation, Administrator Jackson said, “…finally is the notion that EPA intends to treat spilled milk in the same way as spilled oil. This is simply incorrect. Rather, EPA has proposed, and is on the verge of finalizing an exemption for milk and dairy containers. This exemption needed to be finalized because the law passed by Congress was written broadly enough to cover milk containers.  It was our work with the dairy industry that prompted EPA to develop an exemption and make sure the standards of the law are met in a commonsense way.  All of EPA’s actions have been to exempt these containers.  And we expect this to become final very shortly.”

If indeed the EPA takes this action (soon), it will be very welcomed news. To see our previous comments relating to the applicability of the SPCC regulation at agriculture, click here https://alan917.wordpress.com/2010/10/15/spcc-final-rule-%e2%80%93-but-not-the-final-word/

To read the entire prepared statement by Administrator Jackson, click here http://yosemite.epa.gov/opa/admpress.nsf/0/EBC9CF14B126FB318525784F006AF60B

What does EPCRA have to do with your local retail center?

When people think of the Emergency Planning and Community Right to Know Act (EPCRA), they likely think of large manufacturing companies and chemical companies.  After all, according to the Environmental Protection Agency, “EPCRA was passed in response to concerns regarding the environmental and safety hazards posed by the storage and handling of toxic chemicals.  These concerns were triggered by the disaster in Bhopal, India, in which more than 2,000 people suffered death or serious injury from the accidental release of methyl isocyanate.”

The intent of EPCRA is to provide information to the public and emergency responders (“Community Right to Know”) regarding chemical storage to improve safety and to protect public health and the environment.

Here is where the “retail twist” comes in to play.  Unlike Section 313 of EPCRA, which applies to typical manufacturing, mining, chemical, and petroleum type companies, Sections 302 (356 extremely hazardous substances) and 311/312 (500,000 products) are NOT dependant on Standard Industrial Classification (SIC) codes.  That is, Section 302 and 312 applies to every company who stores chemicals above a certain threshold.  So if a retail store has a warehouse that stores chemicals in bulk (even in retail size) they may have EPCRA reporting requirements.

Another consideration is if the warehousing operations have forklifts that are powered by lead acid batteries, there may be enough lead or sulfuric acid in the batteries to require EPCRA reporting.

Bottom line: if this potentially affects you, there may be serious legal consequences.  We would be happy to discuss EPCRA applicability with you but we certainly encourage you to discuss this with your legal counsel as well.

For more information, contact Matthew Schroeder (mschroeder@dragun.com) at 248-932-0228.

Are EPA’s comments troubling?

According to a report in Reuters, EPA Administrator Lisa Jackson told the Senate’s Environment and Public Works Committee in defending the EPA’s budget, “Big polluters would flout legal restrictions on dumping contaminants into the air, into rivers and onto the ground.”

Really?  Is this what Administrator Jackson believes or is this just hyperbole to protect the administration’s budget?  I hope it is the later, if not; this is, in my opinion, a very hostile and demeaning comment on American businesses.

I personally find use of term “big polluters” to be irresponsible. Are there “big polluters” causing problems?  Sure there are, but my experience over the past three plus decades in the environmental business leads me to believe that most companies make every effort to act in a responsible manner.

To read the story in Reuters click on the link below.

http://www.reuters.com/article/2011/03/03/us-usa-epa-budget-idUSTRE72181V20110303

The New Field Preservation Technique for VOCs & Strategic Decisions in Ontario

As we get closer to the July 1, 2011, deadline for changes to O.Reg. 511/09, there has been an increased buzz and concern about the practical implementation of the regulation. We’ve had calls from clients, laboratories, and vendors nearly every week since the beginning of this year with technical questions.  Many stakeholders are wondering what the future is for field preservation of soil samples for Volatile Organic Compounds (VOCs).

Briefly, the Ministry of Environment’s (MOE) analytical method protocol, which came out December of 2009, discusses three different technical options for collection, preparation, and preservation of soil samples in the field.

1.    No headspace soil sample in a glass jar with a Teflon®-lined lid (no preservative). Note: must be delivered to the laboratory within 48 hours. This is not a USEPA 5035 (Method 5035).

2.    EnCore sampler (no preservative). Note: must be delivered to the laboratory within 48 hours (consistent with Method 5035).

3.    Field preservation with sodium bisulphate or methanol (consistent with Method 5035). Does not have the same short holding time limitations.

So the question is which technique should you use? That depends on a number of factors that should be discussed as you are developing your work plan.

We have been hearing from several sources that the MOE will be strongly suggesting that Method 5035 techniques be employed; however, we are not sure if the Ministry will issue a guidance document or propose an amendment to O.Reg 511/09.  Regardless of the current discussions related to the use of Method 5035 field preservation methods, there may be a good reason to use this method on current projects.

Data collected by regulators in the United States document that using Method 5035 will yield more representative VOC concentrations in soil samples. It may be prudent to discuss the use of this method with your technical and legal advisors.

So where does this leave us:  Probably with more questions than answers. Will there be additional cleanup obligations by following the Method 5035 techniques?  That is a possibility, because Method 5035 does typically lead to higher VOC results (when VOCs are present).  Will a project site be reopened because historic soil sampling was not conducted using Method 5035?  Seems possible, but certainly something to discuss with legal counsel.

Again, how you approach sampling for VOCs involve some strategic considerations; technical and legal. If you have specific technical questions, contact Clifford Lawton (clawton@dragun.com) or Christopher Paré(cpare@dragun.com) at 519-979-7300.