New Cleanup Standards in Ontario: Case Study

If you are attending the CANECT Conference in Mississauga, Ontario on May 1 & 2, one of my colleagues, Chris Paré, will be conducting a 20 minute “Floor Presentation” from 12:10 to 12:30 pm on May 1st (see abstract below).

Working with the new Environmental Cleanup Standards

When the new cleanup standards (O.Reg 153/04, 511/09) were proposed, there was a lot of concern about how these new cleanup standards would affect site investigation and remediation activity in Ontario. Would there be increased costs? Would projects linger and never be completed? Would these standards make site redevelopment impossible? In our brief presentation we will look at “real world” case studies (from site investigation to remediation) using the new cleanup standards. We will examine how the new Standards have affected the cost and timing of investigations and/or remediation.” The case studies are based on soil and groundwater assessments and remediation projects completed within the past 12 – 24 months.

FIFRA Violations Lead to $910,000 Fine

In a report from the US Environmental Protection Agency on March 30, 2012, “North American Green, Inc. (NAG), an agricultural materials company with a manufacturing plant located in Poseyville, Indiana, pleaded guilty to 150 counts of using a registered pesticide in violation of FIFRA on March 21, 2012.”

The report goes on to say that the company was ordered to take “remedial action and was fined $910,000.”  According to the EPA’s report, “NAG sold erosion control mats, which are required in many states and countries to be fumigated for pests. NAG fumigated using a product called ‘Meth-O-Gas,’ which is a registered pesticide that has been found to cause serious acute illness, lung or nervous system damage, or even death in those exposed to it in dangerous quantities.”

The EPA said that their case developed after a “NAG employee told federal authorities that NAG had been signing his name on certificates related to the fumigations without his knowledge or consent.”  Subsequent investigations revealed a number of other occasions in which Meth-O-Gas had been used improperly.

NAG was ordered to institute an employee training program, to “develop a corporate environmental compliance policy, to submit to an independent audit of its ongoing compliance with federal regulations, and to issue a public apology in local newspapers.” NAG was also placed on probation for a period of three years.

If you have questions about environmental compliance, permitting or planning issues, contact Matthew Schroeder, P.E. (mschroeder@dragun.com) at 248-932-0228.

Clean Water Act Battle Lines and Supreme Court Rulings

House and Senate GOP Members are calling on the Office of Management and Budget to reject the Environmental Protection Agency (EPA) and United States Army Corps of Engineers’ (USACE) “Guidance” for identifying waters protected by the Clean Water Act.

The Members state in part, “We continue to be concerned that this so-called guidance misconstrues and manipulates the legal standards announced in the SWANCC and Rapanos Supreme Court decisions…and will not further the goal of clarifying which waters are subject to CWA jurisdiction. We are also concerned that the Administration is seeking, through so-called guidance, to change the scope and meaning of the CWA.”

In fact, U.S. Senators John Barrasso, R-Wyoming., Jim Inhofe, R-Oklahoma., Dean Heller, R-Nevada., Jeff Sessions, R-Alabama., and 26 other Senators have introduced the “Preserve the Waters of the U.S. Act.” This legislation is intended to prevent the EPA and USACE from issuing their “Final Guidance on Identifying Waters Protected by the Clean Water Act.”

Senator Inhofe said, “The Obama-EPA continues to pursue a water guidance document that sets the stage for the federal government to take over virtually every body of water in the United States from irrigation ditches to puddles of water on the road. Republicans believe that any changes to the Clean Water Act through the Administration should be done through rulemaking, which requires a transparent process that allows for a public comment period. Instead, the Agencies appear to be skipping these required steps and relying on this guidance document to change the scope and meaning of the Clean Water Act. We will continue fighting this every step of the way.”

This action comes on the heels of the unanimous Supreme Court ruling in favor of property owners in Sackett v. EPA. In this case, the Sacketts (property owners) attempted to prove that their property was not a wetland, but EPA proceeded to issue a compliance order that if not obeyed, would result in fines of up to $75,000 a day.  The Supreme Court issued a unanimous decision in favor of the property owners.  Justice Alito’s concurring opinion provides in part:

“The position taken in this case by the Federal Government—a position that the Court now squarely rejects—would have put the property rights of ordinary Americans entirely at the mercy of Environmental Protection Agency (EPA) employees.”

“The reach of the Clean Water Act is notoriously unclear.  Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy.”

The Dragun Corporation was involved in the Rapanos Case (Supreme Court Case mentioned above) when Dr. Michael Sklash, Dragun senior hydrogeologist, was asked to evaluate the nexus between the groundwater and surface water at the Raponos properties.

Certainly, the CWA will continue to be a political and environmental hot button that bears watching.