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

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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 9th 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.