Huge Clean Air Act Settlement from Unlikely Source: A Grocery Store!

According to the EPA, Safeway, the nation’s second largest grocery store chain, “has agreed to pay a $600,000 civil penalty and implement a corporate-wide plan to significantly reduce its emissions of ozone-depleting substances from refrigeration equipment at 659 of its stores nationwide.”  The total cost of the settlement and implementation of the plan are estimated to be approximately $4.1 million.

The EPA release states, “The settlement resolves allegations that Safeway violated the Clean Air Act by failing to promptly repair leaks of HCFC-22, a hydro-chlorofluorocarbon that is a greenhouse gas and ozone-depleting substance used as a coolant in refrigerators, and failed to keep adequate records of the servicing of its refrigeration equipment.”

It was just this spring when Wal-Mart was tagged for $110 million fine under the Clean Water Act and the Federal Insecticide, Fungicide, and Rodenticide Act.

So, who or what is next on the EPA Enforcement Agenda?  EPA’s Selection of National Enforcement Initiatives for FY 2014-2016 might provide some clues, but a collective head’s up to companies of all NAICS seems to be in order.

…and if you haven’t already done so, surround yourself with trusted environmental advisors; we can provide some guidance in this area.

Environmental Enforcement – What Can We Expect?

As we await the Environmental Protection Agency’s (EPA) annual enforcement action summary (typically in November or December), we might gain some insight on the FY 2012 results by looking at some current enforcement action, as well as, last year’s enforcement results.

For FY 2011 EPA Compliance and Enforcement was very busy, including $168 million in assessed penalties, an additional $25 million in “additional investments” for supplemental environmental projects (SEPs), and 89.5 years of incarceration for “environmental criminals.”  According to the EPA, “enforcement actions required companies to invest an estimated $19 billion in actions & equipment to control pollution (injunctive relief) – an EPA record (their emphasis).

One recent environmental enforcement story seems to indicate this trend will continue.  In the publication, “Environmental Compliance Alert,” their headline story was about a glassware factory’s Clean Air Act (CAA) violation.  The CAA violation cost the company in excess of $10 million!

Interestingly, the actual violation (failure to apply for a preconstruction permit to limit NOx and PM emissions) dates back to 1999.  As you can imagine, all of this triggered “protracted enforcement negotiations with the EPA, the US Justice Department, and New Jersey’s attorney general.”

So where has all this enforcement been taking place?  The EPA has developed an interesting interactive map that provides detailed information about the civil enforcement actions taken by the EPA, criminal cases prosecuted by the EPA, and cases in which the EPA provided “significant support to cases prosecuted under state criminal laws.”

What can the regulated community expect in 2013 and beyond?  We’ll not speculate but, it is our hope that the nation’s top environmental agency will focus on true environmental protection and not aim at breaking enforcement records.

Finally, considering the potential “enforcement climate” and in the spirit of capitalism and shameless self-promotion, we’ll remind you that we get it.  Our job is to use our knowledge of science, engineering, and regulations to find solutions, which includes saving you money.  We’re not bashful in our defense of science and reason, including how we helped our client avoid spending $5 million in environmental remediation.  We will also say, in no uncertain terms, that our solution provided better environmental protection than would have been afforded had the $5 million been spent.  This, in our mind, is environmental consulting.

As 2013 unfolds, we’ll keep an eye on the environmental enforcement trends, and we will keep you informed on our observations.

In the meantime, we wish everyone a happy, restful, and joy-filled Holiday Season.

Proposed Consent Decree Has a Big Price Tag

On October 25, 2012, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Western District of Michigan in the lawsuit entitled United States v. Kellogg USA, Inc., et al., Civil Action No. 1:12-cv-01164.

As printed in the Federal Register, “In a Complaint filed…under the Clean Air Act (Act), the United States seeks injunctive relief and civil penalties regarding the Prevention of Significant Deterioration (PSD) and Title V provisions of the Act, and PSD provisions of the Michigan State Implementation Plan, for violations at Kellogg’s cereal and snack food manufacturing plants located in Battle Creek, Michigan and Grand Rapids, Michigan. The proposed Consent Decree requires Kellogg to reduce its Volatile Organic Compound permit levels at both facilities, perform a mitigation project (costing more than $435,000) to replace a cooling and dehumidifying system that uses the refrigerant R-22 with a chilled water system that does not use R-22, and pay a $500,000 civil penalty.”

See Federal Register Notice http://www.gpo.gov/fdsys/pkg/FR-2012-11-01/html/2012-26833.htm

See our Environmental Minute discussing Environmental Compliance & Enforcement 2012.

US Chamber Critical of EPA’s Perchlorate Decision

Critics of the Environmental Protection Agency (EPA) often point to the EPA’s lack of scientific evidence or poor interpretation of data when new regulatory standards are being developed. Currently, the EPA is in the process of evaluating the chemical perchlorate that “will likely specify an enforceable Maximum Contaminant Level (MCL) and monitoring and reporting requirements for public water systems.”  With this pending regulation of perchlorate, critics are again suggesting that EPA is not using a robust scientific process.

In fact, the United States Chamber of Commerce is urging the EPA to withdraw their decision to regulate perchlorate.  In their letter to the EPA, the Chamber of Commerce stated that the agency “improperly relied upon data that was not objective.”

Perchlorate is ubiquitous in the environment and according to the EPA perchloate, “…is both a naturally occurring and man-made chemical that is used to produce rocket fuel, fireworks, flares, and explosives.  Perchlorate can also be present in bleach and in some fertilizers.”

In their September 2012, 14-page letter to the EPA, the Chamber concludes that the “…dataset is outdated, inaccurate, unreliable and very significantly biased (to the high side).  As a result, the data set does not qualify as objective data…it should not have formed the basis for the perchlorate regulatory determination.”

More information about the regulation of perchlorate can be found at the EPA’s website.

What new Primary Drinking Water Standards may be developed as a result of the decision to regulate perchlorate, and how this will impact the regulated community, remains to be seen.

$12.5 Million FIFRA Fine

The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is not one of those environmental acts/regulations that “rolls off your tongue” with ease.

Unfortunately, Scotts Miracle-Gro has become all too familiar with FIFRA after the September 7, 2012 sentencing in federal district court in Columbus, Ohio.

According to a report from the Environmental Protection Agency (EPA), “Scotts pleaded guilty in February 2012 to illegally applying insecticides to its wild bird food products that are toxic to birds, falsifying pesticide registration documents, distributing pesticides with misleading and unapproved labels, and distributing unregistered pesticides.”

Some environmental compliance tips can be found in our Environmental Minute, “Environmental Compliance & Enforcement 2012.”

To read more about the FIFRA fine click here http://yosemite.epa.gov/opa/admpress.nsf/0/38045218FAA33ABE85257A72006BEF1C

Changes to Michigan’s LUST Regulations

As of May 1, 2012, Michigan’s regulation (Part 213 of PA 451) designed to address Leaking Underground Storage Tanks (LUSTs) in Michigan have changed. Here are a few key points regarding the changes:

• Part 213 is clearly separated from Part 201 (Remediation).

• Free Product, which was previously defined to be at least one eighth of an inch of product, is now defined as (dense) and (light) non-aqueous phase liquids (NAPL, DNAPL, and LNAPL). More specifically, free product is
o Migrating NAPL
o Mobile NAPL
o Residual NAPL

• The Risk-Based Corrective Action (RBCA) process must be used to assess contaminated properties.

• The Michigan Department of Environmental Quality (MDEQ) must determine if they will audit a report within 90 days of submittal and must complete the review within 180 days.

• Initial assessment reports are now due in 180 days following a confirmed release (previously 90 days). A report can only be audited once. A report is considered “approved” if the MDEQ does not perform an audit or provide a written response to the owner/operator.

• “Deficient” reports only have to resubmit deficiencies. The MDEQ review must be completed within 90 days.

• The MDEQ must provide 15-day prior notice before “red tagging” a UST.

• The MDEQ will no longer maintain the Qualified Consultant/Certified Professional (QC/CP) list. The owner/operator is now responsible for assuring the consultant meets the QC/CP requirements. Consultants will continue to sign an affidavit attesting to their qualifications.

This is just a brief overview of some of the changes. If you have any specific questions related to UST assessments or closures or any other environmental consulting matter, contact Matthew Schroeder, P.E. (mschroeder@dragun.com) at 248-932-0228.

Environmental Fines Reach Seven (plus) Figures for Retailers

You don’t need to be a typical “smokestack” company anymore to get hit with environmental fines.  According to a news report, “Costco has agreed to payout $3.6 million to put to end litigation against it for violations of state hazardous waste laws, the Santa Clara County District Attorney office announced Monday.”

The article goes on to say, “The statewide probe concluded that Costco improperly disposed of aerosol cans, used batteries and electronic devices. The investigations, which began in San Joaquin County, also found that employees did not dispose of the in-house cleaning supplies or other hazardous wastes safely.”

An interesting side note at the end of the article says, “As part of an analogous investigation, CVS settled with the state (California) in April for $13.75 million.”

If you have questions relating to environmental compliance or expert environmental services, contact Matthew Schroeder, P.E. (mschroeder@dragun.com) at 248-932-0228.

Link to the article: http://mountainview.patch.com/articles/costco-to-pay-county-29-750-in-settlement-from-environmental-suit

June 12, 2012 Deadline for AST/UST Systems on Federal and Aboriginal Lands

If you are the owner or operator of aboveground storage tanks (ASTs) and/or underground storage tanks (USTs) on Federal or Aboriginal lands, you are probably aware of the rapidly approaching deadline (June 12, 2012).

Some of the specific deadline requirements include the following:

  • USTs that are installed “above ground” or within an open secondary containment must be withdrawn from service by June 12th.
  • Partially buried or bunker tanks must be withdrawn from service by June 12th.
  • ASTs that are buried, partially buried, or within a filled secondary containment must be withdrawn from service by June 12th.  
  • Existing single walled USTs must be removed by June 12th UNLESS they have cathodic protection, leak detection equipment and groundwater or vapour monitoring wells.
  • Product transfer areas are to be designed to capture spillage during the transfer of product.

Here are some reminders to maintain compliance: 

  • Maintain your inventory control records.
  • Keep an ongoing log of any maintenance activities.
  • Implement and document your engineering controls (to prevent loss).
  • Make sure you have an emergency plan in place.
  • If you have any reporting obligations, make sure you do so promptly and again, keep records.

Of course, if you know of leaks in your storage tank system(s), take the tank out of service immediately. 

A release from an AST/UST can quickly become a catastrophic event for owner/operators, costing tens-of-thousands, if not hundreds-of-thousands of dollars to remediate soil and/or groundwater.  A properly designed and engineered fuel storage system will significantly reduce the risks associated with operating these systems.

If you have any questions about AST/UST compliance, contact Christopher Paré (cpare@dragun.com) at 519-979-7300.

Vapor Intrusion: Update on EPA’s Actions

On April 12, 2012, one of my colleagues, Dr. Khaled Chekiri, attended the “USEPA and Region V States Vapor Intrusion Video Conference Roundtable.”  The Video Conference was hosted by Barnes & Thornburg, LLP in their Grand Rapids, MI office. 

Some of the issues discussed included:

  • Decision making criteria for ruling VI in/out
  • Screening levels for contaminants with no published inhalation toxicity criteria (e.g., cis-1,2-DCE, MTBE)
  • Methane accumulation underneath buildings resulting from bioremediation of chlorinated compounds
  • Standard method recommended by EPA (sampling, leak detection)
  • The role of sub-slab pressure tests, indoor air tests; frequency of testing; the need for long-term monitoring
  • Vapor movement through soils and VI conducted in wetter climates with various soil regimes
  • Sub-slab testing protocols for large buildings (commercial/industrial settings)
  • Coordination with OSHA
  • Guidelines for dry cleaners who no longer use PCE (pick-up/drop off)
  • Criteria for requiring  installation of mitigation systems in residential and commercial settings
  • Discussion of radon mitigation system applicability to vapor mitigation
  • Long-term operation, maintenance, and monitoring guidelines for mitigation systems
  • Passive and long-term sampling
  • Decision making criteria when a VI mitigation system is no longer needed
  • Post-mitigation testing regime for a building

The United States Environmental Protection Agency (USEPA) stated they are still committed to November 2012 for final Vapor Intrusion (VI) guidance.  The guidance will address changes in toxicity values for PCE and TCE, mitigation methods, vapors related to petroleum hydrocarbons, and acceptable institutional controls.

Finally, a document that provides a conceptual model scenario for the VI Pathway is available for free download at http://www.epa.gov/oswer/vaporintrusion/.  The model may provide a “visual” help in determining the source location for various site conditions.  For example, the model shows that the distribution of petroleum compounds in soil gas can be very different from that of chlorinated compounds. 

This is just a brief overview of the four-hour conference.  If you have specific questions about VI, contact our Vice President of Technical Operations, Jeffrey Bolin, M.S., CHMM (jbolin@dragun.com) or Khaled Chekiri, Ph.D., P.E. (kchekiri@dragun.com) at 248-932-0228.

Please note: we continue to caution our clients to very carefully consider options before moving forward with any sampling related to assessing the potential impact of vapors.

For an overview of VI, see our March 2011 article in ESE “Vapour intrusion from soil and groundwater: A challenge for property owners”

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.