EPA Finalizes Universal Waste Rule for Hazardous Aerosol Can Wastes, Streamlining Requirements for Their Management

Written by Aaron H. Goldberg, Principal, Beveridge & Diamond

On November 15, 2019, the Administrator of the U.S. Environmental Protection Agency (EPA) signed a final rule to classify and regulate hazardous aerosol can wastes as “universal wastes” under the federal Resource Conservation and Recovery Act (RCRA) hazardous waste rules. Once the rule becomes effective, hazardous aerosol can wastes will be subject to substantially reduced requirements for collection and transport, in order to facilitate and encourage environmentally sound recycling or disposal. However, the ultimate recycling and disposal facilities will remain subject to essentially the same requirements as currently apply. As discussed below, even though the final rule is largely consistent with existing requirements for other universal wastes, and even though EPA has finalized the proposal with only limited changes, there are several aspects of the rule that warrant special attention.

The final rule builds on existing universal waste requirements for other ubiquitous hazardous wastes, such as batteries, lamps, mercury-containing equipment, and certain pesticides. See generally 40 C.F.R. Part 273. Among other things, the aerosol can wastes will no longer have to be labeled as hazardous wastes (although they will be subject to reduced marking requirements), they may be stored for up to one year or even longer in some cases (rather than just 90 days for large quantity generators), they may be transported offsite without a hazardous waste transporter or hazardous waste manifest, and collection facilities not engaged in treatment or disposal will not have to be permitted as hazardous waste storage facilities. In addition, only large handlers of universal wastes (e.g., facilities that accumulate 5000 kg or more of total universal wastes at any time) will be required to notify EPA and track shipments of the hazardous aerosol can wastes. Aerosol can wastes generated by households and Very Small Quantity Generators (VSQGs) meeting applicable requirements will remain exempt from the RCRA regulations. However, all aerosol wastes will remain subject to applicable requirements under the U.S. Department of Transportation (DOT) Hazardous Materials Regulations (HMR) (although under those rules, if aerosol cans are classified as universal wastes, they will not be subject to the enhanced DOT requirements that normally apply to RCRA hazardous wastes). See 49 C.F.R. § 171.8 (defining “hazardous wastes” for purposes of the HMR as materials subject to federal hazardous waste manifest requirements).

Several key aspects of the final rule are discussed below. We note that the discussion here is based solely on the pre-publication version of the final rule and preamble. It is possible (though unlikely) that there may be some substantive changes in the rule when it is published in the Federal Register. In addition, EPA’s Response-to-Comments document and economic assessment for the rule (neither of which are currently publicly available) may provide a further gloss on some of the issues addressed here.

Definition of Aerosol Can

The proposed rule would have limited the definition of “aerosol cans” subject to the rule to containers that use gas to “aerate and dispense any material … in the form of a spray or foam.” In this way, the proposal would have excluded cans that dispense products without aeration (e.g., shaving gels) and cans that release only gas (e.g., spray dusters or aerosol horns). In response to comments, EPA modified the definition in the final rule so that it is more inclusive and consistent with DOT rules. Under the final rule, cans that dispense products without aeration will be eligible for management as universal wastes. However, gas-only products will be excluded. DOT is currently considering a petition to revise its definition to include these products, consistent with international rules for dangerous goods transport. See Petition of the Consumer Specialty Products Association, et al. to DOT (September 28, 2017). Unfortunately, the preamble to EPA’s final rule does not mention this petition, and it is unclear if the Agency would amend the definition in the universal waste rule if/when DOT changes its definition.

Status of Aerosol Cans with Evidence of Leakage/Damage

The proposed rule would have excluded from the scope of the universal waste rule any aerosol cans that “show evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions.” Commenters expressed concern that this proposed limitation was highly ambiguous, could effectively eviscerate the rule and was unnecessary from an environmental perspective (since EPA could simply require more protective packaging for leaking aerosol cans). In the final rule, the Agency agreed with the commenters and added new provisions specifying that “[u]niversal waste aerosol cans that show evidence of leakage must be packaged in a separate closed container or overpacked with absorbents, or immediately punctured and drained.” EPA also modified the definition of aerosol can so that it no longer requires that cans be “intact” to be classified as universal wastes.

Status of Empty Aerosol Cans

The final rule, like the proposed rule, excludes aerosol cans that meet the regulatory definition of an empty container. This exclusion raises a number of issues, as discussed below:

  • Commenters on the proposed rule asked EPA for clarification about when aerosol cans are properly deemed empty. They noted that it is unclear how the regulatory definition of empty and related Agency guidance applies to aerosol cans. EPA largely side-stepped this issue in the final rule. It merely restated the regulations and guidance and said that further clarifications or modifications to the relevant rules were outside the scope of the rulemaking.
  • Commenters raised questions about the relationship of the exclusion for empty cans with past EPA statements that such cans may sometimes exhibit the characteristic of reactivity. See EPA, RCRA Hotline Report (September 1987) (RCRA Online #13027) (“Irrespective of the lack of contained waste, [empty] aerosol cans would be a RCRA hazardous waste [to the extent] they demonstrate the hazardous characteristic of reactivity”). Neither the final rule nor the preamble addresses this issue.
  • The proposal left open the question as to whether empty cans could voluntarily be managed as universal wastes. In the preamble to the final rule, EPA clarified that empty cans may be managed as universal wastes, even though they do not have to be.

Other Issues Related to the Applicability of RCRA to Aerosol Cans

Commenters on the proposed rule asked EPA for guidance on several fundamental issues associated with the applicability of RCRA to aerosol cans in the first instance. For example, they requested guidance on the extent (if any) to which aerosol cans destined for recycling are properly classified as solid wastes (and thus potentially hazardous wastes). The commenters also asked the Agency for guidance about when (if ever) waste aerosol cans (empty or non-empty) might be classified as reactive hazardous wastes, and (as noted above) when aerosols cans qualify as empty. However, the final rule and preamble are essentially silent on these issues. Moreover, even though EPA had previously committed to providing such guidance as part of its 2016 strategy for addressing the applicability of RCRA to the retail sector, the preamble to the final rule states that “EPA has [now] completed all commitments made in the Retail Strategy,” which suggests that the guidance may not be forthcoming. See EPA, “Strategy for Addressing the Retail Sector under the Resource Conservation and Recovery Act’s Regulatory Framework” (September 12, 2016) at 6 (“EPA is developing a guide on how to recycle aerosol cans under the existing Subtitle C recycling exclusions”).

Allowance of Certain Processing Activities by Handlers

The final rule allows handlers of universal waste aerosol cans to perform certain limited activities, “as long as each individual aerosol can is not breached and remains intact”:

  • Sorting aerosol cans by type.
  • Mixing intact cans in one container.
  • Removing actuators to reduce the risk of accidental release.

Although there may be some uncertainty, it appears that these activities may only be performed with intact containers, even though (as noted above) EPA has modified the definition of aerosol can to eliminate the “intact” requirement. For these purposes, it appears that a can with a removed (or possibly missing) actuator would still be viewed as intact, assuming the integrity of the can has not otherwise been compromised.

Special Rules for Puncturing and Draining of Aerosol Cans

Even though puncturing and draining of hazardous aerosol cans is currently exempt from RCRA regulation if performed as part of a recycling process, the final rule imposes new requirements for puncturing and draining by handlers of universal waste aerosol cans (whether they are processing their own aerosol can wastes or those generated by others). For example, these activities will have to be performed using a device (commercial or “homemade”) that is specifically designed to do so in a safe manner that effectively contains residual contents and emissions. The handler will have to develop and follow written procedures to ensure proper operation of the equipment (including segregating incompatible wastes and preventing fires/releases) and to respond to any spills or releases, and it will have to ensure relevant employees are adequately trained. The contents drained from the aerosol cans will have to be “immediately” transferred to a tank or container meeting applicable hazardous waste generator requirements (e.g., the requirements for 90-day accumulation units or satellite accumulation units). A hazardous waste determination will have to be performed on the drained contents, and the materials will have to be managed accordingly. The drained cans will have to be recycled, and since they will be eligible for the RCRA exemption for recycled scrap metal, they will not have to be subjected to a hazardous waste determination. EPA notes that all of these activities must be conducted in compliance with all applicable federal, state, and local laws and regulations related to solid or hazardous wastes, as well as occupational safety and health.

Adoption by the States

EPA states that the final rule is “less stringent than the current federal program” and thus “states … will not have to adopt the universal waste regulations for aerosol cans.” However, as noted above, the new rules for puncturing and draining are more stringent than current rules (because those activities are currently exempt from regulation if performed as part of a recycling process), which casts doubt on the Agency’s claim that the final rule (in its entirety) is less stringent.

Shipments Between States

Despite requests from commenters for EPA to address this issue, the final rule and preamble are silent on the requirements that will apply to aerosol cans shipped from, to, or through states that do not adopt (or have not yet adopted) a universal waste rule for aerosols. In prior universal waste rules for other wastes, EPA has claimed that, in such circumstances, the waste would have to be transported in the non-universal-waste states by a hazardous waste transporter and with a hazardous waste manifest. See, e.g., 64 Fed. Reg. 36,466, 34,483 (July 6, 1999) (universal waste rule for lamps) (“[if] a [federal universal waste is] transported across a State in which it is subject to the full hazardous waste regulations … [t]ransport through the State must be conducted by a hazardous waste transporter and must be accompanied by a manifest”); 70 Fed. Reg. 45,508, 45,517 (August 5, 2005) (universal waste rule for mercury-containing equipment) (same). However, there appears to be a strong argument under the Hazardous Materials Transportation Act (HMTA) that state rules requiring a manifest are preempted if (as would be the case here) federal law does not require a manifest. See, e.g., Letter from Michael Shapiro, Director, Office of Solid Waste, EPA, to Richard J. Barlow, Chair, Northeast Waste Management Officials’ Association (June 11, 1996) (RCRA Online #14135) (“[although] preemption authorities are [generally] quite foreign to RCRA … they are introduced into the transporter area by the statutory directive in RCRA to maintain consistency with the DOT framework”); 49 Fed. Reg. 10,490, 10,492 (March 20, 1984) (federal law “prohibit[s] States from requiring separate State manifests or other information to accompany waste shipments”); id. at 10,494 (“States are not precluded from setting up another system of forms . . . as long as the system does not interfere with the actual shipment of waste [and] transporters [are] not . . . required to carry these forms”). Similar arguments may apply with respect to state requirements to use a hazardous waste transporter for a federally designated universal waste.

Next Steps

The final rule is expected to be published in the Federal Register in the next few weeks and will become effective at the federal level six months later, or approximately in early June 2020. The rule will not become effective in most states unless and until they act to adopt the rule, which (as discussed above) EPA says they will not be required to do (on the ground that the rule is less stringent than existing requirements). However, because several states have previously classified hazardous aerosol can wastes as universal wastes (e.g., California, Colorado, Utah, New Mexico, and Ohio) and another is poised to do the same (i.e., Minnesota), it can be reasonably expected that virtually all states will eventually follow EPA’s lead on this issue (possibly with some variations).

For more information about the final rule and its potential implications, please contact Aaron Goldberg or any other members of our Waste and Recycling practice group.

This article has been republished with permission of the author.  It was first published on the Beveridge & Diamond website.  


 

About the Author

Aaron applies his encyclopedic knowledge of hazardous waste regulatory law to help companies comply under federal and state laws—throughout all 50 states—and abroad.

He holds an advanced degree in chemistry, has extensive training in economics, and is a former U.S. Environmental Protection Agency consultant. His unique, multidisciplinary background—law, science, economics, and government—informs nearly every aspect of his work and makes him a useful bridge between attorneys, engineers, business managers, consultants, and regulators.

Aaron has focused on hazardous waste issues since the beginning of the federal regulatory program in 1980. With this historical experience, he offers clients comprehensive regulatory counsel on hazardous waste matters, including compliance strategy, advocacy, rulemaking challenges, end-of-life product management, permits, variances, and enforcement action response. His clients consist of companies and trade associations in the chemicals, electronics, recycling, petroleum, pharmaceuticals, retail, steel, and mining industries.

Environmental Liability Policies: The Extent Of Coverage

Written by Robert Emblem, Partner and Gabrielle Dumas-Aubin, Senior Associate, Clyde & Co

The authors wish to thank Raphaëlle Dussault for her contribution to the article

Soil contamination can expose landowners and businesses to significant liability. But Clyde & Co recently secured a Quebec ruling that demonstrates they should not assume that environmental liability insurance policies offer blanket protections against environmental risks. Indeed, there are significant differences between the types of coverage that they can offer.

In its judgment, in Paquet & Fils Ltée the Quebec Superior Court ruled on the applicability of an environmental cleanup and liability insurance policy for storage tanks. The defendants, a pool of insurers, issued the policy to the plaintiff, Paquet & Fils Ltée, a distributor of petroleum products, for its gas station located in Saint-Damien-de-Buckland, Quebec.

This lawsuit came about following the plaintiff’s discovery of contaminated soils at its gas station. The plaintiff had not conducted environmental testing when it acquired the site, nor when it dismantled the gas station.

It presented a claim to the Encon Group Inc. (which was acting as an insurance manager for the defendants) under the policy for the cost of decontamination. Encon denied coverage on the grounds that the plaintiff did not prove that the source of contamination originated from a storage tank leak during the period of insurance, as required under the policy.

The plaintiff sued the defendants contesting the denial of coverage, claiming that by taking such a position, the defendants never assumed any risk under the policy. It also argued that the defendants have been acting in bad faith when they initially issued the policy and following the receipt of its notice of claim. In particular, the plaintiff asserted that before issuing the policy, the defendants should have investigated the risk further instead of relying on the plaintiff’s statements. The plaintiff also argued that the defendants failed to advise it of the importance of identifying the source and age of the contamination. Finally, had it not been for the defendants’ late denial, the plaintiff claimed, it could have resumed its commercial activities at the site without having to decontaminate it.

Clyde & Co lawyers responded for the defendants that they were justified in denying coverage since the plaintiff failed to demonstrate, on a balance of probabilities, the existence of a “release,” within the meaning of the policy, during the period of insurance.

Initial comments

The court began by reviewing general interpretation principles for insurance policies. It explained that it was up to the insured first to establish that the claimed damage or loss falls within the initial grant of coverage. Following that, the insurer could prove that an exclusion applied. The court also noted that when the policy is unambiguous, it should give effect to clear language, reading the contract as a whole.

The court added that the insured could meet its onus by any means, including a presumption of fact, provided that it is serious, precise and concordant. That said, it notes that a presumption of fact cannot be deduced from a pure hypothesis, vague suspicions or mere conjecture. The court concluded that no presumption of fact was of assistance to the plaintiff in this case.

Policy triggers

The court explained that for coverage to be triggered under the policy, the plaintiff must prove, among other things, (1) the source of the contamination (i.e. a “release” originating from a “storage tank system”) and (2) the age of the contamination (i.e. started on or after the “retroactive date” specified in the policy).

It emphasized that the policy only covers a “release” originating from a “storage tank system” as opposed to one that occurs in the context of the plaintiff’s operations. Reviewing expert opinions and testimony, it indicated that it could not reasonably infer that a “release” had occurred. Even the plaintiff’s expert could not exclude that the plaintiff’s operations might have been the source of the contamination.

The court noted that no one had noticed or recorded a leak or any irregularity, which might suggest that a leak originated from a storage tank during the coverage period (on or after the “retroactive date”). In particular, it stressed that none of the experts could determine when precisely the contamination happened or how recently.

The court concluded that, in the absence of serious, precise and concordant facts proving that a release started during the period of coverage, the plaintiff could not demand that the defendants pay for the decontamination.

Illusory coverage and the insurers’ failure to investigate

The court also rejected the argument that the defendants never actually covered any risk. If, during the policy period, the plaintiff had observed a leak originating from its “storage tank system,” had conducted a proper investigation as required by the policy, and notified the defendants, there is no reason why coverage would have been denied.

The court also found that the defendants had no obligation to collect additional information to assess the risk at the time of the application for insurance. It made a distinction between the present matter and the case where the defendants would seek to cancel the policy for misrepresentation or non-disclosure of the material facts that affected their acceptance of the risk or setting the premium.

As for the allegations of bad faith, the court noted that the claims adjuster advised the plaintiff early on that, in the absence of an investigation establishing a “release,” coverage could be denied. The claims adjuster had also asked for additional information related to the source and age of the contamination. What’s more, the court concluded that the plaintiff did not demonstrate the seriousness of its alleged intention to resume its commercial activities. As a result, the defendants did not act in bad faith.

Takeaway

Ultimately, it is the insured’s responsibility to conduct environmental testing, in particular when acquiring a property, applying for an insurance policy or before dismantling facilities. These tests could be crucial to determine whether and to what extent coverage is available under an environmental liability policy. The plaintiff has not appealed the judgment.

This article has been republished with the permission of the authors.  It it was originally published on the Clyde & Co website.


About the Authors

Robert Emblem, Partner

Having worked on secondment with a leading Lloyd’s syndicate in the mid-1990s, Bob has also developed a large insurance coverage and defense practice. He represents insurers, reinsurers and insureds in the areas of commercial general liability, professional liability, media/technology liability, directors’ and officers’ liability, fidelity, contingency and property insurance. In addition to providing coverage and regulatory advice to insurers and reinsurers, he regularly performs policy wording reviews and claims audits.

Bob is a member of both the Ontario and Quebec bars, has wide-ranging experience in both the Common Law and civil law systems, and is fluently bilingual in English and French. Bob regularly appears before all levels of the Quebec courts as well as arbitration and mediation panels throughout North America.

Bob is one of the leading experts in Canada in the area of course of construction insurance and co-authored Commercial General Liability Insurance published by Butterworths. He speaks regularly at conferences and delivers papers for the Barreau du Québec, the Canadian Institute, the Canadian Bar Association, Insight, Canadian Defence Lawyers, the Insurance Bureau of Canada and other organizations.

Gabrielle Dumas-Aubin, Senior Associate

Gabrielle joined Clyde & Co in 2016, where she provides advices on managing and monitoring claims and insurance coverage for Canadian and foreign insurers. Gabrielle analyzes complex claims and draws up legal opinions on professional liability and general liability risks.

She graduated from the University of Ottawa with the honorary mention summa cum laude. During her studies, Gabrielle received numerous scholarships and was a research assistant for various professors. She completed her studies with a master’s degree in law at Oxford University in 2014.  Gabrielle is a member of the Young Bar Association of Montreal and of the Bar of Quebec in 2013.

Hazardous Waste & Environmental Response Conference – November 25th & 26th

The Hazardous Waste & Environmental Response Conference is scheduled for November 25th & 26th at the Mississauga Convention Centre in Mississauga, Ontario.  The event is co-hosted by the Ontario Waste Management Association and Hazmat Management Magazine.

This 2-day conference provides an essential and timely forum to discuss the management of hazardous waste and special materials, soils and site remediation, hazmat transportation, spill response and cutting-edge technologies and practices. Valuable information will be provided by leading industry, legal, financial and government speakers to individuals and organizations that are engaged in the wide range of services and activities involving hazardous and special materials.

Attendees can expect an informative and inspiring learning and networking experience throughout this unique 2-day event. Session themes provide an essential and timely forum to discuss the management of hazardous waste and special materials, soils and site remediation, hazmat transportation, spill response and cutting-edge technologies and practices.

As the only event of its kind in Canada, delegates will receive valuable information from leading industry, legal, financial and government speakers who are actively engaged in a wide range of services and activities involving hazardous waste and special materials.

Company owners, business managers, plant managers, environmental professionals, consultants, lawyers, government officials and municipalities – all will benefit from the opportunity to learn, share experiences and network with peers.

CONFERENCE SCHEDULE

MONDAY, NOVEMBER 25 – GENERAL SESSIONS

8:00 am – Registration

8:45 am – Opening and Welcome Address

9:00 am – 9:40 am

OPENING KEYNOTE – Lessons Learned from Hazmat Incidents

Jean Claude Morin, Directeur General, GFL Environmental Inc.

Dave Hill, National Director Emergency Response, GFL Environmental Inc.

Jean Claude and Dave will discuss lessons learned from hazmat incidents in Canada, including, train derailments, truck turn-overs, and hazardous materials storage depot explosions. This presentation will also provide an overview of some of the more serious incidents in Canada and discuss the valuable lessons learned regarding best practices in hazmat response.

9:40 am – 10:10 am

Legal Reporting Requirements

Paul Manning, LL.B., LL.M, Certified Specialist in Environmental Law and Principal, Manning Environmental Law

Paul will provide an overview of the Canadian federal and Ontario legislation as it relates to the reporting requirements in the event of a hazmat incident and/or spill. Included in the discussion will be an examination of the case law related to hazmat incidents and failure to report.

10:10 am – 10:45 am – Refreshment Break             

10:45 am – 11:15 am

Hazmat and Spill Response Actions and the Utilization of Countermeasures

Kyle Gravelle, National Technical Advisor, QM Environmental

Kyle will be speaking on hazmat and spill response actions and countermeasures to prevent contamination. Included in the presentation will be real-world examples of incidents in Canada and advice on preparations and hazmat management.

11:15 am – 12:00 pm

PANEL DISCUSSION: Utilization of New Technologies for HazMat Emergency Response

Moderator:  Rob Cook, CEO, OWMA

James Castle, CEO & Founder, Terranova Aerospace

Bob Goodfellow, Manager, Strategic Accounts & Emergency Response, Drain-All Ltd.

Ross Barrett, Business Development/Project Manager, Tomlinson Environmental Services Ltd.

The hazmat and environmental response sector is quickly evolving. During this discussion, panelists will share their experiences on new technologies and methodologies for the management of hazmat and environmental incidents and provide advice on what companies should do to be better prepared for hazmat incidents.

12:00 pm – 1:30 pm – Luncheon Speaker

From Hacking to Hurricanes and Beyond – The New Era of Crisis Communications

Suzanne bernier, CEM, CBCP, MBCI, CMCP, President, SB Crisis Consulting, Founder & Author of Disaster Heroes

During any crisis, communicating effectively to all key stakeholders is key. This session, delivered by a former journalist and now award-winning global crisis communications consultant, will look at the evolution of crisis management and crisis communications over the past 15 years. Specific case studies and lessons learned from events like the recent terror and mass attacks across North America, as well the 2017 hurricane season will be shared, including Texas, Florida and Puerto Rico communications challenges and successes. The session will also review traditional tips and tools required to ensure your organization can communicate effectively during any crisis, while avoiding any reputational damage or additional fall-out that could arise.

1:35 pm – 2:15 pm

Fire Risk in Hazmat and Hazardous Waste Facilities – The Impact and Organizational Costs 

Ryan Fogelman, Vice President of Strategic Partnerships, Fire Rover

Fire safety is an important responsibility for everyone in the hazardous materials & waste sector. The consequences of poor fire safety practices and not understanding the risk are especially serious in properties where processes or quantities of stored hazmat and waste materials would pose a serious ignition hazard.

In an effort to prevent fires and minimize the damage from fires when they occur, owners, managers and operators of hazmat and related facilities will learn about fire safety and how to develop plans to reduce the risk of fire hazards.

Learn about:

  • Data and statistics on waste facility fire incidents
  • Materials and processes that create a fire risk
  • Planning and procedures to reduce fire risk
  • Tools and practices to detect, supress and mitigate fire damage.

2:15 pm – 2:45 pm

Implementation of Land Disposal Restrictions (LDR) in Ontario – Treatment Requirements & Associated Costs

Erica Carabott, Senior Environmental Compliance Manager, Clean Harbours Inc.

The field of hazardous waste management in Ontario is complex and places an onus on all parties involved, including, generators, carriers, transfer and disposal facility operators. Initiatives such as pre-notification, mixing restrictions, land disposal restrictions, recycling restrictions and the requirements of the Hazardous Waste Information Network (HWIN) all add to the cumbersome task. The Landfill Disposal Restrictions (LDR) place responsibilities on generators and service providers alike. This presentation aims to navigate the implementation of LDR in Ontario, with specific emphasis on the Clean Harbors Sarnia facility to accommodate LDR treatment and the significant costs associated with it.

2:45 pm – 3:15 pm – Refreshment Break

3:15 pm – 4:00 pm

New Requirements on the Shipment of Hazardous Goods – Provincial, Federal and International   

Eva Clipsham, A/Safety Policy Advisor for Transport Canada

Steven Carrasco, Director, Program Management Branch, Ontario Ministry of the Environment, Conservation and Parks (MOECP)

Current federal and provincial frameworks for regulating the movement of hazardous waste and materials are currently undergoing change. Manifesting systems are being upgraded and refocused as electronic systems that will provide efficiencies to both generators and transporters. Learn about the current federal and provincial systems and the changes that are anticipated to be implemented in the near future.

4:00 pm – 5:00 pm – All attendees are invited to attend the Tradeshow Reception!

TUESDAY, NOVEMBER 26

8:30 am – Registration

8:45 am – Opening & Welcome Address

9:00 am – 9:45 am

Management of contaminated sites & increasing complexity and cost

Carl Spensieri, M.Sc., P.Eng., Vice President Environment, Berkley Canada (a Berkley Company)

This presentation will explore the various elements contributing to the increasing complexity and cost of managing contaminated sites. Carl will examine emerging risks and speak to potential strategies we can use to mitigate them. This presentation will also highlight opportunities for conference participants to offer new services that help owners of contaminated sites best respond to existing and emerging challenges.

9:45 am – 10:10 am – Refreshment Break

TRACK 1: HAZARDOUS WASTE GENERATION, TRANSPORTATION, TREATMENT AND DISPOSAL

10:15 am – 10:55 am

A National Perspective on the Hazardous Waste

Michael Parker, Vice President, Environmental Compliance, Clean Harbours Inc.

Hear about the challenges and opportunities facing the hazardous waste, hazmat and emergency response sector from an industry leader with a national view. The industry is evolving and the business fundamentals are ever changing. Government administrative and technical burdens are increasing and the volume of hazardous waste is declining – what will the future hold?

11:00 am – 11:40 am

PANEL DISCUSSION: Hazardous Waste & Special Materials – Transportation & Transit Challenges

Jim Halloran, Regional Manager, Heritage – Crystal Clean Inc.

Doug DeCoppel, EH&S Manager, International Permitting and Regulatory Affairs, GFL Environmental Inc.

Frank Wagner, Vice President Compliance, Safety-Kleen Canada Inc.

This panel will discuss key transportation issues and compliance challenges faced by hazardous waste generators and service providers, including significant changes to the documentation, labelling, packaging, emergency planning, and reporting requirements for hazardous waste and special materials shipments resulting from updated regulations and proposed initiatives. The panel will also review key considerations when selecting service providers to manage hazardous waste and special materials.

Topics included in this discussion: E-manifests (provincial and federal – lack of e-data transfer capabilities), HWIN fees (300% increase in fees but no increase in service), Transboundary Permits (lack of e-data transfer capabilities), container integrity and generator awareness.

11:45 am – 12:25 pm

Factors Influencing Treatment and Disposal Options for Hazardous Waste in Ontario

Ed Vago, Director of Operations, Covanta Environmental Solutions

Dan Boehm, Director of Business Development, Veolia ES Canada Industrial Services Inc.

Learn about the many recycling, treatment and disposal options for hazardous waste and hazardous materials in Ontario. Hear about the regulatory and operational factors to consider when deciding on the best management approach.

TRACK 2: SITE REMEDIATION

10:15 am – 10:55 am

Soils – Dig and Dump vs. On-Site Remediation: Factors to Consider & Case Studies

Devin Rosnak, Senior Client Manager & Technical Sales Manager, Ground Force Environmental

D. Grant Walsom, Partner, XCG Consulting Limited, Environmental Engineers & Scientists

Mark Tigchelaar, P. Eng., President and Founder of GeoSolv Inc.

Developers of brownfield site are faced with decisions around how to manage excavated soils. Impacted soils and soils with hazardous characteristics as tested at the site of generation can be managed through on-site remediation, or can be removed from the site to a variety of remediation and/or disposal options. Learn about the key options and factors that contribute to determining the optimum approach to managing soils.

11:00 am – 11:40 am

The Legal Framework for the Management of Contaminated Sites and Materials      

John Tidball, Partner, Specialist in Environmental Law, Miller Thomson LLP

The management of contaminated sites and related materials, including soils, are constrained by both regulatory and legal framework. Hear from a legal expert with unparalleled experience about the regulatory and legal issues that all developers/excavators transporters and service providers should be aware of as the legal liabilities in this area can be significant.

11:45 am – 12:25 pm

Anaerobic Bioremediation & Bioaugmentation – from the Lab to the Field

Dr. Elizabeth Edwards (Professor), Dr.Luz Puentes Jacome, Dr. Olivia Molenda, Dr. Courtney Toth, Dr. Ivy Yang (all Post doctoral fellows in the lab), Chemical Engineering & Applied Chemistry, University of Toronto

Together with her Post-Doctoral team, Dr. Edwards will present an overview of anaerobic bioremediation and bioaugmentation with some examples from their research and its application to the field.

12:30 pm – 2:00 pm

CLOSING KEYNOTE & LUNCHEON SPEAKER

Andrea Khanjin, MPP Barrie-Innisfil, Parliamentary Assistant, Ministry of the Environment, Conservation and Parks (MOECP)


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Serving ‘Rough Justice’: Assessing Remediation Costs And Liability Allocation Pursuant To The British Columbia Environmental Management Act

Written by Menka Sull and Samuel Kim, Alexander Holburn Law Firm

The British Columbia Environmental Management Act, S.B.C. 2003, c. 53, and the Contaminated Sites Regulation, B.C. Reg. 375(96) (CSR), provide the framework for identifying, remediating, and determining responsibility for the remediation of contaminated sites in British Columbia.

There has been relatively little case law considering the EMA; however, a recent BC Supreme Court decision provides an instructive analysis of cost recovery actions. In doing so, Jansen Industries 2010 Ltd. v. Victory Motors (Abbotsford) Ltd., 2019 BCSC 1621 shed light on two key issues: (1) What costs are recoverable as part of remediation costs under the EMA, and (2) How will liability for the remediation be allocated among those considered to be “responsible persons” for contamination?

Factual Background

Between 2009 and 2010, two properties located in Abbotsford – the Jansen site and the Victory Motors site – were discovered to have been contaminated by leaking underground gasoline storage tanks (“USTs”). The contamination originated from the Victory Motors site which was used as a gas station from World War II to 1994.

Example of the leaking underground storage tank

Jansen Industries 2010 Ltd. (“Jansen”) and Victory Motors (Abbotsford) Inc. (“Victory Motors”), the respective owners of the two sites, each brought actions against Actton Super-Save Gas Stations Ltd. (“Super-Save”), which operated the gas station from 1982 to 1992. Chevron Canada Limited (“Chevron”) and Shell Canada Limited (“Shell”) were also previous operators on the site; however, they were released from the action before trial as they settled with the plaintiffs.

Before trial, plaintiffs carried out the required remediation to obtain certificates of compliance for the respective sites pursuant to section 53(3) of the EMA. It was agreed that Jansen was not a responsible party, so the main issues pertained to the scope of the recoverable remediation costs, and allocation of liability amongst the other entities, including Victory Motors, Super-Save, Chevron, and Shell.

Recoverable Remediation Costs

The parties agreed that the amount of $395,706 paid to an engineering consulting company to obtain certificates of compliance for the two sites were properly remediation costs.

In his reasons for judgment, Mr. Justice Sewell held a number of remediation costs claimed by the plaintiffs were not recoverable pursuant to the EMA given the facts of this case, including:

  1. Legal fees incurred in seeking contribution from other responsible parties;
  2. Loss of rental income with respect to a building on the Victory Motors site while remediation was undertaken; and
  3. Costs to defend an action for remediation of contaminants originating on the Victory Motors site.

Although these remediation costs were recoverable in principle, Justice Sewell held that the plaintiff failed to tender adequate evidence regarding these claims.

Stigma Damages

The plaintiffs also sought stigma damages against Super-Save on the basis that residual contamination decreased the value of the sites. Super-Save argued, and the Court agreed, that stigma damages cannot be recovered as remediation costs under the EMA. Only the cost of bringing a site into compliance with the requirements of the EMA were held to be recoverable in a cost recovery action, which, in this case, was the cost of obtaining the certificates of compliance for the sites. Any claim exceeding this cost would have to be recovered in tort, after showing that a property owner was precluded from making optimal use of that property.

Allocation of Fault

Justice Sewell then turned to allocating liability amongst Victory Motors, Super-Save, Chevron, and Shell, having regard to the factors set out in section 35(2) of the CSR.

Price Paid for the Property

Justice Sewell considered the proposition that a party should not be able to recover the full costs of remediation if the remediation increased the value of the property by an amount in excess of those costs.

Here, the facts were complicated. The current owners of Victory Motors struck a bargain when they bought out all of its shares from the previous owner in 2012. The building on the Victory Motors site was then renovated and leased out to high quality tenants. The Court declined to treat the purchase price of the shares as a de facto purchase price of the property. Therefore, the profits realized from purchase of the Victory Motors shares did not form a basis to modify the allocation of remediation costs.

Due Diligence, Amount of Contaminants, and Relative Degree of Involvement

There was little evidence before Justice Sewell that any of the responsible persons exercised due diligence on the sites. Super-Save’s ten-year operation did not have an adequate inspection regime to detect small leaks, which were found to be enough to place significant amounts of contaminants in the soil over time. Meanwhile, from 1994 to 2012, Victory Motors did not exercise any due diligence at all, despite knowing that the gasoline infrastructure had remained in place. As Chevron and Shell were no longer parties to the action, no evidence was tendered regarding their exercise of due diligence.

The Court also considered the relative periods of operation, the volumes and toxicity of gasoline sold, and the installation and use of USTs by each of the responsible parties.

Remedial Measures Implemented and Paid for by any Responsible Party

The only remedial measures were the costs to obtain the certificate of compliance, which involved decommissioning the infrastructure and pumping out the remaining USTs.

Any Other Factor Relevant to a Fair and Just Allocation

Here, Justice Sewell took into account the circumstances under which ownership of Victory Motors changed hands in 2012. As Victory Motors received the benefit of remediation costs while being a significant contributor to the contamination, a significant portion of the remediation costs was allocated to it. The Court held that Victory Motors ought to have known about the environmental consequences of allowing disused gasoline infrastructure to remain on the property for nearly two decades.

The lengthy period of time that had passed since the likes of Chevron and Shell operated on the site militated toward a lower allocation of responsibility relative to the parties of the litigation. However, the allocation of liability reflected that a Chevron-installed UST was only decommissioned in 2012.

In the end, responsibility for the majority of the remediation costs was shouldered by Victory Motors and Super-Save.

Takeaways

This decision is important for a number of reasons.

First, it highlights the importance of establishing a sufficient evidentiary basis for claiming remediation costs under the EMA. The costs sought by the plaintiffs were denied not because the categories of costs were inherently unrecoverable as remediation costs, but because the evidence did not adequately support the claims.

The decision also clearly identifies remediation costs under the EMA and stigma damages as occupying distinct territories, with differing rationales and legal tests.

Finally, this decision highlights the practical difficulties in litigating over the relative contributions to a site’s contamination over several decades. The courts may only be able to administer “rough justice”, with all the uncertainty it entails.

This article has been republished with the permission of the authors.  It was first published on Alexander Holburn’s website.


About the Authors

Menka Sull is a member of the firm’s Construction + Engineering, Insurance, Administrative Law and Environmental Practices. Her practice is litigation-focused and includes a variety of areas of law including contractual disputes, construction litigation, environmental contamination, occupiers’ liability claims and professional negligence and disciplinary matters. Within her professional liability practice, Menka specializes in representing the interests of engineers, architects and lawyers in litigation arising out of professional activities.

Samual Kim is a student at the firm.  He has a B.Sc. from the University of the Toronto and a Juris Doctor degree from the University of Victoria.

U.S. EPA Green Remediation Best Management Practices

Excavation and Site Remediation

Excavation of soil, sediment or waste material is often undertaken at contaminated sites to address immediate risk to human health or the environment; prepare for implementation of remediation technologies and construction of supporting infrastructure; and address contaminant hot spots in soil or sediment.

The excavation and subsequent backfilling processes rely on use of heavy earth-moving machinery and often involve managing large volumes of material. Many opportunities exist to reduce the environmental footprint of the various cleanup activities and improve ultimate restoration of the disturbed land, surface water and ecosystems.

The United States Environmental Protection Agency (U.S. EPA) Fact Sheet outlines specific best management practices (BMPs) that can be used to minimize the environmental footprint concerning emission of air pollutants and use of water, energy, and other resources at excavation sites. The refined set of BMPs is based on recent experiences reported by regulators, property owners, cleanup service contractors and other stakeholders in the cleanup community.

Sites with Leaking Underground Storage Tank Systems

The U.S. EPA estimates that approximately 65,450 releases of petroleum or hazardous substances from federally regulated underground storage tanks (USTs) had not yet reached the “cleanup completed” milestone as of September 2018.  The Association of State and Territorial Solid Waste Management Officials (ASTSWMO) estimates that in 2017, alone, state cleanup funds collectively spent approximately $1.113 billion in cleaning up UST releases.

Use of green remediation best management practices (BMPs) can help minimize the environmental footprint of cleanup activities at UST-contaminated sites and improve overall outcomes of the corrective actions. In accordance with the EPA Principles for Greener Cleanups, BMPs outlined in the updated “Green Remediation Best Management Practices: Sites with Leaking Underground Storage Tanks” fact sheet are intended to complement federal requirements for corrective actions at UST-contaminated sites and may enhance state-administered UST program requirements.

What are the safety risks when transporting radioactive materials?

Written by Stephen Pike, Argon Electronics

Radioactive materials have a wide variety of applications within the fields of medicine, power generation, manufacturing and the military – and just as with any other product, there are times when these materials may need to be moved from one location to another.

In the US, the Environmental Protection Agency (EPA) estimates that there are around three million shipments of radioactive materials to, from or within the US every year.  In the UK meanwhile, Public Health England (PHE) has reported that somewhere in the region of half a million packages containing radioactive materials are transported to, from or within the UK annually.

Regulation of transport of radioactive materials

Ensuring the safety and security of the transport of radioactive material – whether be it by road, rail, air or sea – is understandably a major priority and one that is highly regulated, depending upon the type, and the quantity, of radioactivity that is being transported.

Materials that are deemed to be low in radioactivity may be able to be shipped with no, or very few, controls.

Materials that are considered to be highly radioactive will be subject to controlled routes, segregation, additional security and specialist packaging and labelling measures.

The UK’s Office for Nuclear Regulation (ONR) has a primary role to play in advising on the safe and secure transportation of radioactive substances across a wide of sectors – from the movement of decommissioned nuclear reactors or the carriage of irradiated nuclear fuel to the shipping of medical radio-pharmaceuticals, or the transport of sealed radioactive sources used within the construction or oil industries.

What constitutes a radiation transport event?

The normal transport of radioactive materials can result in transport workers (and sometimes even members of the public) being exposed to small radiation doses.

The strict regulatory conditions of transport however are designed to minimise these exposures.

Accidents and incidents can occur for a variety of reasons – from seemingly minor administrative errors, to problems arising from insufficient packaging, mishaps that occur during loading or unloading of consignments or the theft or loss of a radioactive material being carried.

When such events do occur there is the risk of radiological consequences not just for those transport workers in the immediate vicinity but for emergency responders, HazMat personnel and the wider public.

According to the Radioactive Materials Transport Event Database (RAMTED) there were a total of 16 accidents or incidents involving the transport of radiological materials in the UK in 2012.

These included the receipt of a flask from a nuclear power station where one of the lid-chock locking bolts was found to be loose; the failure of lifting equipment when removing a type 30B uranium hexafluoride cylinder from its protective shipping packaging; and an incident involving the stealing of pipes and plates from a scrap meal facility that were found to have traces of orphan radioactive sources.

Public Health England differentiates radiation transport events into one of the five following categories:

  1. A transport accident (TA) – which is defined as any event that occurs during the carriage of a consignment of radioactive material and that prevents either the consignment, or the vehicle itself, from being able to complete its journey.
  2. A transport incident (TI) – comprising any form of event, other than an accident, that may have occurred prior to or during the carriage of the consignment and that may have resulted in the loss or damage of the consignment or the unforeseen exposure of transport workers or members of the public.
  3. A handling accident (HA) – encompassing any accident that occurs during the loading, shipping, storing or unloading of a consignment of radioactive material and that results in damage to the consignment.
  4. A handling incident (HI) – defined as any handling event, other than an accident, that may occur during the loading, shipping , storing or unloading of the radioactive consignment.
  5. Contamination (C) – defined an an event where radioactive contamination is found on the surface of a package or where the conveyance of a radioactive material is found to be in excess of the regulatory limit.

The role of radiation safety training

When formulating a radiation training strategy, it is vital that personnel are adequately trained to handle the hazards and the risks associated with incidents involving radioactive materials.

Radiation safety training and development programmes should ideally provide personnel with both the knowledge they need and the practical skills that they will rely on in order to carry out their duties safely and effectively.

While most radiation detection equipment is relatively easy to use, the key lies in ensuring that trainees understand the significance of the readings that they get, that they can recognise the implications of changes in units of measurement and that they have the opportunity to train in as life-like a setting as possible.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

Ontario Government Proposes new rules around Administrative Monetary Penalties

The Ontario government recently proposed amendments to regulations dealing with Administrative Monetary Penalties (AMPs) under the Ontario Environmental Protection Act.  The reason given for the proposed amendments was that they would remove regulatory overlap and result in regulations that are focused and streamlined.

An AMP is a financial penalty for non-compliance that provides an incentive to the violator to return to compliance and deter future non-compliance.  Administrative penalties are used across the Government of Ontario in regulated program areas such as forestry, consumer protection, energy, and waste diversion.

Deficiency in the Existing AMPs

AMPs are regularly used in other jurisdictions, particularly Canada and the United States, to support the enforcement of environmental laws (e.g. British Columbia, Alberta, Canada, Quebec, Ohio, Vermont and Minnesota).

AMPs, as a compliance and enforcement tool (i.e. environmental penalties), are currently available to the Ontario Environment Ministry for some land, water and air violations, but are limited in scope. This gap leaves many program areas with limited enforcement tools and affects the ministry’s ability to effectively hold polluters accountable.  In addition, some of the acts proposed to be amended that are enforced by the Ontario Environment Ministry do not have the enabling authority to issue administrative monetary penalties (e.g. Safe Drinking Water ActPesticides Act), while others are out of step with best practice (e.g. Nutrient Management Act, 2002).

Jeff Yurek, Ontario Environment Minister

Proposed Amendments

The are proposed legislative amendments expand and/or clarify enabling authority to issue administrative monetary penalties for environmental violations under key environmental statutes, including:

  • Nutrient Management Act, 2002
  • Ontario Water Resources Act
  • Pesticides Act
  • Safe Drinking Water Act, 2002

The proposed amendments would enable administrative monetary penalties to be issued for a broad range of environmental violations under the acts mentioned above. To take effect, violations that may be subject to an administrative monetary penalty would be prescribed in regulation.

The proposal, along with recent amendments to the Environmental Protection Act, would replace existing monetary penalties (i.e. environmental penalties) under the Environmental Protection Act and Ontario Water Resources Act.

Key provisions under the proposed administrative monetary penalty approach are set out under each act and include:

  • set maximum penalty amounts or higher if the economic benefit achieved via the violation was higher (penalty amounts would be set by a regulation). The maximum penalty amounts set in the acts are as follows:
    1. Ontario Water Resources Act – $200,000 per contravention (same as the Environmental Protection Act)
    2. Pesticides Act – $100,000 per contravention
    3. Safe Drinking Water Act, 2002 – $100,000 per contravention
    4. Nutrient Management Act, 2002 – $10,000 per contravention
  • ability to review and/or appeal the administrative penalty
  • an annual report listing the administrative penalties issued in the last calendar year
  • provisions to enable the implementation of administrative monetary penalties in regulation (e.g. how to set administrative monetary penalty amounts, who they can apply to, and how violators can seek reductions in penalty amounts for taking action to prevent or mitigate the contravention

The government argues that the broader use of AMPs would help it take strong action against illegal activity, ensure that polluters are accountable for their actions, and deal with environmental violations that do occur, more efficiently and appropriately.  Prosecution would continue to be used as an enforcement tool but may be limited to serious violations.

If passed, these proposed legislative amendments would allow for future regulations to implement administrative monetary penalties to more violations, such as, but not limited to:

  • illegal sewage discharges into waterways
  • selling pesticides without a license
  • failing to have a certified drinking water operator
  • violating terms of a permit to take water

Criticism of the Proposal

Environmental activists decried the proposal and charged that it will result in lightened consequences for polluters.  Keith Brooks, spokesperson for Environmental Defence, stated in press release, “It is highly deceptive of the Ontario government to claim that it is doing more to hold polluters accountable, when they are actually cutting the penalties polluters face.”

The environment critic from the Ontario New Democratic Party, Ian Arthur, an MPP for Kingston and the Islands, stated: “The Ford government has proposed eliminating an existing $100,000-per-day penalty for environmental polluters and replacing it with a one-off fine of $10,000. Further, the government is pushing to cap environmental fines at an overall maximum of $200,000.”

 

Ontario aerosol manufacturer fined for violating Environmental Emergency Regulations

Written by Paul ManningManning Environmental Law

As of August 24, 2019, the Environmental Emergency Regulations, 2019 replaced the existing Environmental Emergency Regulations, which require industry to take steps to prevent, prepare for, respond to, and recover from the accidental release of harmful chemicals.

The Regulations require that any person who owns, has the charge of, manages, or controls a regulated substance at or above certain quantities to notify Environment and Climate Change Canada. For higher-risk facilities, an environmental emergency plan must be prepared, brought into effect, and exercised.

On November 12, 2019, K-G Spray-Pak Inc. of Concord, Ontario pleaded guilty in the Ontario Court of Justice to two offences under the Canadian Environmental Protection Act, 1999, including one count of violating the Environmental Emergency Regulations and one count of failing to comply with an environmental protection compliance order. The company was ordered to pay a fine of $170,000.

In February 2017, Environment and Climate Change Canada’s enforcement officers launched an investigation, which revealed that K-G Spray-Pak Inc., a manufacturer, marketer, and distributor of aerosol products, had failed to comply with an environmental protection compliance order issued in July 2016.

Environmental protection compliance orders are issued by Environment and Climate Change Canada’s enforcement officers to put an immediate stop to a violation of the Canadian Environmental Protection Act, 1999, to prevent a violation from occurring, or to require action be taken to address a violation.

The company was subsequently charged when it failed to implement and test environmental emergency plans within the prescribed time limit specified in the compliance order.

https://www.canada.ca/en/environment-climate-change/news/2019/11/ontario-aerosol-manufacturer-fined-for-violating-the-canadian-environmental-protection-act1999.html

This article has been republished with the permission of the author. It was first published here .

This article is provided only as a general guide and is not legal advice. If you do have any issue that requires legal advice please contact Manning Environmental Law.


About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Ontario. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal.
Paul advises clients on a wide range of environmental law issues and represents them as counsel before tribunals and the courts. His practice focuses on environmental, energy, planning and Aboriginal law.

 

 

Nova Scotia’s Auditor General Concerned about Mine Contamination

In a recent report issued by Nova Scotia’s Auditor says more work needs to be done to address contaminated mine sites throughout the province.

“I drew attention to this accounting because the cost to clean up the province’s contaminated sites could significantly change in the future as the province collects more information on these sites,” Michael Pickup, Nova Scotia’s Auditor General said.

This was the first year the report drew attention to accounting for contaminated sites. The report showed that contaminated site liabilities increased to $372 million in 2019 compared to $107 million five years ago.

According to Pickup’s report, the Department of Lands and Forestry’s investigations of contamination at abandoned mine sites is lacking, leaving a risk of unknown financial, ecological and human health concerns. The report also found an additional 63 mine sites with no liability for remediation because the contamination extent is unknown.

Historical Gold Mining Area Map for Nova Scotia

“Those sorts of legacy sites, unfortunately, date from a period in which there really wasn’t environmental science and people just didn’t have a good understanding of our impact on the environment,” says Sean Kirby, the Executive Director of the Mining Association of Nova Scotia.

Researchers scaling up technology that destroys PFAS contamination

Researchers from the University of Purdue recently received funding from the U.S. Environmental Protection Agency (U.S. EPA) to scale up a patented technology that can destroy poly- and perfluoroalkyl substances (PFAS) in groundwater.

PFAS include perfluorooctanesulfonate (PFOS), perfluorooctanoic acid (PFOA) and other perfluoroalkyl acids (PFAAs) and are found at more than 600 military training sites across the United States where firefighter training involved the use of PFAS-containing foams. They also are found at airports, which use similar chemical foams to put out fires.

PFAS have been linked to cancer, thyroid dysfunction, liver disease, immune system impairment, and other serious medical concerns. The compounds also are found in contaminated drinking water.

Linda Lee, a professor of agronomy in Purdue’s College of Agriculture, has patented a technology that destroys PFAS through the use of a permeable reactive barrier constructed in the subsurface.  Ms. Lee stated, “Our approach is different from current technologies, which are focused on capture and not destruction. We target compound destruction with a design that has potential to be used as part of a permeable reactive barrier underground to eradicate these compounds in groundwater to keep them from spreading.”

compounds graphic

“This is a significant problem because these compounds, which are found in our blood, drinking water, homes and products, do not degrade naturally,” Lee said. “Our team has patented technology involving the use of nickel and iron nanoparticles synthesized onto activated carbon to capture, attack and destroy the compounds.”

Recently, Lee’s team received part of a $6 million science to achieve results grant from the U.S. Environmental Protection Agency to address the issue of the compounds ending up in waste streams and eventually drinking water. The latest award comes after the team received earlier funding from the National Science Foundation and the Department of Defense. The team’s recent work also has included international partnerships in Pakistan through The National Academies of Sciences, Engineering and Medicine.

Lee patented her nanoparticle innovation through the Purdue Research Foundation Office of Technology Commercialization. She is looking for additional partners to help scale up the work.