Heightening the realism of CBRNe training with PlumeSIM

Written by Steven Pike, Argon Electronics

Providing military and civilian responders with access to realistic hands-on training is crucial in ensuring that they are able to confidently handle the challenges of a diverse range of CBRNe incidents.

A common issue for CBRNe instructors however, is how to deliver a training experience that offers the desired combination of authenticity, consistency and effectiveness.

When it comes to chemical or radiological hazards in particular, many trainers can find themselves having to sacrifice realism in favour of safety, or being constrained by logistical, administrative and regulatory considerations which can limit the scope of their exercises.

New innovations in simulator-based technology are now transforming the CBRNe training environment.

Argon Electronics’ wide-area instrumented training system PlumeSIM enables instructors to create flexible scenarios covering a diverse range of radiological releases, chemical warfare agents and hazardous materials.

In contrast to more traditional methods of CBRNe training, which can often rely on a large degree of ‘make-believe’, PlumeSIM provides trainers with the ability to create exercises that replicate real life.

Crucially too, there is the freedom for instructors to determine the parameters of the exercise ahead of time and then, once the training is underway, to focus their attention on observing the movements and actions of their trainees.

Exploring PlumeSIM

PlumeSIM offers the versatility of being used at every stage of the radiological exercise process, from pre-planning to field exercise mode to After Action Review (AAR).

Planning mode

When using PlumeSIM in planning mode, exercises can be set up on any PC or laptop without the need for any system hardware.

Common file format map images can be quickly uploaded and homemade sketches of the training area can also be easily added.

The system’s simple menu configuration enables the source type, quantity, location, nature of the release and desired environmental conditions to be set and adjusted as required.

There is the option to define a plume or hotspot based on a specific substance, CWA, radionuclide or compound.

Specific release characteristics such as direction, duration, deposition and persistence can also be readily implemented.

Table-top mode

In table-top mode, trainees can familiarise with their live-field scenario by using standard gamepad controllers to navigate icons of themselves around an on-screen display of their training area.

At the point that the virtual plume scenario is activated, any contact with a simulated agent will trigger the activation of the trainee’s simulation instrument, with all actions able to be monitored from the control base via a short range radio communications link.

Throughout the training session all trainee movement is recorded and can then be played back at the conclusion of the exercise as part of the after action review (AAR) process.

Field exercise mode

When using the PlumeSIM system in field exercise mode, trainees are equipped with GPS enabled player units that can be monitored from the control base with the use of a long range radio communications link.

Once the virtual plume has been activated, any contact with the simulated source will be indicated on the display of the simulator instrument.

In environments where the conditions may impede the ability to obtain or maintain continuous long range communication, the scenario can also be pre-loaded onto the player unit and activated when required.

After Action Review (AAR)

Capturing trainee error is a vital element of radiological training, but it is an aspect that can be easily overlooked if the instructor’s attention is focused on administering the exercise rather than on observing the student.

With PlumeSIM, trainers are able to record every aspect of their trainees’ movements and play it back at the conclusion of the exercise as part of the AAR process.

Enhanced Live Training provision

In an exciting development for the provision of Live Training, Argon has partnered with Swedish military defence solutions provider Saab AB to integrate PlumeSIM into SaaB’s Gamer interface.

While the initial applications of the enhanced PlumeSIM training system have focused on the detection of CWAs, radiological simulation is also able to be readily supported and can be used in combination with Argon’s wide range of simulated portable survey meters and personal dosimeters.

If you would like to learn more about how PlumeSIM can enhance your existing programmes of CBRNe instruction please download a copy of the PlumeSIM Product Sheet.

 


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.

 

Canada: Court Of Appeal Clarifies Limitation Periods For Third Party Claims related to Contaminated Property

On Feb. 4, 2021, the Court of Appeal for Ontario released its decision in Albert Bloom Limited v. London Transit Commission,  2021 ONCA 74. This decision clarifies the approach to limitations disputes with respect to third party claims; in particular, the analysis of when a defendant is deemed to develop actual knowledge of a potential claim against a third party and how continuing torts are to be treated in the context of third party claims.

Background

Trichloroethylene

The plaintiff, a private property owner, sued the London Transit Commission (LTC) on May 22, 2013, alleging that its property had been contaminated by Trichloroethylene that had flowed from adjacent lots owned by LTC. LTC defended the claim in January 2014, yet continued to resist demands by the plaintiff to investigate its property until the end of that year. After completing the testing and determining that Eaton, a previous landowner, had operated a sludge pit on the property before 1973, LTC brought a third party claim against Eaton on March 16, 2016.

Eaton brought a motion for summary judgment, arguing that all of LTC’s claims against it had been discoverable as of May 22, 2013 and had therefore expired two years later, pursuant to the Limitations Act. The motion judge agreed and dismissed the third party claim in its entirety.

The Court of Appeal decision

The Court dismissed the appeal, dealing with each of LTC’s submissions in turn.

With respect to the claim for contribution and indemnity, the Court began by noting that LTC bore the onus of demonstrating that its claim against Eaton was not discoverable on the day it was served with the Statement of Claim. The Court rejected LTC’s submission that there is a general rule that sub-surface testing is required to establish actual knowledge of prior contamination in environmental contamination cases. A paragraph in LTC’s Statement of Defence which blamed any contamination on a previous owner of its property also did not assist LTC’s submissions in this regard. The Court found that LTC had not met its onus to prove this was a mere “boilerplate”, pleading that did not indicate actual knowledge. The Court also held LTC had constructive knowledge of its third party claim more than two years before it was commenced, as it did not act with due diligence when it ignored the plaintiff’s demands for further investigation.

The Court also dismissed LTC’s alternative argument that because the claim against it was based on a continuing tort, its third party claim was similarly based on continuous conduct such that the limitation period had not expired. The Court explained Eaton’s involvement with the property had ended in 1973 and for a claim to be continuing in a limitations sense, the legal injury itself must continue, not just the ill effects of the prior legal injury.

Commentary

This decision highlights the importance of due diligence when responding to new claims ensuring that limitation periods for third party claims are not missed. Environmental lawsuits raise distinct factual issues, but the underlying legal principles remain the same for all claims for contribution and indemnity. The decision also reminds litigants that pleading choices which may seem harmless when made can have unintended effects on a party’s legal rights at a later stage.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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About the Authors

Aidan Fishman is an associate in the Toronto office of Borden Ladner Gervais LLP and is a member of the Insurance and Tort Liability Group. Aidan returned to BLG after articling with the firm. Prior to receiving his Juris Doctor in 2018 from the University of Toronto, Aidan graduated with a Masters of Arts, magna cum laude in Diplomacy from the Interdisciplinary Centre of Herzliya, and an Honours BA in International Relations from the University of Toronto.
Natalie Kolos practises civil litigation, including insurance law, municipal and police liability, defamation and occupiers’ liability at Borden Ladner Gervais LLP.  She acts for municipalities, insurance companies and corporate clients in negligence claims.

PFAS – EPA Interim Guidance on How to Say Goodbye to Your “Forever Chemicals”

Written by Janessa GlennDawn LamparelloSteve Morton, and Cliff RothensteinK&L Gates LLP

In response to Congressional direction in the National Defense Authorization Act for Fiscal Year 2020, Public Law No: 116-92, on 18 December 2020, the Environmental Protection Agency (EPA) issued “Interim Guidance on the Destruction and Disposal of Perfluoroalkyl and Polyfluoroalkyl Substances and Materials Containing Perfluoroalkyl and Polyfluoroalkyl Substances” (Interim Guidance) as part of its continuing efforts to regulate the large body of perfluoroalkyl and polyfluoroalkyl substances, collectively referred to as “PFAS.” SeeInterim Guidance.

EPA issued the Interim Guidance, not as a rulemaking or policy statement, but to provide current scientific information on disposing of or destroying PFAS and PFAS-containing materials. PFAS are often referred to as the “forever chemicals” because they do not break down easily or quickly in the environment. Thus, they present a unique challenge for disposal/destruction. The Interim Guidance outlines three methods that may be effective and are currently available for disposal or destruction—landfill disposal, underground injection disposal, and thermal treatment for destruction (incineration)—and discusses the data gaps and challenges for each, along with noting the need for further research into these methods for future guidance. EPA intends for this information to inform the decision making process of those managing the destruction/disposal of this material.

PFAs are used in fighting fires

The Interim Guidance identifies six waste streams that commonly contain PFAS:

  1. Aqueous film-forming foam (used in fire suppression);
  2. Soil (directly through land application or spills, or indirectly through particles released from stack emissions, for example) and biosolids (the Interim Guidance refers to the definition in 40 C.F.R. Part 503 for “sewage sludge,” also called “biosolids”);
  3. Textiles, other than consumer goods, treated with PFAS;
  4. Spent filters, membranes, resins, granular carbon, and other waste from water treatment;
  5. Landfill leachate containing PFAS; and
  6. Solid, liquid, or gas waste streams containing PFAS from facilities manufacturing or using PFAS.

Congress specifically identified these six areas in the National Defense Authorization Act for Fiscal Year 2020 as the waste EPA was required to address through issuance of the Interim Guidance. As a result, while EPA recognizes the information could be useful to other PFAS and PFAS-containing materials, the Interim Guidance only covers these six materials.

The Interim Guidance addresses the three disposal and destruction techniques currently used by industry discussed above: landfill disposal, underground injection disposal (liquid phase only), and thermal treatment for destruction (incineration). None is favored or rejected by EPA. However, as EPA clearly recognizes, the science behind potential migration of PFAS and PFAS-containing chemicals into the environment during any of these three disposal/destruction methods is still in its infancy. Accordingly, the Interim Guidance recognizes that in some cases it may be best to store PFAS and PFAS-containing materials for a period of two to five years while scientific advances in this area are made.

EPA’s inclusion of destruction in commercial incinerators, cement kilns, and lightweight aggregate kilns in the Interim Guidance was not surprising. EPA acknowledged data gaps related to temperatures, residence times, and emission characterization data. EPA had planned an experimental burning in a New Jersey incinerator to learn more about how PFAS reacts to incineration; however, that test was canceled due to vocal objections by environmental groups concerned about potential resulting air pollution. The New Jersey Department of Environmental Protection said protestors misunderstood the testing, thinking PFAS-containing firefighting foam shipped from New York would be burned, when in truth the experiment involved burning CF4, a chemical with similar bonding properties to PFAS chemicals, but that is considered a safe, nontoxic surrogate compound to PFAS.

EPA has pledged to move forward over the next three years with its efforts to further study thermal destruction of PFAS, but individual states are acting in the meantime. New York adopted a state law banning incineration of PFAS-containing aqueous film-forming foam. The PFAS Waste Incineration Ban Act of 2019 (H.R. 2591) was introduced during the 116th Congress but was not adopted into law. The bill would have not only banned the incineration of PFAS-containing firefighting foam, but would also have required EPA to identify and then ban incineration of other wastes containing PFAS. It is unclear whether such legislative actions will be a priority going forward.

The Interim Guidance is just one part of EPA’s larger PFAS Action Plan. The Biden administration is expected to aggressively continue EPA’s current work on the items listed in that Action Plan, including setting maximum contaminant levels for PFAS in drinking water and designating certain PFAS as CERCLA hazardous substances. Congress is also expected to push for PFAS legislation such as the PFAS Action Act, which among other things would designate PFAS as a CERCLA hazardous substance and mandate the promulgation of a national primary drinking water standard.

Public comment on the Interim Guidance is invited and closes on 22 February 2021. Comments must include Docket ID No. EPA-HQ-OLEM-2020-0527 and can be submitted at: Public Comment (preferred method) or by mail or hand delivery.

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About the Authors

Janessa Glenn is counsel at the K&L Gates LLP‘s Austin office where she concentrates her practice on a variety of administrative law issues, environmental regulatory issues, and environmental litigation. Janessa practices both before state agencies, including contested case proceedings, and in state court related judicial review of agency decisions.

Dawn Lamparello concentrates her practice in environmental law, including related regulatory compliance and litigation concerning various federal and state environmental statutes. Dawn counsels clients in connection with CERCLA site studies and remedies, as well as RCRA waste management issues, across the United States.

 Steve Morton is a partner in the firm’s Austin office. He has 34 years of experience obtaining necessary environmental permits, defending government or third-party claims before administrative agencies and courts, and assisting clients on regulatory and statutory developments before administrative agencies and the Texas Legislature.

Cliff Rothenstein is a government affairs advisor in the firm’s public policy and law practice in Washington, D.C. He brings more than 30 years of expertise developing and executing federal environmental and transportation legislation, policies, and regulations.

 

Is Hazardous Waste Management Part of the Circular Economy?

Written by Supreet Kaur, ALTECH Environmental Consulting Ltd. and John Nicholson, Editor, Hazmat Management Magazine

There is a growing movement from every sector of the economy that recognizes that there needs to be a focus on a sustainable future by minimizing waste and maintaining natural resources. With the increase in industrialization, the main problem in the management of hazardous waste is that it poses a harmful impact on environment and human health.

The term “circular economy” is a new buzzword and has been identified as part of society’s move toward a sustainable future with the inclusion of the 3Rs and extended producer responsibility.  Can you apply circular economy practices to the management of hazardous waste?

Hazardous waste is the potentially dangerous by-product of a wide range of activities, including manufacturing, farming, water treatment systems, construction, automotive garages, laboratories, hospitals, and other industries. The waste contains chemicals, heavy metals, radiation, pathogens, or other materials. These wide range of toxic chemicals affecting environment and human health and involving several routes of exposure, depending on types of waste. Some toxins, such as mercury and lead persist in the environment for many years and accumulate over time.

Hazardous waste disposal is a challenge for many businesses and industries. Almost every size of industry, and some commercial enterprises, generate hazardous waste. The need for efficient hazardous waste management and disposal is important in order to minimize the risks to lives and the environment.

It has been demonstrated that it is possible to recycle some specific hazardous waste streams.  In fact, recycling is best way to manage hazardous waste to minimize the amount of hazardous waste.

The circular economy is aimed at continual use of resources and eliminating waste. Many industries are focusing on the circular economy to reduce their carbon footprints, reusing their products, and cost-effective methods of waste management.

At the point when waste is reused, everybody benefits in view of lower energy use, diminished ozone depleting substance, characteristic asset preservation, lower removal costs and, frequently, more effective creation by utilizing reused materials.

An example of an important industrial chemicals that eventually becomes a hazardous waste are natural and inorganic solvents. Solvents are incorporated in paints and cements, cleaners and degreasers, drugs and many other products. Solvents are also used in a wide assortment of businesses including hardware, car, drug and paint manufacturers. Many companies are require the safe management of their spent solvents.

Chemical Recycling in Canada

Fielding Environmental, headquartered in Mississauga, Ontario, is an example of a chemical recycler in Canada. It has been serving industry clients for over 55 years, specializing in the recovery of solvents, glycols and refrigerants from automotive, coating and paint, printing and pharmaceutical industries. It is the most accredited solvent recycler in Canada. Moreover, it is largest Canadian recycler company in recycling waste ethylene and waste propylene glycol.

Fielding has technologies which not only collect waste from several industries but also extract the best from these resources. They recover all the positive qualities in it and transform waste into new products. Fielding is able recycle waste solvents to a purity that allows the same organization to reuse it without limitations. If a customer prefers not to take back a recycled solvent, Fielding uses it as a feedstock in the synthesis of new products that is sold nationally as well as internationally.

The company not only focuses on waste management but mainly works on waste optimization. Waste optimization is to change the waste into new product or use it as fuel. “If we want to build circular economy, we have to change the waste paradigm”, Ellen McGregor, CEO of Fielding environmental.

If any solvent is unsuitable for recovery, Fielding utilizes it as a fuel. In this way, all incoming waste is either recycled or has its energy value recovered (sometimes referred to as the 4th R – reduce, reuse, recycle, and recover [energy]). Fielding believes this is the best approach to managing incoming hazardous waste.

“We need to redefine the 3R (reduce, recycle, reuse) waste management hierarchy. A hierarchy put disposal and incineration in the same pyramid.  We need to break these things apart.  We need to include energy recovery us the pyramid.” Ms. McGregor added.

Ms. McGregor stated that all levels of government have a role to play in encouraging the 3Rs with respect to hazardous waste and in respecting the important role of hazardous waste companies in communities.  “Government has to play role in whole notion of procurement. There must be X-percentage of recycling components in products manufactured. Also, government has to ensure that companies in circular economy are welcomed in community. Recyclers need to be in urban areas so they have access to quality roads and other facilities,” She added.

“Fielding is all about the waste optimization we are trying that our material does not find their way to our soil, air and water,” Ms. McGregor said.  “98% of our business serves the circular economy.”

Emergency Preparedness and Prevention under the U.S. Hazardous Waste Generator Improvements Rule

Written by Ryan W. Trail, Williams Mullen

Generators of hazardous waste have long understood the importance of emergency preparedness and prevention to regulatory compliance and facility safety.  Contingency planning and coordination with emergency service providers have been requirements of United States Resource Conservation and Recovery Act (RCRA) regulations for many years.  For states that have adopted the Hazardous Waste Generator Improvements Rule (HWGIR), however, new and more stringent requirements for emergency preparedness and prevention now apply.  These states include Virginia, North Carolina and South Carolina, as well as 28 other states.  All authorized states are required to adopt most aspects of the HWGIR, including those aspects discussed below, but many have not yet done so.

Under the old regulations, generators of hazardous waste (both small and large quantity) had to make arrangements with local emergency response entities, which may be called upon in the event of a release, fire, or explosion involving hazardous waste at the facility.  Facilities were required to make the emergency responders familiar with the layout of the site, the risks associated with the type(s) of hazardous waste onsite, the locations where employees would likely be throughout the site, and possible evacuation routes.  While not specified in the regulations, many facilities accomplished this by inviting local emergency response personnel to tour the facility.

Under the HWGIR, generators must still make arrangements with emergency response personnel. However, the associated recordkeeping requirements have changed.  Previously, there was no affirmative duty to document the arrangements.  Generators who were unable to make the necessary arrangements were required to document this shortcoming, but otherwise no recordkeeping obligation existed.  The HWGIR added a requirement that the generator must keep documentation of the fact that it made arrangements with local emergency responders.  The arrangements must be noted in the facility’s operating record.

Hazardous waste contingency plans are another essential element of emergency preparedness and prevention under both the prior regulations and the HWGIR.  A contingency plan ensures facility and emergency response personnel have complete and accurate information to respond safely and efficiently to an emergency involving hazardous waste.

The HWGIR created new obligations for facilities with hazardous waste continency plans.  One significant update is the requirement to produce a Quick Reference Guide as part of the contingency plan.  The Quick Reference Guide is intended to summarize the broader contingency plan and must include eight elements essential for local responders when an emergency occurs:

  1. Types/names of hazardous wastes and the hazard associated with each;
  2. Estimated maximum amount of each hazardous waste that may be present;
  3. Identification of hazardous wastes where exposure would require unique or special medical treatment;
  4. Map of the facility showing where hazardous wastes are generated, accumulated and treated and routes for accessing these wastes;
  5. Street map of the facility in relation to surrounding businesses, schools and residential areas for evacuation purposes;
  6. Locations of water supply (e.g., fire hydrant and its flow rate);
  7. Identification of on-site notification systems (e.g., fire alarm, smoke alarms); and
  8. Name of the emergency coordinator(s) and 7/24-hour emergency telephone number(s) or, in the case of a facility where an emergency coordinator is on duty continuously, the emergency telephone number for the emergency coordinator.

A facility that became a large quantity generator after the date the HWGIR became effective in its state must submit a Quick Reference Guide of its contingency plan to local emergency responders at the time it becomes a large quantity generator.  However, for large quantity generators in existence on the effective date of the HWGIR in their state, the Quick Reference Guide need only be submitted when the contingency plan is next amended.  A facility is required to amend its contingency plan if any of the following occur:

  • Applicable regulations are revised;
  • The plan fails in an emergency;
  • The facility changes—in its design, construction, operation, maintenance, or other circumstances—in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;
  • The list of emergency coordinators changes; or
  • The list of emergency equipment changes.

Violations for inaccurate, incomplete or deficient hazardous waste contingency plans are common among RCRA enforcement actions.  With the HWGIR now in effect in many states, facilities may soon be amending their contingency plans.  New requirements for documenting arrangements with emergency responders and creating and maintaining a Quick Reference Guide could easily be overlooked.  It is important for hazardous waste generators to review emergency preparedness and prevention requirements of the HWGIR carefully to ensure continued compliance.

Hazardous Waste Generator Improvements Rule81 Fed. Reg. 85732 (Nov. 28, 2016)

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About the Author

Ryan Trail represents companies facing complex environmental regulatory issues in the industrial, manufacturing, real estate and banking industries. He helps companies maintain compliance with constantly evolving environmental laws and regulations, and he counsels landowners, potential purchasers and lenders on environmental liabilities related to contaminated real estate. Ryan also helps clients obtain and comply with numerous environmental permits, including industrial wastewater discharge permits, stormwater permits and air permits.

Here’s the Deal: New Directions in Environmental Enforcement Under Biden?

Written by Gerald F. GeorgeDavis Wright Tremaine LLP

On December 23, 2020, the federal government published its inflation-adjusted civil penalties for a variety of environmental statutes, including the Clean Air Act (CAA) and the Clean Water Act (CWA). Those $25,000 per day or per violation penalties in the original statutes have now reached substantially higher levels, mostly in the $50,000-$60,000 range, but CAA penalties could reach $100,000.

That is a predictable change. What is less predictable is how enforcement will play out in the coming year with a new administration. Will the annual inflation adjustment to civil penalties be accompanied by greater enforcement?

The Trump Administration ended the year the same way it started its term in 2017, by attempting to roll back the environmental regulations and policies applied previously. The near-term result for enforcement is unclear, in part, because virtually every change made by the Trump Administration has been challenged in court, with a uniquely low success rate for the federal government.

With many of those challenges still pending, one wonders how the Biden Administration will approach these cases. The more important question for the regulated community is the approach the Biden Administration will take toward enforcement in general. Even with the Trump changes, the incoming administration retains a lot of regulatory authority.

Two reactions seem obvious. One is resurrection of an unspoken principle for challenging regulation: be careful. You may win this case, but you will still have to deal with the regulator when the case is over. Taking a hard-nosed approach can backfire if it means the regulators will be hanging on you like a cheap suit for the next four years, or you need agency approval for an essential expansion.

More optimistically, we are almost certain to see a resurrection of Supplemental Environmental Projects (SEPs), environmentally beneficial projects implemented by a violator in connection with a settlement. SEPs have been used in EPA settlements since 1984 to create semi-win-win resolutions for alleged environmental violations.

A violator might pay a penalty, but would offset some, if not most, of that by funding an environmentally friendly project. The community and the environment would benefit from the project; the company might even pay more out of pocket, but will see its money used for something positive, not just dumped into the U.S. Treasury general fund.

While questions about the propriety of SEPs have been raised over the years, the issue had always been resolved in favor of authorizing settlement projects directly related to the violations—part of the remedy, not unappropriated “free money” for boat ramps at the local reservoir. The Trump Administration took a harder line, resulting in the EPA and Department of Justice (DOJ)’s ending the use of SEPs in settlements.

The issue of SEPs then arose in the courts in two contexts. In Michigan, the federal government settled a long-running CAA case with the violator for a civil penalty. The private plaintiff in the case settled separately with the defendant, committing to further steps to improve air quality and to implementation of an SEP. The federal government objected to the settlement, but lost last year in the district court in U.S. v. DTE Energy Co.

In an unrelated case arising in Massachusetts, an environmental group challenged the implementation of the DOJ policy. In Conservation Law Foundation v. William Barr, the federal government argued not that SEPs were barred, but whether or not the government’s acceptance of an SEP in a settlement was within its discretion.

Whether one agrees with the policy, the prosecutorial discretion position makes sense. It also means that a decision favorable to the federal government would not bar it from reverting to its prior policy authorizing SEPs.

SEPs are extremely useful in structuring settlements. A minor loss of income to the U.S. Treasury is more than offset by the environmental benefits to the public, and the parties focus their discussions on addressing environmental problems, not on trying to save a few dollars in penalties.

Further, SEPs are particularly attractive in suits involving public agencies, where cash-strapped facilities can at least put their limited funds to work on real environmental problems important to their constituencies. It is galling to see a municipality paying money into the U.S. Treasury for failure to implement treatment improvements it cannot afford, making the cost of future compliance even more unaffordable.

In any event, fights over the size of penalties are a crapshoot for everyone and may well end up costing more than they save. E.g., Citgo’s effort to defeat a major penalty demand in connection with a spill from its refinery in Louisiana ($8 million penalty at District Court reversed by a Court of Appeals, $81 million penalty imposed on remand).

The next four years of environmental enforcement litigation will be interesting to watch. But aside from the litigation over old and new regulations, I predict enforcement will look more like what existed pre Trump, if not more aggressive.

It would behoove the regulated community to be ready to return to use of the traditional tools for defense of claims involving strict liability statutes. Watch the bottom line of your business, and avoid a hostile relationship with your (we hope) friendly, but ever present regulator.

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About the Author

Gerald George is a seasoned environmental attorney and litigator, with extensive experience in successfully resolving federal and state enforcement actions, natural resource damage actions, and citizen suits. Gerald also advises on regulatory matters involving air, water, waste, and environmental impact review laws. He has more than 40 years’ experience in civil lawsuits, including 30 years of handling major environmental litigation throughout the country.

$20 Million U.S. TSCA/Lead-Based Paint Penalty: Expensive Reminder to Manage and Audit Contractors’ Joint Regulatory Liabilities

Written by Patrick Larkin and Maram T. Salaheldin  Clark Hill PLC 

Renovation of homes built before 1978 frequently disturbs lead-based paint (LBP) and poses significant health risks, particularly for children. For this reason, companies that perform or subcontract renovation services are required to provide very specific, written LBP warnings and education materials to residents. Failure to comply with these obligations can result in significant penalties for non-compliance. The U.S. Environmental Protection Agency (EPA) enforces these rules on all companies that “perform renovations for compensation.” This means that retail sellers of renovation products (e.g., windows or woodwork) can face EPA enforcement for noncompliance even where they subcontract installation to third parties.

On Dec. 17, 2020, U.S. EPA and the Department of Justice (DOJ) announced a nationwide settlement with Home Depot related to home renovations that occurred between 2013 and 2019. The settlement resolves alleged violations of the EPA’s Lead Renovation, Repair, and Painting (RRP) Rule involving renovations performed by Home Depot’s contractors across the country on homes built before 1978. EPA identified hundreds of instances in which Home Depot failed to contract renovations or repairs with certified contractors, as well as instances in which Home Depot failed to establish, retain, or provide the required documentation to demonstrate compliance with the RRP Rule.

EPA’s proposed settlement with Home Depot includes a $20.75 million penalty—the largest such penalty to-date under the Toxic Substances Control Act (TSCA).

Compliance Lessons

Companies in the construction industry and beyond can learn several significant lessons from the Home Depot violations, including the importance of:

  1. Understanding Your Liability: Businesses sub-contracting regulated activities to third parties are not necessarily insulated from liability. Here, since Home Depot contracted with customers and received compensation to perform renovations of pre-1978 housing, it remained liable under the RRP Rule, regardless of its use of subcontractors. Home Depot failed to actively assess and control risk from noncompliance by itself and its subcontractors, resulting in a significant penalty. Understanding your liability, particularly in the context of subcontracting, is an important step towards reducing enforcement exposure for your business.
  2. Being Proactive about Compliance: Another important step to reducing your enforcement exposure is implementing a compliance management system to identify potential issues before they become a problem. A strategic option to reduce such exposure can be the use of environmental self-audit/self-disclosure programs, such as EPA’s Audit Policy. The EPA Audit Policy allows companies to reduce or eliminate penalty exposure from noncompliance at their facilities. In addition, under the LBP Consolidated Enforcement Response and Penalty Policy, renovators may succeed in receiving gravity-based penalty reduction for any RRP Rule violations that qualify for such reduction under EPA’s Audit Policy. While navigating the EPA self-audit program can be challenging, the benefits can often be great for businesses. Small businesses and new business owners, in particular, may wish to take advantage of the tailored incentives potentially available to them, including the ability for new owners to enter into audit agreements with EPA to receive affirmative resolution and negotiated timelines for completing corrective actions.

About the Authors

Pat Larkin practices exclusively in environmental law at Clark Hill PLC, including regulatory compliance, litigation, administrative law, and environmental counseling in business transactions. Pat regularly represents industrial, transportation, real estate and retail clients in air, water and waste permitting, compliance counseling and audits, voluntary site cleanups, government enforcement actions, and in agency rulemaking and associated stakeholder and guidance writing work groups.

Maram Salaheldin is an Associate in Clark Hill’s Washington DC office in the Environment, Energy & Natural Resources group. Her practice focuses on providing environmental management and regulatory compliance support to U.S. and multinational clients, with an emphasis on risks and liabilities arising under environmental, health, and safety (EHS) laws, particularly with regard to solid and hazardous waste management, including transboundary movements under the Basel Convention.

Addressing new and emerging challenges in nuclear emergency response

Written by Steven Pike, Argon Electronics

Radioactivity and natural sources of radiation are ever-present features in our environment, with radioactive substances playing an invaluable role in the development of global medicine, industry and agriculture.

The risk that exposure to radiation can pose to workers and the wider public however is something that must be continuously monitored and managed.

The regulation of ionising radiation is ultimately the responsibility of each individual nation, however there can be times when radiation risks transcend borders and where international cooperation is necessary in order to control hazards, prevent accidents and enhance operational capability.

The International Basic Safety Standards on Radiation Protection (IAEA Safety Series No.115) establish the basic quantitative and qualitative requirements for radiation safety as they relate to the practice of nuclear power generation and the use of radiation and radioactive sources in medicine and industry.

In addition, the standards also provide guidance on occupational radiation protection, the prevention of public exposure to radioactive materials released into the environment and the mitigation of incidents where there is risk of ionising radiation exposure.

Tackling nuclear safety post Fukushima

There is little doubt that the Fukushima Daiichi Nuclear Plant accident in March 2011 substantially influenced the way in which nations all over the world view their reliance on, and their relationship with, the power of nuclear energy.

In the months following the Fukushima disaster, many countries announced plans to review the safety of their nuclear reactors.

Germany is reported to have closed down seven of its seventeen reactors in response to the incident, while Switzerland permanently shut down the first of its five nuclear reactors in 2019.

Over the past decade we have also seen a increasing focus on the efficacy of radiation safety training in aiding operational readiness.

In the rare event that radiological accidents or incidents do occur, it is vital that emergency response teams are suitably equipped and prepared.

The provision of realistic radiation safety training exercises has continued to increase in popularity as CBRN instructors seek out more effective ways for their trainees to improve essential knowledge and practical skills.

In place of the more traditional approaches to radiation training (such as those where trainees are shown a visual representation of their instrument readings) many exercise coordinators are now turning to simulators that enable their trainees to handle highly realistic replicas of their actual operational equipment.

Realistic nuclear emergency response training

We have written previously about the role that simulator technology can play in enhancing the deployment of radiation safety training.

In Asia Pacific Fire magazine for example, we described how a US nuclear emergency response exercise was able to successfully incorporate simulator detector equipment into its training scenario.

The exercise involved the creation of a simulated plume, comprising the radionuclides 137C, 131I and 90SR, which was configured to saturate the training area. The trainees were then tasked with assessing the risk, selecting the appropriate equipment and determining what action was required.

The teams deployed a variety of simulator detector systems throughout, including simulators for the EPD-Mk2 dosimeter, the SAM 940 handheld radiation isotope identifier (RIID) and the RADeCO air sampler.

Adopting a simulator-based approach to training offered significant advantages both for the exercise coordinators and the participants.

Prior to the scenario, a preliminary trial run was conducted to ensure that the desired readings would be obtained in all of the required locations.

During the exercise itself there was the option to fast-forward or pause the exercise at any point in order to manage the precise staging of the scenario and to provide additional guidance where needed.

The students’ movements were also able to be monitored and recorded in real-time which aided in the process of after-action review.

The simulators generated instrument readings at a level that many of operators had never experienced before, highlighting some of the issues that can occur when readings are not fully understood or correctly communicated.

Significantly too, the exercise provided an opportunity for participants to work with teams of people with whom they had never previously interacted – replicating what is a common experience for emergency responders when they are required to attend major incidents.

Live hands-on training has a vital role to play in preparing radiation safety personnel for the challenges, the hazards and the unpredictable nature of radiological accidents.

As the technology that supports radiation safety training continues to grow in sophistication, the quality and effectiveness of nuclear emergency exercises is only set to increase.


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.

Assessing the Long-term Performance and Impacts of ISCO and ISBR Remediation Technologies

The Environmental Security Technology Certification Program (ESTCP), the U.S, Department of Defence’s environmental technology demonstration and validation program, recently issued a Fact Sheet that summarizes the results of a recent remediation project that assessed the long-term performance of in-situ chemical oxidation (ISCO) and fracturing-enhanced in-situ bioremediation (ISBR) at a site contaminated by trichloroethene (TCE), 1,4-dioxane (dioxane), and chromium.  The project was conducted at Air Force Plant 44, which is part of the Tucson International Airport Area federal Superfund site located in Tucson, Arizona.

The Arizona site comprises several primary source zones and a large, several kilometer long, groundwater contaminant plume that resides in the regional aquifer. The remedial action and performance monitoring were conducted by the Air Force contractor.

Performance monitoring data were obtained for a period of greater than three years after completion of ISBR. The project focused on treating the interface between the vadose zone and saturated zone. This interface region, which consists of primarily lower permeability (clay) media, has been identified as a primary location for remaining contaminant. Slow release of contaminant from this domain is considered a primary cause of the observed delayed attainment of cleanup objectives.

Key Result 1: ISBR employing enhanced reductive dechlorination (ERD) was effective.

TCE, chromium, and dioxane concentrations at site DP003 were reduced by 94, 83, and 36%, respectively. The observation of cis-1,2-dichloroethene, vinyl chloride, ethene, and ethane in groundwater samples after ISBR implementation (but not before) supports that reductive dechlorination of TCE was initiated in the treatment zone.

Key Result 2: ISBR employing enhanced aerobic cometabolism (EAC) was effective.

Dioxane and TCE concentrations at site DP003 were reduced by 92 and 60%, respectively. The concentrations of chromium remained essentially unchanged over the course of the EAC-ISBR treatment, which indicates that the generation of aerobic conditions had no measurable impact on chromium levels in groundwater.

Key Result 3: The performance results are consistent with other field tests.

A meta-analysis was recently reported of enhanced anaerobic bioremediation projects conducted for sites wherein the original contaminants of concern (COC) were either tetrachloroethene or TCE. The median concentration reduction was 90% for 34 sites for which the  erformance-monitoring period was at least three years. The %-reductions observed for the present study are consistent with the meta-data.

Key Result 4: The longer-term performance assessment provided more robust assessment.
Concentrations of the COCs measured after >3 years of monitoring were approximately 50% lower than the values measured after three months for a majority of the sampling points. This demonstrates the advantage of conducting longer-term performance assessments.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Hazardous Waste Enforcement: U.S. Environmental Protection Agency and Michigan Hospital Enter into Consent Agreement

Written by Walter Wright, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

The United States Environmental Protection Agency (“EPA”) and Spectrum Health Hospitals (“Spectrum”) entered into an October 29th Consent Agreement and Final Order (“CAFO”) addressing alleged violations of the Resource Conservation and Recovery Act (“RCRA”) hazardous waste regulations. See Docket No. RCRA-05-2021-0003.

The CAFO provides that Spectrum operates a facility (“Facility”) in Grand Rapids, Michigan.

The Facility is stated to include actions or processes causing the production of hazardous waste as that term is defined under 40 C.F.R. § 260.10. Therefore, Spectrum is stated to be a generator of hazardous waste under the relevant regulations.

The Facility is stated to have during the 2019 calendar year generated 1,000 kilograms or greater of hazardous waste, or generated 1 kilogram or greater of acute hazardous waste in some calendar months (qualifying it as a large quantity generator) which it shipped off-site to a treatment storage or disposal facility.

EPA is stated to have provided Spectrum the identification of potential RCRA violations. The Facility is stated to have engaged with EPA to expeditiously assess the matter and agrees to the entry of the CAFO.

The alleged violations include:

  • Notification of Change of Hazardous Waste Activity (failure to submit for the 2019 calendar year a notification of the change of the Facility’s type of hazardous waste activity to Large Quantity Generator status)
  • Annual Reporting (failure to prepare and submit a biennial report by March 1, 2020)

The CAFO requires that Spectrum file with the Michigan environmental agency an updated Notification of RCRA Subtitle C Activities and a Biennial Hazardous Waste Report covering the 2019 calendar year.

Spectrum neither admits nor denies the factual allegations in the CAFO.

A civil penalty of $11,471 is assessed.

A copy of the CAFO can be downloaded here.


About the Author

Walter Wright has more than 30 years of experience in environmental, energy (petroleum marketing), and water law.  His expertise includes counseling clients on issues involving environmental permits, compliance strategies, enforcement defense, property redevelopment issues, environmental impact statements, and procurement/management of water rights. He routinely advises developers, lenders, petroleum marketers, and others about effective strategies for structuring real estate and corporate transactions to address environmental financial risks.