Effective Communication: Environmental Site Assessments

Written by Bill Leedham, P. Geo., CESA

I recently spent time dealing with the frustration of really poor communication from a variety of service providers.  In contrast I also recently attended a post-report meeting with a new client, whose first comment was how pleased they were with the level of communication.  From my viewpoint, I was also quite happy with the speedy and effective responses I received from this client throughout the project.  These vastly different experiences led me to consider some suggestions for improving and maintaining good communication between clients and consultants.

 You can’t tell the players without a program ….

In transactional due diligence work, there can be many stakeholders from vendors, buyers and agents, to lawyers, banks and regulators.  Each stakeholder may have their own unique objectives which can sometimes oppose those of other players in the transaction; often leaving the consultant in the middle.  This can be counterproductive and lead to potentially serious misunderstanding and miscommunication.  Consultants owe a legal and ethical duty of care to their client, and must know who their client is (individual, company, consortium), what their objectives and timeframe are, and whether other stakeholders are involved. If second or third parties are to be involved, this must be clearly defined at the start of the project, to ensure the necessary information can be shared where appropriate, and a letter of reliance can be prepared if necessary.  Establishing a clear channel of communication between client, consultant and other parties is also important.  Any requirements for confidentiality or legal privilege should also be set out in advance.  Repetitive ‘reply all’ e-mail chains and getting caught in a lengthy multi-party decision making process should be avoided.

Timely communication is key

On any project timely communication is paramount, and even more so when due diligence deadlines are present.  Information presented by a consultant after the closing of a real estate transaction may be important, but if received too late it may be un-useable.  If the consultant was aware of the data, but failed to deliver in time, they could be negligent or in breach of contract and subject to litigation.  Similarly, delays in responses or project approval from client to consultant can result in cost over-runs, duplication of work, and failure to meet established deadlines.  Both parties need to set clear timelines for project milestones and to prepare contingency plans for unforeseen obstacles. Some unplanned events can be accounted for (such as delays in utility locates), others come out of left field and we have to adjust as best we can (such as a pandemic lock-down). It’s equally important to state at the time of proposal/award a clearly defined scope of work, budget and contingency allowances, a mutually-agreed approval procedure for project extras, and all payment terms.

Say what you mean, and mean what you say!

Environmental reporting can be complex and full of scientific data and technical jargon. As a consultant, ensure you are speaking plainly so that your target audience can understand.  Some stakeholders are interested primarily in the ‘big picture’, while others are very detail-oriented. I have some clients who had never heard the term Environmental Site Assessment until they purchased a commercial property; and others that could fully describe all the required protocols to complete a Modified Generic Risk Assessment. Know your audience and tailor your approach to their level of technical comprehension.  Clients must also clearly communicate their goals, objectives, timeframes and required comfort level to their consultant.  Both sides should ask questions when needed, and request a detailed explanation when things are unclear.  It helps to have everything in writing to avoid future discrepancies, especially for project changes or extra work items. For any client, if your service provider isn’t giving you answers, or doesn’t explain things to your satisfaction; perhaps it’s time to find one that does.


About the Author

Bill Leedham is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (www.aesac.ca); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at [email protected]

Scientific advancements in oil spill containment

The United States Coast Guard recently reported that an innovative sub surface oil containment and recovery system, installed in April 2019 over a damaged oil platform in the Gulf of Mexico, is successfully preventing more than 1,000 gallons of oil per day from entering the environment. Scientific research and lessons learned following the Deepwater Horizon oil spill have allowed the development of unique oil spill response systems such as this to help protect the maritime environment from future threats.

In 2004 during Hurricane Ivan the Taylor Energy Mississippi Canyon 20 (MC20) oil platform toppled creating an ongoing flow of oil into the Northern Gulf of Mexico. Scientists from multiple government agencies and academic institutions, conducted cutting-edge studies that determined the location, source, and amount of oil and gas emitting from the site.

Utilizing remote sensing technologies such as drones, satellites, and underwater vehicles in combination with on-site in-situ sampling and chemical analysis, scientists were better able to characterize the oil release.

Two separate studies conducted in 2017 determined that the oil and gas were discharging from multiple plumes in a discrete location rather than over a wide area. In 2018, the Bureau of Safety and Environmental Enforcement and the National Oceanic and Atmospheric Administration undertook a follow-up study to determine the chemical characterization of the release, and to generate a flowrate (amount of oil and gas spilling in a given period of time) estimate for the site.

These studies helped determine that oil was leaking from the damaged infrastructure and could be contained, and that more than 1,000 gallons of oil per day was being released. This was substantially greater than the previously asserted 3-5 gallons per day.

The United States Coast Guard assumed partial control of the Taylor Energy oil spill response after repeated past attempts failed to stop, or contain, the flow of oil in the years since the platform with 25 producing wells were toppled and buried in sediment.

The Coast Guard, with support from the National Oceanic and Atmospheric Administration and the Bureau of Safety and Environmental Enforcement, oversaw the design, installation and operation of a Rapid Response Solution (RRS) subsurface system designed by the Louisiana based Couvillon Group.

The containment and collection system was developed and implemented in only 5 months in order to quickly stem the flow of oil. The system has recovered more than 375,000 gallons of oil since it was installed. Environmental protection continues, with the Coast Guard overseeing continuous oil collection and containment system maintenance.

These scientific research was a collaborative efforts of the inter-agency team of oil spill responders and scientific experts. The Coast Guard and National Oceanic and Atmospheric Administration will continue to support the Bureau of Safety and Environmental Enforcement efforts to ensure that the Taylor Energy wells are properly plugged and a permanent solution is reached.

Dangerous Goods Online Training: How to Choose the Best Provider

Written by Hazmat University

Dangerous goods training is required for anyone who handles or ships dangerous goods by ground, air, or ocean. You have to be trained in IATA/ICAO regulations (if you ship by air), 49 CFR (if you ship by ground), or IMDG regulations (if you ship by vessel).

Choosing the right dangerous goods online training provider is critical if you want to be adequately trained in the applicable federal and international regulations related to the safe transportation of dangerous goods.

The factors you need to consider while choosing a dangerous goods online training provider are listed below.

Training Programs Offered

Does the dangerous goods training provider offer initial training as well as recurrent training programs? Do their training programs thoroughly cover all relevant regulations? These are the first questions you need to ask while choosing a hazmat training provider.

It is also advisable to choose a training provider who offers function-specific training programs for each mode of transportation (IATA programs for air, IMDG programs for  ocean, and 49 CFR programs for ground). If you ship by more than one mode of transportation, then you would likely choose a dangerous goods training provider that offers multimodal training programs. These in-depth courses cover the dangerous goods regulations pertaining to two or three modes of transportation, depending on the course.

By proactively seeking a reputable and knowledgeable training provider that offers the exact services you need, you can attend a dangerous goods training program that is tailored to your business needs. For instance, if you ship dangerous goods by ground and air, you can sign up for a multimodal training program which covers 49 CFR and IATA regulations.

Dangerous Goods Online Course Material

The quality of a dangerous goods online training program depends to a great extent on the course material it covers. Ideally, the course material should cover a minimum of the following information:

  • Identification and classification of dangerous goods based on the risks the materials present and the criteria of the 9 hazard classes
  • The regulatory requirements pertaining to packing, marking, and labeling dangerous goods
  • Dangerous goods placarding and segregation requirements for transport vehicles
  • The regulatory requirements related to loading/unloading of dangerous goods
  • Completion of the various forms of shipping paperwork that are required to ship dangerous goods by ground, air, and ocean
  • The regulations pertaining to prohibited and restricted dangerous goods
  • Regulatory exceptions and the circumstances under which they are applicable
  • The most common security hazards associated with shipping dangerous goods and applicable safety measures to take

Dangerous Goods Training Methodologies

What methods of presentation does the dangerous goods training provider offer? Do they provide in-person, instructor-led webinars, as well as online training programs? This is something you need to consider, especially if you have budgetary and/or time constraints to contend with.

Dangerous Good Classroom Training and Instructor-led Webinars

Classroom and webinar training programs are instructor-led and are conducted at a specific location at a specific time. Such training sessions are often held at a centralized location that is convenient to a wide range of attendees.  Participants are required to physically attend the classroom presentation or webinar and these training sessions are most often designed to provide general information that is common to a wide-array of shippers. This is often an economical option to receive interactive face-to-face training but this option still requires planning and budgeting from a travel standpoint.

Dangerous Goods Onsite Training

Onsite training programs, on the other hand, are usually highly personalized and are held at your specific place of business. The course material is tailored to the specific needs of your organization, which provides many advantages. However, similar to classroom and webinar training programs, onsite training still requires participants to physically attend the course at the determined place and time. These types of training courses also usually come at a premium cost.

Dangerous Goods Online Training

On the contrary, Dangerous goods online training programs, do not require your physical presence at all. You can access the course material using your tablet or computer at any time or any place with an internet connection. As such, this is perhaps the most convenient and cost-effective method of obtaining required dangerous goods training. Online dangerous goods training sessions can save you a lot of time and money, since they do not involve any travel costs, instructor fees, or scheduling commitments.

Choose the Best Dangerous Goods Online Training Program Provider

Even amidst the COVID-19 crisis, dangerous goods online training options are available for hazmat employees on the frontlines of the supply chain.


About the Author

Hazmat University provides online hazmat training to help you satisfy hazardous materials training requirements for all modes of transportation.

U.S. EHS Compliance and COVID-19: What EHS Executives Can Do Now (and as soon as the Dust Settles)

Written by Christopher Clare and Patrick Larkin, Clark Hill PLC

On April 2, 2020, the US EPA issued a letter to each member of Congress that makes our point that published Enforcement Discretion policies may require case-specific demonstrations of Force Majeure.

Greater certainty may be obtained under self-disclosure and penalty immunity policies.

On April 10, the US EPA also issued “Interim Guidance on Site Field Work Decisions Due to Impacts of COVID-19.” As in its March 26th Enforcement Discretion Guidance, EPA affirms that it will require actual evidence of “impracticability” to excuse or mitigate non-compliance with remedial activity obligations.

___________________

Act now – assume there will be gaps in compliance programs.

The COVID-19 pandemic will have (hopefully) once-in-a-lifetime impacts on all of us, including unavoidable and widespread non-compliance with regulatory obligations and deadlines. To help manage enforcement liability, the U.S. EPA and numerous state counterparts have issued new enforcement discretion guidance, and are emphasizing existing penalty relief mechanisms. To qualify for discretionary penalty mitigation, Environmental Health and Safety executives should actively participate in their companies’ resource-triage decisions, and take steps now to ensure self-audit penalty immunity. These steps include:

Take short term actions that, above all, prioritize the physical security of human health and environmental receptors (HH/E).

  • As Hurricane Alley companies (and their EHS managers) have learned, in weeks and months after the disaster, governments will use 20/20 hindsight and expect environmentally significant operations to have prioritized human health and the environment.
  • Where actual harm to HH/E occurs and arguably arises from a resource allocation decision, State and federal agencies may have limited discretion and less inclination to mitigate maximum statutory penalties (and equally existential economic consequences).
  • When making decisions on how to prioritize limited company resources, EHS managers may present their claim to company resources in terms of preserving reputations and avoiding criminal sanctions and/or catastrophic civil liability.

Take the required steps to qualify for state and federal enforcement discretion guidance.

  • These guidance documents recognize that the numerous executive orders restricting travel and calling on citizens to shelter in place will make compliance and agency interactions difficult and tenuous. These documents have thus far focused on: (1) force majeure recognition and self-documentation; and (2) online “registration” of force majeure events.
  • Many permits, consent orders, and remediation agreements contain so-called “Act of God” or force majeure provisions that arguably excuse or defer actual or timely performance of these legal obligations.
  • Establishing the criteria for force majeure typically requires a nuanced demonstration of the elements of eligibility, including:
    • Near-immediate notice of intent to assert force majeure;
    • Demonstration that nonperformance was unavoidable, cause unforeseeable; and
    • Extremely rigorous, arguably unreasonable, levels of mitigation efforts.

Key provisions to look for in enforcement discretion guidance documents include:

  • Specific eligibility criteria for force majeure / enforcement discretion.
  • Waivers/penalty mitigation likely will be subject to a case-by-case analysis.
    • Companies will need to “make their case” for relief.
    • Documentation of direct causal connection between COVID-19 pandemic and impacts on the company will likely be necessary.
    • It is unclear if rigorous force majeure demonstrations will be required. (e.g. non-foreseeability) by most agencies.
  • Violations which could have “practicably” been prevented are likely ineligible.
  • Intentional criminal acts will be ineligible (“knowing but unavoidable” are likely eligible).
  • Discretion policies will likely not apply to non-compliance with cleanup/enforcement orders.
    • Orders are quasi-contractual and often include force majeure terms.
    • For rule-based obligations, the agency may need additional authority to use force majeure defenses to waive enforcement.
  • Most importantly, these exclusions emphasize that EPA guidance provides only a first step:
    • Guidance is an invitation to apply force majeure concepts to rule obligations.
    • No blanket immunity is provided.
  • EPA’s enforcement discretion guidance can be found here. Examples of state agencies with similar guidance include TexasPennsylvaniaMichigan, and California.
    • State enforcement discretion policies may provide broader waivers of state-specific regulatory requirements and state enforcement of federally delegated programs.
    • When requesting relief from a solely-federal requirement (e.g., EPCRA Tier II, SPCC or Toxic Release Inventory reporting), the EPA’s guidance should be used.
    • Several states’ guidance emphasizes self-reporting and appears to set a lower bar to secure enforcement discretion, e.g., Texas, linked above, and Ohio.

Do not assume these defenses will apply, or be applied consistently, in the future.

  • Many eligibility decisions will not be made until 2021 or later and may be made by agency management from a new Administration or revised post-pandemic roster.
  • It may be prudent to view agency enforcement discretion guidance as offers to apply force majeure principles if/when you can show it is appropriate.
  • Optimistically, a company may consider the guidance as an acknowledgment that one or more of the force majeure elements are generally satisfied.
  • Guidance seems to imply that “un-foreseeability” elements of force majeure are satisfied.
  • The (next) most difficult prerequisite to satisfy is likely to be the adequacy of mitigation efforts.

Use Self-Audit/Self-disclosure Policies to seek full immunity or minimized enforcement responses. 

  • A company’s chance to enforce discretion is greatly enhanced by invoking agency authority to grant penalty immunity: self-audit and self-disclosure programs.
  • Prerequisites and protocols for audit-based immunity vary across agencies, but can generally be optimized by planning and for some, pre-negotiation of terms with the agency.
  • Negotiating a pre-planned audit/disclosure can provide flexibility in the satisfaction of penalty immunity deadlines and criteria. Moreover, the EPA and state agencies are likely to show audit agreement flexibility while the pandemic continues.
  • More information concerning EPA’s self-audit program can be found here.
  • Many states have similar audit/disclosure programs, but eligibility nuances and “trap-doors” require careful attention to detail. See TexasPennsylvaniaCalifornia, and Michigan.

About the Authors

Christopher B. Clare is a Senior Attorney in the Environment, Energy & Natural Resources group in Clark Hill’s Washington, DC office. Chris concentrates his practice on environmental litigation, regulatory compliance matters and business transactions involving environmental issues.

 

Pat Larkin practices exclusively in environmental law, 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.

To Sample or Not: U.S. EPA Issues Interim Guidance on Site Field Work During the COVID-19 Pandemic

Written by Amy L. Edwards, Bonni F. Kaufman, and Meaghan A. Colligan,  and  Holland & Knight LLP

On April 10, 2020, the U.S. Environmental Protection Agency (EPA) Office of Land and Emergency Management (OLEM) and Office of Enforcement and Compliance Assurance (OECA) issued Interim Guidance on Site Field Work Decisions Due to Impacts of the COVID-19 Pandemic to all EPA Regional Administrators. The Interim Guidance outlines the factors that EPA Regional Offices should consider on a case-by-case basis to evaluate if cleanup actions should continue as is, be reduced or paused, as well as affirmative steps that EPA Regions must take depending on what decision they make. The Interim Guidance is applicable to Superfund cleanups, Resource Conservation and Recovery Act (RCRA) corrective actions, Toxic Substances Control Act (TSCA) PCB cleanups, cleanups under the Oil Pollution Act, the Underground Storage Tank (UST) program and EPA emergency responses to releases or substantial threats of releases (Response Actions) when EPA is the lead agency. The Response Actions may be performed by EPA, states, tribes other agencies of the federal government and potentially responsible parties where EPA is the lead agency.

EPA was clear that Regional Office decisions and follow-up steps must be made in accordance with EPA’s priorities to 1) protect the health, safety and welfare of the public, EPA staff and third-party environmental professionals, and 2) maintain EPA’s ability to respond to environmental emergencies and protect the environment (EPA’s Priorities). EPA indicated that adherence with federal, state, tribal or local health declarations and restrictions (Health Declarations), when possible, is integral to EPA’s Priorities. EPA was clear that no one factor outlined in the Interim Guidance should be considered in a manner that would override protection against unnecessary potential exposure to COVID-19. Furthermore, EPA indicated that Regional Office decisions to provide extensions or pause work obligations will not supersede or amend enforcement instruments.

When evaluating whether or not to continue, modify or pause a Response Action, EPA made clear that Regional Offices should closely consider whether or not the Response Action is addressing an imminent public health issue, such as access to clean drinking water or vapor exposure concerns, emergency spills, catastrophic events, disposals of certain wastes that may cause an imminent safety issue and in-progress decommissioning of former nuclear facilities and landfills. Applying EPA’s clear guidance that EPA’s Priorities must be at the forefront of the Regional Offices’ decisions, Holland & Knight does not believe the Regional Offices will permit any schedule alterations in these situations, so long as appropriate lodging and personal protective equipment is available for EPA workers or third-party contractors. In contrast, EPA may be more willing to approve schedule modifications for investigations that are part of long-term remedial actions that would not be completed in six months under ordinary circumstances, and remedial actions that do not address an immediate public health concern, i.e., the remedial action was already not scheduled to begin for at least one or two years regardless of any delays caused by the pandemic.

EPA indicated that Response Actions will not simply be abandoned without any controls. Rather, if Regional Offices decide that an action should be paused, Regions should continue to monitor the site and plan to resume field work as soon as it is safe to do so. If a Response Action will continue, Regional Offices must review and modify the health and safety plan (HASP) to ensure that it accounts for CDC’s COVID-19 guidelines and other Health Declarations.

EPA expects work that can be performed remotely to continue, such as completing investigation and cleanup reports, work plans, negotiations between parties, issuing decision documents, progress reports and maintaining compliance with financial assurance obligations.

Parties that believe a COVID-19 restriction will impact their obligations to perform any element of a Response Action are directed to consult the applicable enforcement instrument to review force majeure provisions and any provisions that outline the process for requesting schedule adjustments. Scheduling adjustments will be made on a case-by-case basis in line with EPA’s Priorities and the factors outlined in the Interim Guidance.

EPA indicated that it will update the Interim Guidance as the current situation evolves, as necessary.

Key Elements of the Interim Guidance

General Guidance for Response Field Work Decisions

EPA made clear that Regional Offices would continue to respond to releases or threats of substantial releases to the environment but that Regions should make every effort to ensure worker safety and compliance with travel restrictions, Health Declarations and access to personal protective equipment and lodging.

Under the Interim Guidance, Regional Offices are to perform an evaluation before deciding to continue, modify or pause Response Actions and pre-construction, construction and post-construction activities. In jurisdictions where Health Declarations have been issued, Regions are to evaluate the status of ongoing response work and the possible impact of the COVID-19 pandemic on sites, surrounding communities, EPA personnel and response/cleanup partners. In jurisdictions where Health Declarations have not been issued, Regions should weigh additional factors, including the safety and availability of work crews and EPA, state and tribal staff; the critical nature of the work; logistical challenges such as travel and lodging, and other factors particular to a site.

EPA indicated that Response Actions will not simply be abandoned without any controls. Rather, if Regional Offices decide that an action should be paused, Regional Offices should continue to monitor the site and plan to resume field work as soon as it is safe to do so. If a Response Action will continue, Regional Offices must review and modify the HASP to ensure that it accounts for CDC’s COVID-19 guidelines and other Health Declarations.

During the COVID-19 pandemic, EPA encourages parties and lead agencies to regularly communicate with EPA project managers about the status of the Response Actions and any anticipated challenges and mitigation measures. If COVID-19 restrictions impact a party’s ability to perform any Response Actions, that party should review the enforcement instrument, i.e., consent order, settlement agreement, etc., for the applicable provisions allowing for schedule adjustments or invocation of force majeure provisions. EPA project managers will promptly issue decisions about schedule adjustments on a case-by-case basis.

Factors to Consider for Site Field Work Decisions

EPA provided a list of situations in which Regions have decided and may continue to decide to modify or suspend Response Actions:

  • State, tribal or local health officials have requested suspensions.
  • Any site workers have tested positive for or exhibited symptoms of COVID-19.
  • Any sites where there may be close interaction with high-risk groups or those under quarantine.
  • Sites where contractor field personnel are not able to work due to a jurisdiction’s travel restriction or Health Declarations.
  • Other sites where social distancing is not possible.

EPA provides a list of factors that regional management should consider with respect to site-specific work decisions, including generally:

  • whether failure to continue the Response Action would likely pose an imminent and substantial endangerment to human health or the environment, such as emergency spill responses, catastrophic events, sites that impact drinking water or result in on-site exposures or vapor intrusion, disposals of certain wastes that may cause an imminent safety issue, and in-progress decommissioning of former nuclear facilities and landfills, and whether it is practical to continue the Response Action
  • whether maintaining Response Actions would lead to a reduction in human health risk/exposure in the next six months, such as vapor intrusion investigations, residential site work with current exposures to residents, and drinking water-related work
  • whether the work would not provide near-term reduction in human health risk, such as periodic monitoring, routine sampling activities and field sampling for remedial or facility investigations. In these instances, EPA is more likely to consider the possibility of a delay, suspension, or rescheduling of work and with updated HASPs as appropriate.

Effects on Non-Field Site Work

EPA expects work that can be performed remotely to continue, such as completing investigation and cleanup reports, work plans, negotiations between parties, issuing decision documents, progress reports and maintaining compliance with financial assurance obligations. EPA did recognize that laboratories and other supporting operations may be impacted by the COVID-19 pandemic and directed parties to follow procedures in those situations outlined in the applicable enforcement instrument.

Next Steps When Pausing Site Work

If a decision is made to pause work, EPA expects Regional Offices to continue to monitor site conditions, plan to resume field work when appropriate and utilize EPA’s internal Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Interim Guidance on Public Engagement During COVID-19.

Conclusion

EPA has made it clear to the Regional Offices that they may approve a modification or pause of certain Response Actions, but not if the Response Action is in the process of addressing or will address an imminent or substantial threat to public health and the environment. EPA does, however, require the Regional Offices to balance any decisions with a close review of Health Declarations and exposure or any potential exposure to COVID-19 to the public, EPA workers, and contractors. Based on recent experience, EPA will not extend deadlines for deliverables such as work plans, reports or settlement negotiations based on COVID-19 that can be prepared remotely.

DISCLAIMER: Please note that the situation surrounding COVID-19 is evolving and that the subject matter discussed in these publications may change on a daily basis. Please contact your responsible Holland & Knight lawyer or the authors of this alert for timely advice.

Information contained in this article is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


About the Authors

Amy L. Edwards is the co-chair of the Holland & Knight LLP’s National Environmental Team. She is a partner in the firm’s Public Policy & Regulation Group, which has been ranked among the top law and lobbying firms in Washington, D.C., by numerous publications. Ms. Edwards has been recognized as a leading environmental lawyer for several years by Chambers USA, Super Lawyers and Best Lawyers.

Bonni F. Kaufman is a partner in the Public Policy & Regulation Group of Holland & Knight, where she focuses her practice on environmental law. Ms. Kaufman represents clients in a wide variety of matters relating to environmental laws, focusing on regulatory enforcement and compliance, product regulation, litigation and environmental aspects of corporate and real estate transactions.

Meaghan A. Colligan is a Washington, D.C., environmental attorney and member of Holland & Knight’s Public Policy & Regulation Group. She focuses her practice in the areas of environmental, land use, energy and municipal law.

Canada: COVID-19 – Impact On Environmental Compliance And Due Diligence

Written by Bryan J. Buttigieg, Miller Thomson LLP
As these strange times continue to evolve, it is important to ensure that all companies whose operations raise environmental compliance issues try to think through and plan for what might happen in the coming weeks and perhaps months. In particular, both self-imposed and regulatory quarantine protocols may have a significant impact on critical staff levels at a facility. While we are all deep into implementation of directives about working from home when we can, there are, of course, a number of essential jobs that require physical presence for a plant to operate properly.

Despite all the dramatic changes going on in our lives, all conditions of operating permits such as Environmental Compliance Approvals remain in full force, and all obligations such as spill prevention, spill remediation, spill reporting and regular compliance reporting continue to apply. It is never an excuse to say something happened due to a staff shortage. If there are insufficient resources to conduct an operation in full compliance of environmental obligations, there is an obligation to revise operating plans including if necessary, reducing production levels, rather than continuing business as usual in the expectation that regulators will somehow turn a blind eye to non-compliance.

Care needs to be taken to ensure that all safety and regulatory requirements continue to be met. Careful thought should be given as to what minimum staffing would be needed to keep a facility operating safely and in full compliance. Consideration will have to be given as to whether production changes are needed to reduce the risk of an undesirable incident due to unexpected staff shortages. There may, in turn, be impacts on supply chain and customer obligations. While cross border closures are not supposed to impact the movement of goods, what happens if border screening is in place and a driver with essential supplies is refused crossing? Consider communicating regularly with any spill response contractors who are on retainer or may be needed: Are they adequately staffed? Will they be in a position to respond if needed? If not, what other steps need to be taken? We are at the stage where these are becoming foreseeable events and as such planning is required in order to ensure as orderly and safe a transition as possible.

Consider creating a dedicated COVID-19 Environmental Compliance Team whose main purpose is to review all applicable environmental obligations and try to anticipate internal compliance risks in the event of reduced staffing levels. Ensure that if employees are asked to step into temporary roles due to the absence of others, proper training is given on all obligations including spill detection and reporting. Be prepared to make quick decisions and make changes as the situation evolves. Communicate decisions to all affected clearly and concisely and ensure there is a channel for employee feedback and comments as quite often, those in the field will be the first to identify practical difficulties with any changes to long standing work practices.

Proactive communication with the regulators might be a useful step to consider. While many government employees are also working from home, they continue to enforce regulatory obligations. Proactive communication with a local abatement officer might be a useful way to ensure there is awareness of any special steps you are taking and an ongoing dialogue to ensure any concerns raised by the regulator are addressed.

Similarly, industry organizations might have put some thought into protocols applicable to all members that would assist you in ensuring you are exercising the appropriate level of diligence. Consider the need for community communications with neighbours or neighbourhood groups at this stage.

As the current situation continues to develop, vigilance to ensure ongoing environmental compliance is going to remain of utmost importance in order to minimise any additional disruption to daily business operations beyond that being caused by events that cannot be controlled or foreseen.

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.


Bryan Buttigieg is recognized as one of the leading practitioners of environmental law in Canada and is certified by the Law Society of Ontario as a specialist in Environmental Law. His practice includes a combination of litigation and transactional advice involving civil litigation and regulatory defence representation in environmental and occupational health and safety matters.

The Phase I Environmental Site Assessment: Unexpected COVID-19 Victim?

Written by David Quigley and Bryan Williamson, Akin Gump Strauss Hauer & Feld LLP and Summer Gell, Partner Engineering and
Science, Inc.

A number of commentators note the impacts of the COVID-19 crisis on the commercial and residential real estate markets. Some are obvious: falling interest rates, bargain hunting by investors (and some lenders) and a very different foreclosure environment.1 Recently, a less obvious impact emerged, as these lenders/servicers, investors and purchasers struggle with how to assess the environmental condition of the underlying assets. This brief alert provides answers to some frequently asked questions about phase I ESAs in the COVID-19 era.

Can I still do an ESA?

A number of states and some localities promulgated stay-at-home orders prohibiting all but “essential activities” for the next few weeks, if not months (and perhaps longer). Though each state is different, and must be analyzed as such, a number of the restrictions provide lists of industries or activities that are “essential” and therefore exempt from shelter-in-place mandates. For example, an initial Virginia executive order allows professional services firms to remain open, provided that they adhere to social distancing recommendations, enhance sanitizing practices on common services and apply relevant workplace guidance from state and federal authorities.2 Other states, like Illinois, delineate essential categories, including real estate and legal services, as “essential.”3 These approaches at least implicitly seem to allow for the conduct of ESAs (and ESAs are still taking place). Many states allow consultants to apply for an explicit authorization if squeamish about moving forward. (Note that while some states allow for environmental investigation as part of remediation activities, this may not encompass the typical phase I ESA).4

Beyond these states permitting consulting or related services directly, other states may allow for a phase I ESA where it “supports” a different service deemed “essential,” such as financing, particularly for a transaction that supports the agriculture, energy, manufacturing, hazardous materials and waste sectors.5 Still other states omit ESAs from stay-at-home orders entirely, raising complicated questions of interpretation.

If I can do an ESA, what will it look like?

If your state or locality allows for an ESA, that does not mean it is business-as-usual. As with other services in the COVID-19 era, commonsense efforts should be taken to minimize personal contact before, during and after site assessments. These measures may include adherence to social distancing guidelines; driving (not flying) to sites when possible; proper use of personal protective equipment; and wireless or pre-arranged access to tenant suites or interior building areas. Interviews should be conducted remotely, where feasible. To the extent possible, spaces to be viewed by the consultant should be “cleared” of people for three or more days prior to arrival. If, as will often be the case, this is not possible, then the consultant may seek to restrict her “walk-through” to vacant or limited areas of the facility.6

With all these restrictions, is the ESA “legal”?

While they likely did not have a pandemic in mind, the existing federal regulations and the industry standard governing ESAs already provide for deviations to normal operating procedures. Specifically, the phase I standards include a mechanism through which consultants identify “data gaps” encountered during environmental investigations.7 Historically, data gaps include inadequate records detailing adjacent sites, unreturned interview questionnaires and missing information about physical objects identified at the site (e.g., pipes, vents, tanks). Given the COVID-19 disruption, we expect to see a number of additions to these traditional data gaps, such as: limited or no access to interior areas; inability to locate and interview key personnel; and inability to access regulatory records or obtain Freedom of Information Act responses from government agencies due to staffing reductions and office closures. Much like the interruptions caused by governmental delays and flight cancellations experienced in aftermath of the September 11, 2001, terror attacks and office closures seen during the Great Recession, external forces are likely to hamper even the most diligent and experienced consultants.

The fact that these data gaps exist does not render the phase I invalid (necessarily). As always, it is up to the environmental professional to determine whether any identified data gaps are “significant,” such that they affect “the ability of the environmental professional to identify conditions indicative of releases or threatened releases of hazardous substances, and as applicable, pollutants and contaminants, petroleum or petroleum products, or controlled substances, on, at, in, or to the subject property.”8 Often, experienced consultants can identify other sources of information to resolve any data gaps, such as owner/user interviews or government and third-party environmental databases. Regardless of the significance of identified data gaps, however, consultants must be sure to document and evaluate any data gaps within the text of the ESA report.

OK, it’s “legal.” But is it useful?

Assuming you get an ESA with a number of data gaps, questions will arise as to its utility in evaluating environmental risk. Your counsel and consultants can identify site-specific approaches to find alternative sources of information to “fill” data gaps or at least “put a box around” the potential liability resulting therefrom. Beyond that, the usefulness of the assessment will depend on the use for which it is intended.

If you are trying to determine or allocate risk to close a deal, the above strategies may suffice (or at least may allow for the procurement of insurance to close the deal). If you are looking for financing, it likely will depend on the specific bank. Some may require complete or even more fulsome information than usual as they struggle to measure and manage risk in a pandemic-impacted world. Others may feel comfortable moving forward given the “cost” of money currently, even if they may include more detailed “update” provisions or requirements allowing them to get a clearer picture down the road. If you are looking for protection from Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability, that path is still developing. While EPA announced in March that it may exercise discretion in enforcing specific instances of noncompliance with some environmental laws, this policy explicitly does not apply to “activities that are carried out under Superfund and RCRA Corrective Action enforcement instruments.”9 At this time, it is not yet clear what, if any, relief will be provided through CERCLA’s innocent landowner and lender liability requirements.


1 Christopher Rugaber, Federal Reserve Cuts Interest Rate to Near Zero in Response to COVID-19 Outbreak, TIME, Mar. 15, 2020, https://time.com/5803563/federal-reserve-interest-rate-cut-zero/; Katy O’Donnell, HUD, Fannie, Freddie suspend foreclosures, evictions during outbreak, POLITICO, Mar. 18, 2020, https://www.politico.com/news/2020/03/18/hud-suspends-foreclosures-evictions-coronavirus-135783.

2 Virg. Exec. Order No. 53 (March 23, 2020), https://www.governor.virginia.gov/media/governorvirginiagov/executive-actions/EO-53-Temporary-Restrictions-Due-To-Novel-Coronavirus-(COVID-19).pdf. Similarly, Washington state published lists of “critical” sectors and examples of essential personnel permitted to work during the crisis. Wash. Proclamation 20-25 (March 23, 2020), https://www.governor.wa.gov/sites/default/files/WA%20Essential%20Critical%20Infrastructure%20Workers%20%28Final%29.pdf.

3 See, e.g., Ill. Exec. Order No. 2020-10 (March 20, 2020), https://www2.illinois.gov/Documents/ExecOrders/2020/ExecutiveOrder-2020-10.pdf (deeming “professional services” essential, including legal and real estate services).

4 See, e.g., “COVID-19: Essential Services,” Office of Governor Charlie Baker and Lt. Governor Karyn Polito, https://www.mass.gov/info-details/covid-19-essential-services#health-care/-public-health-/-human-services- (deeming essential “[l]icensed site clean-up professionals and other workers addressing hazardous spills, waste sites, and remediation”).

5 Wash. Proclamation 20-25, supra note 3.

6 Still, many components of the phase I ESA report, such as historical use and satellite reviews, environmental database searches, lien and title searches, phone interviews, and electronic questionnaires, should remain unaffected.

7 According to the U.S. Environmental Protection Agency’s (EPA) “all appropriate inquiries” (AAI) rule and ASTM Practice E-1527-13, a data gap is “a lack of or inability” to obtain required information “despite good faith efforts.” 40 C.F.R. § 312.10; ASTM E-1527-13 § 12.7.

8 U.S. ENVTL. PROTECTION AGENCY, ALL APPROPRIATE INQUIRIES RULE: REPORTING REQUIREMENTS CHECKLIST FOR ASSESSMENT GRANT RECIPIENTS (2014), https://www.epa.gov/sites/production/files/2014-08/documents/aai-reporting-fact-sheet-and-checklist-062111-final.pdf.

9 Memorandum from Susan Parker Bodine, U.S. Envtl. Protection Agency, to All Governmental and Private Sector Partners (Mar. 26, 2020), https://www.epa.gov/sites/production/files/2020-03/documents/oecamemooncovid19implications.pdf, at 2. Similarly, some states, such as Texas, also announced their intention to provide limited enforcement relief during this crisis. See “TCEQ Reporting Requirements for Regulated Entities,” Texas Commission on Environmental Quality (last visited Apr. 9, 2020), https://www.tceq.texas.gov/response/covid-19/regulated-entities-reporting-requirements (announcing the Commission’s exercise of “administrative relief and enforcement discretion for various reporting requirements by regulated entities” during the COVID-19 pandemic).


About the Authors

David Quigley advises lenders, sellers and buyers on evaluating the environmental liabilities associated with commercial, multifamily and industrial transactions. He develops solutions that are cost-effective and realistic in terms of the role of client as lender and the value of the property or portfolio.

Bryan C. Williamson is an environmental and natural resources lawyer, advising and representing clients on a range of environmental regulatory, transactional and litigation matters. His experience extends to issues involving federal and state environmental protection laws.

Summer Gell is a principal at Partner Engineering and Science, Inc. who leverages her 25+ years of experience and background as an environmental scientist to provide valuable solutions to her clients’ environmental and engineering due diligence needs. Summer is an expert on all things Freddie and Fannie, having worked on hundreds of agency and multifamily deals in recent years. She also serves as the national account manager for several CMBS lenders and life companies.

How simulations and simulator training have amplified CBRNe capability

Written by Steven Pike, Argon Electronics

The use of simulations or ‘war games’ to exercise military strategic planning and to enhance operational readiness is a practice that has been in existence for many hundreds, if not thousands, of years.

The earliest documented records of war gaming can be traced back as far as the ancient Greeks in the 5th century BC, who are known to have played a skill-based board game called petteia or ‘pebbles’.

By the 2nd Century BC petteia was being played widely throughout the Roman Empire, under the name of ludus latrunculorum or ‘the game of little soldiers’.

Chess, which has its origins in Northern India in the 6th century AD, is an example of an early war game that combined both strategy and tactical skill.

By the mid 1700s, the fundamentals of chess would also stimulate the development of an increasingly elaborate range of new battlefield strategy games.

Perhaps the most notable of these is the genre known as kriegspielwhich was formulated in Prussia in the early 1800s and which is now widely regarded as being the ‘grandfather’ of modern military gaming.

The role of simulation in CBRNe training scenarios

As the use of modern weaponry has became more widespread and more destructive in its capability, military strategists have been forced to look for more ‘abstract’ ways to safely imitate and prepare for the realities of conflict conditions.

Today, the tools, technologies and scenarios that are used to train real-life CBRNe incidents have become increasingly sophisticated and life-like in their design.

The use of simulations and simulator detector equipment has become an invaluable addition to many military and civilian CBRNe training programmes.

One example of the way in which simulation is being used to enhance CBRNe capability is through the use of wide-area instrumented training systems such as Argon Electronics’ PlumeSIM.

The PlumeSIM wide-area training system

Using PlumeSIM technology, trainees are able to safely and effectively hone their skills in the operation of chemical and radiological equipment in a diverse variety of true-to-life threat scenarios.

For those tasked with CBRNe instruction, balancing realism with safety is a crucial consideration.

Using PlumeSIM’s innovative simulator technology, the parameters of each training scenario can be rigorously selected and controlled.

Instructors are able to recreate a specific threat, to simulate plumes, deposition or hotspots, to mimic the release of single or multiple CWA, HazMat or radiological sources and to replicate  environmental conditions such as changes in wind direction.

Portability, speed of set-up and ease of use are also key factors. PlumeSIM’s planning mode provides CBRNe instructors with the ability to prepare exercises in advance on a laptop or PC and without the need for any type of system hardware.

Its innovative system design allows the use of common file format map images or even ‘homemade’ sketches of a proposed training area.

The addition of a tabletop classroom mode also enables trainees to familiarise themselves with every aspect of the exercise before hands-on training commences.

Using simple gamepad controllers, students are able to ‘move’ icons of themselves around an on-screen display of the training area.

Once the virtual plume scenario has been activated, all student movement can also be recorded during the session and played back for later analysis.

In field exercise mode, trainees are provided with GPS enabled Player Units before being deployed to the external training area.

Their instructor can then monitor their location on the control base map in real-time via the use of a long-range radio communications link.

The ability to be able to record, document and review trainees’ decisions and actions is a vital element in the effectiveness of a simulator training system.

PlumeSIM’s After Action Review capability means trainee movement and instrument usage can be monitored in real time and can then be analysed and discussed once the exercise has been completed.

Enhanced CBRNe training capability

Simulator training is widely regarded for the role it plays in enhancing the effectiveness of 21st century military and civilian CBRNe capability.

With the help of simulator technology, students can train against actual threats in a realistic, safe and controlled environment.

In addition, expensive detector equipment is protected from needless wear and tear and instructors are able to monitor, assess and review every aspect of their trainees’ movements and decision-making.


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.

Perfluorinated Compounds: No Longer an Emerging Contaminant

Written by Sarah Peterman Bell and John Ugai, Farella Braun + Martel LLP

Lawsuits present major liability risks to PFAS manufacturers and industries that historically used PFAS in their operations.

Per- and polyfluoroalkyl chemicals (PFAS) are synthetic, human-made compounds that were manufactured in the United States beginning in the 1940s and have been used in a wide range of industries. Because they repel oil and water, PFAS chemicals were used in numerous consumer products, including nonstick pans, outdoor gear, raincoats, and food packaging.

PFAS were also widely used in industrial processes, including in operations involving chrome plating, electronics manufacturing, and in firefighting foams. Indeed, the use of firefighting foam at airports, military bases, and firefighting training sites is a major source of PFAS in groundwater in such areas.

PFAS were used in fire-fighting foam

PFAS chemicals tend to persist in the environment. Two of the most prevalent PFAS, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate (PFOS), have been detected in groundwater in many areas throughout the United States, particularly where these chemicals were manufactured, used in manufacturing or industrial operations, or in areas associated with firefighting work and training.

Federal Regulation of PFAS

For now, the federal Superfund law – the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) – does not identify PFOA, PFOS, or any other PFAS as “hazardous substances.” Nor has the federal government issued maximum contaminant levels (MCLs) or other legally enforceable limits for PFAS in drinking water. Nonetheless, the U.S. Environmental Protection Agency (EPA) has added PFAS sites to its Superfund list. And some states have developed enforceable cleanup standards or issued MCLs for certain PFAS in drinking water.

EPA is apparently moving forward with regulating PFAS. Last month, EPA released an update to its 2019 PFAS Action Plan. As explained in 2019, EPA is evaluating regulation of PFAS, including designating certain compounds as “hazardous substances” under CERCLA, setting enforceable MCLs for drinking water, and/or developing regulatory standards for PFOA or PFOS at cleanup sites. EPA is also considering release reporting for PFAS.

In its February 2020 update, EPA reported that it has developed interim groundwater cleanup recommendations for CERCLA cleanup sites and Resource Conservation and Recovery Act (“RCRA”) corrective action sites. EPA has also begun the process to regulate PFOA and PFOS in drinking water and to add PFAS to the Toxics Release Inventory.

For industry, the regulations contemplated by the PFAS Action Plan would have significant implications. For example, adding PFAS chemicals to the CERCLA hazardous substances list could dramatically impact CERCLA cleanups by expanding the number of cleanup sites, increasing the number of responsible parties, and increasing cleanup costs – not to mention the possibility that closed sites might be reopened to address PFAS.

PFAS Litigation: States & Private Parties Step In

As of now, a growing number of states, nonprofits, and individuals are suing regarding PFAS contamination and exposure. These suits present major liability risks to PFAS manufacturers and industries that historically used PFAS in their operations. In one of the earliest PFAS lawsuits, Minnesota pursued 3M for liability associated with PFAS in groundwater near a 3M industrial facility. That case settled in 2018 for $850 million.

In January, Michigan sued 3M, DuPont, and 15 other chemical manufacturers, alleging that they concealed the dangers of PFASs, withheld scientific evidence, and contaminated the environment. New Mexico, Vermont, and Washington have also filed PFAS-related litigation, while New Hampshire, New Jersey, and New York have filed suits against firefighting foam producers and distributors as well as PFAS chemical manufacturers. And just last month, a group representing more than 31,000 rural utility systems sued more than 20 companies, including 3M and DuPont, to recover the costs to clean up PFAS in groundwater resulting from the use of firefighting foam products.

Nonprofits have also sought to address PFAS contamination through litigation. In February, Earthjustice filed a lawsuit on behalf of nonprofits representing communities in Ohio, Texas, Illinois, and California, alleging deficiencies in the U.S. Department of Defense’s (“DOD”) environmental review of plans to burn millions of gallons of firefighting foam (allegedly an expansion of ongoing efforts to incinerate unused stockpiles of firefighting foam).

Personal injury cases also present a significant potential source of liability. For instance, residents of Parkersburg, West Virginia, sued DuPont in 2001, for injuries from PFOA contamination in the waterways surrounding DuPont’s manufacturing facility. In 2017, DuPont and Chemours Co. settled roughly 3,550 of these pending cases for over $670 million.

Industry should be aware that while EPA’s progress towards regulating PFAS has been slow, states, nonprofit groups, and individual plaintiffs have been taking action regarding these “forever chemicals.” Litigation regarding PFAS is increasing, states are stepping into the regulatory void and setting MCLs and cleanup standards, and EPA has begun adding PFAS sites to the Superfund list.


About the Authors

Sarah Bell is a partner at Farella Braun + Martel.  She focuses her practice on environmental and natural resources litigation, administrative proceedings, and counseling, and advises clients in a broad range of disputes, including environmental enforcement actions, cost recovery, citizen suits, water quality, complex toxic tort, and product liability matters.

John Ugai is an associate in Farella Braun + Martel’s Environmental Law Department.

Environmental Due Diligence Carries on, With Limitations, During the COVID-19 Pandemic

Written by Michael A. NesteroffLane Powell PC

COVID-19 Resource

Banks, borrowers and their supporting professionals, like everyone else, are having to adapt to the rapidly-changing circumstances surrounding COVID-19. With commercial and multi-family real estate, one of the more difficult issues is how to conduct a Phase I Environmental Site Assessment in order to qualify as the “All Appropriate Inquiry” that most lenders require. A full Phase I investigation includes items such as a site visit, interviews with knowledgeable people, and records research, but each of those are constrained during this global pandemic and shelter-in-place or stay-at-home orders. Lenders and environmental professionals, however, are getting creative and flexible in the ways they address this unique situation.

Lender Adaptations

Because banks are considered an essential business service, many lenders are continuing to process loan applications, although they face the same logistical issues that we all are confronting with working from home. Depending on the type of loan involved, banks may be more flexible with the level of environmental due diligence required. For example, a refinance of a loan on a property where there was a recent Phase I, or the property has not changed, may not require any additional environmental review or a desktop review may suffice. Instead of one-size-fits-all approaches to due diligence, banks now are evaluating what’s needed on a property-by-property basis. In some instances, the environmental review may be called a “Limited Site Investigation,” instead of a Phase I, with follow-up site inspections conducted when the crisis abates.

Consultant Approaches

Environmental professionals, while not specifically called out as an essential business service, are considered support for an essential business service, such as a bank. This allows them to conduct the necessary site assessments and fieldwork but, in many cases, they may not be able to do so because the subject property is closed; the people to be interviewed are staying at home, whether because of stay-at-home orders or illness; and the government agencies and offices with relevant property records are not open to the public. Furthermore, the consulting firms are cognizant of the health and safety needs of their employees and don’t want to place them at unnecessary risk.

In some instances, such as hospitals, long-term care facilities, assisted living facilities, nursing homes or senior living communities, environmental consultants simply are not conducting in-person interior inspections. In other cases, multi-family properties for example, the inspections may consist of looking only at vacant units and common areas, but foregoing occupied units. Other workarounds include the site contact walking through the building on FaceTime or having a resident take photographs. One pitfall is that a building occupant or resident may not be as aware of what to look for, or may even want to minimize issues that an environmental consultant would spot. If a site visit is absolutely necessary, some consultants are scheduling visits for weekends or evenings when fewer people are around, having the site contact open all doors, wearing gloves, and maintaining social distancing as much as possible. For larger, open properties, use of a drone may be a helpful substitute.

Communication between the client and the environmental professional is key. If the scope of work may be more limited by current conditions, that should be made clear from the outset and the parties reach consensus on the necessary adjustments. Communication between the consultant and site contact also is important, although privacy issues prevent inquiring about a site contact’s COVID-19 status. Indeed, not everyone is convinced that current measures, such as social distancing, are warranted. In those situations, the consultants are having to communicate in advance their practices and expectations.


About the Author

Mike Nesteroff is a preeminent environmental lawyer with extensive experience representing clients in environmental litigation, agency negotiations, property acquisition and leasing issues, and counseling clients on risk and compliance. During his 31 years at Lane Powell, Mike has represented clients in litigation claims involving hazardous material investigations, cleanups and cost recovery at sites in Washington, Oregon and Alaska. He has obtained a several million-dollar cost recovery judgment on behalf of one client and a defense verdict in another cost recovery case. Mike has also represented clients in litigation involving public records and obtained a favorable court of appeals ruling on a previously-untested exemption in the Washington Public Records Act.