A Call to Keep Workers Safer When Transferring Flammable and Combustible Liquids

Written by Nancy Westcott, President of GoatThroat Pumps

Every day industrial workers transfer potentially hazardous chemicals, such as solvents, acetones, lubricants, cleansers, and acids, from large drums into smaller containers, or into machinery.  Traditionally, such potentially flammable or combustible liquids have been tipped and poured.  Today such spill-prone, VOC emitting methods are no longer considered acceptable, safe, or compliant – not when a fire or explosion can result.

In particular, younger workers, having seen the resulting physical injuries, chronic respiratory ailments, and even deaths endured by parents, grandparents and friends want much safer working conditions.  Consequently, there is now a call for greater safety and regulatory oversight to protect vulnerable workers and their families as simply and efficiently as possible.

“It can be catastrophic to a company if toxic or highly flammable material is accidentally released at the point of use,” says Deborah Grubbe, PE, CEng, is founder of Operations and Safety Solutions, a consulting firm specializing in industrial safety.

“When tipping a heavy drum, it is extremely difficult to pour a liquid chemical and maintain control,” adds Grubbe.  “Companies have to assume that if something can go wrong during chemical transfer, it will, and take appropriate precautions to prevent what could be significant consequences.  Because there is no such thing as a small fire in my business.”

Although the dangers of transferring flammable and combustible liquids are very real, protecting workers from harm can be relatively straightforward.  This includes proper safety training, the use of personal protective equipment (PPE), and the use of engineering controls to prevent dangerous spills.

A Lethal Situation

During a manufacturing process on Nov 20, 2017 at Verla International’s cosmetics factory in New Windsor NY, an employee transferred hexamethyl disiloxane (flash point -6 °C / 21.2 °F) from a drum into another container and then wiped down the chemical drum.  The friction from wiping created static electricity that caused the drum to become engulfed in flames within seconds.  The resulting fire and explosions injured more than 125 people and killed one employee.

A video released by the Orange County Executive’s Office shows the worker wiping down the chemical tank, “causing static which is an ignition event.” “Seconds later, the tank becomes engulfed in flames, with parts of the man’s clothing catching on fire as he runs from the explosion,” according to the Poughkeepsie Journal, a local area newspaper.

Although the man sustained only minor injuries, many at the cosmetics factory were not so lucky.

With the potentially lethal consequences from the use of flammable/combustible liquids in so many industrial facilities, it is essential to understand the hazard.

Flammable and Combustible Liquid Hazards

In a flammable liquids fire, it is the vapors from the liquid that ignite, not the liquid.  Fires and explosions are caused when the perfect combination of fuel and oxygen come in contact with heat or an ignition source.  Based on their flash points, that being the lowest temperature at which liquids can form an ignitable mixture in air, flammable liquids are classified as either combustible or flammable.

Flammable liquids (those liquids with a flash point < 100 deg F) will ignite and burn easily at normal working temperatures where they can easily give off enough vapor to form burnable mixtures with air.  As a result, they can be serious sources of a fire hazard. Flammable liquid fires burn very fast and frequently give off a lot of heat and often clouds of thick, black, toxic smoke.

Combustible liquids (those liquids with a flash point > 100 deg F) do not ignite so easily but if raised to temperatures above their flashpoint, they will also release enough vapor to form burnable mixtures with air. Hot combustible liquids can be as serious a fire hazard as flammable liquids.

Both combustible and flammable liquids can easily be ignited by a flame, hot surface, static electricity, or a spark generated by electricity or mechanical work.  Highly volatile solvents are even more hazardous because any vapor (VOCs) released can reach ignition sources several feet away.  The vapor trail can spread far from the liquid and can settle and collect in low areas like sumps, sewers, pits, trenches and basements.  If ventilation is inadequate and the vapor trail contacts an ignition source, the fire produced can flash back (or travel back) to the liquid. Flashback and fire can happen even if the liquid giving off the vapor and the ignition source are hundreds of feet or even several floors apart.

The most obvious harm would be the danger of a fire or explosion.  “If the vapor is ignited, the fire can quickly reach the bulk liquid. A flammable vapor and air mixture with a specific concentration can explode violently,” according to information on the topic posted online by the Division of Research Safety by the University of Illinois at Urbana-Champaign.

Consequently, minimizing the dangers of handling flammable and combustible liquid chemicals requires proper training and equipment.

Safe Handling

Without proper ventilation, the handling of flammable substances has a good chance to create an explosive atmosphere.  It is essential to work only in well-ventilated areas or have a local ventilation system that can sufficiently remove any flammable vapors to prevent an explosion risk.

Because two of the three primary elements for a fire or explosion usually exist in the atmosphere inside a vessel containing a flammable liquid (fuel and an oxidant, usually oxygen), it is also critical to eliminate external ignition sources when handling such liquids.  Sources of ignition can include static discharge, open flames, frictional heat, radiant heat, lightning, smoking, cutting, welding, and electrical/mechanical sparks.

Static Electricity Grounding

When transferring flammable liquids from large containers (>4 L), to a smaller container, the flow of the liquid can create static electricity which could result in a spark. Static electricity build-up is possible whether using a pump or simply pouring the liquid.  If the bulk container and receiving vessel are both metal, it is important to bond the two by firmly attaching a metal bonding strap or wire to both containers as well as to ground, which can help to safely direct the static charge to ground.

When transferring Class 1, 2, or 3 flammable liquids with a flashpoint below 100°F (37.8°C), OSHA mandates that the containers must be grounded or bonded to prevent electrostatic discharge that could act as an ignition source. NFPA 30 Section 18.4.2.2 also requires a means to prevent static electricity during transfer/dispensing operations.

Engineering Controls

Beyond PPE and proper ventilation, it is absolutely critical for workers to use regulatory compliant, engineered controls to safely transfer flammable and combustible liquids at the jobsite.  Most states and municipalities across the U.S. have adopted NFPA® 30 Flammable and Combustible Liquids Code and OSHA 29 CFR 1910.106, which address the handling, storage, and use of flammable liquids.  With NFPA 30, material is classified as a Class 1 liquid (flammable) and Class 2 and 3 (combustible).

The codes account for safeguards to eliminate spills and leakage of Class 1, 2, and 3 liquids in the workplace. This begins with requirements surrounding the integrity of the container, but also extends to the pumps used to safely dispense flammable and combustible liquids.

Point of Use Containment

According to Gary Marcus of Justrite Manufacturing in an article posted on EHS Today’s web site, “Drums stored vertically are fitted with pumps instead of faucets for dispensing. Use of a pump is generally considered safer and more accurate. Some local codes require pumps for all drums containing flammable liquids.

A fast-growing approach to flammable liquids storage is to keep as much liquid as possible close to the point of use because it is efficient and saves time. Workers can minimize their exposure to potential ignition sources if they replenish their solvent supply from a drum near their workstations, rather than from the solvent room a quarter-mile away. OSHA permits up to 60 gallons of Class I or Class II liquids and up to 120 gallons of Class III liquids to be stored in safety cabinets close to workstations.”

In most workplaces, supervisors and facility managers have been recommending rotary and hand suction pumps to transfer flammable liquids for decades. However, they are increasingly turning to sealed pump systems designed for class 1 and 2 flammable liquids, which are a more effective engineering control tool for protecting employees and operations.

Conventional piston and rotary hand pumps have some inherent vulnerabilities.  These pumps are open systems that require one of the bungs holes to be open to the outside atmosphere. The pumps dispense liquids from the containers using suction, so it requires that a bung be open to allow air to enter the containers to replace the liquid removed.  Without this opening, either the container will collapse or the liquid will stop coming out.

Typically, there is also a small gap between the container opening (bung) and the pump dip tube that allows air to enter.  This opening also allows some vapor release into the atmosphere when the pumps are unused and connected to the container.  The gaps may allow an explosion to occur at a temperature near the flashpoint.  This can cause a high-velocity flame jet to vent near the bung, which could injure personnel near the container.

In addition, using the piston and rotary pumps to remove liquid from containers can allow some spillage since there is no flow control device. If a seal fails, liquid can also be sprayed from the pump and onto the user and the floor.

As a solution, the industry has developed sealed pump dispensing systems that enhances safety by eliminating spills and enables spill-free, environmentally safe transfer that prevent vapors from escaping the container.

These systems are made of groundable plastic and come complete with bonding and grounding wires. The spring actuation tap handle can be immediately closed to stop liquid flowing preventing any spills. The design of this sealed pump system also prevents liquid vapors from exiting the container when the pump is unused.   These characteristics significantly reduce the chance of an ignition event.   The combination of all these features ensure the pump meets both NFPA30-2015.18.4.4 standards and NFPA 77.

Now that the hazards of transferring flammable and combustible liquids are clearly recognized, proactive industrial facilities are beginning to protect their workers and their families by implementing safety training, PPE use, and sealed, grounded pumps.  This will help their operations stay compliant, mitigate insurance risks while minimizing the risk of fire and explosion due to spills, vapors, and static shock.


About the Author

Nancy Westcott is the President of GoatThroat Pumps, a Milford, Conn.- based manufacturer of industrial safety pumps and engineered chemical transfer solutions that keep companies in regulatory compliance.

How Virtual Reality and real-world tech can aid CBRNe training

Written by Steven Pike, Argon Electronics

Hands-on training in realistic environments is a cornerstone of CBRNe disaster preparedness, whether for the purpose of military exercises, first response or civilian operations.

The quality, frequency and consistency of CBRNe training has a substantial part to play in how easily personnel are able to acquire both the theory and the practice – and in how effectively they are able to continue to apply that knowledge in the long-term.

The impact and the authenticity of CBRNe training relies on three fundamental principles.

First is the importance of providing trainees with the opportunity to use actual equipment.

Second is enabling those personnel to apply their understanding of this equipment through exposure to realistic scenarios.

And thirdly is ensuring that the scenarios that are provided are conducted in relevant environments or locations.

Time restrictions, cost implications and safety considerations however, can all too often limit the opportunities for responders to practice, test and hone their crucial skills.

Training for radiation incidents

When an incident involves the presence of a high-radiation source or radioactive contamination, it can present some additional challenges.

At the same time, the equipment that radiological responders are required to use is also becoming increasingly sophisticated – and in particular when it comes to effective search and radionuclide identification (spectrometry.)

Many traditional radiation safety training methods can struggle to credibly recreate the complexities of real-life radiological events.

Field exercises can offer the promise of a high fidelity training experience, but sometimes fall short due to the minimal quantity of radiation source that can be safely used.

In the process, an understanding of essential physics can all too easily be diluted, misinterpreted or omitted altogether.

To ensure best preparedness, it is vital that emergency responders are provided with the opportunity to train against robust scenarios that take place in their home locations, that utilise their actual operating equipment and that enable them to put their protocols to the test.

Is virtual reality immersion the key?

Over the couple of decades there has been an increased interest in the potential applications of virtual reality (VR) and augmented reality (AR) in the enhancement of CBRN disaster preparedness.

In contrast to traditional user desktop interfaces, such as viewing a scenario on a computer screen, VR harnesses the power of computer technology to create a simulated environment that aims to recreate as many of the senses as possible.

Virtual reality enables the user to be placed directly “inside” the training experience, and once they are immersed in this artificial world, to be able to interact with a hyper realistic 3D environment.

Immersive multi-user VR training systems can be used to enhance situational awareness, to aid in the operation of equipment or to improve reaction times.

Some systems are designed to provide a pre-defined scenario (or scenarios) in order to train multiple users – for example when a large number of simulators are used in order to train military personnel for specific land, air or naval operations. Others allow the creation of self-defined scenarios that can be applied in multi-user training exercises.

Whilst VR creates an artificial environment in which the user can “inhabit”, augmented reality can be used to enhance live exercises in a real environment by superimposing computer-generated images over the user’s view of the real world.

But while virtual reality or augmented reality immersion exercises can offer many advantages, it is still extremely difficult to replicate the logistical, physiological and sensory realities of a taking part in a live incident.

In many cases too, virtual reality training must be restricted to specialised facilities. And perhaps most crucially, trainees miss the opportunity to practice with the actual detector equipment that they will be required to use in real incidents.

Maintaining operational readiness is vital, however it can often be difficult to provide personnel with access to the hands-on radiological training that they need.

Emergency training requires the mastery of a variety of skills and abilities – but placing trainees in real emergency situations, especially during the initial stages of training, is something that is best avoided.

What is of greater benefit is being able to provide personnel with expert guidance that takes place in a setting that mimics, as closely as possible, the challenges of real-life events.

What is required is a paradigm shift in the approach to radiological preparedness training.

If, for example, the potential applications of virtual technology can be merged with the hands-on application of real-world capabilities, then the possibilities could well be limitless.

With this goal in mind, Argon Electronics is excited to have joined forces with the Lawrence Livermore National Laboratory (LLNL) to explore the potential of the LLNL’s Radiation Field Training Simulator (RaFTS).


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.

The Five Things you need to know about Incident Management and Reporting

Intelex, a company specializing in the development of EHS and quality software, recently published an insight report entitled “The Five Things you Need to Know about Incident Management and Reporting“.  The report provides information on the legal obligations to report serious injuries and fatalities, best practices for incident reporting and management, and how incident reporting and management can be linked to operational excellence.

In the introduction of the report, the cause of the Titanic disaster is discussed.  It report states that the average person would cite an iceberg as the cause of the ship’s sinking.  In contrast, a risk or safety manager would respond that the tragedy was caused by a series of events – management failures, poor-quality construction, employee errors/lack of training, poor planning, and either the failure to track incidents or the inability to analyze incident data in a meaningful way – that ended with the sinking of the ship.

EHS incidents can be painful for injured employees, the environment, and an organization’s bottom line, but incident management and reporting doesn’t have to be a pain point if done correctly.

Crystal Geyser Gushes $5 Million in Hazardous Waste Fines

Written by Dawn DeVroom, IDR Environmental Services

The recent federal case against the company that bottles Crystal Geyser Natural Alpine Spring Water proves that the improper handling of hazardous waste can be costly.

Recently, CG Roxane pled guilty in U.S. District Court to unlawful storage of hazardous waste and unlawful transportation of hazardous material. The plea agreement to the two counts came with a $5 million criminal fine.

The charges stemmed from allegations that over the last 15 years, CG Roxane has dumped wastewater contaminated with arsenic into a man-made pond at the company’s Olancha, California, facility. Samples taken by the Lahontan Regional Water Quality Control Board revealed arsenic levels were eight times higher than legally allowed.

This case underscores the importance of proper identification, transportation and disposal of hazardous waste. It also stresses the consequences of not working with the right certified company to ensure your business is meeting all state and federal regulations. Not doing so can result in substantial fines and negative publicity that can have a disastrous effect on your business.

Improper Waste Disposal Can Be Costly

hazardous wasteFailure to manage hazardous waste streams according to state and federal guidelines can bring unwanted consequences for both the environment and your company.

As CG Roxane discovered, costly criminal fines often accompany cases in which companies are found guilty of improper hazardous waste management. Two other companies may find themselves in trouble from this case as well. CG Roxane hired United Pumping Services Inc. and United Storm Water Inc. to transport and treat the wastewater. Both could face fines of up to $8 million if found guilty for their role in the case.

Other multimillion-dollar companies have faced similar consequences. Companies like FedEx, Rite Aid and Walmart have been fined millions of dollars over the past few years for improper waste management practices. Walmart, in particular, agreed to pay more than $81 million after pleading guilty in 2013 to six counts of violating the Clean Water Act.

In addition to fines, improper waste disposal can be a nightmare for a company’s public image, and worse, become a risk to public safety. Spills, fires, explosions and exposure to toxic chemicals can stem from the mishandling of hazardous waste.

How To Ensure Proper Waste Management

It is critical for hazardous waste generators to ensure compliance with regulations by providing ongoing training opportunities for employees and by working with an experienced hazardous waste disposal company.

The onus falls on you to ensure any hazardous waste you generate is disposed of properly. That responsibility does not end once your waste is removed from company property. Under the Resource and Recovery Act of 1976 (RCRA), you are legally and financially responsible for the appropriate treatment and proper disposal of that waste … from cradle to grave.

Choosing the wrong vendor can prove costly, too.

So, how do you properly vet a company for the best business practices and avoid the nightmare scenarios described above?

1. Begin with a thorough background check of a vendor.

In addition to checking state and federal licenses, set up an interview with the vendor. Ask questions such as:

  • Do you have a Dun & Bradstreet report or a bank letter of credit?
  • Do you meet minimum insurance requirements and have coverage for accidents?
  • Do you have adequate personnel that are properly trained and certified?
  • Can you provide a statement of qualifications (SOQ)?
  • How do you deal with unknown chemicals?
  • Are you legally permitted for the transportation, storage, treatment and disposal of hazardous waste materials?
  • Can you provide a list of references on past related projects?

More ideas for questions to ask a vendor can be found in our article, What Manufacturers Must Know About Hazardous Waste Disposal.

2. Confirm the experience of any vendor being considered.

A hazardous waste generalist, for example, is used to working in different environments and has a broad base of experience working with different toxic chemicals.

Check to make sure the vendor includes these services:

  • Identification of waste streams by profiling and testing them
  • Development of site-specific plans, including training and emergency preparation
  • Transportation to recycling and disposal sites
  • Manifest preparation and any other paperwork that must be completed

3. Look for a certified hazardous waste disposal company that is consultative.

In other words, look for a company that offers a hazardous waste walk-through program.

Areas of focus should include:

  • Waste manifesting
  • Hazardous waste procedures
  • Waste storage evaluation
  • Emergency readiness
  • Hazardous waste evaluation
  • Employee training procedures

A waste walk-through program will help you stay atop any regulatory changes at the local, state and federal levels.

Better Safe Than Sorry

The improper handling of hazardous waste can have devastating effects on the environment, community and your business.

Many companies that do not take the proper precautions to ensure the waste they generate is properly disposed of find themselves tangled up in a legal mess for years. At the end of that mess is rarely a positive outcome for the company.

Working with a certified hazardous waste disposal service will help you avoid costly fines and a tarnished public image, as well as allow you to be assured that the hazardous waste your company generates is being transported and disposed of safely and legally.


About the Author

Dawn DeVroom is the CFO at IDR Environmental Services based in California. The company specializes in hazardous waste disposal.

Water Wells Remain at Risk in Ontario

Written by Theresa McClenaghan, CELA Counsel and Executive Director and Richard Lindgren, CELA Counsel

The December 2019 annual report by the Auditor General of Ontario has focused public and political attention on the need for effective provincial action to reduce greenhouse gas emissions.

However, in another key passage, the report  also raises red flags about drinking water safety in many communities and First Nations across Ontario that are not served by municipal drinking water systems.

For example, the Auditor General concludes that “significant risks remain for Indigenous communities and areas outside of Conservation Authority boundaries, as well as private wells, which in total serve about 18% of Ontario’s population.”

In making this finding, the Auditor General notes that Ontario’s Clean Water Act (CWA)  has helped protect water sources that supply municipal drinking water systems.

Unfortunately, this legislation does not yet apply to non-municipal systems such as private residential wells. Therefore, the CWA does not currently require mandatory protection of groundwater used by well clusters in hamlets, villages and towns, even though such aquifers may supply drinking water for hundreds or even thousands of residents.

It is clear that this risk-laden situation has been allowed to continue under successive provincial governments in Ontario.

However, Premier Ford and his cabinet colleagues now have an opportunity to end decades of inaction by extending the CWA to non-municipal drinking water systems, and substantially improving Ontario’s Regulation 903 (Wells) .

Notably, the Auditor General’s latest report is not the first time that her office has expressed serious concern about threats to the drinking water consumed by some Ontarians.

In 2014, the Auditor General reported  that “over a third of the water samples from private wells tested positive for bacteria including E. coli. If private wells were held to the same safety standard used for public drinking water systems, water from these wells that tested positive for bacteria would be considered unsafe to drink.”

The Auditor General therefore recommended that the Environment Ministry “should consider the feasibility of requiring source protection plans to identify and address threats to sources of water that supply private wells and intakes.” Several years later, this important recommendation still has not been acted upon by the Ontario government.

Similar findings were made by the former Environmental Commissioner of Ontario (ECO) in her final environmental protection report to the Legislative Assembly in 2018.

This ECO report  confirms that the source protection framework under the Clean Water Act “has not been applied to most of northern Ontario, most First Nation communities or to private wells or other non-municipal drinking water sources.  These gaps leave some Ontarians vulnerable to unsafe drinking water.”

Over the years, the ECO  has also been critical of the ongoing inadequacy of Regulation 903, which establishes requirements for water well construction, repair and abandonment across the province.

In addition, the ECO  has described Regulation 903 as “severely flawed,” and rebuked the Ontario government “for neglecting its obligations to those whose drinking water comes from the most vulnerable of sources: small private wells.”

To date, however, only minor changes to Regulation 903 have been passed or proposed. Inexplicably, expert recommendations offered in 2005 by the Ontario Drinking Water Advisory Council on how to strengthen disinfection requirements under the regulation have not been fully implemented by the provincial government.

In these circumstances, further reforms are clearly needed to protect the health of all Ontarians, not just those who are served by municipal drinking water systems.

To expedite such reforms, CELA has recently filed a formal Application for Review of the CWA and its implementing regulation, pursuant to Ontario’s Environmental Bill of Rights (EBR). This EBR Application calls upon the provincial government to revise the CWA in order to extend source water protection requirements to various types of non-municipal drinking water systems that are not currently covered by the Act.

The Environment Ministry must now decide by mid-February 2020 whether it will undertake the review requested by CELA.

However, time is of the essence. As noted by Mr. Justice O’Connor in the Report of the Walkerton Inquiry , “there is no justification for permitting lower public health standards for some residents of Ontario than those enjoyed by others.

This article has been republished with the permission of the authors.  It was originally published in the CELA website.


About the Authors

Theresa McClenaghan was appointed as Executive Director of the Canadian Environmental Law Association (CELA) in November 2007.  Theresa frequently serves on government and NGO advisory panels on water protection.  She has authored various journal papers and book chapters, and is co-author of the three-volume annotated legal publication Ontario Water Law.  She holds an LL.B. from Western University (1984) and an LL.M. in constitutional law from Osgoode Law School at York (1999), with a major paper focused on section 35 of the Charter and indigenous environmental governance.  Theresa also earned a diploma in Environmental Health Science from McMaster University (1999).

Richard Lindgren is a staff lawyer at the Canadian Environmental Law Association.  Since joining CELA in 1986, he has represented individuals, public interest groups and First Nations before tribunals and in the courts, including the Supreme Court of Canada. He was co-counsel for Walkerton residents at the Walkerton Inquiry, and was a member of the Environment Minister’s Task Force on the Environmental Bill of Rights, the Attorney General’s Advisory Committee on Class Action Reform, and the Environment Minister’s Advisory Panel on Environmental Assessment.  He edits the Canadian Environmental Law Reports, and has taught environmental law at Queen’s University Faculty of Law and Trent University School of the Environment.

Excess Soil Management Guideline in Ontario – Berkley Canada’s White Paper

The Ontario Ministry of the Environment, Conservation and Parks (MECP) has finalized the Excess Soils Management Framework, bringing comprehensive change to how excess soils are managed in Ontario. The Environmental Team at Berkley Canada (a Berkley Company) recently released a White Paper which helps summarize key parts of the Framework, discusses emerging liabilities for various stakeholders, and highlights potential mitigation tools.

The MECP’s Framework appears to have two strategic goals”

  1. Protect human health and the environment from inappropriate use of excess soils; and
  2. Encourage the beneficial reuse of excess soils.

The White Paper provides readers with a summary of the Framework (from an insurer’s perspective) along with easy access to the relevant supporting documents and helps readers identify new risks and potential risk transfer solutions associated with the Framework.

The White Paper would be of interest to Environmental Consultants, Remediation and Construction Contractors, Real Estate Developers, and Land Owners.

 

Poison and Preemption: U.S. Supreme Court Considers Common Law Claims and CERCLA Remedies

Written by Gary Shockey, Baker Donaldson

The Anaconda Smelter served southwestern Montana’s mining industry for almost one hundred years before its closure in 1980. Today, the 585-foot “Big Stack” remains as one of the largest free-standing masonry structures in the world and the centerpiece of the Anaconda Smoke Stack State Park. The smelter also has a darker legacy, comprising part of a federal Superfund site of approximately 300 square miles, including soils and groundwater contaminated with arsenic, copper, lead, and other metals from historic mining and smelting operations. Despite more than a quarter century of investigation and cleanup, much of the site remains in remediation overseen by EPA. In a case currently pending before the U.S. Supreme Court, site owner Atlantic Richfield Company (ARCO) has challenged the jurisdiction of Montana state courts to order additional “remediation damages” in a suit by private landowners within the Anaconda Site.

The case now pending before the Court began as one for nuisance, trespass, and strict liability by numerous landowners in and around Opportunity, Montana. Those landowners sought damages for various injuries to their property allegedly caused by the smelter contamination, including “restoration damages.” Under Montana law, those damages would compensate the landowners for restoring their property to its pre-contamination state, with the costs placed into a trust upon which they could draw to carry out the restoration work themselves. According to the landowners’ experts, that restoration should be based on a lower cleanup level for arsenic in soils – resulting in removal and re-disposal of substantially more “dirty dirt” – and a lengthy, underground permeable barrier wall for treatment of groundwater. Both of these proposed actions were considered and rejected by EPA when it selected the CERCLA remedy for the site years earlier. ARCO moved for summary judgment on the restoration damages claim, arguing that the state court lacked jurisdiction to order remedies that went beyond those approved by EPA, at least while the EPA-approved remediation continued. The state court disagreed and ARCO sought a writ of supervisory control from the Montana Supreme Court.

In its 2017 decision, Atlantic Richfield Co. v. Montana Second Judicial District Court, 408 P.3d 515 (Mont. 2017), the Montana Supreme Court rejected ARCO’s preemption arguments. The court found that the potential restoration damages did not constitute a challenge to EPA’s remedy, which would be prohibited by the timing of review provisions of CERCLA § 113(h). The court reasoned that nothing in the landowners’ preferred remedy interfered with ongoing or planned work by EPA and thus fell within CERCLA’s state law savings clauses, CERCLA §§ 114(a), 302(d). In that court’s view, “The Property Owners are simply asking to be allowed to present their own plan to restore their own private property to a jury of twelve Montanans who will then assess the merits of that plan.” Id. at 521. Notwithstanding the contrary views of the U.S. Department of Justice and one dissenting justice, the Montana court did not see that potential judgment by 12 Montanans as a challenge to EPA’s selected remedy. The Montana court also rejected an argument that the landowners were themselves potentially responsible parties (PRPs), whose “inconsistent response action” would require prior EPA approval under CERCLA § 122(e)(6). Rather, the court found that CERCLA’s six-year statute of limitations would bar any efforts to brand them PRPs. Finally, the court concluded that the restoration damages remedy was not otherwise preempted by CERCLA under the doctrine of federal conflict preemption.

The United States Supreme Court granted certiorari in June 2019 to review the Montana court’s decision. Joined by a plethora of amici on both sides, Petitioner ARCO and Respondent landowners presented their arguments to the Court, along with those of the Solicitor General. In oral arguments held on December 3, 2019, the Court’s liberal justices seemed concerned that ARCO’s preemption theories were hard to reconcile with CERCLA’s state law savings clauses. The parties disagreed about whether CERCLA remedies were “a floor” or both “a floor and a ceiling.” All of the justices seemed concerned over the “restoration damages” procedures requiring that a judgment be deposited into a trust account and doled out to landowners for restoration work in the future. The Solicitor General attempted to address the Court’s concerns by arguing that the Respondents remained free to pursue damages and tort remedies that did not question EPA’s selected remedy, while states could set more stringent cleanup levels in accordance with the ARAR process of CERCLA § 121. Several commentators noted after the oral argument that the Court seemed to be searching for a narrow rationale to overturn a troublesome decision without eliminating the states’ role in cleanups and vindicating the rights of their citizens at common law. The Court’s decision is expected before the end of the term in June 2020.

This article has been republished with the permission of the author.  It was first published on the Baker Donaldson website.


About the Author

Gary has been certified as a Civil Trial Specialist by the National Board of Trial Advocacy. His experience includes environmental, personal injury, class action, antitrust, health care and construction cases. In addition, he has represented businesses and individuals in white collar criminal investigations and prosecutions and conducted numerous internal investigations.

His extensive pro bono practice has included representation of inmates on Tennessee’s death row, veterans, battered women, children and immigrants. He has served in various leadership positions in the Tennessee Bar Association, including on its Board of Governors and as chair of its Litigation and Environmental Law Sections, and as a character and fitness investigator for the Tennessee Board of Law Examiners and a District Hearing Committee officer for the Board of Professional Responsibility. A frequent speaker and author, Gary has published more than 35 articles on evidence, civil and criminal procedure, legal history and related topics.

How hands-on scenarios can enhance radiological survey training

Written by Steven Pike, Argon Electronics

Radiological surveying is an integral task in maintaining safety wherever quantities of ionizing radiation are in use, or where they are suspected to be present.

Whether it is in the context of a military operation, emergency first response or an industrial setting, radiation safety personnel need to be equipped with the right tools to ensure they can accurately assess their environment and determine the best course of action.

Most radiological survey instruments have been designed to be easy to deploy, but it is important to be competent not just in the hands-on operation of the equipment but in being able to interpret the readings that are obtained and decide upon the appropriate recommendations to ensure safety is not compromised.

Once it has been established that the radiation hazard originates from a sealed source – meaning that there is no contamination risk – the principles of time, distance and shielding are vital.

Whenever possible, trainees should be provided with the opportunity to explore and test these principles in hands-on training scenarios that replicate real-life situations.

By adding the use of simulator detector equipment, there is also an opportunity for trainees to fully experience the characteristics, the behaviour and the risks of ionizing radiation – and to do so in a learning environment that is safe, immersive and highly realistic.

The flexible and high-fidelity nature of well-designed simulator detectors makes it possible for trainers to create a virtually unlimited range of realistic training scenarios for their students.

In this blog post we explore how the key principles of radiation safety can be put to the test in a range of hands-on scenarios.

1. Time

Radiation safety hinges on the understanding of the correlation between dose (or exposure) and dose rate (or the radiation present in the atmosphere) is directly related to time.

When the time (or the duration of exposure) is reduced by half, for example, the dose received will also be halved.

Once the trainee has been able to assess the dose rate present in the atmosphere, this information can be used to calculate their incident stay time in the hot zone (calculated as Exposure Limit divided by Dose Rate), which will allow them to carry out their activities as quickly and as safely as possible.

2. Distance

Distance – or how close an individual is to a radiological point source – is a key factor in enabling trainees to control exposure.

When the distance between the individual and the point source is doubled, this will reduce personal exposure by 75%, according to the rules of the Inverse Square Law.

How close it will be possible to get to a source of radiation without high exposure will depend on the energy of the radiation and the activity of the source.

Distance is a prime concern with gamma rays as they travel at the speed of light. Alpha particles, meanwhile, travel just a few inches in air, while beta particles can travel several feet – meaning that once an operator backs out of the affected area (and assuming that the material is not being spread by wind, rain or other forces) the trainee is no longer at risk.

3. Shielding

Radiation shielding is another vital skill that be put to the test during radiation training exercises.

Shielding is based on the principle of attenuation – or the extent to which a barrier can be used to block or bounce a radio wave.

Which radioactive shielding material will be best suited to the task, will depend on the penetration of the dose.

Alpha particles, for example, can be stopped by shielding that is as thin as a sheet of paper – while beta radiation requires something much heavier, such as an inch of wood or a thick piece of aluminum.

The highly penetrating nature of gamma radiation requires far denser shielding – ideally several inches of concrete or lead.

4. Establishing hazard perimeters

The readings obtained from portable survey meters provide essential information to enable personnel to establish operational control zones or hazard perimeters.

The ability to control (and operate within) a hazard perimeter will rely on a trainee’s proficiency in the following skills:

  • Understanding the physical considerations of the scene – for example, being able to assess the nature and severity of the radiation incident, identifying the presence of other co-existing threats, and protecting critical infrastructure.
  • Using existing topography (roads, structures etc) to enforce the perimeter and to aid in the protection and gathering of forensic evidence

 

Portable radiological survey meters provide radiation protection officers, first responders and CBRNe teams with the vital information they need to detect and measure external ionizing radiation fields.

Understanding the principles of time, distance and shielding, and having the opportunity to put this knowledge to the test in realistic training scenarios, will be vital in ensuring that radiation safety personnel are able to carry out their duties safely, efficiently and effectively.


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.

 

Forecast for U.S. Federal and International Chemical Regulatory Policy 2020

Bergeson & Campbell, P.C. (B&C®) and its consulting affiliate, The Acta Group (Acta®), recently released their Forecast for U.S. Federal and International Chemical Regulatory Policy 2020. In this detailed and comprehensive document, the legal, scientific, and regulatory professionals of B&C and Acta distill key trends in U.S. and global chemical law and policy, and provide our best informed judgment as to the shape of key developments we are likely to see in the New Year.

The forecast was prepared by the global team of professionals from the two firms. The core business of the firms are the law, science, regulation, and policy of chemicals of all varieties — industrial, agricultural, intermediate, specialty, and biocidal, whether manufactured at the bulk or nano scale, or using conventional or innovative technologies, including biotechnology, synthetic biology, or biobased.

The team that put together the forecast was comprised of scientists (seven Ph.D.s), including toxicologists, chemists, exposure experts, and geneticists; regulatory and policy experts; and lawyers is deeply versed in chemical law, science, and policy and our unique business platform seamlessly leverages and ensures the integration of law and science to achieve success at every level, and in all parts of the globe.

The table of contents for the forecast can be found below.

TABLE OF CONTENTS

I. UNITED STATES: CHEMICAL FORECAST

  1. INTRODUCTION
  2. TSCA
  3. FIFRA
  4. U.S. NANOTECHNOLOGY
  5. BIOTECHNOLOGY
  6. BRAG
  7. HAZARDOUS MATERIALS TRANSPORTATION
  8. TRADE
  9. PROP 65
  10. INGREDIENT DISCLOSURE
  11. FDA FOOD AND COSMETICS REGULATION
  12. OSHA, WHMIS, AND GHS

II. KEY GLOBAL CHEMICAL MANAGEMENT PREDICTIONS

  1. OECD
  2. SAICM
  3. EU
  4. UK/BREXIT
  5. BIOCIDES
  6. ASIA
  7. MIDDLE EAST
  8. UN GHS

APPENDIX A: B&C SPEECHES AND WRITINGS

APPENDIX B: B&C WEBINARS AND PODCASTS AVAILABLE ON DEMAND

APPENDIX C: GLOSSARY

 

In the Sale of Property, Responsibility for Removal and Remediation of Underground Storage Tanks needs to be clear

Written by Stan Berger, Fogler Rubinoff LLP

On January 9, 2020, the British Columbia Supreme Court in Walton v. Warren 2020 BCSC 19 found in favour of the Purchaser when an undiscovered underground storage tank required removal and site remediation following closing. This ruling was given despite the Purchaser having signed off on an inspection report prior to closing. The purchase and sale agreement provided that the Seller had to ensure that any underground storage tank (UST) located on the property be removed and the surrounding soil remediated. The Seller was responsible for all costs. The Seller had to provide written confirmation before the Completion Date from the tank removal contractor and relevant provincial and local authorities that the remediation complied with provincial or local government laws. The Purchaser had to obtain and approve an inspection report 6 weeks before the completion date. The report recommended that a specialist company survey and sweep the property to determine the presence of buried oil tanks. The Purchaser’s realtor arranged for a scan of the property free of charge. This was followed by a scanning company’s report stating there was no evidence of any UST. The contract closed on schedule and almost 3 years later the basement of the property flooded. During a necessary drain replacement a UST was discovered requiring its removal and remediation at a cost of $42,000. The Purchaser sued the sellers.

The Judge found that the existence of the UST was unknown to the Seller at the time of the sale. The Seller argued that their obligation with respect to responsibility for any underground storage tank ended upon the closing. The Purchaser completed the purchase being satisfied with the condition of the property. The judge disagreed finding in the Purchaser’s favour.

“[62] There is no language in the Addendum which could be interpreted as limiting the defendants’ obligations only to those USTs that were discovered prior to the Completion Date or to those USTs of which they were aware. [63] The Addendum does not include any conditional language. For example, it does not say that the defendants are to remove and remediate “any oil tank that is discovered prior to the Completion Date” or “any oil tank that they are aware of prior to the Completion Date”.

Moreover the survival clause in the agreement contained no exceptions.

The lesson here is that courts are disinclined to infer any limit on the responsibility of a party when the language in the contract isn’t clear.

This publication is intended for general information purposes only and should not be relied upon as legal advice.


About the Author

Mr. Berger has practiced regulatory law for 37 years. He represents nuclear operators and suppliers, waste management operators, renewable energy operators, receivers-in-bankruptcy, municipalities and First Nations. He was an Assistant Crown Attorney in Toronto for 8 years, Senior counsel and Deputy Director for Legal Services/Prosecutions at the Ministry of the Environment for 9 years and Assistant General Counsel at Ontario Power Generation Inc for 14 years.
He is the author of a quarterly loose-leaf service published by Thomson Reuters entitled the Prosecution and Defence of Environmental Offences and the editor of an annual review of environmental law.
Mr. Berger was the President of the International Nuclear Law Association (2008-2009) and the founder, and President of the Canadian Nuclear Law Organization.