US Relaxation of Environmental Rules in the Wake of the COVID-19 Pandemic – The Implications for Canada and Mexico

Written by Joseph Castrilli, Counsel, Canadian Environmental Law Association

In a move that has implications for international arrangements with Canada regarding protection of the North American environment, the Environmental Protection Agency of the United States, citing the coronavirus pandemic as its justification, has announced that it will temporarily not seek penalties against companies that violate monitoring, reporting, and other obligations under US federal environmental laws. In a policy statement issued on March 26, 2020, the agency indicated that it will exercise “enforcement discretion…for noncompliance covered by this temporary policy and resulting from the COVID-19 pandemic” if the regulated community takes the steps set out in the policy.

Steps Under the Relaxation Policy

The steps under the policy require the regulated community to: (1) act responsibly to minimize effects and duration of any noncompliance; (2) identify the nature and dates of the noncompliance; (3) identify how COVID-19 was the cause of the noncompliance, the decisions and actions taken in response, including best efforts to comply and return to compliance; (4) return to compliance; and (5) document the information, actions, and conditions specified in steps 1-4.

Regulated Activities Covered by the Policy

The agency’s enforcement discretion under the policy covers: (1) routine compliance monitoring and reporting by regulated entities (the policy indicates that “EPA does not expect to seek penalties for violations of routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations in situations where the EPA agrees that COVID-19 was the cause of the noncompliance and the entity provides supporting documentation to the EPA upon request”); (2) settlement agreement and consent decree reporting obligations and milestones (the policy adopts the same position as in point number (1), above, but notes that consent decrees are still subject to independent judicial oversight); and (3) facility operations (the policy indicates that it applies to facility operations impacted by COVID-19 that may create acute risk or imminent threat to human health or the environment, result in air emission control, wastewater, or waste treatment system or equipment failure that may result in exceedances of enforceable limits, cause hazardous waste generation transfer, or animal waste feeding operation compliance, delays, or other noncompliance, all of which are generally to be covered by steps 1-4, above, except for imminent threats which also will require EPA consultation with state or tribal governments).

How the Policy Has Been Viewed in the United States

As reported in the media, the relaxation of environmental measures has been both assailed (“an open license to pollute…and abject abdication of the EPA mission to protect our well being” – Gina McCarthy, EPA Administrator in Obama administration) and defended (“a very straightforward and sensible guidance” – Grant Nakayama, EPA Office of Compliance in Bush administration) by legal, regulatory, and regulated communities in the United States. Others suggested that the issue was not so much the policy itself as how it will be implemented, particularly in the context of air pollution from industrial facilities located predominantly in low income communities where at-risk populations historically under stress from air pollutants that exacerbate asthma, breathing difficulty, and cardiovascular problems now also face respiratory threats posed by a virus that attacks the lungs.

Implications for Canada

Despite the policy’s direct impact in the United States, there are significant implications for Canada (and Mexico) as well. First, there are a myriad of cross-border environmental problems a policy such as this could exacerbate. Air emissions from the Ohio Valley have long had significant impacts in Ontario, Quebec, and the Maritimes. Superfund hazardous waste sites along the Canada – United States border, such as in the Niagara area, have long had significant implications for the integrity of the shared waters of the Great Lakes. Water pollution discharges from the state of Washington impact the Salish Sea, the estuary formed by inland waters with southern British Columbia that connect to the Pacific Ocean primarily through the Strait of Juan de Fuca.

Second, there are a variety of pacts between Canada and the United States that the policy could ride roughshod over:

• The Boundary Waters Treaty of 1909 (Article IV, section 2) that requires that neither country should cause water pollution in its waters which will cause injury to health or property in the other country and the companion Canada-United States Great Lakes Water Quality Agreement of 2012, which provides for a regional mechanism to achieve the Treaty’s goals in the Great Lakes Basin ecosystem;

• The Canada – United States Air Quality Agreement, signed in 1991, with the goal of reducing air emissions that cause acid rain, which was expanded in 2000 to reduce transboundary smog emissions; and

• The environmental side agreement under the North American Free Trade Agreement (as amended) commits Canada, Mexico, and the United States to ensuring that their laws and regulations provide for high levels of environmental protection and that they are effectively enforced through measures that include compliance monitoring and reporting (Articles 3 and 5).

Whether viewed as a waiver of monitoring and reporting requirements with respect to emissions or discharge limits or, more ominously, as a waiver of compliance with the limits themselves for the duration of the pandemic, this is not good news for the environment or public health in North America especially in the midst of a pandemic caused by a virus that attacks the respiratory system of its victims. It is also not clear whether Canada (or Mexico) were consulted by the EPA before this policy went into effect (it is retroactive to March 13, 2020). Coupled with the major de-regulation push the EPA has been engaged in over the past few years, the policy seems all of a piece with the worst impulses of those who want to de-construct the administrative state. We can do better than turn the clock back to the dark ages of environmental non-regulation. In the midst of a pandemic, stopping the spread of bad ideas would be a good place to start, including ensuring they are not imported to Canada.


About the Author

Joseph F. Castrilli is counsel to the Canadian Environmental Law Association in Toronto. He is a member of the Ontario and British Columbia Bars, is certified as a specialist in environmental law by the Law Society of Ontario, and has appeared before all levels of court on environmental matters, including the Supreme Court of Canada. He also has taught environmental law courses and seminars at Queen’s University, University of Toronto and Osgoode Hall Law School at York University.

 

The importance of collaboration in countering CBRNe threats

Written by Steven Pike, Argon Electronics

In what is a rapidly changing and increasingly challenging global environment, the importance of maintaining international cooperation in countering CBRNe threats has never been more crucial.

The successful management of any form of cross-border hazard – be it biological, chemical, nuclear or otherwise – relies on targeted, sustained and collaborative action.

The value of developing a cohesive approach to CBRNe response was just one of the topics touched on by Henriette Geiger in her opening speech at the Annual General Meeting of the European Union CBRN Risk Mitigation Centres of Excellence in Brussels in June 2019, in which she stated:

“We are facing challenges today that go beyond national borders and [that] cannot be tackled alone.

“This is true for cooperation on CBRN matters, as witnessed by recent CBRN attacks and events in Europe…[and] also by the re-emergence of epidemic diseases.”

Countering invisible threats

Fast forward just nine months, and the impact of the COVID-19 pandemic is demonstrating all too starkly just how vitally important it is to maintain global cooperation in the fight against an invisible yet deadly threat.

From governments to tech companies to international agencies, the race is on to put in place measures that can help to contain the spread of the coronavirus.

The challenge in any crisis situation though is in ensuring that those personnel operating on the frontline of emergency response are sufficiently trained and equipped to handle what can often be complex, highly charged and in many cases unprecedented emergency situations.

The role of realistic CBRNe training

When planning exercises for diverse CBRNe or HazMat threats, a key priority is to develop relevant scenarios that facilitate optimum readiness, maintain maximum levels of safety and present minimal regulatory burden.

In the last decade, there has been an increasing interest in the use of hands-on training exercises using simulators to enable civilian and military CBRNe practitioners to test their technical knowledge in a manner that is realistic, cost-effective and safe.

Classroom learning will always continue to provide value in helping build theoretical understanding of the science and technology that underpins CBRNe defence.

But it is through the provision of realistic training that knowledge and competency can truly be put to the test.

Hands-on training that uses actual equipment (or its simulator equivalent) can help to build deeper understanding of the key science that underpins the release, dispersal and measurement of CBRNe agents.

By incorporating the use of simulator detectors in the context of CBRNe exercises, there is also the opportunity for personnel to gain familiarity both with the chemical and physical properties of specific hazards and with the ways that these hazards may affect individuals, equipment and infrastructure.

The value of international collaboration

At a time when international cooperation can offer significant benefits, the cooperative research agreement (CRADA) signed between Argon Electronics UK Ltd and the the Lawrence Livermore National Laboratory (LLNL) is an initiative that promises to both bolster and re-envision the delivery of realistic hands-on CBRNe training.

The two-year agreement, valued at $2.55 million, merges LLNL’s game-changing Radiation Field Training Simulator (RaFTS) technology with Argon Electronics’ extensive experience in the creation and development of simulation hardware and software.

While the project is currently focused on enhancing the provision of radiation training, there is the ability for the same technology to be applied across the broader range of CBRNe response, and in doing so to substantially raise the bar of emergency preparedness.

As the events of COVID-19 pandemic have demonstrated, the consequences of CBRNe emergencies can stretch national capabilities to their very limits.

While responsibility for first response remains with individual nations, there is also much to be gained from countries working together, combining their resources and developing common frameworks in order to mitigate against the effects of future global threats.


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.

Who Pays When Remediation Goes Wrong? A U.S. Federal Court’s Evaluation of Contractor Liability

Written by Michael S. Kettler, an Associate in the Environmental Law Practice of Riker Danzig Scherer Hyland & Perretti LLP, with offices in Morristown and Trenton, New Jersey; New York City; White Plains, New York; and Stamford, Connecticut  He may be reached at [email protected] or 973-451-8520.

The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”) has been a prodigious generator of litigation for decades. First, the government sought to compel potentially responsible parties (“PRPs”) to clean up contaminated sites. Then, those PRPs who were found liable or who settled with the government sought contribution from other PRPs. Now, even after these interminable disputes over liability for remediation costs are resolved, the implementation of costly remedies can give rise to yet more litigation if those remedies fail. A recent decision by the federal district court in Philadelphia in Cottman Avenue PRP Group v. AMEC Foster Wheeler Environmental Infrastructure Inc., arising from one of the earliest CERCLA Superfund sites, is an example of this last type of case and offers important lessons both for parties responsible for remediation and the contractors they hire to fulfill those obligations.

A predecessor of AMEC Foster Wheeler (“AMEC”), acting as a remediation contractor, designed a sheet pile wall intended to prevent PCB-contaminated soil at a Philadelphia Superfund site from falling into the Delaware River. Construction of the sheet pile wall was completed in 2010, but by 2012, cracks in the wall and unwanted movement of the wall were observed. The PRP group, making claims both under CERCLA and its contract with AMEC, sued AMEC in 2016 after the PRP group had to repair the wall.

AMEC prevailed on the CERCLA claims based on its assertion of the statutory defense for “response action contractors.” That is, CERCLA provides that “a response action contractor with respect to any release or threatened release of a hazardous substance … shall not be liable … to any person for injuries, costs, damages, expenses, or other liability … which results from such release or threatened release”; however, a response action contractor nonetheless will be liable for “a release that is caused by” the contractor’s negligence. 42 U.S.C. § 9619(a)(1)-(2). (The New Jersey Spill Act includes a similar defense for contractors, see N.J.S.A. 58:10-23.11g1.) The court held that AMEC could not be liable under this standard because the PRP group incurred costs in response to a threatened release of PCBs only, and could not prove that an actual release occurred. In fact, the PRP group’s repeated assurances to the United States Environmental Protection Agency that the defective sheet pile wall did not cause any releases to the river ultimately proved fatal to its CERCLA claim against AMEC. The court concluded that, under the “plain terms” of the response action contractor defense, a contractor cannot be liable for a threatened release of hazardous substances under CERCLA because the statute immunizes them from liability for a release or threatened release, but the exception creating liability refers only to a release caused by the contractor’s negligence. Although a reasonable interpretation of this CERCLA provision when read in isolation, it seems inconsistent with the statute’s general liability scheme, which imposes liability for both releases and threatened releases.

In contrast to the dismissal of its CERCLA claim, the PRP group had mixed success on its contract claims. Yet, the success or failure of the contract arguments rested not on the intent of the parties as expressed in the contract, but rather on certain background legal rules that the parties may not have contemplated when they entered the agreement.

First, the court found that the warranty provided by AMEC for the remediation work had expired and, as a result, the breach of warranty claim brought by the PRP Group was untimely. Under Pennsylvania law, unless the contract specifically provides otherwise, the “discovery rule” does not apply to breach of warranty claims, so the four-year statute of limitations applicable to breach of warranty begins to run upon completion of the work under the contract, regardless of when the defect causing the breach of warranty becomes apparent. Here, AMEC’s final inspection of the sheet pile wall under the contract occurred in 2011 and the PRP group did not sue until 2016, so the breach of warranty claim was barred. This is a harsh rule for remediating parties, who might not expect that their warranty for a remedy intended to last for decades would evaporate after four years.

AMEC also raised timeliness as a defense to the PRP group’s claim under the contractual indemnity, but the court ruled in favor of the PRP group on that issue. Specifically, AMEC unsuccessfully argued that its indemnification obligations ended upon termination of the contract in 2011 because the indemnification clause did not state that it survived termination, whereas other terms of the contract included explicit “survival” language. The court analogized the indemnification clause to “structural provisions relating to remedies and dispute resolution,” such as an arbitration clause, which usually survive termination of the contract. Thus, in contrast to the warranty, specific language was not needed to preserve indemnification claims that might arise after the remedy was constructed.

Finally, AMEC could not escape claims that it breached the contract by not procuring all of the required insurance policies. Although during the term of the contract AMEC intermittently provided certificates of insurance to the PRP group, in discovery it could not produce insurance policies that satisfied the requirements under the contract. Unlike the breach of warranty claim, the “discovery rule” did apply to this breach of contract claim, so the PRP group could bring the claim even though the breach—the failure to obtain insurance—had occurred long before the PRP group brought the lawsuit in 2016.

Remediating parties and the engineers and contractors they hire should observe three takeaways from the Cottman Avenue case:

  • Response action contractors have a powerful and unique defense to statutory environmental claims. Strict liability does not apply to response action contractors under CERCLA (or the New Jersey Spill Act), and, under this case, even a negligent contractor would not be liable for threatened releases. Like the Cottman Avenue PRP Group, remediating parties may be caught in a bind between assuring regulators that no contaminants have been or will be released and preserving potential CERCLA claims against their contractors.
  • Specify survival of warranties and indemnification provisions. Contracts often contain an explicit period that a warranty will remain in effect and also provide that indemnities will survive termination of the agreement. The failure to include these terms in this contract led to extensive litigation that could have been avoided and that probably produced results that the parties would not have expected when they entered the contract.
  • Pay attention to insurance requirements (and other ongoing obligations). Before agreeing to maintain certain insurance, parties should make sure they have the ability to provide that insurance or evidence thereof, which it seems was not done in this case. It may be tempting to put a contract out of sight and out of mind after it is signed, but without a system to make sure ongoing insurance obligations are met, a party may find itself in the unfortunate position of acting as its own insurer.

Reprinted with permission from the Riker Danzig Environmental Law Blog.  © 2020 Riker Danzig Scherer Hyland & Perretti LLP.


About the Author

Michael S. Kettler is an associate in the Riker’s Environmental Group and is experienced in litigation and environmental counseling. Mr. Kettler received his J.D. degree from Columbia University School of Law in 2012. He earned his B.A. degree, summa cum laude, in Philosophy, Politics and Economics from the University of Pennsylvania in 2009, where he was Phi Beta Kappa. Prior to joining Riker Danzig, Mr. Kettler was an associate at K&L Gates LLP in New York. He is admitted in both New Jersey and New York.

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.

Use of Drones in Environmental/Engineering Services

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

The use and functions of unmanned aerial vehicles (i.e, drones) in service industries is rapidly evolving.

Environmental services and/or environmental monitoring/enforcement is an example of an area in which the usefulness of drones is being recognized.

By way of example, as noted in a previous post (see post here), the Louisiana Department of Environmental Quality as early as 2018 added drones as a tool in the agency’s environmental protection missions. The three drones employed by the agency are used for activities such as:

  • Surveillance
  • Enforcement
  • Permit Support Documentation
  • Waste and Landfill Inspections
  • Legal Dumping of Chemicals, Oil or Waste Tires
  • General Emergency Response Functions Involving Facility Discharges, Train Derailments, Truck Accidents, Oil Spills
  • Investigations of Unusual Events

An example in the environmental services area is the Little Rock/Springdale firm of Pollution Management, Inc., (“PMI”) which operates a drone for certain environmental/engineering services.

The company states it uses a drone in the engineering area for activities such as:

  • aerial imagery (i.e., dam/levee inspections, slope failures, structure layout, etc.)
  • Topographic data (civil site layout, flood studies, landfills, industrial site design)

In the environmental area the drone is stated to be utilized for aerial site reconnaissance for areas that are:

  • Large areas of land
  • Not easily accessible by foot or vehicle
  • May not be easily observable due to thick vegetation or other impediments

In other words, drones apparently have certain potential inherent advantages when it comes to their ability to cost effectively observe for environmental assessment purposes larger or relatively inaccessible areas.

Note that the utilization of drones for income-producing purposes is subject to Federal Aviation Administration (“FAA”) rules and restrictions. PMI indicates that Professional Engineer Brad Wingfield recently passed his FAA Part 107 aviation exam. As a result, he is certified to pilot drones for commercial purposes.


About the Author

Walter Wright practices Environmental and Energy Law in the Little Rock, Arkansas, office of Mitchell Williams Law Firm.  He has taught Environmental Law at the University of Arkansas at Little Rock School of Law since 1989.  Mr. Wright is a graduate of the University of Arkansas and the George Washington University National Law Center in Washington, D.C.

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.

What Exactly Is Canada Doing About The Protection Of Our Environment?

Written by Paula Lombardi, Siskinds LLP

The Federal Government is required under the Federal Sustainable Development Act, S.C. 2008, c.33 (“Act1) to provide Canadians with a strategy as directed by the precautionary principle.

The precautionary principle is defined in section 2 of the FSDA, for implementing any thing, action or process to develop, improve and protect our environment of threats of “serious” or “irreversible damage”, regardless of lack of full scientific data, or cost-effective measures to prevent “environmental degradation”.

The FSDA was passed in June of 2008, and as statutorily required, the federal government implemented the first written objectives to Canadians in a report known as the “Federal Sustainable Development Strategy” (FSDS) for the years 2010 to 2013. The Act requires that the FSDS be updated every three (3) years by the Minister of the Environment based on the precautionary principle. The federal government’s fourth and most recent update is entitled “Achieving a Sustainable Future. A Federal Sustainable Development Strategy for Canada 2019 to 2022″ and was released on June 19, 20192 (the “2019-2022 FSDS”). Every Canadian including Indigenous organizations, non-governmental organizations, academics, businesses (large or small) are invited before the end of each reporting period to make comments on the draft report prior to its release. While the 2019-2022 FSDS report is complete, comments on the new report or ideas on implementation of its goals can be made on the federal government’s Commitments Board or by sending an email to [email protected].

As we enter a new decade, the re-elected liberal federal government will be working with Canadians to attain the thirteen (13) sustainable development goals by 2022. These goals include: lowering emissions; developing more green operations; preserving healthy coasts and oceans; growing clean technology; improving infrastructure; improving lakes and rivers; maintaining lands and forests; ensuring healthy wildlife; providing clean drinking water; creating sustainable food; connecting Canadians with nature; and, encouraging sustainable communities to live clean.

The question is whether these development changes really affect each Canadian? The answer is yes.

These development goals can only be achieved and sustained through action by individuals, the business sector and provincial governments. For example, in December of 2017, The Minister of the Environment and Climate Change Canada (“ECCC”) the Honourable Catherine McKeena stated: “Sustained action on Great Lakes restoration is key to the health and economic prosperity of citizens in this important region.”3 The ECCC gave close to $45 million in new funding to the Great Lakes Protection Initiative to take action on identified priorities (i.e. 2017 State of the Great Lakes Report). These priorities included reducing toxic and nuisance algae and harmful pollutants to restore water quality, and improving and protecting its ecosystem.

The creation of the Canada-Ontario Lake Erie Action Plan4 set out 120 actions to help reduce phosphorus entering Lake Erie. The City of Hamilton has contributed $14 million5 to the Randle Reef Sediment Project. Although this immense multi-year initiative remains on budget with the goal to be completed by 2022, it could only remain possible by the FSDA and application of the precautionary principle.

The 2019-2022 FSDS report is a free public document that all Canadians can easily access by downloading from the federal government website or visiting http://www.fsds-sfdd.ca/downloads/FSDS_2019-2022.pdf.

Footnotes

1 https://laws-lois.justice.gc.ca/eng/acts/f-8.6/page-1.html#h-240603

2 http://www.fsds-sfdd.ca/index.html#/en/intro/annexes#tabs

3 https://www.canada.ca/en/environment-climate-change/corporate/transparency/priorities-management/departmental-results-report/2017-2018/results.html#toc3

4 https://www.canada.ca/en/environment-climate-change/services/great-lakes-protection/action-plan-reduce-phosphorus-lake-erie.html#toc4

5 https://www.hamilton.ca/city-initiatives/our-harbour/budgets-and-fast-facts

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.


About the Author

Paula Lombardi is a partner of Siskinds LLP, and practices in the areas of environmental, municipal, regulatory and administrative law. Prior to joining Siskinds, Paula worked as an associate at a Bay Street law firm where her practice focused on occupational health and safety, environmental and regulatory matters.  Paula recently spent two years as in-house counsel for a major privately owned US corporation, whose owner is on the Forbes 500 list, and was responsible for all Canadian legal and business issues relating to the import and export of goods, transportation of hazardous materials, remediation of contaminated sites, construction of large infrastructure projects, regulatory compliance, NAFTA matters, and preparation of environmental assessments in the US and Canada.