What are the key innovations transforming CBRNe simulator training?

Written by Steven Pike, Argon Electronics

The use of simulators and simulations to deliver CBRNe training is recognised as being a highly effective way to immerse trainees in environments that are as close as possible to those that they will experience in real life.

Simulator training provides a safe way for CBRNe personnel to test their knowledge and skills in the context of real-world examples.

Crucially too, trainees are able to make mistakes, and to learn from those mistakes, without risk to their own personal health, the environment or infrastructure.

As the threat posed by CBRNe materials continues to expand and evolve, the demand for hyper-realistic live-training capability is ever-growing.

The technology that underpins the provision of simulator training is also constantly expanding, as CBRNe instructors demand an even deeper level of authenticity.

In this blog post we explore some of the newest capabilities that are transforming the CBRNe training landscape.

Live-training capability

The highly practical nature of live-training offers benefits across a wide array of CBRNe disciplines – from Special Forces and border security to civilian emergency preparedness, the provision of medical services and law enforcement.

Gaining familiarity with CBRNe materials and their respective properties – and understanding the measures that must be taken to protect oneself and others – are core elements of CBRNe general awareness.

Building confidence in the handling of detection technologies is also crucial – whether it be to better understand the capabilities or limitations of currently available detection equipment, to explore newly emerging detector technologies or to put that equipment to the test in realistic, hands-on detection exercises.

Live-training provides the opportunity to develop and apply a broad range of CBRNe incident response practices under the most realistically challenging conditions possible.

Till recently, however, the practicalities of offering live-training have been limited by the need to comply with a host of essential safety, environmental, regulatory and administrative considerations.

One new training system that has taken on the live-training challenge is the Saab Gamer CBRN interface which integrates Saab’s Gamer live firing capability with Argon’s PlumeSIM technology.

The newly enhanced PlumeSIM system supports the simulation of chemical and radiological agents and enables the use of simulated portable survey meters such as the Mirion / CanberraAN/VDR-2,AN/PDR-77/RDS100 and simulated personal dosimeters such as the Mirion / Canberra UDR13 and UDR14.

For trainees there is the advantage of being able to experience the full functionality of their equipment and their PPE in highly realistic environments. While for trainers, there is the benefit of retaining full control of every aspect of the exercise from set-up to After Action Review (AAR.)

Integration with actual detector equipment

Working with real detector equipment can be invaluable in helping trainees gain greater confidence in the operation of their devices, and a deeper level of trust in the reliability of the measurements that they obtain.

At the same time though, it is important that any training that includes the use of actual equipment can be done without compromising operational readiness. Avoiding costly and time-consuming routine maintenance, calibration, running repairs or replacement of damaged items is key.

Recently however there have been developments in the technology that underpins radiological training which makes it possible for CBRNe instructors to deliver highly realistic radiation exercises that use actual detector equipment but with zero risk to the functionality or the integrity of those devices.

One such example is the Radiation Field Training Simulator (RaFTS).

At the heart of the RaFTS patented technology is an intelligent external device that is mounted directly onto a trainee’s own radiological detection system and that interacts directly with the detector’s internal circuitry.

The highly-realistic output, the quality of the data and the level statistical randomness is as life-like as it gets – enabling trainees to test their knowledge and skills in identifying a radioactive source, measuring its intensity and determining its location.

Crucially too, RaFTS universal capability can be applied across a diverse range of hazards and instrument types – including chemical warfare agents (CWAs) and explosives – making it possible for instructors to deliver an all-in-one CBRNe training solution for multiple devices.


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.

Effective Communication: Environmental Site Assessments

Written by Bill Leedham, P. Geo., CESA

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

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

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

Timely communication is key

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

Say what you mean, and mean what you say!

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


About the Author

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

U.S.: Aligning Affordable Housing and Brownfields Projects for Success

Written by Nicholas Targ, Partner and Co-chair of Holland & Knight’s National Environmental Team and Chelsea Maclean, Partner, Holland & Knight

Affordable housing and infill developers can benefit from recently enacted housing laws and Brownfields law and policies. These new laws along with national-caliber land use and environmental help can deliver affordable housing and infill projects faster and can substantially simplify the California Environmental Quality Act (CEQA) and development process.

New Housing Laws Benefit Affordable Housing and Other Infill Developers

The following three examples demonstrate the power of the new housing laws:

  • SB 375 Sustainable Communities Environmental Assessment (SCEA): A litigation-tested CEQA streamlining tool, SCEA helped an affordable housing developer client meet tight funding deadlines for a large affordable housing project and reduce litigation risk. The SCEA document is similar in scope to a typical Initial Study/Mitigated Negative Declaration, but includes the more protective “substantial evidence standard” of review of an Environmental Impact Report.
  • SB 35 Ministerial Processing Combined with AB 1764 Unlimited Density Bonus: The powerful SB 35 statute, which provides for ministerial/CEQA exempt approval, was layered with AB 1763, which provides for unlimited density under the State Density Bonus Law, for a client’s 125-unit infill project. After reviewing the use of the new housing laws with the city attorney’s office and Planning Department, the affordable housing provider gained approval for its housing project.
  • AB 1804 County Infill Exemption: This 2018 CEQA exemption for infill projects in unincorporated counties provided an affordable housing provider client with an accelerated entitlement pathway for its mixed-use affordable housing/community serving medical clinic project.

Attention to Brownfields Issues, and Alignment of Environmental and Housing/CEQA Laws is the Winning Combination

The new housing and CEQA streamlining laws frequently include special requirements for a project to be built on environmentally impacted land (e.g., SB 35, CEQA Class 32 Categorical Exemption for Urban Infill Housing). Moreover, given the recent ratcheting-down of vapor intrusion environmental screening levels, careful attention to Brownfields issues can mean the difference between success, delay and/or cost overruns.

The use of key Brownfields tools such as insurance, streamlined regulatory processes and avoidance of legal and environmental “land mines” (e.g., Cortese List, late discovered contamination) can make all of the difference. Successful infill projects – especially affordable housing projects, which carry higher regulatory and public scrutiny – are those that evaluate Brownfields issues early in the decision-making process.

Recent successful use of Brownfields tools to advance affordable and infill housing and associated projects include:

  • Preliminary Endangerment Assessment (PEA) Decision Document: The PEA assessment process allowed the state environmental agency to conclude at an early stage in the development process that no further action was required at a client’s affordable housing site, and to establish a workable and environmentally protective set of construction requirements.
  • California Land Reuse and Revitalization Act (CLRRA): Reauthorized in 2016, CLRRA was used to streamline the regulatory cleanup path for a client’s project and to provide qualified environmental immunities. Integrating the cleanup plan into the CEQA document, as a mitigation measure, litigation risk was reduced and regulatory certainty increased.
  • Comfort Letter: A state environmental agency’s “comfort letter” established that a release of the emerging chemical of concern – per- and polyfluoroalkyl substances or PFAS – was not sourced from a client’s affordable housing site based on environmental assessment. The letter further stated that the health of residents and construction crews would be protected, provided appropriate steps were followed. The comfort letter was critical to securing a broadly protective environmental insurance policy and allowing the affordable housing developer’s project to move forward.

Conclusion

It is recommended that housing developers consider careful alignment of the new housing laws, CEQA/National Environmental Policy Act (NEPA) compliance processes and Brownfields issues. Misalignment, especially for affordable housing projects, can result in avoidable problems ranging from those related to financing and making key milestones to conveyance/take down terms and selection of regulatory pathway for entitlement and environmental compliance.

Working with both nonprofit affordable housing providers and market developers, who produce workforce housing and infill projects, Holland & Knight’s West Coast Land Use and Environmental Group has helped guide the regulatory pathway for numerous affordable and mixed-income projects over the years across California. Holland & Knight has built a housing litigation practice with a strong record of success, and has particular strength in assisting municipalities in the appropriate use of these new housing laws to accelerate project implementation. Combining deep land use and environmental knowledge, and a highly developed housing/CEQA litigation practice, Holland & Knight lawyers have decades of experience helping nonprofit and other affordable housing and infill developers achieve success from initial diligence to opening day.

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


For additional information or assistance, contact the authors or a member of Holland & Knight’s West Coast Land Use and Environmental Group.

About the West Coast Land Use and Environmental Group: Holland & Knight’s Chambers-ranked West Coast Land Use and Environmental Group includes more than 25 attorneys and professionals in San Francisco, Los Angeles and Washington, D.C., who are dedicated to producing results for their clients. Our environmental, land use, real estate, finance and litigation attorneys and policy professionals work as one team, ensuring that the person with the right experience is addressing the issue. Our attorneys are consistently nationally ranked in publications such as U.S. News – Best Lawyers “Best Law Firms” guide and Chambers. In addition to deep private sector experience, many of our attorneys have agency and legislative backgrounds, including working at the White House, U.S. Department of Justice, U.S. Environmental Protection Agency, U.S. Department of the Interior, Congress, and state and local government.

 

 

 

Scientific advancements in oil spill containment

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

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

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

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

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

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

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

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

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

Oil Spill Dispersants Market Surpass $23.6 Billion By 2026

According to a recent market report by Acumen Research Consulting, the global Oil Spill Dispersants market size is estimated to grow at a compound annual growth rate above 3 % over the forecast time frame and reach the market value around USD 23.6 billion by 2026.

The term oil spill is a common term used in the contamination, by accident or human error, of water, land or earth by oil pouring or release. Oil sources are distributed throughout the world, and are drilled both onshore and offshore. Since oil is an essential source of energy, it is very important that oil is distributed and transported consistently. Oil is mainly transported by seaside vessels and land pipelines. Most accidents occur during the shipment of oil, transport and pipeline breakages or during land boiling. Small-scale oil spills take place regularly and can be easily and quickly controlled.

Dispersants contain detergents which help break oil into small droplets that can become diluted in the ocean. They also contain an organic solvent that helps the detergents mix with both the oil and water (Credit: Natalie Renier, Woods Hole Oceanographic Institution)

The market is mainly driven by frequent oil spills and the crucial importance of reducing the after effects on the environment of oil spills. These dispersants work in steady weather, since the efficiency of dispersants is reduced by high tides. Such limitations of oil discharges are the main restrictive factors on the global market for oil discharges.

The growth of the market of petroleum discharges depends directly on frequency, duration and volume of the oil discharges. Since the last decade, there has been a decrease of large oil spills every year, but very frequent small-scale oil spills are mainly driving the market for oil spills. Furthermore, a consistent selection of new petroleum resources and new oil plants will further boost the growth of the petroleum spill market. Another driving factor for the global market for oil spills is stringent government rules and penalties for reinforcing the response to oil spill.

Application Stance

The market share of offshore oil dispersant applications for the application segment was more than 70% in 2017. Similarly, it is estimated that the onshore application sector will grow steadily as newly identified onshore oil sources and frequent oil spills occur during transport or drilling of the oil. Onshore petroleum production accounts for 70 percent, which is projected to increase in the coming years. The demand for oil spill dissipators in onshore spill areas will be further increased.

Asia-Pacific Hold the prominent Share in the market

Geographically speaking, Asia Pacific will lead the global market for oil spillers driven by increased oil demand in the region and increased production pressures on petroleum companies to explore further existing offshore and onshore petroleum sources. Such explorations are certainly expected to have some incidents due to failure or human error in technology / equipment. Middle East & Africa is similar to the Asia-Pacific region, and a major part of the world’s oil demand is made of it. Global financial, trade and political pressures in terms of oil production and demand will certainly compel oil companies to take risks as they explore new petroleum sources.

ACME Environmental is Likely to Continue to Lead the Global Oil Spill Dispersants Market

The Oil Spill Dispersants market is consolidated with large number of manufacturers. The company profiling of key players in the market includes major business strategies, company overview and revenues. The key players of the market are ACME Environmental, Inc., Blue Ocean Tackle, Inc, Canadyne Technologies, Canadyne Technologies, Chemtex, Inc., and Desmi A/S, Blue Ocean Tackle, Inc, Inc, Chemtex, Inc., and Desmi A/S.

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

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

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

Can I still do an ESA?

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

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

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

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

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

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

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

OK, it’s “legal.” But is it useful?

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

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


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

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

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

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

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

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

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

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

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


About the Authors

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

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

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

EHS software market to reach $2 billion in 2025

According to a market research report prepared by Verdantix, the global market for Environmental, Health & Safety Software is expected to grow from $1.35 billion in 2020 to $2.2 billion in 2025.  Verdantix forecasts that the 10% compound annual growth rate (CAGR) over the next five years will be driven by private equity and consumer demand for innovation.  North America will contribute over half (51%) of overall global spend on EHS software at $691 million in 2020.​​​​​​

The report states that there are twelve vendors that lead the EHS software market as follows: Enablon, Intelex, Cority, Velocity EHS, Sphera, UL, Gensuite, SAI Global, ETQ, Enviance, IsoMetrix and Quentic.  Verdantix assessed the capabilities of the 23 most prominent vendors in the market on their ability to meet customer demands to manage risks and improve business performance across EHS impact areas.

“Industry-leading firms are looking to the EHS function to guide digital transformation within their operations, and this benchmark illustrates how digital solutions in the market differ in terms of capabilities and momentum,” commented Yaowen Jean Ma, Senior Analyst, Verdantix. “As a result, we are seeing a surge in mergers, acquisitions and investments in the EHS software market, as vendors look to create advantage in this market, which is set to be worth $1.9bn in 2024.”

The Verdantix 2019 Green Quadrant EHS Software is the only independent benchmark of EHS software vendors available. The study findings are based on a 383-point questionnaire, live product demonstrations and a survey of 411 customers.

Leading vendors are demonstrating various competitive advantages within specific modular categories, such as, ETQ for quality and document management, Enviance for air emissions management, IsoMetrix and SAI Global for contractor safety management, Sphera and VelocityEHS for chemicals compliance management, and UL for GHG emissions and sustainability management.

The need to align Operational Risk and EHS functions is a key success factor for new entrants from an Operational Risk management software background, such as INX Software, TenForce and VisiumKMS.

“The EHS software market is entering a new phase of growth where cloud-hosted deployment, configurability and vendors offering mobile applications are becoming the new normal,” added Yaowen. “Vendors will face increasing pressure to rapidly expand market share and strengthen profitability, which will lead to an increase in vendors investment in technology integrations that expand their capabilities beyond their core competencies.”

Verdantix Senior Analyst Bill Pennington provided insight on the drivers for the growth in EHS software sales: “With EHS functions increasingly focusing on innovation, such as the continued shift from on-premise to SaaS deployment and an increased presence of dedicated IoT safety platforms, this is driving the appetite for spending on EHS technologies.”

 

How simulations and simulator training have amplified CBRNe capability

Written by Steven Pike, Argon Electronics

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

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

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

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

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

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

The role of simulation in CBRNe training scenarios

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

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

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

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

The PlumeSIM wide-area training system

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

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

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

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

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

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

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

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

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

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

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

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

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

Enhanced CBRNe training capability

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

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

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


About the Author

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

Perfluorinated Compounds: No Longer an Emerging Contaminant

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

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

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

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

PFAS were used in fire-fighting foam

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

Federal Regulation of PFAS

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

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

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

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

PFAS Litigation: States & Private Parties Step In

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

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

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

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

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


About the Authors

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

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

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.