U.S. EPA to Terminate Temporary COVID-19 Enforcement Policy

Written by Michael Traynham, Nexsen Pruet, PLLC

On June 29, 2020, the United States Environmental Protection Agency (“EPA”) released an addendum to its previously announced COVID-19 Enforcement Policy, effectively setting a termination date of August 31, 2020, for the temporary enforcement discretion described in its previous memorandum. The U.S. EPA originally released a memorandum on March 26, 2020, addressing the impacts of the COVID-19 pandemic on the agency’s Enforcement and Compliance Assistance Program. The temporary policy relaxed regulatory consequences for most forms of noncompliance caused by COVID-19 related workforce shortages, social distancing requirements, and other limitations.

The temporary enforcement policy has been widely criticized by environmental interest groups for allegedly granting carte blanche to pollute. A number of State attorneys general have challenged the policy as well, asserting that it exceeds EPA’s authority.

The termination addendum reserves EPA’s right to terminate the enforcement discretion policy earlier than August 31, though only by providing a minimum advance notice of seven days. The termination of the temporary policy will require regulated entities to return to timely reporting for all permit and regulation based obligations, though under the terms of the temporary policy “catch-up” reports will not be required for monitoring report requirement that apply to intervals of less than three months. Annual or bi-annual reporting obligations may be required, even if the monitoring is conducted later than typically required. The termination also ends the blanket discretion to eschew civil penalties for noncompliance related to COVID-19, although the addendum states that EPA retains the ability to exercise enforcement discretion on a case-by-case basis.

With confirmed cases of COVID-19 on the rise nationwide, and renewed restrictions being implemented in several states, regulated entities should give additional attention to their compliance plans and contingencies prior to August 31. If workforce shortages or other COVID-19 related legal restrictions make compliance obligations impossible or impractical after the termination of the temporary policy, the documentation framework set out in EPA’s March 26 memo remains good practice:

  1. Act responsibly under the circumstances in order to minimize the effects and duration of any noncompliance caused by COVID-19;
  2. Identify the specific nature and dates of the noncompliance;
  3. Identify how COVID-19 was the cause of the noncompliance, and the decisions and actions taken in response, including best efforts to comply and steps taken to come into compliance at the earliest opportunity;
  4. Return to compliance as soon as possible; and
  5. Document the information, action, or condition specified in a. through d.

While there are no assurances of civil penalty avoidance after August 31, strong documentation of good faith efforts toward compliance will go a long way toward resolving issues as they arise.


About the Author

Michael Traynham is an experienced environmental law attorney based in the firm’s Columbia, South Carolina office. As a member of the Real Estate & Environmental practice group, he brings his trial experience and comprehensive knowledge on a wide variety of South Carolina environmental issues when advising his clients.

Department of National Defence fined $175,000 under Canadian Environmental Protection Act, 1999

On June 22, 2020, the Canadian Department of National Defence pleaded guilty to one charge of contravening the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations. The Department was sentenced in the Provincial Court of Alberta in St. Paul and fined $175,000 for committing an offence under the Canadian Environmental Protection Act, 1999. The fine will be directed to the Government of Canada’s Environmental Damages Fund, where it will be used to advance environmental and conservation projects often in the same community in which the offence was committed.

In addition to the fine, the Court ordered the Department of National Defence to complete a third-party environmental audit of the Canadian Forces Base Cold Lake and the Cold Lake Air Weapons Range, including a review of the Department’s environmental-management systems to ensure compliance with environmental legislation.

The Department of National Defence Cold Lake Air Base is the busiest fighter base in Canada. It provides general purpose, multi-role, combat capable forces in support of domestic and international roles of Canada’s Air Force.

An investigation by Environment and Climate Change Canada enforcement officers revealed that the Department of National Defence operated a storage tank system for which an identification number had not been issued. To ensure compliance and reduce the risk of releases of petroleum products into the environment, the Regulations require the owner or operator to identify their storage tank system and obtain an identification number for their system from the Minister of the Environment.

The purpose of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations is to reduce the risk of contaminating soil and groundwater due to spills and leaks of petroleum products from storage tank systems.
The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations establish requirements for systems under federal jurisdiction.

Ontario Delays the Commencement of the new Excess Soil Regulation

In response to impacts from COVID-19, the Ontario Ministry of Environment, Conservation and Parks (MECP) recently announced it was  delaying implementation of requirements under the new Excess Soil Regulation from July 1, 2020 to January 1, 2021. MECP also stated that they are exempting municipalities and health care providers from filing a Record of Site Condition to develop a temporary health or residential facility for emergency situations.

Delayed implementation of the excess soil regulation

In December 2019, the Lieutenant General in Council made the new On-Site and Excess Soil Management Regulation, O.Reg. 406/19 (excess soil regulation) under the Environmental Protection Act (EPA). The excess soil regulation clarifies rules related to the reuse and management of excess soil, including:

  • standards for appropriate reuse of excess soil
  • when excess soil is designated as a waste
  • when waste-related approvals are required for soil management under Part V of the EPA

The excess soil regulation is being phased in. Some provisions would have come into effect on July 1, 2020. However, in light of the COVID-19 outbreak, the MECP is temporarily delaying the implementation of the new regulation for managing excess soil by six months.

As a result, these provisions are temporarily delayed and will now come into effect on January 1, 2021.

In the meantime, the MECP’s current waste regulatory framework will continue to apply, and the ministry will take action with any non-compliance or to address any concerns as it applies to the management and disposal of excess soil.

The MECP will also continue to work with municipalities and other stakeholders to:

  • understand and implement the regulatory changes
  • encourage early adoption of changes as appropriate

Consequential amendments that were made at the same time as the excess soil regulation to O. Reg. 153/04 (Records of Site Condition), Regulation 347 (General Waste Management) and O. Reg. 351/12 (Waste Management Systems EASR Regulation) are also delayed and will come into effect on January 1, 2021.

Other implementation dates in the excess soil regulation have not changed, including implementation of provisions dealing with the excess soil management planning requirements and the Registry which remain coming into effect on January 1, 2022, as well as other provisions on January 1, 2025. Similarly, the excess soil regulation will continue to grandfather contracts related to excess soil management entered into before January 1, 2021.

Amendment to the Records of Site Condition Regulation

The MECP have also amended O. Reg. 153/04 (Records of Site Condition Regulation), to exempt temporary health facilities or residential facilities that are built on land previously used for community or commercial purposes in response to emergencies declared under the Emergency Management and Civil Protection Act.

Because a temporary health or residential facility is considered a more sensitive use under the EPA, an RSC is required to be filed in the Environmental Site Registry before the facility can be established on property or in a building that is used for a less sensitive use, such as an industrial, commercial or community use.

The work to file an RSC requires:

  • retaining a qualified person
  • conducting one or more environmental site assessments
  • possibly soil remediation

This work can take several months or longer. This would create a significant delay where these temporary facilities are required urgently to respond to a declared emergency.

This exemption would apply to:

  • a temporary facility established in response to the current emergency, such as COVID-19 testing tents or isolated medical structures
  • the establishment of a temporary facility responding to any future declared emergencies, including any future phases of the pandemic

All other requirements that are part of the MECP’s legislative framework, including the regulation of waste management and discharges to the natural environment, would continue to apply to the operation of these temporary facilities, and the ministry will take action in response to environmental concerns, if they emerge.

British Columbia fuel-supply company fined $200,000 for environmental offences

Recently, Scamp Industries Ltd., a fuel supplier based in Western Canada, was fined $200,000 in the Provincial Court of British Columbia after pleading guilty on June 17, 2019, to five counts of transferring petroleum products into a storage-tank system where storage-tank-system identification numbers were not visible. This action is contrary to subparagraph 29(b)(i) of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations, made pursuant to the Canadian Environmental Protection Act, 1999. The penalty will be directed to the Government of Canada’s Environmental Damages Fund.

In March 2015, Environment and Climate Change Canada enforcement officers inspected several gas stations on federal and Indigenous land in the south-central area of British Columbia, including the Kamloops and Salmon Arm areas, to monitor compliance with the Regulations. During these inspections, the enforcement officers found that Scamp Industries Ltd. had been delivering fuel to a number of unregistered tank systems and a number of tank systems that did not display the required identification numbers.

In January 2013, Scamp Industries Ltd. was issued a written warning for delivering fuel to a gas station in Chilliwack, which had not registered its storage-tank systems with Environment and Climate Change Canada.

According to the Scamp Industries Ltd. website, the company has a Health, Safety & Environment Program that includes “constantly developing it’s training and monitoring procedures.”  It also states that it has the “best-in-class training programs to a strong safety culture”.

Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations

 

The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations, which came into force in 2008, help reduce the risk of releases of petroleum products from storage-tank systems located on federal or Indigenous land (referred to as aboriginal land in the Regulations) and from systems operated by or that provide a service to federal works or that are operated or owned by the Crown. The Regulations apply to storage-tank systems with a capacity of more than 230 litres, which contain petroleum products such as gasoline, diesel, and home-heating oil, or allied petroleum products.

The Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations require that owners identify their storage-tank systems to Environment and Climate Change Canada before operating the system.

The Federal Identification Registry for Storage Tank Systems is the online database where storage-tank system owners enter information about their storage-tank systems to receive an Environment and Climate Change Canada identification number.

Preparing Post-Construction Cleanup Sites for Natural Disasters

The United States Association of State and Territorial Waste Management Officials (ASTSWMO) CERCLA Post Construction Focus Group has developed a checklist called, Preparing Post-Construction Cleanup Sites for Natural Disasters, which is intended to help States in identifying efficient and effective measures for preparation in advance of potential natural disasters to aid in the identification of likely concerns following a natural disaster. The information provided on the checklist can be used to identify and respond to changed conditions at sites to support action to ensure protectiveness of human health and the environment.

Purpose of the Checklist

The purpose of this checklist is to provide a planning tool for post-construction sites (sites) in the event of a natural disaster. The checklist was developed for CERCLA post-construction sites; however, it may also be used for similar “non-CERCLA” post-construction sites. The checklist includes site-specific information that should be considered prior to and post natural disaster event to streamline site security, minimize damage to remedy components, and reduce the risk of site-related environmental impacts. The checklist does not replace Health
and Safety Plans (HASP), Standard Operating Procedures (SOP), or other site-specific / programmatic guidance documents. Site managers are encouraged to complete the checklist following review of these guidance documents, and incorporate supporting information, as  appropriate.

Recommendations

Based upon the development of this checklist, the team recommends the following practices that will help States be prepared to react following a natural disaster:
• Pre-event planning: Assess site conditions to compile site specific details to complete the checklist prior to a natural disaster.
• Pre-event information: Identify and collect site plans/data and contact information so the information is readily available should a disaster occur. Periodically review this information to ensure that it is current.
• Post-event information: Use the checklist to identify conditions that require action/repair and track planned actions.

The team also recommends considering the use of a version of this checklist for sites that may be in active cleanup stages.

 

About the ASTSWMO CERCLA CPC FG

The ASTSWMO CERCLA Post Construction Focus Group (CPC FG) is comprised of State and Territorial (State) members from all United States Environmental Protection Agency (EPA) regions. This checklist was prepared by the ASTSWMO CPC FG, under Cooperative Agreement 83870001 with the U.S. EPA Office of Superfund Remediation and Technology Innovation (OSRTI).

The mission of the ASTSWMO CPC FG is to promote facilitation and maintenance of reliable, effective, and protective remedies constructed at contaminated sites, to include identification of the resources necessary following remedy construction, and to communicate State program strategies effectively among interested parties.

Welland Canal Terminal Operator fined $50,000 for Environmental Protection Act Violation

Port Weller Marine Terminal Inc., located in Port Colborne, Ontario was recently convicted of one violation under the Ontario Environmental Protection Act and was fined $50,000 plus a victim surcharge of $12,500 and was given six months to pay the fine.  The conviction relates to the discharge of cement dust that migrated off-site affecting local residential properties.

The conviction relates to activities that occurred  on or about July 28, 2016 and ending on or about August 3, 2016.  On July 28, 2016, the Ontario Environment Ministry was notified that clinker dust had migrated off the terminal site and an investigation indicated that despite Port Weller Marine’s efforts to contain the dust, a quantity was carried off-site and fell onto residential properties in the area. The company was unaware of the discharge at the time.  An investigation resulted in charges being laid, which resulted in one conviction.

Port Weller Marine Terminal Inc. operates a terminal on the Welland Canal which is part of the St. Lawrence Seaway. At the time of the violation, the company was under contract to unload vessels carrying cement clinker, which had been imported by a Port Weller Marine client.  Clinker is a component of cement and is used in cement manufacturing and can become caustic when wet, potentially causing burns to eyes and skin.

 

CarMax Settles Lawsuit related to Unlawful Handling and Disposal of Hazardous Materials

Seventeen District Attorney’s in California recently settled an environmental protection action against CarMax Auto Superstores California, LLC. The settlement was based on the unlawful handling and disposal of various hazardous materials and hazardous wastes. The action was filed in Orange County Superior Court.

Waste inspections conducted at various CarMax locations in the seventeen Counties uncovered systemic violations of the management and disposal of hazardous waste items and confidential customer information.

“Today’s settlement is a win for the environment,” stated Alameda District Attorney Nancy O’Malley in a news release. “I want to make it very clear to any business operating in Alameda County and the state of California: there is no excuse for improper disposal of hazardous waste. You put us all at risk when you pollute our soil and our waterways. The state as well as local district attorneys will continue to work together to investigate and bring to justice businesses that ignore our important environmental protection laws.”

Nancy E. O’Malley, Alameda County District Attorney

CarMax Auto Superstores California, LLC. is an automotive retailer that operates more than 190 dealerships in at least 28 states, including California. In the ordinary course of business, CarMax handles, transports, stores, manages, uses and disposes of hazardous materials. Additionally, CarMax generates regulated quantities of hazardous waste from its automotive inspection, service and repair departments. Numerous inspections by the California Department of Toxic Substances Control along with local environmental regulators found that CarMax facilities were out of compliance with the hazardous materials and hazardous waste laws.

District Attorney Investigators from several counties conducted undercover inspections of CarMax’s trash containers, which revealed the illegal disposal of hazardous auto body sanding dust, sanding pads, automotive paints, clear coats, solvents, non-empty aerosols, other hazardous substances used during the auto body repair process, and confidential customer information.

In accordance with the Hazardous Waste Control Law and Hazardous Materials Release Response Plans and Inventory Law, the stipulated judgment mandates training, reporting and compliance with the regulations on hazardous materials, and hazardous wastes. The settlement totaling $ 1,600,000 requires CarMax to pay $1,000,000 in civil penalties and $300,000 for investigative costs. CarMax will also make an additional payment of $300,000 to fund supplemental environmental projects furthering consumer protection and environmental enforcement in California. CarMax was cooperative throughout the investigation and implemented training and compliance programs at each of its facilities.

The case was brought in conjunction with the District Attorney’s offices of Orange, Riverside, Los Angeles, San Bernardino, Fresno, Stanislaus, Kern, Ventura, Sacramento, Placer, San Diego, Solano, Sonoma, Santa Clara, San Mateo and Contra Costa counties, where CarMax facilities are located.

Posted on Jun 11, 2020

U of Guelph Researcher Wins International Water Award for Groundwater Contamination R&D

Drawing attention to Earth’s crisis of groundwater contamination and exploitation is the goal of a University of Guelph engineering professor whose prestigious international water award was recently announced.

Prof. John Cherry, an adjunct professor in U of G’s School of Engineering, was recently named the 2020 winner of the Stockholm Water Prize on UN World Water Day.

He’s the first hydrogeologist and the second Canadian to win the international award, which has gone to academics and organizations worldwide, including the International Water Management Institute in Sri Lanka and Great Britain’s Water Aid.

Awarded annually since 1991, the prize honours individuals and organizations whose work helps to conserve and protect water resources. Cherry will receive the award from Princess Victoria of Sweden in late August and will address the opening session of this year’s World Water Week conference to be held by the Stockholm International Water Institute.

“John has made incredible contributions to groundwater research that have had profoundly important global impacts, aligning perfectly with our institutional commitment to improve life,” said Malcolm Campbell, vice-president (research), at U of G.

“John’s achievements are spectacular and provide inspiration for the University of Guelph research enterprise, and we offer him our heartfelt congratulations and praise. John is most deserving of this award.”

Cherry plans to use the award to highlight what he calls “the global groundwater crisis.”

Worldwide, groundwater quality is imperiled by pollutants, especially contaminants from agriculture such as fertilizer and other sources such as road salting, septic systems and industrial chemicals, said Cherry.

A 2016 United Nations report projected that rising global temperatures, expanding urbanization and continued population growth will result in a 40-per-cent global water deficit by 2030.

Nearly all of Earth’s liquid freshwater is groundwater, including reserves that provide drinking water for about one in three Canadians. Almost half of the world population depends on groundwater for domestic use and many rely on it for irrigation.

“Groundwater as an issue gets ignored in Canada and in many other countries,” said Cherry, who studied groundwater contamination for decades as a professor at the University of Waterloo. “It’s going on underground, so you can’t see it, but it’s the backbone of the freshwater cycle.”

This summer, he will launch the Groundwater Project, a series of e-books and other educational resources to be made available free online in several languages for users from water experts to university students to schoolchildren. Cherry has solicited chapters from hundreds of water experts worldwide, including U of G engineering professors Beth Parker and Ed McBean, and Prof. Aaron Berg, Department of Geography, Environment and Geomatics.

The project will be based at U of G, where Cherry is principal investigator with the G360 Institute for Groundwater Research. Led by Parker, the institute studies groundwater quality and interactions between groundwater and surface water. It specializes in developing and applying sophisticated groundwater monitoring technologies, including systems monitoring the bedrock aquifer in Guelph and Wellington County.

“What’s most notable to me about Professor Cherry is his extraordinary capacity for collaboration, likely due to his broad interest in people and their ideas and his passion for seeking solutions to real-world problems,” said Parker. Referring to her colleague’s longtime teamwork in hydrogeology research and education, she said, “He is still pursuing advances with groundwater science and practice with his vision and with the largest-ever team working on the groundwater e-book project, which will undoubtedly have global impact.”

The project grew out of a definitive textbook called Groundwater, co-authored by Cherry in 1979.

Called a “pioneer of contaminant hydrogeology,” he joined the University of Manitoba in 1967 as Canada’s first groundwater professor.

Moving to the University of Waterloo in 1971, he led a groundwater research group for decades. His research criteria for choosing safe disposal sites for radioactive wastes have been adopted in worldwide regulations. The nomination for this award was submitted by the University of Waterloo’s Department of Earth and Environmental Sciences and the Water Institute.

Cherry has been named a Fellow of the Royal Society of Canada and a Foreign Fellow of the American Academy of Engineering. In 2016, he received the Lee Kuan Yew Water Prize from Singapore for outstanding contributions to global water research.

He traces his longtime interest in water resources to the work of his parents, Lawrence Cherry and Evelyn Spice Cherry, who experienced drought while growing up in Canada’s West. Both worked for the National Film Board and later ran a Saskatchewan documentary film company specializing in social and environmental issues.

Canadian Report on Environmental Fines and Penalties in 2019

The Environmental Insurance Group at Berkley Canada recently released there latest report on Environmental Fines and Penalties: 2019 Update Report which covers all of Canada.  The report summarizes the use of fines and penalties by regulators across Canada and explains how environmental insurance may respond to the risk.

The report acknowledges that Canada has historically used fines and penalties sparingly compared to Europe or the United States. Between 1991 and 2009, the average total value of fines and penalties levied in Canada was $1.4 million per year.  In late 2014, this changed dramatically.  That year, Environment and Climate Change Canada (the Canadian equivalent of the U.S. EPA), issued a penalty of $7.5 million against Bloom Lake General Partners (a subsidiary of Cliffs Natural Resources).  The penalty arose out of breaches to the Canadian Fisheries Act and Metal Mining Effluent Regulations.

While fines and penalties are designed to encourage compliance with environmental legislation, they are generally enacted under a strict liability framework.  This results in them often being imposed in response to an accident or unintended event.

Transport Canada Emergency Response Guidebook — 2020

The Emergency Response Guidebook 2020 edition will be available late spring 2020. For free paper copies’ pre-order, please send an email to: [email protected]

Who is eligible to get free paper copies?

Canadian First Responders from public emergency services such as:

  • municipal fire departments
  • police departments
  • ambulance services
  • RCMP
  • First Nation emergency services, can get free paper copies according to operational needs

These First Responders can get free paper copies according to operational needs, which include:

  • one paper copy of the Guidebook per emergency vehicle or per emergency kit bag (such as for volunteer firefighters who use their personal vehicle)
  • replacement copies as required for broken or damaged copies
  • copies used in class for in-house training purposes, on the condition they are to be retained for reuse in future classes
  • Canadian dispatch centers that pass on technical information about dangerous goods to First Responders can get a small number of free paper copies for use in the dispatch center
  • in remote areas where there are no First Responders available, other Canadian municipal, provincial, territorial or federal authorities acting as public emergency services may get free paper copies according to emergency response operational needs, if they are likely to be the first to arrive on scene of a dangerous goods incident
  • transportation of dangerous goods inspectors, remedial measures specialists and provincial inspectors who respond to dangerous goods accidents can get one free copy each for use during their duties