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  • EPA adopts ASTM E1527-13 Standard

    environmental Strategist™, between the lines:  environmental Strategist™ research shows in excess of 50% of Phase I site assessments are inaccurate which supports the changes outlined below.

    Two changes outlined in the article below stood out to me and both deal primarily with, Who Are Your Neighbors?

    1.  Identifying potential for vapor releases, or the potential presence or migration of vapors associated with hazardous substances or petroleum products.
    2. Greater emphasis on conducting regulatory file reviews, particularly of adjacent properties, which may pose a concern.

    In other words you may not be a polluter but who are your neighbors and what if they are causing contamination to come onto your property.  Under Federal law the real estate owner is ultimately responsible for the environmental condition of their property.  Environmental insurance can protect real estate owners if third parties contaminate their property.

    EPA adopts ASTM E1527-13 Standard

    From: Allison Winter, ENN 
    Published January 6, 2014 09:35 AM

    EPA finalized a rule last week adopting the revised ASTM E1527-13 “Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process” as a standard by which parties may comply with the “All Appropriate Inquiries” Rule, 40 CFR Part 312.

    In the United States, the Phase I ESA is a report prepared for a piece of property that identifies potential or existing environmental contamination liabilities. Phase I ESAs assess risks of ownership and are conducted in order to determine if a site may be contaminated from past spills, leaking underground storage tanks, or historical uses of the site, to name a few.

    American Society for Testing and Materials (ASTM) released the revised E1527-13 standard in November 2013, and now the EPA has announced that they will recognize it. However, the newly revised EPA rule does not delete reference to the previous ASTM standard, E1527-05, so as of now, both standards are acceptable.

    However, in the Federal Register notice finalizing the rule, EPA indicated that it does intend to propose an amendment to 40 CFR Part 312 removing reference to the E1527-05 standard. In its response to comments received on the new rule, EPA noted that it “… agrees with commenters that the revised ASTM E1527-13 standard includes improvements to the previous standard and its use will result in greater clarity for prospective purchases with regard to potential contamination at a property. Therefore, EPA recommends that environmental professionals and prospective purchasers use the ASTM E1527-13 standard.”

    Some changes to the standard include:

    •   Clarification to the definition of a Recognized Environmental Condition (REC). A REC is the presence or likely presence of any hazardous substances or petroleum products, in, on, or at a property.
    •    Addition of the term: “Controlled RECs”. Controlled RECs refer to contamination that has been remediated, but still may be the basis for ongoing or future land use or exposure control obligations
    • Identifying potential for vapor releases, or the potential presence or migration of vapors associated with hazardous substances or petroleum products.
    • Greater emphasis on conducting regulatory file reviews, particularly of adjacent properties, which may pose a concern.

  • Following Fatal Blast, Metal Recycler Required to Invest in Modern Technology and Company-Wide Protections to Prevent Future Accidental Chemical Releases

    FOR IMMEDIATE RELEASE
    December 19, 2013

    Dale Kemery : kemery.dale@epa.gov 

    WASHINGTON – The U.S. Environmental Protection Agency (EPA) announced today that AL Solutions, a West Virginia-based metal recycler, has agreed to implement extensive, company-wide safeguards to prevent future accidental releases of hazardous chemicals from its facilities, resolving alleged Clean Air Act violations (CAA) stemming from an explosion at the company’s New Cumberland, W. Va. facility that killed three people.

    “Modern technology is making it easier to assess potential hazards and prevent disasters before they happen,” said Cynthia Giles, Assistant Administrator for the EPA’s Office of Enforcement and Compliance Assurance. “Facilities that handle extremely hazardous substances should be using these tools to protect their workers and those in surrounding communities. Today’s settlement makes this a requirement for AL Solutions, and we hope others take it upon themselves to do the right thing.”

    AL Solutions recycles titanium and zirconium raw materials for use as alloying additives by aluminum producers.  The company currently operates facilities located in New Cumberland and Weirton, W. Va.; Burgettstown, Pa; and Washington, Mo.

    In December 2010, three employees who had been handling zirconium powder at the company’s former plant in New Cumberland, W. Va. died following an explosion which may have been caused by an accidental release of the chemical. Debris from the explosion, which destroyed the production area of the facility, was scattered into the yards of local residents. Earlier this year, the company opened a new, automated facility in Burgettstown, Pa. which includes modern technology to safeguard employees and reduce exposure to hazardous metallic dust.

    The EPA estimates that the company will spend approximately $7.8 million to implement extensive measures to ensure compliance with environmental requirements, assess the potential hazards associated with existing and future operations, and take measures to prevent accidental releases and minimize the consequences of releases that may occur. In consultation with EPA, the company has already completed significant portions of the work required by the settlement and a prior administrative order.

    Among other requirements, AL Solutions must use advanced monitoring technology, including hydrogen monitoring and infrared cameras, to assess hazardous chemical storage areas to prevent fires and explosions. They must also process or dispose of approximately 10,000 drums of titanium and zirconium, or 2.4 million pounds, being stored at facilities in New Cumberland and Weirton, W. Va., both of which are overburdened communities, by December 2014 to reduce the risk of fire and explosion.

    he company will also pay a $100,000 civil penalty to resolve the alleged CAA violations documented during EPA inspections of the New Cumberland, W. Va. and Washington, MO facilities following the explosion. At the Washington facility, inspectors noted evidence of previous fires, burned insulation, fire-affected wiring, and titanium sludge covering large areas of the floor.

    PA’s complaint alleged that AL Solutions failed to conduct adequate hazard analyses, and failed to design and maintain the facilities to take account of the extremely hazardous substances there by providing safeguards consistent with industry codes and standards relating to these substances. The State of West Virginia is expected to file a separate complaint soon alleging that the company violated various provisions related to the unlawful storage of waste at the New Cumberland facility. The settlement will resolve those separate allegations.

    In a related action, AL Solutions recently agreed to pay the U.S. Department of Labor a total of $97,000 to resolve alleged violations of the Occupational Health and Safety Act (OSHA).  The OSHA settlement, which is subject to final approval by an Administrative Law Judge, requires expanded abatement measures that are consistent with the safeguards in EPA’s settlement to provide ongoing worker safety protection at the company’s four facilities. These measures require adequate fire detection systems, process hazard analyses for production areas, regular safety and health inspections, and restrictions on stockpiling combustible materials.

    ince the explosion, EPA and OSHA have coordinated their investigations and shared information, which has resulted in settlements designed to protect workers, communities, and the environment.

    The EPA’s proposed consent decree filed today in federal district court in the Northern District of West Virginia is subject to a 30-day public comment period and final court approval.

    For more information on the settlement: http://www2.epa.gov/enforcement/al-solutions-inc-settlement

  • Chemical spill a blow to W.Va. capital’s economy

    environmental Strategist™, between the lines:  This environmental loss below is a very simple real life example of why environmental Strategist state that every business is impacted by environmental exposures.  While the company that caused the spill is probably toast, how are the impacted third party businesses going to be compensated for being forced to shut down?  What about defense cost, third party property damage, third party business income…?  What about employees not getting paid because their employer was forced to shut down?  This means bills are going to be paid late so other business are also going to be impacted.  And so on and so on…

    Environmental losses can cut deep and wide with those they impact.  Since every business is impacted by environmental exposures, common sense tells us businesses must have an environmental Management Strategy (eMS) that shows how to manage and transfer their environmental exposures.  Why has an eMS become part of “Best Practices” for business?  Because common sense tells us without our environment nothing else really matters because we’re toast.

    For more on developing and executing an eMS go to www.estrategist.com.

    Chemical spill a blow to W.Va. capital’s economy

    Brendan Farrington and Jonathan Mattise , AP Business Writers, 7:59 a.m. EST January 12, 2014

    CHARLESTON, W.Va. (AP) — On the third day without clean tap water, business owners with empty dining rooms and quiet aisles of merchandise around West Virginia’s capital were left to wonder how much of an economic hit they’ll take from a chemical spill.

    Most visitors have cleared out of Charleston while locals are either staying home or driving out of the area to find somewhere they can get a hot meal or take a hot shower. Orders not to use tap water for much other than flushing toilets mean that the spill is an emergency not just for the environment but also for local businesses.

    A water company executive said Saturday that it could be days before uncontaminated water is flowing again for about 300,000 people in nine West Virginia counties. The uncertainty means it’s impossible to estimate the economic impact of the spill yet, said the leader of the local chamber of commerce.

    Virtually every restaurant was dark Saturday, unable to use water to prepare food, wash dishes or clean employees’ hands. Meanwhile, hotels had emptied and foot traffic was down at many retail stores.

    “I haven’t been able to cook anything at home and was hoping they were open,” Bill Rogers, 52, said outside a closed Tudor’s Biscuit World in Marmet, just east of Charleston. “It seems like every place is closed. It’s frustrating. Really frustrating.”

    In downtown Charleston, the Capitol Street row of restaurants and bars were locked up. Amid them, The Consignment Shop was open, but business was miserable. The second-hand shop’s owner said she relies on customers who come downtown to eat and drink.

    “It’s like a ghost town,” Tammy Krepshaw said. “I feel really bad for all my neighbors. It’s sad.”

    The person she doesn’t feel bad for is Freedom Industries President Gary Southern, who told reporters the day before that he was having a long day and quickly wrapped up a news conference on the chemical spill so he could fly out of the area.

    “People want answers. They deserve answers,” Krepshaw said.

    The emergency began Thursday, when complaints came in to West Virginia American Water about a licorice-type odor in the tap water. The source: the chemical 4-methylcyclohexane methanol that leaked out of a 40,000 gallon tank at a Freedom Industries facility along the Elk River. State officials believe about 7,500 gallons leaked from the tank, some of which was contained before flowing into the river. It’s not clear exactly how much entered the water supply.

    Thirty-two people sought treatment at area hospitals for symptoms such as nausea. Of those, four people were admitted to the Charleston Area Medical Center but their conditions weren’t available Saturday.

    Federal authorities, including the U.S. Chemical Safety Board, opened an investigation into Thursday’s spill.

    By Saturday morning, FEMA said it had delivered about 50 truckloads of water, or a million liters, to West Virginia for distribution at sites including fire departments.

    There’s no question businesses have been hurt — particularly restaurants and hotels, said Matt Ballard, president of the Charleston Area Alliance, the state’s largest regional chamber of commerce.

    “I don’t know that it can be quantified at this point because we don’t know how long it will last,” Ballard said. “I’m hoping a solution by early next week so business can get back to normal.”

    While restaurants are having the most trouble, the effect ripples to other businesses, Ballard said. When people go out to dinner, they also shop. And restaurant workers who miss paychecks aren’t spending as much money.

    During the emergency, many people are just staying home, and some of those who aren’t are leaving the region and staying with family and friends who have a water supply. Ballard said that includes one of his employees who is staying in Ohio for the weekend.

    “It’s smart, but it certainly has a negative impact on what would be a normal business weekend,” Ballard said.

    The Alliance is urging businesses owners to check their insurance policies to see if they can make claims over lost business. It plans to hold workshops to assist businesses with those issues, Ballard said.

    In downtown, the store Taylor Books usually fills the 40 seats in its cafe. But the cafe was shut down by the state Department of Health on Friday because it said employees had no way to safely wash their hands before serving customers. On Saturday only three people sat in the bookstore using the wireless Internet. Manager Dan Carlisle said he canceled a musician scheduled to play that night and the store was going to close five hours early.

    “It’s pretty annoying,” Carlisle said about Freedom Industries’ response to the spill. “I feel like you should just be honest with people immediately.”

    Some bars have remained open, but they’ve seen a large drop in business. State officials were working Saturday on alternative sources of water that may allow restaurants to reopen.

    “We will work around the clock, 24-7, and try to open … as many businesses as possible in the next couple of days,” said Dr. Rahul Gupta, health officer for the Kanawha-Charleston and Putnam County boards of health.

    Several businesses that had arranged other sources of water were inspected Saturday. Gupta said health officials considered the closures’ impact on workers when they decided to allow businesses to reopen if they have potable water.

    “This is not only the businesses but also the folks that work in those businesses,” he said.

  • Lead tests close downtown Helena DEQ building

    environmental Strategist™ (eS), between the lines:   Caught the fox in the hen house!

    I had an accountant many years ago and the first time I went into pick up my paper work for filing my taxes we spent some time getting to know each other.  During the conversation he told he never balanced his own check book.  I thought to myself do I want to depend upon someone with my finances who did not even perform the most basic of accounting functions, balancing your own check book?  Needless to say I switched accounts.

    When it comes to managing the environmental exposures impacting businesses, we need to be on the same page that in today’s business environment, government environmental regulation is just a bump in the road.  Private business understands to compete in today’s business environment, managing the environmental exposures impacting your operations has become part of “Best Practices”.

    Besides do you want to put your company’s future in the hands of someone that can’t follow the most basic of environmental principals, or what government regulation calls environmental due diligence.  Environmental site assessments (Phase I, Phase II…) are performed so you can determine if you are buying an asset or a liability.  Try getting a commercial property loan from a bank without evidence of environmental due diligence.    Not everyone is as fortunate as the Montana DEQ with access to the tax payers pocket book to take care of their lack of following their own environmental regulations.

    For more on managing your environmental exposures to drive growth and profits go to www.estrategist.com.

    eS Risk Management Strategy:  As this article points out the cost to investigate and test for environmental liabilities can get to be very expensive.  Just a few of the benefits of environmental insurance versus self insuring is environmental insurance can pay for claims investigations such a lead testing, medical screenings, along with third party bodily injury, first and third party business income, remediation costs, legal fees….  When it comes to managing and transferring a business’s environmental exposures there is just one question a business needs to answer.  Question:  Based upon our business model, are we better off transferring our environmental exposures for fractions of a cent on the dollar or self insure and wait until an environmental loss occurs and pay 100 cents on the dollar out of our pocket for claims management, legal fees, investigation costs, third party bodily injury, third party property damage, first party clean up….

    October 28, 2013 3:30 pm  •  By MATT VOLZ Associated Press

    HELENA – The state Department of Environmental Quality closed its downtown Helena building on Monday after finding lead levels up to 40 times higher than federal standards in ceilings throughout the former National Guard armory.

    The results have prompted testing of the air and surfaces in the building’s work areas to find out whether employees have been exposed to lead, DEQ director Tracy Stone-Manning said. The results are due Wednesday.

    “Out of an abundance of caution, we chose to close the building,” Stone-Manning said.

    The employees are on paid leave through Wednesday. They and former employees who worked at the location are being asked to take free blood tests to determine whether they have been exposed, Department of Administration Director Sheila Hogan said.

    Exposure to high levels of the toxic metal can result in lead poisoning, which can eventually lead to brain and kidney damage and anemia, according to the federal Centers for Disease Control and Prevention.

    Even low levels of exposure can damage an unborn child’s nervous system and affect behavior and intelligence, according to the CDC.

    DEQ officials are asking employees who were pregnant or nursing when they worked in the building to test their children.

    The state took over the building at the intersection of Last Chance Gulch and Euclid Avenue in 2002, and it now houses nearly 100 workers of the DEQ’s remediation division.

    The remediation division, which oversees investigations and cleanup of contaminated sites across the state, now finds itself looking for a temporary home while its own offices are tested for contamination.

    “The irony is not lost on us,” Stone-Manning said. “But the reason we are asking these detailed questions is because we are the DEQ and the remediation division.”

    It is unclear if or when the workers will return to the building. Even if the additional tests turn up acceptable airborne lead levels, the lead found in the initial tests above the ceiling tiles must be cleaned and abated, DEQ officials said in a memo to staff.

    The building was constructed in 1942 and housed a firing range for the Montana National Guard. The range was closed in 1994 and remediated for lead, Hogan said.

    But only the range was tested and cleaned, not the rest of the building.

    Medical screenings of field employees in August 2012 showed higher than average levels of zinc protoporphyrin, an indicator of possible elevated lead levels in the blood, in six to eight workers, DEQ spokeswoman Lisa Peterson said.

    Previous tests had been conducted from 1994 to 2009 in individual rooms after employees there reported health complaints, she said.

    “We have had employees inform us of symptoms, however, we have no evidence at this time that they were related to lead exposure,” Peterson said.

    Rather, DEQ officials identified lead testing as a “data gap” in their information, and this month’s initial tests were conducted as part of a plan to identify any and all environmental hazards in the building.

    The plenum, or the area above the ceiling tiles, was tested in 22 areas of the building on Oct. 16 and 18. On Friday, the results found lead dust levels higher than the federal standard for commercial properties of 40 micrograms per square foot in 14 of those 22 areas, according to a copy of the laboratory results.

    One area above the second-floor men’s bathroom tested for 1,600 micrograms per square foot, which is 40 times the federal standard.

    Stone-Manning said there are many questions still to answer, including why it took more than 10 years to find out about the potential lead hazards. She said officials will put together a scientific and historical analysis to answer those questions.

  • Hydraulic Fracturing: Latest Developments and Trends

    environmental Strategist™, between the lines:  Fracking has been around for a long time.  With the oil and gas industry boom taking place in the United States it’s critical you have an understanding on fracking, resources used and potential third party impacts.

    environmental Strategist™ Position:  While this article takes a more negative stance, the bottom line is, in the near future, as long as people want to drive cars, fly on vacation / business, run industry… there will be demand for oil and gas resources.  Finding ways to utilize these resources that has the least amount of impact on human health and the environment is the goal.  In order to do so we have to be educated, pro / con or otherwise and with enough information you can make informed decisions.  This is just one piece of information.

    By Adam Orford /  October 6, 2013

    Hydraulic fracturing (commonly called “fracking”) remains one of the most controversial environmental issues of the day. The process involves breaking open otherwise impermeable oil and gas bearing geologic formations using a pressurized mixture of water, “proppant,” and chemicals.

    As the hydraulic fracturing industry matures and the nationwide controversy enters its fourth year, the legal landscape continues to change on numerous fronts. Continuing to identify trends within the massive amount of news remains an important task for those following the field, and this article seeks to highlight some of the most important recent developments. From chemical risks to water resources, from old battles over local bans to new battles over sand mines; governments, environmental interests, and industries across the country continue to struggle with governance of the fracking industry.

    Fluid Chemicals, Storage, and Disposal – the Blackside Dace Die-off Report

    Many opponents of hydraulic fracturing have emphasized the unknown risk characteristics of the chemicals used in the development of fracked oil and gas. They argue that the process has caused or has the potential to cause subsurface pollution of drinking water resources or to harm sensitive environmental receptors. They contend that fracturing may lead to the migration of unknown and potentially toxic chemicals into water resources. Proponents of hydraulic fracturing, on the other hand, contend that the fracturing process itself – occurring deep underground and geologically separated from near-surface water resources – is not likely to cause releases of chemicals to groundwater, and that a better focus is on well construction and integrity, and fluid handling and storage above ground. See generally A. Orford, Hydraulic Fracturing: Legislative and Regulatory Trends, Marten Law Environmental News (Oct. 4, 2011).

    The U.S. Geological Survey and Fish and Wildlife Service recently released a joint report which is likely to provide ammunition to both sides of this argument. In Histopathological Analysis of Fish from Acorn Fork Creek, Kentucky Exposed to Hydraulic Fracturing Fluid Releases, published in August in the Southeastern Naturalist,[1] federal scientists concluded that a surface spill of hydraulic fracturing fluids into a previously pristine stream inhabited by the blackside dace, a federally listed threatened fish species, was likely to have been the direct cause of a major die-off of that and other species in the stream. Although unable to identify precisely which chemicals were spilled (due to limitations on fluid chemical disclosure requirements), the federal scientists determined that immediately following the spill the stream’s pH dropped from 7.5 (neutral) to 5.6 (acidic), while stream conductivity increased dramatically, indicating the presence of dissolved heavy metals. Dead fish exhibited gill lesions consistent with exposure to acidic water and heavy metals, and thus the hydraulic fracturing fluid release was linked strongly to the die-off. This study is possibly the first to link a surface release of hydraulic fracturing fluid to significant ecologic harm, and certainly the first related to a federally listed species.While the facts underlying the report tend to support the argument that focus should be on surface and near-surface operations, not deep fracturing, the Kentucky blackside dace incident is likely to be influential in discussions over hydraulic fluid handling, storage, and disposal regulation going forward.

    Water Resources and Scarcity – The Rise of Recycling and Acidization

    The debate over hydraulic fracturing started with concerns about water quality, but greater concern may be with impacts on limited water resources. See A. Orford, Water Resources – Not Just Water Quality – Gains Attention of Opponents to Hydraulic Fracturing, Marten Law Environmental News (Apr. 22, 2013). Recent reports lend some support to these concerns. Ceres, a respected organization for the promotion of sustainable business practices, recently issued a report (available at this link) entitled Hydraulic Fracturing & Water Stress. Its core message – that shale plays are often located in water-stressed areas – supports the argument that industry needs to do everything it can to manage its water use. As one example of what can happen if this is not done, a recent report from the Texas Commission on Environmental Quality estimates that, given ongoing drought conditions and a large increase in groundwater withdrawals for oil and gas development, over thirty Texas communities face the unprecedented risk of running out of water entirely by the end of 2013.[2]

    Industry is not unaware of these challenges, and entrepreneurial companies have been busy developing technology to minimize water usage in hydraulic fracturing. These technologies include both equipment to process and recycle used frac water (separating chemicals from flowback and produced water for reuse), and development of methods to better utilize brackish (salty) groundwater in the hydraulic fracturing process, minimizing the need for freshwater withdrawals. Currently, such methods are generally voluntary. The interesting question from a business perspective is whether (or when) such technologies will become cost-effective enough to be put into widespread use. Following from this, it will be important to watch the extent to which regulatory bodies, particularly state oil and gas agencies, impose limitations on freshwater withdrawals or require the use of recycled water over time.

    In California – a state familiar with water scarcity – industry is looking to a third, more controversial option to avoid a water scarcity problem.[3] The term “acidization” is not yet a household word, but in California it may become one in short order. In brief, Californian oil and gas producers face unique challenges due to California’s unique geology, transformed by earthquakes over millennia into a complex and fragmented jumble, often not conducive to directional drilling and high volume hydraulic fracturing. An alternative method is to pump mixtures of water and hydrofluoric and hydrochloric acids into the well to dissolve the rock and release the oil and gas trapped within. Acidization requires much less water than hydraulic fracturing – the acid must generally be diluted below 15% concentration in water, but at much lower volumes (the two processes can also be combined: an “acid frac”). It is unclear whether or to what extent such activities would be exempt from regulation under the Safe Drinking Water Act’s hydraulic fracturing exemption (which specifically references “hydraulic fracturing”). See 42 U.S.C. § 300h(d)(1)(B)(ii). In any event, there is little question that hydrofluoric and hydrochloric acids are dangerous hazardous chemicals and environmental and water protection interests have begun to urge California lawmakers to take a closer look at the process, which resulted in an amendment to a bill recently passed in California which would do just that.[4] As hydraulic fracturing has spread west, it will be important to observe the extent to which use of and concern over acidization spreads east – and how the states and federal government will respond.

    Supply Line Warfare – The Battle Over Frac Sand

    In addition to direct assaults on the hydraulic fracturing industry, opponents have started moving down the supply chain to target the makers of process inputs. In the case of hydraulic fracturing, the focus has turned to “frac sand” – the proppant that, together with water and chemicals, allows hydraulic fracturing to work. Frac sand is what it sounds like – silica sand – and makes up 80% of the multi-billion dollar proppant industry. The best sand is very round-grained, has high quartz content, and can withstand very high pressures. It must be mined, and mining requires permits. Consequently, opponents in jurisdictions without any significant oil and gas development have found a way to involve themselves in the debate, joining forces with local interests concerned with the environmental effects – particularly air, light, noise, traffic, and stormwater pollution – associated with frac sand mining.

    The fight has been especially heated in Wisconsin, which hosts the nation’s largest accessible reserves of high quality frac sand, and where over 100 frac sand mining operations have started business in the last several years, largely in previously undeveloped wilderness areas. Wisconsin’s pro-business Walker administration strongly supports the economic benefits and jobs that this increased mining has brought, and is planning infrastructure improvements to permit the industry to expand even further.[5] In response, environmental groups and concerned citizens have begun filing lawsuits over individual mining approvals, particularly with respect to review of the industry’s primary air emission: fine silicate particles smaller than 2.5 micrometers (PM 2.5), which are subject to EPA regulation. It takes around 2,000 tons of sand to frac a well – and the business and environmental stakes of these lawsuits will be very high.

    Other states face similar issues, but have taken different paths. Minnesota, across the Mississippi River, imposes much stricter environmental review standards on its sand mines, but even there new mines have been approved and are operating – over local opposition. In neighboring northeastern Iowa, there is currently only one frac sand mine operating. However, operators have been scouting additional locations, prompting two county governments in northeastern Iowa (the location of the most viable deposits) to impose 18 month mining moratoriums earlier this year.[6] The frac sand mining debates are currently the Midwest’s primary contribution to the larger fight over hydraulic fracturing, and interested parties should keep an eye on sand mining proposals elsewhere.

    Meanwhile, the federal government has become indirectly involved, as the Occupational Health and Safety Administration (OSHA) has just announced a long-delayed proposed rule on crystalline silica exposure (OSHA rulemaking information available at this link) that will affect both mining and hydraulic fracturing operations where exposure occurs. Current rules are over 40 years old, and the new proposed rule would significantly lower the permissible exposure limits (PEL) for workers. OSHA has promulgated a notice of proposed rulemaking, which as of this writing is yet to be published in the federal register. Upon its publication, interested parties will have 90 days to submit comments on the proposed rule.

    Local Bans – Court Challenges Continue

    Finally, continuing a trend that has its roots in local opposition to hydraulic fracturing in the Mid-Atlantic region, some individual municipalities continue to exercise their authority to ban oil and gas development at the local level.

    Local bans on fracking started in upstate New York, where municipalities have won significant victories in court against challenges to their home rule authorities. The towns of Dryden and Middlefield have each passed resolutions banning hydraulic fracturing within their borders. These local ordinances were upheld by New York State trial courts – see A. Orford, Local Bans on Hydraulic Fracturing Upheld in New York State, Struck Down in West Virginia (April 10, 2012). The towns also prevailed in New York State intermediate appellate courts earlier this year. Given the lower courts’ reliance on prior binding precedent from New York’s highest court, the Court of Appeals, it was no surprise that the losing parties (landowners and drilling companies) sought review there. On August 29, 2013, the Court of Appeals agreed to hear argument on both cases, meaning that the question of the legality of local bans in New York state should be finally answered within a year.

    Next door in Pennsylvania, things have taken a slightly different course. The Pennsylvania state legislature passed Act 13 of 2012. Among its provisions, the law specifically preempted local governments from banning oil and gas development. See 58 Pa. CS. § 3304 (Act 13 available at this link). A coalition of local governments challenged the constitutionality of the law’s preemption provisions as impinging upon their ability to protect the health and safety of their residents. In Robinson Township v. Pennsylvania, Case No. 284 M.D. 2012 (July 26, 2012), the Commonwealth Court of Pennsylvania (the state’s special court of appeals for cases involving the Commonwealth) struck down the law’s preemption provisions, paving the way for municipalities in Pennsylvania to enact municipal zoning bans. The decision was appealed and argued to the state’s Supreme Court in late 2012, but no decision has yet come from the six justices who heard the case, prompting speculation that the court is deadlocked and calls for re-argument before a seven-judge court. In the meantime, Pennsylvania lawmakers will consider a proposal to be introduced that would repeal the controversial provisions prior to a decision being made.

    Most recently, a milestone has been reached in a long-running controversy in the city of Dallas, Texas. After leasing land – in a floodplain considered municipal parkland – to a gas developer for $19 million in 2008, the City of Dallas delayed issuing necessary drilling permits after strong public opposition rose to what would be the first hydraulic fracturing to be performed within the City’s limits. On August 28, 2013, the Dallas City Council finally voted to reject the company’s permit applications (the vote was 9-6 for approval, but required a supermajority of 12 to pass). The City’s Mayor has warned that the result of the vote will very likely be a costly lawsuit. A lawsuit in Texas would be one to watch carefully, as it could raise not only municipal home rule issues, but also constitutional takings questions due to the prior lease of the land for development purposes.

    Conclusion

    The above is an overview of some of the most important recent developments in the world of hydraulic fracturing. Many others deserve honorable mention. In Colorado, an appeals court has ruled that plaintiffs need not present prima facie evidence of harm (so called Lone Pine showings) before pursuing discovery in a toxic tort case related to hydraulic fracturing, a decision which was just argued to the state’s Supreme Court.[7] In Pennsylvania, landowners are contending that they are not receiving the royalties they were initially promised in lease agreements, which will likely lead to lawsuits.[8] In North Carolina, a controversial proposal is under consideration to require so-called “forced pooling,” under which landowners would be forced to lease their mineral rights if a certain number of their neighbors do so (a practice intended to protect parties from having the gas stolen from underneath them by migration to the neighboring property, but with obvious property rights implications).[9] Tracking current developments requires acknowledging that after the last several years of hydraulic fracturing, the industry is maturing. Many “firsts” have come and gone; the law is stabilizing and jurisdictions confronting new issues have an ever-larger body of precedent to refer to. Certainly, new fights are brewing, but the industry continues to grow, and opponents in general have yet to slow the train down.

    For more information, please contact Adam Orford or any member of Marten Law’s Energy practice group.

    – See more at: http://www.martenlaw.com/newsletter/20131007-hydraulic-fracturing-developments-trends?utm_source=Marten+Law+News&utm_campaign=ba137c5111-Marten_Law_News_October_17_201310_16_2013&utm_medium=email&utm_term=0_ff00f67215-ba137c5111-222187793#sthash.0SgUGR9X.dpuf

  • Mercury Sediment Carried Forth by California Floods

    environmental Strategist, between the lines:  I don’t care where you own property in the United States, historical contamination is a massive environmental exposure for real estate owners.

    This article gives an excellent overview on the impact storm water runoff has on third party properties from historical contamination.

    This also highlights how historical mining operations are causing environmental liabilities for unsuspecting property owners.  Out of sight, out of mind is the attitude of the masses but this has proven to be catastrophic for tens of thousands of real estate owners.

    I recently drove from Denver to Aspen, throughout the mountains you can see old mines scattered along the hill sidess.  Each one of these mines represents a contamination source to the local environment.  A number of years ago Copper Mountain Ski area in Colorado was cited for exacerbating contamination while performing their snow making operations.  Copper Mountain was pulling water from the river that flows along the base of Copper Mountain for snow making.  Unknown to Copper Mountain was that the river is full of old mine tailings causing contamination.  When Copper Mountain pulled the contaminated water from the river for snow making and spread it on their ski runs they exacerbated the extent of the contamination.

    Mercury Sediment Carried Forth by California Floods

    From: Robin Blackstone, ENN
    Published October 29, 2013 01:59 PM

    Mercury contamination in sediment has been a big concern in the Central Valley lowland areas of California. But associate researcher from the University of California, Michael Singer has unearthed new information and considerations utilizing modern topographic datasets and modeling to track mercury-laden sediment. Singer hypothesizes that the progradation process resulting from 10-year flooding events within the valleys below the Sierra Nevada Mountains are the key to understanding and tracking the presence of mercury. Singer has connected the mercury amalgamation process, which was used to extract gold from the mountains during the 19th century with the current high incidence of mercury in regional delta sediment.  

    Documented by Singer, the progradation process results from a combination of flood driven fan erosion and sediment redistribution over time into the valley. Of particular note are the floods of 1986 and 1997 of the Yuba River, which churned up deep river valley sediments containing toxic remnants of the gold mining amalgamation done more than 150 years prior.

    The ecological impact of mercury presence throughout the sediment is significant because mercury is taken up into the food webs. This coupled with regional shifts in climate, poses a huge risk to the lowland ecosystems and the human population because many people eat fish from this system.

    The initial discovery of the connection between the sediments and the gold mining was happenstance as the research team identified huge pockets of coarser sand in amongst sediment. This led them to ask why there was so much sand in the area.

    “We thought that was quite strange because the floodplains around us were so much finer — composed of silt and clay materials,” recalled Singer. “So we followed the signs and ended up in a huge sand mine. They were mining sand by the truckload for the construction industry and said they would be doing so for at least the next several decades.”

    Singer posits that because the upstream Yuba was the biggest gold-mining drainage of all the Sierra drainages used in the 19th century, it made sense to suspect the presence of possible mercury.

    The research team compared gold rush data with modern topographic datasets, which showed that the Yuba River was progressively cutting through the sediment and in the process leaving behind massive contaminated terraces along the riverbank. Flood data and modeling indicate that these terraces move only when a flood event is big enough to saturate them so that the terraces fail and the mercury-laden sediment is carried and driven downstream.

  • Brownfields: Revisions Could Protect More Buyers of Contaminated Property

    environmental Strategist™ (eS), between the lines:  For years eS has shared strategies on the tremendous opportunities Brownfields offer.  The basic purpose of Brownfields is to be economic multipliers by creating jobs and increasing tax revenue.  This is accomplished through redevelopment and / or enhancing a property that is underutilized due to actual or perceived contamination. 

    Since Brownfields are economic multipliers’ there are a variety of incentives for those redeveloping Brownfields.  Below is an overview and update on some Brownfield items.  Pay attention to what it talks about with Vapor Intrusion.  Vapor Intrusion is a huge exposure that just in the last few years has been getting more attention. 

    eS business opportunity:  As the Competitive environmental Intelligence (CeI) below starts out, “An improving economy is bringing more developers and investors back into the brownfields market”.

    Brownfields impact a variety of business professionals (attorney’s, bankers, accountants, insurance agents, realtors, engineers, contractors, municipalities, developers…) which means each of these business professionals can drive their growth with Brownfields.  To learn more about the opportunities Brownfields offer go to www.estrategist.com.

    The environmental insurance industry has created an entire menu of insurance products available for Brownfield projects.  The CeI below was written by an attorney.  As a general rule, to date, the vast majority of attorneys are not familiar with the environmental insurance products available to fill in gaps created by their legal contracts and environmental regulations.  After the fact, I have heard time and again about Brownfield projects not culminating due to the inability to secure financial assurances related to environmental liabilities.  This is what environmental insurance is designed to accomplish

     

     

    Brownfields: Revisions to EPA “All Appropriate Inquiries” Rule Could Protect More Buyers of Contaminated Property from Liability

    By Dustin Till – October 6, 2013

    An improving economy is bringing more developers and investors back into the brownfields market. As shovels turn dirt at what were once service stations, factories, and dry cleaners, developers and investors are again asking their environmental counsel how they can minimize or avoid liability for historic contamination on developable land. Into the mix comes EPA, which recently announced plans to revise its so-called All Appropriate Inquiry standard that lenders and developers, and their environmental counsel, use to assess whether a new property owner is exempt from liability under CERCLA, the federal Superfund law.

    In a Federal Register Notice published on August 15, 2013, EPA proposed to adopt a new ASTM International standard (ASTM E1527-13), which would revise the criteria used to satisfy the All Appropriate Inquiries requirement via a Phase I Environmental Site Assessment (ESA). The new standard changes certain definitions in order to better differentiate between traditional brownfield sites (e.g., sites with unremediated contamination), and former brownfields that have either been cleaned up to unrestricted levels, or that have obtained regulatory closure subject to engineering controls or land use restrictions. The proposed standard also emphasizes the assessment of the potential for vapor migration, so as to be more definite as to where it presents an environmental risk.

    In brief, ASTM E1527-13 makes three notable changes to the Phase I process, discussed in further detail below. It: 1) revises the definitions of Recognized Environmental Condition (REC) and Historical REC (HREC) and adds a new definition for Controlled Recognized Environmental Condition (CREC); 2) adds standards for evaulating the potential for vapor intrusion in a Phase I ESA; and 3) revises standards for regulatory file review.

    EPA’s proposed rule clarifies that a Phase I ESA consistent with the new ASTM E1527-13 standard is not the only option for satisfying the All Appropriate Inquiries requirement. Parties may continue to rely on the standards EPA developed in its 2005 All Appropriate Inquiries Final Rule. See EPA Issues “All Appropriate Inquiry Rule” to Promote Brownfield Redevelopment, Marten Law Environmental News (Nov. 9, 2005).

    EPA’s proposal is a direct final rule. The agency accepted public comments through September 16, 2013, and could still make some changes before the rule becomes effective on November 15, 2013.

    I. All Appropriate Inquiries – the Key to Three CERCLA Defenses

    CERCLA broadly imposes liability on current and past owners and operators of contaminated property, as well as other parties who generate and transport hazardous substances.[1] CERCLA liability is strict and is imposed without regards to fault. CERCLA’s unforgiving liability scheme ensures that “polluters pay.” At the same time, it imposes liability on innocent parties who have no connection with hazardous substance releases other than purchasing (often unwittingly) a previously contaminated site, or perhaps even worse, purchasing property with no historic use of chemicals that has been contaminated by hazardous substances migrating from a nearby parcel.

    As initially acted, CERCLA’s affirmative defenses to liability were limited to those releases caused by an act of God, an act of war, or a third party in certain circumstances. The third-party defense shields an otherwise liable party who demonstrates, among other things, that the contamination was caused solely by “an act or omission of a third party other than an employee or agent of the [landowner asserting the defense], or than one whose act or omission occurs in connection with a contractual relationship, existing directly or indirectly, with the [landowner] …”[2]

    Congress has amended CERCLA to add three additional liability exemptions for innocent landowners, contiguous property owners, and bona fide prospective purchasers. Each of those defenses turns on a showing that All Appropriate Inquiries were made prior to the purchase.

    A. The Innocent Landowner Defense

    The original third-party defense was largely useless to parties who purchased contaminated properties because purchasers will always have a contractual relationship with all predecessors in title by virtue of the deed.[3] Congress attempted to rectify this in the Superfund Amendments and Reauthorization Act of 1986 (SARA), which established the innocent landowner defense. The innocent landowner defense was intended to protect landowners who, in good faith, acquired property without knowledge of contamination.

    Congress implemented the innocent landowner defense by revising the definition of “contractual relationship” to exclude transfers of ownership of land where the owner acquires the land after the disposal of hazardous substances has occurred, and when the owner did not know, and had no reason to know, of the contamination.[4]  To establish that it did not know, and had no reason to know, about contamination, a party seeking to avail itself of the innocent landowner defense must demonstrate (among other things) that it undertook “All Appropriate Inquiries” prior to purchasing the property.[5]

    SARA, however, did not define what steps a prospective purchaser must take to satisfy the All Appropriate Inquiries requirement. The result – CERCLA’s ambiguous, and often elastic, liability scheme continued to make investors wary of redeveloping property that was – or even remotely might be – contaminated.

    B. The Contiguous Property Owner and Bona Fide Prospective Purchaser Defenses

    Congress again attempted to rectify the problem in 2002, when it passed the Small Business Liability Relief and Brownfields revitalization Act (the Brownfield Amendments). The Brownfield Amendments established new exemptions to CERCLA liability, including the contiguous property owner and bona fide prospective purchaser exemptions. Under the contiguous property owner exemption, property owners whose land is (or may become) impacted by contaminants migrating from neighboring parcels are exempted from liability, subject to a number of restrictions.[6] Under the bona fide prospective purchaser exemption, a land owner who acquires ownership of a facility and demonstrates that “all disposal took place before the purchase” is exempted from liability, again subject to an number of restrictions.[7]

    Like the innocent landowner exemption, the contiguous property and bona fide prospective purchaser exemptions turn on a showing that the landowner conducted All Appropriate Inquiries prior to purchasing the property. Recognizing that the requirement remained ambiguous and subject to varying judicial interpretations, Congress directed EPA to develop rules establishing the standards for All Appropriate Inquiries.

    II. EPA’s 2005 All Appropriate Inquiries Rule

    In 2005, EPA published its long-anticipated final rule establishing standards and practices for conducting All Appropriate Inquiry.[8] In general terms, the rule requires parties to investigate past uses and ownership of a property and visually inspect the property to identify conditions that indicate releases or threatened releases of hazardous substances.

    Relevant here, EPA’s rules provide that compliance with ASTM 1527-5 (“Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process”) and ASTM E2247-08 (“Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property”) satisfy the All Appropriate Inquiries requirements.[9] Under the ASTM standards, the purpose of the Phase I ESA is to identify any and all Recognized Environmental Conditions (RECs), which are indications that a site is, or may be, impacted by hazardous substance releases.

    The Phase I must also identify “historical” Recognized Environmental Conditions (HRECs), which are environmental conditions that in the past would have been considered a REC, but which may or may not be considered a REC currently.

    Like EPA’s rules, the ASTM standards detail the steps that must be taken to identify RECs and HRECs, including interviews, record reviews, and site reconnaissance.

    III. EPA’s Proposed Amendments to the All Appropriate Inquires Standard

    EPA’s current rulemaking flowed from ASTM International’s decision to revise its standard for Phase I ESAs, i.e., ASTM E1527-05. Earlier this year, ASTM International approved its updated Phase I ESA standard, and submitted it to EPA for formal approval, including a determination that it is compliant with the All Appropriate Inquiries rule.

    ASTM E1527-13 makes three notable changes to the Phase I process: 1) revising the definitions of REC and HREC and adding a new definition for Controlled Recognized Environmental Conditions; 2) adding standards for addressing the potential for vapor intrusion in a Phase I ESA; and 3) revising standards for regulatory file review.

    A. RECs, HRECs, and CRECs

    First, the new standard revises the definitions of REC and HREC, and adds a new definition for Controlled Recognized Environmental Condition. These revisions will help developers and lenders distinguish between sites impacted by hazardous substance releases (or threatened releases), previously contaminated sites that have been cleaned up, and sites that have obtained regulatory closure despite the presence of residual contamination (i.e., sites subject to institutional or engineering controls).

    RECs

    The new standard first simplifies the definition of REC. REC is currently defined as:

    The presence or likely presence of any hazardous substances or petroleum products on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substance or petroleum products into structures on the property or into the ground, groundwater, or surface water of the property. The term includes hazardous substances or petroleum products even under conditions in compliance with laws.

    The proposed standard proposes to redefine REC as:

    The presence or likely presence of any hazardous substances or petroleum products in, on, or at a property due to the release to the environment; under conditions indicative of a release to the environment or under conditions that pose a material threat of future releases. De minimis conditions are not recognized environmental conditions.

    The revised definition has little in the way of substantive differences, but removes some ambiguity, and according to EPA, better comports with the objective of All Appropriate Inquiries as set out in EPA’s regulations.[10]

    HRECs & CRECs

    Under the current definition, HREC is intended to apply to releases that have been cleaned up and have received regulatory closure (for example, a No Further Action or NFA determination):

    An environmental condition which in the past would have been considered a REC, but which may or may not be considered a REC currently ….

    The definition, however, has caused some confusion – particularly in circumstances where regulatory closure was obtained with residual contamination remaining on-site, because such a scenario could arguably qualify as both a REC and a HREC. The revised definition clarifies that HRECs apply only to sites where contamination has been remediated to unrestricted residential use:

    A past release of any hazardous substances or petroleum products that has occurred in connection with the property and has been addressed to the satisfaction of the applicable regulatory authority or meeting unrestricted residential use criteria established by a regulatory authority, without subjecting the property to any required controls (e.g., property use restrictions, AULS, institutional controls, or engineering controls) ….

    The proposed standard also adds a new definition, Controlled Recognized Environmental Condition (CREC), which applies to sites with residual contamination that have been closed via risk-based criteria and may present future obligations for the landowner. CREC is defined as:

    A REC resulting from a past release of hazardous substances or petroleum products that has been addressed to the satisfaction of the applicable regulatory authority (e.g., as evidenced by the issuance of a NFA letter or equivalent, or meeting risk-based criteria established by regulatory authority), with hazardous substances or petroleum products allowed to remain in place subject to the implementation of required controls (e.g., property use restrictions, AULS, institutional controls, or engineering controls ….

    B. Vapor Intrusion

    The potential for vapor intrusion into buildings has been drawing increased regulatory scrutiny in recent years. EPA, for example, published earlier this year two draft guidance documents on addressing and mitigating vapor intrusion.[11] Lenders, in turn, have grown increasingly concerned about the potential impact on property value associated with vapor intrusion. The current ASTM standard is ambiguous on whether a Phase I Environmental Site Assessments should assess vapor intrusion risk. In order to resolve that ambiguity, the proposed standard has several changes intended to emphasize the assessment of vapor intrusion risk. For example, the proposed standard revised the definition of “migrate/migration” to specifically include vapor migration:

    [T]he movement of hazardous substances or petroleum products in any form, including, for example, solid and liquid at the surface or subsurface, and vapor in the subsurface.

    Furthermore, the new standard differentiates between the intrusion of vapors attributable to hazardous waste releases from non-scope indoor air quality issues that are not attributable to hazardous substance releases (e.g., naturally occurring radon).

    C. Regulatory File Review

    The proposed standard has a new section addressing regulatory file reviews, with an emphasis on reviewing regulatory files for adjacent properties. Specifically, the proposed standard states that if the target property or an adjacent parcel is identified in government records, the “pertinent regulatory files and/or records associated with the listing should be reviewed” based on the environmental professional’s discretion.  This requirement is intended to document the validity of information found from searches of agency databases. If the environmental professional decides that a regulatory file review is not warranted, it must justify that decision in the Phase I report.

    III. Conclusion

    Barring adverse public comments, the rule will go into effect on November 15, 2013, without further agency action. If adverse comments are received, EPA will withdraw the direct final rule, address the comments, and issue a new final rule.

    If you have any questions, please contact Dustin Till or any member of Marten Law’s Property Development practice group.

    [1] See generally 42 U.S.C. § 9607(a).

    [2] 42 U.S.C. § 9607(b)(3).

    [3] See, e.g., M&M Realty Co. v. Eberton Terminal Corp., 977 F. Supp. 683, 686 (M.D. Pa. 1997).

    [4] 42 U.S.C. § 9601(35)(A) (definition of “contractual relationship”).

    [5] 42 U.S.C. § 9601(35)(B) (definition of “reason to know”).

    [6] To qualify for the contiguous property owner exemption, the land owner must demonstrate that it: 1) did not cause or contribute to the release or threatened release; 2) is not potentially liable or affiliated with any other potentially liable party; 3) exercises appropriate case with respect to the release; 4) fully cooperates with efforts to respond to the release and restore natural resources; 5) complies with all land use controls and does not interfere with institutional controls; 6) complies with all information requests; 7) provides all legally required notices regarding hazardous substance releases; and 8) conducted all appropriate inquiry at the time of purchase and did not know or have reason to know of contamination. 42 U.S.C. § 9607(q).

    [7] The bona fide prospective purchaser exemption is quite similar to the contiguous property owner exemption. To qualify, the land owner must demonstrate that it: 1) made all appropriate inquiry; 2) exercises appropriate care with respect to any release; 3) fully cooperates with efforts to respond to the release and restore natural resources; 4) complies with land controls and does not interfere with institutional controls; 5) complies with all information requests; 6) provides all legally required notices regarding hazardous substance releases; and 7) is not potentially liable or affiliated with another potentially liable party. 42 U.S.C. § 9601(40).

    [8] Standards and Practices for All Appropriate Inquiry, 70 Fed. Reg. 66,070 (Nov. 1, 2005).

    [9] 40 C.F.R. § 312.11(a). EPA’s 2005 regulations initially allowed parties to comply with the All Appropriate Inquiries standard via ASTM E1527-5. EPA revised the regulations in 2008 to allow parties to also use ASTM E2247-08.

    [10] EPA’s regulations state that the “standards and practices set forth in this part for All Appropriate Inquiries are intended to result in the identification of conditions indicative of releases and threatened releases of hazardous substances on, at, in, or to the subject property.” 40 C.F.R. § 312.20(e).

    [11] EPA has not yet finalized these guidance documents: OWSER Final Guidance for Assessing and Mitigating the Vapor Intrusion Pathway From Subsurface Sources to Indoor Air – External Review Draft and Guidance for Addressing Petroleum Vapor Intrusion at Leaking Underground Storage Tank Sites – External Review Draft.

    – See more at: http://www.martenlaw.com/newsletter/20131007-all-appropriate-inquires-rule?utm_source=Marten+Law+News&utm_campaign=ba137c5111-Marten_Law_News_October_17_201310_16_2013&utm_medium=email&utm_term=0_ff00f67215-ba137c5111-222187793#sthash.VSX8cIQJ

  • FYI on Drinking Water

    environmental Strategist, between the lines:  I am not using the report below to promote a watchdog group, rather we all need to understand the pressure we put on water resources.  Access to clean drinking water has been a world issue for years and in the United States we are being educated about water conservation but not so much about protecting the purity of the resource.

    It really does not matter how much water we have if we can’t use it.  Las Vegas is a perfect example.  Las Vegas sits atop a huge aquifer but the water can’t be used because it is contaminated with nuclear waste from munitions testing.

    Report Finds “Probably Carcinogenic” Chemicals in All Municipal Water Samples Tested

    August 21, 2013

    By Dr. Mercola

    The Environmental Working Group (EWG) has once again released a report that should grab your attention. After analyzing water samples from 201 municipal water systems from 43 states, EWG found chemicals considered “probable human carcinogens” in every single water system they tested.

    The report “Water Treatment Contaminants: Toxic Trash in Drinking Water” was sparked by concerns about water contamination in the wake of Superstorm Sandy, which spilled tens of millions of gallons of sewage into waterways along the East Coast.

    But the results of their analysis clearly indicate a far more widespread and concerning problem that superstorms merely inflame.

    The problem is that chlorine and other water treatment chemicals, in addition to being somewhat toxic in and of themselves, react with ordinary organic particles in the water ( manure from livestock, dead animals, fallen leaves, etc.) to create hundreds of extremely toxic byproducts, which aren’t monitored or regulated at all.

    These toxic byproducts have been labeled “disinfection byproducts,” or “DBPs,” and there are 600 we know about and probably hundreds more that we don’t, says EWG’s senior scientist Renee Sharp.2

    Most people are not aware that DBPs are actually 1,000 times more toxic than chlorine. Just like with ionizing radiation and mercury, any exposure at all in concerning and potentially toxic; there is no safe level.

    The Byproducts of Chlorination May Be Deadly

    Chlorine is the only disinfectant that has been extensively studied, but now many water treatment plants are using another disinfectant called chloramine, the health effects of which are largely unknown. Chloramine is a combination of chlorine and ammonia.3 More than one in five Americans are drinking tap water treated with chloramine.

    Chloramine stays in the water system longer than chlorine and is difficult to remove—it can’t be removed by boiling, distilling, or by standing uncovered. Its vapors can accumulate in indoor air and concentrate in an enclosed area, such as your shower stall, bathroom, kitchen, or apartment.

    Chloramines combine with organic matter in water supplies to create iodoacids and nitrosamines, which are extremely toxic. According to David Sedlak of UC Berkeley:4

    “Nitrosamines are the compounds that people warned you about when they told you shouldn’t be eating those nitrite-cured hot dogs… They’re about a thousand times more carcinogenic than the disinfection byproducts that we’d been worried about with regular old chlorine.”

    There are three principal types of chlorination byproducts, known to produce dangerous health effects:

    • Trihalomethanes (THMs): Found to cause cancer in laboratory animals, and trigger the production of free radicals in your body; chloroform is an example of a trihalomethane; THMs are associated with bladder cancer, gestational and developmental problems
    • Volatile Organic Compounds (VOCs): Lead to central nervous system depression and drowsiness, and can irritate your skin and mucous membranes
    • Haloacetic Acids (HAAs): May cause liver disease in test animals at very high levels, and is a class B2 probable human carcinogen associated with neurological problems, growth retardation, low birth weight, and sperm toxicity

    Why I Recommend Filtering Your Tub and Shower Water…

    Scientists now suspect trihalomethanes in your tap water may be responsible for thousands of cases of bladder cancer each year, based on mounting evidence from multiple studies. But the risk to pregnant women and their unborn babies is also very concerning. Trihalomethanes are associated with numerous developmental and reproductive abnormalities, including stillbirth, miscarriage, low birth weight, and neural tube defects. The neural tube refers to the anatomical structure that develops into your baby’s brain and spinal cord.

    Just the simple act of showering in treated water, in which you have absorption through both your skin and lungs, may pose a significant health risk to you—and to your unborn child, if you are pregnant. Numerous studies have shown that showering and bathing are important routes of exposure for trihalomethanes and may actually represent MORE of your total exposure than the water you drink.

    According to EWG:

    “The EPA standard for trihalomethanes is based on preventing bladder cancer, but the agency has noted that these chemicals may present reproductive and developmental risks as well. A spike that lasts three months exposes a pregnant woman and her fetus to excessive trihalomethane for an entire trimester, a critical window of development. Scientific research has shown that such intensive exposure can have serious consequences for the child.”

    Analysts have found that trihalomethane levels in public water systems vary throughout the year, depending on factors such as farming cycles. But the EPA regulates the chemicals based on an annual average, which means that spikes in the byproducts may go undetected.

    EPA-Regulated Chemicals are Just a Drop in the Bucket

    As concerning as trihalomethanes are, they are just the tip of the iceberg—there are hundreds of other chemicals finding their way into your water supply. The EPA regulates only nine pollutants generated by chlorine or chloramine treatment—four trihalomethanes and five haloacetic acids. These nine regulated chemicals represent less than two percent of the more than 600 unwanted chemicals created by the interaction of water treatment disinfectants and pollutants in source water.

    The legal limits for the nine regulated chemicals are not what either the agency or many independent scientists believe is truly safe. Rather, the regulations represent political compromises that take into account the costs and feasibility of treatment.

    When you add up the total chemicals contaminating public drinking water, the number is beyond staggering. According to William Marks, author of Water Voices from Around the World, there are more than 116,000 human-made chemicals now detected in public water systems!

    In much of the country, farming is a major source of organic pollution in drinking water and a contributor to water treatment contamination. However, with the exception of large confined animal feeding operations, farm businesses are exempt from the pollution control requirements of the federal Clean Water Act. Few states have the authority to compel farms to adopt practices that would reduce agricultural pollution reaching rivers, lakes and bays.

    Other Chemicals You Can’t See or Taste

    Besides DBPs, American drinking water has also been found to contain a host of toxic chemicals, many of which are hormonally active in humans. Some of the most common chemical contaminants include:

    • MTBE (Methyl-tert-butyl Ether): A chemical added to fuel to raise octane number; a potential human carcinogen at high doses
    • Atrazine: According to the documentary FLOW, this US herbicide, banned in the European Union, is the most common water contaminant in the US. Atrazine is an endocrine disruptor known to feminize animals, and is linked with numerous reproductive problems, breast and prostate cancer, and impaired immune function in humans
    • Pharmaceutical Drugs: A 2008 report found a multitude of drugs in the drinking water of at least 51 million Americans, including pain relievers, cancer drugs, antidepressants, oral contraceptives, blood pressure and cholesterol drugs
    • Glyphosate (Roundup): This toxic herbicide is carcinogenic in minute amounts and is linked to more than 20 adverse health effects, including cancer, birth defects and infertility; unfortunately, glyphosate is turning up in the bloodstreams of people all over the world
    • Hexavalent Chromium (Chromium-6): Otherwise known as the “Erin Brockovich chemical,” hexavalent chromium is classified as another “probable carcinogen;” EWG found it in the drinking water of 89 percent of the cities sampled

    Don’t Be Duped by Bottled Water!

    Consumers are frequently mislead into thinking bottled water is safer than tap water, but sometimes it’s even MORE contaminated, as bottled water is less regulated than tap water. Studies reveal that about 40 percent of bottled water is actually tap water, possibly with no additional filtering. When testing bottled water, EWG discovered 38 contaminants in 10 brands, including DBPs, nitrates, caffeine, arsenic, Tylenol, bacteria and industrial chemicals.

    Disposable plastic water bottles are massively polluting our planet. According to the Container Recycling Institute, in the US alone more than 67 million plastic water bottles are discarded each day, adding to an enormous plastic garbage patch swirling around in the middle of the Pacific Ocean. Bottled water is a serious environmental hazard.

    What is the BEST Water You Can Drink?

    The finest sources of water in the world are gravity-fed mountain springs, accessed directly from where they emerge from the earth. This water is naturally filtered and structured by the earth itself, and even contains beneficial living organisms, like certain types of algae.

    If you’re up to the task, you can collect your own spring water to meet your drinking water needs. There is a Find a Spring website that helps you locate the spring nearest you. The website also allows you to add a spring that is not currently in the database. If you don’t live near a mountain, don’t despair, as just about any spring is better than all other available options.

    Typically, natural springs are monitored for contaminants by local municipalities and, best of all, most of these springs are FREE! You can easily store 10 five-gallon jugs in most cars, which can be purchased online. Glass is best, but it is heavy, so you want to use three-gallon glass jars instead. Just remember to wrap glass bottles with some blankets or towels so they don’t bang against each other in your car, and break.

    Recommendations for In-Home Water Filtration

    If collecting natural spring water is not an option, you can filter your water at home. The best solution is to install a whole housewater filtration system. This not only protects your body (inside and out), but also your appliances. I recommend systems that use at least 60 pounds of filter media and are capable of generating eight or more gallons per minute, which makes it possible to handle multiple water applications simultaneously (showers, laundry, and kitchen). This size serves up to a 3,200 square foot home. Of course, if your home is larger, you may need more than one house filtration system. I also recommend looking for a whole house water filter that has three separate stages of contaminant removal:

    • Stage one removes sediment
    • Stage two removes chlorine and heavy metals
    • Stage three removes hormones, drug residues, chemicals, pesticides, and herbicides with a heavy-duty carbon filter

    In terms of the carbon filter, choose granular carbon, not a solid block of carbon. Granular carbon allows for better water flow, better water pressure and improved filtration overall. Also look for NSF certification, which ensures your water filter is meeting national standards. NSF certification is not granted before a product can prove it removes everything it claims to remove. It’s also good to make sure all particles under 0.8 microns are being filtered out of the water. A lower number is actually better, but I recommend 0.8 microns because that covers most bacteria, viruses and VOCs.

    If you can’t afford a whole-house filtering system, then at least filter your shower water, since that’s going to be your most significant source of contamination, for the reasons already discussed.

    Final Thoughts

    Given the information in the EWG’s latest water report, chances are close to 100 percent that your tap water contains carcinogenic pollutants. In addition to the chemical disinfectants themselves, tap water contains disinfection byproducts that, in some cases, are 1,000 times as toxic as the contaminants they are designed to remove. These contaminants have been associated with bladder cancer, birth defects, miscarriage, and a number of other very serious health problems.

    Showering or bathing in contaminated tap water poses even more of a risk to your health than drinking it, so it isn’t enough to simply filter the water you drink. Optimally, you may opt to install in a whole home water filtration system. If you test your water, you’ll want to do it more than once, as DBPs can fluctuate throughout the year, depending on factors such as farming cycles.

  • Man and His Corporation Sentenced for Wetlands Violations

    FOR IMMEDIATE RELEASE
    July 17, 2013
    Florida Man and His Corporation Sentenced for Wetlands Violations in Panama City

    WASHINGTON – Brian Raphael D’Isernia, 69, of Panama City Beach, Fla., and Lagoon Landing, LLC, a corporation controlled by D’Isernia, were sentenced today in federal court in the Northern District of Florida for illegal dredging and felony wetlands violations in Panama City. The two defendants were ordered to pay a criminal fine totaling $2.25 million dollars, the largest criminal fine assessed for wetlands-related violations in Florida history. D’Isernia was sentenced to pay a $100,000 criminal fine, while Lagoon Landing, LLC was sentenced to pay a $2.15 million criminal fine, a $1 million community service payment, and a term of three years probation.

    D’Isernia pleaded guilty to knowingly violating the Rivers and Harbors Act. D’Isernia was charged with dredging an upland cut ship launching basin in Allanton and the channel connecting it to East Bay between December 2009 and February 2010 without obtaining a permit.

    Lagoon Landing, LLC, pleaded guilty to a felony violation of the Clean Water Act for knowingly discharging a pollutant into waters of the United States without a permit. Between 2005 and 2010, Lagoon Landing, through its agents and employees in conjunction with persons using tractors and other heavy equipment, altered and filled wetland areas of property it controlled in Allanton without obtaining a permit. The wetland areas were adjacent to and had a significant nexus to East Bay.

    Lagoon Landing, LLC was also ordered to pay a $1 million community service payment to the National Fish and Wildlife Foundation, a charitable non-profit organization created by Congress. The foundation will use the money to fund projects for the conservation, protection, restoration and management of wetland, marine and coastal resources, with an emphasis on projects benefiting wetlands in and around St. Andrew Bay.

    “The defendants adversely impacted wetlands, which play a critical role in maintaining water quality, providing habitat for fish and wildlife, reducing flood damage, and providing recreational opportunities for the public,” said Cynthia Giles, assistant administrator of EPA’s Office of Enforcement and Compliance Assistance. “The sentences show that EPA, in conjunction with its federal and state law enforcement partners, will vigorously investigate and seek prosecution for those who harm these essential natural resources.”

    In a separate but related civil settlement, Northwest Florida Holdings, Inc., a Florida holding corporation controlled by D’Isernia, entered into an Administrative Compliance Order with the U.S. Environmental Protection Agency (EPA) that will result in the restoration of approximately 58.63 acres of wetlands and upland buffers. The wetlands will be protected from future development by a conservation easement. The corporation also agreed to study the water quality in and around the Allanton and Nelson Street Shipyards; upgrade stormwater protection for the Allanton Shipyard; withdraw applications to convert the launching basin to a marina and create a Planned Unit Development at the Allanton Shipyard; and hire someone to oversee environmental compliance.

    In a second separate but related civil settlement, Northwest Florida Holdings, Inc. entered into a consent order with the Florida Department of Environmental Protection (FDEP) and agreed to conduct stormwater corrective actions and water quality studies at the Allanton Shipyard. The corporation will pay a $9,750 civil fine to the Ecosystem Management and Restoration Trust Fund, and $94,718.25 in severed dredge materials fees to the Florida Internal Improvement Trust Fund.

    In a third separate but related civil settlement, Bay Fabrication, Inc., a corporation controlled by D’Isernia, entered into a consent order with FDEP and agreed to conduct stormwater corrective actions and water quality studies at the Nelson Street Shipyard. The corporation will pay a $6,000 civil fine to the Ecosystem Management and Restoration Trust Fund, and $76,923 in severed dredge materials fees to the Florida Internal Improvement Trust Fund.

    In a fourth separate but related civil settlement, Peninsula Holdings, LLC, a corporation controlled by D’Isernia, entered into a Consent Order with FDEP and agreed to conduct stormwater improvements at property it owns located at 2500 Nelson Street, Panama City, Florida 32401. The corporation will pay a $1,500 civil fine to the Ecosystem Management and Restoration Trust Fund.

    In a fifth separate but related civil settlement, D’Isernia and his wife Miriam D’Isernia, entered into a consent order with FDEP to remove unauthorized fill materials from property located in Panama City Beach, Fla. Brian and Miriam D’Isernia will pay a $250 civil fine to the Ecosystem Management and Restoration Trust Fund.

    These cases were investigated by the EPA Criminal Investigation Division and the Coast Guard Investigative Service, in partnership with EPA Region 4, the U.S. Department of Transportation, Office of Inspector General, U.S. Army Corps of Engineers, U.S. Coast Guard Station Panama City, U.S. Department of Agriculture, and FDEP. These cases were prosecuted by the Honorable Randall J. Hensel, Assistant United States Attorney for the Northern District of Florida.

    This service is provided to you at no charge by the U.S. Environmental Protection Agency.

  • Myrtle Beach groundwater pollution trial headed back to court

    environmental Strategist™, between the lines:  Historically, real estate developers have not factored in environmental exposures in their business models and it has caused for a multitude of real estate development failures.  Regardless of whether the economic collapse in 2008 was at fault or not is not the point. This article gives a very good overview of why businesses are moving away from being litigious to developing and executing an environmental Management Strategy (eMS).  (For more on developing and executing an eMS go to www.estrategist.com)

    What we have learned with being litigious is it can stress time and resources and rarely are the desired outcomes achieved.  Isn’t that a Beach!!!!!

    With an eMS you understand, budget for and use sustainability to leverage your business while virtually eliminating litigation from your business model.

    eS, eMS:  Since every business is impacted by environmental exposures and the fact that the United States has hundreds of millions of acres of contaminated land, sustainable businesses use this to a competitive advantage.

    A simple example are brownfields (for more on Brownfields go to www.estrategist.com).  Let me digress, if a business uses a vendor to manufacture a product at the end of the day they lose partial control of product quality and they show an expense for using a vendor.  With a Brownfield, in many cases you have a physical plant in which you can get grants and tax breaks to clean up and rehabilitate while maintaining 100% control of product quality, creating more jobs, increasing the tax base and at the end of the day you have an asset versus a cost of doing business.

    Myrtle Beach groundwater pollution trial headed back to court 

    Publication Date 07/20/2013
    Source: Sun News (Myrtle Beach, SC)

    July 19–MYRTLE BEACH — A pollution trial that was sidetracked last year by a lack of jurors is scheduled to start Monday in Conway with would-be condominium developers JDS Development of Myrtle Beach Inc. blaming the failure of their project on groundwater contamination caused by electronics manufacturer AVX Corp.

    David and Steve Nance, partners in JDS Development, claim groundwater containing trichloroethylene, or TCE, migrated from the AVX site along 17th Avenue South to their property, causing their bank to withdraw a construction loan for their planned Southern Pines condo project at the intersection with Beaver Road.

    AVX denies the allegations and is expected to argue that the real estate collapse — not polluted groundwater — caused the project’s demise.

    The case — originally filed in January 2008 — was supposed to go to trial last year, but only 20 potential jurors showed up during the first day of jury selection and the trial had to be delayed. Judge Benjamin Culbertson has said at least 200 people will be summoned this time to provide a sufficient jury pool.

    In addition, AVX has filed more than a dozen pre-trial motions that will have to be heard before the trial begins. Most of those motions seek to have certain evidence and testimony excluded from the trial. For example, AVX previously asked Culbertson to bar any references to TCE’s health hazards, claiming such references are irrelevant to the property damages claim and are only an attempt to scare jurors. Culbertson took that request under advisement last year.

    TCE, an industrial degreaser commonly used by the military and others decades ago, can cause cancer after long-term exposure. State regulators do not consider the pollution near AVX to be a health hazard because the groundwater there is not used for drinking water.

    The Nances have said they had all the permits and financing in place for their condo project by September 2007, but their construction loan was canceled once the contamination was made public through a series of reports in The Sun News.

    When the contamination was publicized, the developers “lost all financing for the project and could no longer market the [condos] to prospective buyers,” according to court documents.

    The Nances want AVX to pay an unspecified amount for damages to their 4.4-acre parcel and for the loss of income that would have been generated by the condo sales. The developers had been marketing the condos at prices starting at $180,000.

    AVX has said the groundwater pollution does not hinder development and points to the nearby The Market Common project — where homes, restaurants and shops have been built on former military property polluted with TCE and other contaminants — as evidence. AVX also says the pollution has not permanently damaged property values because the company is cleaning up the groundwater to meet federal standards, a process that should be finished within five years. The Nances’ lawyers dispute that timeframe.

    This is the second of three civil lawsuits filed over pollution generated at the AVX site.

    AVX in 2011 settled a similar pollution lawsuit filed by Horry Land Co. — which owned property across the street from the manufacturer — just as a federal jury trial in Florence was entering its fourth day. AVX agreed to purchase Horry Land’s 21.5-acre parcel after testimony and trial documents showed the company knew about the pollution since at least 1981 but did not try to stop its migration and did not inform adjoining land owners, city, state or federal officials about the problem.

    A class-action lawsuit filed on behalf of property owners near the AVX facility is pending and no trial date has been scheduled.

    Horry Land discovered the groundwater contamination in July 2006, when environmental tests performed in advance of planned development showed TCE levels of up to 18,200 parts per billion in the groundwater. The maximum amount allowed by the U.S. Environmental Protection Agency is five parts per billion.

    Contact DAVID WREN at 626-0281.