As a Canadian with 25 years of experience in the environmental business working both in Canada and United States, I “get” that our countries have very close ties. After all, we share a nearly 9,000-km border; the Windsor-Detroit border is the busiest, commercial-land, border crossing in North America. Thanks to the North American Free Trade Agreement, we share the largest, free-trade region in the world.
With all that Canada shares with the US, it’s not surprising that we share some environmental concerns as well. In fact, in recognition of our shared concerns, the International Joint Commission has examined water quality in the Great Lakes and offered suggestions on how the various Great Lakes States and Provinces can improve water quality.
But what are the environmental regulatory trends in the United States? Should Canadians care about what is happening across the border? In talking with my colleagues in the US office, the general consensus is that US regulatory trends have taken a decided turn toward “more active.” And, yes… I think it’s at least worth observing these trends, as they could find their way into future federal or provincial legislation. Below are two recent, environmental, regulatory developments worth noting.
Vapour Intrusion
Apart from the fact that they spell it differently in the US (vapor), our legislation is very similar. Recently, the United States Environmental Protection Agency (USEPA) put forth new guidance that indicates they will no longer use (the long-standing) Occupational Health and Safety Administration (OSHA) guidelines. As stated in a June 2015 document, “EPA does not recommend using OSHA’s PELs (or TLVs) for purposes of assessing human health risk posed to workers by the vapor intrusion pathway or supporting final ‘no-further-action’ determinations for vapor intrusion arising in nonresidential buildings” (OSWER Technical Guide for Assessing and Mitigating the Vapor Intrusion Pathway from Subsurface Vapor Sources to Indoor Air).
This is a very significant change, as action levels for vapour intrusion could change by orders of magnitude. These changes will likely result in mitigation to address vapour intrusion.
Regulated Waters WOTUS
This, too, is a very recent development in the US (May 2015), but is has been years in the making. The crux of the regulatory debate is what exactly constitutes a Water of the United States (WOTUS). This is not a minor question, because if it is a WOTUS, it is also regulated, which brings with it more permitting and monitoring requirements.
Over the past dozen years or so, there were three Supreme Court Cases heard around this WOTUS issue. My colleague, Dr. Michael Sklash, P. Eng., provided technical input on one of these three cases (Rapanos). Still, the issue of regulated waters remained unclear.
In 2014, the US Environmental Protection Agency provided a draft rule, and it received about one million comments! Now that the 300-page final rule has been released, there is concern that many more “waters” will be regulated (e.g., ditches, retention ponds, ephemeral streams). And, of course, there will be those in the regulatory grey area that will require case-by-case analysis (i.e., expensive, legal/technical battles).
Exactly how the new vapour intrusion guidance and WOTUS will impact US businesses will become more evident as they are implemented in the months ahead.
Will these regulatory developments influence future Canadian environmental regulations?
I certainly don’t know, but because we have several clients with operations in both Canada and the US, we’ll continue to monitor these developments and report on them in our Canadian and US blogs. If you would like to receive the Dragun US newsletter, you can sign up when you are on the US website.
If you have any questions or would like additional information, please feel free to contact me (cpare@dragun.com) at 519-979-7300.