AGAT Labs appoints New President and Chief Operating Officer

AGAT Labs recently announced the appointment of Marissa Reckmann to the position of President and Chief Operating Officer at AGAT Laboratories. In her new role, Marissa will be focused on ensuring the preservation of AGAT’s culture and values, including the company philosophies, mission statement and loyalty to all staff and clients.

Marissa Reckmann, B.Sc. (Honours), P.Chem.

Marissa graduated from Lakehead University with a B.Sc. (Honours) degree in Chemistry. Marissa joined AGAT in 2006 and quickly gained experience within each of the company’s geographic and diversified operating divisions. Her positions within AGAT took on new and increasing responsibilities as AGAT transitioned from a local laboratory to the most scientifically diversified laboratory in Canada. During her tenure at AGAT, Marissa gained experience in each of AGAT’s operating divisions and as the company expanded nationally Marissa’s leadership was instrumental in helping AGAT gain a solid footprint for our services from coast to coast in 43 locations. In her varied roles, Marissa was responsible for ensuring overall national coordination of AGAT’s goals and objectives within each of the operating units across Canada. Marissa has proven herself to be a strongly dedicated leader, holding the best interests of her clients and colleagues, while serving to enhance communications and advance scientific services, quality and best business practices.

Marissa is currently President of the Canadian Land Reclamation Association – Alberta Chapter and a member of the Board of Directors of the National Canadian Land Reclamation Association.

The Supreme Court of Canada to Decide who pays to Clean-up Toxic Industrial Sites

The Supreme Court of Canada is hearing a controversial case this week concerning who is responsible for cleaning up toxic industrial sites when a company goes bankrupt.

At stake is potentially billions of dollars in environmental clean-up costs. And entities ranging from governments to Canada’s big banks to oil and gas companies and farmers are all looking to ensure that they don’t end up on the hook for cleaning up toxic sites – many of them in remote rural and northern areas of the country.

The case itself focuses on a small Alberta oil company, Redwater Energy, which entered creditor protection in 2015. Only a few of the company’s assets had value, so the bank wanted to sell those wells to recover some of its debt and abandon the rest of the oil and gas sites. The question became whether Redwater’s assets should help pay its debts or be used to pay for the cleanup cost of its worthless oil and gas wells?

The case will address a fundamental public policy dilemma about what happens when a resource company bites the dust. For instance, every mine in the country has environmental regulations attached to its licence about reclaiming the site when the mine closes.

But if the company goes belly up, does the bank take over those end-of-life responsibilities? If not, is the site abandoned or do taxpayers pick up the hefty tab?

The question for the Government of Alberta and area farmers that had Redwater oil and gas wells on their land became whether Redwater’s assets should help pay its debts or be used to pay for the clean-up cost of its worthless and contaminated work sites?

The Supreme Court case addresses a fundamental public policy dilemma about what happens when a resource company fails. Every mine operation in Canada has environmental regulations attached to its licence about reclaiming the site when the mine closes. But if the company goes belly up, does the bank take over those end-of-life responsibilities? If not, is the site abandoned or do taxpayers pick up the hefty tab when the provincial government pays to clean it up? And how much cost should farmers and other landowners bare for clean-up and reclamation costs?

“We need to be able to ensure the people of Alberta, collectively, are protected,” Alberta Premier Rachel Notley told reporters earlier this week.

The Alberta Energy Regulator (AER) says there are approximately 1,800 abandoned oil and gas sites in that province alone and pegs the cost to remediate them at $8.6 billion.

If the Supreme Court sides with previous court rulings, the AER will likely respond by increasing the orphan levy imposed on well licensees. However, a portion of the expense will inevitably fall to the provincial government, and thus to taxpayers. But if the Supreme Court decides to reverse the decision, it will create hesitancy among lenders. Financial institutions will likely respond by tightening their purse strings as they begin pricing the risk into new loans made out to the industry.

This case has consequences that reach far beyond one small energy company. The Redwater case could act as precedent in other provinces. If the previous rulings are upheld, it will send a clear signal to natural resource companies’ creditors that bankrolling fossil fuel infrastructure, mining projects, and pulp and paper mills without accounting for clean-up costs is not only acceptable, but encouraged in a legal climate where the public—not the polluter—pays.

“The Redwater decision impacts Alberta’s constitutional right to manage its own resources,” said AER spokeswoman Cara Tobin, adding that “By rejecting the polluter pays principle that underlies virtually all of Alberta’s oil and gas legislation, it’s shifted liability from the polluter to innocent third parties and the public.”

The provincial governments of Ontario, which currently has about 2,400 oil and natural gas producing wells, along with British Columbia and Saskatchewan have also joined the Supreme Court Case, which will be heard in Ottawa this week. The Canadian Association of Petroleum Producers is also an intervener in the legal case.

Bitumen floats longer than expected, Natural Resources Canada research shows

As reported in the Vancouver Sun, researchers at Natural Resources Canada are discovering important characteristics of bitumen (the un-processed form of crude oil from the Alberta oil sands) and its interactions with the environment.  Information from the research will be useful in the development of strategies and technologies to clean-up bitumen in the event that is leaks into the environment as a result of a pipeline leak or tanker spill.

One important question with respect to bitumen is whether it sinks or floats when it hits the water. The short answer is it floats, most of the time, according to a growing body of research being compiled by Natural Resources Canada scientists.

Researcher Heather Dettman, a senior scientist with Natural Resources Canada in Devon, Alta., is leading a team looking into some of those questions in research under the federal government’s world-class tanker safety program and ocean protection program.

Postmedia caught up with her and a spokesman from Western Canada Marine Response Corp. to talk about answers.

Bitumen

Q: What is diluted bitumen?

A: Bitumen is the basic, tar-like petroleum product extracted from the Athabasca oilsands, which are oil deposits that were first formed deep underground, but were moved closer to the surface by geological movements of the earth. That allowed microbes to degrade the components that make up gasoline and diesel leaving only its asphalt components. Producers inject those lighter components back into bitumen to make it thin enough to flow through pipelines.

Q: How would rough seas change the behaviour of diluted bitumen?

A: “From a density perspective, it will be floating unless it’s really stormy, then it can go anywhere, the same as any other petroleum product,” Dettman said.  If a storm pushed bitumen ashore, it would pose the problem of having to clean it up on land.

Q: Has there ever been a spill of diluted bitumen on the coast?

A: The biggest spill that the Western Canada Marine Response Corp. has dealt with involved a mix of bitumen and synthetic oil, said spokesman Michael Lowry.  That was the 2007 puncture of Kinder Morgan’s Trans Mountain pipeline in Burnaby that led to about 100 tonnes of oil flowing down storm drains into Burrard Inlet.  In nice weather and close to the industry-funded spill responders’ facilities, Lowry said they were able to recover 90 per cent of the oil.

“Those are ideal conditions; I can’t extrapolate those to other spills for sure,” Lowry said.

Kalamazoo River diluted bitumen spill clean-up

Q: How do you clean up a bitumen spill?

A: Lowry said methods haven’t changed much over the years. Chemical dispersants, in situ burning and mechanical recovery are the techniques that responders use, but since the first two require government permission, the corporation focuses on mechanical recovery — booming and skimming. From its 2007 experience, Lowry said responders learned that its brush skimmers — conveyors that rotate heavy plastic brushes over the surface to collect oil — were particularly effective.

“Conditions play a huge role in recovery,” Lowry said. “High winds are going to impact your ability to respond and rough seas definitely impede your ability to respond.”

Q: What research is being done to improve spill response?

A: Lowry said new tools are being developed, such as advanced booming systems that perform better under tougher conditions, which the corporation deploys.  In the meantime, Lowry said Environment Canada and Natural Resources Canada are putting resources into studying the topic.

Five New U.S. Hazmat Rules to Look for in 2018

By Roger Marks, Lion Technology Inc.

Ask a U.S. dangerous goods (DG) professional to name the most challenging part of his or her job, and you’re likely to hear about dense regulatory standards that overlap and seem to change on a near daily basis.

As dangerous goods shippers, freight forwarders, and carriers roll into 2018, new rules for hazmat air and vessel shipments are already in effect.  In addition, U.S. DOT’s Pipeline and the U.S. Hazardous Materials Safety Administration (PHMSA) plans to start finalizing new hazmat rules as soon as February 2018.

Here, we’ll review the new U.S. DG air and vessel requirements that are mandatory now and review five new or changing U.S. DOT hazmat rules most likely to hit the books as Final Rules this year.

New IATA DGR Rules for Air Shippers

For hazmat air shippers, the 59th Edition of the International Air Transport Association’s Dangerous Goods Regulations, or IATA DGR, is in effect as of January 1, 2018.  The 59th Edition of the IATA DGR includes stricter requirements for lithium batteries shipped by air, a re-ordered list of Class 9 materials in Subsection 3.9.1, and a new Appendix I that details changes planned for air shippers in 2019.

Just before January 1st, IATA published the first Addendum to the 2018 DGR, which includes additional updates for air shippers and airline passengers.  IATA uses these addendums to make ongoing revisions to the current DGR before the publication of the next edition.

2016 IMDG Code Mandatory as of January 1st

Compliance with the latest International Maritime Dangerous Goods Code, or IMDG Code, is also mandatory as of January 1.  Updates made in the 2016 edition, compliance with which was voluntary throughout last year, are now officially in force.  These include new dangerous goods marking and labeling criteria; new packing instructions for certain shipments of engines, lithium batteries, and aerosols; and adjustments to the IMDG Code Dangerous Goods List.

The U.S. DOT, along with other federal agencies, recently released a semiannual agenda of rulemaking activities, many of which will impact hazardous materials professionals in 2018. The five rulemakings below, in progress now, are all scheduled to be published as final rules before Fall 2018.

  1. Enhanced Safety Provisions for Lithium Batteries by Air (RIN 2137-AF20

Expected in February 2018, this Interim Final Rule will harmonize the 49 CFR hazmat regulations with evolving international standards for shipping lithium batteries by air.  International requirements already in effect under the latest IATA DGR will now be adopted into 49 CFR and include:

  • Prohibiting lithium-ion cells and batteries as cargo on passenger aircraft;
  • Limiting state-of-charge to 30%; and
  • Limiting the use of alternate provisions for small cells or batteries by air.

Lithium battery requirements are one area of the hazmat regulations that have changed rapidly in the past decade and will continue to evolve as regulators and industry learn more about the potential and hazards of these batteries.

Melted mobile phone caused from lithium battery explosion

  1. Response to Industry Petitions—RIN 2137-AF09

Under regulations found at U.S. 49 CFR 106.95, interested parties may petition US DOT to amend, remove, or add hazmat regulations to enhance safety, streamline the CFR text, or boost efficiency for shippers and carriers.  In 2018, PHMSA plans to address 19 such petitions from hazmat stakeholders to provide clarification and/or relief within the hazmat shipping regulations.

Petitions to be addressed include an increase to the service life of certain hazmat tank cars and removing the emergency response number requirement for shipments of excepted quantities of hazardous materials.

This final rule is also expected in February 2018.

  1. Miscellaneous Amendments Pertaining to DOT Specification Cylinders (RIN 2137-AE80)

The U.S. DOT will address various petitions from industry stakeholders pertaining to the manufacture, maintenance, and use of DOT specification cylinders.  The rulemaking will also incorporate two existing hazmat special permits into the U.S. 49 CFR Hazardous Materials Regulations (HMR).

DOT expects to issue this final rule in April 2018.

 EPA’s Electronic Hazardous Waste Manifest System

Technically speaking, this one is a U.S. EPA rulemaking — but it does have consequences for hazmat shippers.  The Hazardous Waste Manifest is a shipping paper required for the transport of hazardous waste, and hazardous waste is regulated in transport as a hazardous material by US DOT.

On January 3rd, 2018, the U.S. EPA published a final rule to guide the process of setting and collecting fees from users of the electronic Manifest system.  Rollout of the long-planned e-Manifest system will begin in earnest on June 30th of this year, when the U.S. EPA plans to implement the system for collecting domestic hazardous waste manifests and domestic shipments of State-only regulated hazardous wastes.

As for how it will work, the U.S. EPA has determined that charging user fees to treatment, storage, and disposal facilities (TSDFs) and State-only waste receiving facilities is “the most effective and efficient means” of collecting user fees to fund the administration of the e-Manifest system.

  1. Oil Spill Response Plans for High-Hazard Flammable Trains

    High Hazard Flammable Train

    (RIN 2137-AF08)

This year, the U.S. DOT will promulgate a Final Rule to expand the applicability of oil spill response plans for trains transporting Class 3 flammable liquids in certain volumes and orientations across the train.

The bolstered requirements will apply to High-Hazard Flammable Trains, or HHFTs. A “High-Hazard Flammable Train” is a train carrying 20 cars of a Class 3 flammable liquid in a continuous block or 36 or more such cars across the entire train. Crude oil production and transport volumes have risen significantly in the past decade:  In 2009, 10,800 rail car loads of crude oil traveled by Class I railroad.  By 2015, that number had skyrocketed to over 400,000.1

The U.S. DOT plans to issue this final rule in July 2018.

These likely won’t be the only changes for U.S. hazmat shippers in 2018.  But, by identifying the future regulations or updates that may impact operations, shippers, brokers, and carriers can avoid confusion and panic when DOT finalizes the new rules.

 

Footnotes

  • *See 79 FR 45019

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About the Author

Roger Marks is a researcher and writer at Lion Technology Inc., a provider of 49 CFR, IATA DGR, and IMDG Code dangerous goods training in the US.  Now in his 7th year at Lion, Roger creates content to inform and empower EHS professionals, and closely monitors developing regulatory actions that impact hazmat shipping, hazardous waste management, environmental compliance, and OSHA workplace safety.  Find nationwide public workshops, 24/7 online training solutions, and live webinars at www.Lion.com.

This article is republished and first appeared on OHS Online.

 

Who is Charge of Harbour Clean-ups in Ontario?

As reported by the CBC, Environment and Climate Change Canada (ECCC) does not consider itself as the lead for the clean-up of Hamilton Harbour or Thunder Bay harbour.  ECCC says, while it is leading an ongoing harbour cleanup in Hamilton, it’s not a role the federal agency usually assumes.

That comes as proponents of cleaning up historical pollution in the harbour in Thunder Bay, Ont., try and sort out who is responsible for spearheading similar efforts in the northwestern Ontario city.

“If your question is, does it need a champion? It absolutely does,” Hamilton Mayor Fred Eisenberger said of the importance that an organization with jurisdiction over a polluted site push for a cleanup. “It needs one organization to keep pushing it along.”

“If it continues to be work that is just secondary work for someone off the corner of their desk, then it’s going to be a long, hard, arduous process.”

Efforts to clean up historical industrial pollution at the Randle Reef site in Hamilton’s harbour date back at least 15 years, said Eisenberger, who also used to be the chair of the board for the Hamilton Port Authority.  For years, he said, the port effectively served the lead agency role, coordinating local stakeholders and senior levels of government to move the project forward.

Environment Canada took the reins well into the project’s lifespan, according to Eisenberger and a spokesperson with the federal agency, and only after the involvement of the Hamilton port — who owns the harbour bed at Randle Reef.

In Thunder Bay, determining who should be that advocate has been difficult; the water lots where 400,000 cubic metres of mercury-contaminated pulp fibre sit in the harbour’s north end are owned by Transport Canada but administered by the Thunder Bay Port Authority.

Transport Canada has told CBC News spearheading a cleanup is up to the port, while port officials say they’ve been told by Transport Canada to advise on — not lead — remediation efforts.  The port has pointed to Environment Canada as the most appropriate lead agency, citing its role in Hamilton.

Approximate Area of Contaminated Sediment in Thunder Bay Harbour

‘No standard model’

Just because Environment Canada takes a leadership role in one project doesn’t necessarily mean it will in all cases, a spokesperson with the agency said.

“There really is no standard model for remediating contaminated sites other than that governments try to apply, where possible, the polluter-pay principle,” Jon Gee, Environment Canada’s manager of the Great Lakes area of concern wrote in an email to CBC News.

In Thunder Bay, the industrial companies largely responsible for the legacy pollution no longer exist.

Environment Canada’s lead role in Hamilton was the result of “a long negotiation between the Government of Canada and the other organizations,” Gee wrote. “It is not a role that the Department usually undertakes.”

The jurisdictional confusion in Thunder Bay has caught the attention of at least one legislator in the area.  Officials with the office of Thunder Bay-Superior North MP Patty Hajdu said she has met with members of the Thunder Bay Remedial Action Plan’s public advisory committee and that she will also discuss the matter with the federal ministers of transport and the environment.

Construction of the Randle Reef cleanup project in Hamilton Harbour

Gee said Environment Canada “remains committed” to working with government and other stakeholders on the project.

In Hamilton’s case, funding for the $139 million Randle Reef project is being split among the federal and provincial governments, as well as Hamilton, Burlington, the Hamilton Port Authority and Stelco, a steel company based in Hamilton. It’s expected to be complete in 2022.

In Thunder Bay, a number of remediation options were presented in 2014 to the public, with feedback going into a report.  Environment Canada has said no preferred option was identified because there is no lead agency on the project. Cost estimates at the time ranged anywhere from $30 million to $90 million.

Status of Hamilton Harbour Clean-up

As reported in the Hamilton Spectator, Hamilton Harbour still has an undetermined number of years to go before it can meet water quality and ecological standards acceptable to the International Joint Commission.  The Canada/U.S. bilateral agency that oversees cross-border water issues said in a statement this week that — after three decades — it is growing restless about the slow pace of Great Lakes water improvements on both sides of the border.

“The IJC identifies specific gaps in achieving the human health objectives … for drinkable, swimmable and fishable waters, and recommends that the governments set an accelerated and fixed period of time for effectively achieving zero discharge of inadequately treated or untreated sewage into the Great Lakes,” the agency says.

More than 30 years ago, the commission deemed 43 “areas of concern” on the Great Lakes — including Hamilton Harbour — and only seven sites have so far been delisted, three of which are in Canada.

Two big projects currently underway in Hamilton harbour are expected to lead to major improvements in its water quality. The first is the ongoing work encapsulating the highly toxic coal tar blob at Randle Reef. The Randle Reef Contaminated Sediment Remediation Project is scheduled for completion in 2022 at a total cost of $138.9 million spread out over three phases.

The other ongoing big-ticket item is Woodward Avenue Wastewater Treatment Plant, which is in the second year of a five-year, $340-million upgrade that will raise treatment to a modern tertiary level. This is expected to dramatically reduce discharges into the bay with most notably a reduction of 65,000 kilograms of phosphorus per year.

Status of Thunder Bay Harbour Clean-up

As reported in TB News Watch, the recommendations in a clean-up report of mercury in Thunder Bay, Ontario harbour have yet to be acted upon.  It has been more than three years since a consultant’s report identified options for the management of 400,000 cubic metres (14 million cubic feet) of mercury-contaminated sediment.

Thunder Bay is located at the northwest corner of Lake Superior and has a population of approximately 110,000.

The source of the mercury in the sediment was industrial activity along Thunder Bay’s north harbour for over 90 years including pulp and paper mill operations.  The sediment is contaminated with mercury in concentrations that range from 2 to 11 ppm at the surface of the sediment to 21 ppm at depth and ranging in thickness from 40 to 380 centimeters and covering an area of about 22 hectares (54 acres).

The preferred solution in the consultant’s report was to dredge the sediment and transfer it to the Mission Bay Confined Disposal Facility (CDF) at the harbour’s south end.  That came with an estimated cost of $40 million to $50 million, and was considered the best choice based on factors such as environmental effectiveness and cost.  The consultants also looked at other options, including building a new containment structure on the shoreline adjacent to the former Superior Fine Papers mill.

U.S. EPA Sees New Challenges Ahead for Superfund

by  Loren R. Dunn and Eric L. Klein, Beveridge & Diamond PC

The U.S. EPA released a four-year “strategic plan” in mid-February that continues to emphasize the Superfund program as one of Administrator Scott Pruitt’s top priorities.  While it has been clear since last summer’s Superfund Task Force report that the agency’s new leadership wants to accelerate Superfund site cleanups, the agency’s new strategic plan reveals for the first time that the U.S. EPA also sees emerging challenges ahead for Superfund.

“A number of factors may delay cleanup timelines,” the agency wrote in its strategy document.  These factors include the “discovery of new pathways and emerging contaminants” such as vapor intrusion and per- and polyfluoroalkyl substances (PFAS), and new science such as “new toxicity information or a new analytical method.”

Photo Credit: Michael Paulsen / Houston Chronicle

According to the strategic plan, the emergence of this kind of new information can reopen previously settled remedy determinations – and the Superfund sites that still remain on the National Priorities List (NPL) already tend to be the harder cases, with more difficult patterns of contamination and more complex remedies.  The U.S. EPA flagged in particular its waste management and chemical facility risk programs, where “rapidly changing technology, emerging new waste streams, and aging infrastructure present challenges[.]”

It remains to be seen whether the agency’s cautions in the Superfund section of its strategy document represent a meaningful shift in the agency’s frequently-stated intention to reinvigorate the Superfund program.  Early in his tenure, Mr. Pruitt charged his Superfund Task Force with generating a series of recommendations centered around Mr. Pruitt’s goals for Superfund: faster cleanups, the encouragement of cleanup and remediation investments by PRPs and private investors, and a process centered on stakeholder engagement and community revitalization.  In December 2017, in response to one of the Task Force’s recommendations, the agency released a list of 21 high-priority NPL sites that Mr. Pruitt targeted for “immediate and intense attention,” according to an U.S. EPA press release.  The cautionary notes in this week’s strategic plan are a subtle shift in tone for the U.S. EPA.

At the same time, the document also sets forth a plan for improving the consistency and certainty of EPA’s enforcement activities in the regulated community.  It remains to be seen how U.S. EPA intends to achieve consistency while being responsive to state and tribal interests.

These goals, of course, will depend on the details of implementation, which are not set forth in the strategic plan.  And such details will depend on the agency’s budget, which remains in flux for 2019 and beyond.  For example, U.S. EPA’s proposed budget for fiscal year 2019 sought a roughly $327 million cut in the Superfund program, but the funds were added back into the budget proposal as part of last-minute budget agreement reached in Congress last week, securing the program’s funding in the short-term.   Last year, the administration proposed a 30% cut in the agency’s funding  but Congress balked and eventually approved a budget that cut roughly 1%.

______________________

About the Authors

Loren R. Dunn represents regional and national companies at locations throughout the country in environmental regulation and litigation issues.  Loren’s environmental projects have involved hazardous waste and large multi-party toxics cleanup sites, including marine and fresh water sediment sites, landfills, and natural resource damages claims. He has also conducted extensive work obtaining permits for key facility operations. He has particularly deep knowledge of the following industries: manufactured gas facilities, regulated utilities, smelters and metals refineries, pesticide sites, and large area contamination sites.

Eric L. Klein is an environmental civil litigator and regulatory counselor in the Washington, D.C. office of Beveridge & Diamond, P.C.  He has handled cases in state and federal courts throughout the United States, litigating a variety of complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals.  Mr. Klein frequently litigates both statutory and common law claims, and specializes in challenging and defending technical experts in the litigation of complex environmental torts.

This article was first published on the Beveridge & Diamond PC website.

U.S. EPA Releases Annual Enforcement Statistics

The U.S. Environmental Protection Agency (U.S. EPA) recently released its annual environmental enforcement report.  In its report, which covers prosecutions for the 2016-2017 fiscal year (ending September 30th 2017), the U.S. EPA states that nearly $5 billion (U.S.) had been levied out in criminal fines and civil penalties.  It also stated that enforcement actions have also led to the commitment by companies to clean-up contaminated sites across the U.S.

In contrast, Canada does not issue an annual enforcement report.  However, the total sum of announced penalties by the Canadian federal government totaled approximately $15 million in 2017.

The bulk of the monetary fines levied in the U.S. was from the settlement with Volkswagen.  The company agreed to pay $1.45 billion (U.S.) in civil penalties because of its use of illegal software to foil emissions testing.

The U.S. EPA was alerted by an environmental activist group, The International Council on Clean Transportation in 2013 that on-road emission tests of Volkswagen vehicles were dramatically different than off-road test in garages.  The finding led U.S. EPA officials to discover that Volkswagen had installed software in vehicles to shut off the emissions control system during driving and only turned it on during off-road testing.

A worker tests a red 2016 Volkswagen AG Golf TDI emissions certification vehicle on Sept. 22, 2015. (Photo Credit: Patrick T. Fallon/Bloomberg News)

The $1.45 billion fine levied against Volkswagen still dwarfs the $6 billion penalty paid by BP for the 2010 oil spill from Horizon One oil rig in the Gulf of Mexico.

In contrast, the largest fine ever meted out in Canada was $3.5 million (Cdn.) to Prairie Mines & Royalty ULC in 2017 wastewater spill at a mine.

Included in the report, was the note of the legal commitment made by companies clean-up sites they had contaminated.  The estimated cost of that clean-ups is $1.2 billion (U.S.).

With respect to jail time for environmental criminals, the U.S. EPA prosecuted individuals and U.S. courts meted out a total of 150 years in jail for persons found guilty of environmental offences.  In contrast, the total jail time Canadian courts meted out for environmental offenders was less than one year.

Critics of the U.S. EPA note that the high level of enforcement actions may not continue.  Critics point to an analysis by the New York Times in late 2017 that concluded that the U.S. EPA under its latest head, Scott Pruitt, has initiated about one-third fewer civil enforcement cases than the number under the previous U.S. EPA director.

Avoiding Common Phase Two ESA Errors – Part 2

By: Bill Leedham, P.Geo, QP, CESA.

Last month I discussed some common mistakes I have encountered in reviewing Phase Two Environmental Site Assessment reports, specifically in the initial planning stage, now it’s time to turn our attention to recognizing and reducing errors during the Phase Two ESA field work.

Sometimes, deficiencies that occur in the planning stages of a Phase Two ESA transfer into errors in field procedures.  This can be caused by poor communication between the project manager and field staff (i.e. the PM neglects to inform field personnel of specific project requirements, and/or field staff forget to include important sampling media or potential contaminants of concern).  Full, two-way communication is vital to successful completion of any Phase Two ESA. It’s not enough for senior staff to just assume that less experienced team members understand all the complexities of the sampling plan; nor is it acceptable for a project manager to fail to provide adequate guidance and answers to questions from the field.  I have always thought it was important for junior staff to ‘know what they don’t know’ and encouraged them to ask questions at any time.  When project managers are ‘too busy’ to answer questions and simply tell their staff to ‘figure it out themselves’ everyone loses.

Photo Credit: All Phase Environmental

Despite good intentions and full communication, deficiencies can still occur.  Some are the result of inexperience compounded by poor judgement; some are due to budget limitations or staffing shortfalls; and some are caused through poor sampling protocols.  Some of the more common field sampling errors can include: failure to sample all relevant media at a Site (e.g. no sediment or surface water sampling is undertaken despite the presence of a potentially impacted water body); failure to consider all potential contaminants of concern (e.g. sampling only for petroleum hydrocarbons at a fuel storage site and not volatile parameters like BTEX); failure to sample in locations where contaminants are most likely to occur or be detected (e.g. sampling only surficial or near surface soils, and not at the invert of a buried fuel tank or oil interceptor, or failure to sample groundwater in a potable groundwater situation); and lack of field or lab filtering of groundwater samples for metals analysis (failure to remove sediment prior to sample preservation can skew the results for metals analysis).

Inadequate sampling and decontamination procedures can also bias lab results, leading to inaccurate or faulty conclusions.  When samples are disturbed (such as grab samples of soil collected directly from a drill augur that has travelled through an impacted zone) or collected improperly (e.g. compositing soil samples for analysis of volatile components); the test results can be biased and may not be representative of actual site conditions.  Similarly, failure to properly clean drilling and sampling equipment can result in apparent impacts that are actually the result of cross contamination between sampling points. Consider using dedicated or disposable sampling equipment to reduce this potential. A suitable quality control program should also be implemented, including sufficient duplicate samples, trip blanks, etc. for QA/QC purposes, and inclusion of equipment rinsate blanks to confirm adequate decontamination.

These are only a few of the more common field sampling errors I have come across. In an upcoming article I will discuss other practical methods to reduce errors in Phase Two data interpretation and reporting.

About the Author

Bill Leedham is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (AESAC); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at info@down2earthenvironmental.ca

 

This article first appeared in AESAC newsletter.

TRC enters Canadian Oil & Gas Market and expands existing Infrastructure Practice

TRC Companies Inc. (a U.S. based engineering, environmental consulting and construction-management services) recently announced that it will expand its footprint in Canada in 2018 to take advantage of a rebounding oil and gas market and the country’s increased infrastructure spending.

“The time is right for us to grow our business in Canada and bring more of our unique services and solutions to clients there,” said CEO Chris Vincze.  “We already have a strong infrastructure practice in Canada, and we plan to build upon our existing relationships with a number of Canadian clients for whom we’ve done work in the United States.”

Photo Credit: Transcanada

TRC has hired Michael Koski to spearhead its expansion in Canada.  He will serve as senior vice president of Canadian operations.

“Mike brings a unique blend of engineering, construction, environmental and regulatory skills to the table and will quickly help us scale up operations,” said Ed Wiegele, president of TRC’s oil and gas sector. “Plus he has extensive experience in the Canadian oil and gas market and excellent command of Canada’s regulatory environment.”

Koski, who grew up in Thunder Bay, Ontario, has spent three decades working in the oil and gas sector and has considerable experience with project management, engineering and environmental issues. He is an expert in pipeline routing and has provided expert testimony on the subject, served on technical panels and presented at industry conferences. He has also authored several manuals on the topic for government and industry.

“I look forward to expanding TRC’s services into Canada across all business sectors,” said Koski.  “Companies in Canada are clamoring for the integrated approach, advanced technologies and laser-like focus on client needs that TRC’s is known throughout the industry for.”

TRC already has strong relationships with a number of large Canadian firms, including TransCanada, Enbridge, Kinder Morgan and Canadian National Railway. It has also done a number of infrastructure projects across the country, including locomotive fueling facilities, power distribution system upgrades, capital improvement planning projects and wastewater treatment plants.

About TRC

TRC is a global engineering, environmental consulting and construction management firm that provides integrated services to the energy, environmental, infrastructure and pipeline services markets. TRC serves a broad range of commercial, industrial and government clients, implementing complex projects from initial concept to delivery and operation.

Canadian Government Introduces Amendments to Fisheries Act: Initial Thoughts

Article by  Selina Lee-AndersenStephanie Axmann,and Paul R. Cassidy

McCarthy Tétrault LLP

On February 6, 2018, the federal government announced amendments to the Fisheries Act (the “Act”) aimed at restoring what it describes as ‘lost protections” and “incorporating modern safeguards” to protect fish and fish habitat. The Act, regarded as one of Canada’s principal environmental laws as it is the primary federal statute governing fisheries resources in Canada, includes important provisions for conserving and protecting fish and fish habitat that affect a variety of industries.

The proposed amendments result from a process launched by the government in October 2016, when the Minister of Fisheries and Oceans asked the House of Commons Standing Committee on Fisheries and Oceans (the “Committee”) to review changes to the Act made in 2012 by the previous government of then Prime Minister Stephen Harper. The Report of the Fisheries and Oceans Committee on the Fisheries Act review, entitled “Review of Changes Made in 2012 to the Fisheries Act: Enhancing The Protection of Fish And Fish Habitat and the Management Of Canadian Fisheries” (the “Fisheries Report”) was released on February 24, 2017 and made 32 recommendations to the government. In June 2017, the government released its Environmental and Regulatory Reviews Discussion Paper, which outlined potential reforms and proposed, among other things, that “lost protections” be restored in the Act.

A Quick Summary

Under the proposed amendments, the scope of the Act will be increased to cover all fish, rather than commercial, Indigenous and recreational fisheries (as currently set out in the Act). Unsurprisingly, the government proposes to reintroduce the pre-2012 prohibition on the “harmful alteration, disruption or destruction of fish habitat“, also known as HADD. This means that the concept of “serious harm to fish” under the current Act will be removed. By reintroducing the HADD language, the federal government is also reintroducing old uncertainty in the case law about what precisely constitutes a HADD; whether this will be addressed in guidance from Fisheries and Oceans Canada (DFO) remains to be seen.

Salmon Spawning (Photo Credit: D. Herasimtschuk)

The proposed amendments also include a new requirement to consider cumulative effects, along with increased regulatory powers to amend, suspend, or cancel authorizations. In support of reconciliation efforts, the proposed amendments also provide opportunities to increase the role of Indigenous groups in decision-making under the Act and in managing fisheries and fish habitat.

It does not appear that the pollution provisions in section 36 (prohibiting the deposit of deleterious substances) of the Act will be changed, even though they have long created a scientifically questionable prohibition on the deposit of any substances deemed to be deleterious without regard to their quantity or the actual receiving environment.

A Closer Look

A more detailed look at the proposed amendments is set out below and will be expanded upon in future blogs. From a policy perspective, the proposed amendments are designed to achieve the following objectives:

  • restore lost protections by returning to comprehensive protection against harming all fish and fish habitat;
  • strengthen the role of Indigenous peoples in project reviews, monitoring and policy development;
  • recognize that decisions can be guided by principles of sustainability, precaution and ecosystem management;
  • promote restoration of degraded habitat and rebuilding of depleted fish stocks;
  • allow for the better management of large and small projects impacting fish and fish habitat through a new permitting framework and codes of practice;
  • create full transparency for projects with a public registry;
  • create new fisheries management tools to enhance the protection of fish and ecosystems;
  • strengthen the long-term protection of marine refuges for biodiversity;
  • help ensure that the economic benefits of fishing remain with the licence holders and their community by providing clear ability to enshrine current inshore fisheries policies into regulations; and
  • clarify and modernize enforcement powers to address emerging fisheries issues and to align with current provisions in other legislation.

Within the context of resource development, the following proposed amendments will likely have the greatest impacts on the design, construction and operation of projects going forward:

  • Protecting Fish and Fish Habitat: The federal government is proposing the restoration of protections for fish and fish habitat that were lost with changes in 2012. In particular, it is proposing that all fish and fish habitats be protected, and that the previous prohibition against “harmful alteration, disruption or destruction of fish habitat” be restored. In addition, the federal government is proposing to restore a prohibition against causing “the death of fish by means other than fishing” and to introduce a new requirement to make information on project decisions public through an online registry.
  • Better Management of Projects: The federal government is proposing the development of regulations that clearly define which projects would always require ministerial permits before a project can begin. In particular, it is proposing that projects that would always require ministerial permits be called designated projects, which would be identified based on their potential impact on fish and fish habitat. These are expected to be larger-scale projects. Currently, projects requiring authorization under the Fisheries Actare determined on a project-by-project basis. DFO surmises that the concept of a designated project would provide greater certainty for proponents around process and timelines. DFO’s current practice of issuing letters of advice and ministerial authorizations will continue for projects that are not listed as designated projects. In addition, the federal government is proposing the establishment of new authorities to support the development of codes of practice, which will serve as formal guidance documents for small, routine projects such that, if followed, permits or authorizations are not needed. The actual value of such codes of practice has been the subject of uneven experience in other environmental legislation. However, the codes of practice should, it is anticipated, provide advice to project proponents on how to avoid impacts on fish and fish habitat, and ensure compliance with the Act.
  • Restoring Habitat and Rebuilding Fish Stocks: In order to create more stable and resilient aquatic ecosystems and support the sustainability of fish stocks, the federal government is proposing that DFO be required to consider whether proposed development projects give priority to the restoration of degraded fish habitats. In addition, the federal government is proposing to introduce a requirement to create and publish habitat restoration plans on a public registry after designating an area as ecologically significant where habitat restoration is needed. The Minister will also be given the ability to create regulations related to the restoration of fish habitat and the rebuilding of fish stocks.
  • Reconciliation with Indigenous Peoples: The federal government has stated that proposed changes to the Fisheries Act will help to advance reconciliation with Indigenous peoples by, among other things: (i) requiring consideration of traditional knowledge for habitat decisions and adverse effects on the rights of Indigenous peoples when making decisions under the Act; (ii) enabling agreements with Indigenous governing bodies to carry out the purposes of the Act; and (iii) introducing a modernized fish habitat protection program that would enhance partnering opportunities with Indigenous communities regarding the conservation and protection of fish and fish habitat. It should be noted that DFO’s efforts to help advance reconciliation is taking place within the broader federal government review of laws and policies related to Indigenous peoples, which was initiated in February 2017.

DFO has prepared a comparison of the proposed changes, which is summarized below:

Before Proposed Amendments After Proposed Amendments
Not all fish and fish habitat protected; only those related to a commercial, recreational or Aboriginal fishery protected.

 

Protection of all fish and fish habitat.

 

 

No explicit reference to consideration of the rights of Indigenous peoples, and their unique knowledge, to inform decision making.

 

 

Provided Indigenous traditional knowledge must inform habitat decisions.

Requirement to consider adverse effects of decisions on the rights of Indigenous peoples.

 

Ability to enter into certain agreements restricted to provinces and territories only.

 

Added ability to enter into agreements with Indigenous governing bodies as well as provinces and territories.

 

No provisions regarding the independence of inshore licence holders.

 

 

 

 

Provisions allowing for recognition of social, economic and cultural factors, as well as the preservation or promotion of the independence of licence holders in commercial inshore fisheries.

Enabling regulations to support independent inshore licence holders.

 

No tools to quickly implement in-season fisheries restrictions to address unforeseen conservation and management issues. Ability to put in place targeted short-term measures to quickly and effectively respond to unforeseen threats to the management of fisheries and to the conservation of fish.

 

Uncertainty as to when authorizations are required for development projects. Clarity on which types of projects require authorizations through permitting and codes of practice.

 

Lack of transparency regarding authorization decisions for projects; no requirement to publicly release information on these decisions.

 

Requirement to publicly release information on project decisions through an online registry.

 

 

No tools to address long-term marine conservation. Ability to create long-term area-based restrictions on fishing activities to protect marine biodiversity.

 

No specific provisions to address whales in captivity. A prohibition on fishing cetaceans with intent to take them into captivity unless authorized by the Minister in circumstances where the animal is injured, in distress or in need of care.

 

No legal requirements related to rebuilding fish stocks.

 

 

 

 

Minister must consider whether stock rebuilding measures are in place when making a fisheries management decision that would impact a depleted stock.

Enabling regulations respecting the rebuilding of fish stocks.

Antiquated provision for the management offences under the Fisheries Act, often leading to costly and long court processes.

 

Ability to address Fisheries Act offences outside of court using alternative measures agreements, which reduces costs and repeat offences.

 

No provisions to restore degraded habitat as part of development project reviews.

 

Provisions to consider restoration priorities as part of development project reviews.

 

Insufficient capacity to enforce provisions under the Act.

 

Enhanced enforcement and monitoring capacity on the water and for projects.

 

We will continue to monitor and provide commentary as the proposed amendment legislation makes its way through Parliament. DFO has indicated that regulations and policies are now being developed in consultation with Indigenous groups, provinces and stakeholders to support the implementation of the amendments. Like a lot of environmental legislation, the true impact of the new Fisheries Act will only be meaningfully gauged once its regulations are published.

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Photo Credit: Nature Canada