Rare Jail Sentence for Environmental Offence in Canada

On August 21, 2018, Collingwood Prime Realty Holdings Corp. and its director, Mr. Issa El-Hinn, were sentenced in the Ontario Court of Justice for offences under the Canadian Environmental Protection Act, 1999 related to contraventions of the PCB Regulations.

The charges stem from old electrical transformers and capacitors in use on the former Goodyear property at 101 Mountain Rd., which is now owned by Collingwood Prime Realty.

The property at 101 Mountain Rd., used to be a Goodyear plant. Erika Engel/CollingwoodToday

The court sentenced Mr. El-Hinn to a 45-day jail term, which will be served on weekends, for failing to comply with an environmental protection compliance order. The Court also sentenced the corporation and Mr. El-Hinn to pay a combined penalty of $420,000 to be directed to the federal Environmental Damages Fund.

On April 30, 2015, Environment and Climate Change Canada enforcement officers launched an investigation following the company’s failure to comply with an environmental protection compliance order. The investigation revealed that two electrical transformers and eight electrical capacitors contained higher-than-allowable PCB levels and that the equipment had not been sent for destruction to an authorized facility. The defendants pleaded guilty on September 26, 2017, to ten counts of contravening the PCB Regulations made pursuant to the Canadian Environmental Protection Act, 1999, and one count of failing to comply with an environmental protection compliance order.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

PCBs are toxic industrial chemical substances that are harmful to aquatic ecosystems and species that feed primarily on aquatic organisms.

Earlier this year, Collingwood Fire Department successfully prosecuted Collingwood Prime Realty Holdings Corp., and its owner El Hinn for multiple fire code violations at the property at 101 Mountain Rd.

British Columbia: Invitation to Participate: Land Remediation Client Survey

The British Columbia Ministry of Environment and Climate Change Strategy is requesting the assistance on B.C. environmental professionals to complete a survey regarding the suite of contaminated site services provided by the Land Remediation Section.  The survey is part of an internal Ministry effort to examine and evaluate the ways in which contaminated sites services are provided in support of administering the Environmental Management Act and Contaminated Sites Regulation, and feedback will inform efforts to improve the client experience in obtaining these services.

The survey takes approximately 10 minutes to complete, allowing for more or less time depending on how many or few contaminated sites services you use. The survey is open for approximately 6 weeks, and will close on September 5, 2018.

Questions regarding the survey can be forwarded to site@gov.bc.ca.

 

Mine fined $100,000 for not Monitoring Effluent

On August 20, 2018, Lupin Mines Incorporated was ordered in the Nunavut Court of Justice to pay $100,000 after pleading guilty to a violation under the Fisheries Act related to the Metal and Diamond Mining Effluent Regulations. Of the total penalty, $80,000 will be directed to the Environmental Damages Fund.

An investigation launched by Environment and Climate Change Canada enforcement officers revealed that Lupin Mines Incorporated did not carry out an environmental effects monitoring study within the prescribed period, contrary to the requirements of the Metal and Diamond Mining Effluent Regulations. Lupin Mines Incorporated has since completed the required study.

Owners and operators of mining companies are required by law to conduct environmental effects monitoring studies that examine the potential effects of their effluent (discharge) on fish populations and aquatic invertebrates.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

Environment and Climate Change Canada is responsible for the administration and enforcement of the pollution prevention provisions of the Fisheries Act, which prohibit the deposit of deleterious substances into water frequented by fish. The Metal and Diamond Mining Effluent Regulations authorize the deposit of effluent, provided that conditions prescribed in the Regulations are observed.

Lupin Gold Mine, Nunavut

New Technology for Mapping DNAPL Contamination

Laser-induced fluorescence (LIF)

As reported in Groundwater Monitoring and Remediation (38(3):28-42), DyeLIF™ is a new version of laser-induced fluorescence (LIF) for high-resolution 3D mapping of NAPLs in the subsurface.   DyeLIF eliminates the requirement that the NAPL contains native fluorophores (such as those that occur in compounds like PAHs) and therefore can be used to detect chlorinated solvents and other nonfluorescing compounds.

NAPLs were previously undetectable with conventional LIF tools. With DyeLIF, an aqueous solution of water and nontoxic hydrophobic dye is continuously injected ahead of the sapphire detection window while the LIF probe is being advanced in the subsurface.  If soil containing NAPL is penetrated, the injected dye solvates into the NAPL within a few milliseconds, creating strong fluorescence that is transmitted via fiber-optic filaments to aboveground optical sensors. This paper describes a detailed field evaluation of the novel DyeLIF technology performed at a contaminated industrial site in Lowell, Mass., where chlorinated solvent DNAPL persists below the water table in sandy sediments..

The DyeLIF system was field tested at a Formerly Used Defense (FUD) facility in Massachusetts in Fall 2013 (Geoprobe® delivery) and again in March 2014 (CPT delivery). The primary field demonstration completed in 2013 included two components: one week of DyeLIF probing and a second week of follow-on soil coring using research-quality direct push (DP) soil coring methods in order to compare DyeLIF results to colorimetric dye shake tests and laboratory analysis.

Several performance objectives were established in the project demonstration work plan and all were met or exceeded. The performance objective for chemical analysis was 70% consistency between positive DyeLIF responses and samples when DNAPL saturations were greater than 5%. The demonstration results showed 100% consistency between chemical analysis and DyeLIF for saturations greater than 1.9% (35 of 35 samples), and 95% consistency for estimated saturations greater than 0.5% (40 of 42 samples).

ESTCP funded Project ER-201121 to demonstrate the DyeLIF technology.  Additional details on the technology can be found at the U.S. Department of Defence Strategic Environmental Research and Development Program (SERDP) and the U.S. Department of Defence Environmental Security Technology Certification Program (ESTCP) link at SERDP-ESTCP.

2D and 3D Conceptual Site Models of a Contaminated Property

U.S. Government RFP for Remediation Services at Superfund Site: Opportunity for Small Business

The U.S. Army Corps of Engineers is planning to issue a Request for Proposals (RFP) sometime in September 2018 as a small business set-aside under NAICS code 562910, size standard 750 employees.  The U.S. Army Corps of Engineers, New England District intends to issue an RFP for a single-award Indefinite Delivery/Indefinite Quantity (IDIQ) remediation services task-order contract for Operable Units (OUs) 3, 4, and 6 of the Raymark Superfund Site in Stratford, Connecticut.  Raymark generated waste containing asbestos, lead, copper, PCBs, and a variety of solvents, adhesives, and resins as by-products of its manufacturing operations. U.S. EPA recently approved one Record of Decision that specified the selected remedies for OUs 3 (Upper Ferry Creek), 4 (Raybestos Memorial Ballfield), and 6 (Additional Properties) of the Raymark Superfund Project. The solicitation will be released on FedBizOpps. https://www.fbo.gov/spg/USA/COE/DACA33/W912WJ18R0003/listing.html

This undated photo provided by the U.S. Environmental Protection Agency shows the Raymark property, in Stratford, Connecticut

U.S. Government RFP for Remediation Services – Small Business Opportunity

U.S. Department of Energy, Office of Environmental Management, Oak Ridge, TN. Recently issued a solicitation for the Characterization, Deactivation/Demolition, and Remediation Services of Low-Risk/Low-Complexity Facilities and Sites for the Oak Ridge Office of Environmental Management.

This procurement will be a total small business set-aside under NAICS code 562910, size standard 750 employees.  DOE anticipates awarding one or more IDIQ contracts for support services in Oak Ridge, Tennessee, in accordance with the Federal Facilities Agreement.

The Y-12 National Security Complex, Oak Ridge National Laboratory, and East Tennessee Technology Park encompass numerous facilities, soils, concrete slabs, containerized and non-containerized debris, and aging legacy waste populations that require investigation and additional characterization to determine appropriate disposal options.

The estimated maximum value of the contract is $24.9M for a period of performance of five years from date of award.  The full solicitation synopsis is available on the DOE Environmental Management procurement website at FedConnect.

An aerial view of the Oak Ridge National Laboratory campus.

Environmental Consultant’s Disclaimer of Liability to Vendor effective against Third Party Purchaser

by Stanley D. Berger, Fogler Rubinoff

On July 23, 2018 the Court of Appeal for Newfoundland and Labrador in the case of Community Mental Health Initiative Inc. v. Summit Lounge Ltd. 2018 NLCA 42 upheld summary judgment dismissing a purchaser’s claim against two engineering companies (consultants) alleging negligence in the conduct of a Phase 1 Environmental Site Assessment performed for the vendor. The agreement between the consultants and the vendor and the final report both indicated that the assessment was prepared solely for the benefit of the vendor and that the consultants accepted no responsibility for any damages suffered by any third party. Significantly, the plaintiff-purchaser had knowledge of the disclaimer, having been provided with a copy of the final report by its real estate agent prior to the closing of the transaction. The Court of Appeal referred to the Supreme Court of Canada’s decision in Edgeworth Construction ltd. v. N.D. Lea & Associates Ltd. [1993] 3.S.C.R. 206 as well as decisions from appeal courts in Ontario Wolverine Tube (Canada) Inc. (1995) , 26 O.R. (3d) 577 and B.C., Kokanee Mortgage M.I.C. Ltd. 2018 BCCA 151 and summarized the legal principles as follows: (at par. 23) “… an express disclaimer of liability can be an effective bar against a claim by a third party who relied on work in the knowledge of the disclaimer. Permitting third parties to rely on reports which are expressly protected by a disclaimer would undermine the ability of contracting commercial parties to govern their own affairs.”

IMPLICATIONS FOR REAL ESTATE TRANSACTIONS AND ENVIRONMENTAL CONSULTANTS?

The long established principle of privity of contract i.e. that the rights and obligations in a contract apply only to the parties to the contract have been further tested by this decision. For engineering consultants, the decision highlights the importance of exacting express disclaimer clauses restricting responsibility for the reporting information to the party retaining them. For purchasers of real estate, it reinforces the necessity of obtaining indemnities from the vendor for undiscovered contamination or if that is not realistic, retaining an independent environmental consultant to verify any consulting reports given to them by the vendor.

This article was first published on the Fogler Rubinoff LLP website.

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About the Author

Mr. Stanley Berger serves as the Partner at Fogler, Rubinoff LLP. Mr. Berger joined the law firm of Fogler Rubinoff on July 4, 2013. Before joining Fogler Rubinoff, he served for 14 years as Assistant General Counsel to Ontario Power Generation Inc (OPG). In that capacity he provided legal services on licensing, environmental assessment, regulatory compliance, liability, security, decommissioning and waste management to the Nuclear Division of OPG.  Mr. Berger provided strategic legal advice and representation on aboriginal litigation and participated in First Nation settlement negotiations. Prior to joining OPG, he served as the Deputy Director of the Law Division for Prosecutions for the Ontario Ministry of Environment. In that capacity he managed the prosecution staff and helped shape prosecution policy. 

WSP to acquire Louis Berger for $400 million

WSP Global Inc. will acquire Berger Group Holdings, Inc. (Morristown, N.J.), the parent company of Louis Berger, for $400 million to be financed by an underwritten term loan. Louis Berger is a professional services firm mainly active in the transportation, infrastructure, environmental, and water sectors, as well as in master planning.  Louis Berger has approximately $480 million in annual net revenues and $45 million in normalized EBITDA.  Its 5,000 employees are mostly in the United States, with U.S. operations representing around 70% of 2018 net revenues (excluding disaster response revenues).

The acquisition of Louis Berger will increase WSP’s presence in regions it has targeted for growth, such as continental Europe, and will increase WSP’s exposure to the U.S. federal sector, according to Alexandre L’Heureux, WSP’s president and CEO.

ICF to Acquire DMS Disaster Consultants

ICF (Fairfax, Va.) has agreed to acquire DMS Disaster Consultants (Boca Raton, Fla.), a disaster planning and recovery services firm, which will operate as part of ICF’s disaster management and resilience division. DMS assists public sector clients with pre-disaster services and post-disaster recovery, including the development of comprehensive insurance, risk management, and risk mitigation strategies. ICF will also get DMS’s project management software, disasTRAX. The DMS team consists of about 50 employees, including engineers, architects, adjusters, risk managers, forensic accountants and project managers.

Environmental Job Market Trends in Canada 2014-2017

ECO Canada recently issued an Environmental Job Market Trends Report that shows that the environmental job market rebounded in Canada last year with 22.7 thousand job ads, reflecting a 9% increase from 2016 levels.  On the other hand, total job ads peaked in 2014 at 1.30 million, decreased to 1.07 million by 2016 (a drop of 18%) and slightly dipped in 2017 with 1.05 million job ads, reflecting a 2% decline.

  • Employment increases within key industries that employ a number of environmental workers, which includes professional, scientific and technical services;
  • Resurgence in goods-producing sectors such as manufacturing, construction, and energy; and
  • Provincial governments implementing climate change plans.

The report states that Ontario, Alberta and British Columbia are the provinces that have consistently shown the most demand for environmental professionals between 2014 and 2017.

Managers in financial and business services had the highest job ad growth rate with close to 30%, from 1,090 job ads in 2016 to 1,410 in 2017.  Agriculture/horticultural workers, technical inspectors/regulatory officers and engineers, with an environmental function attached to the roles, remained the most sought-after positions with 2,870, 3,020 and 2,110 job ads in 2017 respectively.

ECO Canada develops programs that help individuals build meaningful environmental careers, provides employers with resources to find and keep the best environmental practitioners and informs educators and governments of employment trends to ensure the ongoing prosperity of Canada’s growing environmental sector.