Hazardous industry leaders give insight on the keys to operational excellence

A global survey of hazardous industries and Operational Index was recently published by Sphera. The annual Operational Excellence Index (OEI) survey report which highlights trends in digital transformation and OE strategies across the hazardous industries.

Previously conducted by Petrotechnics, now a Sphera company, the index is in its third year of surveying oil and gas, chemical, energy and industry manufacturing professionals to gauge attitudes around OE and the measures taken towards its adoption. Year after year respondents agree, OE programs help reduce risk, cut costs, and improve productivity. The 2018/2019 survey reveals senior leaders are relying on technologies to support their OE initiatives and identifies where they are coming up short and what they could do to improve.

Ninety percent of respondents agree digital transformation will accelerate their ability to achieve OE – not just as a one-off target but as an ongoing business objective. This is a significant increase from last year’s report where 73% of leaders agreed that going digital was key to achieving OE. Implementing digital technologies is now aligned with overall business goals with 55% leveraging technology to reduce operational risk and 55% to improve asset availability and uptime.

Paul Marushka, President and CEO at Sphera, commented, “As the third-annual Operational Excellence Index shows, digital transformation is upon us. As companies look for new ways to keep their people safe, their operations productive and their products sustainable, being able to tap into and monitor data from Industry 4.0 solutions will be a major differentiator for organizations looking to separate themselves from the competition. It’s not surprising that 90% of respondents agree that digital technology will accelerate operational excellence. We couldn’t agree more. Sphera believes digital is the wave of the future for operational risk mitigation.”

But while industry leaders agree digital is essential to OE, more than half are still trying to figure out what ‘digital transformation’ means for them, and 69% are just beginning their digital journey. The approach to digital matters, according to 83% of survey respondents, who admit they have relied on legacy systems to improve their business agility but had not embedded operational best practices cross-functionally.

The good news is the industry is on the brink of a major step forward when it comes to achieving OE through digitalization. Seventy-five percent of leaders recognize the need to create new, insight-driven business processes across enterprise functions. Advanced analytics and digital twins were highlighted as key solutions to help operators understand how to make better, safer planning and operational decisions. 

Scott Lehmann, VP, Product Management, ORM for Operations at Sphera, said, “This year’s survey clearly illustrates the challenges digital leaders face within their own organizations to understand what digital transformation means or could mean practically and tangibly to their company. While the pace of digital transformation and ROI is still in its early days, the survey points strongly to a rapid acceleration on the horizon. Digital leaders understand digital integration and the adoption of new technologies must focus on creating actionable insights to help underpin new cross-functional business processes that enhance decision-making and the way people work together.”

One survey respondent suggested: “The best approach to digital is not to use technologies to close gaps that you know already exist. Rather, start with a blank sheet of paper and define what you need – and then assess the available technologies.”

Petrotechnics, now a Sphera company, conducted the survey between October and November 2018, collecting 116 responses from a broad representation of functions, demographics and industries across the hazardous industries, including: oil, gas, chemicals, manufacturing, utilities, mining, engineering and other sectors. The survey included respondents from each major region – specifically Middle East (29%), Europe (28%), North America (28%), Asia Pacific (11%), Africa (3%) and South America (1%).

View the full report and results from the 2018/2019 Operational Excellence Index.

Canada to Commits Major Funding to Scientific Research on Oil Spill Response

The Government of Canada recently announced that it was committing $4.1 million to six international organizations to fund research projects that will help improve protocols and decision-making to minimize the environmental impacts of oil spills.

The recipients include: Commonwealth Scientific and Industrial Research Organisation; Johns Hopkins University; New Jersey Institute of Technology; SINTEF Ocean; Texas A&M University; and Woods Hole Oceanographic Institution.

Examples of the projects that will be founded included the following:

  • The Woods Hole Oceanographic Institution in Woods Hole, Massachusetts is receiving $638,000 to conduct a three-year study to quantify the effect of oil photochemical oxidation on the performance of chemical herders in Canadian waters; and
  • Johns Hopkins University in Baltimore, Maryland is receiving $760,000 to conduct a four-year study on the effects of crude oil properties, dispersants, and weathering on the breakup of plumes and slicks.

These projects are part of the $45.5 million Multi-Partner Research Initiative, announced last year to leverage collaboration among oil spill experts in Canada and abroad to ensure we have the capability to provide the best scientific advice and tools to respond to oil spills in our waters.

A total of 35 Canadian and international projects will focus on a wide range of innovative strategies and technologies to aid in oil spill response. Under this initiative, researchers will investigate computer modeling to predict the movement and fate of spilled oil, the use of chemical dispersants and herders, the efficiency of in-situ (or onsite) burning of oil spilled at sea and the potential of bio-based agents to disperse oil through biodegradation.

The Multi-Partner Research Initiative will support a variety of different but interrelated research projects on alternative response measures for oil spills while facilitating partnerships among the best researchers across Canada and around the world. These collaborative efforts will improve our knowledge of how oil spills behave, how best to contain them and clean them up, and how to minimize their environmental impacts.

Canada: New Environmental Emergency Regulations Published

New regulations

The Environmental Emergency Regulations, 2019 (the final regulations) were recently published in the Canada Gazette. They come into force on August 24, 2019, and until then, the Environmental Emergency Regulations (first published in 2003) are in force.

The objective of the Environmental Emergency Regulations, 2019 (the final Regulations) is to further enhance environmental emergency management in Canada. For instance, improved environmental emergency management has been introduced through the addition of hazardous substances to Schedule 1 of the Regulations. This addition requires reporting on these substances, environmental emergency planning for higher-risk facilities, and reporting of environmental emergencies involving these substances.

In addition, the final Regulations aim to clarify and strengthen existing regulatory requirements and to ensure that the information available to public safety organizations and the Department is reliable, in order to help in minimizing the frequency and consequences of environmental emergencies in Canada and further enhance environmental emergency management in Canada.

The government estimates that the final Regulations implicate an additional 200 businesses, along with the existing 4 800 regulated parties across Canada. Of these facilities, approximately 3,000 will be required to prepare, implement, exercise and update environmental emergency (E2) plans.

Application

These regulations require that any person who owns, has the charge, management or control of a regulated substance at or above certain quantities notify Environment and Climate Change Canada (ECCC). For higher-risk facilities, an environmental emergency plan must also be prepared, brought into effect and exercised.

Under section 193 of CEPA 1999 an environmental emergency means an uncontrolled, unplanned or accidental release, or release in contravention of regulations or interim orders made under Part 8 of CEPA 1999, of a substance into the environment; or the reasonable likelihood of such a release into the environment.

Hazardous substances

Schedule 1 of the final regulations includes 249 substances that pose an acute hazard to the environment or to human health should an accidental release occur. There are six  hazard categories covered under the final regulations:  

  • aquatically toxic
  • combustible
  • explosion hazard
  • pool fire hazard
  • inhalation hazard
  • oxidizer that may explode

E2 Plans

E2 Plans must be prepared by any company that owns or that has the charge, management or control of a substance listed in Schedule 1 of the E2 Regulations at the threshold quantity listed. Those companies companies must prepare, implement, and test an E2 plan. ECCC must also be notified about the E2 Plan.

The complexity of E2 plans may vary depending upon the circumstances of the person required to prepare and implement a plan. Although the primary goal of preparing and implementing an E2 plan is to prevent emergencies from occurring, such advance planning is critical for preparedness, response and recovery activities in the event that an emergency does occur. In accordance with the E2 Regulations, the person must consider the following factors when preparing an environmental emergency plan:

  • The properties and characteristics of the substance and the maximum expected quantity of the substance at the place at any time during a calendar year
  • The commercial, manufacturing, processing or other activity in relation to which the plan is being prepared
  • The characteristics of the place where the substance is located and of the surrounding area that may increase the risk of harm to the environment or of danger to human life or health
  • The potential consequences of an environmental emergency on the environment and on human life or health.

As per the E2 Regulations, the environmental emergency plan must include the following:

  • A description of the factors considered above
  • The identification of any environmental emergency that can reasonably be expected to occur at the place and that would likely cause harm to the environment or constitute a danger to human life or health, and identification of the harm or danger
  • A description of the measures to be used to prevent, prepare for, respond to and recover from any environmental emergency identified
  • A list of individuals who are to carry out the actions described in the plan in the event of an environmental emergency, and a description of their roles and responsibilities
  • The identification of the training required for each of the individuals listed
  • A list of the emergency response equipment included as part of the E2 plan, and its location
  • A description of the measures to be taken by the person referred to above to notify members of the public who may be adversely affected by an environmental emergency and to inform them of those measures and of what to do in the event of an environmental emergency

Environment Canada recommends that, while submitting information to fulfill the E2 Regulations requirements, regulatees consider a senior-level statement demonstrating their commitment to implementing and maintaining the E2 plan. They need to keep the plan current, comprehensive and effective (e.g., annual testing and updating of the plan). Appendix 1 of the Implementation Guidelines contains a list of suggested references to assist anyone having to develop an E2 plan.

Environment Canada strongly recommends that persons preparing an E2 plan include community and interest groups and local and provincial emergency authorities in the development and preparation of the plan, and also share the implemented plan with these persons.

Final Impacts on Business

ECCC commissioned a study on the financial impacts of the new regulations in 2014. The study found that the addition of the 33 additional substances to Schedule 1 of the final Regulations will result in some businesses having to prepare, bring into effect, exercise and update environmental emergency plans. Approximately 120 businesses will be required to prepare a new environmental emergency plan at an estimated unit cost of $14,000, while about 80 businesses will be required to update an existing plan at an estimated unit cost of $5,000.

Oil Spill Training Exercise (Photo Credit: Gaylord Herald Times)

The 2014 financial impact study also found that it will be necessary for the businesses preparing new environmental emergency plans to exercise their plans on an annual basis. In particular, a full-scale simulation exercise (action-based simulation exercise requiring the deployment of personnel, resources and equipment) will be required once every five years at each facility. The estimated cost for each full-scale simulation exercise will vary depending on the size of the facility in question, as follows: $3,000 for small-sized facilities; $5,000 for medium-sized facilities; and $10,000 for large-sized facilities. Simulation exercises (exercise simulating the response to an environmental emergency involving the release of a substance) will need to be conducted at each facility once per year during the four years that full-scale exercising is not conducted, at an estimated cost of $1,000 per exercise. 

U.S. EPA Releases Annual Superfund Program Report for 2018

The United States Environmental Protection Agency (U.S. EPA) recently released a summary report of its accomplishments the 2018 fiscal year. The U.S. EPA has made Superfund a priority of the Agency.

Under the Superfund Program, the U.S. EPA is responsible for cleaning up some of the most contaminated sites in the U.S. and responding to environmental emergencies, oil spills and natural disasters. To protect public health and the environment, the Superfund program focuses on making a visible and lasting difference in communities.

For the 2018 Fiscal Year, the U.S. EPA reported that all or part of 22 sites from the National Priorities List (NPL) were were remediated and deleted from the NPL list.

Regional milestones in the Superfund Program for fiscal year 2018 include:

  • Furthering partnerships with state counterparts and local governments in identifying sites for expedited cleanup activities. (Mississippi Phosphates Corporation Pascagoula, Miss. and Fairfax St. Wood Treaters Jacksonville, Fla.)
  • Stepping up efforts to return sites to productive use and deleting sites from the National Priorities List (NPL). (Davis Timber Company (Hattiesburg, Miss.) Reasor Chemical Company (Castle Hayne, NC) Whitehouse Oil Pits (Whitehouse, Fla.)
  • Enhancing emergency response and preparedness efforts using innovative tools, comprehensive training sessions and rigorous exercises to respond to natural disasters such as Hurricane Florence and Hurricane Michael.

Highlights of EPA’s 2018 accomplishments include:

  • Improving human health for people living near Superfund sites by controlling potential or actual human exposure risk at 32 additional Superfund National Priorities List (NPL) sites and controlling the migration of contaminated groundwater at 29 sites.
  • Deleting 18 full and four partial sites from the NPL – the largest number of deletions in one year since 2005 – signaling to the surrounding communities that U.S. EPA has completed the job of transforming these once highly contaminated areas.
  • Returning sites to communities for redevelopment by identifying 51 additional sites as having all long-term protections in place and meeting our “sitewide ready for anticipated use” designation, the highest annual result since 2013.
  • Completing or providing oversight of 242 Superfund removal actions at sites where contamination posed an imminent and substantial threat to human health and the environment.
  • Quickly and effectively responding to large scale emergencies brought on by hurricanes, wildfires, and other natural disasters in California, North Carolina, Puerto Rico and elsewhere.
  • Moving many sites closer to completion by making decisions that have been delayed, including West Lake Landfill in Bridgeton, Mo.; USS Lead in East Chicago, Ind.; and San Jacinto Waste Pits in Channelview, Texas.

The U.S. EPA Acting Administrator Andrew Wheeler has recused himself from working on 45 Superfund sites as a result of his history of lobbying for International Paper Co. and Xcel Energy Inc., among other companies.

In addition, in July 2018, on the one-year anniversary of the agency’s Superfund Task Force Recommendations, the U.S. EPA issued a report covering Task Force accomplishments to date and laying out its plan for completing the remaining recommendations in 2019.

Click here to read the full report.

Disagreement on Human Health Impacts from former Wood Treatment Facility in Edmonton

On February 26th, the Alberta Environmental Appeals Board (AEAB) issued a Report with recommendations related to Orders issued by the Alberta Environment Ministry for the remediation of a former wood preservative facility in Edmonton.

The site had been owned by Domtar Inc. and had been used to treat wood with preservatives from 1924 through to 1987. The property was purchased by a Cherokee Canada Inc. in 2010. Cherokee planned on remediating the site and developing a residential neighbourhood.

The AEAB report deals with a dispute between Cherokee and the Alberta Environment Ministry on whether the property that housed the wood treated facility is remediated and if it poses a hazard to human health. The AEAB report concludes “there is no immediate risk to these residents and other people.”

The Board also concluded the Alberta Environment had no basis for issuing Enforcement Orders against Cherokee. The Board stated that more clean-up of the site is needed, but none of it is an emergency as claimed by the Alberta Environment Ministry.

John Dill, a managing partner at Cherokee, stated in an interview with Global News: “I’m pleased that the decision confirms that the site is safe for the neighbourhood and its residents. We’re anxious to put an end to any further uncertainty by following the process that’s been set out, suggested by the board and minister.”

If Cherokee had not appealed the Order and won, it would have faced a very significant cost in removing and disposing of the contaminated material. The company estimated the cost to conform to the Orders to be in the at least $52 million.

March 7th Alberta Environment Press Release

On March 7th, the Alberta Ministry of the Environment and Parks released the results of analytical tests performed on soil samples taken at the former wood treatment plant along with findings from a human health risk assessment. The risk assessment concludes that contamination at the site is hazardous to human health.

Officials from the Alberta Ministry of Alberta and Parks conducted sampling at analysis of the soil at site of the former wood treatment plant at various times between 2017 and 2018. The sampling program consisted of sampling surface soil and subsurface soils at more than 1,039 locations at the property and collecting/analyzing over 1,457 soil samples.

The results from the analysis of the soil samples indicate 183 samples have levels of contamination that exceed human health guidelines for dioxins and furans. Of these, 96 per cent are located in fenced-off areas. A number of other contaminants of concern for human health are identified in these reports. Remediation of those locations remains the responsibility of the companies previously ordered by Alberta Environment and Parks to clean up the site.

Google Maps view of the Site and Surrounding Properties

Dr. Deena Hinshaw, Chief Medical Officer of Health for Alberta stated: “Our highest priority is the health and safety of residents, and we will continue to work towards minimizing any potential health risks to local residents. While these reports show that there are hazards in the areas, these risks are being addressed through the protective measures already in place until remediation of the soil is undertaken.”

Human Health Risk Assessment

Alberta Health issued the finding of the Human Health Risk Assessment. It made a preliminary comparison of the rates of cancer, miscarriages and birth defects in the surrounding neighbourhoods. This initial analysis found no difference between rates in the area near the former Domtar site compared with other parts of the province, with the exception of three types of cancer.

Among people who had lived in the area for 10 or more years, there were:

  • 34 cases of breast cancer in women (16 to 31 cases would have been expected)
  • 14 cases of endometrial cancer in women (three to nine cases would have been expected)
  • 22 cases of lung cancer in men (six to 14 cases would have been expected)

No differences in any childhood cancers were found compared with other parts of the province.

This data on its own does not indicate why there are higher rates for these three types of cancer in the area. Many factors could contribute to an increased risk of cancer, including but not limited to medical history, medication use and tobacco use. Alberta Health will, therefore, be working immediately with federal experts to conduct a field epidemiology investigation to try and identify what population health factors might have contributed to higher rates of these three cancers.

The Alberta Environment press release states, as a precautionary measure, women who have lived in the area for 10 or more years should talk to their doctors about the risks and benefits of starting breast cancer screening at the age of 40. This is a precaution until the results of the field epidemiology study are available.

History of the Site

The site itself had been used as a wood preservative plant by Domtar Inc. from 1924 until 1987. The plant manufactured “treated” wood products such as railway ties and telephone poles. The wood products were treated with chemical preservatives, such as creosote, to prolong their lifespan.

Between 1987 and 2008, the plant was decommissioned and Domtar conducted a partial remediation of the property including soil testing. Contamination remains in the subsurface including creosote, polycyclic aromatic hydrocarbons, dioxins and furans.

Cherokee Canada Inc. bought the site from Domtar in 2010 for $1.8 million. The purchase of the property is made with the company fully aware of the contamination at the site and with the acknowledgement by the Alberta Environment Ministry of a remediation plan to clean-up the property prior to redeveloping it for residential use.

Between 2011 and 2016, Cherokee Canada Inc. works on its remediation plan. Part of the plan consists of constructing a berm with contaminated soil from the site and covering it with clean soil. Cherokee Canada Inc. claims the berm structure contains contamination and that natural attention of the organic contaminants in the soil will occur over decades.

A 2013 environmental risk assessment conducted by Cherokee Canada Inc.
concludes that the constructed berm should not lead to any adverse health or environmental outcomes. The Alberta Environment Ministry approves a remediation certificate for a parcel of the site and allows for construction of a residential housing development on the parcel.

By October 2014, the contamination berm is nearly complete. The Alberta Environment Ministry claims that it was the first it had heard of the berm’s construction. The company says the province knew about the project all along and even had representatives on-site from time to time.

In 2016, the Alberta Environment Ministry conducts its own environmental testing at the site and claims that there is evidence of naphthalene in most of the samples, and that the substance is not contained.

Late in 2016, Cherokee sues the Province of Alberta for $126 million, claiming Alberta Environment acted in bad faith by “recklessly” changing its position on the remediation plan after the company had already spent considerable money.

Also in 2016, Alberta Environment issues an Enforcement Order that requires Cherokee to conduct further environmental testing. It also issues an Environmental Enforcement Order against both Cherokee and Domtar requiring further environmental testing in other parcels at the site.

In 2018, the Alberta Environment Ministry said third-party testing at the site found chemicals dangerous to human health. It imposed five enforcement orders on Cherokee, requiring the company to remediate any contamination.

Cherokee appealed the decision, arguing it had already undertaken remediation efforts (as had Domtar), including isolating and protecting contaminated soil from exposure.

The February 26th, 2019 decision by the Alberta Environmental Appeals Board vindicated Cherokee as the Board stated the Orders were inappropriate.

Cherokee Canada Inc.’s Position

In response to the Alberta Environment’s March 7th announcement, Cherokee issued its own press release. In the release, the company claims that Alberta Environment March 7th publication provides unsubstantiated information to community members about potential health risks. It also states that the issue of health risk and the appropriate standards and scientific criteria for remediation for certain chemicals of concern were addressed in by the Environmental Appeals Board in 2018.

The press release also states “We are concerned that the Ministry’s approach is a veiled attempt to influence the Minister’s response to the Board’s independent Report and Recommendations or to attempt to discredit the Board’s findings.”

March 13th Alberta Environment Orders

On March 13, Alberta Environment and Parks Minister Shannon Phillips released her decision on the appeal of the orders issued to Cherokee Canada Inc., 1510837 Alberta Ltd. and Domtar Inc.

In the the newest order, the minister directs the both Cherokee and Domtar to undertake the work on the site within specific periods of time from the issuance of the order. This work includes:

  • Temporary dust control plans (within seven days)
  • Dust control plans (within 60 days)
  • Site delineation (sampling) plan (within 90 days)
  • Site delineation(sampling) (within 150 days)
  • Site modelling identifying all current and historical sampling (within 180 days)
  • Human health risk assessment (within 210 days)
  • Site-specific risk assessments (within 210 days)
  • Reclamation and remediation plans (within 240 days)
  • Long term site monitoring plans (within 240 days)
  • Completion of residential reclamation components (within 280 days)

The minister also issued two environmental protection orders:

  • An order to Cherokee Canada Inc. and 15120837 Alberta Ltd. to conduct sampling and remediation within the neighbouring community and for the berm to the south of the community to address the presence of dioxins and furans.
  • An order to Domtar Inc. to conduct sampling and remediation within the neighbouring community and for the Greenbelt to the south of the community to address the presence of naphthalene, dioxins and furans.

A spokesperson for the Province of Alberta pointed out the AEAB’s recommendations “did not take into consideration the new testing results and health outcomes issued by the chief medical officer of health, as this information was not before the board at the time of the hearings (see below).

British Columbia intends to improve waste soil relocation regulations

by Max Collett, Norton Rose Fulbright

The Ministry of Environment and Climate Change Strategy in British Columbia intends to bring forward legislation to better regulate excess soil relocation, including waste soils, and reduce deposit of soils in landfills.

The Ministry of Environment and Climate Change Strategy has for years been aware that certain participants in the soil and waste transport and relocation industry have not been complying with the current regulations, which are reliant on source site and recipient site owners entering into a Contaminated Soil Relocation Agreement (CSRA) with the ministry.

In January 2019 the ministry issued a final policy recommendation with a series of proposed substantive amendments to the soil relocation regulations and legislation. The following are notable features of the new regulations:

  • Distinguish between soils and waste soils, and regulate the relocation of waste soils. Waste soil is to refer to soil that possesses a substance concentration greater than the lowest applicable industrial land use standard
  • Remove the requirement for a CSRA (a positive development as execution of these agreements was time consuming)
  • Introduce notification and certification requirements:
    • require that the applicant deliver advance notification to local governments as well as “indigenous groups” in the area of both source and receiving sites. (To date, the ministry has not given any indication how an applicant will be able to identify the applicable indigenous groups, which is not always obvious in areas of overlapping claims and interests)
    • require that the applicant complete chemical characterization and vapour assessments for certain waste soils and obtain certification by approved professionals. Certifications will be subject to random audits. (The introduction of approved professionals and audit verification should be a positive development and enable applicants to better control the soil relocation process and associated project scheduling. This process will be similar to that undertaken for independent remediation of contaminated sites)
  • Amend the Environmental Management Act to provide for administrative monetary penalties if soil relocation requirements are not met
  • Potentially add new requirements for landfills and high-volume receiving sites.

The ministry intends to seek government approval for these amendments in 2019. We will provide a further update once it is confirmed whether the province approves the recommendations and tables specific legislative and regulatory amendments for approval.


This article was published with permission of the author. It was first posted on the Norton Rose Fulbright website.

About the Author

Max Collett provides quality, timely and practical advice to public and private sector clients on all legal matters pertaining to complex commercial real estate development and environmental law. He assists developers, First Nations economic development companies, governmental agencies and health authorities, amongst others, to structure the ownership of projects, and acquire, finance, construct, operate and sell institutional, industrial, commercial and residential developments. He has extensive experience with legal matters pertaining to the management or redevelopment of contaminated, brownfield sites. Mr. Collett is counsel on a diverse range of projects, from complex mixed-use strata developments, complex commercial developments, health care facilities to joint venture developments on First Nations lands. He regularly assists on institutional projects undertaken pursuant to public-private partnerships. Mr. Collett also advises commercial and industrial clients on all aspects of regulatory compliance with environmental laws.

What are the core requirements of wide area CBRNe training?

Written by Steven Pike, Argon Electronics

When you are required to conduct wide area emergency preparedness training – be it in the setting of a chemical, biological, radiological, nuclear, and explosive (CBRNe) school, a dedicated military center or an industrial facility – the ongoing challenge for any CBRNe instructor is to be able to create a scenario that is realistic, safe, reliable and cost effective.

Trainees need to be equipped with the practical knowledge and skills to respond with confidence to an enormous variety of potential live incidents. And each threat brings with it a unique set of practical, physical and psychological tasks that need to be ‘experienced’ in order to be understood.

So what is the recommended approach to help instructors implement a realistic but safe CBRNe training environment?

Overcoming regulatory obstacles

While the spreading of chemical simulants can still occasionally be an option, strict environmental regulations generally make it unfeasible – and the use of any form of radiological source is almost always going to be unrealistic for all but the most high specialized of training facilities.

Simulant training also brings with it the problem of being very location-dependent, which restricts the ability to create scenarios in public settings or confined spaces. And there is the added difficulty of it not being able to be readily integrate simulant training with other conventional live training methods.

Wide-area instrumented training systems

When the highest degree of realism is required, a powerful modular exercise control system such as PlumeSIM enable instructors to take their CBRNe training exercises to an entirely new level. And it especially comes into its own in the context of counter terrorism scenarios, nuclear training drills and HazMat emergency exercises.

So what benefits does the PlumeSIM training system offer?

Portability – Plume-SIM is highly portable making it quick to set up and to use in any environment. The inclusion of a planning mode also means that instructors can easily prepare exercises on a laptop or PC without the need for any form of system hardware.

Realism – Students are equipped with simulators and GPS enabled players, to enable them to take part in large area exercises that can include sequential multi-threat releases or that integrate with third-party live training systems.

Instructor control – The instructor retains complete control of the exercise including the ability to decide the type, quantity, location and nature of the source.

Environment – Specific environmental conditions can also be easily defined by the user, including temperature and changes in wind direction.

Repeatability – The Plume-SIM’s exercise parameters can be saved so the identical scenario can be repeated as many times as required.

Real-time action -The trainees’ movements, progress and instrument usage can be monitored in real time from a central control station.

After action review – The recording of student activity in real-time provides useful after action review (AAR). This can be used to encourage discussions about the effectiveness of an exercise and to facilitate further improvements.

Data capture – All recorded exercise data can also be exported and emailed to external personnel for future analysis.

Pre-exercise capability – The table-top planning mode uses standard gamepad controllers which enables trainees to undertake pre-exercise practice to take place within the classroom environment. The exercise can also be recorded and analysed prior to heading for the live field training area.

Versatility – If environmental conditions preclude the ability to obtain or maintain continuous long-range radio communication then the scenario can be pre-loaded on the player unit for timed activation.

Compatibility – The Plume-SIM system is compatible with a wide variety of simulator equipment including the M4 JCAD-SIMCAMSIMAP2C-SIMAP4C-SIMRDS200-SIMEPD-Mk2-SIMAN/PDR-77-/VDR-2 and RDS100-SIM.

Room to grow – The modular system gives instructors the flexibility to expand their range of training equipment as and when their budgets allow.

Achieving the highest level of realism in CBRNe training is paramount – and assuring personnel safety will always be key.

A flexible, modular simulator-based training solution such as the PlumeSIM system can provide trainees with the opportunity to practice and perfect their response to a wide variety of highly-realistic simulated threats in a completely safe environment.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

When Is It Too Late to Sue for Environmental Contamination? The Alberta Court of Appeal Rules

Written by Laura M. Gill, Stephanie Clark, and Justin Duguay, Bennett Jones LLP

On February 6, 2019, the Alberta Court of Appeal (ABCA) released its first ever decision on section 218 of the Environmental Protection and Enhancement Act (EPEA), which may extend limitation periods applicable to environmental contamination claims.

By a unanimous decision in Brookfield Residential (Alberta) LP (Carma Developers LP) v Imperial Oil Limited, 2019 ABCA 35 [Brookfield], the ABCA upheld a lower court decision where the judge refused to exercise his discretion under section 218 of the EPEA to extend the limitation period for an environmental contamination claim. Extending the limitation period would have likely been prejudicial to the defendant’s ability to maintain a defence to the claim, as the alleged cause of the environmental damage occurred over 60 years ago. We previously discussed the 2017 Court of Queen’s Bench decision in an earlier post, When is an Environmental Contamination Claim Too Old to Extend the Limitation Period?

Background

Brookfield Residential (Alberta) LP (Brookfield) brought a negligence claim in the Alberta Court of Queen’s Bench (ABQB) against Imperial Oil Limited (Imperial) for environmental contamination from an oil well. Imperial drilled and operated the well between 1949 and 1950, and disposed of it in either 1950 or 1954. Multiple owners operated the well between 1950 and 1957 and then used it for salt water disposal between 1958 and 1961, at which point the well was decommissioned and abandoned. After several additional transfers of ownership, the site was issued a reclamation certificate in 1968. Contamination requiring remediation was not discovered until 2010, when Brookfield was preparing the site for residential development.

Brookfield brought an application under section 218 of the EPEA to extend the limitation period, and Imperial cross-applied with a summary dismissal application, asserting that the limitation period had expired. Since it was clear that the ten-year ultimate limitation period under the Limitations Act had expired, Brookfield’s negligence claim was entirely dependent on an extension of the limitation period under section 218. The ABQB refused to extend the limitation period and summarily dismissed the action against Imperial. Brookfield appealed.

The appeal was dismissed. In its reasons, the ABCA provided guidance on three important aspects of section 218 applications: (i) procedure and timing; (ii) the impact of the passage of time on prejudice to the defendant; and (iii) policy considerations relevant to the fourth factor in section 218(3).

1. Applications Under Section 218 of the EPEA Should Be Decided Prior to Trial

The ABCA in Brookfield ruled that applications under section 218 of the EPEA should be decided prior to trial, overruling the two-part test in Lakeview Village Professional Centre Corporation v Suncor Energy Inc, 2016 ABQB 288 [Lakeview]. In Lakeview, the ABQB set out a two-part approach to section 218 applications where the court may make a preliminary determination on limitations and allow the action to proceed subject to a final determination on the merits of the limitations issue at trial. Lakeview became the leading case on the procedure for section 218 applications.

In overturning the Lakeview test, the ABCA found two problems with the approach of deferring the decision on extending limitation periods until trial. First, the Lakeview approach “is inconsistent with the wording of section 218, which provides that the limitation period can be extended ‘on application'”. Second, the approach defeats the whole purpose of limitation periods because it forces a defendant to go through the expense and inconvenience of a full trial on the merits for a determination on limitations, notwithstanding that a limitation period is intended to eliminate the distractions, expense, and risks of litigation after the prescribed time has passed.

2. The Passage of Time Increases the Likelihood of Prejudice to the Defendant

The ABCA affirmed the approach of balancing the four factors in section 218(3), which in this case revolved primarily around the third factor (prejudice to the defendant). The ABCA found that it was reasonable for the ABQB to infer prejudice from the passage of time, noting that this is the presumption behind statutes of limitation. The allegations in Brookfield’s claim occurred over 60 years ago, and as such, witnesses and documentary evidence were difficult to identify and were no longer available. The passage of time also made it difficult to establish the proper standard of care. The ABCA agreed that attempting to determine 1949 industry standards and the standard of care at that time would prejudice Imperial.

3. The Competing Policy Objectives of the Limitations Act and the EPEA

The ABCA also provided guidance on the fourth factor listed in section 218(3), which grants judicial discretion to consider “any other criteria the court considers to be relevant”. The ABCA found that policy considerations behind limitations statutes were relevant criteria that should be weighed. In particular, the ABCA noted the policy objectives of statutes of limitations that actions must be commenced within set periods so that defendants are protected from ancient obligations, disputes are resolved while evidence is still available, and claims are adjudicated based on the standards of conduct and liability in place at the time. However, on the other hand, the ABCA highlighted that the EPEA has a “polluter pays” objective where a polluter should not escape responsibility by the mere passage of time.

Implications

The ABCA’s decision in Brookfield changes the procedure for extending limitation periods in environmental contamination claims. Rather than waiting until trial, parties must bring section 218 applications early on. As a result, plaintiffs in contaminated sites claims should also carefully assess the impacts on defendants of the passage of time in making section 218 applications. Brookfield reinforces that a court will likely presume greater prejudice from a longer passage of time, especially if witnesses and evidence may be difficult to identify and the standard of care may be difficult to assess. Going forward, Brookfield suggests that the Court will take a practical approach to assessing prejudice against a defendant when deciding whether to extend limitation periods in contaminated site claims where the ultimate limitation period has passed.


This article has been republished with the permission of the authors. It was first published on the Bennett Jones website.

About the Authors

Laura Gill is called to the bar in Alberta and British Columbia and has a commercial litigation practice specializing in energy and natural resources, First Nations issues, and environmental matters. Laura advises clients on disputes in a wide range of corporate matters, including complex breach of contract claims and joint ventures.

Laura’s experience in the energy industry includes litigating disputes involving leases, right-of-way agreements, ownership stakes, royalties, gas supply contracts, farmout agreements, and CAPL operating agreements. Laura also acts on appeals and judicial review proceedings following decisions of regulatory bodies, in particular with respect to regulatory approvals for energy-related projects in Alberta and British Columbia.

Stephanie Clark has a general commercial litigation practice. Stephanie has assisted with matters before all levels of the Alberta court system. During law school, Stephanie held a student clerkship with the Honourable Mr. Justice Nicholas Kasirer at the Court of Appeal of Quebec, competed in the 2015 Jessup International Law Moot, and was awarded with the Borden Ladner Gervais Professional Excellence Award. Stephanie articled with the firm’s Calgary office prior to becoming an associate. 

Justin Duguay is an articling student at Bennett Jones.

Leaking Sewers Cost City 50% of Dry Cleaner Site Cleanup Costs

Written by John A. McKinney Jr., Chiesa Shahinian & Giantomasi PC

Are you in a case where an on-site and off-site groundwater plume of dry-cleaning solution (perchloroethylene or PCE) or other hazardous substance is intersected by sewers through which the used and disposed solution flowed?  If so, the case of Mission Linen Supply v. City of Visalia (2019 WL 446358) bears your close review.

Based on the facts and expert testimony adduced at the bench trial, the court determined that: 1) the sewers were installed by the City below general industry standards; 2) the City sewers had numerous defects including holes and broken pipes, cracks, separated joints, missing portions of pipes, root intrusion and other conditions; and, 3) PCE was released into the environment as a result of these defects.

Pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the two dry cleaners who operated at the site and the City were found liable.  In allocating the future cleanup costs, the court determined the equitable basis for allocation was the plume itself.  The prior dry cleaners were responsible for the on-site costs and the City was responsible for the off-site costs “because the City’s defective/leaking pipes transported and spread the PCE beyond the property boundaries.”   50% of future costs were assigned to the City.

A review of this case’s Findings of Fact show what expert testimony and evidence is necessary to reach the result reached by this court.  The case is also a warning to municipalities with sewer lines intersecting cleanup sites or what could become cleanup sites.  Do not fail to regularly and properly maintain your sewer systems.


This article has been republished with the permission of the author. It was first published on CSG’s Environmental Law Blog.

About the Author

John A. McKenney Jr. has been a frequent speaker at conferences and continuing legal education programs. For 18 years, John was on the faculty of Seton Hall University School of Law as an Adjunct Professor where he taught New Jersey Environmental Law. He also served as moderator of the ABA satellite seminar on Hazardous Waste and Superfund.

John is a co-editor of the ABA publication, CERCLA Enforcement – A Practitioner’s Compendium of Essential EPA Guidance and Policy Documents and co-authored the Generators’ Obligations chapter of the ABA’s RCRA Practice Manual. The standard form group agreement used at many remedial sites around the nation is based on a version he developed for The Information Network for Superfund Settlements.

U.S.: Lessons Learned from Citizen Suits for Contamination of Property by Industry

by Seth Jaffe, Foley Hoag LLP

Two recent cases illustrate the potential scope of, and the potential limitations on, injunctive relief in RCRA citizen suits. 

First up, Schmucker v. Johnson Controls. Contamination was detected at the Johnson Controls manufacturing facility in Goshen, Indiana.  In response, Johnson Controls performed substantial remediation under the auspices of the Indiana Department of Environmental Management’s Voluntary Remediation Program.  Nonetheless, significant contamination remains at the site, including a groundwater plume running beneath residences.  In 2011, TCE was detected in indoor air at concentrations exceeding IDEM’s screening level.  Johnson Controls installed vapor mitigation systems at all affected residences, and concentrations were below screening levels in all the residences after installation of the mitigation.

Imminent and substantial endangerment, or not?  In a battle of the experts, the Court denied both sides’ motions for summary judgment.  First, the plaintiff’s expert’s opinion that there was a risk of future exposures, notwithstanding the mitigation, was enough to defeat Johnson Controls’ motion.  The Court did note that:

“Murphy’s law” is not sufficient to establish an endangerment where a party relies only on speculation that mitigation measures might fail.

However, the Court found that the plaintiffs’ expert was not simply speculating.

On the flip side, defendant’s expert said that the mitigation measures were sufficient to eliminate the endangerment.  That was enough to defeat plaintiffs’ motion.

Next up, Lajim v. General Electric.  The facts are somewhat similar to those in Johnson Controls.  There was a long history of industrial use, discovery of a groundwater plume – in this case, impacting municipal water supply wells – and the commencement of significant response actions.  Here, the work was supervised by Illinois EPA, pursuant to a 2010 consent decree.  Here too, nearby plaintiffs were not satisfied with the remedial plan, notwithstanding approval by the state agency overseeing the cleanup.  In another battle of the experts, the District Court denied plaintiffs’ request for injunctive relief.  The 7th Circuit Court of Appeals affirmed.  Here are the highlights:

  • District courts have discretion to deny injunctive relief under RCRA, even where the defendant has been found liable.  “It will usually be the case that injunctive relief is warranted,” but it is not mandatory.
  • RCRA is not a general cleanup statute; injunctive relief is only available where there may be an imminent and substantial endangerment.
  • Where plaintiffs failed, after an evidentiary hearing, to demonstrate that cleanup was necessary beyond that which GE was doing pursuant to the consent decree, no injunction need issue.

I think that there are two lessons from these cases, one substantive and one practical:

  1. RCRA’s citizen suit provision provides plaintiffs with a powerful hammer, but there are limits to the relief that courts will impose, particularly if a defendant is implementing a cleanup under state oversight.
  2. Good lawyering and persuasive experts still really matter.

About the Author

Seth Jaffe is recognized by Chambers USA, The Best Lawyers in America and Massachusetts Super Lawyers as a leading practitioner in environmental compliance and related litigation. He is one of the authors of the Law and the Environment Blog, www.lawandenvironment.com, which provides real-world perspectives on current developments in environmental law and regulation. Seth is a past President of the American College of Environmental Lawyers.

Seth works on a wide range of environmental law issues, representing clients in the permitting/licensing of new facilities and offering ongoing guidance on permitting and enforcement related matters under federal and state Clean Air Acts, Clean Water Acts, RCRA, and TSCA. He also advises on wetlands and waterways regulation. Seth’s clients include electric generating facilities, companies in the printing and chemical industries, and education and health care institutions.