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

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.

Brownfield Redevelopment in New York City and Community Air Monitoring – What you need to know

Written by Paul R. Pickering, Aeroqual Ltd.

Brownfield cleanup in New York City

As New York City’s need for space grows, existing stock of land must be used more effectively. Brownfield cleanup and redevelopment represents one of the best opportunities to engage communities and reclaim land for development in many cities. In 2018, the Mayor’s Office of Environmental Remediation (MOER) announced 1000×21, the most aggressive land cleanup and revitalization goal of any city in the world. This OneNYCinitiative seeks to remediate and redevelop 1,000 lots in NYC by the end of the de Blasio administration in 2021.


A vacant lot in Mott Haven, NY before remediation. Photo: OneNYC

Remediation air quality challenges

Any time a remediation or construction project involves earth-moving, it has the potential to release particulate (dust) and volatile organic compounds (VOCs) contaminants that exist below the surface. VOCs will readily transition to the gaseous, breathable phase, when exposed to air. Particulate emissions must be controlled to prevent impacts to the respiratory system. Negative impacts range from mild lung irritation to chronic lung disease. 

Regulations to protect community

To protect workers and the surrounding community, construction and demolition projects that involve excavation need to follow a stringent Community Air Monitoring Plan(CAMP), as specified by the New York State Department of Health (NYSDOH). If the excavation activities are occurring on a remediation or cleanup site, additional requirements are outlined in a guidance document known as DER-10. NYSDOH and DER-10 specifically apply to sites in New York. However, agencies and authorities in other states may also recognize these guidelines. They have been known to apply or refer to them for projects in their designated territories.

What is DER-10?

In 2010, the New York State Department of Environmental Conservation (NYSDEC) issued Division of Environmental Remediation (DER)-10 Technical Guidance for Site Investigation and Remediation, known as DER-10. This is the source document the NYSDEC refer to for authority to oversee remediation projects. It was designed to help parties and consultants (environmental and engineering) in developing and implementing investigation and remediation projects at contaminated sites.

DER-10 extensively (over 225 pages) describes the A to Z requirements for remedial site investigations, cleanups, post-cleanup monitoring and site closure. It presents detailed technical guidance for each of the investigative and remedial steps undertaken at contaminated sites. DER-10 covers procedures for assessing the environmental conditions at the site, including air monitoring during remediation activities.

What is CAMP?

Appendix 1A of the DER-10 outlines requirements for the implementation of a CAMP. This air monitoring plan is prescribed by NYSDOH. It involves direct-reading air monitoring instruments placed at defined locations around the perimeter of a remediation, construction or demolition site.

A CAMP requires real-time air monitoring for total VOCs (also referred to as total organic vapors) and PM10 (particulate matter 10 micrometers or less in diameter) at downwind and upwind locations relative to each designated work area when certain activities are in progress at contaminated sites. The CAMP is not intended for use in establishing action levels for worker respiratory protection. Rather, it is intended to protect the downwind community) from potential airborne contaminants released as a direct result of investigative and remedial work activities. The downwind community includes off-site receptors such as residences, businesses, and on-site workers not directly involved with the subject work activities. The specified CAMP action levels require increased monitoring, corrective actions to abate emissions, and/or work shutdown. Additionally, the CAMP helps to confirm that work activities did not spread contamination off-site through the air.

VOC and particulate monitoring

Basic requirements of a CAMP call for real-time air monitoring for VOCs and/or particulate levels at the perimeter of the exclusion zone, or work area. Sites known to be contaminated with heavy metals alone may only require particulate monitoring. If radiological contamination is a concern, additional monitoring requirements may be necessary in consultation with NYSDEC and NYSDOH. The table below summarizes CAMP Monitoring Action Levels for total VOC and particulate monitoring.

CAMP air monitoring equipment

Since the introduction of DER-10 in 2010, sensor-based technologies have reduced the cost of air monitoring and increased efficiency of the implementation of CAMP. Real-time air monitoring solutions are available to fit the budget and complexity requirements of every project. Below is a sampling of equipment options:

Entry Level – Basic environmental dust monitoring kit

Assembled kits, like this Basic Environmental Dust Monitoring Kit from Raeco Rents, are portable and suited to short-term or temporary CAMP. The ensemble includes an off-the-shelf dust monitor, handheld PID monitor for total VOCs, and a cloud-based telemetry system mounted in an environmental enclosure.

Ultimate Flexibility – All-in-one air quality monitor

All-in-one air quality monitors, like the AQS1 and the Dust Sentry from Aeroqual, are highly flexible and defensible, as well as good allrounders for short or long-term CAMP. In addition to the primary particulate fraction PM10, these monitors can also measure PM2.5, PM1 and Total PM. They can also be configured for monitoring total VOCs and NO2 emissions from remediation and construction sites. A robust light-scattering Nephelometer with sharp cut cyclone is integrated with a PID-based VOC analyzer module (or GSE-based NO2 gas module), Cloud telemetry platform, air quality software, and optional plug-and-play weather and noise sensors. Trigger alerts are programmable for SMS and email notifications, or can be used to activate an external VOC canister sample collection for speciated analysis according to EPA Method TO-15.

The Rolls Royce – GC-based perimeter air monitoring station

Perimeter air monitoring stations, like the AirLogics Classic 2, contain analytical, climatic, and communications instrumentation. This equipment includes: a gas chromatograph (GC) to measure specific VOCs, a respirable particulate meter to measure dust levels, shelter heaters and air conditioners, and a radio-based data acquisition system. These systems were originally developed for use in the cleanup of former manufactured gas plant (MGP) sites.

Weather monitoring

DER-10 guidelines require daily measurement of wind speed and direction, temperature, barometric pressure, and relative humidity, to establish background weather conditions. Wind direction data is used to position the air monitoring equipment in appropriate upwind and downwind locations.

The evaluation of weather conditions is also necessary for proper fugitive dust control. When extreme wind conditions make dust control ineffective, remedial actions may need to be suspended. There may be situations that require fugitive dust suppression and particulate monitoring requirements with more stringent action levels.

Additional monitoring

Under some circumstances, the contaminant concentration and/or toxicity may require additional monitoring to protect site personnel and the community. Additional integrated sampling and chemical analysis of the dust may be required. This must be evaluated when a Health and Safety Plan (HASP), is developed. Appropriate suppression and monitoring requirements are established for protection of people’s health and the environment.

Reporting

All recorded monitoring data is downloaded and field logged daily, including Action Limit Reports (if any) and daily CAMP monitoring location plans. Records are required to be maintained onsite for NYSDEC and NYSDOH to review. A description of the CAMP-related activities is also included in a monthly progress report submitted to the NYSDEC. The overall report submitted to the NYSDEC should include all CAMP monitoring records. If site works are stopped due to inability to control fugitive emissions to below the action limit, the NYSDEC is to be notified within twenty-four hours of the work stoppage.

For a real-life example of air monitoring at a remediation site please read my blog about the pilot cleanup of the Gowanus Canal, NY.

What CAMP solutions does Aeroqual offer?

Aeroqual’s Dust Sentry and AQS1 are flexible air monitoring platforms used by air quality professionals, and environmental and geotechnical consultants, for community air monitoring plans on remediation sites. We help environmental consultants deliver defensible data on projects by providing cost-effective and reliable instrumentation. For insights on the latest air monitoring trends at construction sites please read our blog about measuring NO2 and multiple PM fractions.


About the Author

Paul R. Pickering is the Business Development Director at Aeroqual Ltd., and is located in Auckland, New Zealand. Aeroqual Ltd. is a company that delivers innovative air quality and environmental monitoring solutions. He is passionate about making it easier to measure the air with advanced sensor-based technology. He believes that more relevant information about our environment can help us make better informed decisions, enjoy better quality of life, and make our planet a better home. 

Amendments to the Canada Shipping Act, 2001 and Marine Liability Act

by Joanna Dawson, McMillan LLP

On December 13, 2018, Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures, otherwise known as the Budget Implementation Act was given royal assent.  This Bill, which was first introduced on October 29, 2018, predominantly pertains to amendments of budget-related legislation, but also proposes significant amendments to both the Canada Shipping Act, 2001(“CSA”) and the Marine Liability Act (“MLA”). The amendments to the CSA were introduced to allow the federal government to regulate for environmental reasons and specifically “to deliver on commitments made under the Oceans Protection Plan to enable the Government to respond to marine pollution incidents faster and more effectively, and to better protect marine ecosystems and habitats”. The amendments provide significant new powers and authority that potentially change the marine safety and environmental protection framework in Canada.

Canada Shipping Act, 2001

With a focus on marine environmental protection, environmental response, enhanced enforcement and support for marine research, the amendments to the CSA include the following:

  • The amended Section 10(1)(c) sets out that the Minister of Transport or the Minister of Fisheries and Oceans may enter into agreements or arrangements respecting the administration or enforcement of any provision of this Act or the regulations and authorize any person or organization – including a provincial government, local authority, council or other entity authorized to act on behalf of an Indigenous group – with whom or which an agreement or arrangement is entered into to exercise the powers or perform the duties and functions under this Act that are specified in the agreement or arrangement.
  • The new Section 10(2.1) provides that the Minister of Transport may exempt any person or vessel or class of persons or vessels from any provisions of the CSA or the regulations if the exemption would allow the undertaking of research and development to enhance marine safety or environmental protection.
  • The new Section 10.1 provides that the Minister of Transport may make an interim order if he or she believes that immediate action is required to deal with a direct or indirect risk to marine safety or to the marine environment. Such interim order has effect from the time that it is made and remains in effect for a period one year, or any shorter period that may be specified in the interim order.  However, the interim order may be extended by the Governor in Council for a period of no more than two years after the end of the applicable period.
  • The new Section 35.1 provides that the Governor in Council may, on the recommendation of the Minister of Transport, make regulations respecting the protection of the marine environment from the impacts of navigation and shipping activities, including regulations with respect to, among other things:
    • design, construction, manufacture and maintenance of vessels or classes of vessels and inspections and testing thereof;
    • specifying the machinery, equipment and supplies that are required or prohibited on board vessels or classes of vessels;
    • design, construction, manufacture, maintenance, storage, inspection, testing, approval, arrangement and use of the machinery, equipment and supplies of vessels or classes of vessels;
    • regulating or prohibiting the operation, navigation, anchoring, mooring or berthing of vessels or classes of vessels; and
    • regulating or prohibiting the loading or unloading of a vessel or a class of vessels.
  • New penalties for non-compliance by the amendment in Section 40.1 which provides for a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or both.
  • The amendments to Sections 168.3, 175(2) and 180(1) allow the Minister or the Minister of Fisheries and Oceans who believes on reasonable grounds that a vessel or an oil handling facility has discharged, is discharging or may discharge a pollutant, to take measures that he or she considers necessary to repair, remedy, minimize or prevent pollution damage from the vessel or oil handling facility.

Marine Liability Act

With a focus on “modernizing Canada’s Ship-Source Oil Pollution Fund”, the amendments to the MLA include the following:

  • The amended Section 101(1.1) provides that the Ship-source Oil Pollution Fund is liable for the costs and expenses incurred by the Minister of Fisheries and Oceans or any other person in respect of measures taken under subsection 180(1) of the Canada Shipping Act, 2001 with respect to oil, or for loss or damage caused by those measures, for which neither the owner of a ship, the International Fund nor the Supplementary Fund is liable by reason of the fact that the occurrence or series of occurrences for which those costs and expenses were incurred did not create a grave and imminent threat of causing oil pollution damage.
  • The addition of Section 114.1 imposes levies on receivers and exporters of oil to be used to replenish the Ship-source Oil Pollution fund when depleted.
  • New penalties for non-compliance by the addition of Section 130.01 which provides for a fine of $50,000 per individual and, in the case of any other person, $250,000.

Going Forward

While these amendments are intended to improve maritime safety and environmental protection, it is not yet clear as to the impact these provisions will have upon the current Canadian marine and environmental framework.  It seems that some of the provisions are ambiguous or will be challenging to apply. Without further guidance on how these new measures will be implemented, and clarity on who has the regulatory authority to enforce or take action provided thereunder, the uncertainty will ultimately lead to litigation with the courts left to determine the appropriate outcome.  It will be interesting to see how the amendments to the CSA and the MLA will affect and bring about change to the maritime industry.


A cautionary note: The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

This article is republished with the permission of the author. It was first posted on the McMillan LLP website.

About the Author

Joanna is a senior associate in the Business Law Group and the Transportation Group in the firm’s Vancouver office.  She practices in the areas of corporate, commercial and maritime law. Joanna routinely advises companies in the marine industry and a wide range of other industries on general corporate and commercial matters, including mergers and acquisitions, sales and purchases of businesses and marine assets, business structuring and organization, corporate restructuring and reorganization, and preparation and negotiation of agreements and contracts.

Joanna’s clients turn to her for day-to-day advice on their company operations and appreciate her practical and business-minded legal advice. She brings to her practice a depth of knowledge in the marine and transportation sectors acquired through her experience in working with ferry operators, shippers, ship owners and charter parties, and ship builders, locally and internationally.

AI Software Firm Specializing in Smart Remediation receives Canadian Government Support

WikiNet, a Quebec-based software firm that claims to have the world’s first
first soil remediation solution using Cognitive Artificial Intelligence (AI), recently received $254,000 in funding from the Canadian government through its Quebec Economic Development Program and its Regional Economic Growth through Innovation Program.

The $254,000 in government funding will help WikiNet diversify its markets, thereby increasing its sales and exports. The contribution will go toward prospecting, producing promotional tools and registering a patent. Fifteen jobs will be created once the government funded project is completed. A sum of $109,000 is a repayable contribution.

WikiNet was founded in 2016 to provide innovative software solutions for the environment sector. It offers niche applications, including a smart management tool for the transportation and management of contaminated soils and an application that uses both a database and artificial intelligence to guide environmental experts in choosing the best site remediation technologies.

WikiNet is developing WatRem, a system that learns from past environmental cleanup efforts to provide automated expert recommendations for treating contaminated sites worldwide.

WikiNet’s artificial intelligence product was one of over 150 projects from 36 countries selected as part of the global IBM Watson AI Xprize for Good competition. The winners of the IBM competition will be announced in 2020.

WikiNet has also developed a smart tool called “Trace” for offsite contaminated soil disposal and certification. ​”Trace” is a cognitive tool to support environmental sustainability by offering a smarter and safer way for off-site soil disposal. It allows stakeholders involved in a remediation project to manage offsite disposal of soils and dangerous materials with live GPS traceability.

Researchers Develop new method to detect hazardous solvents in water and soil

A Purdue University team, led by Joe Sinfield, an associate professor in Purdue’s Lyles School of Civil Engineering, and involving former Purdue researcher Chike Monwuba, has developed a new method to detect the presence of these hazardous solvents in water and soil. The method offers the potential to enhance monitoring operations and improve the efficiency of remediation efforts.

“Our method is accurate, quick and can detect very low concentrations of the target contaminants,” said Sinfield, who also serves as the director of Purdue’s College of Engineering Innovation and Leadership Studies Program.

The Purdue team had initially focused on using Raman spectroscopy to directly detect chlorinated solvents. In this approach, a laser is used to examine a sample and the scattered light is observed to determine its chemical makeup.


The different fundamental light processes during material interaction

“Traditionally, one would look for specific frequencies of scattered light that are indicative of the presence of the chemical of interest,” Sinfield said. “However, after conducting several broad spectral studies of the target compounds in simulated field samples, our team noticed that the light scattered by the water itself was affected by the presence of the chlorinated solvents—in fact more so than the light scattered by the molecules of the target chemical.”

This observation led to the development of a sensing mechanism that is nearly 10 times more sensitive than conventional approaches involving direct observation of the solvents themselves.

Sinfield said the Purdue method also shows promise for detecting chlorine based compounds in other contexts, as well as chemicals such as fluorine, bromine or iodine in an array of application spaces.

The work aligns with Purdue’s Giant Leaps celebration, celebrating the university’s global advancements in health and sustainability as part of Purdue’s 150th anniversary. These are two of the four themes of the yearlong celebration’s Ideas Festival, designed to showcase Purdue as an intellectual center solving real-world issues.

Researchers worked with the Purdue Office of Technology Commercialization to patent the innovation, and they are looking for partners to continue developing it. 

With more oil to be shipped by rail, train derailments show enduring safety gaps

by Mark Winfield and Bruce Campbell, Faculty of Environmental Studies, York University, Canada

The recent runaway CP Rail train in the Rocky Mountains near Field, B.C., highlighted ongoing gaps in Canada’s railway safety regime, more than five years after the Lac-Mégantic rail disaster that killed 47 residents of the small Québec town.

The British Columbia crash resulted in the deaths of three railway workers and the derailment of 99 grain cars and two locomotives.

In the B.C. accident, the train involved had been parked for two hours on a steep slope without the application of hand brakes in addition to air brakes.

The practice of relying on air brakes to hold trains parked on slopes was permitted by both the company and by Transport Canada rules. Revised operating rules, adopted after the Lac-Mégantic disaster, had not required the application of hand brakes under these circumstances.

The latest accident was one of a rash of high-profile train derailments in Canada since the beginning of 2019. While none compares in magnitude with Lac-Mégantic, they evoke disturbing parallels to that tragedy. Although investigations are ongoing, what we do know raises questions about whether any lessons have in fact been learned from the 2013 disaster.

Now must apply hand brakes

Within days of the B.C. runaway, both CP Rail and Transport Canada mandated the application of hand brakes in addition to air brakes for trains parked on slopes. This after-the-fact measure parallels the action Transport Canada took days after Lac-Mégantic, prohibiting single-person crews, after having granted permission to Montréal Maine and Atlantic Railway to operate its massive oil trains through Eastern Québec with a lone operator.

Furthermore, like the Lac-Mégantic tragedy, existing mechanical problems with the locomotives involved reportedly played a role in the CP Rail derailment, raising questions about the adequacy of oversight with regard to equipment maintenance practices.

Like Lac-Mégantic, worker fatigue may have also played a role in the crash. Despite efforts within Transport Canada to force railways to better manage crew fatigue, railway companies have long resisted. Instead they have taken page out of the tobacco industry playbook by denying inconvenient scientific evidence as “emotional and deceptive rhetoric.”

The situation has prompted the Transportation Safety Board to put fatigue management on its watchlist of risky practices, stating that Transport Canada has been aware of the problem for many years but is continuing to drag its feet.

Oil-by-rail traffic explodes

The implications of the B.C. accident take on additional significance in light of the dramatic growth seen in oil-by-rail traffic in Canada over the past year. Export volumes reached a record 354,000 barrels per day in December 2018, with the vast majority of the oil going to refineries on the U.S. Gulf Coast and Midwest.

This development has not gone unnoticed by people living in communities across North America, who are concerned about the growing danger of another disastrous derailment.

The increase in traffic — now bolstered by the Alberta government’s plan to put another 120,000 barrels per day of crude oil on the rails by next year — is occurring at a time when the Transportation Safety Board reported a significant increase in “uncontrolled train movements” during 2014-17 compared to the average of the five years preceding the disaster.


Read more: Technology to prevent rail disasters is in our hands


This is despite the board’s Lac-Mégantic investigation report recommendation that Transport Canada implement additional measures to prevent runaway trains.

Two weeks after the B.C. crash, a CN train carrying crude oil derailed near St. Lazare, Man.; 37 tank cars left the tracks, punctured and partially spilled their contents. The cars were a retrofitted version of the TC-117 model tank car, developed after Lac-Mégantic, intended to prevent spills of dangerous goods. The train was travelling at 49 mph, just under the maximum allowable speed.

Budgets chopped

In the lead-up to the Lac-Mégantic disaster, the Harper government squeezed bothTransport Canada’s rail safety and transportation of dangerous goods oversight budgets. These budgets did not increase significantly after the disaster.

Justin Trudeau’s government pledged additional resources for rail safety oversight. However, Transport Canada’s plans for the coming years show safety budgets falling back to Harper-era levels. It remains to be seen whether these plans will be reversed in the upcoming federal budget.

Safety Management Systems-based approach remains the centrepiece of Canada’s railway safety system. That system been fraught with problems since it was introduced 17 years ago.

It continues to allow rail companies to, in effect, self-regulate, compromising safety when it conflicts with bottom-line priorities. Government officials claim there has been a major increase in the number of Transport Canada rail safety inspectors conducting unannounced, on-site inspections. But the inspectors’ union questions these claims.

If an under-resourced regulator, with a long history of deference to the industry, is unable to fulfil its first-and-foremost obligation to ensure the health and safety of its citizens, the lessons of Lac-Mégantic have still not been learned. The B.C. accident highlights that the window for history to repeat itself remains wide open.


This article is republished with permission. It was first published on The Conversation website.

About the Authors Authors

Mark Winfield is a Professor of Environmental Studies, York University, Canada

Bruce Campbell is an Adjunct professor, York University, Faculty of Environmental Studies, York University, Canada

Are New United States Regulations Coming for Accidental Releases into Air?

By Louis A. Ferreira, Willa B. Perlmutter, and Guy J. Thompson, Stoel Rives LLP

On February 4, 2019, a federal court ruled that the U.S. Chemical and Safety Hazard Board must issue regulations within one year that set forth reporting requirements for accidental releases of hazardous substances into the ambient air. This requirement has been part of the Board’s statutory mandate since its inception in 1990 pursuant to Section 112(r)(6)(C)(iii) of the Clean Air Act (“CAA”). Nevertheless, the Board has never issued any such regulations.

Four non-profit groups and one individual filed a one-count complaint against the Board, seeking declaratory relief and an injunction to compel the Board to promulgate reporting requirements as required by the CAA. Plaintiffs claimed that the Board had violated the Administrative Procedure Act by not issuing any regulations. Plaintiffs further asserted the lack of reporting requirements have impaired their respective abilities to collect information that would help prevent future releases and the harm caused from such releases.

The United States District Court for the District of Columbia agreed with the plaintiffs and ruled that the Board must issue regulations within one year. In reaching its decision, the Court rejected the Board’s defenses that the delay in promulgating regulations was reasonable given the Board’s limited resources, small staff size, and other required functions. “[I]f that is the case,” the Court said, “the solution to its resource constraints is not to ignore a congressional directive[,] [i]t is to return to Congress and ask for relief from the statutory requirement.” The case is Air Alliance Houston, et al. v. U.S. Chem. & Safety Hazard Investigation Bd., D.D.C., No. 17-cv-02608, February 4, 2019.

The Court’s decision appears to follow a similar one issued in August 2018 in which some of the same plaintiffs brought a complaint against the U.S. Environmental Protection Agency. In that case, the plaintiffs petitioned the D.C. Court of Appeals for review of the EPA’s decision to delay for 20 months the effective date of a rule designed to promote accident safety and enhance the emergency response requirements for chemical releases. The Court rejected all of EPA’s defenses justifying the delay in a strongly-worded opinion that held the agency strictly to the letter of the CAA. That case is Air Alliance Houston, et al. v. EPA, 906 F.3d 1049 (D.C. Cir. 2018).

The same directness is evident in this recent decision.

Ultimately, the practical effect of the ruling is not clear. There are already laws in place that require companies to report accidental releases to state and federal authorities. It is possible the Board will promulgate regulations that align with its current practice of deferring reporting requirements to other agencies. If the Board took that approach, there likely would not be a noticeable difference in reporting requirements from the current practice.

On the other hand, the two recent decisions discussed above suggest that a trend may be forming in which the courts are pushing back when the government steps off its clear statutory path.


This article has been republished with the permission of the authors. The original post of this article can be found on the Stoel Rivers LLP website.

About the Authors

Lou Ferreira is a senior partner with more than 27 years of complex trial experience.  His practice focuses on commercial litigation, insurance coverage and environmental, safety & health issues.  A seasoned litigator, Lou has significant experience in high-stakes litigation including successfully defending a class action filed against a utility by residents of a town in Washington asserting that the utility was liable for flooding as a result of the operations of its upstream dams.  Lou  successfully defended a port in Washington from a $20 million lawsuit brought by developers alleging breach of contract to develop a large mixed-use waterfront project on the Columbia River. 

Willa Perlmutter has more than 30 years of experience as a litigator, focusing for the last 20 on defending mine operators across all sectors of the industry in administrative enforcement proceedings brought by the Mine Safety and Health Administration (MSHA) for alleged violations of the Mine Act.  In addition, she regularly counsels clients on a broad range of issues that affect their mining operations, from personnel policies and actions to compliance with a broad range of federal statutes. Willa regularly defends companies and individuals facing investigations and formal legal proceedings for alleged safety and health violations under both the Federal Mine Safety and Health Act of 1977 and the Occupational Safety and Health Act of 1970, whether those arise out of a catastrophic event, such as an accident, or in the course of a regular inspection by MSHA or Occupational Safety and Health Administration (OSHA). She has successfully defended a number of mining companies in whistleblower cases brought under the Mine Act.

Guy Thompson is a litigator and advisor on a wide-range of insurance matters. His practice focuses on insurance coverage litigation, including natural resources/environmental insurance coverage, and a wide variety of risk management issues. Guy helps policyholders obtain the recovery they deserve from their insurers and has helped recover millions of dollars from insurance companies for his clients. Guy is skilled at getting insurance carriers to cooperate in paying claims and often secures settlements with insurers without the need for litigation. Recently, he helped recover over $1.65 million from multiple insurance carriers for a Portland company that was required to perform environmental cleanup by the Oregon Department of Environmental Quality.