Get Rid of Outdated Hazmat Compliance Materials

Written by Hazmat University

Spring is in the air! And along with that comes the pleasant and incessant urge to clean closets, declutter the house, and scrub the whole thing down!  Something that we may overlook, however, is that Spring is also a perfect time to do a Hazardous Materials refresh – and it doesn’t involve washing walls!  

Spring Clean and Keep Current Hazmat Compliance Materials

Spring is also an ideal time to do a Hazardous Materials refresh. Many people avoid this kind of clean-up because they don’t know what they should keep and for how long. But hazmat compliance is dependent on maintaining current knowledge and current practices. Now really is an excellent time to make sure that your hazardous materials are current, relevant, and not overly burdensome for the people that need them to properly do their jobs.

Out With The Old, Hold On to the Current

Do you have a tendency to hold on to outdated materials, forms, or labels? If you are, stop immediately. Hazmat compliance materials are detail-oriented to begin with, so the simpler, clearer and less cluttered, the better. You’ll be happy you did it. Outdated materials present the danger of actually being used by someone and causing an issue. Good riddance, old subsidiary risk labels!

Which Important Documents Should You Keep?

As regulations for shipping dangerous goods increase in complexity, there’s no reason to keep information laying around that could increase your risk for non-compliance, including stopped shipments, supply chain delays, fines and more.

The industry makes sweeping changes all the time, making it all the more important to only have up-to-date regulations on hand. If your printed copies of 49 CFR, IATA DGR, or the IMDG Code are outdated, it may be time to move on to online resources. An example of an online resource is Title 49 CFR   “e-CFR” which is available online, and the Government Publishing Office maintains it so that it is always up-to-date.

Compliance is dependent on maintaining current knowledge and current practices, and this is a perfect time to ensure that your hazardous materials

  • regulations;
  • policies;
  • practices;
  • employee training;
  • training content;
  • training records;
  • packaging closure instructions;
  • internal audits;
  • emergency response provider product information;
  • and more

are current, relevant, and not overly burdensome for the people that rely on them to properly do their job. Hazardous materials transportation compliance is detail-saturated to begin with, so the simpler you can make it, the better – and you’ll be happy that you did.

Making sure you discard old training and compliance documents is crucial, especially if you have new or inexperienced hazmat employees. Remembering all the regulations for various shipping transportation processes can be difficult. That’s part of the reason why it’s crucial to stay up-to-date on regulations.

It’s also critical that hazmat employees have access to transportation regulations at all times in case they need to refer to them. Remembering the most essential aspects of hazmat compliance becomes second nature for most employees, but that happens over time.

Stay Up-to-Date with Hazmat University

Everyone involved in the transportation of hazardous materials in commerce is required by law to be aware and comply with the appropriate regulations. Hazmat University offers several training programs for shipping and handling hazmat by air, ground, and sea. Courses include initial training for novices, recurrent training for those with more experience.

Now we can take a breath of that fresh spring air, and just maybe we have inspired you to clean out those closets too! Happy Spring from the Bureau of Dangerous Goods!

Montreal’s $75 million grant program for brownfield redevelopment

The City of Montreal has $75 million available in grants it will be giving away to encourage redevelopment of brownfield sites in the City. The funding was made available from the Quebec government last year.

Map of the City of Montreal outlining the Island of Montreal

The Funds will be available for eligible developers that decontaminated brownfields within the city and redevelop them. The money is to be spent between now and 2022.

Quebec Environment Minister Chantal Rouleau with Montreal Mayor Valerie Plante

Montreal Mayor Valerie Plante said a portion of the fund will also go toward decontaminating buildings. “It’s huge because I hate to say it but the entire island of Montreal is contaminated except for the existing greenlands of course. So every time we want to attract businesses, big investments, and they want to build something somewhere, and even for housing or anything; schools, parks, everything, we need to go through the decontamination phase,” said Ms. Plante.

The grants will cover 15 to 70 percent of costs for eligible projects. The remainder of the clean-up costs would need to come from the other parties involved.

Companies or developers will present their projects to the city and Montreal will grant an amount based on the type of project presented and its environmental-friendliness.

Southern Railway pleads guilty to Canadian TDGA violations

New Brunswick Southern Railway recently pled guilty to two of the 24 charges that had been laid against it under the Canadian Transportation of Dangerous Goods Act (TDGA). The charges deal with the mislabeling of tank cars by untrained staff.

The case stems from a Transport Canada investigation triggered by the Lac-Mégantic derailment and fire that killed 47 people in Quebec in July 2013.

Although that train the derailed at Lac-Mégantic  belonged to another railway — Montreal, Maine and Atlantic — and was travelling on that company’s track, the crude rail cars were destined for Saint John, New Brunswick and were to travel on NB Southern Railway track.

“The offences that we had in this case has no relation to Lac-Mégantic whatsoever,” federal prosecutor Denis Lavoie told reporters outside the courthouse following the guilty pleas made by Southern Railway

Investigators found that 6,800 tank cars of crude sent out prior to the Lac-Mégantic disaster had incorrect documentation prepared by untrained and uncertified NB Southern staff.

Twelve of the initial charges, under the Transportation of Dangerous Goods Act, related to failing to create proper shipping documents for the purpose of transporting petroleum crude oil. The other 12 charges related to having unqualified personnel complete the documentation.

Through a settlement, New Brunswick Southern Railway agreed to pay $10,000.00 in fines and $40,000 to be invested in improving the safety of the transportation of dangerous goods in Canada.

The Honourable Marc Garneau, Minister of Transport, stated the following in a press release: “As Minister of Transport, my thoughts continue to go out to the community of Lac-Mégantic and all those affected by this tragedy. Today, we close another chapter in this tragic event through a settlement that we have reached with New Brunswick Southern Railway.”

Windsor provides $10.5 million in incentives to develop brownfield site

Farhi Holdings Corporation has been approved for almost $10.5 million in financial incentives from the City of Windsor as part of the Brownfield Redevelopment Community Improvement Plan.

The developer has owned a 24.5 hectare (60 acre) piece of vacant land next to the WFCU Centre, Windsors sports and entertainment complex, since 2005. It had been zoned industrial and had been the home of a GM trim plant and other industrial operations.

Farhi is working toward developing the site as office/retail/commercial space that will include 119 detached residential lots, four townhouse blocks, five multiple dwellings buildings, and a hotel. Approximately 3.1 hectares will remain for commercial development. The redevelopment is estimated to cost $59 million. The company is anticipating that work at the site will begin in the Fall.

The 24.5 hectare property represents approximately 11 percent of the City of Windsor’s brownfield inventory. It’s location next to the WCFU Centre makes it an ideal redevelopment opportunity.

The Windsor Brownfield Redevelopment Community Improvement Plan is designed to encourage the development of brownfields by offering incentives for development. In case of the Farhi Holdings property, the
$10.5 million in incentives from the City of Windsor will be in the form of tax breaks over a 13 year time period.

Farhi Holdings had a consultant conducted an environmental site assessment and estimate the cost of remediation. The environmental report estimates that 31,215 cubic metres of contaminated soil will need to be removed and replaced with clean fill. The total estimated cost for remediation and demolition work at the property is $6.4 million.

One section of the property (the area for the proposed hotel) has already been remediated and is not part of brownfield redevelopment incentive agreement. The hotel, once built, would generated between $380,000 to $450,000 in annual property tax revenue to the City.

A search of the Record of Site Condition (RSC) registry shows that one has not yet been filed for the property – 1600 Lauzon Road. Typically, an RSC is required prior a property zoning being changed. An RSC is a record of the site conditions and includes information on any remedial activity and the level of contamination at a site.

Farhi Holdings Corporation is a real estate and development company based in London, Ontario. The company was founded in 1988.

Quebec to Track Contaminated Soil Movement in Real Time

The Quebec Government recently announcement that it will adopt the regulation that will include the implementation of a system in which the movement of contaminated soil will be tracked in real time. Under the tracking system, the site owner, project manager, regulator, carrier, and receiving site, and other stakeholders will be able to know where contaminated soil is being shipped from, where it’s going, its quantity and what routes will be used to transport it.

Contaminated soil will be tracked in real time, starting from its excavation, through a global positioning system. The system, Traces Québec, is already in place in Montreal as part of a pilot project launched last March.

Traces Quebec , an initiative of Réseau Environnement in partnership with WikiNet , offers the first integrated traceability solution for contaminated soils in Quebec. Performing on a web platform, the Traces Quebec traceability system allows contaminated soil owners to follow in real time the movement of their materials and to have an encrypted, confidential and archived trace of the displaced materials. In an era of transparency and eco-citizenship, Traces Québec allows contaminated soil owners to demonstrate beyond any doubt their exemplary management of these materials.

Combining the Internet of Things (IoT) and artificial intelligence, Traces Quebec is an independent application that allows complete traceability of materials to their destination. Transactions are encrypted, unalterable and private, and compatible with smart phones and conventional GPS fleet systems.

With a system such as Traces Québec, all players in the field in Quebec will benefit from increased traceability and responsible management of transported excavated materials, particularly treatment, transfer stations and landfills, which will increase the volume materials shipped to their sites. Owners of these materials concerned with their good management, including municipalities, will also come out winners and can easily testify to their good management. Management in compliance with the laws and regulations concerning the protection of the environment; this is the essential contribution of Traces Québec.

The Quebec government also intends to increase he number of inspections on receiving sites. Furthermore, fines will be increased for those taking part in illegal dumping — from $350 to $3 million depending on the gravity of the offence, the type of soil and if they are repeat offenders, among other criteria.

How the GPS tracking system works

B.C. Court Case on the requirements of Insurance Companies to defend pollution lawsuit against client

The British Columbia Court of Appeal recently issued a decision that overturned the ruling of the Supreme Court of B.C. on the responsibility of two insurance companies to pay for environmental clean-up under their general liability coverage.

The case deals with West Van Holdings Ltd. (“West Van”) and West Van Lions Gate Cleaners Ltd. (“Lions Gate”) claiming their general liability insurance requires their insurers to defend them for any claims against them and cover any damages arising out of contaminants alleged to have migrated from property owned and used by them, to adjacent lands.

Lions Gate Dry Cleaners, 1987 (Photo Credit: William McPhee)

The B.C. Court of Appeal is the highest court in the province. It hears appeals from the B.C. Supreme Court, from the Provincial Court on some criminal matters, and reviews and appeals from some administrative boards and tribunals.

The B.C. Court of Appeal ruling means that the two insurance companies do not have to defend a Vancouver area dry cleaner or its holding company against a lawsuit filed by its neighbours alleging soil contamination.

The B.C. Court of Appeal noted that the “policies do not include coverage for liability arising before the policy periods”, as one justification for overturning the Supreme Court of B.C.’s original ruling.

In December 2017, the Supreme Court of B.C. had issued a decision which required two insurance companies to defend a pollution lawsuit against the owner of a dry cleaning business. The dry cleaner was being sued for allegedly contaminating neighbouring properties.

The two insurance companies argued that they were not responsible for paying for the environmental damages because pollution was excluded from both of their applicable general liability policies. The Supreme Court of B.C. dismissed their argument and stated, in short, that the pollution exclusion must “clearly and unambiguously” exclude coverage. Moreover, the Court stated that the pollution exclusion must apply to “all of the claims made against the insured” in order to free the carriers of their duty to defend.

In its ruling, the Supreme Court of B.C. viewed the construction of the pollution exclusion and more specifically the words “…premises owned, rented or occupied by an Insured…” as ambiguous with respect to coverage for remediation costs arising from pollutants that may have been used before the insured owned and/or operated on the premises.   Further, the Court noted that the pollution exclusion lacked clarity on whether the exclusion extends to “concurrent liability, contributory liability or retroactive liability” attaching to the insured by statute. 

U.S. DOE seeking contractor to provide supplemental organic treatment at Superfund Site

The United States Department of the Energy (U.S. DOE) Washington River Protection Solutions LLC recently issued an Expressions of Interest (EOI) from contractors capable of providing a supplemental organic treatment system for one the 200 Area effluent treatment facility (ETF) at the Hanford Superfund Site.

The Hanford Site is a decommissioned nuclear production complex operated by the United States federal government on the Columbia River in Benton County in the U.S. state of Washington.

The main treatment train at ETF currently eliminates the hazardous characteristics of the waste and allows for delisting the effluent. Beginning around January 2022, the ETF will receive a new wastewater stream that will be generated nearly continuously for a period of ~40 years and is anticipated to contain at least four organic constituents-acetonitrile, acrylonitrile, acetone, and methylene chloride-in concentrations that exceed the expected performance range for the existing system.

Input is requested from Industry to enable an evaluation of an off-the-shelf procurement and a procurement/design activities solution to meet the future requirement. Expressions of interest are due by 9:00 AM PT on May 6, 2019.

More information is available here: https://www.fbo.gov/spg/DOE/CHG/ORP/EOI-KJF-19-04-01/listing.html

About the Hanford Site

Established in 1943 as part of the U.S. Manhattan Project in Hanford, south-central Washington, the site was home to the B Reactor, the first full-scale plutonium production reactor in the world.

Most of the reactors were shut down between 1964 and 1971. The last reactor at the Hanford site operated until 1987. Since then, most of the Hanford reactors have been entombed (“cocooned”) to allow the radioactive materials to decay, and the surrounding structures have been removed and buried.

In 1989, the State of Washington (Dept. of Ecology), the U.S. Environmental Protection Agency (EPA), and the U.S. Department of Energy (DOE) entered into the Tri-Party Agreement which sets targets, or milestones, for cleanup. The U.S. EPA and State of Washington Dept. of Ecology share regulatory oversight based on Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, also referred to as Superfund) and the Resource Conservation and Recovery Act (RCRA).

The U.S. Department of Energy (DOE) Office of River Protection (ORP) operates the 200 Area ETF. The ETF has been treating wastewaters from processing activities at the Hanford Site since 1994. The main treatment train at ETF includes, in order: pH adjustment; coarse filtration; ultraviolet/hydrogen peroxide oxidation (UV/OX); pH adjustment; excess peroxide decomposition; degasification; fine filtration; reverse osmosis (RO); and, ion exchange (IX).

To date, $15 billion (U.S.) has been spent on clean-up efforts at the Hanford site. In 2014, the estimated cost of the remaining Hanford clean was $113.6 billion (U.S.). Clean-up was estimated to occur until 2046. There are over 10,000 workers on site to consolidate, clean up, and mitigate waste, contaminated buildings, and contaminated soil.

Supreme Court of Canada refuses leave to appeal of dry cleaner liable for $1.8 million clean-up

The Supreme Court of Canada recently dismissed a Leave to Appeal from an Ottawa dry cleaner that had been held liable for $1.8 million in clean-up costs from spills of dry cleaning chemicals that occurred approximately 45 years ago.

In most legal cases, a party who wishes to appeal the decision of a lower court must obtain permission, or leave to appeal, from the higher Court.  Generally, the losing party in a lawsuit may appeal their case to a higher court. If the higher court denies the leave to appeal, the decision of the lower court stands. If the court grants the appellant leave to appeal, the appeal process continues.

In June of 2018, the Ontario Court of Appeal released a decision dealing with the case Huang v. Fraser Hillary’s Limited. The owner of contaminated property, Mr. Huang, had sued the owner of a dry cleaner business who contaminated Mr. Huang’s property, Fraser Hillary’s Limited (FHL). Mr. Huang owns two commercial properties in Ottawa that are directly south of FHL’s property.

FHL, 1235 Bank St., Ottawa (Photo Credit: Google Maps)

From 1960 onwards, FHL operated a dry cleaning business. Mr. Hillary, the president and sole director of FHL. Spills of dry cleaning solvents containing tetrachloroethylene (PCE) and trichloroethylene (TCE) were known to have occurred between 1960 and 1974 at FHL’s dry cleaning operation. Up to the mid‑70s, the adverse effects of dry cleaning chemicals were generally unknown or not clearly understoodty. In 1974, FHL bought new equipment and used new practices that eliminated the potential for subsequent spills.

In 2002, Mr. Huang discovered TCE at his properties after a an environmental site assessment. He subsequently sued FHL and Mr. Hillary for the cost of the environmental investigations and the clean-up of his property.

In 2017, the Ontario Superior Court of Justice awarded more than $1.8 million in damages to Mr. Haung to clean up his properties and reimburse him for the monies he paid for the environmental investigations conducted on his property. A summary of the 2017 decision can be found here.

After failing in his appeal to the Ontario Court of Appeal, Mr. Hillary applied for leave to the Supreme Court of Canada (SCC). On April 11th, the SCC announced it will not hear an appeal. The top court does not issue reasons for denying leave to appeal.

Ontario: Fine of Ammonia Release to the Environment

Air Liquide Canada was recently fined $100,000 for an offence under the Ontario Environmental Protection Act. The company was found by the court to have permitted the discharge of a contaminant (ammonia) into the natural environment, which was likely to cause an adverse effect.

Air Liquide is a major producer of gases, technologies, and services for Industry and Health Care sectors. Air Liquide is present in 80 countries with approximately 66,000 employees and serves more than 3.6 million customers and patients.

Air Liquide Canada operates a facility in the County of Lambton, near the City of Sarnia, which produces food grade carbon dioxide and is supplied with raw carbon dioxide from a neighbouring supplier. The carbon dioxide flows from the supplier through a dedicated pipeline, which is then liquefied and purified with the assistance of an ammonia-based refrigeration system.

The Air Liquide facility is staffed during daytime hours seven days a week but does not have staff on-site during the night.

On April 16, 2017, in the early morning hours when no staff were at the faciltiy, the flow of raw carbon dioxide unexpectedly increased. As a result, raw carbon dioxide exceeded the refrigeration capacity at the facility and caused approximately 815 kg of ammonia to vent through cooling system pressure release valves.

Ammonia can have corrosive effects on the respiratory system and can cause severe skin burns and eye damage.

At a distribution plant approximately one kilometer downwind from the facility, two employees were forced to seek shelter from the ammonia odour, leaving the distribution plant unattended and creating a potentially dangerous situation. One of the employees experienced eye and throat irritation.

The Investigations and Enforcement Branch (IEB) of the Ontario Environment Ministry investigated and laid charges resulting in one conviction.

Air Liquide Canada was convicted of one violation under the Ontario Environmental Protection Act and was fined $100,000 plus a victim fine surcharge of $25,000, with eight months to pay the fine.

Environmental Liability Risk Faced by Directors of Dissolved Companies – Getting around the Gehring Defence

Written by Una Rodaja, Harper Grey LLP

Once upon a time, you were a director of a company that owned a parcel of land in the Greater Vancouver area.  A dry-cleaner and an auto-repair shop operated on the property, but you were not too concerned about environmental liability.  This was the 80s after all and the rent was good!  Your tenants caused some environmental contamination, which you addressed when your company sold the site in 1990.  You dissolved your company a year later and forgot all about it.

The property is now owned by a developer who is seeking to build a residential tower on the property.  To do so, the developer is required to investigate and remediate contamination that remained on the property after your company sold it.  Standards have changed and the limited remediation your company did years ago no longer meets the applicable standards.  Your old tenants (both sole proprietorships) are long gone and the developer is seeking to hold you personally liable for the costs of remediation.  You did not personally operate on or own the property, so are you really at risk?  A recent BC Supreme Court case says you are.  Here we explain how and why.

Directors of existing corporations are “responsible persons”

Under BC’s Environmental Management Act[1], a director or officer of a company that owns or operates on, or has historically owned or operated on, a contaminated site is a “person responsible for remediation” of that site simply by virtue of their position with the company.[2]  Such directors and officers can be liable to pay reasonable costs of remediation incurred by anyone in respect of the site owned or operated on by their company, if they authorized, permitted or acquiesced to the activity that gave rise to the cost of remediation.[3]

Directors of dissolved corporations are not “responsible persons”

Although the language establishing the categories of “responsible persons” under BC law is very broad, it is not without limit.  For example, it does not include “persons” who have ceased to exist, such as dissolved corporations.  This was made clear by the BC Supreme Court in a seminal decision called Gehring[4].  The case has undoubtedly motivated many corporate dissolutions by directors and officers seeking to shield themselves from personal liability for contaminated sites owned or operated on by the companies they served.

Dissolved companies can be restored – then what?

However, in the recent decision of the BC Supreme Court in Foster v. Tundra Turbos Inc.[5], a director of a long-dissolved corporation that owned and operated on contaminated land faced exposure in an action to recover environmental remediation costs by virtue of an application to restore the company to the corporate registry.  The company in question, Tundra Turbos Inc., was incorporated in 1978, and was dissolved in 2000.  Prior to its dissolution, it had a single director, one Mr. Clarke. The Plaintiff sought to hold Mr. Clarke liable for the costs of remediation incurred in respect of the property, some 17 years after Tundra had dissolved.  The question before the court was whether it was appropriate to restore Tundra and reconstitute Mr. Clarke’s directorship to make it possible for Tundra and Mr. Clarke to be liable for the costs incurred by the Plaintiff in remediating the property owned by Tundra in the late 1980s and early 1990s.  Tundra and Mr. Clarke presented several arguments against the restoration, including that Mr. Clarke would lose the Gehring defence, a substantive right, and that Tundra’s records pertaining to its operations at the property were destroyed, given the length of time involved.  The court rejected these arguments and ordered the restoration.

In the court’s view, there was nothing inherently unfair in the fact that companies and directors may be exposed to liability under BC’s environmental legislation many years after their association with a contaminated property ended.  Further, the right of a company and its directors to avoid liabilities for which they would have been exposed but for the dissolution is not the kind of right protected by legislation.  In fact, a legitimate purpose of restoring a company is to facilitate the imposition of such liabilities.  While destruction of the dissolved company’s records may, in certain circumstances, result in the court rejecting an application to restore, in Tundra’s case there was no prejudice arising from the loss of records because it was clear, on the facts, that had Tundra not been dissolved, it would have been responsible for the costs of remediation.  If anything, the lost records caused more prejudice to the Plaintiff than Tundra’s director, Mr. Clarke, who had personal knowledge of Tundra’s activities on the site.

In addition, the fact that Mr. Clarke could potentially face personal liability even without Tundra being restored (on the basis that he personally had the right to control, was in control of or responsible for any operation on the site in question) did not have a bearing on the restoration application.  The court recognized that it was easier to hold Mr. Clarke liable if he was responsible solely by virtue of his status as director, which could only be done if the company was restored.

Implications of the Tundra Decision

The Tundra case is an important example of creative counsel work to get around the Gehringdefence.  However, notwithstanding the outcome in that case, there are arguments to be made in future cases to avoid the restoration and, ultimately, responsible persons status for the director in question.  Existence of a limitation defence and loss of evidence that would assist in the defence of the director in question, or unreasonable delay of the Plaintiff in bringing the restoration application, may well result in the application being denied.

For lawyers advancing cost recovery claims, the Tundra case is a good reminder of the need to look at dissolved corporations and their directors and officers, and the need to apply for restoration, in a timely fashion.  For those defending these claims, and restoration applications, finding prejudice, beyond the mere loss of the Gehring defence, will be key.

[1] S.B.C. 2003, c. 53 (“EMA”)

[2] EMA, ss. 39(1), 45

[3] EMA, ss. 47(5); Contaminated Sites Regulation, s. 35(4)

[4] Gehring v. Chevron Canada Ltd., 2006 BCSC 1639, para. 55

[5] Foster v. Tundra Turbos Inc., 2018 BCSC 563

About the Author

Una Rodaja is a partner in Harper Grey’s Commercial Litigation and Environmental Regulation & Disputes practice groups. Una frequently lectures on various aspects of contaminated sites law for the Pacific Business and Law Institute, BC Environmental Industry Association, the Environmental Managers Association, and the BC Continuing Legal Education Society.  She is the co-author of BC Environmental Management Legislation and Commentaryand the recipient of the 2017 Lexpert® Leading Lawyers Under 40 award. Una is recognized by the 2018 Canadian Legal Lexpert® Directory as a Leading Lawyer to Watch in the area of corporate commercial litigation and by Benchmark Canada® as a Future Litigation Star. She has also been recognized by Best Lawyers® in Canada 2019 as a “Leading Lawyer in the area of Environmental Law.