How does After Action Review benefit HazMat training?

Written by Steven Pike, Argon Electronics

Emergency response teams are constantly looking for ways to improve their operations.

Simulated exercises, training classes and seminars can all provide valuable insight into tactics and technologies that can be applied in real life HazMat incidents.

However unless feedback on incident response and command is recorded (and can be easily shared with personnel), a valuable learning opportunity can risk being lost.

An effective way to enhance learning outcomes is through the use of a post-incident critique or After Action Review (AAR).

An AAR is a structured means of analyzing what took place during a particular training exercise or event to identify strengths, weaknesses and areas for improvement.

As well as providing a method to scrutinize the actions that occurred, an AAR is also an opportunity to consider what could have been done differently – both by those who took part in the exercise and by those who were in charge.

The evolution of AAR

The origins of After Action Review can be found in the US military where formal AARs evolved out of the combat action debriefs that were carried out during World War Two and the Vietnam war.

The use of AAR in a military context has also been documented in the memoirs of Chinese military leader Gong Chu’s during the 1934-1938 three-year war in South China; and by Emperor Napolean’s Marshall’s and Generals in the early 19th century.

Military AARs fall into two types – formal AARs (which require detailed planning, preparation and resources) and informal AARs (which take the form of on-the-spot reviews of individual or group training performance).

Over the years, a wide variety of public health and emergency management agencies have recognized the value of AARs – using them within training programs to aid better understanding of the perspectives and expectations of all involved and to capture crucial learning that can be widely shared.

One potential challenge with any form of realistic HazMat training exercise is that much can be going on in a relatively short time-frame. When the exercise ends, participants can sometimes find that many of the events, and the associated learning opportunities, have become a “blur” in their minds.

A 2018 article in the online magazine FireEngineering.com discussed how taking a “stop-and-start” approach to full-scale HazMat training exercises can help to cement learning. By breaking up the scenario into several smaller sections with regular breaks for review, there is the opportunity to discuss what’s just happened, to explore alternative tactics, to quickly correct any misunderstandings and to enhance exercise efficiency.

In addition there is also the advantage of being able to ensure that departmental procedures and guidelines are being followed, and that they are modified when necessary.

The application of AAR in simulator detector technology

The integration of AAR capability into simulator detector technology has been shown to reveal important lessons that improve professional practice, minimize risk and enhance communication.

When we think about AAR in the context of a simulator detector, it is the technology within the device itself (rather than a human) that maintains a record of all the activity.

The simulator version of the LCD3.2 Chemical Hazard Detector (the LCD3.2e) is just one example of a device that keeps a record of all real-time trainee movement – from the initial set-up of the equipment through to the completion of the exercise.

Once the scenario has concluded, the instructor is able to easily switch the device to display a detailed (and indisputable) performance report.

AAR is a powerful and constructive way to obtain valuable knowledge that can improve processes and enhance training efficiency – be it in the form of constructive group discussion, via fact-finding exercises or by harnessing the intelligent technological capability of simulator detectors.

The process of regularly critiquing can serve as a powerful tool for understanding the impact of one’s actions and effecting change.

And by regularly comparing the “expected outcome” with what “actually happened”, adjustments and improvements can continually be made, to improve safety at both an individual and an organizational level.

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.

Environmental Due Diligence And Managing Environmental Risk – Part 1: Overview Of Saskatchewan Environmental Regulatory Landscape

Written by Christopher J. Masich, McKercher LLP

Today environmental due diligence and managing environmental risk are fundamental aspects of most (if not all) commercial transactions. Whether acting for developer, buyer, seller, purchaser, lessor, lessee, or financier, and whether in the context of M&A, real estate, project development or otherwise, some form of environmental due diligence or environmental risk management is necessary. Due diligence leading to the discovery of environmental liability (or even the potential of environmental liability) often causes an instinctive negative reaction. Fortunately, proper environmental risk management may be the difference between closing a transaction with economic success or not. To ensure economic success, it is incumbent upon legal counsel to assist clients in completing environmental due diligence and managing environmental risk.

This Resource Update is the first of a series of updates that will summarize the range of possible environmental issues, the patchwork provincial and federal regulations in Saskatchewan, the differences among Saskatchewan’s key industries, and the nuances of each type of commercial transaction. A prerequisite to any discussion of environmental due diligence and environmental risk management is a strong understanding of environmental regulations and potential liabilities that exist at common law in Saskatchewan. These are discussed in this Resource Update.

The Saskatchewan Environmental Regulatory Landscape

Environmental regulation in Saskatchewan is a patch-work of provincial and federal legislation administered by several government departments. While the management and protection of the environment in Saskatchewan is principally (but not exclusively) provided for under The Environmental Management and Protection Act, 2010, many environmental matters and industries with environmental impacts may also be regulated under the following Saskatchewan legislation and regulations promulgated under these Acts:

  • The Agricultural Operations Act
  • The Cities Act
  • The Conservation Easements Act
  • The Crown Minerals Act
  • The Dangerous Goods Transportation Act
  • The Ecological Reserves Act
  • The Environmental Assessment Act
  • The Environmental Management and Protection Act, 2010
  • The Fire Safety Act
  • The Fisheries Act (Saskatchewan), 1994
  • The Forest Resources Management Act
  • The Heritage Property Act
  • The Management and Reduction of Greenhouse Gases Act
  • The Mineral Resources Act, 1985
  • The Mineral Industry Environmental Protection Regulations, 1996
  • The Municipalities Act
  • The Natural Resources Act
  • The Oil and Gas Conservation Act
  • The Pest Control Act
  • The Pipelines Act, 1998
  • The Provincial Lands Act, 2016
  • The Sale and Lease of Certain Lands Act
  • The Public Health Act, 1994
  • The Reclaimed Industrial Sites Act
  • The Saskatchewan Employment Act
  • The Water Security Agency Act
  • The Weed Control Act
  • The Wildlife Act, 1998
  • The Wildlife Habitat Protection Act

This list is illustrative only and not exhaustive of all Saskatchewan environmental legislation, and not inclusive of applicable Federal legislation. Once due diligence has been “scoped” based on the particular industry and transaction, legal counsel and environmental consultants will fully review applicable Saskatchewan and Federal legislation.

In addition to Government legislation and regulation, environmental liability may be based on traditional common law tort claims of private and public nuisance, riparian rights, strict liability, trespass, negligence and negligent misrepresentation, deceit and fraudulent misrepresentation, breach of the duty to disclose, breach of the duty to warn, breach of fiduciary duty and waste. The following is a brief summary of each of these common law tort claims.

  • Private Nuisance. Private nuisance provides that a defendant may not cause substantial or unreasonable interference with the plaintiff’s use and enjoyment of its land.
  • Public Nuisance. Public nuisance is broader than private nuisance in that it confers a right of action for damages arising from the defendant’s use of its land even though no rights to the plaintiff’s land have been affected, but is restricted in that a plaintiff can only claim if it has suffered special or particular damage over and above that suffered by the public at large.
  • Riparian Rights. Riparian rights protect a plaintiff’s right to the flow of waters over its property without serious alteration in quantity or quality.
  • Strict Liability (Rylands v. Fletcher). Strict liability is a tort that varies slightly from negligence, nuisance and trespass. It generally requires the use of the land to be ‘non-natural’, followed by an escape, leading to mischief and compensable damages.
  • Trespass. Trespass is any invasion of property however slight and, in the context of environmental trespass, it must be proven that the defendant intentionally caused the contaminant to enter the plaintiff’s land.
  • Negligence and negligent misrepresentation. A successful claim of negligence requires the plaintiff to prove that the defendant breached a duty of care owed to the plaintiff, which caused the plaintiff to suffer damages.
  • Deceit or fraudulent misrepresentation. Fraudulent misrepresentation occurs when a defendant knowingly makes a false representation with the intent to deceive the plaintiff, and the representation induces the plaintiff to act, resulting in damages.
  • Breach of the duty to disclose. Similar to fraudulent misrepresentation, a party may be under a duty to disclose information that would be a benefit to the other party. This duty generally arises under the scope of a fiduciary duty, but may also exist under certain contractual relationships, such as real property transactions and lease transactions.
  • Breach of duty to warn. In certain contexts, there is a specific duty to warn that exists separate and apart from the duty to disclose and fiduciary duty. The duty to warn arises when facts or circumstances exists which may cause another person physical damage or harm. In the context of the environment, this duty may arise in manufacturer product liability cases or with the mishandling of hazardous substances.
  • Breach of fiduciary duty. The fiduciary duty is a special duty of utmost good faith and includes a duty of confidentiality and a duty to make full disclosure.
  • Waste. In lessor and lessee relations, a lessee may not commit waste against the lessor’s reversionary interest. Waste in this sense causes lasting injury to the reversion interest and may be due to a positive act or due to neglect or omission.

Environmental claims are often grounded in contract law. It is not possible to summarize the countless ways a contractual breach may occur but, in the context of the environment, such claims tend to relate to: onsite (historic) contamination, migration of contaminants, misrepresentations, indemnity claims, actions or omissions under lease tenancies and insurance coverage denial.

In Part 2 of our series on Environmental Due Diligence and Managing Environmental Risk, we will discuss early stage planning and scoping due diligence to set parameters and establish the framework for the due diligence process – arguably the single most important task of a transaction.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


About the Author

Christopher J. Masich is a Partner at McKercher LLP practicing in the Firm’s Saskatoon office where he maintains a commercial transactions and project development practice focusing on Saskatchewan key economic sectors – energy, natural resources and agricultural. Additionally, Christopher provides special counsel on environmental risk management and environmental regulation across all industry sectors.

Nanoremediation of soil contaminated with Arsenic and Mercury

Researchers in Spain recently published a paper describing the utilization of nanoremediation technology to clean-up soil at the Brownfield site heavily contaminated with arsenic and mercury.

The research draws on a several lab-scale experiments that have shown the use of nanoscale zero-valent iron (nZVI) to be effective in reducing metal(loid) availability in polluted soils.

The core-shell model of zero-valent iron nanoparticles. The core consists of mainly zero-valent iron and provides the reducing power for reactions with environmental contaminants. The shell is largely iron oxides/hydroxides formed from the oxidation of zero-valent iron. The shell provides sites for chemical complex formation (e.g., chemosorption).

The researchers evaluated the capacity of nZVI for reducing the availability of As and Hg in brownfield soils at a pilot scale, and monitored the stability of the immobilization of these contaminants over a 32 month period. The researchers contend that their study is the first to apply nZVI to metal(loid)-polluted soils under field conditions.

In the study, two sub-areas (A and B) that differed in pollution load were selected, and a 5 m2 plot was treated with 2.5% nZVI (by weight) in each case (Nanofer 25S, NanoIron). In sub-area A, which had a greater degree of pollution, a second application was performed eight months after the first application.

Overall, the treatment significantly reduced the availability of both arsenic and (As) and mercury ((Hg), after only 72 h, although the effectiveness of the treatment was highly dependent on the degree of initial contamination.

Sub-area B (with a lower level of pollution) showed the best and most stable immobilization results, with As and Hg in toxicity characteristics leaching procedure (TCLP) extracts decreasing by 70% and 80%, respectively. In comparison, the concentrations of As and Hg in sub-area A decreased by 65% and 50%, respectively.

Based on the findings, the researchers contend that the use of nZVI at a dose of 2.5% appears to be an effective approach for the remediation of soils at this brownfield site, especially in sub-area B.

Investment Firm commits $1 billion toward innovative companies building a sustainable economy

Generation Investment Management LLP, with offices in London and San Francisco, recently announced the close of its $1 billion Generation IM Sustainable Solutions Fund III. The monies in the fund will be invested in innovative companies with high-growth potential. Investments will be in the range of $50-150 million.

“We believe that we are at the early stages of a technology-led sustainability revolution, which has the scale of the industrial revolution, and the pace of the digital revolution,” said Al Gore, Chairman and Co-Founder.

The Generation Sustainable Solutions Fund will focus on investments in growth-stage businesses with well-established technology and commercial traction in three areas:

1. Planetary health: low carbon solutions transforming mobility, food, energy, and enterprise

2. People health: enabling health outcomes and a lower-cost, accessible healthcare system

3. Financial inclusion:supporting accessto finance and an equitable future of work.

“Sustainability is about both what a company does (the products and services it sells) and how
a company operates,” said Lila Preston, Partner and Co-Head of the Growth Equity platform.
“A hallmark of our investment approach is that we take a systems-level view and leverage our
long-term horizon and deep industry insights.”

Generation Investment Management LLP is dedicated to long-term investing, integrated sustainability research, and client alignment. It is an independent, private, owner-managed partnership established in 2004 and headquartered in London, with a US office in San Francisco. Generation Investment Management LLP has approximately $22 billion of assets under management.

New Brunswick Marine Research Centre to study impact on spill clean-up chemicals on aquatic life

The Canadian Ministry of Fisheries, Oceans and the Canadian Coast Guard recently announced that it is investing $2.4 million in scientific research at the Huntsman Marine Science Centre in New Brunswick.

With this investment, the Centre will study how spill response measures, such as the use of dispersant chemicals, affect fish and other aquatic species of interest. The goal of the project is to ensure the use of effective response measures, without harming ocean life in the event of a spill.

The Huntsman Marine Science Centre is located in St. Andrews, New Brunswick. The Centre is engaged in a broad range of marine science and applied research initiatives.

Huntsman Marine Science Centre (Source: huntsmanmarine.ca)

British Columbia’s New Groundwater Protection Model

The British Columbia Ministry of Environmental Protection and Sustainability recently posted a renewed version of the Province’s Groundwater Protection Model (GPM). The latest model version has been posted to the ministry’s webpage at: Policies & Standards – Province of British Columbia. Users will need to download the new model version to conduct calculations under Protocol 2 – Site-Specific Numerical Soil Standards (SSS) and Protocol 13 – Screening Level Risk Assessment.

Questions regarding the GPM and associated Technical Guidance 13 should be directed to George.Szefer@gov.bc.ca andAnnette.Mortensen@gov.bc.ca.

Also, the B.C. Environment Ministry has posted a draft version of seventeen new analytical methods for public comment. The analytical methods can be found at “Methods Posted for Review”.

Public comment on the new methods will be accepted until June 17, 2019. All public comments should be direct to  Joyce Austin, Senior Provincial Laboratory Specialist, Knowledge Management Branch at Joyce.Austin@gov.bc.ca.

Technical questions regarding the proposed new methods should be directed to Mark Hugdahl (BCELTAC Chair) atMark.Hugdahl@alsglobal.com.

Environmental Realty of Mercury Contamination in Grassy Narrows

Written by Abimbolo Badejo, Staff Reporter

Grassy Narrows, a First Nation
community of 1,600 residents, landed on the world radar due to a tragic mercury
poisoning accident, made possible by lax laws regarding environmental pollution
in the 1960s. Affected policies have been amended to prevent further
occurrences but solutions to the poisoning effects are yet to be addressed
effectively.

Government officials
discovered Mercury contamination in the English-Wabigoon River in the 1970s, caused
by a chemical plant at the Reed Paper Mill in Dryden Ontario. The river flows
beside two First Nations communities (Grassy Narrows and Whitedog), which
depend on this river as their source of livelihood. The contaminated river
poisoned the fish, and this caused a shutdown of the associated fishing
industry, resulting in mass unemployment for the residents. In addition,
various health defects ranging from neurological disorders  to digestive disorders have been observed
among the residents (spanning three generations) with no encouraging end to the
defects in sight.

Studies and Plans

Since the discovery of mercury contamination in the river in the 1970s, no major action has been taken besides the establishment of a Disability Board  in 1986, which was saddled with the duty of compensating affected residents; many of whose claims for compensation were denied. After decades of delay, pressures from concerned groups (First Nations and environmental Groups) finally elicited a somewhat response from the Ontario provincial government and the Federal government. The government of Ontario stated in June 2017 that it has secured  $85 million to  clean up the contaminated water and land, while the Federal Government has agreed to put a trust fund in place to ensure the establishment of a treatment center focused on ailments related to the mercury poisoning (you can read more about mercury at quicksilver mercury). The treatment facility is expected to cost about 88.7 million dollars, as estimated after a feasibility study. 1,2

Dryden Paper Mill

Mercury in the Environment

Mercury exists in nature in
either the elemental, inorganic or organic forms. The organic form of mercury
(Methyl mercury) is of greatest concern in the health industry.  Elemental mercury is transformed into the
organic form in the aquatic environment by microbial activity, which is in turn
bioaccumulated in the flesh of aquatic organisms  along the aquatic food chain. Biomagnified
toxic methyl mercury in the aquatic apex predators is transferred to consumers
via efficient absorption from the digestive tracts into the blood stream and
eventually through  the blood-brain
barrier. Excess concentrations of methyl mercury in the human body, with
concentrations above 0.47 µg/day (per kg in adult body weight) and  0.2 µg/day (per kg in a child’s or pregnant
mother’s body weight), results in deleterious neurologic effects in humans of
any age. Additional health defects such as impaired vision, blindness and
digestive disorders have been reported.3,4

Similar tragic occurrences of
environmental mercuric contamination have been reported in some parts of the
world. Between 1932 and 1968, a chemical plant in Minamata, Japan released
mercury into a lake which resulted in the death of over 100 people. This
occurrence was highly significant, coining the name “Minamata Disease” for syndromes
associated with mercury poisoning, such as brain damage, paralysis, incoherent
speech and delirium. Another memorable tragedy was reported in Iraq in the
early 1970s, where methylmercury compounds were use in seed treatment in
agriculture. Wheat grains that were treated with this toxic compound were
planted, harvested and made into flour for human consumption. Bread made from
the poisoned flour resulted in high mortality rate among the consumers.
Occupational exposure is not left out of the list as reported in Ghana in the
1960s. Elemental mercury is used in artisanal gold mining,  where gold ores from near-surface deposits were
mixed with the elemental mercury before heating to release the toxic mercury
vapour into the environment, leaving the gold behind. Breathing in the mercuric
vapour can lead to severe pneumonitis in humans. 5

Clean-up of Mercury Contamination

Clean-up of mercury contaminated sites, such as Carson River Mercury site and Sulphur Bank Mercury Mine in Clearlake California, have been reported by the United States Environmental Protection Agency (US EPA) . The technology used include ex-situ and in-situ treatment methods. The most common method reported is the excavation and disposal of mercury contaminated soil or sediment, as hazardous waste meant for landfill or treated at an approved thermal treatment facility.  The excavated land is backfilled with clean soil and ecologically restored. An in-situ treatment method can be the stabilization / solidification of the toxic substance by sealing in the contaminant with a mixture of cement and Sulphur containing compounds. This method is made possible using an auger-system to mix the soil and cement to immobilize the contaminant. Contaminated sediments can be sealed by a method called “capping”, where a layer of sand and gravel  is poured over the sediments to prevent contact further with the contaminant. These methods and technologies have been used effectively at various mercury contaminated sites in the United States. More information can be found here: https://www.epa.gov/mercury/what-epa-doing-reduce-mercury-pollution-and-exposures-mercury

Ideally, post remediation
monitoring  should include restriction of
the sealed-off area to public access, absolute cessation in the consumption of
food sourced from the contaminated areas and an active reduction in all
processes that release mercury into the environment. In situations where the
mercury is an unavoidable  component of
an industrial waste such as dental amalgam production wastes or battery chemical
wastes, a preventive-control suggestion will be to discharge the liquid waste
into a holding reservoir to allow mercury-settling into sludge, which can be
collected and treated or appropriately disposed.

Since there is an immense need
for more research in sustainable and environmental-friendly extensive mercury
spill clean-up, more attention should be focused on proactively preventing
further occurrences  by adhering strictly
to the controls that have been put in place to manage all operations pertaining
to the use of mercury.

References

  1. https://www.cbc.ca/news2/interactives/children-of-the-poisoned-river-mercury-poisoning-grassy-narrows-first-nation/
  2. https://globalnews.ca/news/5189817/grassy-narrows-liberals-mercury-treatment-facility/
  3. Pirkle, C.M., Muckle, G.,
    Lemire, M. (2016) Managing Mercury Exposure in Northern Canadian Communities.
    CMAJ, 188 (14) 1015-1023
  4. Bernhoft R. A. (2011) Mercury
    toxicity and treatment: a review of the literature. Journal of environmental
    and public health, 2012, 460508. doi:10.1155/2012/460508
  5. Bonzongo JC.J., Donkor A.K.,
    Nartey V.K., Lacerda L.D. (2004) Mercury Pollution in Ghana: A Case Study of
    Environmental Impacts of Artisanal Gold Mining in Sub-Saharan Africa. In: Drude
    de Lacerda L., Santelli R.E., Duursma E.K., Abrão J.J. (eds) Environmental
    Geochemistry in Tropical and Subtropical Environments. Environmental Science.
    Springer, Berlin, Heidelberg

VelocityEHS acquires Industrial Hygiene Software company Spiramid

VelocityEHS, a Chicago-based environment, health, safety (EHS) software company, recently announced it has acquired Spiramid, developer of the a system for managing industrial hygiene (IH). The acquisition adds Spiramid’s occupational safety & health software to the VelocityEHS’s EHS platform. The software, now called VelocityEHS Industrial Hygiene, gives organizations the capabilities to efficiently run an industrial hygiene program.

VelocityEHS is launching its new Industrial Hygiene solution at a time when IH is at an important crossroads. The need for workplace programs that anticipate and prevent workplace hazards is growing, while the number of certified industrial hygienists and investments in traditional programs has been on the decline.

“We’re
excited to launch our powerful new Industrial Hygiene product. It’s a perfect
fit for people working on the frontlines and has great synergy with our
market-leading Chemical Management capabilities. Its simple design cuts through
the complexity of IH tasks,” said Glenn Trout, president and CEO of
VelocityEHS. “While there’s no substitute for a well-trained, well-resourced
team of industrial hygienists, the reality today is that a growing number of
EHS generalists are being called upon to do sampling and run IH programs that
fall outside the scope of their training and traditional responsibilities.
Whether you’re a veteran hygienist or new to the role, we believe our new IH
solution will provide significant value.”

The software gives companies with sophisticated programs the ability to see, in one place and in real time, what’s happening across their enterprise. It gives staff hygienists new reporting tools — like dynamic risk matrices — to help them determine where and why to deploy resources, as well as to demonstrate the value of IH when talking with leadership stakeholders. For companies without a Certified Industrial Hygienist, it provides a framework for managing exposure risks and meeting a wide range of IH tasks.

“The goal of any industrial hygiene program is to help as many people in the workplace as you can. I am proud to see our IH software, which we have spent years perfecting, added to the VelocityEHS platform, which serves the industry’s largest EHS software community,” said Dave Risi, co-founder of Spiramid.

Managing
IH can require the collaboration of many stakeholders, including people
sampling in the field, IH consultants, outside laboratories, and program
managers. VelocityEHS’ Industrial Hygiene software is a central management hub,
facilitating the workflow and hand-off of responsibilities from party to party.
For instance, users can more easily plan and control all aspects of IH, from
selection of chemicals and analytical methods, to selection of laboratories and
access of sampling results, with options to share information with the right
stakeholders. The solution lets users send chain of custody forms directly to
labs and receive the analytical data electronically, inside the product,
eliminating the need for manual input and helping to avoid errors by making the
information readily accessible.

Other features include an in-product database of CAS Registry Numbers, OELs and laboratories, plus easy tools for tracking and managing of similar exposure groups (SEGs), qualitative assessments, sampling plans, medical surveillance, surveys, samples and equipment. It is the smartest and most efficient way to track a high-volume of complicated sample data and to manage risk assessments and mitigation programs.

The new IH software, together with VelocityEHS’ Chemical Management and Industrial Ergonomics solutions, provides industrial hygienists with the comprehensive resources they need to promote healthier workplaces.

Ontario’s Proposed Excess Soil Regulations: Effects & Benefits

Written by Abimbola Badejo, Staff Writer

Where do the soils excavated from our
basements go? Our backyards, neighbors’ backyards or into our drinking water?

Background

Soil is an important natural resource that needs to be conserved for sustainability and hygienic reasons. Numerous activities and projects such as construction, mining, contaminated site remediation, expansive archaeological projects, etc., require soil excavation.

The excavated soil is used to refill the vacant land or removed from the project site as “excess soil” left over from a project. The disposal of excavated soil however, posses a challenge for the contractors undertaking the projects as the receiving sites or facilities for excess soils are either far, unavailable or result in expensive transportation costs.

In certain instances, this problem has resulted in illegal dumping of excess soils onto farmers fields and vacant lands across Ontario, without the appropriate consideration of soil quality or dumping location. A 2018 CBC story on illegal dumping estimated the amount of illegal soil dumped in Ontario could annually fill Rogers Centre, home of the Toronto Blue Jays, sixteen times.

Aerial view of Rogers Centre, Toronto (Photo by Tim Gouw from Pexels)

Previous Government Reactions

To tackle the problem of illegal excess soil dumping, the Ontario Environment Ministry released a guidance document titled: “Management of Excess Soil – A Guide For Best Management Practices.” There was no obligation for compliance to the guidance document and thus the illegal practice continued.

With illegal dumping continuing in the province, the Environment Ministry released of a legal document which required compliance. The legal document, Regulatory Framework on Excess Soil Management, was made to clarify the responsibilities of excess-soil generators and a list of requirements guiding the sampling and analysis, soil characterization, tracking and dumping of excess soils. The Excess Soil Management proposal was posted on the Environmental Registry of Ontario for public comments from concerned stakeholders for two months in 2017; and afterwards an amended proposal implementing changes influenced by the comments was released.

The Latest Regulatory Proposal

With the Ontario election in the June of 2018 resulting in a change of government, the regulatory proposals for excess soil management were put on hold. On May first, the government issued its an updated proposal for the management of excess soil.

The proposed Excess soil regulatory proposal and amendments to Record of Site Condition (Brownfields) Regulation have the following features:

  • A revised approach to waste designation, where excess soil is
    considered waste and should be treated as one according to Part V of the Environmental Protection Act 1990 (Waste
    Management); unless the relocated excess-soil is reused in an appropriate way
    or is deposited at a final receiving site that has appropriate approval
    documents,
  • Reduced regulatory complexity, where waste related approvals
    for low-risk soil management activities may no longer be required, provided
    certain requirements are met,
  • Flexibility for soil reuse through a beneficial Reuse
    Assessment Tool to develop site-specific standards and to provide a better
    understanding of environmental protection,
  • Improving safe and appropriate reuse of excess soil by
    quality soil testing, tracking and registration of soil movements for larger
    and riskier generating and receiving sites,
  • Landfill restrictions on clean soil deposit unless it is
    required for cover.

Once promulgated, the transition phase into the new regulations will take place over the period of 2 to 3 years, where the more flexible excess-soil reuse regulations, such as the amended Record of Site Conditions (O. Reg. 153/04), are already in effect. Other amendments, such as excess soil management planning and landfilling restrictions will come into effect between 2020 and 2022, to allow time for the production of alternative excess soil reuse approaches.

Benefits of
Policy

From an environmental perspective,
the proposal’s call for some regulatory key points are quite sustainably
beneficial. Registering and tracking the excess soil movement from excavation
source to receiving site or facility will minimize illegal dumping.
Transporting and illegal dumping of the excess soils is a source of concern
because excavated soil is a source of trapped Greenhouse Gases (GHG).
Inappropriate tipping of a considerable amount of excess soil will result in
the release of a significant amount of GHG in the atmosphere. Moreover,
vigorous testing and analysis of the excess soils meant for landfill will
ensure that contaminated soil is properly disposed of as hazardous waste,
instead of illegally covering it up at a landfill where is poses a threat as a
potential source of contamination to ground water.

Excess Soil
Market Impact

Economically, implementing the excess soil management policy will be beneficial to contractors and will encourage them to be more proactive in making their Excess Soil Management Plan (ESMP) in favor of excess soil reuse. This will assist in developing alternative, better and cheaper ways of reusing their excess soils; or selling off some (or all) of the excavated soils to a buyer,  who will put it to good use.

In addition, there has been a report of excess soil “black market” emergence in the industry; where contractors are avoiding the higher costs of tipping at provincially regulated designated facilities in exchange for illegal tipping at ignorant landowners’ fields. These landowners are receiving the excess soils at a small fee from the contractors, without consideration for the quality of the soil and possible environmental effect in the future. Implementation of the policy will minimize the expansion of this market, especially because of the registration and tracking requirements of the excess soil load and the approval documents required of the receivers.

Diving deep into Redwater – Supreme Court Says Trustee in Bankruptcy can’t cherry pick Environmentally Clean Assets

Written by John Stefaniuk and Scott Birse, Thompson Dorfman Sweatman LLP

The Supreme Court of Canada released its much anticipated decision in Orphan Well Association v. Grant Thornton Limited (a case more commonly known as Redwater) on January 31, 2019. You might recall our article on the Alberta Court of Appeal’s decision in the same case.

In Redwater, the courts had to decide whether bankruptcy law trumped provincial regulatory orders issued in Alberta. Redwater Energy Corporation (Redwater) was an oil and gas developer.  It held a number of development properties under the authority of the Alberta Energy Regulator (AER).  With the slump in oil prices, Alberta Treasury Branches (ATB), Redwater’s primary lender, called its loan. ATB appointed Grant Thornton Ltd. first as receiver and subsequently as trustee in bankruptcy of the estate of Redwater under the federal Bankruptcy and Insolvency Act (BIA).

In the course of examining Redwater’s realizable assets, Grant Thornton became aware of outstanding environmental reclamation obligations that were associated with some of Redwater’s non-producing properties.  Grant Thornton decided to put the valuable, producing wells and other “clean” assets up for sale, and to walk away from the remaining assets by renouncing them under the BIA. That resulted in putting the reclamation in the lap of the Orphan Well Association (OWA), an industry-funded organization set up in Alberta to administer a fund established for the purpose of reclamation of “orphan” properties.

The AER refused to allow the transfer of the productive licences. It issued abandonment orders requiring clean-up or posting of security for clean-up costs in relation to the renounced assets. The parties headed to court to see what would become of the value that could be realized for the retained assets. Both the trial court and the Alberta Court of Appeal would have allowed Grant Thornton to leave the liabilities behind.

In the majority decision written by Wagner C.J., the Court applied a three-part test found in another Supreme Court of Canada case decided in 2012, Newfoundland and Labrador v. AbitibiBowater Inc. The majority of the Court held that the reclamation claims were not  a debt, liability or claim owing to a creditor and that they were too remote to attach a monetary value. That meant that two of the three criteria in the Abitibi test were not met. The Court therefore held that the bankruptcy did not have the effect of undoing the orders and the trustee could not cherry-pick the valuable assets while renouncing the rest.

This was a bit of a surprise to many environmental law practitioners, including most of the ones I attended a conference with just a few weeks prior to the decision.

What then, is the upshot?

Ostensibly, this is good news for provincial regulators. It is more likely that their enforcement orders will be found to continue to be binding upon corporations in bankruptcy. While it does not make receivers or trustees in bankruptcy personally responsible for rehabilitation costs, it does mean that the proceeds of sale of the valuable assets may have to be put toward satisfying those orders before any of it is available to lenders and other creditors. That means less costs potentially borne by the provinces (and their taxpayers). Predictably, lenders do not seem to garner a lot of public sympathy.

On the other hand, (assuming no changes to the BIA) the decision means that lenders and other creditors will have to pay closer attention to the borrower’s unfunded clean-up and closure costs when extending and monitoring credit. If the lender no longer has the ability to deal with valuable assets and leave the “dirty” behind, it means that credit in environmentally sensitive sectors may become tighter, reporting requirements may become more onerous, and some lenders may become skittish.

The dissenting minority decision written by Côté J. said the majority decision was not based on “polluter pays”, but instead resulted in a regime of “lender pays”.  After all, it is always open to the provinces to require permittees and licensees to post better (and more) security to fund rehabilitation costs, and to carry out better monitoring and inspections to ensure that the security is really adequate to fund clean-up. On top of that, who is in a better position to monitor environmental compliance and reclamation costs, the regulator or the bank? Surely, the regulators have better expertise and, assuming proper funding from government, better resources to carry out the work. Indeed, the regulators also wield the bigger stick – fines and penalties – whereas the most that the lender can do is either refuse to lend, lend less, or call in a loan where potential trouble is spotted. By the time that issues are obvious, the lender may choose to let things ride, so long as payments are being made, rather than force a realization that could put its security at risk. It is difficult to see how that serves environmental protection.

In some respects, the decision can be seen as a bit of a “Get out of Jail Free” card for the provinces and their resource and environmental regulators. No doubt that is the way that ATB felt about it.

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


About the Authors

John Stefaniuk engages in a broad practice with emphasis on environmental law, real estate and development law, natural resources and energy, commercial law and municipal law matters. He has particular experience in relation to contaminated sites, mining and mine rehabilitation, wind power development, natural resource development, environmental approvals and licensing, commercial real estate, leasing, financing and development, municipal approvals, taxation and assessment and business acquisitions. He appears regularly before government licensing bodies and administrative tribunals including the Manitoba Clean Environment Commission and Municipal Board, municipal councils, provincial legislative committees and in all levels of court in Manitoba and in the Federal Court in connection with environmental, resource, regulatory municipal, and property issues.

Scott Birse has a broad practice with a particular emphasis on environmental law, municipal law, real estate and development law, regulatory compliance, commercial law and related litigation. He has particular experience assisting clients in the areas of environmental liability in real estate transactions and business acquisitions, municipal planning and approvals, contaminated sites liability, environmental assessments, commercial real estate development and civil litigation. Scott has appeared before municipal tribunals, the Manitoba Court of Queen’s Bench and the Manitoba Court of Appeal. He has also advised clients with respect to municipal and environmental matters in Saskatchewan and British Columbia.