Canada: Environmental Review Tribunal gives Ministry Broad Preventative Powers over Migrating Contamination

Article by Stanley D. Berger, Fogler, Rubinoff LLP

On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Ontario Environmental Protection Act (Ontario EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties.  The property in question, formerly a small-appliance manufacturing business, was contaminated and the various contaminants were of concern to the Ontario Ministry of the Environment and Climate Change, having migrated to other Picton residential, commercial and institutional properties where they might be entering nearby buildings by vapour intrusion.  Section 18 of the Ontario EPA provides that the Director may make orders preventing, decreasing or eliminating an adverse effect that may result from the discharge of a contaminant from the undertaking or the presence or discharge of a contaminant in, on or under the property.  The Director’s Order was challenged on three grounds:

  1. The adverse effect the Director could address was limited to a future event or circumstance (given that s.18 is prospective and preventative);
  2. The adverse effect had to relate to the potential off-site migration of a contaminant that was on an orderee’s property at the time the order was made;
  3. The order could require work only on site but not off-site, to address the risk of an adverse effect.

The Tribunal rejected all three arguments, reasoning that adverse effects resulting from contamination were frequently ongoing rather than static, with no clear line between existing and future effects.  The Tribunal looked to the purpose of the Ontario EPA which was to protect and conserve the natural environment and found the orderees’ arguments were inconsistent with this purpose.  Contamination and adverse effects were not constrained by property boundaries and therefore it was immaterial whether the contaminant was on the orderee’s property at the time the order was made. Finally, the list of requirements that could be ordered under s.18(1) EPA included off-site work.

 

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

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in environmental law.  He was called to the Ontario Bar in 1981. He joined the law firm of Fogler Rubinoff on July 4 2013.  Stanley was the founder of the Canadian Nuclear Law Organization and served as its President between 2008-2015, and remains a board member.  He is also is a former President of the International Nuclear Law Association.  He has taught nuclear law for the Nuclear Energy Agency in France and is an adjunct professor for York University’s Professional Master’s Degree in Energy.  Stanley is the author of a quarterly publication entitled “The Prosecution and Defence of Environmental Offences” and edits an annual review of environmental law.

Stanley represents suppliers and operators in the nuclear industry on nuclear liability, regulatory and supply chain issues. He provides legal advice to the Nuclear Waste Management Organization. Other clients include the CANDU Owners Group and a large Ontario municipality. His environmental practice includes litigation before courts, boards and tribunals, as well as solicitor’s work on behalf of renewable energy companies, landowners and waste management entities. He represented a First Nation on regulatory matters relating to a renewable energy project. His practice also includes the protection of proprietary information on applications before Ontario’s Freedom of Information and Privacy Commission.

This article was originally published on the Fogler, Rubinoff LLP website.

Canada: Oil Spill Liability – Kawartha Lakes Continues

By Donna Shier, Partner and Certified Environmental Law Specialist, Joanna Vince, Senior Associate and Raeya Jackiw, Student-at-Law, Willms & Shier

Background

In the most recent decision in the ongoing Kawartha Lakes saga, the Superior Court of Justice found homeowner Mr. Wayne Gendron partly responsible for an oil spill that destroyed his lakeside property.  The Court also found Mr. Gendron’s fuel distributor liable for a portion of the costs.  This decision serves to warn homeowners that a distributor’s delivery of fuel does not mean that their tanks are safe. It also cautions fuel distributors that they may be liable for spills brought about by a homeowner’s negligence.

The Facts

Thompson Fuels (“Thompson”) supplied 700 liters of fuel oil to two tanks in Mr. Gendron’s basement.  Mr. Gendron had installed the fuel tanks himself without proper shut off valves, contrary to industry standards.

During a period of financial difficulty, Mr. Gendron filled these fuel tanks with less expensive stove oil.  The stove oil introduced water and microbes into the tanks, causing the tanks to corrode.  When Thomspon delivered the fuel oil one of the tanks leaked, spilling approximately 600 liters.

In the hours following the fuel delivery Mr. Gendron tried to manage the spill on his own by collecting what he believed to be all of the leaking oil in Tupperware containers.  Approximately 24 hours later, Mr. Gendron called Thompson to complain that it had not delivered his entire shipment of fuel oil – he was short about 600 liters.  Mr. Gendron never called to report the spill to the MOECC’s Spills Action Centre hotline.

The fuel oil migrated under Mr. Gendron’s house, through the City of Kawartha Lake’s drainage system, and into nearby Sturgeon Lake. The Ontario Ministry of the Environment and Climate Change (MOECC) ordered Mr. Gendron and his wife to “ameliorate the adverse effects caused by the discharge of the furnace oil” and “restore the natural environment… to the extent practicable.”  Mr. Gendron began remediation of the contamination of his property and the contamination of Sturgeon Lake.

Early remediation efforts were complicated by the frozen lake and soil. Mr. Gendron’s personal insurance was rapidly exhausted.  His insurer eventually refused to fund further off-site remediation of Sturgeon Lake.

The remediation efforts cost nearly $2 million  and required the demolition of Mr. Gendron’s home.

Sturgeon Lake, Kawatha Lakes Region, Ontario

The City’s MOECC Order

The MOECC ordered the City of Kawartha Lakes to clean up any fuel oil remaining in the City’s culverts and sewers that could re-contaminate Sturgeon Lake.  The City appealed the order first to the Environmental Review Tribunal, then to the Divisional Court, and ultimately to the Ontario Court of Appeal, losing each time. (See our previous article on the Court of Appeal’s decision here.)

Environmental Protection Act Claims

Using its powers under the Ontario Environmental Protection Act (“EPA”), s. 100.1 the City ordered compensation for its remediation costs from Mr. Gendron, Thompson and the Technical Standards and Safety Authority (“TSSA”).  Mr. Gendron, Thompson and the TSSA appealed the order to the Environmental Review Tribunal.  Thompson and the TSSA settled with the City and withdrew their appeals.  Mr. Gendron’s appeal was unsuccessful and he was required to pay more than $300,000 of the City’s costs.  Mr. Gendron then brought a claim for contribution and indemnity against Thompson under EPA, s. 100.1(6).  In this most recent case, the Court found that Mr. Gendron could not make out his EPA claim because ownership and control of the fuel oil had transferred to him when the fuel oil was delivered to him by Thompson.  Mr. Gendron’s claim for contribution under the EPA was dismissed.

About the Authors

Donna Shier, Partner & Certified Environmental Law Specialist.  With almost 40 distinguished years of experience practicing environmental law, Donna Shier is one of Canada’s leading environmental counsel to major industrial corporations. Donna is also frequently called upon by corporate, commercial and real estate lawyers to assist their clients with environmental legal issues, and provides environmental law expertise to external litigation counsel. Donna is a qualified mediator and is an accredited member of the ADR Institute of Canada. Donna is called to the bar of Ontario.

Joanna Vince, Senior Associate.  Joanna Vince has significant expertise representing a wide range of clients with environmental issues, civil claims and prosecutions, orders and appeals. Joanna was admitted to the bar of Ontario in 2011.  Joanna has a B.Sc. (Hons., High Distinction) in biology and environmental science, and a Certificate in Environmental Studies. Joanna’s knowledge of and commitment to environmental issues was recognized by the University of Toronto, which awarded her the Arthur and Sonia Labatt Fellowship and the Douglas Pimlott Scholarship. Also at the University of Toronto, Joanna assisted with preparing academic papers and books as a research assistant on wind power, carbon taxes and climate change.

Raeya Jackiw, Student-at-Law.  Prior to articling at Willms & Shier, Raeya was a summer student at the firm and conducted legal research on issues in environmental, aboriginal, energy, constitutional, administrative, contract, tort, and civil procedure law. She has a Juris Doctor, Certificate in Environmental Law from the University of Toronto, a Masters Degree in Environmental Science from the University of Guelph, and a Bachelor’s Degree in Environmental Science from Queen’s University.

This article was originally published on the Wilms & Shier website.

Confirming the Chemical Identity

Philip Tackett, a certified HAZMAT responder and a Product Manager at FLIR, discusses its latest tool for chemical identification

 

By Philip Tackett

Civilian and military responders face scenarios ranging from intentional chemical attacks and accidental hazardous material (HAZMAT) releases to natural disasters and environmental monitoring or remediation efforts.  Responders step on-scene with a diverse toolkit – sometimes small and other times extensive.  It is critical to stay familiar with the equipment in the kit, because no single chemical detection tool can provide answers for every scenario.

Colorimetric test kits are one of the most commonly used technologies for quickly collecting presumptive information about a chemical.  They are used to determine if a threat is present and determine its chemical class.  This information is important, but knowing the exact identity of a chemical can inform a safer response.  True chemical identity can provide information to responders and law enforcement officials beyond the initial threat, and lead to further discoveries to further safeguard the public.

Griffin G510

While some detectors only indicate the presence of a chemical, others specifically detect hazards in the presence of a complex chemical background, like a gas chromatograph mass spectrometer (GC/MS).  GC/MS is an incredibly sensitive and highly specific tool commonly used in laboratory environments.  It can sense trace level chemicals other equipment can’t, while also providing the ability to positively identify the chemical.  But chemical emergencies don’t just happen in laboratories – they can happen anywhere.

Real-time chemical detection and identification in the field is critical to the Chemical, biological, radiological, nuclear, and explosives (CBRNE) defense or HAZMAT response mission.  Confirmatory chemical identification enables responders to mitigate a threat and protect people and the environment from harm.

The most challenging aspects of taking gold-standard technology like GC/MS into the field is survivability in harsh environments and ease of use.  Significant technological advancements have led to the development of the FLIR Griffin G510 person-portable GC/MS system.  Its lab-quality detection performance, simple-to-use interface, and rugged construction are ideal for high-consequence response missions.

Response missions take place in complex environments that the GC/MS must withstand.  The Griffin G510 is completely self-contained in a 36-pound device, including batteries, carrier gas, vacuum system, injector, and heated sample probe.  It is also the first IP65-rated portable GC/MS.  This means it’s dust-tight and spray-resistant, which adds flexibility to decontamination procedures.  There is no 40-pound external service module like other portable GC/MS systems and no 20-pound external pump under the bench like those seen in a laboratory.  Batteries last up to four hours and are hot swappable, should the mission extend longer than expected, which eliminates the need for a power generator.  The Griffin G510 is designed from the ground up to operate outside of the lab.

Griffin G510 syringe injection

Hazmat technicians will dive into using the features that deliver lab-quality analysis.  First on-scene operators will appreciate that they don’t need a Ph.D. to use it.  Basic operator training is completed in only two hours, while expert training can be completed in a single day.  The user interface truly sets it apart from other portable GC/MS systems.  It’s streamlined design and guided controls help the user select the mode of operation.  First responders must perform quickly and with limited dexterity when wearing required PPE.  They are responsible for sample and data collection, and in some cases, real-time decision making.  The G510 alerts the operator with visual alarm confirmation both on the handheld probe, as well as the on-board 9” touchscreen.  The large touchscreen can be operated by a responder while wearing full personal protective equipment (PPE).

Hazmat responders can use the Griffin G510 to analyze all phases of matter (solid, liquid, gas). Its integrated survey mode capability identifies vapor-phase chemical threats within seconds.  Its integrated split/splitless liquid injector enables responders to perform direct injection of organic liquids – an industry first.  This same injector also accepts other sampling tools, including solid-phase microextraction (SPME), off-the-shelf headspace analyzers, and the Prepless Sample Introduction (PSI) Probe.  The PSI-Probe directly accepts solid samples in their native form (such as soil and water-based materials).  The Griffin G510 reduces the burden of sample preparation for the operator and provides ultimate flexibility as the daily mission changes.

Hazardous environments demand the ultimate toolbox include confirmatory instrumentation like GC/MS. The Griffin G510 portable GC/MS redefines performance, ease of use, and value for the responder toolkit.

Griffin G510 – checking readout

CERCLA Trumps As-Is Sales

By Steven L. Hoch, Attorney, Clark Hill

A federal court in Alaska assessed responsibility against the City of Fairbanks (City) for remediation costs found necessary to clean up property it previously owned.  The court concluded that the City should have mitigated the problem or at least warned the purchaser about the contamination, even though the property was sold “As-Is”.  Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability is assessed without reference to cause.  Further, the court said that numerous courts have held that CERCLA liability cannot be defeated by contract, unless specifically and clearly addressed in the contract language.

In Gavora, Inc. v. City of Fairbanks , Case No. 4:15–cv-00015-SLG, BL 256894 (D. Alaska July 25, 2017), the City owned two parcels of land and Gavora held leasehold on one of the parcels. For a considerable length of time, a dry cleaning business operated in the shopping center located on their parcel.  Eventually, the contamination drew the attention of the State of Alaska, who told the City about the contamination and that they suspected the contamination migrated from that parcel to the other.  While the State did not verify the findings, the district court found it clear that the City knew or should have known that the first parcel was also contaminated.

Fairbanks Mall – Satellite Image showing borehole and monitoring well locations as well as PCE contamination levels

The City sold the first parcel to Gavora on an “As-Is, Where-Is” basis.  This sale occurred 10 years after the City first learned of the contamination on the second parcel.  When the purchase took place, Gavora did not perform its own environmental assessment.  Five years later, contamination was discovered on the first parcel owned by Gavora.  Lacking options, Gavora remediated the parcel and sued the City of Fairbanks for contribution.

Even though the sale was “As-Is”, the court nevertheless held the seller liable. Further, the court allocated 55% of the costs to the City and 45% of the costs to the current owner. The court rationalized that this allocation was appropriate because (1) the city knew or should have known of the contamination, yet failed to inform the purchaser; (2) the current owner made substantial corrective action efforts upon learning of the problem whereas the City took no action, and (3) it would be inequitable to hold the current owner responsible for contamination occurring prior to its master lease, but the court could not “effectively apportion the contamination”, but (4) the current owner would obtain a greater benefit than the prior owner from the remediation.

In the final analysis this case affirms that “As-Is” does not exculpate a seller from CERCLA liability, and that not disclosing contamination even when it did not make any representation to the contrary. As this was a district court opinion, it does not have significant legal value, but should not be dismissed out of hand when confronting similar issues.

 

This article was first published on the Clark Hill website.

_________________

About the author

Steven Hoch has over 40 years of experience with both federal and state environmental laws and regulations in the context of permitting, regulatory proceedings, litigation, enforcement actions, water supply, public policy formation, and advice.  His work includes contamination of land and ground and surface water.  Steven has critical experience in the areas of environmental law and the federal and state Safe Drinking Water Acts, Title 23, water supply, and the mechanics of water distribution.  His experience also extends to groundwater modeling and water quality testing.  He also has significant experience in hazardous substances and waste handling practices, remediation, soil erosion, and claims of toxic exposures

Steven has in-depth experience working with numerous public water systems throughout the state.  He has also established a sterling reputation for his work with the Regional Water Quality Control Boards, the Department of Toxic Substance Control, and the United States Environmental Protection Agency both in the administrative and litigation.  His clients range from the country’s largest municipal water agency to individuals selling or buying contaminated sites.

Steven often takes primary roles in many environmental trials, and has served as liaison counsel for groups or parties at the request of fellow counsel.  He has been involved in several landmark cases, including acting as PG&E’s counsel in the case made famous by the movie Erin Brockovich.

 

The Ninth Circuit Reiterates That “Knowingly” Handling Hazardous Waste Without a Permit Is a General Intent Crime Under RCRA

By Richard E. Stultz

Max Spatig was convicted of knowingly storing and disposing of hazardous waste without a permit and sentenced by the U.S. District Court for the District of Idaho to 46 months in prison under 42 U.S.C. § 6928(d)(2)(A). See U.S. v Spatig (2017) 2017 WL 4018398.  At trial, Spatig had sought to introduce evidence on his diminished capacity arguing that he did not have the required state of mind for the offense.  The district court, however, granted the government’s motion in limine to exclude all such evidence because § 6928(d)(2)(A) under the Resource Conservation and Recovery Act (RCRA) only required general intent and diminished capacity was not a defense to a general intent crime.

For years, Spatig had operated a business which used paint and paint-related materials.  Over time Spatig had accumulated several used containers of this material, some of which ended up on his residential property in Idaho.  In 2005, the county discovered the several containers and reported it to the Idaho Department of Environmental Quality (DEQ). Working with Spatig, DEQ collected and destroyed most of the containers.  In 2010, Spatig was again found to be storing used containers of paint and paint related materials on another of his properties.  This time the job was too big for local or state authorities so the U.S. Environmental Protection Agency (EPA) was notified.  The U.S. EPA determined that the waste was hazardous and that a cleanup was necessary. The U.S. EPA removed approximately 3400 containers and spent $498,562 on the cleanup.  The EPA charged Spatig with violation of § 6928(d)(2)(A) for knowingly storing and disposing of a hazardous waste without a permit from either DEQ or the U.S. EPA.

Paint cans at a property off the Archer-Lyman Highway near Rexburg, Idaho

Spatig appealed his trial conviction and argued on appeal that § 6928(d)(2)(A) required specific intent.  He also took issue with the district court’s enhancement of his base sentence arguing that the cleanup did not result in a “substantial expenditure.”  The Ninth Circuit Court of Appeals, however, disagreed with Spatig and affirmed the district court.

Under § 6928(d)(2)(A), a person may not “knowingly” treat, store or dispose of a hazardous waste without a permit.  According to the U.S. Supreme Court, “‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.”  The Ninth Circuit had also held that “knowingly” generally does not require specific intent.  In other words, a defendant’s particular purpose or objective is not required.  The Ninth Circuit previously rejected the argument that § 6928(d)(2)(A) required that a defendant know there was no permit for disposal.  The court held there that “knowingly” only required “that a defendant be aware that he is treating, storing, or disposing of something that he knows is hazardous.”  The court found that RCRA was a public-welfare statute and that “§6928(d)(2)(A) fits within a class of general-intent crimes that protect public health, safety, and welfare.”  Because § 6928(d)(2)(A) only requires general intent, the Ninth Circuit upheld the district court’s exclusion of evidence at trial of Spatig’s state of mind.

Spatig argued that his sentence enhancement was error because the cleanup did not constitute a “substantial expenditure” required under the federal sentencing guidelines (U.S.S.G. § 2Q1.2(b)(3)).  The Ninth Circuit refused to establish a bright-line rule but noted that sister circuits had found that expenditures under $200,000 were “substantial.”  In upholding the district court, the Ninth Circuit noted that in the instant case the $498,562 underestimated the total cost because it did not include the local agencies’ expenditures.

This holding underscores the long-standing general purpose of environmental laws to protect the public welfare. These statutes do not generally require specific intent—only knowing of the act is required.

This article was first published on the Clark Hill website.

_________________

About the author

Richard E. Stultz brings over eighteen years of experience in the environmental, land development and petroleum industries to bear in his practice of law. In addition to his law degree, he also earned a Bachelor of Science in Petroleum Engineering. Richard’s practice is currently focused on environmental litigation.

Richard is experienced in law and motion filings and hearings. He is practiced in written discovery and legal research. Richard has even co-written a First Amendment argument submitted before the California Court of Appeal. He is familiar with California’s environmental laws and regulations.

While in law school, Richard interned at the Los Angeles City Attorney’s Office in the Real Property/Environment division. He researched and prepared a key memorandum regarding good will compensation in eminent domain.

Have you “PRIMED” Your First Responders?

By Grant Coffey

 

Regardless of your occupational specialty – environmental professional, facility safety expert, military or first responder – YOU’VE BEEN THERE.  Yeah, you’ve been at that incident where the hair stood up on the back of your neck.  The one where you thanked fate it was just a “close call” and nothing more.  What are you doing within your organization to learn from these incidents?  How are you equipping your personnel with critical tools to respond more effectively and safely?  More critically, what training are you giving them to utilize the most important tool –their BRAIN?

Chemical, biological, radiological, nuclear and explosives (CBRNE) emergencies can be huge, overwhelming, complicated and full of unknowns.  Since we can’t have a specific SOP for every event, it’s common for the responder to regress under stress.  In many cases, that means retreating from what we know best.  Often, this yields disorganized, unsuccessful outcomes.  Same bad habits –same failed results.  Experience is critical, but it must adapt to tested street truths.

It is critical that we not only learn from our past incidents, but from each other. FLIR Systems recently introduced FLIR PRIMED – a one-stop resource for response professionals.  FLIR PRIMED strives to deliver informative and useable information in the form of a video-series that includes techniques, tools, and checklists based on best practices.  What does PRIMED stand for?

  • Prepare – Much of the battle is fought before you arrive on the scene of an emergency. Are you training your personnel for success? Use tested truth and then practice, review, modify and do it again…until it becomes a HABIT.
  • Recognize –All events have certain patterns. Early recognition of the “Big Picture” is acritical step. Utilizing available systems and tools helps us to avoid command “vapor lock” or overload confusion.
  • Input –Some decisions can be made initially, but the use of field checklists can assist in the orderly and thorough analysis of available on-scene “Cues and Clues.” You might not be able to identify a specific threat, but thegoal should be tosee it within a family of possibilities and rule out what it’s not.  I call the later “RIO” orRule it Out.
  • Monitor – Monitors are often used as presumptive tools. They should be seen as part of the total picture. They are important, but your brain is the best tool.
  • Experience –Experience is a double-edged sword. If it’s not nurtured and updated by improved response effectiveness, it can reinforce bad habits that lock us into a pattern of mistakes. Decision –Successful decision-making requires good information and competent use of available tools and equipment.  But make no mistake; decisions are ultimately made by humans -not equipment or procedures.

A CBRNE event can overwhelm the response equation.  Although the chemistry and physics of such events are relatively unchanging and predictable, the human aspect isn’t.  However, predictable patterns or outcomes still exist in emergencies.  If we couple this with a keen sense of our personnel, we can utilize those markers to improve response effectiveness.  Here are some “next step” ideas you can implement to improve your safety and effectiveness during a Hazmat or CBRNE response:

  • Instill a “Learning Attitude” with those personnel likely be the first to respond. Make it a daily event.  Learn tips from others or through resources like FLIR PRIMED.
  • Utilize your Hazmat Technicians to develop and deliver lessons, strengthening the bond of trust between your experts and the first responders. Because CBRNE events are atypical and infrequent, training must take place more often.  It should also highlight the mastery of concepts like, “turn it on and put it on.”  Personal Radiation Detection (PRD) equipment is vital at a rad scene.  Equip your first responders with good decision-making tools and education.
  • Integrate with allied agencies NOW, not later. Effective coordination between multiple agencies at CBRNE incidents is critical, but often overlooked and can be the Achilles heel.
  • Assemble your own field gu ides and checklists. These tools can help the IC avoid overload and assist them with important decision points. Don’t have any?  Start with some FLIR PRIMED downloads and modify them as needed.
  • Keep it simple! Use easily-remembered mantras like: “The 3 Cs” –Chemical, Container, Context. If you don’t, they won’t use them when pressured.  The threat is there.  Good tools are available.  One of them is FLIR PRIMED.  The video series delivers cutting-edge education and decision skills you can use right now.  Each episode concludes with a downloadable field guide or checklist.  Check it out today a flir.com/primed.

 

About the Author

Grant Coffey is a retired Portland Fire & Rescue Hazmat Team Coordinator, College Fire Science Instructor, and  CBRNE expert of nearly 40 years. He trains Fire, Police, Military and industry Hazmat Responders. He has NFPA certifications for Radiation Specialist and is a State of Oregon Radiation Safety Officer. He is also a Hazmat Specialist and Incident Safety officer and has experience in Emergency Manage ment and various other CBRNE Hazmat disciplines.

Mount Polley Subject To Private Prosecution Due To Province’s Failure To Act

Article by Paula Lombardi from Siskinds LLP

In the fall of 2016 MiningWatch Canada initiated a private prosecution under the Fisheries Act against the British Columbia government and Mount Polley mine as a result of the collapse of the Mount Polley tailings dam in 2014. The failure of the dam resulted in 25 million cubic metres of washwater and mine waste being released downstream into Hazelton Creek, Polley Lake and Qeusnel Lake. The contents of the washwater and mining waste including mercury, lead and other toxic waste.

In the charges, MiningWatch Canada alleged that the dam released mine waste in 2014 directly into British Columbia’s Cariboo region creating a new valley and permanently destroying or altering fish habitat. It is believed that the release of the mine waste has impacted 20 different species of fish.

Mount Polley Mine

In March 2017, MiningWatch’s private prosecution against both the province and Mount Polley Mining was stayed. A lawyer for British Columbia stated that the private prosecution was not in the public interest because the British Columbia Conservation Officer Service, Environment and Climate Change Canada, and Fisheries and Oceans Canada were already investigating the incident.

The newly elected British Columbia government announced the first week of August 2017 that it would not be pursuing charges against the mine before the expiration of three year limitation deadline on the basis that “an investigation was still ongoing.” This decision leaves it solely to the Federal government to determine whether or not to pursue charges against the mine under the Fisheries Act.

On August 4, 2017, three years after the spill of the mine waste, and at the end of the three year limitation period within which the province can initiate charges, Bev Sellars, indigenous activist and former Chief of the Xat’sull First Nation, filed charges against the Mount Polley Mining Corporation. 15 charges in total, 10 under the B.C. Environmental Management Act and 5 under the B.C. Mines Act, were brought by Bev Sellars as part of a private prosecution against Mount Polley. These charges relate to the dumping of contaminated mining waste into the environment and surrounding waterways, and poor and unsafe operational practices contrary to the permits issued to the corporation and the statutory regime. These charges can potentially be taken over by the provincial government. The private prosecution is supported by numerous organizations including MiningWatch Canada, West Coast Environmental Law’s Environmental Dispute Resolution Fund, the Wilderness Committee and the First Nation Women Advocating for Responsible Mining.

B.C’s chief inspector of mines along with an independent panel of engineering experts concluded that the collapse resulted from a poorly designed dam that failed to take into account drainage and erosion failures.

The British Columbia auditor general in its May 2016 report concluded that compliance and enforcement in British Columbia’s Ministry of Mines, Energy and Petroleum Resources and Ministry of Environment and Climate Change were inadequate and “not set up to protect the province from environmental risks.”

The news release relating to the May 2016 report from the Office of the Auditor General of British Columbia stated the following as it relates to the departments audit of compliance and enforcement of the mining sector:

“Almost all of our expectations for a robust compliance and enforcement program were not met,” [says Bellringer]. “The compliance and enforcement activities of both the Ministry of Energy and Mines, and the Ministry of Environment are not set up to protect the province from environmental risks.”

The findings indicate major gaps in resources, planning and tools in both ministries. For example, both ministries have insufficient staff to address a growing number of permits, and staff work with cumbersome and incomplete data systems.

As a result, monitoring and inspections of mines were inadequate to ensure mine operators complied with requirements. Additionally, some mining companies have not provided government with enough financial security deposits to cover potential reclamation costs if a mining company defaults on its obligations. It’s underfunded by over $1 billion – a liability that could potentially fall to taxpayers.
In light of the May 2016 Auditor General’s report, we expect that the goal with the filing of these recent charges would be to encourage the province to take over the charges and enforce its own laws. Under the B. C. Environmental Management Act, the Court can order alternative remedies including but not limited to remediation, compensation and restoration of fish habitat.

 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

Paula Lombardi is a partner of Siskinds LLP,  and practices in the areas of environmental, municipal, regulatory and administrative law.  Prior to joining Siskinds, Paula worked as an associate at a Bay Street law firm where her practice focused on occupational health and safety, environmental and regulatory matters.

Paula has a great deal of experience in: providing due diligence advice; dealing with contamination issues; handling of organic chemicals and hazardous wastes; obtaining environmental approvals; obtaining planning and development approvals; providing advice to municipalities; defending environmental prosecutions; and assisting companies with environmental and regulatory compliance. Paula has appeared before numerous administrative tribunals.

 

Hazmat Response and Confirmation of Chemical Identity

Philip Tackett, a certified HAZMAT responder and a Product Manager at FLIR, discusses its latest tool for chemical identification

Civilian and military responders face scenarios ranging from intentional chemical attacks and accidental hazardous material (HAZMAT) releases to natural disasters and environmental monitoring or remediation efforts.  Responders step on-scene with a diverse toolkit –sometimes small and other times extensive. It is critical to stay familiar with the equipment in the kit, because no single chemical detection tool can provide answers for every scenario.

Colorimetric test kits are one of the most commonly used technologies for quickly collecting presumptive information about a chemical. They are used to determine if a threat is present and determine its chemical class.  This information is important, but knowing the exact identity of a chemical can inform a safer response.  True chemical identity can provide information to responders and law enforcement officials beyond the initial threat, and lead to further discoveries to further safeguard the public.

While some detectors only indicate the presence of a chemical, others specifically detect hazards in the presence ofa complex chemical background, like a gas chromatograph mass spectrometer (GC/MS).  GC/MS is an incredibly sensitive and highly specific tool commonly used in laboratory environments.  It can sense trace level chemicals other equipment can’t, while also providing the ability to positively identify the chemical. But chemical emergencies don’t just happen in laboratories –they can happen anywhere.

Real-time chemical detection and identification in the field is critical to the CBRNE or HAZMAT response mission.  Confirmatory chemical identification enables responders to mitigate a threat and protect people and the environment from harm.

The most challenging aspects of taking gold-standard technology like GC/MS into the field is survivability in harsh environments and ease of use.  Significant technological advancements have led to the development of the FLIR Griffin G510 person-portable GC/MS system.  Its lab-quality detection performance, simple-to-use interface, and rugged construction are ideal for high-consequence response missions.

Response missions take place in complex environments that the GC/MS must withstand.  The Griffin G510 is completely self-contained in a 36-pound device, including batteries, carrier gas, vacuum system, injector, and heated sample probe. It is also the first IP65-rated portable GC/MS.  This means it’s dust-tight and spray-resistant, which adds flexibility to decontamination procedures.  There is no 40-pound external service module like other portable GC/MS systems and no 20-pound external pump under the bench like those seen in a laboratory. Batteries last up to four hours and are hot swappable, should the mission extend longer than expected, which eliminates the need for a power generator.  The Griffin G510 is designed from the ground up to operate outside of the lab.

Hazmat technicians will dive into using the features that deliver lab-quality analysis.  First on-scene operators will appreciate that they don’t need a Ph.D. to use it.  Basic operator training is completed in only two hours, while expert training can be completed in a single day.

The user interface truly sets it apart from other portable GC/MS systems.  It’s streamlined design and guided controls help the user select the mode of operation.  First responders must perform quickly and with limited dexterity when wearing required PPE.  They are responsible for sample and data collection, and in some cases, real-time decision making.  The G510 alerts the operator with visual alarm confirmation both on the handheld probe, as well as the on-board 9” touchscreen.  The large touchscreen can be operated by a responder while wearing full personal protective equipment (PPE).

Hazmat responders can use the Griffin G510 to analyze all phases of matter (solid, liquid, gas).  Its integrated survey mode capability identifies vapor-phase chemical threats within seconds.  Its integrated split/splitless liquid injector enables responders to perform direct injection of organic liquids –an industry first.  This same injector also accepts other sampling tools, including solid-phase micro-extraction (SPME), off-the-shelf headspace analyzers, and the Prepless Sample Introduction (PSI) Probe.  The PSI-Probe directly accepts solid samples in their native form (such as soil and water-based materials).  The Griffin G510 reduces the burden of sample preparation for the operator and provides ultimate flexibility as the daily mission changes. Hazardous environments demand the ultimate toolbox include confirmatory instrumentation like GC/MS.  The Griffin G510 portable GC/MS redefines performance, ease of use, and value for the responder toolkit.

 

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