Environmental No-Fault EPA Orders Compelling Off-Site Investigations are Alive and Well in Ontario

Article by Marc McAree, Partner and Certified Environmental Law Specialist and Anand Srivastava, Associate, with assistance of Matthew Lakatos-Hayward, Student-at-Law, Willms & Shier Environmental Lawyers LLP

Ontario’s Environmental Protection Act (“EPA”), section 18 permits the Ministry of the Environment, Conservation and Parks (“MECP”) Director to issue an Order to any current or former owner or occupier of contaminated property. 

Section 18 Orders are no-fault Orders.  Section 18 Orders do not require the orderee to have any nexus to the polluting activity aside from the orderees’ current or former ownership and/or occupation of a contaminated property.

In Hamilton Beach Brands Canada, Inc. v Ministry of the Environment and Climate Change, [1] the the MECP Director issued a no-fault section 18 Order to the current owner of a contaminated property, former owners of the property, and the current tenant of the property. 

The orderees challenged the broad scope of the Director’s no-fault section 18 Order.  The orderees argued, inter alia, that Section 18 orders are “absurd”. 

The orderees appealed the section 18 Order to the Environmental Review Tribunal (“ERT”).  For purposes of the appeal only, the MECP agreed that the orderees did not cause historic contamination at the source property.

Reading the EPA, section 18 and applying principles of statutory interpretation, the ERT dismissed the orderees’ appeal.  The ERT confirmed that the MECP Director has jurisdiction to issue EPA, section 18 orders where:

  1. the orderees did not own the source property at the time of the contaminating activity
  2. the orderees did not operate at the source property at the time of the contaminating activity
  3. the contamination migrated from the source property to down-gradient, off-site properties
  4. the Order requires investigation and delineation of contamination at down-gradient, off-site properties, and/or
  5. an “adverse effect” (as defined in the EPA) has occurred, is occurring and/or may occur in the future.

The orderees then appealed the ERT’s decision upholding the MECP Director’s Order to the Ontario Superior Court of Justice – Divisional Court.  The orderees argued that the ERT’s decision was wrong and should be reversed on a standard of correctness.

The Divisional Court disagreed with the orderees and held that the ERT’s decision met both the standard of reasonableness (Dunsmuir) and the standard of correctness.

The Divisional Court concluded:

… the [ERT] carefully considered the [orderees’] interpretation … It rejected their interpretation of s. 18.  In doing so, it applied the principle of modern statutory interpretation … The [ERT] decision is transparent, justified and intelligible and falls well within the range of possible outcomes (Dunsmuir at para 47).  The Tribunal’s decision was reasonable and, in my view, correct and consistent with the modern principles of statutory interpretation.[2]

The Ontario Divisional Court upheld the MECP’s jurisdiction to issue no-fault Orders requiring off-site investigation.  

On December 12, 2018, the Ontario Court of Appeal denied the orderees leave to appeal from the Divisional Court’s decision.

The upshot of Hamilton Beach is that Ontario Environmental Protection Act, section 18 no-fault Orders requiring off-site environmental investigation are permitted even where the Orderee did not have any association with the polluting activity aside from the Orderee’s current or former ownership and/or occupation of the contaminated source property.


Footnotes

[1]      14 CELR (4th) 137 (Ont ERT) aff’d 2018 ONSC 5010 (Div Ct); Decision issued September 4, 2018

[2]      2018 ONSC 5010 at para 73.


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.
© Willms & Shier Environmental Lawyers LLP


About the Authors

Marc McAree is a partner at Willms & Shier Environmental Lawyers LLP and a Certified Specialist in Environmental Law.  He provides advice and solutions to a wide range of clients that help them overcome their environmental law and litigation issues. Marc also provides mediation on environmental issues. Marc is admitted to the bars of Ontario and British Columbia. Marc may be reached at 416-862-4820 or by e-mail at mmcaree@willmsshier.com.

Anand Srivastava is an associate at Willms & Shier Environmental Lawyers LLP.  He has expertise in assisting a broad range of clients with environmental law and litigation issues.  Anand draws on his science background to facilitate practical solutions to complex environmental legal issues.  Anand is called to the bar of Ontario. He may be reached at 416-862-4829 or by e-mail at asrivastava@willmsshier.com.

New Year, New Environmental Rules: Alberta’s Revised Remediation Rules Take Effect in 2019

by Dufferin Harper and Lindsey Mosher, Blake, Cassels & Graydon LLP

On January 1, 2019, significant amendments to Alberta’s Remediation Certificate Regulation came into force. These include:

  • Renaming the regulation the Remediation Regulation
  • Creating a site-based remediation certificate
  • Creating a new reporting requirement for impacts
  • Defaulting to the application of Tier 1 rather than Tier 2 Guidelines
  • Issuing a Tier 2 compliance letter
  • Establishing a new mandatory remedial measures timeline

As discussed in more detail below, many of the amendments address long-standing concerns within the existing remediation certification process. However, in several instances they also introduce new areas of regulatory uncertainty.

SITE-BASED REMEDIATION CERTIFICATE

One of the primary concerns with the existing regime is that it is too limited in scope. Although it provides for remediation certificates to be issued for specific areas of land impacted by a contaminant release, it does not enable a property owner to obtain regulatory signoff for a complete site as opposed to only an area of a site.

In response to that concern, the Remediation Regulation introduces a new type of remediation certificate applicable to a complete site, which is referred to as a “site-based remediation certificate”. A site-based remediation certificate confirms that all contaminants and areas of potential concern both on and off site have been addressed and necessarily involves the submission of more extensive documentation than what is required for a limited remediation certificate.  To assist in the application process, the Alberta government is expected to develop and release a new application form and guide for a site-based remediation certificate application prior to January 2019.

NEW REPORTING REQUIREMENT

A person responsible for a release currently has a statutory obligation to report the release. In addition to this existing obligation, the Remediation Regulation imposes an additional obligation to report any new information about the “impact” of a released substance. Neither of the terms “new information”, nor “impact”, are defined in the Remediation Regulation, and it remains to be seen what additional guidance, if any, will be provided to clarify the scope of the additional obligation. Until that occurs, or until the courts clarify the scope of the obligation, uncertainty will likely prevail.

APPLICATION OF TIER 1 VERSUS TIER 2 GUIDELINES

Under the current Remediation Certificate Regulation, a person applying for a remediation certificate may elect to apply either generic Tier 1 Soil and Groundwater Remediation Guidelines (Tier 1 Guidelines) or site -specific Tier 2 Soil and Groundwater Remediation Guidelines (Tier 2 Guidelines).

The Remediation Regulation removes this discretionary election. Instead, the Tier 1 Guidelines will always be the default remediation standard. Regulatory approval will be required to remediate to Tier 2 Guidelines.

TIER 2 COMPLIANCE LETTER

Another major concern (and criticism) of the existing regime involves the situation where contaminant levels exceed Tier 1 Guidelines but not Tier 2 Guidelines. In such a situation, if the Tier 2 Guidelines are applied, the affected area will not require remediation. Notwithstanding the levels exceed Tier 1 Guidelines and would otherwise require remediation but for the application of the Tier 2 Guidelines, the regulator’s position is that, since there has been no “remediation”, it is unable to issue a “remediation certificate”.  The Remediation Regulation addresses this situation, albeit indirectly.  Rather than amending the scenarios under which a remediation certificate can be issued to account for the above situation, the Remediation Regulation introduces a hybrid type of approval, described as a “Tier 2 compliance letter”. Such a letter will be issued by the regulator when it is satisfied the area or the site meets Tier 2 Guidelines and therefore does not need to be remediated. The difficulty with such a hybrid approach is that it is unclear what type of legal protection a “Tier 2 compliance letter” provides. For example, a remediation certificate currently provides protection against a subsequent environmental protection order being issued for the same contaminant and area. A Tier 2 compliance letter provides no similar protection.  Furthermore, no reference to a Tier 2 compliance letter is set out in Environmental Protection and Enhancement Act and its legal significance is therefore unknown.

NEW REMEDIAL MEASURES TIMELINE

The Remediation Regulation introduces a mandatory timeline for remedial measures for all releases reported after January 1, 2019. If remediation cannot be completed to the satisfaction of the regulator within the following two years, a remedial action plan acceptable to the regulator must be submitted in accordance with the requirements of the Remediation Regulation.

The timeline is not mandatory for the complete remediation of a release. Rather, it is a timeline for the submission of a remedial action plan that will describe what further remedial activities will occur in the future. As such, it appears to be nothing more than an administrative requirement as opposed to an actual remedial efficiency requirement.

NEXT STEPS

The Remediation Regulation came into force as of January 1, 2019, and all releases now must comply with its provisions. Releases reported before January 1, 2019 continue to be regulated in accordance with the old regime under the Remediation Certificate Regulation.

This article was first published on the Blakes Business Class website. It is republished with the permission of the authors and Blakes. Copyright of this article remains with Blakes.


About the Authors

Dufferin (Duff) Harper practices in the areas of environmental law, commercial litigation and regulatory law. He routinely acts for clients on environmental due diligence and liability issues, especially as they pertain to brownfield redevelopment and transportation of dangerous goods. On the corporate side, he specializes in crafting complicated environmental agreements that allocate environmental risks and address remediation requirements. He also advises clients on greenhouse gas matters including the purchase and sale of greenhouse gas emissions credits, offset credits and other environmental attributes.

Duff has acted as lead counsel in several litigation cases involving contaminated sites, both on behalf of contaminated property owners and parties who were allegedly responsible for the contamination. On the regulatory front, he has appeared before numerous levels of courts and assessment tribunals, including tribunals constituted pursuant to the Canadian Environmental Assessment Act (CEAA) ), the National Energy Board (NEB) and numerous provincial regulators.

Duff also provides strategic regulatory compliance and environmental impact assessment advice to industrial clients, such as conventional oil and gas companies, mining companies, companies operating in the oil sands, and liquefied natural gas proponents.

Lindsey Mosher’s practice focuses on energy regulation, as well as environmental and administrative law. She has experience in a broad range of regulatory matters, including regulatory compliance issues, regulatory approvals and hearings, and corporate matters.

Prior to joining Blakes, Lindsey obtained industry experience working in the legal department of a large Canadian oil and gas company, Alberta’s utilities regulator and a large Canadian telecommunications company.

Lindsey has appeared before Alberta’s utilities regulator, the Provincial Court of Alberta and the Court of Appeal of Alberta.

Canada: Environmental Issues In Expropriation

Article by Chidinma Thompson, Borden Ladner Gervais LLP

A. Indirect Expropriation through Environmental Regulation

Claims for indirect expropriation may arise through environmental regulatory regimes. Where legislative schemes operate to interfere with existing property rights, such interference may constitute de facto, or indirect, expropriation. One example of a legislative regime that has been the subject of indirect expropriation claims is the federal Species at Risk Act1 (the “SARA”). Under the SARA, the Governor in Council is empowered to make emergency orders to provide for the protection of certain wildlife species.2 The emergency protection order may extend not only to Crown land, but also private property.3 The SARA provides for a limited compensation scheme. The Minister may provide for reasonable compensation for losses suffered “as a result of any extraordinary impact of the application of” the emergency protection order.4 The Governor in Council may make regulations with respect to the procedures to be followed and the methods to be used to determine the compensation.5

The sage grouse order exemplifies how a SARA emergency protection order may give rise to an expropriation claim. The sage grouse order was the first emergency protection order to be issued under section 80 of the SARA. It was issued to protect the greater sage grouse population in Alberta and Saskatchewan, and came into force on February 18, 2014. The sage grouse is an endangered species under the SARA and Alberta’s Wildlife Act.6 Under the Wildlife Act it is an offence to “willfully molest, disturb, ore destroy a house, nest or den” of sage grouse. The sage grouse order restricted activities on 1,672 km2 of provincial and federal Crown lands in southeastern Alberta and southwestern Saskatchewan.

A Sage Grouse (Photo Credit: Miles Tindal / Calgary Herald)

In The City of Medicine Hat et al v Canada (AG) et al,7 LGX Oil and Gas and the City of Medicine Hat, which had interests in the Manyberries oil production site that was affected by the sage grouse order, brought a judicial review and constitutional challenge of the sage grouse order at the Federal Court of Canada. The applicants successfully resisted a summary dismissal motion brought by the Crown and subsequently commenced an action at the Alberta Court of Queen’s Bench for $123.6 million in compensation (including accelerated reclamation costs) for de facto expropriation of existing oil and gas mineral rights, leases and rights-of-way. This case is ongoing. At this point, the Governor in Council has not made regulations with respect to compensation. The Crown pleads that the emergency protection order is regulatory and, in the alternative, that compensation under the SARA is discretionary. In the further alternative, the Governor in Council had chosen not to make regulations, and the emergency order did not have an “extraordinary impact” on the plaintiffs.

Another case was Groupe Maison Candiac Inc v Canada (AG).8 This case concerns the second emergency protection order made under the SARA, which protects the western chorus frog. The western chorus frog is listed on the SARA’s list of endangered species as a threatened species in the provinces of Ontario and Quebec. The emergency protection order prohibits excavation, deforestation and construction within a two km2 area in the municipalities of La Prairie, Candiac and St-Philippe, Quebec to protect the frog and its habitat. This order was the first time a SARA emergency protection order restricted development on private land.

As a result of the western frog order, Groupe Maison Candiac Inc. (“Groupe Maison”) was forced to reduce its residential development by 171 units after construction was already underway and Groupe Maison had obtained the requisite municipal and provincial approvals. Groupe Maison brought a judicial review of the emergency protection order by way of a constitutional challenge and an expropriation claim. The Federal Court dismissed the application, finding that: (1) section 4(c)(ii) of the SARA is within the federal government’s jurisdiction over criminal law; and protected by the doctrine of ancillary powers, including jurisdiction over peace, order and good governance; (2) the western chorus frog order did not amount to expropriation that required compensation; and (3) the Parliament had already provided a mechanism for compensation under the SARA that applies in “extraordinary circumstances.”

In 2017, the Minister of Environment and Climate Change received three petitions to recommend to the Governor in Council for an emergency order to protect the southern mountain woodland caribou population. The Minister conducted an Imminent Threat Assessment and, on May 4, 2018, determined that the southern mountain caribou faced imminent threats requiring intervention for recovery. An emergency protection order may be forthcoming for Alberta and British Columbia. The SARA public registry and the Canada Gazette will provide updates on this matter.

B. Polluter Pays in Expropriation of Contaminated Lands

Alberta’s Environmental Protection and Enhancement Act9 (the “EPEA”) is another environmental protection legislation that affects expropriation claims. As one of its purposes, the EPEA adopts the “polluter pays” principle to address contamination. The EPEA includes three regulatory mechanisms with respect to contamination: (1) Part 5 Division 1 concerns the release of substances generally; (2) Part 5 Division 2 concerns contaminated sites designation; and (3) Part 6 deals with conservation and reclamation. Further, the EPEA expressly acknowledges an affected person’s recourse to court through private civil claims.10 Some of the key concepts related to the three regulatory mechanisms are considered below.

Part 5 Division 1 of the EPEA deals with the release of substances into the environment. Under section 112, the person responsible for the substance has the duty to take remedial measures with respect to any release of same.11 Environmental protection orders may also be issued to the person responsible for the substance where the release is causing, has caused or may cause an adverse effect.12

The statutory definition of “person responsible” includes: (1) owner and previous owner of substance; (2) every person who has or has had charge, management or control of the substance; (3) successor, assignee, executor, administrator, receiver, receiver‑manager or trustee of (1) to (2); and (4) principal or agent of (1) to (3).13 The “person responsible’ excludes, unless they release new or additional substances: (1) a municipality in respect of land shown on its tax arrears list, or land acquired by it by dedication or gift of an environmental reserve, municipal reserve, school reserve, road, utility lot or right of way; (2) a person who investigates or tests the land for the purpose of determining the environmental condition of that parcel; and (3) the Minister responsible for the Unclaimed Personal Property and Vested Property Act, with respect to a parcel of land to which that Act applies. Thus, it appears that the notion of “person responsible” is based on one’s relationship to the substance/release only, and not based on the cause of the release.

Part 5 Division 2 of the EPEA provides for the designation of contaminated sites. Under section 129 of the EPEA, the Director may designate a site as a contaminated site and issue an environmental protection order to a person responsible for the contaminated site. The Director must consider several factors before issuing an environmental protection order for a contaminated site, including: (1) due diligence of the owner or previous owner; (2) whether the presence of the substance at the site was caused solely by the act or omission of another person, other than an employee, agent or person with whom the owner or previous owner has or had a contractual relationship; and (3) the price the owner paid for the site and the relationship between that price and the fair market value of the site had the substance not been present.14

The “person responsible for the contaminated site” means: (1) a person responsible for the substance that is in, on or under the contaminated site; (2) any other person who the Director considers caused or contributed to the release of the substance into the environment; (3) the owner of the contaminated site; (4) any previous owner of the contaminated site who was the owner at any time when the substance was in, on or under the contaminated site; (5) a successor, assignee, executor, administrator, receiver, receiver‑manager or trustee of a person referred to in any of subclauses (2) to (4); and (6) a person who acts as the principal or agent of a person referred to in any of subclauses (2) to (5). As was the case with Division 1, the definition of “person responsible for the contaminated site” again excludes municipalities and investigators. In this case, the test is based on the relationship to the substance/release and the property.

In practice, Division 2 is rarely used. Designation will only occur as a last resort when there are no other appropriate tools. There have only been five instances of designation of a contaminated site since 1993 and no environmental protection order appears to have been issued under Division 2. Division 2 offers options otherwise unavailable, including the allocation of responsibility to present and past site owners who may have contractually assumed liability for the pollution, remedial actions plans and agreements with the Director, and the apportionment of costs of remedial work among responsible parties. The Minister may also pay compensation to any person who suffers loss or damage as a direct result of the application of Part 5 Division 2.15

Environmental contamination may affect the valuation of expropriated property. Under the Expropriation Act,16compensation for expropriation is based on the market value of the expropriated land, which is in turn “the amount realized if sold in the open market by a willing seller to a willing buyer”,17 and provable damages. The determination of market value accounts for everything that is present in the site, except for the legislated exclusions found in section 45 of the Expropriation Act.

Contamination introduces issues in valuing expropriated property, given the uncertainty in liability exposure, scope, duration, risk and stigma. Below are some case law on the interaction between the expropriation of contaminated lands and the “polluter pays” principle.

In Toronto (City) v Bernardo,18 the respondent Bernardo was the registered owner of a property and permitted the corporate respondent’s scrap metal business on property rent-free by oral licence to occupy. The City of Toronto served and published notice to expropriate property. The City conducted environmental testing on property which showed contamination, and was advised that clean-up costs for property could be in range of $250,000 to $750,000. The appraised value of the property was $242,500 before taking into consideration site remediation or clean-up costs. Given the estimated cost of remediation which exceeded value of land, the City’s offer of compensation to the respondents was $1. The respondents did not request compensation hearing but refused to surrender possession. The City brought motion for order to take possession. The Ontario Supreme Court granted the City’s motion as the respondents had the opportunity to contest the City’s offer of compensation in proceedings before the Ontario Municipal Board and chose not to take any action to assert claims for compensation.

In Thompson v Alberta (Minister of Environment),19 the claimant had purchased land for the sum of $1 million. At the time of purchase, the land was not part of any property acquired by the Crown for a proposed transportation corridor. The Crown reviewed roadway plan within months of claimant’s purchase and determined that land was a necessary part of the corridor. The Crown expropriated land for $1,025,000. The claimant brought action for increased compensation. The action was allowed in part. The claimant was granted $1,120,000. The Crown’s valuation discounted the value of the property because of the unknown cost of filling or remediating a wetland (which is 50% of the property) for future residential development, which posed an economic challenge for a prospective purchaser. The Court found that the cost of remediation calculated by the Crown was based on premature assumption that land was to be developed in isolation with no possible cost sharing by adjacent developers. The Court, however, recognized that a discount must be applied for market value because of this possibility of remediation.

In Ville de Saint-Jean-sur-Richelieu c Cour du Québec,20 the subject property included a grocery store, snack-bar and a retail marina fuel distribution outlet for vessels navigating on Chambly canal, and a gas station for road vehicles. The issue before the Court was whether the costs of decontamination should be deducted from the compensation awarded for expropriation, based on the duty to remediate. It was argued that evidence demonstrated that there was a spill onto the neighbouring property, therefore the question as to cessation of activities no longer applied, and the mandatory provisions of the EQA regarding decontamination was triggered. The Tribunal Administratif du Québec (the “TAQ”) ruled that the total remediation cost of $450,000 be paid by the owner of the property, 9092-9340 Québec Inc. (“9092”) and should be deducted from its expropriation indemnity award. The value of the expropriated property, after deduction of the decontamination costs, was established as being $31,000.


Lock 9, the southern terminus of the Chambly Canal, is located in the town of St.-Jean-Sur-Richelieu.

The Court of Quebec allowed the appeal, holding that the finding of the TAQ was unreasonable and profoundly unfair. Were it not for the expropriation, 9092 could have ceased its activity at its own time, negotiated with a willing purchaser and, based upon the projects of the purchaser, negotiated the decontamination works remaining according to the circumstances. The City deprived 9092 of its right to complete the decontamination work at the time that it deemed the most suitable to its interests and subject to conditions that would have been more favourable. By forcing 9092 to assume the costs of decontamination estimated by the City engineer, the TAQ deprived the owner of the quasi-totality of the value of the expropriated property. The City brought a judicial review application which was subsequently dismissed. The Court found that the systemic analysis undertaken by the Court of Quebec highlights the significant defects and the fragility of the TAQ ruling to assign full liability to 9092 for the estimated costs of decontamination of the property.

Case law suggests that the law is not blind to the causation of the contamination when evaluating the market value of an expropriated property that has been contaminated. Liability for the remediation of contaminated land in Alberta clearly rests with “person responsible for the substance” and, in the rare case of designated contaminated sites, “person responsible for the contaminated site.” Liability for contamination does not run with the land in Alberta.

This leads to the question of what is the intent of the law in respect of a faultless landowner for the environmental depreciation of land in the expropriation context. The principles of statutory interpretation apply to deem the legislature as knowing all the law and the necessary statutory language to give effect to its intention. The EPEA and the Expropriation Act are meant to be interpreted harmoniously as a scheme in cases of expropriation involving contamination. The Expropriation Act is a remedial statute. Accordingly, it must be given a broad and liberal interpretation consistent with its purpose.

Currently, the right of a faultless landowner to recover from a “person responsible” remediation costs in civil claims (whether under the common law or the EPEA) is a chose in action. This chose in action does not appear to be considered in the calculation of market value in expropriation. In the new era of third-party litigation funding, a chose in action for remediation costs is a valuable element that may offset some or all of the discounts associated with contaminated land, even in an open market.

Footnotes

1 Species at Risk Act, SC 2002, c 29 [SARA].

2 SARA, s 80(1).

3 SARA, s 80(4)(c)(ii).

4 SARA, s 64(1).

5 SARA, s 64(2).

6 Wildlife Act, RSA 2000, c W-10.

7 The City of Medicine Hat et al v Canada (AG) et al, Federal Court of Canada File No. T-12-14. See also Federal Court of Canada, Proceeding Queries, Recorded Entries for T-12-14, online: click here.

8 Groupe Maison Candiac Inc v Canada (AG), 2018 FC 643.

9 Environmental Protection and Enhancement Act, RSA 2000, c E-12 [EPEA].

10 EPEA, ss 217, 219, 227-228.

11 EPEA, s 112.

12 EPEA, ss 113-114.

13 EPEA, s 1(tt).

14 EPEA, s 129(2).

15 EPEA, s 131.

16 Expropriation Act, RSA 2000, c E-13.

17 Expropriation Act, ss 41-42.

18 Toronto (City) v Bernardo, 2004 CanLII 5760 (ONSC).

19 Thompson v Alberta (Minister of Environment), 2006 ABQB 510.

20 Ville de Saint-Jean-sur-Richelieu c Cour du Québec, 2017 QCCS 4832.


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.

This article was first published on the BLG website. It is re-published with the permission of the author.

About the Author

Chidinma Thompson is a partner in Commercial Litigation Group at Borden Ladner Gervais LLP‘s Calgary office. She practices commercial litigation and arbitration, project approvals, environmental defence and compliance advisory. Her practice covers a broad range of sectors including oil and gas, electricity, renewable energy, municipal and land development. She has experience in regulatory hearings before the Alberta Energy Regulator and its predecessors, Alberta Utilities Commission, and the Calgary Subdivision and Development Appeal Board. She has appeared before the Alberta Provincial Court, Court of Queen’s Bench and the Court of Appeal.

Is Ontario “Open for Business” when it comes to Excess Soil Management?

by  Grant Walsom, XCG Consultants

Since the 2013 call for a review in the regulatory gaps surrounding the ability for enforcement on mismanagement of excess soils in Ontario, the Ministry of Environment (now called Ministry of Environment, Conservation and Parks – MECP) has tirelessly worked towards a proposed Excess Soil Regulatory package for Ontario.  The efforts have included an unprecedented process of stakeholder listening sessions, consultations and engagement group meetings and inter-Ministerial reviews over the past 5 years.

The proposed Excess Soil Regulatory Package was formed through 2 separate postings on the Environmental Bill of Rights (EBR) and is reportedly ready for Cabinet Approval.  Further, the regulatory package is formulated with general overall acceptance by the construction and development industry in Ontario as well as the supporting industries (i.e., legal, consulting, laboratories) and municipalities.  It is generally agreed that the proposed Regulation outlines possible opportunities for beneficial reuse with sustainable considerations (examples would be reduced truck traffic and reduced greenhouse gases creation).

We are coming to understand that the current Conservative Provincial Government is strongly opposed to a majority of initiatives created by the previous Liberal Government.  The Conservatives are in favour of the red-tape reduction, streamlining operations and fiscal responsibility.  In fact, there is now a Deputy Minister of Red Tape and Regulatory Burden Reduction in the Ontario Cabinet.  His job is to make Ontario “Open for Business.”  Any new Regulation such as those being reviewed by MECP could certainly be viewed as counter-productive in terms of red-tape reduction.    However, with the release of the Made-in- Ontario Environment Plan on November 29, 2018, it appears that Excess Soil Regulation will be enacted in some form in the not-to-distant future.  There will no doubt be some changes to the proposed Regulatory package, but it is good to see that Regulation will proceed.

To date, one of the biggest challenges that the enforcement regime of the Environment Ministry had was the gap in how excess soil (impacted with contaminants or not) could be classified as a “waste material” if it’s not managed properly or if it’s illegally dumped.  We have all seen the extensive media coverage of a number of illegal dump sites, innocent property owners mislead on the quality of the fill they are accepting, and private air-fields who have capitalized on the regulatory gaps in Ontario where excess soil is concerned.  Enforcement against illegal dumping or misrepresentation of the soil quality is not clear or easily achieved under the current Environmental Protection Act and regulations such as Regulation 347 (Waste Management).  Minor amendments to Regulation 153/04 (Brownfields Regulation) have also been proposed to assist in streamlining and simplifying filing of Records of Site Condition and redevelopment of Brownfield properties.  Further definitions of soil, waste and inert fill are also forthcoming in the new proposed Excess Soil Regulatory package.

One of the main benefits of the proposed Excess Soil Regulation is the clarity it provides in the expectations of appropriate management of excess soil along with the steps that would be followed to provide the level of certainty that the public would expect.  It puts a heavy onus on the generator of the excess soil (or the source site) to assess the quality against a set of new standards.  The Standards were developed as a subset of the O. Reg. 153/04 Brownfield Standards, aimed at assisting in identifying acceptable and beneficial re-use of the excess soil.

Beneficial reuse of excess soil has a strong consideration for soil quality in terms of chemical testing to assess for contaminants; however, Ontario soils are highly variable with respect to the geotechnical quality for engineered reuse (i.e., silt, clay, sands, gravels and poor quality mixed fill).  Recovered excess soil may require some screening/grading to classify the geotechnical qualities prior to identifying an appropriate engineered and beneficial reuse.  Market-based solutions and opportunities for excess soil supply and demand services are sure to be identified as creative Ontarians have historically shown innovation in finding geotechnical solutions for excess soil.  The new regulatory package allows for this to happen to the benefit of both sender and receiver parties. Increasingly, clients are also choosing to avoid moving soils by employing methods to limit or even eliminate the amount of soils that have to be moved from a poor fill site with things like landscaped architectural features or ground improvement to treat soils in place.

Another benefit of the proposed excess soil regulation is the placement of the responsibility to ensure and “certify” the quality of the excess soil and the appropriate handling and re-use of the material by the source site or generator.  This requires a shift in the thinking around management of any excess soil materials to be assessed and pre-planned at the beginning of a project, versus at the last minute and left to the excavation contractor, as has historically been done.  The shift in thinking and pre-planning may take time, but with the assistance of the “Qualified Person” community in Ontario, the planning can be simplified.  The industry is already starting to shift to a more responsible management of excess soils, with the knowledge of potential Regulatory changes. The proposed Excess Soil Regulatory package has a well-defined transition period of two full years to be fully enacted, giving the construction and development industry time to become used to the shift in thinking and pre-planning as well as the procurement groups to ensure that the appropriate assessment and characterization activities are completed.

The benefits of many aspects of the proposed Excess Soil Regulatory package are clear and are desired in Ontario.  The business community has hoped that the current Conservative Government in Ontario understands that the Excess Soil Regulatory package has been requested by the citizens of Ontario, and formulated through an exhaustive consultation and engagement of the various stakeholders in the Province. It has also been hoped that the current Provincial Government sees the value in many aspects of the proposed regulatory package for management of excess soils.  With reference to Excess Soil Regulation in the Environment Plan, it certainly appears that the current Provincial Government does see the value.  Further, the complimentary minor amendments to the soil and waste definitions are needed as are the proposed amendments to the Brownfield Regulation.

Since the June 2018 election, the construction and development industries in Ontario have been patiently waiting for clarity on how the current Provincial Government plans to proceed.  It is clear that this new legislative change will help to make Ontario open for business and it appears that the current Provincial Government agrees.  We will now see what changes to the proposed Regulatory Package will be made, hopefully, sooner than later.

This article was first published in the Geosolv website.

About the Author

Grant Walsom, P.Eng., is a Partner at XCG Consulting Limited and recognized as a Qualified Person in Ontario under the Record of Site Condition Regulation (O. Reg. 153/04). He proudly serves on the Board of Directors at the Ontario Environment Industry Association (ONEIA) and the Canadian Brownfields Network (CBN). Grant can be reached at grant.walsom@xcg.com.

What are the most common HazMat threats for first responders?

by Steven Pike, Argon Electronics

The unintentional release of toxic chemicals can pose a wide range of physical, health and environmental hazards. And when it comes to the storage, handling or transport of hazardous materials (HazMat), safety is paramount.

The US Environmental Protection Agency (U.S. EPA) defines HazMat as any substance that is potentially harmful to human health or the environment. 

While there are a multitude of precautions that industries will take to stay safe, in the event of accidental spillage due to a road traffic accident or as the result of an industrial incident, highly trained HazMat crews will be called on to mitigate the threat.

In this article, we explore eight of the most common hazardous materials that first responders are likely to encounter in the event of an industrial accident or road transport incident.

1) Carbon Dioxide

Refrigerated carbon dioxide is a colorless, odorless, non-flammable gas used to chill or freeze food products as part of the process of transport to market.

Although non-toxic, when carbon dioxide displaces oxygen in confined spaces the carbon dioxide vapors can cause headache, nausea, dizziness or asphyxiation. And when carbon dioxide comes into contact with skin it can also cause severe burns.

When responding to incidents where C02 is stored, firefighters need to be alert to the possibility of leakages. A low oxygen meter should be used to determine that an area is safe for occupancy.

2) Chlorine

Chlorine is a key component in the production of key industrial and consumer products including the vast majority of pharmaceutical production and virtually all crop protection chemicals.

It is a highly reactive and volatile substance, particularly when in the presence of heat, and is considered to be among the most dangerous of hazardous materials.

Chlorine is classified as both a Toxic Inhalation Hazard (TIH) and a Poison Inhalation Hazard (PIH).

3) Fireworks

Both the transport and storage of consumer fireworks pose a high fire risk. In the United Kingdom (UK), the physical movement (transfer) of explosives from one place to another (excluding those moved within a site) requires a Recipient Competent Authority (RCA) document. 

According to the UK’s Health and Safety Executive (HSE) a license is required from an appropriate licensing authority in order to be able to store explosives, however depending on their hazard type certain quantities of explosives can be kept for a short time without the need for a license. 

In the US, the Consumer Product Safety Commission (CPSC) has issued mandatory safety regulations for fireworks devices that are regulated under the Federal Hazardous Substances Act.

4) Gasoline

Typical gasoline contains approximately 150 different chemicals including benzene, toluene, ethylbenzene and xylene.

The highly flammable nature of gasoline, the ease with which it evaporates and its explosive potential in air, makes it a high exposure risk. Gasoline exposure can occur through the breathing of gasoline vapours, via the drinking of contaminated water or by coming into contact with contaminated soil.

Gasoline should only be stored in approved containers and must not be handled near any ignition source.

5) Argon

A refrigerated liquid, Argon is most commonly used in the production of fluorescent light bulbs and in welding.

Argon is classed as neither flammable nor toxic, however it can cause significant tissue damage if it comes into contact with skin and it can be extremely harmful if inhaled. To avoid sudden releases Argon is transported in upright cylinders.

6) Sulfuric Acid

Sulfuric acid (also known as “battery acid”, “hydrgen sulfate” and “oil of vitriol”) is one of the most important compounds in the chemical industry. The annual production of sulfuric acid worldwide has been predicted to hit 260 million tonnes by the end of 2018. 

Sulfuric acid is used widely in the production of phosphate fertilizers, metal processing, lead-based batteries, fiber production and chemical manufacturing (including paints, pigments, dyes and synthetic detergents.)

It is a highly corrosive substance which is destructive to skin, eyes, teeth and lungs. Severe exposure can be fatal.

7) Propylene

Propylene is a volatile, flammable gas used as a crucial product in the petrochemical, packaging and plastics industries.

It is often used in the place of propane in high-velocity oxygen fuel (HVOF) processes. Propylene gas poses a fire hazard when it is handled in the vicinity of any equipment capable of causing ignition.

8) Liquefied Petroleum Gas (LPG)

Comprising a combination of propane and butane, LPG is commonly used as both a fuel (to heat vehicles and appliances) and as a refrigerant. Its mixture of hydrocarbon gases poses a major fire risk which means it must be stored in pressured vessels.

Toxic chemicals can pose a wide range of potential health and physical hazards to those employees operating within industrial plants and to the personnel charged with handling or transporting these substances. And as such they are heavily regulated.

In the rare case of accidental release, the knowledge of HazMat crews can provide life-saving assistance in identifying the threat, containing the area and mitigating the effects of the incident. 

This article was first published on the Argon Electronics website.

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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.

What is the best HazMat training method to keep first responders safe

by Steven Pike, Argon Electronics

While regulations exist to guide HazMat training requirements for first  responders, the reality is that many personnel still don’t consider themselves to be adequately skilled in the use of their equipment.

Sometimes it’s because there simply isn’t enough time to carry out regular and structured training programmes. Sometimes this lack of preparedness comes as the result of budget cuts where training is one of the first things to go.

So says, independent CBRN consultant and subject matter expert, Debra Robinson in a white paper she has written which explores the subject of keeping first responders safe.

As Debra explains, it’s not enough for a department to simply purchase a full array of safety and monitoring equipment.

“Responders need to be thoroughly knowledgeable about the capabilities, limitations and applications and be proficient in the use of each piece of equipment, and that takes a great deal of training,” she says.

It would seem too that smaller fire departments are often the ones losing out, with many volunteers not always being crystal clear on what their training requirements even entail. 

“Large city or larger communities with paid fire departments are far better off than the smaller departments. Some 70-80% of fire departments across the United States are manned by volunteers and many struggle to find volunteers to provide the services, let alone complete the requisite training,” she says.

For those departments that do have training coordinators and solid programs in place,there is still the challenge of trying to deliver equipment training that provides the most realistic learning experience possible whilst also guaranteeing personnel safety.

As Debra points out,the equipment that is used to detect, identify and measure hazardous materials can often involve significant risk, even in the presumed safety of a training environment.

Some trainers may still defer to more traditional HazMat training methods – such as the use of powerful simulants that closely mimic the properties of chemical materials. But many of these simulants can be hazardous in their own right,even in the smallest and most controlled of quantities.

In recent years, Debra explains, there’s been more of a move towards the use of training simulators which rely on specific frequencies and technologies to replicate the effects of actual, chemical, radiological and biological materials.

Says Debra: “The obvious benefit is the simulators greatly reduce the risks associated with the use of live agents. Used properly, they can be a valuable training tool and can provide for a much more realistic training environment.”

Simulators have developed a strong reputation for their abilities to facilitate hands-on training that can simply not be achieved with live agent training methods. Live agents by their nature carry an extreme level of inherent risk – something that is eliminated through the use of simulator equipment.

As Debra highlights, having the opportunity for some “serious hands-on time with the equipment” is another major plus for trainees, where repetition is the key to successful learning.

And there are also tangible benefits to be gained for a department’s bottom-line, she says, with the return on investment (ROI) being clearly evident in fewer operator errors,as well as “reduced damage to detectors, avoidance of simulant and source related administration etc. and perhaps even lower insurance premiums.”

As Debra argues, it can be easy for political or government leaders to dismiss the need for investment in CBRNe and HazMat training – and particularly when budgets are tight. Bu the risk to communities from chemical, biological or radiological threat is very real. While this may come in the form of terrorist threats, there is also the much greater risk of hazardous materials that exist in our communities’industrial plants, hospitals and businesses.

As Debra concludes:”Ultimately, the decision-point and justification is quite simple. Are you willing to accept the risks associated with under-qualified personnel and insufficient training and capabilities, or should you consider moving toward ensuring you have sufficiently trained, equipped and qualified personnel to respond to the hazards that exist in the community?”

Debra Robinson is founder of 2o8 Consulting & Solutions, based in Lincoln, Nebraska. She provides consulting and SME services in chemical, biological, radiological, and nuclear (CBRN) and Emergency Management preparedness across a diverse range of platforms and industries.

This article was first published in Argon Electronics website.

About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a world leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators.

United States: Successor Liability for Environmental Liabilities

by Julie Vanneman, Director, Cohen & Grigsby

What happens when one company acquires the assets of another, then—many years later—receives a demand to participate in the clean-up of a contaminated site based on the acquired company’s long-ago shipment of materials to the site? 

As a general rule, the buyer of assets in an asset acquisition does not automatically assume the liabilities of the seller. However, under the doctrine of successor liability, a claimant may be able to seek recovery from the purchaser of assets for liabilities that were not assumed as part of an acquisition. This claim may be employed in cases involving environmental liabilities, especially when the original party is defunct or remediation costs are greater than the original entity’s ability to pay for the cleanup.[1]

Courts have taken different positions on whether state law or federal common law governs the determination of successor liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), known also as Superfund. This distinction may have little practical effect because federal common law follows the traditional state law formulation. Notably, though, when evaluating successor liability under federal law, and specifically environmental laws like CERCLA, the doctrine may be more liberally applied because of policy concerns about contamination.[2]

Under the successor liability doctrine, a buyer can be held responsible for liabilities of the seller if one of four “limited” exceptions applies:

(1) the successor expressly or impliedly agrees to assume the liabilities; (2) a de facto merger or consolidation occurs; (3) the successor is a mere continuation of the predecessor; or (4) the transfer to the successor corporation is a fraudulent attempt to escape liability.

K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1021 (8th Cir. 2007) (citing United States v. Mex. Feed & Seed, Co., Inc., 980 F.2d 478, 487 (8th Cir. 1992)). A fifth exception, the substantial continuity exception, is a broader standard,[3] but most circuit courts do not apply it in CERCLA cases.[4]

Exception 1, express or implied assumption, must be analyzed in terms of the specific asset agreement in question. Exception 4, fraud, is generally employed in circumstances where the acquired company shifts its assets to avoid exposure to another entity.[5]

Courts have addressed the main issue of successor liability by asking whether the transaction is simply the handing off of a baton in a relay race (successor liability) or whether the new company is running a separate race (no liability).[6]  Examining factors relevant to the remaining elements—numbers 2 (de facto merger) and 3 (continuation)—helps answer the question. Under the doctrine of a de facto merger, successor liability attaches if one corporation is absorbed into another without compliance with statutory merger requirements. A court would look at whether there is a continuity of managers, personnel, locations, and assets; the same shareholders become part of the acquirer; the seller stops operating and liquidates; and the acquirer assumes the seller’s obligations to continue normal business operations.[7]  The “mere continuation” theory “emphasizes an ‘identity of officers, directors, and stock between the selling and purchasing corporations.’”[8]

Given the high stakes that can be involved with CERCLA cleanups, assessing prospects for applying the successor liability doctrine could be an important part of the liability analysis.


[1] See, e.g., James T. O’Reilly, Superfund and Brownfields Cleanup § 8:16, at 360 (2017-2018 ed.) [hereinafter O’Reilly] (“Mergers, sales of assets, and changing corporate names does not remove potential CERCLA liability.”).

[2] See O’Reilly § 8:16; see also, e.g.In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1010, 1013-19 (D. Mass. 1989) (in the CERCLA context, concluding that successor liability applied where there would be “manifest injustice” if one of the companies could “contract away” liability for PCB contamination).

[3] See K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1022 (8th Cir. 2007)

[4] See Action Mfg. Co. v. Simon Wrecking Co., 387 F. Supp. 2d 439, 452 (E.D. Pa. 2005).

[5] See, e.g., Eagle Pac. Ins. Co. v. Christensen Motor Yacht Corp., 934 P.2d 715, 721 (Wash. Ct. App. 1997). This exception is rarely used. Restatement (Third) of Torts:Prod. Liab. § 12 cmt. e (Am. Law Inst. 1998).

[6] See, e.g.Oman Int’l Fin. Ltd. v. Hoiyong Gems Corp., 616 F. Supp. 351, 361-62 (D.R.I. 1985).

[7] Asarco, LLC v. Union Pac. R.R. Co., No. 2:12-CV-00283-EJL-REB, 2017 WL 639628, at *18 (D. Idaho Feb. 16, 2017).

[8] United States v. Mex. Feed & Seed Co., 980 F.2d 478, 487 (8th Cir. 1992)  (quoting Tucker v. Paxson Mach. Co., 645 F.2d 620, 626 (8th Cir. 1981)).

This article was first published on the Cohen & Grigsby website.

About the Author

Julie counsels and represents clients in a range of environmental and litigation matters. She assists clients with day-to-day environmental compliance concerns and provides enforcement defense counseling, particularly with solid waste and groundwater issues. Her extensive background in CERCLA matters includes serving as legal counsel for clients involved in remediation initiatives at complex Superfund sites as well as litigating cases through multiple phases, including discovery, allocation negotiations, and alternative dispute resolution. Julie’s litigation practice encompasses not only environmental matters, but also insurance coverage actions and other commercial and business disputes.

Canada takes final steps to ban Asbestos

by Paul Manning, Manning Environmental Law

Environment and Climate Change Canada, along with Health Canada, published the Prohibition of Asbestos and Products Containing Asbestos Regulations in the Canada Gazette, Part II on October 17, 2018.

These new regulations apply to any person who manufactures, imports, sells or uses asbestos or products containing asbestos.

Thetford, Quebec open pit asbestos mine

The regulations prohibit the import, sale and use of all forms of asbestos as well as the manufacture, import, sale and use of products containing asbestos, with a limited number of exclusions:

  • ongoing exclusions for
    • the transfer of physical possession or control of asbestos or a product containing asbestos to allow its disposal
    • the re-use of asbestos in existing road infrastructure into new road infrastructure or in asbestos mining site restoration
    • the import, sale or use of military equipment serviced overseas with a product containing asbestos if there were no technically or economically feasible asbestos-free alternatives available
    • the import, sale or use of asbestos and products containing asbestos for display in a museum or for use in a laboratory
  • exclusions until
    • December 31, 2022 for the import, sale or use of products containing asbestos to service equipment in nuclear facilities, or to service military equipment, if there are no technically or economically feasible asbestos-free alternatives available,
    • December 31, 2029 for the import and use of asbestos for chlor-alkali facilities using asbestos diaphragm technology

The regulations include:

  • permit provisions for unforeseen circumstances where asbestos or a product containing asbestos is used to protect human health or the environment, if there is no technically or economically feasible asbestos-free alternative available
  • permit provisions for the import and use of products containing asbestos to service military equipment and equipment in a nuclear facility, if there is no technically or economically feasible asbestos-free alternative available
  • provisions requiring the submission of reports from museums, laboratories, and military, nuclear and chlor-alkali facilities, as well as permit holders, who import, use or display asbestos or products containing asbestos. The preparation and implementation of an asbestos management plan is also required in most cases

The regulations do not apply to:

  • asbestos integrated into a structure or infrastructure before the day on which the Regulations come into force (such as asbestos integrated into buildings and civil engineering works), or to products containing asbestos used before the day on which the regulations come into force (such as equipment installed in a facility, vehicles, ships, and airplanes)
  • asbestos and products containing asbestos in transit through Canada
  • mining residues, except for certain high risk activities which are prohibited, including:
  • the sale of asbestos mining residues for use in construction and landscaping activities, unless authorized by the province, and
  • the use of asbestos mining residues to manufacture a product that contains asbestos

In addition to these regulations, the existing Export of Substances on the Export Control List Regulations (ESECLR) and Schedule 3 to the Canadian Environmental Protection Act, 1999 were amended to prohibit exports of asbestos, with a limited number of exceptions.  These provisions ensure that Canada continues to meet its export obligations under international conventions, including the Rotterdam Convention. The regulations and related amendments to the ESECLR come into force on December 30, 2018.

This article is republished and first appeared on the Manning Environmental Law website.

_________________________________

About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Upper Canada. Paul has been selected as one of the world’s leading Environmental Lawyers by Who’s Who Legal: 2016.

Paul advises clients on a wide range of environmental law issues and represents them as counsel before tribunals and the courts. His practice focuses on environmental, energy, planning and Aboriginal law.

Paul holds a Masters degree in Environmental Law and obtained an accreditation in the UK as an expert in Planning Law. He is on the Executive Committee of the National Environmental, Energy and Resources Law Section of the Canadian Bar Association. Paul has a special interest in renewable energy and climate change regulation and holds a Certificate in Carbon Finance from the University of Toronto.

Chemical hazard training using Simulator Detectors

by Steven Pike, Argon Electronics

The ability to deliver consistent, engaging and true-to-life chemical hazard detection training scenarios relies on regular access to realistic, hands-on equipment.

What’s vital is that these training tools replicate not only the readings and the responsiveness of real detectors, but that they also provide trainees with an authentic experience that recreates the potential challenges that they will face in actual incidents.

Training for CBRNe and HazMat threats

Planning exercises for modern-day CBRNe and HazMat threats has never been more complex, with the need to respond to anything from clandestine laboratory searches to major industrial incidents, chemical improvised explosive devices or terrorist threats.

And key to the success of any training scenario is the capacity for instructors to be able to create compelling training experiences that are straight-forward to set up and easy to repeat.

While training with Live Agents (LAT) can still have a role to play, it introduces a substantial degree of risk to instructors, students, their equipment and the environment – not to mention incurring greater cost, increased administrative effort and a heavier regulatory burden.

Simulant training is often viewed as presenting a safer “middle ground” for CBRNe and HazMat exercises, bringing with it the advantages of a more credible, real-life experience but at the same time reducing risk through the use of smaller, controlled quantities of substances.

But even in the most carefully managed of exercises, the use of simulants brings with it certain disadvantages. It can often restrict the breadth and variety of scenarios – for example, when they are required to be used in confined spaces, or where wind, temperature or training location can impact negatively on the learning experience.

It is also increasingly common for modern detectors to provide limited response to simulant sources, due to their highly developed interference rejection (IR) capabilities.

The good news though is that safe, high-quality and easily repeatable CBRNe/HazMat training needn’t be so complicated.

Simulator detectors for CBRNe and HazMat training

One solution that has revolutionized modern approaches to chemical detection training is the adoption of innovative and safe detector training aids that replicate the functionality of real devices.

These intelligent, electronic training tools place instructors in control, they are environmentally friendly, they can be set up in an unlimited variety of indoor and outdoor locations and they offer powerful after action review features.

Let’s now take a closer look at one specific example of a chemical hazard detector – the Smiths Detection LCD3.3 – and its simulator equivalent – the LCD3.3-SIM, also known in the USA as the M4A1 JCAD and M4A1 JCAD-SIM respectively.

The Smiths Detection LCD3.3

The Smiths Detection LCD3.3 is a person-worn device which is reported to be the most widely deployed chemical detector in use today.

It is used for the detection of Chemical Warfare Agents (CWAs) – including nerve, blood, blister and choking agents – as well as for the identification of a selected library of Toxic Industrial Chemicals(TICs). The detector also incorporates different operating modes ensuring optimal detection capability.

The detector is simple to operate, requires no calibration or routine maintenance and can log up to 72 hours of mission data for further analysis while user replaceable sieve packs reduce the need for factory based overhaul. A key benefit of this detector is its ability to specifically identify CWAs, however this advanced selectivity and makes simulant based training challenging.

The Argon LCD3.3-SIM

The LCD3.3-SIM is a training device that has been designed replicate the features and functionality of the actual LCD3.3.

The simulation detector responds to electronic sources that imitate the effects of chemical vapors, toxic substances and false positives and that realistically replicate the effects of wind direction and temperature, the depletion of sieve packs and batteries, confidence testing and the use of a survey nozzle.

With no requirement for simulants as part of training, there is zero possibility of environmental contamination or health and safety risk to instructors or students.

The device is compatible with a wide variety of other simulators (including simulators for the AP2C, AP4C, CAM, LCD3.2 and the RAID-M100) which means that multi-detector and multi-substance training can take place within the same scenario.

The inclusion of a remote control feature provides CBRNe and HazMat instructors with complete management of the exercise – from deciding on the effectiveness of decontamination drills, to simulating the effects of wind, temperature and persistency and the ability to instantly reset a scenario in readiness for a new exercise.

After Action Review (AAR) enables instructors to confirm that their students have set up and used the detector in accordance with the procedures for the real-life device. In the event of student error, the student performance reporting feature provides a detailed breakdown of their actions to assist with learning.

The use of innovative simulator detector training systems significantly increases personnel safety, as well as enhancing learning and easing regulatory pressures.

Such devices also place the instructor firmly in control of the exercise to ensure you’re delivering consistent, verifiable and measurable CBRNe/HazMat training outcomes.

This article was first published as a blog on the Argon Electronics website.

__________________________

About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a world leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators.

What You Need to Know about Your Written Hazard Communication Plan

by Michael Collins, CIH, CSP, CIEC, GLE Associates

The United States Occupational Safety and Health Act (OSHA) requires employers to maintain a written hazard communication plan that effectively protects workers from potentially harmful chemical exposure in the workplace. On the surface, the requirement sounds simple, yet failure to meet this requirement is the second most commonly cited OSHA violation.

Here’s what you need to know to ensure you comply with this simple, critical OSHA requirement.

Who Needs a Written Hazard Communication Plan?

OSHA regulation 1910.1200 requires all employers with hazardous chemicals in their workplaces to prepare and implement a written hazard communication plan. This applies, according to the regulation, “to any chemical which is known to be present in the workplace in such a manner that employees may be exposed under normal conditions of use or in a foreseeable emergency.”

There are some exclusions to the requirement, including ingredients in food, certain pesticides, and distilled spirits. In most cases, the excluded chemicals are covered by other regulations. For full information, visit OSHA’s hazard communications page.

What are the Key Requirements of the Written Hazard Communication Plan?

Employers are responsible for developing and maintaining a written hazard communication program for the workplace that includes:

  • Safety Data Sheets (SDSs) for each chemical present
  • Lists of hazardous chemicals present, referenced in each case to the appropriate SDS
  • Appropriate labeling of containers of chemicals in the workplace
  • Labeling of containers of chemicals being shipped to other workplaces
  • Preparation and distribution of SDSs to employees and downstream employers
  • Development and implementation of employee training programs regarding hazards of chemicals and protective measures, which must be provided at the time of the employee’s initial assignment, as well as whenever a new chemical hazard is introduced to the work area
  • The methods the employer will use to inform employees of the hazards of non-routine tasks, and the hazards associated with chemicals contained in unlabeled pipes in their work areas

Employers are further responsible for making the written hazard communication program available, upon request, to employees and their designated representatives.

What Hazards Does the Standard Protect From?

Chemicals can pose a wide range of health hazards, including but not limited to:

  • Irritation
  • Sensitization
  • Carcinogenicity
  • Flammability
  • Corrosion
  • Reactivity

The written hazard communication plan helps protect workers from these and other risks associated with exposure in the workplace.

How to Prepare Your Written Hazard Communication Plan

Writing a hazard communication plan is not overly complicated, but it’s critical that you get it right. Start by collecting data on all potentially hazardous chemicals in use at your work site. Make a list of them. Gather SDSs for each chemical, and reference the SDS for each one inside the master list.

Identify which workers experience exposure risk during the course of their workday, as well as in foreseeable emergency circumstances. Develop an information and training program to ensure workers understand the hazards present in their workplace, as well as appropriate protective measures for those hazards. And, conduct personal air sampling for these chemicals to establish OSHA-required Negative Exposure Assessments (NEAs).

Many employers prefer the confidence and ease of hiring an experienced firm like GLE to prepare an OSHA-compliant written hazard communication plan on their behalf and conduct NEAs.

 

This article was first published on the GLE Associates website.  GLE is an integrated architecture, engineering, and environmental consulting firm, headquartered in Tampa, Florida, with offices throughout Florida and the Southeastern United States.