U.S. Mining Sites – Legacy of Contamination Needs to be Addressed

https://www.thechronicleherald.ca/news/world/us-mining-sites-dump-50m-gallons-of-fouled-wastewater-daily-285939/

Rimini, Montana – Every day many millions of gallons of water loaded with arsenic, lead and other toxic metals flow from some of the most contaminated mining sites in the U.S. and into surrounding streams and ponds without being treated, The Associated Press has found.

That torrent is poisoning aquatic life and tainting water supplies in Montana, California, Colorado, Oklahoma and at least five other states.

The pollution is a legacy of how the mining industry was allowed to operate in the U.S. for more than a century. Companies that built mines for silver, lead, gold and other “hardrock” minerals could move on once they were no longer profitable, leaving behind tainted water that still leaks out of the mines or is cleaned up at taxpayer expense.

Using data from public records requests and independent researchers, the AP examined 43 mining sites under federal oversight, some containing dozens or even hundreds of individual mines.

The records show that at average flows, more than 50 million gallons of contaminated wastewater streams daily from the sites. In many cases, it runs untreated into nearby groundwater, rivers and ponds — a roughly 20-million-gallon daily dose of pollution that could fill more than 2,000 tanker trucks.

The remainder of the waste is captured or treated in a costly effort that will need to carry on indefinitely, for perhaps thousands of years, often with little hope for reimbursement.

The volumes vastly exceed the release from Colorado’s Gold King Mine disaster in 2015, when a U.S. Environmental Protection Agency cleanup crew inadvertently triggered the release of 3 million gallons (11.4 million liters) of mustard-colored mine sludge, fouling rivers in three states.

At many mines, the pollution has continued decades after their enlistment in the federal Superfund cleanup program for the nation’s most hazardous sites, which faces sharp cuts under President Donald Trump.

Federal officials have raised fears that at least six of the sites examined by AP could have blowouts like the one at Gold King.


Mine waste mixes with runoff at the Gold King Mine. (Provided by the U.S. Environmental Protection Agency)

Some sites feature massive piles or impoundments of mine waste known as tailings. A tailings dam collapse in Brazil last month killed at least 169 people and left 140 missing. A similar 2014 accident in British Columbia swept millions of cubic yards of contaminated mud into a nearby lake, resulting in one of Canada’s worst environmental disasters.

But even short of a calamitous accident, many mines pose the chronic problem of relentless pollution.

AP also found mining sites where untreated water harms the environment or threatens drinking water supplies in North and South Carolina, Vermont, Missouri and Oregon.

Tainted wells

In mountains outside the Montana capital of Helena, about 30 households can’t drink their tap water because groundwater was polluted by about 150 abandoned gold, lead and copper mines that operated from the 1870s until 1953.

The community of Rimini was added to the Superfund list in 1999. Contaminated soil in residents’ yards was replaced, and the EPA has provided bottled water for a decade. But polluted water still pours from the mines and into Upper Tenmile Creek.

“The fact that bottled water is provided is great,” said 30-year Rimini resident Catherine Maynard, a natural resources analyst for the U.S. Department of Agriculture. “Where it falls short is it’s not piped into our home. Water that’s piped into our home is still contaminated water. Washing dishes and bathing — that metal-laden water is still running through our pipes.”

Estimates of the number of such abandoned mine sites range from 161,000 in 12 western states to as many as 500,000 nationwide. At least 33,000 have degraded the environment, according to the Government Accountability Office, and thousands more are discovered every year.

Officials have yet to complete work including basic risk analyses on about 80 percent of abandoned mining sites on federal lands. Most are controlled by the Bureau of Land Management, which under Trump is seeking to consolidate mine cleanups with another program and cut their combined 2019 spending from $35 million to $13 million.

An abandoned mining site in Clear Creek County. (Jesse Paul, The Colorado Sun)

Perpetual pollution

Problems at some sites are intractable. Among them:

  • In eastern Oklahoma’s Tar Creek mining district, waterways are devoid of life and elevated lead levels persist in the blood of children despite a two-decade effort to clean up lead and zinc mines. More than $300 million has been committed since 1983, but only a small fraction of the impacted land has been reclaimed and contaminated water continues to flow.
  • At northern California’s Iron Mountain Mine, cleanup teams battle to contain highly acidic water that percolates through a former copper and zinc mine and drains into a Sacramento River tributary. The mine discharged six tons of toxic sludge daily before an EPA cleanup. Authorities now spend $5 million a year to remove poisonous sludge that had caused massive fish kills, and they expect to keep at it forever.
  • In Colorado’s San Juan Mountains, site of the Gold King blowout, some 400 abandoned or inactive mine sites contribute an estimated 15 million gallons (57 million liters) of acid mine drainage per day.

AP also found mining sites where untreated water harms the environment or threatens drinking water supplies in North and South Carolina, Vermont, Missouri and Oregon.

This landscape of polluted sites occurred under mining industry rules largely unchanged since the 1872 Mining Act.

State and federal laws in recent decades have held companies more accountable than in the past, but critics say huge loopholes all but ensure that some of today’s mines will foul waterways or require perpetual cleanups.

To avoid a catastrophe like Gold King, EPA officials now require advance approval for work on many mining sites. But they acknowledge they’re only dealing with a small portion of the problem.

“We have been trying to play a very careful game of prioritization,” said Dana Stalcup, deputy director of the Superfund program. “We know the Superfund program is not the answer to the hundreds of thousands of mines out there, but the mines we are working on we want to do them the best we can.”

The 43 sites examined by AP are mining locations for which officials and researchers have reliable estimates of polluted water releases. Officials said flow rates at the sites vary.

Average flows were unavailable for nine sites that only had high and low estimates of how much polluted water flowed out. For those sites, the AP used the lower estimates for its analysis.

Questions over who should pay

To date, the EPA has spent an estimated $4 billion on mining cleanups. Under Trump, the agency has identified a small number of Superfund sites for heightened attention after cleanup efforts stalled or dragged on for years. They include five mining sites examined by AP.

Former EPA assistant administrator Mathy Stanislaus said more money is needed to address mining pollution on a systematic basis, rather than jumping from one emergency response to another.

“The piecemeal approach is just not working,” said Stanislaus, who oversaw the Superfund program for almost eight years ending in 2017.

Democrats have sought unsuccessfully to create a special cleanup fund for old hardrock mine sites, with fees paid by the mining industry. Such a fund has been in place for coal mines since 1977, with more than $11 billion in fees collected and hundreds of sites reclaimed.

The mining industry has resisted doing the same for hardrock mines, and Republicans in Congress have blocked the Democratic proposals.

Montana Mining Association director Tammy Johnson acknowledged abandoned mines have left a legacy of pollution, but added that companies still in operation should not be forced to pay for those problems.

“Back in the day there really wasn’t a lot known about acid mine drainage,” she said. “I just don’t think that today’s companies bear the responsibility.”

In 2017, the EPA proposed requiring companies still operating mines to post cleanup bonds or offer other financial assurances so taxpayers don’t end up footing cleanup bills. The Trump administration halted the rule , but environmental groups are scheduled to appear in federal court next month in a lawsuit that seeks to revive it.

“When something gets on a Superfund site, that doesn’t mean it instantly and magically gets cleaned up,” said Earthjustice attorney Amanda Goodin. “Having money immediately available from a responsible party would be a game changer.”

The Uses of 3D Modeling Technology in the Environmental Remediation Industry

By: Matt Lyter (Senior Staff Geologist at St-John-Mitterhauser & Associates, A Terracon Company) and Jim Depa (Senior Project Manager/3D Visualization Manager at St-John-Mitterhauser & Associates, A Terracon Company)

Three-dimensional (3D) modeling technology is used by geologists and engineers in the economic and infrastructure industries to help organize and visualize large amounts of data collected from fieldwork investigations.  In the oil and gas industry, petroleum geologists use 3D models to visualize complex geologic features in the subsurface in order to find structural traps for oil and natural gas reserves.  In the construction industry, engineers use 3D maps and models to help predict the mechanics of the soil and the strength of bedrock for construction projects.  In the mining industry, economic geologists use high resolution 3D models to estimate the value of naturally occurring ore deposits, like gold, copper, and platinum, in a practice known as resource modeling.

All of the models are built in almost the same exact way: 1) By collecting and analyzing soil samples and/or rock cores; 2) Using a computer program to statistically analyze the resulting data to create hundreds or even thousands of new (or inferred) data points; and 3) Visualizing the actual and inferred data to create a detailed picture of the ground or subsurface in three dimensions.  These models can be used in the economic and infrastructure industries to help predict the best locations to install an oil or gas well, predict the size of an oil or natural gas reserve, assist in the design of a road, tunnel, or landfill, calculate the amount of overburden material needing to be excavated, or help to predict the economic viability of a subsurface exploration project.

However, because of the significant amount of computing power needed to create the models, usage of the technology by regulatory driven industries has been limited.  But continuing technological advancements have recently made 3D modeling technology more accessible and affordable for these regulatory driven industries, including the environmental investigation and remediation industry.  Complex 3D models that previously may have taken several days to create using expensive high-end computers, can now be made in several hours (or even minutes) using the technology present in most commercially available desktops.  Because of these advancements, subsurface contamination caused by chemical spills can be visualized and modeled in 3D by environmental geologists at a reasonable price and even in near real-time.

3D Models of Soil Contamination

Some of the applications of 3D modeling technology in the environmental investigation and remediation industry are only just beginning to be utilized, but they have already helped to: 1) Identify data gaps from subsurface investigations, 2) Describe and depict the relationship between the geologic setting of a site and underground migration of a contaminant, and 3) Provide a more accurate estimate of the amount of contamination in the subsurface.  The models have also helped contractors design more efficient remediation systems, assisted governmental regulators in decision making, and aided the legal industry by explaining complex geologic concepts to the non-scientific community.  This is especially true when short animations are created using the models, which can show the data at multiple angles and perspectives – revealing complexities in the subsurface that static two-dimensional images never could.

The consultants at St. John-Mittelhauser and Associates, a Terracon Company (SMA), have used 3D modeling technology on dozens of sites across the United States, most recently, at a large-scale environmental remediation project in the Midwestern United States.  Contamination from spills of trichloroethylene (TCE), a once widely used metal degreaser, were identified at a former auto parts manufacturer during a routine Phase 2 investigation.  Dozens of soil samples were collected and analyzed in order to define the extent of contamination, and once completed, traditional 2D maps and a series of cross-sections were created.  One of the cross sections is shown in the image below:

Cross-section of soil contamination

Traditional Cross-section Showing Geologic Units and Soil Sample Results

The maps and cross sections were presented to remediation contractors with the purpose of designing a remediation system precisely based on treating only the extent of the contaminated soil.  The lowest bid received was for $4.2 million dollars (USD), however, it was evident to SMA that all of the proposed designs failed to take into account the complexity of the subsurface contamination.  Specifically, large portions of the Site, which were not contaminated, were being proposed to be treated.  Therefore, using a 3D dimensional modeling program, SMA visualized the soil sample locations, modeled the extent of the contaminated soil in 3D, and created an animation showing the model at multiple perspectives and angles, at a cost of $12,000 (USD).  A screenshot of the model is provided below:

3D dimensional modeling program results

3D Side View of TCE Contamination in Soil (15 PPM in Green, 250 PPM in Orange)

The project was resubmitted to the remediation contractors with the 3D models and animation included, resulting in a guaranteed fixed-price bid of $3.1 million dollars – a cost savings of over $1.1 million dollars for the client. Additionally, an animation showing both the remedial design plan and confirmatory sampling plan was created and presented to the United States Environmental Protection Agency (the regulatory agency reviewing the project) and was approved without any modifications.  To date, the remediation system has removed over 4,200 pounds of TCE from the subsurface and completion of the project is expected in 2019.  A short animation of the 3D model can be viewed on YouTube.


3D Models Showing PCE Contamination in Soil

The 3D modeling software has also been used to help determine the most cost-effective solution for other remediation projects, and has been able to identify (and clearly present) the sources of chemical spills.  The following link is an animation showing three case studies involving spills of perchloroethene (a common industrial solvent) at a chemical storage facility, ink manufacturer, and former dry cleaner: https://www.youtube.com/watch?v=0IlN_TIXkGk

The most cost-effective remediation option was different for each site and was based on the magnitude of the contamination, maximum depth of contaminated soil, geologic setting, and the 3D modeled extent of contamination.  Specifically, the contamination at the chemical storage facility was treated using electrical resistance heating technology, chemical oxidants were used to treat the soils at the ink manufacturer, and soil vapor extraction technology was used at the dry cleaner.

However, several barriers remain which prevent the wide-spread use of 3D modeling technology.  The various modeling programs can cost upwards of $20,000, as well as yearly fees for software maintenance.  There are also costs to organize large datasets, build the necessary files, and create the models and animations.  It also must be noted that the 3D models are only statistical predictions of site conditions based on the available data, and the accuracy of the models is wholly dependent on the quantity, and more importantly, the quality of the data.  Even so, 3D modeling technology has proven to play an important role in the environmental remediation industry by helping project managers to understand their sites more thoroughly.  It has also provided a way to disseminate large amounts information to contractors, regulators, and the general public. But, perhaps, most-importantly, it has saved money for clients.


About the Authors

Matt Lyter (Senior Staff Geologist at St-John-Mitterhauser & Associate, A Terracon Company) provides clients with a wide range of environmental consulting services (Environmental litigation support; acquisition and transaction support; site specific risk assessment, etc.), conventional and state-of-the-art environmental Investigation services, and traditional to advanced environmental remediation services.

Jim Depa (Senior Project Manager/3D Visualization Manager at St-John-Mitterhauser & Associate, A Terracon Company) has over 12 years of experience as a field geologist, project manager, and 3D modeler.  He is well-versed with a variety of computer programs including: C-Tech’s Earth Volumetric Studio (EVS), Esri’s ArcGIS, AQTESOLV, MAROS, Power Director 16, and Earthsoft’s EQuIS

U.S.: New Hazardous Waste Pharmaceuticals Rule: Significant Changes Coming for Health Care Facilities, Particularly Long-Term Care Facilities

by Brooke F. Dickerson and Jennifer L. Hilliard,
Arnall Golden Gregory (AGG)

Health care facilities that provide a host of health care-related services or distribute, sell, or dispense pharmaceuticals will need to learn a whole new set of regulations thanks to a finalized new rule promulgated by the United States Environmental Protection Agency (EPA). The new rule revises management standards for hazardous waste pharmaceuticals (HWPs) such as urine drug tests for health care facilities, including nursing, skilled nursing, and inpatient hospice facilities, more than three years following the close of comments for the EPA’s initial proposed rule. The revised regulations will take effect six months following publication in the Federal Register.

The Resource Conservation Recovery Act (RCRA) governs the generation, management, storage, treatment, and disposal of hazardous wastes. Before the new rule was promulgated, certain health care facilities, such as hospitals and reverse distributors were subject to the same hazardous waste requirements under the RCRA as most industries. The management of HWPs at long-term care facilities, however, was excluded from the RCRA and treated the same as HWPs at residential households. EPA makes clear in this new rule that because nursing, skilled nursing, and inpatient hospice facilities are more akin to hospitals, their management of any hazardous waste, including HWPs, will also be subject to RCRA requirements.

The final rule revises some of the regulations and management standards for HWPs under the RCRA and sets them apart in a separate section of the RCRA regulations, to be codified at 40 C.F.R. Part 266, Subpart P (“Subpart P”), that are applicable specifically to health care facilities and reverse distributors. According to the EPA, this is necessary because hazardous waste generation and management practices at health care facilities differ significantly from those encountered in industry generally. As a result, regulating HWPs under the standard provisions of RCRA Subtitle C has been unnecessarily difficult. The EPA maintains that the new management standards are more streamlined and tailored specifically for healthcare HWPs and thus will promote proper management of HWPs by healthcare workers and pharmacy employees.

The final rule does not increase the universe of pharmaceuticals that are considered hazardous waste. However, it does accomplish four significant and practical changes in the management of pharmaceuticals: (1) HWPs that are to be sent off-site for reverse distribution will be regulated as hazardous wastes under the RCRA while still at the health care facility, (2) HWPs are banned from being disposed of down a drain or in a toilet, thereby reducing the amount of pharmaceutical ingredients that contaminate drinking water and endanger the environment, (3) it is easier to make a HWP container legally “empty,” and (4) nicotine replacement therapies are no longer considered potential hazardous wastes. Some of the components of the final rule will relieve the existing burdens on generators of HWPs, while other components may make the management of HWPs more onerous, at least initially.

Applicability to Long-Term Care Facilities

As noted above, the final rule applies to health care facilities. The definition of “health care facility” specifically includes long-term care facilities. A “long-term care facility,” in turn, is defined as:

[A] licensed entity that provides assistance with activities of daily living, including managing and administering pharmaceuticals to one or more individuals at the facility. This definition includes, but is not limited to, hospice facilities, nursing facilities, skilled nursing facilities, and the nursing and skilled nursing care portions of continuing care retirement communities. Not included within the scope of this definition are group homes, independent living communities, assisted living facilities and the independent and assisted living portions of continuing care retirement communities. (emphasis added).

The exclusion of assisted living from the definition of long-term care facility in the rule avoids many of the practical issues with control over medications taken directly by patients and use of multiple pharmacies that flow from the functional differences between nursing homes and assisted living facilities. The distinction constitutes a welcome change from the 2015 proposed rule, which sought to include such facilities in the definition of long-term care facility. The EPA stated unequivocally that HWPs that are in (a) the custody of the long-term care facility on behalf of the resident, or (b) an in-house pharmacy maintained by such facility (if any), must be managed under Subpart P. 

Definitions and Analysis

The analysis necessary to determine whether a given substance is considered a HWP involves three questions: 

Question 1 – Is it a Pharmaceutical? Under the final rule, a pharmaceutical includes, but is not limited to, the following:

  • Dietary supplements, as defined by the Federal Food, Drug and Cosmetic Act;
  • Prescription drug, as defined by 21 C.F.R. § 203.3(y);
  • Over-the-counter drugs;
  • Homeopathic drugs;
  • Compounded drugs;
  • Investigational new drugs;
  • Pharmaceuticals remaining in non-empty containers;
  • Personal protective equipment contaminated with pharmaceuticals; and
  • Clean-up material from spills of pharmaceuticals.

The definition also includes any electronic nicotine delivery system and liquid nicotine packaged for retail sale. Excluded from the definition are sharps and dental amalgam.

Question 2 – Is it a Solid Waste? A solid waste is any discarded material that is not otherwise excluded under the regulations that implement RCRA. What constitutes a RCRA solid waste, however, is not limited to wastes that are physically solid. Many solid wastes are liquid, semi-solid, or gaseous material. A material is considered “discarded” once the facility has decided to discard it, and must be managed appropriately at that point in time. A material that is legitimately going to be used, reused or reclaimed is not discarded and is not a solid waste. Note, however, that under the final rule, EPA has pre-determined that a health care facility’s decision to reverse distribute a pharmaceutical constitutes a decision to discard the pharmaceutical.

Question 3 – Is it a HWP? Solid wastes that are pharmaceuticals are only considered hazardous waste under RCRA if they are either listed as hazardous wastes or exhibit one of the characteristics of hazardous waste. There are four lists–F , K , P and U –based on either manufacturing and industrial processes, or chemical designations. The F and K lists are based on manufacturing and industrial processes, none of which apply to pharmaceuticals for humans. The P and U lists are based on chemical products. The EPA notes that there are approximately 30 “Commercial Chemical Products” on the P and U lists that have uses in multiple pharmaceuticals. A Commercial Chemical Product is only a waste if (i) it has not been used or used as intended, and (ii) consists of the commercially pure grade of the chemical, any technical grades of the chemical that are produced or marketed or the chemical is the sole active ingredient in the formulation. If these criteria are not met, then the pharmaceutical is not a HWP, even if included in the P or U list.

As noted above, even if a pharmaceutical waste is not listed on any of the lists, it may also qualify as a hazardous waste if it exhibits one of the four characteristics of hazardous waste:

  • Ignitability (something flammable) – for example, solutions containing more than 24% alcohol,
  • Corrosivity (something that can rust or decompose) – for example, certain compounding chemicals,
  • Reactivity (something explosive), and
  • Toxicity (something poisonous).

The answer to all three of the foregoing questions must be yes for the material to qualify as a HWP, though the final rule does contain certain exceptions that may apply to exclude a pharmaceutical from being considered a HWP for purposes of RCRA Subpart P. A long-term care facility that determines that it does generate HWPs must then conduct further analysis to determine the nature of its obligations under Subpart P. 

Scope of Obligations under Subpart P – Amount of Waste Generated

Once the determinations have been made that a long-term care facility is covered by the final rule and has HWPs, the analysis shifts from the type of facility and nature of the waste to the amount of the waste, to determine the scope of the facility’s obligations under Subpart P. Specifically, the next inquiry is the amount of HWPs that the facility generates. Under RCRA, a “Generator” is a person whose act or process produces hazardous waste or whose act first causes a hazardous waste to become subject to regulation. Therefore, a facility that makes the determination to “discard” a pharmaceutical becomes a Generator. A facility that generates less than or equal to any of the following per calendar month qualifies as a Very Small Quantity Generator (VSQG) :

  • 100 kg (220 pounds) of hazardous waste; or 
  • 1 kg (2.2 pounds) of acute hazardous waste.

Under the final rule, long-term care facilities with 20 or fewer beds are presumed to be VSQGs, thereby shifting the burden of proof to the EPA Administrator to establish that a facility is not a VSQG. Facilities with more than 20 beds, however, bear the responsibility of demonstrating that they qualify as a VSQG.

If a facility generates total hazardous waste in amounts exceeding the VSQG thresholds, it must treat its HWPs in accordance with the management standards of Subpart P. While VSQGs may opt to handle their HWPs in accordance with the management standards of Subpart P, they are not required to do so except for the sewering ban and empty container provisions of Subpart P. If a VSQG does not opt to comply with the management standards of Subpart P, its HWPs are subject to the general hazardous waste provisions of 40 C.F.R. § 262.14, which may be less than the requirements of Subpart P. Further, a long-term care facility that is a VSQG may dispose of its HWPs (other than contaminated personal protective equipment or clean-up materials) in an on-site collection receptacle of an authorized collector that is registered with the Drug Enforcement Administration (DEA), provided the contents are collected, stored, transported, destroyed and disposed of in compliance with all applicable regulations for controlled substances.

Whether a long-term care facility that qualifies as a VSQG opts to treat its HWPs in accordance with the management standards of Subpart P likely will depend on (1) the willingness of the facility to undertake the monthly calculations, monitoring and recordkeeping required to demonstrate that their hazardous waste is within the limits established for VSQGs, or (2) whether the decision not to comply with Subpart P would render the facility subject to more onerous requirements on other hazardous waste that it generates. If a facility also generates non-pharmaceutical RCRA hazardous waste, such as lab wastes for example, those wastes are not regulated under Subpart P but under the existing RCRA regulations. The standard regulations become more stringent as the amount of applicable waste increases. Facilities could decrease the overall amount of waste and thus lessen the impact of the standard regulations by not including the HWPs that are managed instead under Subpart P. 

Scope of Obligations under Subpart P – Prescription HWPs versus Non-Prescription HWPs and Non-Creditable Prescription HWPs versus Potentially Creditable Prescription HWPs

Once the determination has been made that a long-term care facility is subject to the management standards of Subpart P, the requirements vary based on whether or not the pharmaceutical required a prescription. For prescription drugs, a facility must determine if it is managing a potentially creditable HWP or a non-creditable HWP. A “potentially creditable hazardous waste pharmaceutical” is a prescription HWP that has a “reasonable expectation to receive manufacturer credit through reverse distribution and is (1) in original manufacturer packaging (except pharmaceuticals that were subject to a recall) even if opened; (2) undispensed; and (3) unexpired or less than one year past expiration date.”

A non-creditable HWP is a prescription pharmaceutical that does not meet the above three criteria and therefore is not likely to receive credit back through reverse distribution. Non-prescription HWPs that do not have a reasonable expectation to be legitimately used, reused or reclaimed are also considered non-creditable HWPs. On the other hand, non-prescription over the counter pharmaceuticals that go through reverse logistics because they have a reasonable expectation of being recycled are not “Solid Waste” under RCRA at all, and therefore are not subject to Subpart P either. The management standards for potentially creditable HWPs are not as stringent as those for non-creditable HWPs.

Because of the requirement that the pharmaceutical be undispensed, it is likely that only long-term care facilities that have an in-house long-term care pharmacy will be managing potentially creditable HWPs. Those long-term care facilities that contract for their pharmacy services with a long-term care pharmacy will be managing non-creditable HWPs because pharmaceuticals are considered to be dispensed when the order is filled by the external pharmacy.

Unlike the existing general RCRA standards for the management of hazardous wastes, standards for HWPs under the new Subpart P are the same regardless of the amounts generated or the places where they are accumulated. 

Management Standards for Non-Creditable HWPs

Notification – A long-term care facility that is subject to the requirements of Subpart P must notify the EPA Regional Administrator within 60 days of the effective date of Subpart P (or within 60 days of becoming subject to Subpart P) that it is a healthcare facility operating under Subpart P, even if the facility already has an EPA Identification Number. Notification may be filed electronically. The facility must keep a copy of the notification on file for as long as the facility is subject to Subpart P. If the facility subsequently qualifies as a VSQG and elects to withdraw from Subpart P, it must so notify the EPA Regional Administrator and may not begin operating under the conditional exemption applicable to VSQGs generally under RCRA until notification has been made. Withdrawal notifications must be kept on file for a period of three (3) years.

Training – All facility personnel that manage HWPs must be trained and be “thoroughly familiar” with proper waste handling and emergency procedures relative to their responsibilities. EPA has not stated whether the agency will offer compliance assistance or training materials to facilities. As a result, because the final rule will become effective six months following publication in the Federal Register, facilities should begin exploring their options for training as early as possible.

Hazardous Waste Determination – The facility must determine whether a non-creditable pharmaceutical is a HWP. In lieu of making such a determination, the facility may choose to manage all waste pharmaceuticals as HWPs under Subpart P.

Containers – Because a facility will likely accumulate HWPs for some period of time before shipping them off-site, the final rule prescribes standards for containers that will be used to store HWPs. Generally, any container used to accumulate HWPs must be structurally sound, compatible with its contents, and lack evidence of leakage, spillage, or damage that could cause leakage under reasonably foreseeable conditions. Such container must be kept closed and secured so as to prevent unauthorized access to its contents.

Labeling Containers – All containers used to accumulate HWP must be labeled or clearly marked with the phrase “Hazardous Waste Pharmaceuticals.”

Maximum Accumulation Time – A facility may accumulate non-creditable HWPs on-site for a period not to exceed one year without a permit. The period begins on the date the pharmaceutical first becomes a waste, and the facility is responsible for demonstrating how long HWPs have been accumulating. The final rule allows the facility to make this demonstration by marking/labeling the container, maintaining an inventory system or by placing the HWPs in a specific area and identifying the earliest date that any of the HWPs in that area became a waste. To the extent that any HWPs are able to be commingled safely in a container, the date on which the very first HWP was deposited in the container would start the one year clock running.

Land Disposal Restrictions – A facility must comply with extensive requirements pertaining to land disposal restrictions at 40 C.F.R. Section 268.7(a), but these have been relaxed to the extent that the individual waste codes no longer need to be identified on the land disposal restriction notification.

Shipping – As noted above, a long-term care facility may accumulate non-creditable HWPs on-site only for a limited time before it must ship them off-site to a pre-designated authorized facility for treatment, storage or disposal. The final rule includes specific requirements for such shipments.

  • Pre-Transport
    • Packaging, Labeling and Marking – Generally, all waste must be packaged, labeled and marked in accordance with applicable Department of Transportation (DOT) regulations.
      • Containers of 119 gallons or less must be marked with specific words and information, including “HAZARDOUS WASTE.”
      • With limited exceptions specified in the final rule, lab packs that will be incinerated are not required to be marked with EPA Hazardous Waste Numbers.
    • Placarding – A long-term care facility must placard or offer the initial transporter the appropriate placards as specified under DOT regulations.
  • Manifests – A facility must use a uniform manifest and comply with applicable manifest requirements except that instead of listing the individual waste codes, the facility should write “PHARMS” on the form.
  • Facilities may ship HWPs across state lines, but will only be able to use the provisions in Subpart P if both states have adopted the same regulations (see below).

Managing Rejected Shipments – A long-term care facility will need to ship any rejected shipments of non-creditable HWPs to a new designated and authorized facility within 90 days of their return.

Reporting – There is no requirement to report the amounts of HWPs generated at a facility unless specifically requested by the EPA. Other than the initial notification, the only report required under the new rule is when the facility does not receive back a copy of a fully received manifest from the receiving facility in connection with a shipment.

Record keeping – A health care facility must keep a copy of each manifest, exception report, and hazardous waste determination test result and analysis for three years. All records must be readily available during an inspection.

Response to Spills – Spills of HWPs must be immediately contained and the cleanup materials managed themselves as HWPs.

Accepting Non-Creditable HWPs from an Off-Site Facility that is a VSQG – A facility may accept non-creditable HWPs from a VSQG, such as when a health care facility returns drugs back to a pharmacy, even though the receiving facility does not have a RCRA permit, if the receiving facility (i) is under the same control as the transferring facility or has a business relationship, (ii) is operating under Subpart P, (iii) manages the new wastes under Subpart P, and (iv) keeps records of the shipment for three years.

Management Standards for Potentially Creditable HWPs

As noted above, because the definition of a potentially creditable HWP requires that a pharmaceutical be undispensed, and the use of a third party long-term care pharmacy results in medication being dispensed to a resident by the pharmacy rather than the facility, most long-term care facilities will not be managing potentially creditable HWPs. However, for those facilities that maintain their own in-house long-term care pharmacy, the requirements of the final rule with respect to potentially creditable HWPs are relevant as the facility is likely to have undispensed prescription medications on hand that can qualify as potentially creditable HWPs that can be sent to a reverse distributor.

  • Accepting Potentially Creditable HWPs from an Off-Site Facility that is a VSQG – A facility may accept potentially creditable HWPs from a VSQG, such as when a care facility returns drugs back to a pharmacy, even though the receiving facility does not have a RCRA permit, if the receiving facility (i) is under the same control as the transferring facility or has a business relationship, (ii) is operating under Subpart P, (iii) manages the new wastes under Subpart P, and (iv) keeps records of the shipment for three years.
  • Only Potentially Creditable HWPs – A facility is prohibited from sending hazardous wastes other than potentially creditable HWPs to a reverse distributor.
  • Reporting – There is no requirement to report the amounts of HWPs generated at a facility unless specifically requested by EPA.
  • Recordkeeping – A facility that initiates a shipment of potentially creditable HWPs to a reverse distributor must retain for a period of three years paper or electronic records of (i) the confirmation of delivery, and (ii) shipping papers prepared in accordance with DOT regulations. All records must be readily available during an inspection.
  • Response to Spills – Spills of potentially creditable HWPs must be immediately contained and the cleanup materials managed as non-creditable HWPs.
  • Shipping – Unlike with respect to a non-creditable HWP, a manifest is not required for shipping potentially creditable HWPs to a reverse distributor. Nevertheless, the facility must comply with all applicable DOT regulations in 49 C.F.R. Parts 171 through 180 for any HWP that meets the definition of “hazardous material” in 49 C.F.R. Section 171.8. Also, the receiving reverse distributor must provide confirmation to the facility that it has received the shipment. If the facility has not received such confirmation within 35 calendar days from the date the potentially creditable HWPs were sent, the facility must contact the carrier and the reverse distributor promptly to report that the confirmation was not received and to determine the status of the potentially creditable HWPs.

Conditional Exemption for HWPs that are Controlled Substances:

The final rule includes a conditional exemption from RCRA requirements for HWPs that are listed on a schedule of controlled substances by the DEA. The conditional exemption will apply if the HWPs are collected, stored, transported, and disposed of in compliance with all applicable DEA regulations for controlled substances, and will be destroyed by a method that DEA has publicly deemed in writing to meet their non-retrievable standard of destruction or combusted at one of five types of combustion facilities. 

Generally Applicable Provisions of Subpart P to all HWPs:

The following provisions apply to all health care facilities, regardless of whether the facilities are managing creditable or non-creditable HWPs or are required to comply with the other provisions of Subpart P.

  • Sewering Ban – All health care facilities covered by the rule are prohibited from discharging HWPs to a sewer system that passes through to a publicly-owned treatment works.
  • Empty Containers – Under the new regulations, certain stock, dispensing and unit-dose containers are considered “empty” and therefore not regulated as hazardous waste under RCRA, even if minor pharmaceutical residue remains, if they have been emptied using the practices commonly employed to remove materials from that type of container. This also applies to syringes provided that the contents have been removed by fully depressing the plunger into the patient, another delivery device such as an intravenous bag, or a hazardous waste collection container. Intravenous bags avoid RCRA regulation provided the pharmaceuticals inside have been fully administered to a patient. All other types of containers—whether partially or completely empty—are to be managed as non-creditable HWPs unless they meet the general RCRA empty test for non-acute hazardous wastes.

Over the Counter Nicotine Replacement Therapies:

Nicotine and salts are currently included in the hazardous waste listed code P075 . The new rule exempts FDA approved over the counter nicotine replacement therapies, specifically patches, gums, and lozenges, from waste code P075. The rule does not exempt e-cigarettes, nicotine-containing e-liquids or prescription nicotine replacement therapies because they are not regulated in the same way as the exempted methods. Nevertheless, any nicotine replacement therapy that has been used in the manner initially intended is not a “solid waste” under RCRA and therefore is not a “hazardous waste” either.

Effective Date; Authorized State RCRA Programs:

The final rule will become effective six months following publication in the Federal Register; however, many states operate their own hazardous waste program. Once authorized by EPA, state hazardous waste programs operate in lieu of the RCRA regulations, though authorized states are required to adopt new regulations that are more stringent than existing rules. Most provisions of the pharmaceutical waste final rule are more stringent than the current RCRA generator regulations. Accordingly, authorized state programs will be required to adopt those provisions such that the new rule will not take effect in any of those states until it has been adopted and the state regulations updated. In contrast, the ban against HWP disposal in a drain or a toilet will be effective in every state as soon as it is effective under Federal law because the sewering prohibition component of the new rule, also more stringent than existing requirements, was adopted under separate legal authority. States are not required to adopt the part of the rule exempting over-the-counter nicotine replacement therapies from the hazardous waste requirements because it is less stringent. Also, facilities should be aware that states may include more stringent requirements than those included in the final rule. As a result, facilities will need to monitor adoption and implementation efforts in those states very closely. 

Conclusion:

There can be no doubt that EPA’s final rule will require health care facilities, particularly long-term care facilities other than assisted living facilities, to navigate the new regulatory framework provided in Subpart P, while still potentially being subject to many other RCRA-related provisions and to regulations from other Federal agencies including the DOT. Additionally, facilities in states that have their own authorized hazardous waste program will need to monitor their state agency to determine exactly which rules apply and when. With an effective date only six months following publication of the final rule in the Federal Register, no guarantees of education or compliance assistance from EPA other than three webinars scheduled for February and March, 2019, and steep fines for violations, facilities will be hard-pressed to come up to speed in time. Health care facilities are well advised to begin their efforts now to understand the requirements, draft and implement effective policies and procedures, develop a staff training program, and enter into such contractual relationships as may be necessary to ensure compliance.

This article has been republished with the permission of the authors. It was first published on the AGG website. A pdf version, with footnotes can be found at AGG Legal Insight.


About the Authors

Brooke F. Dickerson focuses her practice on transaction, regulatory, compliance and permitting matters. With regards to environmental work, she has significant experience with Superfund (CERCLA), hazardous waste (RCRA and HWMA), the Georgia Hazardous Site Response Act (HSRA), solid waste, Brownfields, wetlands, and site evaluation, assessment and remediation issues. She also advises clients on stormwater compliance, green leasing issues and green/sustainable building practices. With regards to construction work, Ms. Dickerson advises owners and developers on the drafting and negotiation of architect, construction and construction management agreements. She has represented clients in connection with the construction of office, multi-family, mixed use and tenant improvement projects. She also advises clients on OSHA matters and has represented several companies in obtaining reduced or dismissed penalties in settlement negotiations.

Jennifer Hilliard is Of Counsel in the Healthcare Practice. Ms. Hilliard focuses her practice on long-term care and aging services issues generally. She has extensive experience with nursing home regulatory matters, compliance and operations. Additionally, she has significant experience with Federal public policy and government affairs in such related areas as Medicare and Medicaid regulation, home health and hospice regulation, DEA controlled substances regulation, OSHA and other labor and employment issues affecting aging services providers, and federal non-profit tax issues. Prior to joining AGG, Ms. Hilliard served for over 18 years in a variety of legal and advocacy-related capacities at LeadingAge, a Washington, DC based trade association for non-profit long-term care and aging services providers.

Using Biosolids to Revegetate Inactive Mine Tailings

Vale Canada (a global mining company with an integrated mine, mill, smelter, and refinery complex in operations Sudbury, Ontario) has been working with Terrapure Environmental (an industrial waste management company) to utilize biosolids on its main tailings area.

For over 100 years, tailings from the milling operation have been deposited in the Copper Cliff Central Tailings impoundment. The facility is still active, but approximately 1,300 hectares are inactive and need reclamation work.


The Big Nickel in Sudbury (Photo Credit: pizzodisevo)

Over the decades, Vale has had some success in revegetation of its tailings area, but there are still large areas of bare or sparsely vegetated tailings, which have led to wind-erosion-management challenges. To control dust, Vale uses agricultural equipment to cover the tailings with straw or hay, as well as a chemical dust suppressant. These practices are costly, and they have to be done continuously to maintain an appropriate cover at all times. In 2012, Vale decided its tailings needed a permanent vegetative cover—not just to suppress dust and reduce erosion, but to improve overall biodiversity. They entered into discussions with Terrapure Organics Solutions (formerly Terratec Environmental) to collaborate on a trial project to apply biosolids on the mine tailings.

In 2012, Vale decided its tailings needed a permanent vegetative cover—not just to suppress dust and reduce erosion, but to improve overall biodiversity. They entered into discussions with Terrapure Organics Solutions (formerly Terratec Environmental) to collaborate on a trial project to apply biosolids on the mine tailings.

The Challenge

The biggest challenge was forging a new path for this type of work. Applying biosolids to mine tailings had never been done before in Ontario. Just to get the right permits and approvals took about two years. Vale Canada and Terrapure worked closely with the Ontario Environment Ministry to ensure standards compliance. Some of this work included helping to determine what those standards should be. Terrapure was able to contribute to these discussions, leveraging decades of expertise in safe biosolids application to agricultural land. Once the Environmental Compliance Approval came in April 2014, the team had to figure out the best application method and proper amount to encourage vegetation, which meant a lot of testing and optimizing.

The Solution

At first, Terrapure mixed biosolids into the surface layer of the tailings. Over time, however, the team learned that applying biosolids to the surface, without mixing, allowed for greater rates of application and coverage at a lower cost.

Terrapure also had to experiment with the right tonnage per hectare. After seeding four trial plots with different amounts of biosolids coverage—20, 40, 60 and 80 dry tonnes/hectare—it was determined that 80 dry tonnes was best for seed germination. At the time, it was the maximum allowable application rate. By the end of 2014, approximately 25 hectares of tailings were amended. Where the biosolids were applied, there were impressive results. Wildlife that had not been seen feeding in the area in years started to return. In 2015, the Ontario Environment Ministry approved an increase in the biosolids application rate to a maximum of 150 dry tonnes/hectare, which was necessary for providing higher organic matter and nutrient levels, and for stabilizing the tailings’ pH levels. This approval also increased the cap on the amount of biosolids that could be delivered to the maximum application rate per hectare. To enhance the program even more, Terrapure and Vale partnered with the City of Greater Sudbury to blend leaf and yard waste with biosolids. By blending these materials, the mixture becomes virtually odourless, its nutrients are more balanced and it allows for a more diverse application.


Glen Watson, Vale’s superintendent of environment, decommissioning and reclamation, surrounded by lush vegetation covering part of the company’s Central Tailings Facility in Sudbury

The Results

As of 2018, Terrapure has successfully covered over 150 hectares of Vale’s tailings with municipal biosolids. Vegetative growth and wildlife are well established on all areas where the team applied organics. Just as importantly, this project has diverted more than 25,000 dry tonnes of valuable biosolids from becoming waste in the landfill. Following the success of the initial trial, the Environment Ministry widened the approval to include all areas of the inactive tailings and a portion of the active tailings. At the current application rate of 150 dry tonnes/hectare, Vale’s central tailings facility could potentially require another 195,000 dry tonnes of biosolids. That’s more than 30 years of biosolids utilization, at an annual rate of 6,000 dry tonnes of material. Needless to say, Vale is very pleased with the results, and the relationship is ongoing. In fact, the Vale team is evaluating other sites in the Sudbury area for this type of remediation, ensuring a long-term, environmentally sustainable rehabilitation program.

Provincial Environmental Obligations Prevail Over Federal Bankruptcy Laws – Supreme Court of Canada

by Paul Manning, Manning Environmental Law

Recently, the Supreme Court of Canada released its decision in the case of Orphan Well Association, et al. v. Grant Thornton Limited, et al.Orphan Well Association, et al. v. Grant Thornton Limited, et al. 

The decision writes another chapter in the long running saga of whether a company’s environmental regulatory obligations survive bankruptcy and, in particular, whether the company’s trustee in bankruptcy can disclaim an asset so as to avoid environmental liability. (See our blog post The Non-Polluter Pays: Creditor Roulette and Director Liability)

The Supreme Court has now decided in Orphan Well that, after going bankrupt, an oil and gas company must  fulfill provincial environmental obligations before paying its creditors.

Background

Redwater was an Alberta oil and gas company, which owned over a hundred wells, pipelines, and facilities when it went bankrupt in 2015.

Alberta has provincial laws requiring oil and gas companies to obtain a licence to operate. As part of the licence, companies have to “abandon” wells, pipelines, and facilities when they are done. This means permanently taking these structures down. They also have to “reclaim” the land by cleaning it up. Companies cannot transfer licences without permission from the Alberta Energy Regulator (AER), which they won’t receive if they haven’t met their responsibilities.

Most of Redwater’s wells were dry when it went bankrupt. Dismantling the sites and restoring the land would have cost millions of dollars more than they were worth. To avoid paying those costs, the the trustee in Orphan Well decided to disclaim (i.e. not to take responsibility for) the redundant wells and sites under the BIA. The trustee wanted to sell the productive sites to pay Redwater’s creditors.

The AER said that this wasn’t allowed under the BIA or provincial law and ordered the trustee to dismantle the disowned sites. The trustee argued that even if the AER was correct, the provincial abandonment orders were only provable claims under the BIA. In this case, this meant the money would first go to pay Redwater’s creditors.

The Supreme  Court’s Decision

There were two main legal issues before the Supreme Court. The first was whether the BIA allowed the trustee disclaim the sites it didn’t want take responsibility for. The second was whether the provincial orders to remove structures from the land were provable claims under the BIA. If they were, that would mean the payment order set up in the BIA applied. Only money left, if any, after those payments were made, could be used to pay for taking the sites down.

The trial judge had ruled that the trustee was allowed to disclaim the disowned sites and the abandonment costs were only provable claims in the bankruptcy. The majority of judges at the Alberta Court of Appeal hearing had agreed.

The majority of judges at the Supreme Court disagreed. It ruled that the trustee could not disclaim  the disowned sites. It said the BIA was meant to protect trustees from having to pay for a bankrupt estate’s environmental claims with their own money. It did not mean Redwater’s estate could avoid its environmental obligations.

The majority also said the abandonment costs were not “provable claims”. These costs weren’t debts requiring payments; they were duties to the public and nearby landowners. This put the abandonment costs outside the BIA’s payment order scheme and as such, the majority ruled, there was no conflict between the federal and provincial laws.

(The minority of judges at the Supreme Court disagreed, arguing that there was a genuine conflict between the federal and provincial laws and the BIA being the federal law should prevail over the provincial regulations. Where a valid provincial law conflicts with a valid federal law, the federal law will normally prevail under the constitutional law “doctrine of paramountcy.”)

As the trustee had already sold or given up all of Redwater’s assets, the money from the sales was held “in trust” by the court during the lawsuit. This money must now be used to abandon and reclaim the land before anything is paid to any of Redwater’s creditors.

Click here for the full decision of the Supreme Court of Canada in Orphan Well.

_________________________________________________________________

Manning Environmental Law is a Canadian law firm based in Toronto, Ontario. Our practice is focused on environmental law, energy law and aboriginal law. 

Paul Manning is a certified specialist in environmental law. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal. This article is only as a general guide and is not legal advice.

U.S. EPA fines for polluters at lowest level in two decades

As reported in Reuters, the U.S. Environmental Protection Agency issued $72 million in civil penalties to polluters last year, the lowest level in at least two decades when adjusted for inflation, according to an analysis of agency data.

A similar report by VOX in 2018, stated that a February 2018 report from the Environmental Integrity Project, a watchdog group that advocates for enforcement of environmental laws, the amount of fines collected in 2017 by the EPA plummeted compared to the agency under the past three presidents in their first year in office, as seen below. 

(Credit: Christina Animashaun)

Environmental advocates called the level of fines a symptom of the Trump administration’s pro-fossil-fuel agenda. The EPA rejected that assertion and said it was using “all the tools” at its disposal to deter pollution.

The analysis, conducted by President Barack Obama’s former EPA assistant administrator, Cynthia Giles, and first reported by the Washington Post, showed civil fines for polluters during 2018 at $72 million, the lowest level since at least 1994.

Over the previous 20 years, EPA had issued a wide range of fine totals, ranging from a low of $86 million in 2007 to over $6 billion during Obama’s final year in office – a massive outlier because of a settlement the EPA finalized with BP (BP.L) over its oil spill in the Gulf of Mexico.

The median level of the EPA’s annual fines during that period was about $155 million, according to the data, which Giles shared with Reuters.

The EPA said it was not giving polluters any breaks, and cited a recent $305 million settlement with Fiat Chrysler (FCAU.N) over emissions violations.

“Let there be no mistake — EPA enforcement will continue to correct non-compliance using all the tools at its disposal, including imposing civil penalties to maintain a level playing field and deter future misconduct,” said Susan Bodine, assistant administrator for EPA’s Office of Enforcement and Compliance Assurance.

Observations from a CBRNe training consolidation exercise

by Steven Pike , Argon Electronics

While accidental or deliberate chemical, biological, radiological, nuclear, and explosives (CBRNe) incidents are still widely considered to be fairly low probability events, their impact on citizens, society and infrastructure can be immense.

If and when they do occur, the speed of response has been shown to be absolutely critical when it comes to taking charge of the scene, avoiding further contamination and saving lives.

Research published by the ORCHIDS (Optimisation Through Research of Chemical Incident Contamination Systems) project provides quantitative evidence of the recommended techniques for handling potential contaminants or scenarios that will require emergency mass casualty decontamination.

Amongst its findings are:

  • The importance of swift evacuation, disrobing and decontamination – ideally within 15 minutes
  • Ensuring the safety of first responders by the carrying out of ongoing hazard assessments throughout the incident
  • The importance of clear communication to casualties or bystanders throughout the response in order to foster trust and confidence in the activities
  • Effective situation reporting from the scene to enable all agencies to retain shared situational awareness

The knowledge, skills and experience of those charged with CBRNe instruction is paramount in ensuring that the best possible training is provided to those emergency response personnel tasked with responding to hazardous incidents.

But finding innovative ways to create realistic CBRNe training – in a manner that accurately depicts the reality of modern threats, and that replicates the array of sophisticated detector equipment available – can present a very real challenge for instructors.

One of the biggest obstacles is undoubtedly time. Training exercises, by necessity, often need to take place within tight timeframes. While an actual search and survey mission may take many hours to complete, an exercise may need to be truncated to a matter of minutes. 

Having had the opportunity to observe a wide variety of CBRNe scenarios and consolidation exercises over the years, a few key factors have become especially apparent when it comes to the efficacy both of the training and the training environment.

The value of hands-on experience

Classroom learning undoubtedly has its place, but providing trainees with the opportunity to handle actual detector equipment, or replica simulator detectors, in life-like scenarios is key to their understanding.

And, as we have discussed in previous blog posts on the subject, the more realistic the scenario the better the outcomes both for the trainee and the instructor.

Having confidence in your equipment

In the early stages of an incident it may sometimes be difficult for a first responder to establish that a CBRNe incident has even occurred.

In some cases there may be visual indicators, odd smells or tastes, or obvious physical symptoms which provide a clue to the presence of a threat.

But while hazardous chemical releases are often (but not always) accompanied by a more rapid onset of symptoms, radiological or biological releases may not become apparent for minutes or even hours after the initial event.

These factors mean it is all the more important that trainees have confidence in their personal protective equipment (PPE), confidence in use of their detectors and confidence in the readings that they obtain.

With that said, participants don’t always get to spend a huge amount of time handling the equipment, which means ease of use and simplicity of operation are extremely important factors.

Managing the challenges of PPE

Something that becomes immediately apparent once trainees don their PPE equipment is just how much their visual, verbal, auditory and manual capacity is affected.

The sense of psychological isolation, anxiety and/or feelings of claustrophobia are also very real issues. And it is up to the trainee to be able to manage these physical and psychological challenges, whilst staying focused on the task at hand and ensuring they deliver accurate information to those up the chain of command.

Having access to, experience of (and confidence in) their detector equipment is a critical element of effective CBRNe response.

Even when working within tight time constraints, an observance of methodical scene management will be critical to ensuring that emergency responders are able to work in a controlled environment, that risk to themselves and the public is minimised, and that any potential crime scene is protected.

______________________________________________

About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. 
He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

Environmental 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.