Are You an Early Adopter? The growth of novel contaminant delineation technology

by Kevin French, Vertex Environmental

In the 1920s researchers became interested in the sociology of exactly how rapidly advancing technologies were dispersed and then adopted by farmers.

By the 1960s a theory known as diffusion of innovation detailed the process of how, why, and at what rate any new technology is spread to a community.

A key group in a community are known as Early Adopters. These folks, representing an estimated 13.5% of the population, are the first to embrace new advances and allow a technology to gain an early foothold. Early Adopters may also enjoy a competitive advantage in the marketplace.

In this article, on an animated map you can see how a novel contaminant delineation technology has spread across Canada since 2011. Were you one of the Early Adopters back in 2011?

Vertex started with High Resolution Site Characterization (HRSC) during a pilot-scale trial back in 2011. The technology is now used country-wide and has even been adopted into the CCME Guidelines for delineationpractices.

The Diffusion of High Resolution Technology in Canada.

The Toronto waterfront was the site of our first use of HRSC technology in Canada back in April of 2011. Early Adopter clients understood that real-time field readings could eliminate multiple mobilizations with a drilling crew. The iterative process of a delineation program suddenly had, well, fewer iterations.

Take a look at the map below showing the growth and spread of HRSC across Canada:

The number of new clients adopting HRSC technology across Canada has also generally followed the same lifecycle curve as shown above. Here is the number of meters profiled per year for a 6 year period:


The number of clients and number of annual meters profiled has increased each year since 2011, with over 11 km profiled during 2016 alone! It is interesting that innovation adoption lifecycle still holds true after 50 years – even with incredible advances in new technology that couldn’t even have been predicted back then!

As with anything new, explaining the advantages and benefits requires answering a lot of good questions. Here are a few of the most common that we encounter:

  1. Can HRSC Replace Laboratory Analysis?

Yes and No. A major advantage is the collection of on-the-fly information. Massive amounts of HRSC data is collected, quickly and cost-effectively. When combined with traditional Phase II Environmental Site Assessment (ESA) methods, they greatly enhance the understanding of presence, concentration and distribution of contamination in the subsurface. The rapidly collected data in turn reduce the number of field mobilizations for drilling and sampling and the number of samples required for laboratory analysis. Laboratory analysis is required to validate field contaminant concentrations detected by the HRSC instrumentation. In some cases it is even possible to produce a correlation between HRSC readings and laboratory analytical data, greatly simplifying the approach to accurate delineation of contamination in the field.

  1. Is this Technology Accepted Practice in Canada?

Often this question is phrased along the lines of “where have you used this?” The real meaning of the question: “is this an accepted technology”? HRSC technology was first developed in the United States and was actively deployed in the U.S for at least a decade before we brought it to Canada full time. However, common practice in the U.S. does not necessarily translate into accepted practice in Canada. And certainly not right away.

By the end of our first year in 2011, we had successfully deployed the HRSC tools at fifteen sites. As we approach the end of 2017, we have now used the technology at over 170 sites! Whatever industry you find yourself in, you’ll realise that pretty much everything relies on technology and is implemented in many places. As the future of work looks like it will rely heavily on technology, it makes sense to stay up to date with some aspects of it. Click right here to find out more regarding the relationship between businesses and technology.

Many of these are situated in Southern Ontario and Quebec. But our clients have also applied the technology extensively at sites from Goose Bay, Labrador to Cold Lake, Alberta to northern British Columbia, to Whitehorse, Yukon. Site types vary from corner gas stations, industrial manufacturing facilities, upstream oil and gas facilities, highway maintenance yards to Canadian Forces Bases. Along with this variety of sites the geologies that Vertex has had to profile have varied widely across Canada. Everything from tight silt tills to glacial sand and gravel deposits. Each geology presents its own unique challenges and Vertex has been able to tackle them all learning more and more, and expanding HRSC capabilities along the way. Being able to capture these data sets for clients across Canada has been quite a journey and we can’t wait to see where it leads us in the future!

  1. How Much Does it Cost?

The cost of this type of investigation is quite affordable when comparing the amount of data collected with the HRSC instruments vs the data collected with traditional investigation techniques (drilling and sampling). We have mobilized and completed cost-effective HRSC programs on both the east and west coasts and in the arctic of Canada. The HRSC technology is very affordable when your site investigation or delineation program would otherwise require multiple mobilizations and iterations of testing or when a high level of detail is required to understand subsurface site conditions. For detailed costing and estimating please feel free to contact us and we will be happy to help out and design a HRSC program that fits your site needs and budget.

  1. What is Coming Next?

The world of HRSC is constantly moving forward with new technology and tooling being invented and tested. Recently, Vertex deployed a dual Laser Induced Fluorescence (LIF) probe to complete an interesting site investigation, the first of its kind in Canada. The dual LIF probe housing both a TarGOST and UVOST unit was deployed in Ontario to further investigate a large development site in Toronto. This dual LIF probe was able to simultaneously detect petroleum hydrocarbon Light Non-Aqueous Phase Liquid (LNAPL) and Dense Non-Aqueous Phase Liquid (DNAPL) products! The data was then used to refine in-situ pilot-scale remediation activities in order to better account for subsurface contamination conditions at the site.

Stay tuned to see what comes next in the world of HRSC!

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About the Author

Kevin French, B.A.Sc., P.Eng., has 25 years of experience in environmental assessment and remediation. Kevin holds a Bachelor’s Degree from the University of Waterloo where he studied Civil and Environmental Engineering. Since that time, Kevin has been involved in the design and implementation of remediation programs relating to chlorinated solvents (including DNAPL), petroleum hydrocarbons (including LNAPL), PAHs/coal tar, heavy metals, etc., at hundreds of sites across Canada.

This article was first published in Vertex Environmental Inc. Newsletter.

Innovative Technology to streamlines brownfield industry projects

As reported by Martin Menachery in Arabian Oil and Gas, Over 95% of projects in the process industry in the Middle East (and comparable percentages around the world) are retrofits or expansions of existing plants that seek to increase capacity, comply with regulations, or introduce new technology to improve performance. With technology advancing at a rapid rate, managing all types of businesses and facilities is becoming easier for all and focus on the task at hand, these services provided by companies such as Road to Reliability make management just a thought in the back of your head, not a problem each morning.

Moreover, often the building of a new plant is done on the brownfield site of an existing facility. For all these projects, capturing and modelling the existing context is critical to decision making and both conceptual and detailed engineering design. 3-D Software reality modelling technology is increasingly being leveraged to support these critical workflows.

In this year’s submissions for the ‘Be Inspired Awards’, there are five excellent examples using reality modelling technology in the process industry, demonstrating how this technology has now become an essential part of any brownfield or greenfield plant design project.

UCB, a global biopharmaceutical company, is using reality modelling for its iconic manufacturing plant in Belgium (which was established in 1928) to assess options and communicate ideas to help this complex and established site become carbon neutral by the year 2030.

ContextCapture was used to create an engineering-ready 3D model of the entire complex, including all the buildings, production facilities, roads, and parking areas, using both drone and terrestrial photography.

This context enabled the engineering team to quickly produce a 3D model to convey ideas and determine options. Point-cloud data from laser scans was then added to the model to enable accurate quantities to be calculated and precise measurements to be given to contractors for the priority work packages.

ABS Steel needed to modernise the fume extraction system for its large steel complex in Udine, Italy, to meet new regulations. It did not have a survey of the entire site since the complex was the result of a merger of two plants in 1988. ABS Steel awarded the contract to BM Engineering to survey the site.

It used laser scanning for inside the plant and photography for outside the plant, creating a combined engineering-ready model in MicroStation using ContextCapture and Bentley Pointools, which was read into AECOsim Building Designer and used to design the new fume extraction system. The model was then used to test the structural integrity of the aging parts of the factory.

By using a drone to capture photos of the roofs of the industrial buildings, and using ContextCapture to accurately create the 3D model, the project avoided the need to construct at least 70,000 temporary structures (guardrails, walkways, ladders, PPE, etc.) to conduct the survey work.

Flightline Geographics (FlightlineGeo) solved a problem for an owner of an ethanol plant in Kansas, United States, plant expansion of which was impeded by a lack of a drainage plan that would satisfy the local municipality. Traditional alternative methods, such as ground surveying and either ground or aerial LiDAR, were eliminated as possible solutions due to the short time frame and limited project budget involved.

A drone was able to survey this 200-acre ethanol plant site in one hour. (Image courtesy: FlightlineGeo)

It was decided to use a drone (UAV) and, once survey ground control was placed, the UAV capture of the 200-acre site was completed in a single one-hour flight. The team used ContextCapture to produce the 3D model that engineers needed to quickly calculate the results for the drainage and construction study, which was presented to municipal authorities a few days later.

Moreover, the team leveraged the same work to create a 3MX reality mesh that could then be used for visualisation within the Acute 3D viewer. It took just one week to conceive, capture, process, and deliver the project, and gain approval.

Technical Solutions International (RBI) is a world-class engineering inspection company headquartered in Durban, South Africa. RBI has deployed a solution that combines the use of unmanned autonomous vehicles (UAVs or drones), 3D reality modelling software (ContextCapture), a geographical information system (Bentley MAP), and engineering documentation management (ProjectWise) to manage the entire inspection process.

Its clients include petrochemical, pulp and paper, power generation, and telecommunications firms. The new process enables RBI to deliver more competitive services to its clients that speed survey time considerably and increase the value and visibility of its inspection survey data.

“UCB SA is driving a ‘smart factories’ initiative, leveraging Industry 4.0 and Bentley technology. Our objective is to reorganise production so that we are more adaptable and effective in the allocation of resources. We store our engineering data in ProjectWise for better collaboration among colleagues,” said Joseph Ciarmoli, Head of CAD engineering, UCB SA.

“Using ContextCapture for 3D modelling of our site provides geo-referencing and allocates geographical coordinates to our data. Analysing the 3D model together with the orthophoto drawings provides the official record of our land registry data, waterways, and buildings,” added Ciarmoli.

“We can also bring this 3D model into AECOsim Building Designer to support any building design changes. For proposed modifications to our production facilities, we use OpenPlant Modeler and OpenPlant Isometrics to provide precise 3D data for contractors and to automate the detection of clashes between pipes, structures, and equipment,” observed Ciarmoli.

“The interoperability of Bentley products has made it possible to optimise and significantly reduce the survey and reality modelling time, while also allowing a BIM model to be created that can easily be used by all stakeholders (structural and plant designers), who have decidedly and significantly improved the efficiency of their integrated design, allowing the implementation of the first revamping phase to be reached just three months after delivery of the BIM model,” said Marco Barberini of BM Engineering.

“Reality modelling using ContextCapture from Bentley enabled FlightlineGeo to process a large amount of data into information for the client in near real time. The project was completed ahead of time and under budget, allowing the company to acquire its expansion permit and move on with production of renewable energy,” commented Devon Humphrey, CEO, FlightlineGeo.

“Bentley’s range of products and integration between their products and our automated UAV systems gives us and our clients an added advantage against an ever-improving competitive market. The future we live in today,” said Stanley du Toit, technical and solution director, RBI Technical Solutions International.

3D design and conceptual model of the city of Coatesville’s “The Flats” brownfield redevelopment, a rugged, 30-acre former steel-mill site located 40 miles west of Philadelphia.

U.S. EPA Guidance Documents Are Not Enforceable Rules Says DOJ

by Van P. Hilderbrand, Jr. and Russell V. Randle at Miles & Stockbridge P.C.

Companies regulated by the U.S. Environmental Protection Agency (U.S. EPA) have long complained that U.S. EPA too often uses guidance documents improperly, both to expand regulatory requirements beyond what the law permits and to avoid judicial review of such expansions. Moreover, regulated parties often argue that the U.S. EPA rigidly enforces such guidance as binding federal rules, but ignores such guidance when it likes. Without expressly referencing the U.S. EPA, the Department of Justice (DOJ) has now taken action that will make it harder for such alleged misuse to occur, whether by the U.S. EPA or by other agencies whose rules the DOJ enforces in federal civil cases through civil penalties and injunctive relief.

Guidance documents serve an essential role in environmental regulation, given the great complexity of the ecosystems to be protected and the intricacies of the industries regulated. The U.S. EPA often publishes policy and guidance documents to clarify enforcement authority, to encourage compliance, and to offer the official interpretation or view on specific issues. Over time, these policies and guidance documents have become a key tool in the DOJ’s enforcement toolbox. DOJ attorneys have used non-compliance with these policies and documents as evidence that the underlying regulation or statute has been violated.

Regulated parties have long objected to this practice because, unlike the underlying regulations, these guidance documents seldom are subject to the notice-and-comment procedures of the Administrative Procedure Act (APA) or judicial review before an enforcement case is brought, when a challenge to the EPA interpretation is a very high stakes gamble.

On January 25, 2018, the DOJ offered the regulated community some relief from this practice. Ironically, it did so in a Policy Memorandum – a guidance document – entitled, “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases.” This policy memo prohibits DOJ attorneys from relying on agency guidance documents as the sole basis for their civil enforcement actions. In other words, DOJ attorneys can no longer bring enforcement actions that require compliance with agency policy and guidance in lieu of clearly articulated requirements in properly promulgated and binding federal rules. The Policy Memorandum’s impact across various regulated industries such as healthcare, finance, and tax will differ and remains uncertain; however, we see a particularly significant effect on DOJ’s ability to enforce environmental regulations and statutes administered by the U.S. EPA.

What does the Policy Memorandum say?

The Policy Memorandum memorializes what the regulated community has argued for many years – that “[g]uidance documents cannot create binding requirements that do not already exist by statute or regulation” – and provides a list of how DOJ attorneys may and may not use agency guidance in future and pending affirmative civil enforcement actions. According to the Policy Memorandum, DOJ may not:

  • Use its enforcement authority to effectively convert agency guidance documents into binding rules;
  • Use noncompliance with guidance documents as a basis for proving violations of applicable law in civil enforcement cases; and
  • Treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.

The Policy Memorandum does not impose an absolute bar against using agency guidance; instead, DOJ attorneys may “continue to use agency guidance documents for proper purposes in such cases.” For example, guidance documents are often used as evidence that a regulated party had “requisite knowledge of the mandate.” This use is expressly still allowed. So is the use of guidance documents that simply explain or paraphrase the legal requirements in the four corners of the existing statutes or regulations, as long as the guidance doesn’t create new requirements.

What does the Policy Memorandum mean for the regulated community?

In practice, the new policy may reduce the use of civil enforcement actions to advance new EPA policy interpretations, interpretations which typically push the boundaries of the U.S. EPA’s legal authority. This effect may be particularly noticeable in connection with claimed violations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the Clean Water Act, and the Clean Air Act.

Enforcement under these statutes relies heavily on thousands of pages of the U.S. EPA guidance documents. The interpretations of these guidance documents are often a moving target because very few have been subject to comment by the regulated community and the public or judicial review, as DOJ routinely argues that they are not “really” binding or justiciable.

The Superfund program, in particular, relies upon guidance documents to flesh out its requirements for removal and remedial work, rather than relying upon rules established under APA procedures. The government will have a more difficult time arguing that violations of EPA guidance constitutes a violation of CERCLA requirements; in practice, such guidance often imposes very detailed and sometimes onerous requirements not mentioned in the statute or any implementing regulation.

Similarly, the U.S. EPA and the U.S. Corps of Engineers are no longer relying upon the controversial 2015 rule defining “waters of the United States,” but instead rely upon guidance documents. The DOJ Policy Memorandum may have significant and unanticipated effects in that context, since the court decisions are divided as to what constitutes waters of the United States and what may constitute a jurisdictional wetland subject to permit requirements for dredge and fill work under Section 404 of the Clean Water Act.

It will also make it more difficult for DOJ to enforce settlement documents, consent decrees, and unilateral administrative orders since they are typically based on compliance with requirements discussed in dozens of EPA policies and guidance documents.

Although the DOJ Policy Memorandum does not address the U.S. EPA’s use of its own guidance documents in settlement discussions, in administrative enforcement proceedings, and when issuing notices of violations, DOJ’s announced unwillingness to rely upon the U.S. EPA guidance documents in subsequent civil enforcement actions should restrain such use, and force the U.S. EPA enforcement personnel to focus on clearer potential violations than in the past. That said, nothing in the Policy Memorandum prohibits a regulated party from citing agency guidance documents in its defense.

The Policy Memorandum is part of this Administration’s deregulatory agenda.

DOJ enforcement capability was already constrained by a November 16, 2017 “Prohibition of Improper Guidance Documents” which prevented DOJ from relying on its own published guidance documents. This policy memorandum issued by Attorney General Sessions prohibited DOJ attorneys from:

  • Issuing guidance documents that effectively create rights or obligations binding on the public without undergoing the notice-and-comment rulemaking process;
  • Creating binding standards by which DOJ will determine compliance with existing statutory or regulatory requirements; and
  • Using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.

It is no secret that the current Administration has set out a broader regulatory reform agenda focused on regulatory rollbacks to reduce unnecessary regulatory burdens. The recent February 2018 Policy Memorandum is an extension of the limitations imposed by the November 16, 2017 memorandum, and follows on the heels of other regulatory reform measures such as the establishment of various reform task forces and Executive Order (EO) 13771, “Reducing Regulation and Controlling Regulatory Costs,” which requires that any new incremental costs associated with a new regulation be offset by eliminating two existing regulations. Either by EO or by DOJ mandate, the current Administration continues to charge ahead with a deregulatory agenda that establishes less-restrictive rules for the regulated community.

Conclusion

As a result of this new policy, successful enforcement by the U.S. EPA and its enforcement counsel at DOJ will have to focus on clearer and it is hoped, more substantive violations of the U.S. EPA rules, and rely far less on requirements sought to be imposed by agency guidance documents. The impacts may be most pronounced in the Superfund and wetlands contexts, but will be a factor in almost every environmental regulatory program, given the complexity of these programs, and the undeniable need for agency guidance about practical implementation

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS.

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About the Authors

Van P. Hilderbrand, Jr. is a member of Miles & Stockbridge  Products Liability & Mass Torts Practice Group.  He focuses his practice on environmental litigation, regulatory compliance issues, and advising on the environmental aspects of business and real estate transactions. His work also includes consulting on renewable energy project development and project finance transactions, conducting due diligence and assisting with permitting issues. He represents clients in a wide range of industries, including energy, manufacturing, consumer products, pharmaceuticals, chemicals, transportation, technology and real estate.

Formerly an associate with Sullivan & Worcester LLP in Washington, D.C., he previously practiced environmental law at Parker Poe Adams & Bernstein LLP in Charlotte, North Carolina.

Russell V. Randle is a seasoned environmental and export control practitioner with decades of experience managing litigation, regulatory compliance and transactional due diligence for his clients.

He has extensive experience with Superfund and contaminated properties, including many on the National Priorities List. Russ also has handled numerous matters arising under the Clean Air Act, Clean Water Act and Oil Pollution Act, as well as antimicrobial issues under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

In his export controls and sanctions practice, Russ covers the full spectrum of compliance, enforcement actions and audit issues related to defense trade, financial transfers and non-governmental organizations working in areas affected by U.S. sanctions.

 

This article was first published on the Miles & Stockbridge P.C. website.

Proposed U.S. Infrastructure Plan Supports Reuse of Brownfields and Superfund Sites

The Trump Administration released its ambitious $1.5 trillion infrastructure plan on Feb. 12, 2018 – a plan that includes many provisions focused upon encouraging the reuse of contaminated brownfields and Superfund sites.  On the same day, the Administration released its proposed budget for Fiscal Year (FY) 2019, which called for a 23 percent cut from FY 2018 levels in the U.S. Environmental Protection Agency’s (U.S. EPA) budget.  The U.S. EPA also released its final Strategic Plan for 2018-2022, emphasizing a focus upon the agency’s core mission, cooperative federalism and the rule of law.  What does all of this mean for the redevelopment of contaminated sites in the United States?

Infrastructure Plan

 Financial Incentives

The infrastructure program would establish an Incentives Program that could be very beneficial for state and local reuse of contaminated sites.  Up to $100 billion would be set aside for the Incentives Program, which would fund a wide range of projects, including brownfields and Superfund sites, stormwater facilities, wastewater facilities, flood control, water supply, drinking water supply and transportation facilities.  The funds would be divided among the U.S. Department of Transportation (U.S. DOT), the U.S. Army Corps of Engineers and the U.S. EPA.  The infrastructure plan suggests criteria by which applications would be evaluated, with substantial weight (70 percent) being given to obtaining commitments for non-federal revenue for sustainable, long-term funding for infrastructure investments and for operations, maintenance and rehabilitation. In order to motivate performance, the grant recipient would need to enter into an infrastructures incentives agreement with the lead federal agency and to agree to achieve progress milestones. If the milestones are incomplete after two years, the agreement will be voided unless there is good cause to extend the agreement for another year. No individual state could receive more than 10 percent of the total amount available under the Incentives Program.

Additional funds would be set aside for a Rural Infrastructure Program, including funds for brownfields and land revitalization as well as stormwater and wastewater facilities, drinking water, flood risk management and water supply.  States would be required to develop a comprehensive rural infrastructure investment plan (RIIP). Some funds would also be provided for tribal infrastructure and the infrastructure needs of U.S. territories.

Superfund, Brownfield, and RCRA Sites in the U.S. (U.S. EPA, 2013)

Yet another category of funds would be set aside for the Transformative Projects Program – projects that are likely to be commercially viable but have unique technical and risk characteristics that might deter private sector investment.  Projects that could be covered by this program could fall within commercial space, transportation, clean water, drinking water, energy or broadband.  A total of $20 billion would initially be set aside for this program, with the U.S. Department of Commerce chairing the program.  Funds could be used for demonstration, project planning, capital construction, or all three.  If a project receives financial assistance for capital construction, it would be expected to enter into a value share agreement with the federal government and would be required to publish performance information upon achieving milestones and finishing the project.

The federal government would also dedicate $20 billion from existing federal credit programs, and broaden the use of Private Activity Bonds, to assist complex infrastructure projects. These sources of funding would include: the Transportation Infrastructure Finance and Innovation Act (TIFIA); Railroad Rehabilitation and Improvement Financing (RRIF); Water Infrastructure Finance and Innovation Act (WIFIA); Rural Utility Service (RUS) lending; and Private Activity Bonds (PABs).

The Administration would amend TIFIA to make loans and credit assistance available for other types of projects – such as passenger terminals, runways and related facilities at non-federal waterways and ports as well as airport projects – until FY 2028.  Similarly, the Administration is proposing to amend RRIF to cover the credit risk premium for short-line freight and passenger rail project sponsors, thereby incentivizing more project sponsors to apply for RRIF credit assistance.  It would also like to amend WIFIA (33 U.S.C. 3905) to include flood mitigation, navigation and water supply, and to eliminate the requirement that borrowers be community water supply systems.  The Administration would like to make WIFIA funds available for remediation of water quality contamination by non-liable parties.  It would remove the current spending limit of $3.2 billion, which was put in place when WIFIA was a pilot program, and would amend the restriction upon using WIFIA funds to reimburse costs incurred prior to loan closing.

Liability Relief

The Administration proposes establishing a Superfund Revolving Loan Fund and Grant Program and authorizing sites that are on the National Priorities List (NPL) to be eligible for brownfields grants.  It would amend the Small Business Liability Relief and Brownfields Revitalization Act in order to do so. This would allow non-liable parties to tap into a low-interest source of funds to perform removals, remedial design, remedial action and long-term stewardship.  The program would be targeted toward portions of NPL sites that were not related to the response action; to portions that could be parceled out from the response action site; to areas where the response action was complete but the site had not yet been delisted; or to areas where the response action was complete but the facility was still subject to a consent order or decree.

The Administration would also propose additional liability protections to states and municipalities acquiring contaminated properties in their capacity as sovereign governments by clarifying and expanding the current liability protections in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 101(20)(D).  These governmental entities would be eligible for grants and would be protected from liability, so long as they meet the obligations imposed upon bona fide prospective purchasers (BFPPs), including exercising appropriate care with regard to releases, so long as they did not contribute to the contamination.

The Administration would also give EPA express authority to enter into administrative settlement agreements with BFPPs or other third parties who wish to clean up and reuse contaminated Superfund sites.  This could include partial and early remedial actions.

The Administration’s infrastructure proposal would encourage greater flexibility in funding and execution requirements, as infrastructure needs should be integrated into cleanup design and implementation. Better integration would allow third-party financing and promote site reuse.

Expedited Permitting

The Administration proposed a “one agency, one decision” environmental review structure, in which a single federal lead agency would complete the environmental review within 21 months and issue either a Finding of No Significant Impact (FONSI) or Record of Decision (ROD).  The lead agency would then have another three months to issue any necessary permits, including state permits issued under federal law pursuant to a delegation of authority.  The agency would not be required to evaluate alternatives outside the scope of the agency’s authority or the applicant’s capability.

The Council on Environmental Quality (CEQ) would be directed to revise its regulations to streamline the National Environmental Policy Act (NEPA) process to increase the efficiency, predictability and transparency of environmental reviews.  The Administration would eliminate what it considers to be duplicative reviews by EPA under Section 309 of the Clean Air Act.  It would also encourage each federal agency to increase its use of categorical exclusions (CEs) and would allow any federal agency to use a CE established by another federal agency without undergoing the CE substantiation and approval process.

The Administration would also recommend amending the law to allow federal agencies to accept funds from non-federal entities to support review of permit applications and other environmental documents to expedite project delivery and defray costs.

The Administration would also make changes under the Clean Water Act to eliminate redundancy and duplication. For example, it would allow federal agencies to select nationwide permits without the need for additional Army Corps review. It would authorize the Secretary of the Army to make jurisdictional determinations under the Clean Water Act and would eliminate EPA’s ability to veto a Section 404 permit under Section 404(c). It would allow the same document to be used for actions under Sections 404 and 408 of the Clean Water Act.  The Administration would lengthen the term of a National Pollutant Discharge Elimination System (NPDES) permit from five years to 15 years and provide for automatic renewals.

Similar changes would be made under the Clean Air Act. For example, the Administration would amend the Clean Air Act so that state departments of transportation (state DOTs) and metropolitan planning organizations (MPOs) would need only to demonstrate conformity to the latest National Ambient Air Quality Standards (NAAQS), rather than to old and new standards for the same pollutant. Similarly, MPOs would be allowed to demonstrate conformity in a newly designated non-attainment area within one year after EPA has determined that the emissions budget is adequate for conformity purposes.

The Administration proposes eliminating overlapping Section 4(f) review by the U.S. Department of the Interior, U.S. Department of Agriculture and U.S. Department of Housing and Urban Development before the DOT can be authorized to use parklands or historic sites unless there is no prudent or feasible alternative. This process can add an extra 60 days to the project development review process, even when those agencies have little direct involvement in the project. Another layer of review is required under Section 106 of the National Historic Protection Act (NHPA) for historic properties that is not aided by the Fixing America’s Surface Transportation (FAST) Act. The Administration recommends that an action taken under a Section 106 agreement should not be considered a “use” under Section 4(f), therefore eliminating some duplication and delay.

The Administration would expand the NEPA assignment program to allow DOT to assign, and states to assume, a broader range of NEPA responsibilities, including project-level transportation level conformity determinations as well as determinations regarding flood plain protections and noise policies to make the NEPA assignment program more efficient.

Also proposed by the Administration is a pilot program with up to 10 pilot sites that would be expected to meet performance standards and enhanced mitigation, in lieu of complying with NEPA and relevant permits or other authorizations.

The Administration also proposed judicial reforms, including limiting injunctive relief to exceptional circumstances and revising the statute of limitations to 150 days (rather than a statute of limitations of up to six years).

Proposed Budget

The Administration also released its “Efficient, Effective, Accountable: An American Budget” on Feb. 12, 2018, in which it proposed a 23 percent cut in EPA’s budget compared to FY 2018.  The White House added $724 million to EPA’s budget in a supplemental request, including $327 million for the Superfund program and $397 million for State and Tribal Assistance Grants for Clean Water and Drinking Water State Revolving Funds (SRFs).  At the same time, the Administration proposed cuts of 16 percent in grants to states (to $2.9 billion) and proposed cuts of 35 percent in funding to state and local agencies for air quality management (to $152 million).  The Administration requested $151 million for enforcement at Superfund sites and $20 million for the WIFIA program.

U.S. EPA’s Final Strategic Plan

The FY 2018-2022 EPA Strategic Plan, also released on Feb. 12, 2018, continued to emphasize three main goals: the agency’s Core Mission, Cooperative Federalism, and the Rule of Law and Process.  Among its two-year priority goals, The U.S. EPA intends to make an additional 102 Superfund sites and 1,368 brownfields sites ready for anticipated use (RAU) by Sept. 30, 2019. The U.S. EPA intends to use a “Lean” management system designed to deliver measurable results that align with the Strategic Plan.

Objective 1.3 is particularly relevant to the issues discussed above with regard to redevelopment of brownfields and Superfund sites. Objective 1.3 is to revitalize land and prevent contamination by providing better leadership and management to properly clean up contaminated sites to revitalize and return the land back to communities.  The strategic plan identifies both strategic measures and strategies for achieving these goals. First, it announces the number of sites the agency intends to have RAU by Sept. 30, 2022:

  • 255 additional Superfund sites
  • 3,420 additional brownfield sites
  • 536 additional Resource Conservation and Recovery Act (RCRA) corrective action facilities
  • 56,000 additional leaking underground storage tank (LUST) sites meeting risk-based corrective action standards

The U.S. EPA then announced the strategies by which it intends to achieve these goals, including the use of new technologies and innovative approaches; prioritizing sites that have been on the NPL for five years or more without significant progress; and reprioritizing resources to focus on remedial actions, construction completions, ready for reuse determinations and NPL site deletions.  The U.S. EPA will award competitive grants for the assessment, cleanup and reuse of brownfields sites, and will focus on sites subject to RCRA corrective action and LUST sites.  The U.S. EPA will review more than 12,500 risk management plans (RMPs) to help prevent releases and train RMP inspectors, and it intends to update its RCRA hazardous waste regulations to protect the health of the 20 million people living within 1 mile of a hazardous waste management facility. It will also issue polychlorinated biphenyls (PCB) cleanup, storage and disposal approvals, since this work cannot be delegated to states or tribes.  The U.S. EPA acknowledged that many of the sites that remain on the NPL are large, more complex and may contain multiple areas of contamination, and may contain emerging contaminants such as per- and polyfluoroalkyl substances (PFAS).  The U.S. EPA promised to engage stakeholders at all levels in making cleanup and land revitalization decisions.

As part of Objective 3.1, compliance with the law, the U.S. EPA stated that it would continue to follow an “enforcement first” approach under CERCLA to maximize the participation of responsible parties to perform and pay for cleanups. It indicated it would focus its resources on the highest priority sites that present an immediate risk to human health and the environment, and return these sites to beneficial use as expeditiously as possible.  It will also use advanced monitoring technologies to ensure compliance and work with the Environmental Council of the States (ECOS) and state associations to modernize ways to improve compliance.

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About the Authors

Amy L. Edwards is the co-chair of the firm’s National Environmental Team, as well as its Military Housing and Installations Redevelopment Team. She is a partner in the firm’s Public Policy & Regulation Group, which has been ranked among the top law and lobbying firms in Washington, D.C., by numerous publications. Ms. Edwards has been recognized as a leading environmental lawyer for several years by Chambers USASuper Lawyers and Best Lawyers. After holding several other leadership positions, she will become the Chair of the American Bar Association’s Section of Environment, Energy and Resources (SEER), the pre-eminent national organization representing lawyers in these fields, in 2018-2019.

Nicholas Targ is a San Francisco attorney with more than 20 years of experience assisting clients in the public and private sectors efficiently achieve their land use, environmental and policy goals. He co-chairs Holland & Knight’s national environmental team. Mr. Targ’s practice focuses on complex redevelopment projects, environmental compliance and government advocacy. His representative work includes strategic legal advice on brownfields redevelopment, Superfund compliance, and state and federal grant and policy advocacy. Mr. Targ has successfully advocated for infill funding and policy initiatives on behalf of public, private and nonprofit coalition clients.

This article was first published on the Holland & Knight LLP website.

U.S. EPA Sees New Challenges Ahead for Superfund

by  Loren R. Dunn and Eric L. Klein, Beveridge & Diamond PC

The U.S. EPA released a four-year “strategic plan” in mid-February that continues to emphasize the Superfund program as one of Administrator Scott Pruitt’s top priorities.  While it has been clear since last summer’s Superfund Task Force report that the agency’s new leadership wants to accelerate Superfund site cleanups, the agency’s new strategic plan reveals for the first time that the U.S. EPA also sees emerging challenges ahead for Superfund.

“A number of factors may delay cleanup timelines,” the agency wrote in its strategy document.  These factors include the “discovery of new pathways and emerging contaminants” such as vapor intrusion and per- and polyfluoroalkyl substances (PFAS), and new science such as “new toxicity information or a new analytical method.”

Photo Credit: Michael Paulsen / Houston Chronicle

According to the strategic plan, the emergence of this kind of new information can reopen previously settled remedy determinations – and the Superfund sites that still remain on the National Priorities List (NPL) already tend to be the harder cases, with more difficult patterns of contamination and more complex remedies.  The U.S. EPA flagged in particular its waste management and chemical facility risk programs, where “rapidly changing technology, emerging new waste streams, and aging infrastructure present challenges[.]”

It remains to be seen whether the agency’s cautions in the Superfund section of its strategy document represent a meaningful shift in the agency’s frequently-stated intention to reinvigorate the Superfund program.  Early in his tenure, Mr. Pruitt charged his Superfund Task Force with generating a series of recommendations centered around Mr. Pruitt’s goals for Superfund: faster cleanups, the encouragement of cleanup and remediation investments by PRPs and private investors, and a process centered on stakeholder engagement and community revitalization.  In December 2017, in response to one of the Task Force’s recommendations, the agency released a list of 21 high-priority NPL sites that Mr. Pruitt targeted for “immediate and intense attention,” according to an U.S. EPA press release.  The cautionary notes in this week’s strategic plan are a subtle shift in tone for the U.S. EPA.

At the same time, the document also sets forth a plan for improving the consistency and certainty of EPA’s enforcement activities in the regulated community.  It remains to be seen how U.S. EPA intends to achieve consistency while being responsive to state and tribal interests.

These goals, of course, will depend on the details of implementation, which are not set forth in the strategic plan.  And such details will depend on the agency’s budget, which remains in flux for 2019 and beyond.  For example, U.S. EPA’s proposed budget for fiscal year 2019 sought a roughly $327 million cut in the Superfund program, but the funds were added back into the budget proposal as part of last-minute budget agreement reached in Congress last week, securing the program’s funding in the short-term.   Last year, the administration proposed a 30% cut in the agency’s funding  but Congress balked and eventually approved a budget that cut roughly 1%.

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About the Authors

Loren R. Dunn represents regional and national companies at locations throughout the country in environmental regulation and litigation issues.  Loren’s environmental projects have involved hazardous waste and large multi-party toxics cleanup sites, including marine and fresh water sediment sites, landfills, and natural resource damages claims. He has also conducted extensive work obtaining permits for key facility operations. He has particularly deep knowledge of the following industries: manufactured gas facilities, regulated utilities, smelters and metals refineries, pesticide sites, and large area contamination sites.

Eric L. Klein is an environmental civil litigator and regulatory counselor in the Washington, D.C. office of Beveridge & Diamond, P.C.  He has handled cases in state and federal courts throughout the United States, litigating a variety of complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals.  Mr. Klein frequently litigates both statutory and common law claims, and specializes in challenging and defending technical experts in the litigation of complex environmental torts.

This article was first published on the Beveridge & Diamond PC website.

Avoiding Common Phase Two ESA Errors – Part 2

By: Bill Leedham, P.Geo, QP, CESA.

Last month I discussed some common mistakes I have encountered in reviewing Phase Two Environmental Site Assessment reports, specifically in the initial planning stage, now it’s time to turn our attention to recognizing and reducing errors during the Phase Two ESA field work.

Sometimes, deficiencies that occur in the planning stages of a Phase Two ESA transfer into errors in field procedures.  This can be caused by poor communication between the project manager and field staff (i.e. the PM neglects to inform field personnel of specific project requirements, and/or field staff forget to include important sampling media or potential contaminants of concern).  Full, two-way communication is vital to successful completion of any Phase Two ESA. It’s not enough for senior staff to just assume that less experienced team members understand all the complexities of the sampling plan; nor is it acceptable for a project manager to fail to provide adequate guidance and answers to questions from the field.  I have always thought it was important for junior staff to ‘know what they don’t know’ and encouraged them to ask questions at any time.  When project managers are ‘too busy’ to answer questions and simply tell their staff to ‘figure it out themselves’ everyone loses.

Photo Credit: All Phase Environmental

Despite good intentions and full communication, deficiencies can still occur.  Some are the result of inexperience compounded by poor judgement; some are due to budget limitations or staffing shortfalls; and some are caused through poor sampling protocols.  Some of the more common field sampling errors can include: failure to sample all relevant media at a Site (e.g. no sediment or surface water sampling is undertaken despite the presence of a potentially impacted water body); failure to consider all potential contaminants of concern (e.g. sampling only for petroleum hydrocarbons at a fuel storage site and not volatile parameters like BTEX); failure to sample in locations where contaminants are most likely to occur or be detected (e.g. sampling only surficial or near surface soils, and not at the invert of a buried fuel tank or oil interceptor, or failure to sample groundwater in a potable groundwater situation); and lack of field or lab filtering of groundwater samples for metals analysis (failure to remove sediment prior to sample preservation can skew the results for metals analysis).

Inadequate sampling and decontamination procedures can also bias lab results, leading to inaccurate or faulty conclusions.  When samples are disturbed (such as grab samples of soil collected directly from a drill augur that has travelled through an impacted zone) or collected improperly (e.g. compositing soil samples for analysis of volatile components); the test results can be biased and may not be representative of actual site conditions.  Similarly, failure to properly clean drilling and sampling equipment can result in apparent impacts that are actually the result of cross contamination between sampling points. Consider using dedicated or disposable sampling equipment to reduce this potential. A suitable quality control program should also be implemented, including sufficient duplicate samples, trip blanks, etc. for QA/QC purposes, and inclusion of equipment rinsate blanks to confirm adequate decontamination.

These are only a few of the more common field sampling errors I have come across. In an upcoming article I will discuss other practical methods to reduce errors in Phase Two data interpretation and reporting.

About the Author

Bill Leedham is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (AESAC); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at info@down2earthenvironmental.ca

 

This article first appeared in AESAC newsletter.

Canadian Government Introduces Amendments to Fisheries Act: Initial Thoughts

Article by  Selina Lee-AndersenStephanie Axmann,and Paul R. Cassidy

McCarthy Tétrault LLP

On February 6, 2018, the federal government announced amendments to the Fisheries Act (the “Act”) aimed at restoring what it describes as ‘lost protections” and “incorporating modern safeguards” to protect fish and fish habitat. The Act, regarded as one of Canada’s principal environmental laws as it is the primary federal statute governing fisheries resources in Canada, includes important provisions for conserving and protecting fish and fish habitat that affect a variety of industries.

The proposed amendments result from a process launched by the government in October 2016, when the Minister of Fisheries and Oceans asked the House of Commons Standing Committee on Fisheries and Oceans (the “Committee”) to review changes to the Act made in 2012 by the previous government of then Prime Minister Stephen Harper. The Report of the Fisheries and Oceans Committee on the Fisheries Act review, entitled “Review of Changes Made in 2012 to the Fisheries Act: Enhancing The Protection of Fish And Fish Habitat and the Management Of Canadian Fisheries” (the “Fisheries Report”) was released on February 24, 2017 and made 32 recommendations to the government. In June 2017, the government released its Environmental and Regulatory Reviews Discussion Paper, which outlined potential reforms and proposed, among other things, that “lost protections” be restored in the Act.

A Quick Summary

Under the proposed amendments, the scope of the Act will be increased to cover all fish, rather than commercial, Indigenous and recreational fisheries (as currently set out in the Act). Unsurprisingly, the government proposes to reintroduce the pre-2012 prohibition on the “harmful alteration, disruption or destruction of fish habitat“, also known as HADD. This means that the concept of “serious harm to fish” under the current Act will be removed. By reintroducing the HADD language, the federal government is also reintroducing old uncertainty in the case law about what precisely constitutes a HADD; whether this will be addressed in guidance from Fisheries and Oceans Canada (DFO) remains to be seen.

Salmon Spawning (Photo Credit: D. Herasimtschuk)

The proposed amendments also include a new requirement to consider cumulative effects, along with increased regulatory powers to amend, suspend, or cancel authorizations. In support of reconciliation efforts, the proposed amendments also provide opportunities to increase the role of Indigenous groups in decision-making under the Act and in managing fisheries and fish habitat.

It does not appear that the pollution provisions in section 36 (prohibiting the deposit of deleterious substances) of the Act will be changed, even though they have long created a scientifically questionable prohibition on the deposit of any substances deemed to be deleterious without regard to their quantity or the actual receiving environment.

A Closer Look

A more detailed look at the proposed amendments is set out below and will be expanded upon in future blogs. From a policy perspective, the proposed amendments are designed to achieve the following objectives:

  • restore lost protections by returning to comprehensive protection against harming all fish and fish habitat;
  • strengthen the role of Indigenous peoples in project reviews, monitoring and policy development;
  • recognize that decisions can be guided by principles of sustainability, precaution and ecosystem management;
  • promote restoration of degraded habitat and rebuilding of depleted fish stocks;
  • allow for the better management of large and small projects impacting fish and fish habitat through a new permitting framework and codes of practice;
  • create full transparency for projects with a public registry;
  • create new fisheries management tools to enhance the protection of fish and ecosystems;
  • strengthen the long-term protection of marine refuges for biodiversity;
  • help ensure that the economic benefits of fishing remain with the licence holders and their community by providing clear ability to enshrine current inshore fisheries policies into regulations; and
  • clarify and modernize enforcement powers to address emerging fisheries issues and to align with current provisions in other legislation.

Within the context of resource development, the following proposed amendments will likely have the greatest impacts on the design, construction and operation of projects going forward:

  • Protecting Fish and Fish Habitat: The federal government is proposing the restoration of protections for fish and fish habitat that were lost with changes in 2012. In particular, it is proposing that all fish and fish habitats be protected, and that the previous prohibition against “harmful alteration, disruption or destruction of fish habitat” be restored. In addition, the federal government is proposing to restore a prohibition against causing “the death of fish by means other than fishing” and to introduce a new requirement to make information on project decisions public through an online registry.
  • Better Management of Projects: The federal government is proposing the development of regulations that clearly define which projects would always require ministerial permits before a project can begin. In particular, it is proposing that projects that would always require ministerial permits be called designated projects, which would be identified based on their potential impact on fish and fish habitat. These are expected to be larger-scale projects. Currently, projects requiring authorization under the Fisheries Actare determined on a project-by-project basis. DFO surmises that the concept of a designated project would provide greater certainty for proponents around process and timelines. DFO’s current practice of issuing letters of advice and ministerial authorizations will continue for projects that are not listed as designated projects. In addition, the federal government is proposing the establishment of new authorities to support the development of codes of practice, which will serve as formal guidance documents for small, routine projects such that, if followed, permits or authorizations are not needed. The actual value of such codes of practice has been the subject of uneven experience in other environmental legislation. However, the codes of practice should, it is anticipated, provide advice to project proponents on how to avoid impacts on fish and fish habitat, and ensure compliance with the Act.
  • Restoring Habitat and Rebuilding Fish Stocks: In order to create more stable and resilient aquatic ecosystems and support the sustainability of fish stocks, the federal government is proposing that DFO be required to consider whether proposed development projects give priority to the restoration of degraded fish habitats. In addition, the federal government is proposing to introduce a requirement to create and publish habitat restoration plans on a public registry after designating an area as ecologically significant where habitat restoration is needed. The Minister will also be given the ability to create regulations related to the restoration of fish habitat and the rebuilding of fish stocks.
  • Reconciliation with Indigenous Peoples: The federal government has stated that proposed changes to the Fisheries Act will help to advance reconciliation with Indigenous peoples by, among other things: (i) requiring consideration of traditional knowledge for habitat decisions and adverse effects on the rights of Indigenous peoples when making decisions under the Act; (ii) enabling agreements with Indigenous governing bodies to carry out the purposes of the Act; and (iii) introducing a modernized fish habitat protection program that would enhance partnering opportunities with Indigenous communities regarding the conservation and protection of fish and fish habitat. It should be noted that DFO’s efforts to help advance reconciliation is taking place within the broader federal government review of laws and policies related to Indigenous peoples, which was initiated in February 2017.

DFO has prepared a comparison of the proposed changes, which is summarized below:

Before Proposed Amendments After Proposed Amendments
Not all fish and fish habitat protected; only those related to a commercial, recreational or Aboriginal fishery protected.

 

Protection of all fish and fish habitat.

 

 

No explicit reference to consideration of the rights of Indigenous peoples, and their unique knowledge, to inform decision making.

 

 

Provided Indigenous traditional knowledge must inform habitat decisions.

Requirement to consider adverse effects of decisions on the rights of Indigenous peoples.

 

Ability to enter into certain agreements restricted to provinces and territories only.

 

Added ability to enter into agreements with Indigenous governing bodies as well as provinces and territories.

 

No provisions regarding the independence of inshore licence holders.

 

 

 

 

Provisions allowing for recognition of social, economic and cultural factors, as well as the preservation or promotion of the independence of licence holders in commercial inshore fisheries.

Enabling regulations to support independent inshore licence holders.

 

No tools to quickly implement in-season fisheries restrictions to address unforeseen conservation and management issues. Ability to put in place targeted short-term measures to quickly and effectively respond to unforeseen threats to the management of fisheries and to the conservation of fish.

 

Uncertainty as to when authorizations are required for development projects. Clarity on which types of projects require authorizations through permitting and codes of practice.

 

Lack of transparency regarding authorization decisions for projects; no requirement to publicly release information on these decisions.

 

Requirement to publicly release information on project decisions through an online registry.

 

 

No tools to address long-term marine conservation. Ability to create long-term area-based restrictions on fishing activities to protect marine biodiversity.

 

No specific provisions to address whales in captivity. A prohibition on fishing cetaceans with intent to take them into captivity unless authorized by the Minister in circumstances where the animal is injured, in distress or in need of care.

 

No legal requirements related to rebuilding fish stocks.

 

 

 

 

Minister must consider whether stock rebuilding measures are in place when making a fisheries management decision that would impact a depleted stock.

Enabling regulations respecting the rebuilding of fish stocks.

Antiquated provision for the management offences under the Fisheries Act, often leading to costly and long court processes.

 

Ability to address Fisheries Act offences outside of court using alternative measures agreements, which reduces costs and repeat offences.

 

No provisions to restore degraded habitat as part of development project reviews.

 

Provisions to consider restoration priorities as part of development project reviews.

 

Insufficient capacity to enforce provisions under the Act.

 

Enhanced enforcement and monitoring capacity on the water and for projects.

 

We will continue to monitor and provide commentary as the proposed amendment legislation makes its way through Parliament. DFO has indicated that regulations and policies are now being developed in consultation with Indigenous groups, provinces and stakeholders to support the implementation of the amendments. Like a lot of environmental legislation, the true impact of the new Fisheries Act will only be meaningfully gauged once its regulations are published.

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To view original article, please click here.

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.

Photo Credit: Nature Canada

BC Seeks Feedback on Second Phase of the Spill Response Regime

WRITTEN BY:

Bennett Jones LLP

David Bursey, Radha Curpen, and Sharon Singh

[co-author: Charlotte Teal, Articling Student]

Phase-2 to BC’s Spill Response Regime

The British Columbia government is moving forward with the second phase of spill regulations, announcing further stakeholder engagement on important elements, such as spill response in sensitive areas and geographic response plans. The government will also establish an independent scientific advisory panel to recommend whether, and how, heavy oils (such as bitumen) can be safely transported and cleaned up. While the advisory panel is proceeding, the government is proposing regulatory restrictions on the increase of diluted bitumen (dilbit) transportation.

The second phase engagement process follows the first phase of regulatory overhaul introduced in October 2017, when the Province established higher standards for spill preparedness, response and recovery.

Photo Credit: Jonathan Hayward/Canadian Press

Feedback and Engagement

The Province is planning an intentions paper for the end of February 2018 that will outline the government’s proposed regulations and will be available for public comment.

In particular, the Province will seek feedback on:

  1. response times, to ensure timely responses to spills;
  2. geographic response plans, to ensure that resources are available to support an immediate response that account for the unique characteristics of sensitive areas;
  3. compensation for loss of public and cultural use of land, resources or public amenities in the case of spills;
  4. maximizing application of regulations to marine spills; and
  5. restrictions on the increase of dilbit transportation until the behaviour of spilled bitumen can be better understood and there is certainty regarding the ability to adequately mitigate spills.

What this means for industry

This second phase was planned follow up to the October 2017 regulations. Many of the proposed regulatory changes have been part of ongoing stakeholder discussions for the past few years. However, the prospect of permanent restrictions or a ban on the increased transportation of dilbit off the coast of B.C. and the prospect of further regulatory recommendations from the independent scientific advisory panel creates uncertainty for Canada’s oil sector.

The government’s emphasis on environmental concerns related to bitumen and its recent initiatives to restrict oil exports to allow time for more study of marine impacts will further fuel the national discourse on how to export Canada’s oil to international markets from the Pacific Coast.

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This article was first published on the Bennett Jones LLP website.

About the Authors

Evolution of Emergency Management

by Lee Spencer, Spencer Emergency Management Consulting

You would have to be living under a rock to have not heard the resounding thud of the Ontario Auditor General’s report on the state of emergency management in Canada’s most populated province hitting the desks of the emergency management community in Canada (report) . I for one was not shocked by the findings and believe most jurisdictions in Canada would see similar criticism if subject to an OAG review.

For generations, provincial level emergency management has been an after thought.  Historically staffed by second career fire/police/military retirees who were expected to be seen and not heard.  These legacy EMOs were counted on to create order in the otherwise chaotic response phase of large scale disaster and otherwise quickly to be ignored again once the situation was restored and recovery programs began to hand out government grants.

After 9/11 it was clear to elected officials that the public had an expectation of the EMO cavalry galloping in to defeat any hazard, risk or terrorist.  But the costs and the growth that would be needed to meet that expectation could not compete with the schools, hospitals, roads and bridges built to ensure tangible things could be pointed to when an election rolled around.  After all the last thing most governments want claim at election time is they added more civil servants.

So in this era of increased public expectation, EMOs were given very little new resources to modernize and adapt to the new reality.  Provincial EMOs were left to the task of preparedness and response in the modern context with resources more suited to the National Survival primordial ooze from which provincial EMOs emerged.

I am hopeful that the public shaming of our most densely populated economic engine, will lead to a national discussion of the investment required to truly meet the realities and expectations of modern emergency management.There are already several emerging national strategies that will aid in this effort, Canada’s emerging Broadband Public Safety Network and the expanding National Public Alerting Systems are modern capabilities that will go a long way to enhance capacity at even the most modest EMO.

We are also starting to see an expansion in post secondary degrees and diplomas which will lead to firmly establishing emergency management as a profession in Canada.  These emerging professionals will eventually take over the leadership roles from folks like me (second career), bringing with them the education and experience to combine the historical EMOs with modern thinking.

I know my former colleagues in the EMO’s across Canada are shifting uncomfortably at there desks at the moment waiting for their own leaders to ask how they compare to Ontario.  It would seem to me that if your not uncomfortable you just don’t get it.

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About the Author

 Lee Spencer is founder and President of Spencer Emergency Management Consulting.  The company is focused on the strategic integration of emergency management concepts towards an outcome of resilience within a community, business or government.

 

This article was first published Spencer Emergency Management Consulting e-blog site.

Avoiding Common Phase Two ESA Errors – Part 1

By: Bill Leedham, P.Geo, QP, CESA.

Previously I have written about common errors I have encountered in reviewing Phase One Environmental Site Assessment reports, now it’s time to focus on some of the commonplace mistakes I have seen in planning and conducting Phase Two ESAs.

A properly scoped Phase Two needs to be based on accurate site data, which should entail completing a thorough Phase One ESA to identify actual and potential environmental concerns. An incomplete or deficient Phase One ESA (or absence of any prior site assessment) can lead to un-investigated areas, unidentified contaminants, missed contamination, and costly oversights when it comes to completion of the Phase Two work. With the high costs of drilling, sampling and lab analyses – and the even higher costs of remediation; it is vital that the consultant knows where to look and what to look for, in any intrusive site investigation; which requires a diligent and comprehensive Phase One ESA to get it right.

Photo by Azad K. (Geo Forward Inc.)

A Phase Two ESA can be required for a variety of reasons; including transactional due diligence, litigation, remedial planning, and obtaining regulatory approvals. The consultant must know and understand all client and stakeholder objectives, as well as the local regulatory requirements.  Conducting a CSA-compliant Phase Two ESA when the Client is expecting ASTM protocols and the regulator requires a different legislation-specific format to support regulatory approval will lead to problems, delays, possible costs over-runs – and a very dissatisfied client.  Two-way communication and full understanding of the project before, during and after the Phase Two plays an important role in successful and timely project completion.

Once the project requirements are defined, a Sampling Plan must be developed to meet these requirements.  Too often, mistakes are made when the number and location of sampling points is underestimated, or improperly selected. The consultant must consider all the potentially impacted media to be sampled. This could include not just soil; but often groundwater, sediment, and surface water; and sometimes soil vapour, indoor air quality, and building materials.  Consideration of the frequency and extent of sampling is necessary to investigate all relevant media and to fully characterize the environmental condition of the Site.  Utilizing a Conceptual Site Model to consider the contaminant sources, migration pathways and potential receptors unique to the Phase Two property is a useful and too often under-used method of developing a suitable Sampling Plan.

Site specific conditions, access, logistics, safety and (unavoidable) budgetary considerations also play a huge part in properly scoping and conducting any successful Phase Two ESA, but these are all wide ranging topics to cover another day.  Next month I will discuss other methods to recognize and avoid common errors in field sampling.

 

About the Author

Bill is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (AESAC); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at info@down2earthenvironmental.ca