Class Action suit filed against CN Rail for derailment

As reported in the Sudbury Star, a Timmins law firm has sent a letter out to Gogama area residents and cottagers advising that a class-action lawsuit has been filed against CN Rail in connection with the derailment of an oil tanker train and subsequent oil spill that occurred on March 7, 2015.

The letter, signed by James Wallbridge of Wallbridge, Wallbridge Trial Lawyers of Timmins, was to advise residents to sign retainer agreements or to indicate whether or not they wish the law firm to proceed on their behalf.

The derailment and oil spill occurred in the area of the Makami River bridge, on the CN mainline near the village of Gogama, a town in Northeastern Ontario located between Timmins and Sudbury.  An eastbound CN Rail train hauling 94 tank cars had a derailment after riding over a broken rail. In all, 39 tank cars left the track.  Some of the cars fell into the river next to be bridge, exploded and burst into flame. Several of the cars were breached releasing many hundreds of thousands of litres of synthetic crude oil into the river and the surrounding environment.

Gogama train derailment

Wallbridge’s letter said the claim against CN Rail was filed back in July and that there are indications that the clean-up of the oil spill in the area is not properly done yet.

“We are advised by Fred Stanley of Walters Forensic Engineering that the cleanup continues notwithstanding CN and the Ministry of the Environment’s view the oil spill cleanup is complete,” said the letter.

Wallbridge went on to suggest that more environmental testing would be needed early next year.

“We are of the view that next spring may be an appropriate time to review the work that has been done and undertake independent testing. We have spoken to the Ministry of Environment’s legal counsel about testing and have indicated that we anticipate their cooperation in reviewing the overall cleanup.”

Wallbridge also advised that his firm has indicated that the timetable for the class action should be “held in abeyance” pending a review of the cleanup in May and June of 2018.

He said his firm elected to proceed by class action to preserve the limitation period of two years from the date of the occurrence. The class action serves to suspend the limitation period during the certification process, the letter said.

The Gogama-Makami River derailment was the second CN oil train derailment in that area in the winter of 2015. Both occurred along the section of the CN mainline known as the Ruel Subdivision. Another train hauling tank cars had derailed three weeks previous, on Feb. 14, 2015, in a remote bush and wetlands area, about 35 kilometres north of Gogama.

Canada’s Transportation Safety Board filed a report in August saying that a broken section of rail was the cause of the derailment at the Makami River bridge.

Advance Technology Camera spots hidden Oil Spills

As reported in the New Scientist, a new kind of polarising camera is available that can detect otherwise invisible oil sheens.

Like many oil imagers, the Pyxis camera sees the infrared radiation emitted by all objects.  That is important because there is often a temperature difference between oil and water.  However, if there isn’t one, thermal imagers don’t work.  So the Pyxis also detects differences between the way oil and water scatter light.  Thanks to this differing polarisation, it works not only when the oil and water are the same temperature – but also in pitch darkness.

Infrared polarimetry has been used in astronomy to help identify distant stellar objects. Polaris Sensor Technologies, based in Alabama, has modified the technology for a new use.

“The optical system and the physics behind it are very complex,” says David Chenault, President of Polaris Sensor Technologies.  “We started building infrared polarimeters several decades ago, but they were bulky and not capable of looking at dynamic scenes.” Only in the past few years did it become possible to significantly shrink the sensor – now roughly the size of a fist – and make it capable of imaging moving scenes. That is important for detecting oil on water.

The new camera can see spills invisible to the naked eye from 2 kilometres away.  Its size means it can be mounted on a small drone or other robot.

Doug Helton of the National Oceanic and Atmospheric Administration Emergency Response Division says these cameras could augment NOAA satellite networks, which detect and track suspected oil spills.  While they can spot even small spills, visual confirmation is crucial to rule out false positives. “Wind shadow may look like an oil slick,” he says.

Confirmation is usually done by people in a helicopter or plane, so that is where a drone-mounted camera could save a lot of time.

The camera can also spot and track oil washed up on beaches. Typically, this is a time-consuming task that must be done by people on the ground.

The sensor passed extensive tests with crude oil and diesel in different wave conditions at the massive Ohmsett test facility pool in New Jersey and at an actual spill off Santa Barbara, California, in 2015.  Russell Chipman at the University of Arizona says this is a significant development. “The costs of polarimeters are decreasing,” he says, and the miniaturisation and commercialisation of infrared polarimetric sensors means this technology can now be deployed widely to detect all kinds of oil slicks.

While Polaris is currently concentrating on oil detection, more applications for the camera are likely to be discovered when it goes into mass production, anticipated early next year.

 

When Is a Discharge to Groundwater Subject to the U.S. Clean Water Act? Can You Say “Significant Nexus”?

By Seth Jaffe, Foley Hoag LLP

Whether the United States Clean Water Act regulates discharges to groundwater has been a topic of significant debate.  At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that all of the courts of appeal that have addressed the issue have concluded that it does not.  As I have noted, the problem with the “yes” answer is that pretty much all groundwater eventually discharges to surface water, making all such discharges subject to the CWA.  How can that be, given that groundwater is not considered to be “waters of the United States?”

Chief Judge Waverly Crenshaw recently addressed the issue in Tennessee Clean Water Network v. TVA.  Judge Crenshaw’s solution was creative – meaning he pretty much made up out of whole cloth.  That doesn’t necessarily mean that it’s wrong, however.

The case involves coal ash management at the TVA’s Gallatin plant.  Some of the – unlined – ponds directly abut the Cumberland River.  The plaintiff citizen groups brought claims under the CWA, alleging that TVA was discharging pollutants to the River – via groundwater – without an NPDES permit.  They requested an injunction requiring that the TVA remove the coal ash from the ponds, at a cost of $2 billion.

Gallatin power plant, operated by the Tennessee Valley Authority in mid-Tennessee on the north bank of the Cumberland River. Location of the main coal-burning facility is indicated by the icon and label.

Judge Crenshaw was clearly frustrated by an absolutist position on either side.  Clearly, he does not think that any link between groundwater and surface water, no matter how attenuated, can be enough for jurisdiction to attach.  On the other hand, he was also trying to reckon with the specific case in front of him.  As he saw it, the Gallatin ash ponds were a complete environmental mess.  They immediately abut the Cumberland River, clearly a water of the United States.  Can the outcome really be different if the ponds discharge directly to the River than if they discharge to groundwater 10 feet from the River, where that groundwater then discharges to the river?

His solution?

the Court concludes that a cause of action based on an unauthorized point source discharge may be brought under the CWA based on discharges through groundwater, if the hydrologic connection between the source of the pollutants and navigable waters is direct, immediate, and can generally be traced.

I confess I like this solution, because it is practical and will generally yield reasonable results.  It avoids either effectively regulating all groundwater under the CWA or having to conclude that the CWA can’t reach situations such as the Gallatin ash ponds.

The problem?

There’s no textual support for this solution in the CWA.  To me, this test sounds a lot like Justice Kennedy’s “significant nexus in Rapanos.  There too, his position received a lot of support at a practical level, while many commentators noticed that the CWA says nothing about a “significant nexus.”

We all know how well that’s worked out.

This article was first published in Law and the Environment, a blog from Foley Hoag LLP.

______

About the Authors

Seth D. Jaffe

A partner at Foley Hoag, Seth Jaffe is recognized by Chambers USA, The Best Lawyers in America and Massachusetts SuperLawyers as a leading… MORE

Kathleen Brill

Kathleen Brill is an Associate practicing in the Administrative Department of Foley Hoag’s Boston office. Before joining Foley Hoag, Kathleen had considerable experience…MORE

 

New spill rules tag transport companies with response, recovery costs in B.C.

As reported by Dirk Meissner of the Canadian Press, the Government of British Columbia has introduced pollution prevention regulations to hold transport companies moving petroleum products across the province responsible for the costs of responding to and cleaning up spills.

Environment Minister George Heyman said recently that the new regulations will take affect at the end of October and apply to pipeline, railway and truck company owners and transporters moving more than 10,000 litres of liquid petroleum products.

The rules increase responsibility, transparency and accountability for operators who transport potentially dangerous products through B.C., he said.

“I would hope that business doesn’t believe that individual members of the public through their tax dollars should be responsible for cleaning up spills they incur in the course of doing business and making a profit.”

The aim of the new rules is to prevent spill sites from being left contaminated for months and sometimes years, Heyman said, noting companies will be required to submit spill response and recovery plans ahead of moving their products.

“Most people subscribe to the polluter pay principle,” he said. “These regulations also require that spill contingency plans be put into place and that recovery plans and reporting plans be implemented in the case of a spill. That’s just reasonable.”

CN Rail said in a statement that it continues to work with the B.C. government and its industry partners on emergency response and preparation plans. The railway transports oil and numerous other products, including grain, across B.C.

“Emergency and spill response preparation and training is an important part of our business,” the statement said. “CN has in place emergency response plans and conducts spill and emergency response training with stakeholders across our network.”

The B.C. Trucking Association said in a statement that it supports the province’s new rules.

“We have been actively engaged in working with the government on the development of these regulations because the safety of our drivers, the public and the environment is our number one priority,” the statement said.

New pollution prevention regulations will hold transport companies and pipeline operators moving petroleum products across British Columbia responsible for spill response and recovery costs. A pipeline at the Westridge Marine Terminal in Burnaby, with an oil tanker in dock on Burrard Inlet.

Last spring, the previous Liberal government amended the Environmental Management Act to include some of the new regulations, but Heyman said he further tweaked the polluter pay regulations to ensure annual public reporting by the government.

He said he also shortened the deadline for operators to put their spill contingency plans in place to one year for trucking companies and six months for railways and pipelines.

The new rules do not apply to marine vessels carrying petroleum products along the B.C. coastline.

“Marine spills are regulated by the federal government but there is some jurisdiction for the province if a marine spill ends up washing onto the shoreline of B.C.’s jurisdiction or the seabed,” Heyman said.

The province is developing a strengthened marine response and recovery program that complements federal spill regulations, he added.

The new regulations come on the one-year anniversary of a fuel spill off B.C.’s central coast, where a tug sank, spilling more than 100,000 litres of diesel into waters near the Great Bear Rainforest.

Marilyn Slett, chief of the Heiltsuk First Nation, said the sinking of the tug, Nathan E. Stewart, has had devastating social and economic impacts on her community.

A valuable fishing area remains closed a year after the spill and many Heiltsuk face the prospect of a second year without revenue from the area’s valuable shellfish species, she said.

by Dirk Meissner, The Canadian Press

Technology to prevent rail disasters is in our hands

Author: Chris Bachmann, Assistant professor, Department of Civil and Environmental Engineering, University of Waterloo

As the trial of the 2013 Lac-Megantic rail disaster begins, new policies and practices that aim to employ better technology could help avoid similar disasters in the future.

The Transportation Safety Board (TSB) found more than 18 distinct causes and contributing factors in the Lac-Megantic derailment investigation, which makes the likelihood of this type of accident seem nearly impossible.

An unattended 74-car freight train carrying crude oil ran away and derailed, resulting in the deadly fire and explosion in Lac-Mégantic, Quebec, in July 2013. (Photo Credit: CBC)

Yet other derailments in Canada involving dangerous goods would soon follow in 2014 in Plaster Rock, N.B. and Clair, Sask., and two incidents in 2015 in Gogama, Ont.

This suggests that we must be mindful of the connection between human interactions and technology and how each will continue to underlie many causes and contributing factors of future incidents.

As a civil engineering professor who researches transportation infrastructure, dangerous goods and risk, I see several new developments and changes to technology and policy that can help to reduce future accidents.

Safer tank car standards

The type of tank cars involved in the Lac-Megantic accident (“Class 111”) were known to be vulnerable to failure, even in low-speed accidents (e.g., Cornwall, Ont. in 1999).

After Lac-Megantic, Canada and the United States developed a more robust tank car standard, Class 117. This new standard features improved puncture resistance, structural strength and fractural resistance.

Despite these improvements, Canadian and U.S. regulations will still allow Class 111 tank cars to be used for the transport of certain dangerous goods until mid-2025.

Even so, Canada accelerated the phase-out of the older Class 111 tank cars from being used for crude oil service in Canada as of Nov. 1, 2016, under Protective Direction 38.

Enhanced braking

In addition to new tank car standards, the U.S. is requiring enhanced braking standards on trains carrying flammable goods.

Any train with a continuous block of 20 tank cars loaded with a flammable liquid, or 35 or more tank cars loaded with a flammable liquid dispersed throughout a train, must have a functioning two-way end-of-train (EOT) device — an electronic unit that can be mounted on the end of a freight train instead of a caboose — or a distributed power (DP) braking system, which spreads braking across different points throughout a train.

Furthermore, any train with 70 or more loaded tank cars containing flammable liquids travelling at speeds greater than 48 km/h must be operated with an electronically controlled pneumatic (ECP) braking system by May 1, 2023.

In short, these technologies enable more controlled braking behaviour through a more responsive and uniform application of brake pressure. Benefits would include shorter stopping distances, lower risks of derailment and lower pile-up effects in the event of a derailment.

More information sharing

Technology also allows more information sharing for better decision-making. For example, Protective Direction No. 36 in Canada requires railways to provide municipalities with dangerous goods reports, including information on the number of unit trains, percentage of railway cars transporting dangerous goods, information on their nature and volume and number of trains.

This information is intended to inform emergency planning and responses.

The U.S. is also requiring more accurate classification of unrefined petroleum-based products to ensure proper classification, packaging and record-keeping through a documented sampling and testing process. This information is to be made available to the Department of Transportation upon request.

Human factors

The technology to prevent rail disasters is in our hands — just as it was in 2013. While these and future technologies are likely to reduce the risks of transporting dangerous goods across Canada and the United States, the interactions between humans and other elements of the system — the “human factors” — will remain predominant.

As we now know in the Lac-Megantic accident, the train carrying 7.7 million litres of crude oil sped toward the small Quebec town at 104 km/h before derailing, killing 47 people in the resulting fire and explosions on July 6, 2013.

Hours before derailing, the train was parked and left running on the main track in Nantes, Que., awaiting departure. But shortly after the engineer parked the train, a locomotive engine caught fire and was turned off by the Nantes fire department.

Without power from the running locomotive engine, air slowly leaked from the air brake system. An insufficient number of handbrakes were applied and the train eventually began rolling downhill on its final journey toward Lac-Megantic.

Some of the causes and contributing factors in the Lac-Megantic rail disaster were not technical failures so much as they were failures of humans to properly interact with technology: To properly maintain a locomotive engine, to have knowledge of interactions between locomotive engines and air brake systems and to properly set and test the effectiveness of handbrakes.

Although technical standards were less stringent in 2013, technology did not fail us. In many of the causes and contributing factors of Lac-Megantic, it is evident that we failed to understand and interact with our technology.

______________________________

This article was originally published on The Conversation. Disclosure information is available on the original site. To read the original article:

https://theconversation.com/technology-to-prevent-rail-disasters-is-https://theconvers

About the Author

Chris Bachmann is an Assistant professor, Department of Civil and Environmental Engineering, University of Waterloo.  His research interests include the interaction between transportation and economics, trade, energy, transportation network resiliency/criticality/robustness/vulnerability, risk, dangerous goods movement, transport economics, transport project and policy evaluation.

Alberta Coal mine fined $1 million for Fisheries Act Violations

Sherritt International Corporation (Sherritt) recently pleaded guilty in the Provincial Court of Alberta to three counts of contravening the Canadian Fisheries Act.  Sherritt was sentenced to pay $1,050,000.  As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

The Coal Valley Mine, which was owned by Sherritt, from 2001 to 2014, is an open-pit coal mine located 90 km south of Edson, Alberta.  The Coal Valley Mine is a 20,660 Ha. surface mine. The mine operates both truck/shovel and dragline pits and utilizes a dragline for coal removal. The area has a long history of mining and the Coal Valley Mine was opened in 1978 to supply coal to Ontario Hydro and for overseas export.

Coal is uncovered at the mine using the two draglines  and two truck/shovel fleets. The exposed coal is hauled from the mine to the heavy media wash plant where the waste is removed and then loaded on trains to be shipped to the ports. Current annual production of the mine is 3.0 million tonnes and the plant has capacity to operate at 4.0 million tonnes per year.

On August 3rd, 2012, Environment and Climate Change Canada (ECCC) enforcement officers visited the mine in response to a spill report, and they determined that effluent being deposited from a waste-water pond was deleterious to fish. ECCC enforcement officers subsequently issued a direction under the Fisheries Act, which resulted in the deposit being stopped.  Further investigation by ECCC determined that there were two previous releases of deleterious effluent from waste-water ponds, on July 27th, 2011.

The releases went into tributaries of the Athabasca River, including the Erith River portions, which are identified by the Government of Alberta as “ecologically significant habitat” for Athabasca rainbow trout, a species at risk.

The waste-water ponds at the Coal Valley Mine collected surface water that was treated with a chemical flocculant to remove suspended sediment before being discharged.  Both suspended sediment and an excess of flocculant can be toxic to fish.

Of the $1,050,000 fine, $990,000 will be directed to the Environmental Damages Fund (EDF).  The EDF was created in 1995 by the Government of Canada. The fund follows the polluter pays principle, and it ensures that court-awarded penalties are used for projects with positive environmental impacts.

Teck Coal Ltd. fined $1.4 million for Toxic Release

Teck Coal Limited recently pleaded guilty to three counts of contravening the Canadian Fisheries Act in the Provincial Court of British Columbia.   The court ordered the company to pay a penalty of $1,425,000, which will be directed to the federal Environmental Damages Fund, and used for purposes related to the conservation and protection of fish or fish habitat or the restoration of fish habitat in the East Kootenay region of B.C.  Additionally, Teck Resources will post information regarding this conviction on its website.  As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

Teck Coal’s Line Creek Operations is located in southeastern British Columbia.  On October 17th, 2014, enforcement officers from Environment Canada and Climate Change (ECCC) launched an investigation following a report that fish had been found dead in ponds connected to Line Creek which runs adjacent to the coal mining operation.  During the investigation, ECCC enforcement officers found that the effluent from the water treatment facility going into Line Creek was deleterious to fish.  Numerous dead fish were found in the Line Creek watershed as a result of this discharge, including Bull trout.  Bull trout are identified as a species of special concern in this area of British Columbia.

The company has a permit to discharge treated effluent into the Line Creek, however in the fall of 2014, there was a malfunction of the treatment system.  As a result, toxic levels of nitrate, phosphorus, selenium and hydrogen sulfates entered the Line Creek, subsequently killing over 74 fish.

Line Creek is identified by the Government of British Columbia as part of a “Classified Water” system.  This provincial classification means that the water system is seen to have a high fisheries value and it requires special fishing licenses.

Teck’s West Line Creek Active Water Treatment Facility cost $120 million to construct.  The facility treats up to 7,500 m3 (2 million gallons) of water per day – enough to fill three Olympic-sized swimming pools.  Selenium concentrations are reduced by about 96% in treated water, to below 20 parts per billion.  Nitrate concentrations are reduced by over 99% in treated water, to below 3 parts per million.

Teck’s West Line Creek Active Water Treatment Facility

Teck’s Line Creek operation produces steelmaking coal – also called metallurgical coal or coking coal — which is used to make steel.  The processed coal is transported by sea to the Asia-Pacific region and elsewhere.  The current annual production capacities of the mine and preparation plant are approximately 3.5 and 3.5 million tonnes of clean coal, respectively. Proven and probable reserves at Line Creek are projected to support mining at planned production rates for a further 23 years.

Fine for Illegal Storage of PCBs

Recently in a Quebec court, Mr. Isaac Gelber pleaded guilty to three charges related to the illegal use/storage of PCBs and he was fined $25,500 under the Canadian Environmental Protection Act, 1999.

The investigation, led by Environment and Climate Change Canada, showed that Mr. Isaac Gelber had committed several violations to the Act, namely:

  • Using transformers containing polychlorinated biphenyls (PCBs) thereby violating the PCB Regulations;
  • Failing to comply with the environmental protection compliance order, issued by an officer in January 2013, to dispose of three (3) transformers containing more than 500 mg/kg of PCBs
  • Knowingly making false or misleading statements

Polychlorinated biphenyls (PCBs) used to be very popular in a wide range of industrial and electrical applications. They were excellent fire resistant coolants and insulating fluids in transformers, capacitors, cables, light ballasts, bridge bearings, and magnets, among many other things.  Unfortunately, they turned out to be persistent and toxic to humans and the environment. PCBs can:

  • Travel long distances and deposit far away from their sources of release
  • Accumulate in the fatty tissues of living organisms
  • Cause complications like cancer and birth defects
  • Potentially disrupt immune and reproductive systems and even diminish intelligence.

Amended PCB Regulations under the Canadian Environmental Protection Act, 1999 (CEPA), came into force on September 5, 2008. The new regulations set phase out dates for in –use PCB equipment, as well as rigorous labelling and reporting requirements.  They also require prompt and proper disposal of PCB equipment, once it is no longer in active use.

The Department of Environment and Climate Change enforcement officers conduct inspections and investigations under the Canadian Environmental Protection Act, 1999.  They ensure that regulated organizations and individuals are in compliance with environmental legislation.

 

U.S. Federal Appeals Court finds Exxon not quality for Oil Spill in Arkansas

As reported in Inside Climate News, a federal appeals court has let ExxonMobil largely off the hook for a 2013 pipeline spill that deluged a neighborhood in Mayflower, Arkansas, with more than 200,000 gallons of heavy tar sands crude oil, sickening residents and forcing them from their homes.

The Fifth Circuit Court of Appeals on Monday overturned federal findings of violations and the better part of a $2.6 million fine imposed on Exxon’s pipeline unit in 2015 by the U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA). The regulator had accused the company of failing to maintain the decades-old Pegasus Pipeline and to prioritize testing of a segment of older, high-risk pipe where a 22-foot gash eventually opened along a metal seam.

Oil Spill – Mayflower , Arkansas

Exxon challenged the violation and fine, arguing there was no proof its actions contributed to the spill and saying it had conducted adequate testing of the pipeline as required by law. The appeals court agreed, saying the company met its legal obligation when it “conducted a lengthy, repeated and in-depth analysis” of the pipeline and its risks.

“The unfortunate fact of the matter is that, despite adherence to safety guidelines and regulations, oil spills still do occur,” the court concluded. It called PHMSA’s determination that the company failed to consider risks “arbitrary and capricious.”

In October 2015, PHMSA sent the company a 46-page order, citing nine violations. Ultimately, Exxon challenged six of those violations. The court sided with Exxon on five of them, saying the company took sufficient steps to analyze risks along the pipeline. On one violation—accusing Exxon of saying it had run a certain test on the pipeline when it had not—the court agreed with PHMSA, but it noted the company’s misrepresentation was not a “causal factor in the Mayflower Accident,” as the agency asserted. The court said it would ask the agency to re-evaluate an appropriate penalty for that violation. Exxon has also reached separate settlements with homeowners and governments related to the pipeline spill.

The pipeline consists of three separate sections—built in 1947, 1954 and 1973—that were joined as one system in 2005 and 2006 to carry oil along an 859-mile stretch, southward from from Pakota, Illinois, to Nederland, Texas. The segment that burst is in the oldest section of the pipeline and is made of “low-frequency electric-resistance welded” (LF-ERW) steel pipe, made before 1970 and known to have a higher risk of rupturing along its lengthwise seams because of a manufacturing defect.

The Pipeline Safety Act requires pipeline operators to create “Integrity Management Programs,” which include a written plan to assess pipelines and prioritize certain sections for testing based on risks. The regulations spell out the methods pipeline operators can use to perform these “integrity assessments.” If the pipe is LF-ERW pipe that’s susceptible to “longitudinal seam failure,” the assessment methods have to be capable of detecting corrosion and assessing the strength of the seams. But the law isn’t clear how operators should determine if pipelines are likely to suffer “longitudinal seam failure” in the first place.

The court said that the “pipeline integrity regulations themselves did not provide ExxonMobil notice that the pipeline’s leak history compelled it to label the LF-ERW pipe susceptible to longitudinal seam failure.”