Rideau Canal’s downtown stretch declared Contaminated Site

As reported in the Ottawa Citizen, a portion of the historic Rideau Canal that runs through downtown Ottawa is now on a list of contaminated federal sites.  The announcement was made recently by Parks Canada.

Parks Canada said the results were not unusual in such waterways, and this stretch of the canal, located in the middle of a major urban area, has a long history of industrial use.

Rideau Canal (Photo Credit: Fred Chartrand/Canadian Press)

That designation is the result of tests done on sediment from the canal bed between the Ottawa Locks and Bronson Avenue.  The tests were conducted after the discovery of heavy metals such as lead and cadmium, as well as polycyclic aromatic hydrocarbons, which have been linked to various cancers.

The latest round of tests was conducted to identify the extent of the contamination, and to be able to put in place measures to protect the environment, Parks Canada said.

Parks Canada calls the discovery of contaminated sediment “not unexpected” given the long history of industrial use and the urban location of that part of the canal. Over the last century the downtown stretch of the canal was home to a paint factory and has seen both trains running along its edge and steam-powered boats hauling industrial goods.

Parks Canada, the federal department in charge of the canal, said it would work with the City of Ottawa and the National Capital Commission to find ways to deal with the affected section of the UNESCO World Heritage Site.

The risk to human health is low, according to the department, as long as people don’t have direct contact with the sediment at the bottom of the canal.

Parks Canada temporarily halted repairs along a section of the canal after workers turned up canal-bed toxins while laying bricks in the Fall of 2016.

Repairs resumed in the winter but were restricted so as not to disturb the sediment.

Parks Canada said future construction work would proceed with mitigation measures in place to protect the environment and public safety.

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.

New Canadian Soil Quality Guidelines for Methanol

The Canadian Council of Ministers of the Environment (CCME) recently published an updated the Canadian Soil Quality Guidelines for the Protection of Environmental and Human Health: Methanol.

Canadian environmental quality guidelines are numerical concentrations or narrative statements recommended to provide a healthy, functioning ecosystem capable of sustaining the existing and likely future uses of the site by ecological receptors and humans.  Canadian soil quality guidelines can be used as the basis for consistent assessment and remediation of contaminated sites in Canada. The guidelines in the report were derived according to procedures described in A Protocol for the Derivation of Environmental and Human Health Soil Quality Guidelines (CCME 2006).  According to this protocol, both environmental and human health soil quality guidelines are developed and the lowest value generated from the two approaches for each of the four land uses is recommended by the Canadian Council of Ministers of the Environment (CCME) as the Canadian Soil Quality Guidelines (CCME 2006).

Sufficient data were available to develop soil quality guidelines for methanol protective of human health, in accordance with the soil protocol.  The human health soil quality guidelines for methanol are 4.6 mg/kg for coarse soil and 5.6 mg/kg for fine soil for all four land uses.  Human health soil quality guidelines were calculated for soil ingestion, inhalation of indoor air, and protection of groundwater for drinking water. The limiting pathway in the calculation of human health guidelines was drinking water.

Sufficient data were available to develop soil quality guidelines for methanol protective of environmental health, in accordance with the soil protocol.  The environmental health soil quality guidelines for methanol are: 7.7 mg/kg for coarse soil and 190 mg/kg for fine soil for all four land uses. Environmental health soil quality guidelines were calculated for ecological direct contact and protection of groundwater for aquatic life.  The limiting pathway in the calculation of environmental health guidelines was aquatic life.  Since it was possible to calculate both human health and environmental soil quality guidelines for methanol, the overall methanol soil quality guidelines are the lower of the two, which are 4.6 mg/kg for coarse soil and 5.6 mg/kg for fine soil for all four land uses.

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.

 

United States: Protect Your Company from Waste Liability

Written by: Viggo C. Fish, McLane Middleton

Question: My company is purchasing real estate, and we are concerned there may be existing environmental contamination on the property. What steps can we take to protect ourselves from liability?

 Answer:  Conducting environmental due diligence correctly is essential to protect purchasers of potentially contaminated commercial properties from possible liability far exceeding the value of the property. Strict hazardous waste regulation exists at the federal, state and, sometimes, even the municipal level.

Under both the U.S. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly known as Superfund, and corresponding state law, owners of contaminated properties are liable, without regard to fault, for environmental conditions on the property, whether or not the owner was involved in any way in the initial release of the contamination. There are, however, steps prospective purchasers can take to limit this liability.

Hazardous waste laws allow purchasers of potentially contaminated property to conduct the necessary level of investigation, and, if performed correctly, limit their liability.

For example, the Superfund All Appropriate Inquiry (AAI) rule provides for certain limitations on liability of a so-called “innocent purchaser” if such an investigation is completed before the acquisition.

The innocent purchaser provision allows a purchaser who, under certain circumstances, did not know and “had no reason to know” that the property was contaminated to avoid later Superfund liability. Similar rules apply to state hazardous waste liability. Importantly, to avoid that liability, the purchaser must be able to establish it “carried out all appropriate inquiries … into the previous ownership and uses of the facility in accordance with generally accepted good commercial and customary standards and practices.”

Careful compliance with AAI requirements can be used later to support the “innocent landowner” defense to liability of the new owner. The burden of proof is on the purchaser to establish it is entitled to this and other such landowner liability defenses.

The key element of proof is the Environmental Site Assessment (ESA).  Buyers of commercial property typically conduct a Phase I ESA to evaluate the potential for contamination in accordance with ASTM Standard E1527-13.

Following the ASTM Standard demonstrates compliance with the EPA’s AAI rule, that protects prospective purchasers of property from liability under CERCLA.  This area of the law is unusually complicated, and it is therefore usually necessary to have the advice and assistance of qualified environmental consultants and environmental legal counsel to assure that the legal and financial protections against hazardous waste liability will actually be available, if needed in the future.

This article was first published in Know the Law, a bi-weekly column sponsored by McLane Middleton, Professional Association.  Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation. 

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About the Author

Vigo C. Fish is an Environmental and Energy Associate in the Administrative Law Department where he assists clients with a wide variety of energy and environmental matters.  Viggo received his J.D., cum laude, and Master of Energy Regulation and Law (MERL) degree, magna cum laude, from Vermont Law School (2015), and his B.A. in English from Providence College (2010). While in law school, Viggo worked as a Research Analyst at Vermont Law School’s Institute for Energy and the Environment and as a Clinician in the Energy Clinic. In addition, Viggo worked as a Markets and Policy Intern in the National Renewable Energy Laboratory’s Strategic Energy Analysis Center.

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.

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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

 

Degrees in urban revitalization, brownfield redevelopment, and environmental restoration

Revitalization News recently assembled a catalog of 38 undergrad, graduate and certificate courses in urban revitalization, brownfield redevelopment, and environmental restoration worldwide.  The courses are from institutions from all over the world, including the United States and Canada.  The catalog has something for almost anyone ranging from an online course on Landscape Restoration for Sustainable Development , a Master’s degree in technical brownfields revelopment at to the Technical University of Ostrava in the Czech Republic, to a B.Sc. in ecological restoration at Trent University and Fleming College in Ontario.  A complete list of the courses can be found at https://revitalizationnews.com/training-education.

Students participating in 1-YEAR graduate certificate in ecological restoration (Niagara College, Ontario, Canada)

PF Résolu Canada Inc. is fined $100,000 for Environmental Offence

PF Résolu Canada Inc., a North American company in the forest products industry, was recently fined $100,000 after pleading guilty to violating subsection 36(3) of the Canadian Fisheries Act.

The investigation, led by Environment and Climate Change Canada, revealed that PF Résolu Canada Inc. had committed a violation to the Act, namely the deposit of a deleterious substance in waters frequented by fish.  The amount of the fine will be directed to the Environmental Damages Fund.

The deposit of a deleterious substance was into Comeau Creek situated in North Shore of Baie Comeau.  PF Résolu Canada Inc.’s Baie Comeau newsprint mill is located on the creek.

PF Résolu Canada Inc., also known as Resolute Forest Products (RFP), is a global leader in the forest products industry with a diverse range of products, including market pulp, tissue, wood products, newsprint and specialty papers, which are marketed in over 70 countries.

The company owns or operates some 40 manufacturing facilities, as well as power generation assets, in the United States and Canada.

Resolute has third-party certified 100% of its managed woodlands to internationally recognized sustainable forest management standards.  Resolute has received regional, North American and global recognition for its leadership in corporate social responsibility and sustainable development, as well as for its business practices.

On the environmental management section of the company website, RFP states that in 2016, t 29 environmental incidents were recorded across the company.  The company states that it will continue to work toward a long-term goal of zero incidents. The 2017 target the company set for itself is 38 incidents or less.

In its financial statements, the company is required to record accidental releases of hazardous substances significant enough to risk damage to human and environmental health, or that have potential liability and reputational consequences. Between 2012 and 2016, Resolute recorded no such incidents. The company is also required to disclose in our published financial statements any fines of material significance for non-compliance with environmental laws and regulations, none of which were reported between 2012 and 2016.

The Baie-Comeau facility produces newsprint at a capacity of 319,000 tonnes per year.  There are 216 employees at the facility.

 

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

U.S.: FEMA Releases Refreshed National Incident Management System Doctrine

The U.S. Federal Emergency Management Agency (FEMA) recently released the refreshed National Incident Management System (NIMS) doctrine.  NIMS provides a common, nationwide approach to enable the whole community to work together to manage all threats and hazards. NIMS applies to all incidents, regardless of cause, size, location, or complexity.

In April and May 2016, FEMA held a 30-day National Engagement Period, in which stakeholders submitted nearly 3,000 comments and provided feedback on the draft NIMS update, ensuring that it reflects the collective expertise and experience of the whole community.

FEMA will host a series of 60-minute webinars with stakeholders to discuss the updates in the refreshed NIMS and answer questions related to NIMS. All webinars are open to the whole community. For webinar dates, times, and registration information, please go here: https://www.fema.gov/latest-news-updates.

The refreshed NIMS retains key concepts and principles from the 2004 and 2008 versions, while incorporating lessons learned from exercises and real-world incidents, best practices, and changes in national policy.

Download the refreshed NIMS here: www.fema.gov/nims-doctrine-supporting-guides-tools

The refreshed NIMS:

  • Retains key concepts and principles of the 2004 and 2008 versions of NIMS;
  • Reflects and incorporates policy updates and lessons learned from exercises and real-incidents;
  • Clarifies the processes and terminology for qualifying, certifying, and credentialing incident personnel, building  a foundation for the development of a national qualification system;
  • Clarifies that NIMS is more than just the Incident Command System (ICS) and that it applies to all incident personnel, from the incident command post to the National Response Coordination Center;
  • Describes common functions and terminology for staff in Emergency Operations Centers (EOC), while remaining flexible to allow for differing missions, authorities, and resources of EOCs across the nation; and
  • Explains the relationship among ICS, EOCs, and senior leaders/policy groups.

NIMS guides all levels of government, nongovernmental organizations (NGO), and the private sector to work together to prevent, protect against, mitigate, respond to, and recover from incidents. NIMS provides stakeholders across the whole community with the shared vocabulary, systems, and processes to successfully deliver the capabilities described in the National Preparedness System. NIMS defines operational systems, including the Incident Command System (ICS), Emergency Operations Center (EOC) structures, and Multiagency Coordination Groups (MAC Groups) that guide how personnel work together during incidents. NIMS applies to all incidents, from traffic accidents to major disasters.

Please refer to the descriptions below to gain an understanding of where to locate certain information.

NIMS Doctrine Supporting Guides & Tools: The National Integration Center develops supporting guides and tools to assist jurisdictions in their implementation of the National Incident Management System (NIMS).

Training: The NIMS Training Program defines the national NIMS training program. It specifies National Integration Center and stakeholder responsibilities and activities for developing, maintaining and sustaining NIMS training.

Resource Management & Mutual Aid: National resource management efforts aid a unified approach in building and delivering the core capabilities across all five mission areas (Prevention, Protection, Mitigation, Response and Recovery).  Effective resource management is founded on the guiding principles of the NIMS.

Implementation Guidance & Reporting: Federal Departments and agencies are required to make adoption of NIMS by local, state, territorial, and tribal nation jurisdictions a condition to receive Federal Preparedness grants and awards.

NIMS Alerts: The National Integration Center announces the release of new NIMS guidance, tools, and other resources through the distribution of NIMS Alerts.

FEMA NIMS Regional Contacts: The FEMA Regional NIMS Coordinators act as subject matter experts regarding NIMS for the local, state, territorial, and tribal nation governments within their FEMA Region, as well as for the FEMA Regional Administrator and staff.

Incident Command System Resources: The Incident Command System (ICS) is a fundamental element of incident management. The use of ICS provides standardization through consistent terminology and established organizational structures.