Nearly $3 million awarded for R&D of Marine Oil Spill Response Technology by Canadian Federal Government

The Canadian federal government recently announced investments of $2.89 million for four projects to enhance marine incident prevention and responsiveness along Canada’s ocean coastlines.

Centre for Cold Ocean Resources Engineering (C-CORE)

Through its Oil Spill Response Science (OSRS) program, the federal government provided $991,500 to C-CORE, a St. John’s-based research and development company, to increase the efficiency of existing mechanical oil recovery systems for heavy oil products in harsh, cold environments.  The government of Newfoundland and Labrador will also provide $428,500 to the project.

“This project leverages C-CORE’s expertise in analytical modelling, computer simulation and large-scale physical tests to assess and optimize technology performance in harsh environments,” Mark MacLeod, C-CORE president and chief executive officer, said in a statement.

Lab-scale test apparatus for oil recovery

The main intermediate outcome of this project consists of an improved oil spill collection and separation system that can be integrated in an efficient response technique including a specially designed vessel.  The system will be based on the established concepts and proven technologies for recovery of heavy oil spills from sea water in cold and ice prone ocean environments.

The long-term outcome of the project will include specialized vessels with the required detection, storage, and spill removal systems, tested and proven in the real life conditions.

Project partners with C-CORE include Elastec, Eastern Canada Response Corporation Ltd. (ECRC), and InnovatechNL.

University of Toronto

A further $400,000 will go to a University of Toronto project that will develop a sorbent-based direct oil collector (called In-Situ Foam Filtration System or ISFFS) for use in oil spills.  This system will be capable of directly reclaiming the dissolved, emulsified, dispersed, and free oil from marine spill sites.  To meet this objective, the development of advanced functional foams (sorbents), implementing a bench-top system, and design and optimization of in-situ filtration process as a proof-of-concept will be undertaken.

The ISFF will directly collect the oil from the spill site by pumping through oil sorbent bed, which serves as the filtration media.  For this type of foam, there is no need for high oil-sorption capacity thus, functionalizing the foam with toxic and expensive elements can be avoided along with minimizing material costs.  Moreover, the in-situ filtration will make the oil sorption process continuous, simplifies oil collection, making oil spill response quicker and more cost effective.

Project partners include Tetra Tech, Polaris Applied Sciences Inc., Dr. Foam Canada, Gracious Living Innovations Inc., and ShawCor Ltd.

University of Alberta’s Advanced Water Research Lab

The OSRS program will be contributing $600,000 towards a $1.65 million project be undertaken at the University of Alberta.  The project involves the development of an on-board membrane based hybrid oil/water separation system.  If successfully developed, the system will significantly increase the capacity of recovery vessels that physically collect oil spilled at sea, thereby reducing the cost and spill response time for cleanup.  The technology can be directly and easily incorporated into existing rapid deployment spill clean-up systems mounted on ships or barges.  It would be ready to commercialize for manufacturers of existing oil spill clean-up tankers, making the research easy to implement for large or small-scale spills and for potential use in future high-risk areas of development.

BC Research Inc.

Finally, the federal OSRS program committed $925,000 to BC Research Inc., a company with a broad experience in chemical product development, to further develop a hybrid spill-treating agent (STA) that will help slow or prevent the spread of an oil slick on water.

If the R&D project is successful, a hybrid STA will be commercially available that can be used to combat marine oil spills at large scale.  The hybrid STA would have both gelling and herding properties, to prevent or slow down the spreading of an oil slick by rendering it into a thickened (gelled) state, as well as to use it as a herding agent, to facilitate either controlled burn or skimming operations.

Current oil recovery rates for spills on water are estimated to be in the range of 10-20%.  With current STAs, there are few options to prevent or slow down weathering processes, including spreading and dispersion. Delaying the spreading and weathering process would potentially facilitate cleanup and improve the degree/rate of oil removed.

Project partners include NORAM Engineers and Constructors and the University of British Columbia.

Volunteers cleaning Ambleside Beach in West Vancouver, 1973. (Source: John Denniston)

Canadian Government to spend $80 million to Study Oil Spills

Building on the announcements of $3 million in funding for R&D on oil spill response technology, the federal government recently announced it is spending $80-million on oil spill research on preventing spills as well as their effect on the marine environment.

There will be $45.5-million set up for a research program that will foster collaboration among researchers in Canada and around the world, with $10-million a year to bring scientists together to study how oil spills behave, how to clean and contain them and how to minimize environmental damage. 

The Centre for Offshore Oil, Gas and Energy Research in Halifax will also get some of the $16.8-million in funding for new scientists and specialized equipment.  It will support oil spill research to better understand how oil degrades in different conditions.

Another $17.7-million will be used to fund research and development of enhanced ocean computer models of winds, waves and currents to allow responders to better track spills.

The funds are part of the $1.5-billion Oceans Protection Plan, which is aimed at developing a marine safety system.

 

U.S. EPA Targets Superfund Sites for Immediate Clean-up

The United States Environmental Protection Agency (U.S. EPA) recently released a list of Superfund Sites targeted for immediate, intense action, as of December 8th 2017. The list is a response to July’s Superfund Task Force Recommendations. The U.S. EPA considers the sites listed to benefit from Administrator Scott Pruitt’s direct engagement, requiring timely resolve of specific issues to streamline cleanup and redevelopment and protect human health and the environment.

3D Image of NAPL contamination at the B.F. GOODRICH facility in Calvert City, KY

The list, spanning all ten EPA regions across the United States, with accompanying plans, issues, and categorizations associated with each site, can be found here.

As reported in the Washington Post, the push is part of Administrator Scott Pruitt’s promise to prioritize the decades-old cleanup program, even as the Trump administration shrinks the size and reach of the EPA. The 21 sites highlighted by the agency span the country, from a former tannery site in New Hampshire to a contaminated landfill from the World War II-era Manhattan Project in St. Louis to an abandoned copper mine in Nevada.

“By elevating these sites, we are sending a message that EPA is, in fact, restoring its Superfund program to its rightful place at the center of the agency’s mission,” Pruitt said in a statement. “Getting toxic land sites cleaned up and revitalized is of the utmost importance to the communities across the country that are affected by these sites.”

The U.S. EPA said that it developed the list using sites “where opportunities exist to act quickly and comprehensively.” Notably, the agency also acknowledged that “there is no commitment of additional funding associated with a site’s inclusion on the list.”

Char Technologies Ltd. Announces Acquisition of the Altech Group

CHAR Technologies Ltd. (“CHAR”) (YES:TSXV) recently announced that it has closed the acquisition of  the Altech Group (“Altech”), which is comprised of  Altech Environmental Consulting Ltd. and Altech Technologies Systems Inc.  Altech provides solutions to environmental engineering challenges.  Founded in 1986, Altech has 12 employees and a diverse and stable client base.  CHAR acquired all issued equity in both Altech Environmental Consulting Ltd., and Altech Technology Systems Inc.  Altech shareholders received 4,523,810 in common shares of CHAR as well as $150,000 in cash.

Bill White, Chairman of CHAR stated that, “The acquisition of the Altech Group adds over 30 years of experience in environmental technologies and professional engineering consulting” and that “Altech provides CHAR with a growth catalyst to move much of our engineering design in-house, while at the same time allows us to greatly expand our technology solutions offering for industrial clean air and clean water.”

CHAR brings the shareholders of Altech a succession plan and an opportunity to realize value at an optimal time.  According to Alexander Keen, Founder and CEO of Altech, “CHAR brings an exciting future for Altech. Our joint efforts going forward will bring tremendous opportunities”.

The new joint enterprise plans to commercialize a new cleantech solid fuel branded “CleanFyre”.  This product is a GHG neutral coal replacement, generically referred to as biocoal.  CleanFyre will allow large industrial customers the ability to greatly reduce their GHG emissions without significant capital expenditures.  According to Andrew White, CEO of CHAR, “CleanFyre will leverage both Altech’s experience and expertise, and CHAR’s platform pyrolysis technology, the same technology used to create SulfaCHAR, to create a solution with strong market pull and significant growth opportunity.”

About CHAR

CHAR is in the business of producing a proprietary activated charcoal like material (“SulfaCHAR”), which can be used to removed hydrogen sulfide from various gas streams (focusing on methane-rich and odorous air).  The SulfaCHAR, once used for the gas cleaning application, has further use as a sulfur-enriched biochar for agricultural purposes (saleable soil amendment product).

About Altech Group

Altech is a full-service engineering and consulting firm providing energy, environmental, and health and safety services to clients.  Altech specializes in corporate management systems, energy and environmental audits and assessments, contaminated site investigation and remediation, health & safety management, training, and industrial hygiene.  Established in 1986, Altechemploys multi-disciplinary professionals including energy and environmental engineers, scientists, hydrogeologists, geologists, and technicians committed to providing our clients the highest quality service and integrated solutions for business and the environment.

Market Report on the Emergency Spill Response Industry

360 Market Updates recently issued an Emergency Spill Response Market Research Report that highlights key dynamics of North America Emergency Spill Response Market sector.  The Research Report passes on an initial survey of the emergency spill response market including its definition, applications and innovation.  Additionally, the report explores the major market players in detail.  The Research Report provides a detailed overview and discussion the status of the players involved in emergency spill response.  It is also a valuable source of information on trends in the industry including projected growth.

Key questions answered in the Emergency Spill Response Market report include the following:

  • What will the market growth rate of Emergency Spill Response market in 2022?
  • What are the key factors driving the North America Emergency Spill Response market?
  • What are sales, revenue, and price analysis of top manufacturers of Emergency Spill Response market?
  • Who are the distributors, traders and dealers of Emergency Spill Response market?
  • Who are the key vendors in Geographical market space?
  • What are the Emergency Spill Response market opportunities and threats faced by the vendors in the North America Emergency Spill Response market?
  • What are sales, revenue, and price analysis by types, application and regions of Emergency Spill Response market?
  • What are the market opportunities and risks?

There are 15 Chapters to deeply display the North America Emergency Spill Response market.

Chapter 1, to describe Emergency Spill Response Introduction, product type and application, market overview, market analysis by countries, market opportunities, market risk, market driving force;

Chapter 2, to analyze the manufacturers of Emergency Spill Response, with profile, main business, news, sales, price, revenue and market share in 2016 and 2017;

Chapter 3, to display the competitive situation among the top manufacturers, with profile, main business, news, sales, price, revenue and market share in 2016 and 2017;

Chapter 4, to show the North America market by countries, covering United States, Canada and Mexico, with sales, revenue and market share of Emergency Spill Response, for each country, from 2012 to 2017;

Chapter 5 and 6, to show the market by type and application, with sales, price, revenue, market share and growth rate by type, application, from 2012 to 2017;

Chapter 7, 8 and 9, to analyze the segment market in United States, Canada and Mexico, by manufacturers, type and application, with sales, price, revenue and market share by manufacturers, types and applications;

Chapter 10, Emergency Spill Response market forecast, by countries, type and application, with sales, price and revenue, from 2017 to 2022;

Chapter 11, to analyze the manufacturing cost, key raw materials and manufacturing process etc.

Chapter 12, to analyze the industrial chain, sourcing strategy and downstream end users (buyers);

Chapter 13, to describe sales channel, distributors, traders, dealers etc.

Chapter 14 and 15, to describe Emergency Spill Response Research Findings and Conclusion, Appendix, methodology and data source

According to an earlier study by Markets and Markets research firm, the emergency spill response market is estimated to be worth USD 33.68 Billion by 2022.   Markets and Markets research firm hold the view that the emergency spill response market is driven by the increasing international trade and transportation and initiatives taken by government agencies of various countries globally to protect the environment from the adverse effects of pollution by enacting various environmental protection and restoration policies and legislations. In the future, government initiatives to strengthen the response to oil spills on the sea would provide opportunities to the players operating in this market.

Spencer EM Consulting forms Strategic Alliance with Flood Barrier America

Spencer Emergency Management Consulting is recently announced it has formed a strategic alliance with Flood Barrier America, Inc..  Combining experts in flood risk assessment with a suite of world class flood response capabilities in order to provide total solution to clients.

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

Flood Barrier America, Inc. (FBA) provides high quality and practical flood resilience products, services and solutions. FBA does research and collaborates with affiliates and partners that protect against the growing global problem of flooding.

Flood Barrier provided by FBA

 

 

Canada: Courts Struggle to Mix Bankruptcy and Environmental Law – SCC To Hear Redwater Appeal

Article by John GeorgakopoulosGiselle Davidian and Serin Remedios

Willms & Shier Environmental Lawyers LLP

The Supreme Court of Canada (SCC) granted leave to hear the appeal of Orphan Well Association v Grant Thornton Limited.1 The SCC will reconsider whether trustees and receivers in bankruptcy must remediate wells in priority to the claims of secured creditors.

In April 2017, the Alberta Court of Appeal released its decision in Redwater.2 The Court found that the Government of Alberta’s environmental orders for oil well remediation did not have priority over secured creditors in bankruptcy proceedings.

In upholding the lower court’s decision, set out in our previous update, the Court of Appeal added to the “untidy intersection” between bankruptcy proceedings and provincial environmental law. Both Courts concluded that receivers and trustees were permitted to renounce an insolvent debtor’s interest in its licensed assets while selling valuable licensed assets to maximize recovery for secured creditors.

The decision, as it stands, allows receivers and trustees in bankruptcy to disclaim unprofitable assets and not be required to fulfill certain environmental obligations associated with those disclaimed assets.

Recap

The case revolves around the assets of a junior, insolvent oil and gas producer, Redwater Energy Corporation (Redwater).

Orphan Oil Well

When Redwater’s primary secured creditor began enforcement proceedings under the Bankruptcy and Insolvency Act (BIA), Grant Thornton Limited (GTL) was appointed as receiver and trustee.3 Several of Redwater’s oil wells had costs of remediation exceeding the value of the wells. GTL took control of only 20 of 127 Redwater’s assets and disclaimed the oil wells that had onerous environmental abandonment costs.

Alberta oil and gas legislation requires licensees, including trustees, to comply with “end-of-life” rules for oil wells. Where no one is financially capable of remediating and abandoning a well, the well is designated an “orphan well” under Alberta’s Oil and Gas Conservation Act (OGCA).4/em>

The Alberta Energy Regulator (AER) ordered GTL to remediate the disclaimed oil wells before distributing funds to creditors. When GTL indicated that it did not intend to remediate the wells, AER and the Orphan Well Association (OWA) brought applications asking the court to void GTL’s disclaimer of the non-producing wells and order GTL to comply with AER’s orders. AER argued that Redwater’s insolvency and bankruptcy did not affect Redwater’s environmental obligations and that GTL was legally required to discharge those obligations before paying Redwater’s creditors.

GTL brought a cross-application challenging the constitutionality of AER’s stance on GTL’s environmental obligations and seeking approval of the sale of Redwater’s valuable wells.

At issue was whether AER’s orders were provable claims in bankruptcy and therefore subject to bankruptcy proceedings. If AER’s orders were subject to bankruptcy proceedings, other creditor’s claims would take priority. The practical outcome being that the corporation would likely have no means of satisfying its environmental obligations after settling its obligations to other creditors. The cost of remediating the orphan wells would then fall on the Government of Alberta.

As we previously reported, Alberta Court of Queen’s Bench concluded that the applicable sections of the OGCA and Pipeline Act (PA) frustrate the federal purpose of the BIA of managing the winding up of insolvent corporations and settling the priority of claims against them. Based on the doctrine of paramountcy, the OGCA and PA were inoperable to the extent that they conflicted with section 14.06 of the BIA. This section of the BIA exempts a receiver or trustee from personal liability, allowing a trustee and receiver to disclaim assets, and prescribes the priority of environmental remediation costs.

OWRA and AER appealed the decision.

Court of Appeal Decision

The Court of Appeal upheld the lower court decision. The key issue on appeal was the priority and treatment of environmental claims in bankruptcy, and whether environmental claims were provable claims under section 14.06 of the BIA.

Priority and Treatment of Environmental Claims in Bankruptcy

The Court found that the BIA was amended in 1997 to specifically address environmental claims. The BIA now incorporates environmental claims into the general bankruptcy process, rather than exempting them. Following the test set out in Newfoundland and Labrador v AbitibiBowater Inc., the Alberta Court of Appeal found that AER’s orders were subject to bankruptcy proceedings.5 By refusing to permit the transfer of Redwater’s valuable assets unless funds were set aside for remediation, AER reduced the environmental obligations to “sufficiently certain” monetary claims. Accordingly, AER cannot indirectly interfere with the value of assets in a bankruptcy by placing financial preconditions on the transfer of AER licences.

Constitutional Law Issue

The Court of Appeal held that there was an operational conflict between federal and provincial regimes. The Court found that the provincial regulatory scheme frustrated the purposes of the BIA, which include determining the priority of claims against insolvent corporations. The practical outcome being that GTL did not have to comply with AER’s remediation obligations prior to settling claims of secured creditors.

Nortel and Northstar

The dissenting opinion briefly considered the two leading cases in Ontario on environmental claims in bankruptcy and insolvency: Nortel Networks Corporation (Re) and Northstar Aerospace Inc. (Re).6 In Nortel, the Court found that some of the Ministry of the Environment’s (MOE, as it then was) orders had priority over creditor claims, but in Northstar, the Court found that the MOE’s orders did not have priority.

Implications

The practical implications of Redwater may be far reaching not only for the worlds of bankruptcy & insolvency and oil & gas, but also for the world of director and officer liability.

Will we see more Alberta provincial environmental orders aimed at former directors and officers? In Northstar, after the Court found the MOE’s orders did not have super priority in insolvency proceedings, the MOE issued a remediation order personally against the former directors and officers.7

We will look to the SCC to provide clarity on this important, albeit untidy, area of law.

Footnotes

1 2017 ABCA 124 [Redwater].

2 Ibid.

3 RSC 1985, c B-3 [BIA].

4 Redwater at para 21; Oil and Gas Conservation Act RSA 2000, c O-6, s 70 [OGCA].

5 2012 SCC 67.

6 Nortel Networks Corporation (Re), 2013 ONCA 599 [Nortel]; Northstar Aerospace Inc. (Re), 2013 ONCA 600 [Northstar].

7 Northstar Aerospace, Inc. (Re), 2012 ONSC 4423. Subsequently, on November 14, 2012, the MOE issued a Director’s Order against the former directors and officers personally.

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.

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About the authors

John Georgakopoulos resolves complex environmental legal issues for clients, uniquely drawing on his technical knowledge as a former senior environmental scientist with the Ontario Ministry of the Environment and Climate Change. John is called to the bars of Ontario and Alberta.

Giselle Davidian is an associate lawyer practicing in the areas of environmental law, environmental litigation, energy and natural resource law and Aboriginal law.  Giselle draws upon her technical knowledge as a former environmental scientist at a consulting engineering firm to help clients meet their goals.  Giselle is fluent in French and Armenian and has a working knowledge of Italian.  Giselle is called to the bar of Ontario.

Serin Remedios is an associate lawyer practicing environmental litigation as well as environmental, Aboriginal, northern and energy law.  Serin’s past experience in environmental science helps her understand clients’ problems and assist them in meeting their goals.  Serin is called to the bar in Ontario.

This article was first published in the Willms & Shier Environmental Lawyers LLP website.

Innovations in Pipeline Design: Leak-proof technology

By Dema Mamon, M.Sc.Pl, BES and John Nicholson, M.Sc., P.Eng.

In Canada, getting approval to construct an oil pipeline has become increasingly difficult.  Every oil pipeline incident that involves a leak and subsequent clean-up is widely covered in the media,  providing fuel for pipeline opponents that call an end to the construction of new pipelines.

Abacus Data Inc., an Ottawa-based research firm, has been tracking public opinion on the construction of new pipeline capacity and has found some interesting trends.  Since 2014, polling has shown that the negative view of building new oil pipelines has remained steady at 21 to 22% range.  However, there was a drop in the positive attitude amongst Canadians toward building new pipelines – from 58% in 2014 to 44% in 2017.  Over that three year span, a good proportion of Canadians who once viewed building new pipeline capacity with a positive attitude have shifted to a neutral view.  The neutral view on oil pipelines have grown from 20% in 2014 to 36% in 2017.

There can be many theories to explain the three year shift in public opinion on new oil pipelines.  One plausible theory is that oil spills from pipelines typically make headline news, thus leaving an impression in the minds of Canadians the perhaps pipelines are not as safe as the industry states.  Oil leaks from pipelines damage the environment, are costly to clean-up, and fuel public opinion that pipelines are not safe.

One way to eliminate the perception that building new oil pipelines is bad for the environment and shift public opinion in favour of such projects is to build pipelines that don’t leak.  However, is it even possible to build leak-proof pipelines?

Are Double-Walled Pipelines the Answer?

One logical idea for building leak-proof pipelines is for them to be double-walled.  The outer wall would serve as protection from external damage.  The technology does exist to construct double-walled pipelines and they are used in certain circumstances such as when there is a large temperature difference between the liquid in the pipe and the surrounding environment.

Double-walled pipelines are not considered the cure-all by some in the industry.  Those resistant to the use of double-walled pipelines note that in some instances, it may be more cost effective to protect pipelines from the potential of external damage by burying them or placing slabs over them in higher risk areas.  Furthermore, it can be more difficult to monitor a double-walled pipeline and an outer pipe interferes with the maintenance of the inner pipe.

At the University of Calgary, researchers believe their two-walled pipeline design and monitoring system is the solution to preventing spills.  Although double-walled pipelines have been around since the 1980’s, Thiago Valentin de Oliveira, an electrical and computer-engineering master’s student, and Martin Mintchev, an engineering professor, say that their design is superior.

The U of Calgary researchers designed and constructed their prototype to consist of a typical steel inner layer with either a steel or plastic outer layer.  There is an air gap between inner and outer pipeline contains the oil that leaks from the inner pipeline leak.  The real innovation developed by the U of Calgary is the segmentation of the inter-pipe space and the inclusion of a linear wireless network linking the segments.  With the segmentation, a leak of oil from the inner pipe enters the air gap between the two pipes and is contained in a section of pipe.  Wireless pressure sensors between the two walled layers detect the pressure build up and send an alert to the pipeline control staff.

 

If commercially implemented, the U of Calgary system would allow pipeline operators with the means of quickly shutting down the pipeline when a leak was detected into the outer pipeline and crews could be dispatched to make repairs.  The oil that leaked from the inner pipe would be contained in the air gap between the two pipes and be confined to one section of the pipeline.

The U of Calgary researchers estimate that their design would result in an additional 25% in the capital cost of building pipelines.  They believe this cost could be reduced if the outer pipeline material was composite materials or plastic.

Is Advanced Monitoring the Solution?

Also in Alberta, a Calgary-based firm, HiFi Engineering, recently announced that it has developed an innovative pipeline leak detection system.  Dubbed High-Fidelity Dynamic Sensing (HDS™), the monitoring system can spot the exact location of a leak in a pipeline within seconds of it occurring.  The system continuously monitors temperature, sonic and ultrasonic acoustics, and vibration and strain.  Any anomaly in the measurements results in an alert being sent to the pipeline company control room.

Hifi Engineering’s High Fidelity Dynamic Sensing (HDS) technology is being called the ‘ears of pipeline monitoring.’

The system works utilizing fiber optic cables that run the length of the pipeline.  A laser beam is sent down the length of the optic cable and sends signals back that provide a multitude of information to the pipeline control room.

TransCanada Pipelines Corporation has already installed the HiFi HDS™ monitoring system in sections of the Keystone XL oil pipeline that runs from Canada to the U.S.  Also, Enbridge employs the technology in its new northern Alberta pipeline.

_____________________

About the Authors

Dema is a graduate of York University’s Bachelor in Environmental Studies program (2008) and the University of Toronto’s Masters of Science in Planning Programme (2010). She is currently pursuing her Canada Green Building Council’s Leadership in Energy and Environmental Design’s Green Associate certification. Her research interests include environmental conservation, green infrastructure, and sustainability. She can be reached at dema.mamon@gmail.com.

John Nicholson is the editor of Hazmat Management Magazine.  He has over 25 years of experience in the environmental and cleantech sectors.  He is a registered professional engineer in the Province of Ontario and has a M.Sc. in environmental engineering.  His professional experience includes time at a large engineering consulting firm, a major Canadian law firm, and the Ontario Ministry of the Environment and Climate Change.

Top 10 Questions to Consider If Sued under U.S. RCRA’s Citizen Suit Provisions

by Beveridge & Diamond PC

No longer only a tool of public interest groups, an ever-expanding group of plaintiffs – including commercial plaintiffs – are using the citizen suit provision of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972, to address alleged regulatory violations, seek cleanup of wastes alleged to be causing an imminent and substantial endangerment, and pursue fee awards. In addition, RCRA citizen suits have moved beyond traditional allegations of subsurface wastes migrating to soil and groundwater, and may include claims such as vapor intrusion. In light of this diversified landscape of plaintiffs and media, defendants should consider the following key questions when sued under RCRA’s citizen suit provisions.

  1. Do deficiencies in plaintiff’s pre-suit notice provide grounds for dismissal?

RCRA requires 60-day notice for suits brought under § 6972(a)(1)(A) (violation of specific RCRA requirement), and 90-day notice for suits brought under § 6972(a)(1)(B) (imminent and substantial endangerment). RCRA provides an exception for the notice period for citizen suits alleging violations of Subtitle C hazardous waste management provisions, which can be filed immediately after providing notice. The notice requirement reflects the preference for the government to take the lead enforcement role (rather than citizens), and serves to provide the defendant with adequate information to understand basis of the citizen suit. Evaluate whether the notice satisfies the statutory requirements of § 6972(b), and if applicable, the regulatory requirements of 40 C.F.R. § 254.3. If not, consider a motion to dismiss. Courts routinely dismiss RCRA citizen suits for failure to meet these requirements. In addition, check the law in your jurisdiction for other notice-based grounds for a motion to dismiss. For example, the U.S. Court of Appeals for the Second Circuit has affirmed dismissal where plaintiff’s notice only identified waste practices, but did not identify the specific contaminants at issue. Dismissal due to lack of notice typically is without prejudice to refile after proper notice is given, but dismissal may provide strategic or procedural advantages.

  1. Has plaintiff alleged an injury sufficient to satisfy constitutional standing requirements?

A plaintiff must meet the standing requirements of Article III of the U.S. Constitution in order to have standing to sue in federal court. An invasion of a concrete and particularized legally protected interest that is actual or imminent is required to establish standing; the injury may not be conjectural, hypothetical, or too temporally remote. In the RCRA context, standing defenses can be asserted, for example, where there are allegations of an injury to property the plaintiff no longer owns, where the claimed injury is based on future, speculative development plans, or a corporation claims its aesthetic interests have been injured. In such situations, an early motion for summary judgment may expose a plaintiff’s inability to show actual harm, although plaintiffs’ claims of standing are often viewed liberally.

  1. Is plaintiff’s claimed injury redressible by RCRA?

An injury must also be redressible for a plaintiff to have constitutional standing. RCRA provides only forward-looking injunctive relief; not monetary compensation for past costs. Accordingly, suits seeking such compensation are not redressible under RCRA, and thus lack standing. Additionally, where a remediation plan is in place and cleanup is ongoing, the plaintiff may lack an injury needing redress because a court cannot order superfluous relief.

  1. Is there government action that bars the suit?

Certain RCRA citizen suits are barred where the U.S. Environmental Protection Agency (“EPA”) or the state is “diligently prosecuting” a RCRA or Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) action. Plaintiffs have the burden of proving that prosecution is not diligent. This burden is heavy as a presumption of diligence attaches to government prosecution of actions; complaints about the government’s prosecution schedule or strategy generally will not suffice in themselves. Some courts have found that consent decrees and their enforcement amount to diligent prosecution.

  1. Is there an action under CERCLA that bars the suit?

Certain CERCLA removal and remedial actions will bar a RCRA citizen suit. These CERCLA actions include: (i) state or federal government engagement in a CERCLA § 104 removal action; (ii) federal or state government incurrence of costs to initiate a CERCLA § 104 remedial investigation/feasibility study (“RI/FS”) combined with diligent remedial action; and (iii) a court order (including a consent decree) or an administrative order under CERCLA § 106 or RCRA § 7003, pursuant to which a responsible party is “diligently” conducting a removal action, RI/FS, or a remedial action. RCRA suits are also precluded if they “challenge” a removal or remedial action selected under CERCLA § 104. Courts generally find any actions consistent with initial investigations, monitoring, initial clean up, or negotiation or entry of a consent decree will constitute a CERCLA removal action sufficient to preclude a RCRA claim. Remedial actions barring RCRA claims generally consists of those actions consistent with the permanent remedy.

  1. Is the plaintiff alleging entirely past regulatory violations, or violations of superseded federal regulations?

Many RCRA citizen suits concern activities that occurred several decades ago. If a suit alleges regulatory violations based on claims of entirely past conduct (i.e., the violations are not ongoing), such claims should be dismissed. Courts have also ruled that a plaintiff may not bring suit to enforce federal RCRA regulations where they have been superseded by an authorized state program. (However, suits seeking enforcement of state regulations issued pursuant to a state program

authorized under RCRA are typically allowed to proceed in federal court). All claims of regulatory violations should be scrutinized in light of these simple arguments, which can be applied to quickly narrow the claims in a RCRA citizen suit.

  1. Do primary jurisdiction or abstention doctrines provide grounds for a stay, or dismissal?

The doctrines of primary jurisdiction and abstention have seen success as defenses to RCRA citizen suits in some jurisdictions. Abstention doctrines arise out of concern for the proper jurisdictional balance between state and federal courts, and can provide a basis for dismissal of a federal court complaint. Defendants in RCRA citizen suits most frequently invoke the doctrine known as Burford abstention, which applies in situations where a federal suit will interfere with a state administrative agency’s resolution of difficult and consequential questions of state law or policy doctrine. While some courts have rejected the application of Burford abstention to RCRA citizen suits, the argument has seen more consistent success in suits challenging agency permitting, licensing or siting decisions under state law.

Under the doctrine of primary jurisdiction, a federal court may stay proceedings where a claim involves issues within the special competence of an administrative body. Primary jurisdiction has been found applicable where: a consent order with the state completely overlapped with the relief sought by plaintiff’s RCRA claims; where EPA investigation and remediation had been diligent and ongoing for many years, and injunctive relief ordered by court could be conflicting; and where a state agency had extensive involvement in addressing alleged contamination and federal court intervention could result in delay of state agency response or substantial duplication of effort. Courts have been willing to apply primary jurisdiction to stay (or even dismiss) RCRA suits to allow these types of administrative activities to run their course.

  1. If plaintiff has alleged an endangerment to health or the environment, is it imminent?

To prevail on the merits of a RCRA citizen suit, a plaintiff must establish that an endangerment to human health or the environment is “imminent.” The Supreme Court has ruled that “[a]n endangerment can only be ‘imminent’ if it ‘threatens to occur immediately,’ and the reference to waste which ‘may present’ imminent harm quite clearly excludes waste that no longer presents such a danger.” Imminence may be absent where the endangerment is premised on speculative development plans or contingencies, where there is no exposure pathway (e.g., a claim of endangerment to human health based on alleged groundwater contamination, where groundwater is not used for drinking), or remediation has occurred, and to the extent waste remains, it no longer poses a risk. Imminence can be found lacking in these types of fact patterns, notwithstanding the presence of contamination.

will not likely be met. Risk assessments may also be very useful in showing the absence of a substantial risk, and defendants should evaluate the relative risks and benefits of performing such an assessment. For example, in a recent case alleging vapor intrusion, a risk assessment showed that the alleged vapor levels were many magnitudes below risk thresholds, and even below the risk presented by the same contaminants present in ambient (outdoor) air.

  1. If plaintiff has alleged an endangerment, is it substantial?

If a plaintiff cannot show that an alleged endangerment is imminent, it follows that it that RCRA’s substantiality requirement will not likely be met. Risk assessments may also be very useful in showing the absence of a substantial risk, and defendants should evaluate the relative risks and benefits of performing such an assessment. For example, in a recent case alleging vapor intrusion, a risk assessment showed that the alleged vapor levels were many magnitudes below risk thresholds, and even below the risk presented by the same contaminants present in ambient (outdoor) air.

  1. Can you recover your attorneys’ fees?

Although the majority of fee awards under RCRA are for plaintiffs, fee awards have been granted to defendants, especially where the suit was frivolous, unreasonable, or groundless, or where the plaintiff continued to litigate after it clearly became so. Don’t overlook other bases for fees as well. If there is a contractual relationship with the plaintiff (for example, as is common between successive property owners), all contracts should be reviewed for any applicable fee shifting provisions.

In conclusion, if sued under RCRA’s citizen suit provision, consider whether these common defenses or fact patterns apply. Defenses based on notice, standing, or governmental action can provide an early and cost-effective dismissal of the case. Facts showing, for example, speculative alleged endangerment or lack of an exposure pathway should be explored fully in discovery, as they can provide effective defenses on the merits.

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Beveridge & Diamond holds a United States nationwide Tier 1 ranking for Environmental Litigation in U.S. News/Best Lawyers. The Firm’s litigators perform trial and appellate work in enforcement defense (civil and criminal), citizen suit defense, rulemaking challenges and defenses, and private litigation under all major federal and state environmental laws.  For more information about our experience defending RCRA citizen suits, please contact Harold L. Segall (+1.202.789.6038, hsegall@bdlaw.com) or Bina R. Reddy (+1.512.391.8045, breddy@bdlaw.com).

This update is not intended as, nor is it a substitute for, legal advice. You should consult with legal counsel for advice specific to your circumstances. This communication may be considered lawyer advertising.

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

New Leaching Environmental Assessment Framework (LEAF) Methods

The Leaching Environmental Assessment Framework (LEAF) is a leaching evaluation system, which consists of four leaching methods, data management tools, and scenario assessment approaches designed to work individually or to be integrated to provide a description of the release of inorganic constituents of potential concern (COPCs) for a wide range of solid materials. The LEAF methods have been designed to consider the effect of key environmental conditions and waste properties on leaching. The LEAF “How-To” Guide describes how the LEAF method results can be used to develop screening level assessments of constituent release or to develop more accurate estimates of release in specific use or disposal scenarios.

LEAF Methods and “How-To” Guide

Method 1313 is designed to evaluate the partitioning of constituents between liquid and solid phases at or near equilibrium conditions over a wide range of pH values. The method consists of 9-10 parallel batch extractions of solid material at various target pH values.

Method 1314 is a percolation column test designed to evaluate constituent releases from solid materials as a function of cumulative liquid-to-solid ratio. The method consists of a column packed with granular material with moderate compaction. Eluent is pumped up through the column to minimize air entrainment and preferential flow.

LEAF Method 1314

Method 1315 is a semi-dynamic tank leaching procedure used to determine the rate of mass transport from either monolithic materials (e.g., concrete materials, bricks, tiles) or compacted granular materials (e.g., soils, sediments, fly ash) as a function of time using deionized water as the leaching solution. The method consists of leaching a sample in a bath with periodic renewal of the leaching solution at specified cumulative leaching times.

Method 1316 is an equilibrium-based leaching test intended to provide eluate solutions over a range of liquid-to-solid ratios. This method consists of five parallel batch extractions of a particle-size-reduced solid material in reagent water over a range of liquid-to-solid ratios. At the end of the contact interval, the liquid and solid phases are separated for constituent analysis.

The purpose of the LEAF “How-To” Guide is to provide an understanding of the Leaching Environmental Assessment Framework to facilitate its broader use in environmental assessment. The guide provides background on the LEAF methods, how to perform the methods, and how to understand the method results. It also provides guidance on the application of LEAF to assess leaching potential of COPCs from solid waste materials for beneficial use, disposal, treatment, and remediation applications. In addition, the guide addresses frequently asked questions about the four LEAF methods, data management and reporting using freely-available software, and potential applications of the LEAF approach.

SW-846 Update VI – Phase III will be available for public comment until January 31, 2018. Comments can be submitted using the EPA Docket, ID# EPA-HQ-OLEM-2017-0210.

For questions about Update VI to SW-846 or submitting public comments, or to sign up for the SW-846 mailing list, please contact orcrSW846@epa.gov.