U.S. EPA reaches settlement with Hazardous Waste Facility over Environmental Violations

The U.S. Environmental Protection Agency (U.S. EPA), Region 10, recently reached a settlement with Emerald Services, Inc., a hazardous waste storage and treatment facility in Tacoma, Washington, over violations of the Resource Conservation and Recovery Act (RCRA) and violations of the facility’s RCRA permit. This enforcement action was coordinated with the Washington Department of Ecology. The facility is located within the boundaries of the Puyallup Tribe’s reservation.

Emerald Services manages large volumes of hazardous waste, solvents, and antifreeze and re-refines used oil at the Tacoma facility. Emerald was purchased by Safety-Kleen Systems, Inc. on July 8, 2016, and both Emerald and Safety-Kleen are owned by parent holding company, Clean Harbors, Inc. Ensuring that funds will be available if the company’s operations harm people or damage property is an essential element of the “cradle to grave” RCRA hazardous waste management program.

Emerald Services Inc. Facility, Washington State, U.S.A.

This settlement resolves several RCRA violations at the Tacoma-area facility. Specifically, the company failed to maintain adequate third-party liability insurance coverage of the facility for the past six years.  As part of the settlement, Emerald Services agreed to pay a $125,800 penalty and amended its current insurance policy to comply with its RCRA permit.

“Having adequate insurance coverage for your business, especially one that stores and handles hazardous waste, isn’t an option, it’s the law,” said Ed Kowalski, Director of EPA’s Region 10 Compliance and Enforcement Division in Seattle. “Liability insurance is a key requirement of the hazardous waste permitting system, ensuring that commercial hazardous waste handlers operate in a safe manner to protect people’s health and the environment.”

There is a history of spills and incidents at Emerald’s Tacoma facility. In 2013, a 1,900-gallon spill of a highly dangerous fuel oil/asphalt mixture injured a worker. Emerald’s pattern of spills and releases suggests the facility may have a higher probability of future accidents, underscoring the need to have liability coverage for possible bodily injury, property damage and environmental restoration.

Violating environmental laws puts public health and the environment at risk. EPA protects communities by ensuring compliance with federal environmental laws. By fairly enforcing environmental laws, we level the playing field by deterring violators and denying companies an unfair business advantage over facilities and businesses that follow the rules.

U.S. EPA Assesses Sunken, Leaking Marine Vessels

The U.S. Environmental Protection Agency (U.S. EPA) continues its response to Hurricanes Maria and Irma in close coordination with federal, commonwealth, territory, and local partners. EPA remains focused on environmental impacts and potential threats to human health as well as the safety of those in the affected areas.

“Our role is to assist both Puerto Rico and the U.S. Virgin Islands to minimize environmental damage from boats leaking gasoline, fuel or other contaminants,” said EPA Regional Administrator Pete Lopez. “We are doing this in a way that respects the vessel owner’s rights while still protecting people from spills and hazardous substances that might be onboard the vessels.”

Marine Vessels Recovery Operations

EPA is supporting Puerto Rico, the U.S. Virgin Islands and the U.S. Coast Guard in marine vessel recovery work. Teams continue to locate, assess and retrieve sunken, damaged and derelict vessels around Puerto Rico and the USVI.  We are also assisting with the recycling and disposal of recovered oil and hazardous materials from the vessels.

The U.S. EPA’s support role includes recording the vessel’s location and collecting information such as the name of the vessel and identification number, condition, impact to surrounding areas and/or sensitive/protected habitats (e.g. mangroves, coral reefs) for future recovery missions and owner notifications.  A higher priority is placed on vessels found to be actively leaking fuel or hazardous materials, where containment and absorbent booms are placed to decrease contamination.

Once the damaged vessels are brought to shore, or are processed on a staging barge, EPA will be handling various hazardous materials for recycling and disposal, including petroleum products (oil, gas or diesel fuel), batteries, and e-waste, which can harm the environment if they’re not removed from the waters. EPA will also recycle or dispose of any “household hazardous wastes”, such as cleaners, paints or solvents and appliances from the vessels. It is important to properly dispose of these items to prevent contamination to the aquatic ecosystem.

Vessels are being tagged by assessment teams with a sticker requesting that owners contact the U.S. Coast Guard to either report their vessel’s removal, or to request U.S. Coast Guard assistance in its removal. There is no cost, penalty or fine associated with the removal of the vessels.

As of November 16, 2017,

  • 340 vessels were identified as being impacted in Puerto Rico
  • 589 vessels were identified as being impacted in the U.S. Virgin Islands

The effects of an spills from marine vessels will depend on a variety of factors including, the quantity and type of liquid (i.e., fuel, oil) spilled, and how it interacts with the marine environment. Prevailing weather conditions will also influence the liquid’s physical characteristics and its behaviour. Other key factors include the biological and ecological attributes of the area; the ecological significance of key species and their sensitivity to pollution as well as the time of year. It is important to remember that the clean-up techniques selected will also have a bearing on the environmental effects of a spill.

CHAR Technologies Ltd. LOI for Acquisition of The Altech Group and Private Placement to Support Advanced Biomass Fuel

CHAR Technologies Ltd. (“CHAR“) (TSX VENTURE:YES) recently announced that it has signed a non-binding letter of intent (“LOI“) to acquire 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.  Under the terms of the LOI, CHAR would acquire all issued equity in Altech.  Altech shareholders would receive $950,000 in common shares of CHAR, with the number of common shares anticipated to be determined using the 30-day volume weighted average price of the CHAR common shares prior to November 17th, 2017, as well as $150,000 in cash.  In connection with closing, CHAR will institute an employee retention plan where current non-shareholder Altech employees will be issued an aggregate of $100,000 of common shares (the “Equity Grant“) at a price determined in accordance with the policies of the TSXV over a period of 13 months with any unvested grants to terminate should the relevant employee cease to be employed by Altech. Closing is anticipated to take place on or before December 31, 2017.

Bill White, Chairman of CHAR stated that, “The acquisition of the Altech Group would add over 30 years of experience in environmental technologies and professional engineering consulting” and that “Altech would provide CHAR with a growth catalyst to move much of our engineering design in-house, while at the same time would allow 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 would bring an exciting new technology and a corporate development team. Our joint efforts going forward would bring tremendous opportunities”.

It is anticipated that the new joint enterprise will have a tremendous advantage in commercialization of a new cleantech solid fuel branded “CleanFyre”. This new 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 would 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.”

The completion of CHAR’s acquisition of Altech is subject to the satisfaction of various conditions, including the negotiation of a definitive agreement and the completion of the parties respective due diligence. Although CHAR anticipates that the transaction with Altech will be consummated, the LOI is non-binding and there is no certainty that the transaction will be consummated.

CHAR is also launching a non-brokered private placement of common shares that will raise capital to support the continued commercialization of SulfaCHAR as well as CleanFyre. The offering will consist of a minimum of $250,000 and a maximum of $1,000,000. Pricing will be $0.21 per common share or, $0.25 per share for investors who wish to acquire flow-through common shares pursuant to the offering. The private placement is anticipated to close on or about December 31st, 2017.

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).

Asbestos & Disaster Relief Precautions

By Alison Grimes, MAA Center

2017 has proven to be an unfortunate memorable year of natural disasters.  Across the globe, countries including Afghanistan, China, Colombia, The Democratic Republic of the Congo Mexico, Peru, Sierra Leone, South Asia, Sri Lanka, Zimbabwe and more, have all suffered heartache and destruction as a result of natural disasters.

The United States even experienced the hardship of more than 50 separate weather, climate and flood disasters, above the 10-year average of 45 disasters.  With hundreds and thousands of lives affected, fast action and relief saves lives. However, although quick relief is important, safety and health should not be taken for granted.

Aerial view of flood damage from Hurricane Harvey (Photo Credit: Brett Coomer, Houston Chronicle)

Disaster Relief Precautions

Following a natural disaster, first responders, insurance adjusters, and contractors are called upon to re-build or repair damage in the home or workplace.  To ensure safety with relief and reconstruction, the following precautions and best practices will ensure good health and well-being, long after a natural disaster.

Asbestos

While managing flood recovery and other natural disaster reconstruction, asbestos is not often thought of.  Although entirely natural, asbestos is very harmful to health, leading to cancer such as mesothelioma, asbestosis, lung cancer and more.  There is no safe level of asbestos exposure and once asbestos fibers are consumed by way of inhalation or ingestion, health concerns can develop anywhere between 10-50 years later.  Therefore, it is important to consider the age of a structure before performing a repair.

Flood Damage Asbestos Abatement (Photo Credit: Patriot Abatement Services)

Asbestos use was widespread during the early 1930s with heightened use during the mid to late 1970s throughout the 1980s.  Its fire-resistant properties, abundance and malleability made it a popular additive in many products used in construction such as tiling, insulation, cements, caulking, heating ducts, roofing, siding, drywall and more.  When such products or materials that contain asbestos are properly encapsulated or enclosed, they will not pose harm to health, however in the case of natural disasters and water damage, the risks of being exposed to asbestos increase as a result.

 Mold

Natural disaster relief zones are breeding grounds for mold, which can begin to develop in as little as 48 hours.  Similar to asbestos, mold is often forgotten about during repairs and disaster relief.  When mold forms, spores enter the air and are easily inhaled, causing skin, eye and nasal passage irritation, wheezing and respiratory health concerns.  Considering the harm associated with mold exposure, it is essential to first dry any wet, humid or damp areas to prevent mold growth.  Additionally, any existing mold should be remediated by a specialist to ensure that all mold spores are eradicated. Control and prevent mold growth by limiting humidity levels, fixing leaky roofs, windows and pipes, cleaning and drying wet areas, and ensuring proper shower, laundry and cooking area ventilation.

 Awareness and training are two essential steps to ensure successful and safe, disaster relief.  However, asbestos and mold are only two concerns to be mindful of,  as lead, silica, PCBs, particulate matter and other hazardous building materials pose great harm to health as well.  Moreover, first responders and all others called upon during disaster relief, must prioritize self-care techniques to prevent burnout and secondary traumatic stress.

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About the Author

Alison Grimes is a Health Advocate at the Mesothelioma + Asbestos Awareness Centre (MAA Center).  The MAA Center is an independent group working to help mesothelioma patients, caregivers, advocates, and others looking to learn more about the disease.

Supreme Court of Canada to hear Alberta’s “orphaned” oil wells case

By – Michael Nowina and Glenn Gibson, Baker McKenzie

On November 9, 2017, the Supreme Court of Canada granted the Alberta Energy Regulator and the Orphan Well Association’s request for leave to appeal from the decision in Grant Thornton Ltd. v. Alberta Energy Regulator, 2017 ABCA 124.  By granting leave, Canada’s highest court will weigh in on the Alberta Court of Appeal’s determination that secured creditors in a bankruptcy should be paid before environmental claims arising from abandoned oil and gas wells.

Map of all Orphan Wells in Alberta

As described in our previous blog post, on April 24, 2017, a majority of the Alberta Court of Appeal determined that certain sections of the Oil and Gas Conservation Act and Pipeline Act were inoperative to the extent that they conflicted with the Bankruptcy and Insolvency Act (BIA). Under the appellate decision, a bankruptcy trustee or receiver is not required to satisfy the environmental remediation obligations in priority to other creditors.  On the other hand, the dissenting judgment noted concerns that the effect of the majority decision would be to create an incentive for corporations to avoid the end-of-life obligations of wells by using insolvency laws and shift the environmental remediation costs onto the public and other oil and gas producers.

 Leave to the Supreme Court

Leave to the Supreme Court will only be granted where the court is of the opinion that the question raised by the case is of public importance or one that ought to be decided by the Supreme Court. In their leave application, the Orphan Well Association and the Alberta Energy Regulator identified the following issues to be clarified by the Supreme Court:

(a) Given the exclusive jurisdiction of provinces to regulate their natural resources, whether regulatory obligations created by provincial legislation conflict with or frustrate the scheme of priorities set out in the BIA?

(b) Whether select provisions of the BIA enable a receiver or trustee to pick and choose which provincial laws it will comply with?

(c) Are end-of-life obligations associated with oil and gas development also duties owed to the public?

The Minister of Justice and Solicitor General of Alberta intervened in the leave application. In supporting the leave application, the Province of Alberta’s position on leave was that the majority decision of the Court of Appeal interfered “with critical provincial regulatory functions in a manner that is inconsistent with the constitutional division of legislative powers and the balance of confederation.”

The Supreme Court granted a motion to expedite the appeal, and it will likely hear the appeal in the first half of 2018. The Supreme Court’s decision is an opportunity for the court to clarify the interaction of federal insolvency laws with the province’s jurisdiction to regulate natural resources as well as whether the public and other oil and gas producers ought to bear the burden of environmental remediation. The decision will have significant implications for the oil and gas industry, lenders, and regulators across the country. We will continue to provide updates on the status of the hearing as it becomes available.

This article was originally published on the Baker McKenzie website.

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About the Authors

Michael Nowina is a member of the Firm’s Dispute Resolution and Global Financial Restructuring & Recovery practice groups. Mr. Nowina has a diverse civil litigation practice, with a focus on fraud recovery, insurance defence and insolvency law. Mr. Nowina has appeared before all levels of courts in Ontario and regularly appears on matters on the Commercial List in Toronto.

Glenn Gibson is a member of Baker McKenzie’s Litigation & Government Enforcement Practice Group in Toronto. She joined the Firm in 2015 as a summer student and completed her articles of clerkship in 2017.  Glenn acts for various clients on contractual disputes, jurisdictional disputes, commercial class actions, matters involving fraud and commercial arbitration. She is a contributor to www.canadianfraudlaw.com, www.globalarbitrationnews.com, and the Baker McKenzie International Arbitration and Litigation Newsletter.

Long Lake Gold Mine remediation project hits stumbling block

As reported by the CBC, the Long Lake Gold Mine Remediation Project near Sudbury, Ontario will not be getting started until 2019.

The Province on Ontario first announced its commitment to remediate the abandoned gold mine back in 2013.  The lake, located near a popular recreation area, had high levels of arsenic.

Long Lake Gold mine operated intermittently from 1908 to 1937 and produced approximately 200,000 tonnes of tailings.  The tailings were discharged directly to the environment without containment.  The tailings have since eroded into Luke Creek and Long Lake.  The tailings are acid generating and leach acidic water that is high in metal contamination, specifically arsenic.  The Ontario Ministry of Northern Development and Mines (MNMD) sampling in the south end of Long Lake identified arsenic contamination above the Ontario Drinking Water Standard.

Long Lake (Photo Credit: Markus Schwabe/CBC)

The MNDM initiated a review of remediation alternatives to clean up the tailings area and has selected a preferred method of relocating all fugitive tailings to a new containment facility that will be constructed on site.  The objective of remediation efforts is to reduce the arsenic concentration in Long Lake below the provincial drinking water limit, such that water quality in the south bay of Long Lake will recover to background conditions.

The latest delay in the remediation project is the result of the MNDM addressing some concerns of nearby residents who are concerned that the clean-up will result in increased truck traffic on the existing road to the lake.

The chair of the Long Lake Stewardship group says residents are aware of the notion “short term pain for long term gain” when it comes to the completion of the remediation project.

“But I think the concern I heard was the number of trucks that would be travelling on the road, day-in and day-out through the restoration phase,” Scott Darling said.

“Primarily what I heard in terms of the concerns were the traffic, the increased traffic that’s going to occur over the two-year period on Long Lake Road and Tilton Lake Road and South End Road — the wavy trail.”

Roads in the area will see 50 to 60 trucks a day hauling out contaminated material and bringing in clean fill.

The remediation project is expected to run between two and three years.

Darling says it could be closer to 2019 before the project gets started.

More information on the proposed clean-up of the Long Lake can be found in the MNMD environmental assessment document.

 

U.S. Senators Introduce Bipartisan Bill to Establish Renewable Chemicals Tax Credit

Two U.S. senators recently introduced a Bill in Congress, called the Renewable Chemicals Act 2017 (S. 1080) which aims to establish a short-term tax credit for the production of renewable chemicals and for investment in renewable chemical production facilities.  If enacted, the legislation would allow chemical manufacturers to claim a production credit equal to $0.15 per pound of bio-based content of each renewable chemical produced.  In lieu of the production credit, companies would be able to claim an investment credit equal to 30 percent of the basis of any eligible property that is part of a renewable chemical production facility.

Proponents of the Bill believe that the tax incentives will spur research, development, and production of renewable chemicals from biomass and also result in the investment in renewable chemical production facilities.  Applicants for the tax credit would be evaluated on job creation, innovation, environmental benefits, commercial viability and contribution to U.S. energy independence.

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.