Tribunal gives Ontario Environment Ministry Broad Preventative Powers over Migrating Contamination

by Stanley D. Berger

On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Environmental Protection Act (EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties. The property in question, formerly a small-appliance manufacturing business, was contaminated and the various contaminants were of concern to the Ministry, having migrated to other Picton residential, commercial and institutional properties where they might be entering nearby buildings by vapour intrusion. Section 18 of the EPA provides that the Director may make orders preventing, decreasing or eliminating an adverse effect that may result from the discharge of a contaminant from the undertaking or the presence or discharge of a contaminant in, on or under the property. The Director’s Order was challenged on three grounds:

  1. The adverse effect the Director could address was limited to a future event or circumstance (given that s.18 is prospective and preventative);
  2. The adverse effect had to relate to the potential off-site migration of a contaminant that was on an orderee’s property at the time the order was made;
  3. The order could require work only on site but not off-site, to address the risk of an adverse effect.

The Tribunal rejected all three arguments, reasoning that adverse effects resulting from contamination were frequently ongoing rather than static, with no clear line between existing and future effects. The Tribunal looked to the purpose of the EPA which was to protect and conserve the natural environment and found the orderees’ arguments were inconsistent with this purpose. Contamination and adverse effects were not constrained by property boundaries and therefore it was immaterial whether the contaminant was on the orderee’s property at the time the order was made. Finally, the list of requirements that could be ordered under s.18(1) EPA included off-site work. _________________

About the Author

Mr. Berger has practiced regulatory law for 36 years. He is a partner at Fogler Rubinoff LLP. He is certified by the Law Society of Upper Canada as a specialist in Environmental Law. He represents nuclear operators and suppliers in regulatory and environmental matters and in the negotiation of risk clauses in supply contracts and government indemnity agreements.He has prosecuted and defended environmental , occupational health and safety and criminal charges . He represents clients on access to information appeals before Ontario’s Freedom of Information Commission. He has also represented First Nations seeking equity partnerships in renewable energy projects. He started as an Assistant Crown Attorney in Toronto (1981), became the Deputy Director for Legal Services /Prosecutions at the Ministry of the Environment (1991) and Assistant General Counsel at Ontario Power Generation Inc.(1998-2012) During his 14 years at OPG, Mr. Berger won the President’s Award for his legal contribution to the Joint Review Panel environmental assessment and licensing hearing into the Nuclear New Build Project for Clarington . He won a Power Within Award for his legal support of the Hosting Agreement with local municipalities for the project to create a long term deep geologic repository for low and intermediate nuclear waste in Tiverton, Ontario.

 

Validation of handheld X-Ray Fluorescence for In-Situ Measurement of Mercury in Soils

Researchers recently reported the results of an evaluation of a handheld X-ray fluorescence (XRF) device as a field screening tool for soil mercury as part of on-going remedial investigations along the South River in Waynesboro, Virginia.  As reported by the research team, the method achieved a detection limit of 7.4 mg/kg Hg with a 60-s analysis time, which improves upon earlier attempts and is sufficient for detecting mercury at generic risk assessment soil screening levels (23 mg/kg Hg).  The study also demonstrated levels of accuracy and precision for the method that rivaled traditional laboratory methods.  In a split-sample comparison with laboratory Method 7471A, field XRF results agreed with an R2 of 0.93 and a median coefficient of variation of 15%.  Precision estimates from duplicate and triplicate samples were not statistically different between the two methods and were constrained by sample heterogeneity rather than by method capabilities.

The study demonstrated that handheld XRF can be successfully used at contaminated sites to achieve high quality Hg results that are accurate, precise, and at a level of sensitivity commensurate with generic risk assessment screening levels.

Schematic of an X-ray fluorescence (XRF) device

WSP expands water and environmental expertise in U.S.

WSP Global Inc. (Montreal, Quebec) recently acquired Leggette, Brashears and Graham Inc. (LBG, Shelton, Conn.), a 150-employee groundwater and environmental engineering services firm.  Founded in 1944, LBG has 17 offices and expertise in hydrogeology, groundwater and surface water modeling, dewatering and depressurization, environmental investigation and remediation.  

It is reputed to be the first consulting firm in the United States to specialize in groundwater geology.  The acquisition aligns with WSP’s 2015-2018 Strategic Plan and will bolster WSP’s Water and Environment practice by increasing its groundwater geology capabilities, strengthening its environmental services expertise, and expanding its national footprint.  WSP acquired Schlumberger Water Services in 2016.  Following the LBG acquisition, WSP’s water and environment business line in the United States comprises more than 600 employees in 40 locations across the country.

 

Arcadis achieves U.S. Department of Defense Accreditation

Arcadis, a design and consultancy firm for natural and built assets, recently announced that it achieved U.S. Department of Defense (DoD) accreditation for its Advanced Geophysical Classification (AGC) quality and technical platforms, enabling Arcadis to identify, test and remove explosive hazards at defense sites and avoid costly excavation of non-explosive debris.

Arcadis was accredited by the American Association for Laboratory Accreditation (A2LA) to perform AGC under the DoD AGC Program to perform complex subsurface munitions identification work.  Accreditation is based on the internationally recognized ISO/IEC 17025 standard and is achieved through a multi-step process including the review, assessment and on-site audit of the Arcadis Quality Management System and demonstration of ability to classify subsurface metallic objects as munitions at a DoD test site.

AGC is an innovative approach to munitions response remediation activities because it classifies subsurface objects as unexploded ordnance potentially containing explosive hazards or non-hazardous materials that can be left in the ground.  Using AGC significantly reduces the number of subsurface objects requiring intrusive investigation and reduces remediation completion costs. The DoD anticipates AGC will significantly reduce their environmental liability by millions of dollars and will accelerate the cleanup of defense sites.

AGC has been successfully used at sites across the U.S. for the DoD Environmental Securities Technology Certification Program, the U.S. Army Corps of Engineers and the U.S. Navy, including a contract with the U.S. Army Engineering and Support Center Huntsville to locate and safely remove World War II-era military ordnance from residential and recreational areas at Fort Pierce, Florida.

Aracadis Advanced Geophysical Classification Equipment

 

Canadian Brownie Award Nominations Deadline – September 15th

There is still time to nominate for the Canadian Brownie Awards!

The Brownie Awards recognize the builders, innovators and visionaries who are dedicated to the rehabilitation of brownfield sites that were once contaminated, under-utilized and undeveloped into productive residential and commercial projects that contribute to the growth of healthy communities across Canada.

The Brownies are open to everyone in the Canadian brownfield community.

The Brownies are designed to recognize excellence in projects or programs. Any organization involved in brownfield redevelopment in Canada can submit a nomination – municipalities, utilities, developers, consultants, property owners, non-governmental organizations, regulators, etc. – either on behalf of someone else or for its own work.

If you have completed, or are working on, a project that fits in one of the award categories below, please consider submitting a nomination. NOMINATIONS CLOSE FRIDAY, SEPTEMBER 15.

The Brownie Awards will be presented on
Wednesday, November 22, 2017
at a gala celebration at the Delta Toronto Hotel.
Reception: 5 p.m.  •  Dinner: 6 p.m.

For award category sponsorships, corporate tables or single tickets, please contact:
Elena Langlois • elena@actualmedia.ca • (416) 444-5842 ext. 151

Canadian company fined $100,000 for contravening dry-cleaning regulations

Recently, Dalex Canada Inc., located in Concord, Ontario, pleaded guilty in the Ontario Court of Justice to one count of contravening the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations made pursuant to the Canadian Environmental Protection Act, 1999.  Dalex Canada Inc. was fined $100,000, which will be directed to the Environmental Damages Fund.  The Environmental Damages Fund is administered by Environment and Climate Change Canada. Created in 1995, it provides a way to direct funds received as a result of fines, court orders, and voluntary payments to projects that will benefit our natural environment.

Dalex Headquarters, Concord, Ontario

Environment and Climate Change Canada enforcement officers conducted inspections in 2014 and identified instances where tetrachloroethylene was being sold to owners and operators of dry-cleaning facilities who did not meet regulatory standards.  As a result of Environment and Climate Change Canada’s subsequent investigation, Dalex Canada Inc. pleaded guilty to selling tetrachloroethylene to an owner or operator of a dry-cleaning facility who was not in compliance with the regulations.  The regulations prohibit anyone from selling tetrachloroethylene to dry cleaners unless the dry-cleaning facility is compliant with certain sections of the regulations.

In addition to the fine, the court ordered Dalex Canada Inc. to publish an article in an industry publication, subject to Environment and Climate Change Canada’s approval.  Dalex Canada Inc. is also required to notify Environment and Climate Change Canada before resuming sales of the regulated product to dry cleaners. As a result of this conviction, the company’s name will be added to the federal Environmental Offenders Registry.  The Environmental Offenders Registry contains information on convictions of corporations registered for offences committed under certain federal environmental laws.

Tetrachloroethylene, also known as PERC, enters the environment through the atmosphere, where it can damage plants and find its way into ground water.

Labrador Dump to be converted to Wetland

As reported by the CBC, The Canadian Department of National Defence is cleaning up an old dump in Happy Valley-Goose Bay, Newfoundland and Labrador.

Crews are working to clean up the old dump used by the 5 Wing Goose Bay base, and will be creating an engineered wetland to filter out potential contaminants in the soil.

Happy Valley-Goose Bay is a town of 8,000 people in the located in in the central part of Labrador on the coast of Lake Melville and the Grand River, near the North Atlantic Ocean.

This kind of wetland differs from others that focus on preserving at-risk species of ducks and waterfowl, says Lori Whalen, contaminated sites manager with the Department of National Defence.

“An engineered wetland is a passive designed wetland that is meant to be part of a remedial system, so it’s actually acting like a filter,” she said.

Lori Whalen, contaminated sites manager with the Department of National Defence (Photo Credit: Gary Moore/CBC)

The site was used as the main dump for 5 Wing Goose Bay, and Whalen said the pollution is mainly a legacy of the American Air Force when they used the base in the mid- to late 1900s.

At that time, Whalen said, there were not environmental regulations in place to ensure things were disposed of properly.

“We have material from domestic waste, construction debris, barrels that would have contained fuels and lubricating materials, even vehicles … that were just thrown over the bank,” Whalen said.

The Goose Bay Remediation Program has a $13.5-million cost and is part of a larger federal government program to clean up contaminated sites around Canada.

A majority of the work will be done this summer, National Defence said, and while it continues, people are being asked to steer clear of the site.

Whalen said this project should help ease concerns in the community over the years that pollution from the base could be affecting the water.

“The extensive sampling programs that we’ve done over the past 20 years points out that drinking water is safe for consumption,” Whalen said.

“The surface water that’s flowing through the culverts off site is below the appropriate criteria and we haven’t seen any issues in the ground water as well.”

Aerial view of the Goose Bay remediation project

Meanwhile, people in the community like John Hickey, who has been pushing for the base’s cleanup since he was mayor in the early 2000s, said there’s plenty more to be done.

“When it comes to the environment, we’ll never be satisfied,” said Hickey, who was also an MHA for the area.

“We have to ensure now that, while this work is being done, other work that needs to be done is identified and is cleaned up.”

But Hickey said he is happy to see this site getting the attention it deserves.

“This is going to be, I think, a very nice place when it’s finished and completed,” Hickey said.

“I think you’ll see a lot of waterfowl and things moving in to the area, which is all good for our community.”

Former B.C. Environment Minister Sued for Shutting Contaminated Soil Landfill

As reported in the Vancouver Sun, The owner of a Shawnigan Lake quarry that was used as a landfill for contaminated soil is suing the provincial government and the former minister who ordered it shut down.

Cobble Hill Holdings Ltd. recently filed suit in B.C. Supreme Court against the Province of British Columbia and Mary Polak, who was the B.C. Liberal environment minister and is still the MLA for Langley.

(Image: Shawnigan Lake, Canada. 6 Dec 2015. The containment system currently employed at the
SIA/SIRM Contaminated-Soil dumpsite, designed to prevent contaminants from travelling
into the Shawnigan Lake watershed. c Laura Colpitts)

The company said it is seeking general damages, special damages, aggravated damages, punitive damages, special costs and any other relief as the court “may deem fit to grant.” No amounts were specified other than “to be assessed.”

No statement of defence has been filed, either by Polak or the province.

In February 2017, while still environment minister, Polak cancelled the permit that allowed Cobble Hill Holdings to receive and store contaminated soil at its former rock quarry upstream of Shawnigan Lake.

Polak said the company had failed to meet a government deadline for an irrevocable letter of credit that would serve as a financial security.

In its suit, Cobble Hill Holdings says the government had not specified any form or amount for that credit, and had not approved the plans that would have been the basis of the financial guarantee.

The company’s operating permit, issued in 2013, had been suspended in January when the Environment Ministry asked for the financial security as well as a closure plan, including a cost estimate, and water management review reports.

Cobble Hill Holdings said it submitted updated plans to the ministry for approval on Feb. 20. Three days later, its permit was cancelled.

As a result, the suit says, the land is contaminated and Cobble Hill Holdings has suffered financial damages.

Cobble Hill Holdings had decided to lease the lands to South Island Resource Management and notified the ministry that that company would be the primary operator of the permit, the suit says.

Cancellation of the permit resulted in the termination of the lease, which had required South Island Resource Management to pay Cobble Hill Holdings $50,000 a month.

The permit issued in 2013 allowed Cobble Hill Holdings to receive and store up to 100,000 tonnes of contaminated soil a year at its quarry.

It was upheld by the Environmental Appeal Board in 2015, but faced multiple court challenges before it was cancelled in February.

Much of the contaminated soil was from construction sites in Greater Victoria.

Shawnigan Lake residents expressed concern about contaminants leaching into their water supply, and packed open houses to voice opposition.

Demonstrators at the landfill were arrested for blocking trucks delivering the soil. They also went to the legislature to complain to the government.

Polak said repeatedly that the issue was a matter between the company, Environment Ministry technicians and the courts.

When the permit was cancelled in February, the government stressed the decision had nothing to do with any pollution detected or any legal issue being contended.

“To be clear, the permit was not cancelled due to pollution occurring, nor was it directly related to anything before the courts,” the Environment Ministry said in a statement.

“The decision was made on the principle of escalating enforcement and repeated failure by the company to meet deadlines and comply with permit requirements.”

BC Ministry of the Environment – New Draft Analytical Methods Posted for Review

New draft analytical methods listed below, were developed by the B.C. Environment Ministry with the assistance of the British Columbia Environmental Laboratory Technical Advisory Committee (BCELTAC).  They were recently posted for review and comment to the ministry’s Sampling, Methods & Quality Assurance webpage, BC Environmental Laboratory Manual, “Methods Posted for Review”.

  1. Liquid-Solid Partitioning (Leachability) of VOCs – Prescriptive
  2. Asbestos in Water by Transmission Electron Microscopy (TEM) – Prescriptive
  3. Perfluorinated Alkyl Acids (PFAA) in Soils by LC/MS/MS – PBM
  4. Perfluorinated Alkyl Acids (PFAA) in Water by LC/MS/MS – PBM

The majority of these new draft methods have been developed in support of the Stage 10 (Omnibus) amendment to the B.C. Contaminated Sites Regulation.

The B.C. Ministry of the Environment is asking for comments on the new methods by September 5, 2017.  Comments can be sent to Joyce Austin, Senior Provincial Laboratory Specialist, Knowledge Management Branch at Joyce.Austin@gov.bc.ca.

Technical questions regarding the proposed new method should be directed to: Mark Hugdahl (BCELTAC Chair) at Mark.Hugdahl@alsglobal.com.

 

CHAR Technologies Ltd. Announces Approval of $1 Million Grant

CHAR Technologies Ltd. (the “CHAR”) (YES – TSXV) is pleased to announce that it has been approved for a grant totalling $1 million provided by the Government of Ontario through the Ontario Centres of Excellence (“OCE”). The grant is in support of CHAR’s current SulfaCHAR production project, which has previously received funding and support from both Sustainable Development Technology Canada (“SDTC”) and the Canadian Gas Association (“CGA”).

“This grant will allow CHAR to both redeploy financial resources currently committed to the SulfaCHAR project, while at the same time will allow CHAR to expand the scope of the project,” said Andrew White, CEO of CHAR. “The funding recognizes the carbon-related benefits of the project, and will allow CHAR to more rapidly execute on the production and use of SulfaCHAR.”

Funding will be disbursed on completion of three milestones. CHAR has received initial funding of $237,759, and will receive three additional payments on milestone and project completion.

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 OCE
Ontario Centres of Excellence (OCE) drives the commercialization of cutting-edge research across key market sectors to build the economy of tomorrow and secure Ontario’s global competitiveness. In doing this, OCE fosters the training and development of the next generation of innovators and entrepreneurs and is a key partner with Ontario’s industry, universities, colleges, research hospitals, investors and governments. OCE is a key partner in delivering Ontario’s Innovation Agenda as a member of the province’s Ontario Network of Entrepreneurs (ONE). Funded by the Government of Ontario, the ONE is made up of regional and sector-focused organizations and helps Ontario-based entrepreneurs rapidly grow their company and create jobs.