Canadian Environmental Code of Practice for AST’s and UST’s

The Canadian Council of Ministers of the Environment (CCME) recently updated the Note to Reader of the Environmental Code of Practice for Aboveground and Underground Storage Tank Systems Containing Petroleum and Allied Petroleum Products to reflect Canadian Standards Association standard CAN/CSA-B837-14.  The new standard addresses collapsible fabric storage tanks.  Please click on the following link for details: http://www.ccme.ca/en/resources/contaminated_site_management/management.html

Ontario’s $25.8 Million in Funding Available For Low Carbon Innovations

The government of the province of Ontario, Canada recently announced $25.8 million has been allocated to the Low Carbon Innovation Fund (LCIF) as a part of the province’s Climate Change Action Plan.  The funding will be used to support emerging, innovative technologies in areas such as alternative energy generation and conservation, new biofuels or bio-products, next-generation transportation or novel carbon capture and usage technologies.  Innovative remediation projects that can prove to be low-carbon innovations will be considered for funding.

Funding is available either from:

  • The Technology Demonstration stream, which aims to support the development and commercialization of innovative low carbon technologies through testing in real-world settings; or
  • The Technology Validation stream, which aims to fund proof-of-concept or prototype projects from eligible Ontario companies or academic organizations to help them get to market faster.

To be eligible for LCIF, projects must be conducted in Ontario and must show significant potential to reduce greenhouse gas emissions in Ontario.  Ontario’s Climate Change Action Plan is key to its achievement of its goal of cutting greenhouse gas pollution to 15 percent below 1990 levels by 2020, 37 percent below by 2030, and 80 percent below by 2050.

The deadline for the first round of funding was September 24th, 2017.  Notification on successful applications will be announced later this month.

Potential $9 million incentive to Developer for Clean-up and Develop Brownfield Site in Ottawa

As reported by the CBC, Ottawa city staff are proposing to offer a developer more than $9 million in incentives to build a multi-use building with three residential towers across from the future Bayview Station light rail station, approximately 2 kilometers (one mile) west of Parliament Hill.

TIP Albert GP Inc. owns the property at 900 Albert St. at the corner of Albert and City Centre Avenue, and is proposing a building that would have 1,632 residential units as well as retail and office space.

The site, a one-time rail yard and later a storage yard and snow disposal site, is eligible for the city’s brownfields rehabilitation grant program.  Under the program, developers can apply to have municipal development charges and soil remediation costs reduced, up to about half the expected cost of the cleanup.

City staff are recommending a grant not exceeding $8,255,397 over a maximum of 10 years, according to a report tabled in advance of next week’s finance and economic development committee meeting.

The property is also along the path of city sanitary and storm sewers, and for the development to go forward, the builder will have to move that infrastructure to an adjacent city property.

While the developer would pay for that work to be done, the city would have to release their eight easements on the property.

While normally the city would get market value from a developer for giving up those easements — an estimated $920,000 — city staff are proposing waiving that policy to make the project happen.

Somerset Ward Coun. Catherine McKenney, in a comment appended to the report, wrote that while she supported the brownfield grant, she couldn’t support waiving the encroachment fee, calling it “premature.”

“As this application is still under negotiation I believe it would be more prudent to measure the total monetary value to be waived against measurable features of the proposed development in its final form as ultimately presented to committee and council,” she wrote.

McKenney said such features would include affordable housing and contributions to active transportation networks like cycling and walking paths.

The development is not the only project being considered for a grant at next week’s committee meeting.

City staff are also proposing a grant of up to $2,320,420 over a maximum of 10 years to Colonnade Development Inc. to build a hotel near the Department of National Defence headquarters.

That grant, for the property at 300 Moodie Dr., would come from the Bells Corners Community Improvement Plan, which aims to encourage development in the area.

It would provide what would amount to a 75 per cent property tax break after the property is developed. If the development doesn’t happen, no grant would be paid.

Colonnade is proposing a restaurant with a drive-thru and a six-storey, 124-room hotel. Right now, the site is home to a Salvation Army thrift store, an automotive repair garage and auto parts distributor.

The finance and economic development committee will consider both proposals.

One Proposal for Development of 900 Albert Street, Ottawa

U.S. EPA Funding for Small Business Innovation Research

The United States Environmental Protection Agency (U.S. EPA) is pre-soliciting companies interested in bidding on $100,000 grants under the Agency’s Small Business Innovation Research (SBIR) Program.  Under the program, the U.S. EPA will award about 12 firm-fixed-price contracts of $100,000 each under during FY 2018 to small businesses that propose winning research proposals.

The U.S. EPA has identified six topic areas of priority for feasibility-related research or R&D efforts including removal of PFOA/PFOS from drinking water, removal of PFOA/PFOS from wastewater, and remediation of PFAS-contaminated soil and sediment.

The anticipated release date of the solicitation is October 17, 2017, with proposals likely due December 7, 2017.  The U.S. EPA will grant the awards June 30, 2018, each with a 6-month period of performance.  For more information, see http://www.epa.gov/sbir/sbir-funding-opportunities.

TURI Publishes Nanomaterials Fact Sheet

Recently, the Toxics Use Reduction Institute (TURI), a research, education, and policy center established by the Massachusetts Toxics Use Reduction Act of 1989, published a nanomaterials fact sheet.  The fact sheet is part of a series of chemical and material fact sheets developed by TURI that are intended to help Massachusetts companies, community organizations, and residents understand the use of hazardous substances and their effects on human health and the environment.  The fact sheet also includes information on safer alternatives and safer use options.

According to the fact sheet, TURI researchers have started a blueprint for design rules for safer nanotechnology.  The design rules include five principles, which together follow the acronym SAFER, as shown below.  The principles focus on aspects such as modifying physical-chemical characteristics of the material to diminish the hazard, considering alternative materials, and enclosing the material within another, less hazardous, material.  The fact sheet notes that other researchers have proposed other more specific design rules, which include avoiding chemical compositions of engineered nanomaterials that contain known toxic elements, and avoiding nanomaterials with dimensions that are known to possess hazardous properties.

Design Principles for SAFER Nanotechnology

  1. Size, surface, and structure: Diminish or eliminate the hazard by changing the size, surface, or structure of the nanoparticle while preserving the functionality of the nanomaterial for the specific application;
  2. Alternative materials: Identify either nano or bulk safer alternatives that can be used to replace a hazardous nanoparticle;
  3. Functionalization: Add additional molecules (or atoms) to the nanomaterial to diminish or eliminate the hazard while preserving desired properties for a specific application;
  4. Encapsulation: Enclose a nanoparticle within another less hazardous material; and
  5. Reduce the quantity: In situations where the above design principles cannot be used to reduce or eliminate the hazard of a nanomaterial, and continued use is necessary, investigate opportunities to use smaller quantities while still maintaining product functionality.

The fact sheet provides a summary of regulations concerning nanomaterials.  Massachusetts currently has no regulations specifically governing the use or release of nanomaterials.  At the federal level, the U.S. Environmental Protection Agency (EPA) primarily regulates nanomaterials under the Toxic Substances Control Act.

The fact sheet notes that as of 2017, companies using or manufacturing nanomaterials that have not been subject to pre-manufacture notices or significant new use rules will be subject to a one-time reporting and recordkeeping rule.

Confirming the Chemical Identity

Philip Tackett, a certified HAZMAT responder and a Product Manager at FLIR, discusses its latest tool for chemical identification

 

By Philip Tackett

Civilian and military responders face scenarios ranging from intentional chemical attacks and accidental hazardous material (HAZMAT) releases to natural disasters and environmental monitoring or remediation efforts.  Responders step on-scene with a diverse toolkit – sometimes small and other times extensive.  It is critical to stay familiar with the equipment in the kit, because no single chemical detection tool can provide answers for every scenario.

Colorimetric test kits are one of the most commonly used technologies for quickly collecting presumptive information about a chemical.  They are used to determine if a threat is present and determine its chemical class.  This information is important, but knowing the exact identity of a chemical can inform a safer response.  True chemical identity can provide information to responders and law enforcement officials beyond the initial threat, and lead to further discoveries to further safeguard the public.

Griffin G510

While some detectors only indicate the presence of a chemical, others specifically detect hazards in the presence of a complex chemical background, like a gas chromatograph mass spectrometer (GC/MS).  GC/MS is an incredibly sensitive and highly specific tool commonly used in laboratory environments.  It can sense trace level chemicals other equipment can’t, while also providing the ability to positively identify the chemical.  But chemical emergencies don’t just happen in laboratories – they can happen anywhere.

Real-time chemical detection and identification in the field is critical to the Chemical, biological, radiological, nuclear, and explosives (CBRNE) defense or HAZMAT response mission.  Confirmatory chemical identification enables responders to mitigate a threat and protect people and the environment from harm.

The most challenging aspects of taking gold-standard technology like GC/MS into the field is survivability in harsh environments and ease of use.  Significant technological advancements have led to the development of the FLIR Griffin G510 person-portable GC/MS system.  Its lab-quality detection performance, simple-to-use interface, and rugged construction are ideal for high-consequence response missions.

Response missions take place in complex environments that the GC/MS must withstand.  The Griffin G510 is completely self-contained in a 36-pound device, including batteries, carrier gas, vacuum system, injector, and heated sample probe.  It is also the first IP65-rated portable GC/MS.  This means it’s dust-tight and spray-resistant, which adds flexibility to decontamination procedures.  There is no 40-pound external service module like other portable GC/MS systems and no 20-pound external pump under the bench like those seen in a laboratory.  Batteries last up to four hours and are hot swappable, should the mission extend longer than expected, which eliminates the need for a power generator.  The Griffin G510 is designed from the ground up to operate outside of the lab.

Griffin G510 syringe injection

Hazmat technicians will dive into using the features that deliver lab-quality analysis.  First on-scene operators will appreciate that they don’t need a Ph.D. to use it.  Basic operator training is completed in only two hours, while expert training can be completed in a single day.  The user interface truly sets it apart from other portable GC/MS systems.  It’s streamlined design and guided controls help the user select the mode of operation.  First responders must perform quickly and with limited dexterity when wearing required PPE.  They are responsible for sample and data collection, and in some cases, real-time decision making.  The G510 alerts the operator with visual alarm confirmation both on the handheld probe, as well as the on-board 9” touchscreen.  The large touchscreen can be operated by a responder while wearing full personal protective equipment (PPE).

Hazmat responders can use the Griffin G510 to analyze all phases of matter (solid, liquid, gas). Its integrated survey mode capability identifies vapor-phase chemical threats within seconds.  Its integrated split/splitless liquid injector enables responders to perform direct injection of organic liquids – an industry first.  This same injector also accepts other sampling tools, including solid-phase microextraction (SPME), off-the-shelf headspace analyzers, and the Prepless Sample Introduction (PSI) Probe.  The PSI-Probe directly accepts solid samples in their native form (such as soil and water-based materials).  The Griffin G510 reduces the burden of sample preparation for the operator and provides ultimate flexibility as the daily mission changes.

Hazardous environments demand the ultimate toolbox include confirmatory instrumentation like GC/MS. The Griffin G510 portable GC/MS redefines performance, ease of use, and value for the responder toolkit.

Griffin G510 – checking readout

CERCLA Trumps As-Is Sales

By Steven L. Hoch, Attorney, Clark Hill

A federal court in Alaska assessed responsibility against the City of Fairbanks (City) for remediation costs found necessary to clean up property it previously owned.  The court concluded that the City should have mitigated the problem or at least warned the purchaser about the contamination, even though the property was sold “As-Is”.  Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability is assessed without reference to cause.  Further, the court said that numerous courts have held that CERCLA liability cannot be defeated by contract, unless specifically and clearly addressed in the contract language.

In Gavora, Inc. v. City of Fairbanks , Case No. 4:15–cv-00015-SLG, BL 256894 (D. Alaska July 25, 2017), the City owned two parcels of land and Gavora held leasehold on one of the parcels. For a considerable length of time, a dry cleaning business operated in the shopping center located on their parcel.  Eventually, the contamination drew the attention of the State of Alaska, who told the City about the contamination and that they suspected the contamination migrated from that parcel to the other.  While the State did not verify the findings, the district court found it clear that the City knew or should have known that the first parcel was also contaminated.

Fairbanks Mall – Satellite Image showing borehole and monitoring well locations as well as PCE contamination levels

The City sold the first parcel to Gavora on an “As-Is, Where-Is” basis.  This sale occurred 10 years after the City first learned of the contamination on the second parcel.  When the purchase took place, Gavora did not perform its own environmental assessment.  Five years later, contamination was discovered on the first parcel owned by Gavora.  Lacking options, Gavora remediated the parcel and sued the City of Fairbanks for contribution.

Even though the sale was “As-Is”, the court nevertheless held the seller liable. Further, the court allocated 55% of the costs to the City and 45% of the costs to the current owner. The court rationalized that this allocation was appropriate because (1) the city knew or should have known of the contamination, yet failed to inform the purchaser; (2) the current owner made substantial corrective action efforts upon learning of the problem whereas the City took no action, and (3) it would be inequitable to hold the current owner responsible for contamination occurring prior to its master lease, but the court could not “effectively apportion the contamination”, but (4) the current owner would obtain a greater benefit than the prior owner from the remediation.

In the final analysis this case affirms that “As-Is” does not exculpate a seller from CERCLA liability, and that not disclosing contamination even when it did not make any representation to the contrary. As this was a district court opinion, it does not have significant legal value, but should not be dismissed out of hand when confronting similar issues.

 

This article was first published on the Clark Hill website.

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About the author

Steven Hoch has over 40 years of experience with both federal and state environmental laws and regulations in the context of permitting, regulatory proceedings, litigation, enforcement actions, water supply, public policy formation, and advice.  His work includes contamination of land and ground and surface water.  Steven has critical experience in the areas of environmental law and the federal and state Safe Drinking Water Acts, Title 23, water supply, and the mechanics of water distribution.  His experience also extends to groundwater modeling and water quality testing.  He also has significant experience in hazardous substances and waste handling practices, remediation, soil erosion, and claims of toxic exposures

Steven has in-depth experience working with numerous public water systems throughout the state.  He has also established a sterling reputation for his work with the Regional Water Quality Control Boards, the Department of Toxic Substance Control, and the United States Environmental Protection Agency both in the administrative and litigation.  His clients range from the country’s largest municipal water agency to individuals selling or buying contaminated sites.

Steven often takes primary roles in many environmental trials, and has served as liaison counsel for groups or parties at the request of fellow counsel.  He has been involved in several landmark cases, including acting as PG&E’s counsel in the case made famous by the movie Erin Brockovich.

 

The Ninth Circuit Reiterates That “Knowingly” Handling Hazardous Waste Without a Permit Is a General Intent Crime Under RCRA

By Richard E. Stultz

Max Spatig was convicted of knowingly storing and disposing of hazardous waste without a permit and sentenced by the U.S. District Court for the District of Idaho to 46 months in prison under 42 U.S.C. § 6928(d)(2)(A). See U.S. v Spatig (2017) 2017 WL 4018398.  At trial, Spatig had sought to introduce evidence on his diminished capacity arguing that he did not have the required state of mind for the offense.  The district court, however, granted the government’s motion in limine to exclude all such evidence because § 6928(d)(2)(A) under the Resource Conservation and Recovery Act (RCRA) only required general intent and diminished capacity was not a defense to a general intent crime.

For years, Spatig had operated a business which used paint and paint-related materials.  Over time Spatig had accumulated several used containers of this material, some of which ended up on his residential property in Idaho.  In 2005, the county discovered the several containers and reported it to the Idaho Department of Environmental Quality (DEQ). Working with Spatig, DEQ collected and destroyed most of the containers.  In 2010, Spatig was again found to be storing used containers of paint and paint related materials on another of his properties.  This time the job was too big for local or state authorities so the U.S. Environmental Protection Agency (EPA) was notified.  The U.S. EPA determined that the waste was hazardous and that a cleanup was necessary. The U.S. EPA removed approximately 3400 containers and spent $498,562 on the cleanup.  The EPA charged Spatig with violation of § 6928(d)(2)(A) for knowingly storing and disposing of a hazardous waste without a permit from either DEQ or the U.S. EPA.

Paint cans at a property off the Archer-Lyman Highway near Rexburg, Idaho

Spatig appealed his trial conviction and argued on appeal that § 6928(d)(2)(A) required specific intent.  He also took issue with the district court’s enhancement of his base sentence arguing that the cleanup did not result in a “substantial expenditure.”  The Ninth Circuit Court of Appeals, however, disagreed with Spatig and affirmed the district court.

Under § 6928(d)(2)(A), a person may not “knowingly” treat, store or dispose of a hazardous waste without a permit.  According to the U.S. Supreme Court, “‘knowingly’ merely requires proof of knowledge of the facts that constitute the offense.”  The Ninth Circuit had also held that “knowingly” generally does not require specific intent.  In other words, a defendant’s particular purpose or objective is not required.  The Ninth Circuit previously rejected the argument that § 6928(d)(2)(A) required that a defendant know there was no permit for disposal.  The court held there that “knowingly” only required “that a defendant be aware that he is treating, storing, or disposing of something that he knows is hazardous.”  The court found that RCRA was a public-welfare statute and that “§6928(d)(2)(A) fits within a class of general-intent crimes that protect public health, safety, and welfare.”  Because § 6928(d)(2)(A) only requires general intent, the Ninth Circuit upheld the district court’s exclusion of evidence at trial of Spatig’s state of mind.

Spatig argued that his sentence enhancement was error because the cleanup did not constitute a “substantial expenditure” required under the federal sentencing guidelines (U.S.S.G. § 2Q1.2(b)(3)).  The Ninth Circuit refused to establish a bright-line rule but noted that sister circuits had found that expenditures under $200,000 were “substantial.”  In upholding the district court, the Ninth Circuit noted that in the instant case the $498,562 underestimated the total cost because it did not include the local agencies’ expenditures.

This holding underscores the long-standing general purpose of environmental laws to protect the public welfare. These statutes do not generally require specific intent—only knowing of the act is required.

This article was first published on the Clark Hill website.

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About the author

Richard E. Stultz brings over eighteen years of experience in the environmental, land development and petroleum industries to bear in his practice of law. In addition to his law degree, he also earned a Bachelor of Science in Petroleum Engineering. Richard’s practice is currently focused on environmental litigation.

Richard is experienced in law and motion filings and hearings. He is practiced in written discovery and legal research. Richard has even co-written a First Amendment argument submitted before the California Court of Appeal. He is familiar with California’s environmental laws and regulations.

While in law school, Richard interned at the Los Angeles City Attorney’s Office in the Real Property/Environment division. He researched and prepared a key memorandum regarding good will compensation in eminent domain.

U.S. EPA Evaluates Hurricane Harvey impact on U.S. Superfund Sites in Texas

In a September 8th update, the U.S. Environmental Protection Agency (U.S. EPA) and the Texas Commission of Environmental Quality (TCEQ) stated that the two agencies continue to get updates about the status of specific Superfund sites from the parties responsible for ongoing cleanup of the sites.  The TCEQ has completed the assessment of all 17 state Superfund sites in the area affected by Hurricane Harvey.  The two agencies reported that there were no major issues noted.  The TCEQ will continue to monitor sites to ensure no further action is needed in regards to the storm.

The U.S. EPA completed site assessments at all 43 Superfund sites affected by the storm.  Of these sites, two (San Jacinto and U.S. Oil Recovery) require additional assessment efforts.  Assessments of these sites will take several more days to complete.

Harris County, Texas Superfund Sites Map

 

The San Jacinto Waste Pits site has a temporary armored cap designed to prevent migration of hazardous material.  The U.S. EPA remedial manager is onsite and overseeing the assessment.  Crews continue to survey portions of the cap that are submerged.  There are some areas where rock has been displaced and the liner is exposed.  The potential responsible party has mobilized heavy equipment and is placing rock on different places on the armored cap to repair the defensive surface. The liner is in place and functional so we don’t have any indication that the underlying waste materials have been exposed. If we find a breach in the exposed liner, we direct the responsible party to collect samples to determine if any materials have been released. Also, the EPA has dive teams to survey the cap underwater if needed.

Work to improve conditions after the storm has continued at the U.S. Oil Recovery site to address flood water from the storm.  Nine vacuum truckloads of approximately 45,000 gallons of storm water were removed and shipped offsite for disposal.  No sheen or odor was observed in the overflowing water, and an additional tank is being used to maintain freeboard to keep water on-site.  The U.S. EPA has directed potential responsible parties or has independently started collecting samples at the 43 Superfund sites to further confirm any impacts from the storm.  The total number of Superfund sites increased from 41 to 43 with the addition of Rapides Parish, Louisiana and Waller County, Texas as disaster declared areas.  Sampling efforts of all 43 sites is expected to be completed early next week with sample results will be available soon.

Victoria, B.C. faces Major Bill to Clean up Contaminated Park

As reported in Victoria News, Laurel Point Park is contaminated and the City of Victoria is looking at a potential $5-million bill to clean it up.

The City will spend up to $350,000 to confirm the degree of contamination and create a remediation plan.

The park, located along the David Foster Harbour Pathway next to property owned by Transport Canada, is contaminated with high levels of metal and petroleum hydrocarbons in the soil and groundwater, according to a staff report presented to council last week. Chemical discharges from nearby property likely contaminated the aquatic environment, water and the soil because of area’s industrial past, the report stated.

Laurel Point Park, Victoria, B.C.

For now, there is little risk to the public.  Counsellor Chris Coleman said the contamination is capped and secured, as long as it is left alone.

“If there was (a risk to the public), then we would close the park,” he said.

“It’s the sort of thing that we’ve seen in the past, when there was leeching from the Hartland Road landfill,” Coleman added. “It went into the groundwater … it then caused an algal bloom in the Butchart Gardens. That’s what you’re trying to control for here.”

The park, and the surrounding lands on the Laurel Point peninsula, were burial grounds for the Songhees people prior to 1885, after which it was used by various industrial facilities, including paint factories, machine shops, and for processing coal and oil.

Victoria council approved the next stage of SLR Consulting’s environmental investigation using money from the environmental remediation funds in city’s financial plan for 2017.

The next step in the process is a risk assessment, with an estimated cost of up to $150,000. It will take an additional $50,000 for the remediation plan, and up to $5 million to put the plan into action.

The surrounding land owned by Transport Canada will also have to be excavated and disposed off-site, according to preliminary reports.