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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.

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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.

Canadian Brownfield Award Winners

Sixteen projects, representing municipalities from across Canada, were named as finalists for six main categories at the Brownie Awards sponsored by The Canadian Brownfields Network (CBN) and Actual Media Inc.  The Brownie Awards recognize the rehabilitation efforts of brownfield sites in Canada, which are former industrial sites that are vacant or underused.

The six Brownie Awards categories for which nominations are accepted are: REPROGRAM, REMEDIATE, REINVEST, REBUILD, RENEW and REACH OUT.  There are three other awards that acknowledge the best small-scale project, best large-scale project, and best overall project for 2017; all projects are eligible for these three awards.  In addition, we present the “Brownfielder” of the Year.

The 2017 Brownie Award winners were announced during a gala dinner at the Delta Hotels Toronto on Wednesday, November 22nd, 2017.

The winners (in bold) and finalists for the 2017 Brownie Award Finalists are:

Category 1:  REPROGRAM – Legislation, Policy and Program Initiatives

  • Contaminated Sites Approved Professionals Society, British Columbia
  • Excess Soils Bylaw Tool, Ontario
  • Toronto Portlands Due Diligence, Ontario

Category 2:  REMEDIATE – Sustainable Remediation and Technological Innovation

  • New Calumet Mine, Ile-du-Grand-Calumet, Québec
  • BC Hydro Rock Bay Project, Victoria, British Columbia
  • Triovest Block M, Hamilton, Ontario

Category 3:  REINVEST – Financing, Risk Management and Partnerships

  • Port Credit West, Mississauga, Ontario
  • SunMine, Kimberley, British Columbia

Category 4:  REBUILD – Redevelopment at the Local, Site Scale

  • New Eva’s Phoenix, Toronto, Ontario
  • Broadview Hotel, Toronto, Ontario

Category 5:  RENEW – Redevelopment at the Community Scale

  • 4th Avenue Flyover, Calgary, Alberta
  • The askiy project, Saskatoon, Saskatchewan
  • East Bayfront/Bayside Development, Toronto, Ontario
  • East Village Junction, Calgary, Alberta

Category 6:  REACH OUT – Communication, Marketing and Public Engagement

  • Inspiration Port Credit, Mississauga, Ontario
  • North Pacific Cannery Conservation Master Plan, Municipality of Port Edward, British Columbia

Category 7:  Brownfielder of the Year

  • Lisa Fairweather, Alberta Environment and Parks, Edmonton, Alberta

Category 8:  Best Small Project:  the askiy project, Saskatoon, Saskatchewan

Category 9:  Best Large Project:  SunMine, Kimberley, British Columbia

Category 10:  Best Overall Project:  Toronto Portlands Due Diligence

The City of Mississauga received a 2017 Brownie Award for Inspiration Port Credit for Communication, Marketing and Public Engagement.

With Mississauga having one of the most significant brownfield sites on the north shore of Lake Ontario, it has been the focus of several community engagements. Located at 70 Mississauga Rd. S., the brownfield site is 72 acres (29 hectares) and 600 metres of Lake Ontario shoreline that neighbours the City’s historic urban waterfront village of Port Credit.

“It is a great honour for the City of Mississauga to receive this national award for our achievement in planning for and contributing to the growth of healthy communities and our remarkable waterfront,” said Mayor Bonnie Crombie. “Congratulations to the team for their hard work and dedication while ensuring the needs and interests of the community are considered.”

The City-led community engagements explored future possibilities for the site with a Master Planning Framework that will help guide redevelopment. Working with a consultant team, the City involved residents and stakeholders in a variety of interactive sessions.

“The Brownie Awards recognize the best in brownfield site restoration projects in Canada,” added Ed Sajecki, Commissioner, Planning and Building. “We are excited to receive this award and be recognized by industry experts for our communication and engagement efforts on this waterfront project. The result is a vision of the site’s future as a model of sustainability.”

Some of the Award Winners at the 2017 Brownie Awards Gala

ERIS Introduces Environmental Data Package for Mexico

In an effort to further expand coverage of North America, ERIS recently announced the launch of The Mexico Package for property due diligence, including: Database Reports, Fire Insurance Maps (FIMs), Aerials and a current Topographic Map.

MEXICO DATABASE REPORT
• Offers the familiar and easy-to-use format of the Canadian version, including an Executive Summary, a Detail Report, a map of the project property and surrounding sites within the search radius (for 1 mile), an Aerial, current Topo Map, and Unplottables.
Hyperlinked Page Numbers (in the Table of Contents and Executive Summary), Map Keys and Data Sources, to quickly access detailed information and/or the Definitions section.
• Searches 11 essential data sources, including gas stations; PCBs; collection, storage, use and disposal of hazardous industrial wastes and emissions to air, water and soil.
• Future enhancements will include Historical Topographic Maps.

MEXICO FIRE INSURANCE MAPS (FIMs)
FIM images are included in The Mexico Package, and where not available, a no records found letter will be provided for your due diligence.

MEXICO AERIALS
ERIS maintains a significant collection of Aerials, from 1991 to present day, covering all of Mexico.

PRICING
The Mexico Package: $300 USD

HOW TO ORDER
Order through your Regional Account Manager.

 

Guidance on Characterization and Remediation of Fractured Rock

The U.S. Interstate Technology and Regulatory Council (ITRC) recently released its newest guidance document, Characterization and Remediation of Fractured Rock.  The guidance addresses significant advances in skills, tools, and lessons-learned in understanding contaminant flow and transport in fractured rock environments.  If the unique characteristics of fractured rock sites are understood, then modern tools and approaches can be applied to successfully set and meet characterization and remediation goals at these sites.

Contaminated fractured rock sites have often been considered too complex to be remediated, so site managers often default to simply containing the contamination. This guidance provides a high-level introduction to the unique puzzle faced when investigating and remediating fractured rock sites. With the new strategies and technologies presented here, fractured bedrock challenges that may have prevented site remediation in the past are now surmountable.

The guidance begins with a general discussion of fractured rock characteristics and a comparison of fractured rock and porous media CSMs. The guidance further introduces the parameters necessary for developing a fractured rock CSM and stresses the need for an experienced multidisciplinary team. The 21-Compartment Model is also introduced. This model is an adaptation of the 14-Compartment Model (Sale 2011) for unconsolidated materials. This model helps its users to visualize and understand contaminant storage, flux, and flow pathways in fractured rock.

Understanding contaminant fate and transport in fractured rock allows site managers to develop a robust CSM that can guide remediation. Specific geology and lithology and structure control the unique mechanics of fluid flow in fractured rock. In addition to these physical properties, chemical properties affect fate and transport and are equally important in developing the CSM.

This guidance details specific steps in solving the puzzle of fractured rock contaminant fate and transport, including:

  • reviewing and refining the CSM
  • defining the characterization problem
  • identifying significant data gaps
  • defining data collection objectives
  • identifying potential tools for data collection
  • developing and implementing the work plan
  • managing, interpreting, and presenting the data

A downloadable and searchable Tools Selection Worksheet is provided , which was initially used in ISC-1 (ITRC 2015b). The Tools Selection Worksheet allows users to screen for tools to address specific data needs and collect qualitative, semiquantitative or quantitative data as needed. The Tools Selection Worksheet links to detailed descriptions of all the tools and to references for further information. The guidance describes how data can be managed, interpreted, and displayed. Table 5-4 presents valuable lessons learned from real-world fractured rock characterization and remediation projects.

As a CSM nears completion, the guidance offers direction for developing remedial objectives and strategies. A table shows how to assess the different remedial strategies that may address mass stored in the compartments described in the 21-Compartment Model.

Strategies for monitoring contamination for compliance, system operation, and performance are also provided. The guidance explains how to design a monitoring well network that will provide the data needed to understand site conditions, remedy performance, and compliance.

When applied properly, mathematical models are powerful tools for understanding contaminant flow. Chapter 8 describes various model types, proper application, data needs, calibration, sensitivity, and limitations.

Finally, a discussion on stakeholder and regulatory considerations are presented, followed by a collection of case studies that demonstrate practical application of the concepts presented throughout the guidance.

Click HERE to access the document.

Ontario Waste Disposal Site fined $105,000 for Failing to comply with a Court Order

Tony DePasquale and Copper Cliff Metals and Wrecking Corp. recently plead guilty to one offence under the Ontario Environmental Protection Act (EPA) for failing to comply with a Court Order to remove waste from a site.  The defendants were fined a total of $105,000 plus a victim fine surcharge of $26,250.

Tony DePasquale is the sole Director and Chief Executive Officer of Copper Cliff Metals and Wrecking Corp., which operated an approved waste disposal site on Twenty Rd. in the Regional Municipality of Niagara.

On April 8, 2010, the ministry issued a ministry order to both defendants ordering the removal of waste located on the site.  The Order was not complied with, which resulted in charges and convictions against both defendants.

As part of the conviction, the court issued a Section 190 Court Order against Mr. DePasquale and the Copper Cliff Metals and Wrecking Corp., which mandated the removal of waste pile # 16 from the site.  The order also required the waste be disposed of properly and that the defendants provide documentation and proof of removal, to the ministry by June 22, 2013.  The Court Order was not complied with.  The incidents were referred to the ministry’s Investigations and Enforcement Branch, resulting in charges and one conviction against each defendant.

The waste pile has now been removed.

U.S. Federal Brownfield Legislation: U.S. House of Representatives Passes Amendments

By Walter Wright, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

The U.S. House of Representatives (“House”) on November 30th passed amendments that would address the federal Brownfield program.

H.R. 3017 is titled the “Brownfields Enhancement, Economic Redevelopment, and Reauthorization Act of 2017” (“H.R. 3017”).

H.R. 3017 amends the Comprehensive Environmental Response, Compensation, and Liability Act and reauthorizes the United States Environmental Protection Agency’s (“EPA”)Brownfield Program.  The legislation appears to have bipartisan support.

Residential, commercial, agricultural and industrial properties are sometimes difficult to sell, redevelop, and/or finance because of perceived or real environmental contamination issues. Properties or facilities subject to such impediments are typically called “Brownfields.”

The EPA has defined a “Brownfield” as “abandoned, idled, or under-used industrial or commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination.” Besides EPA, many states have Brownfield programs whose purpose is to eliminate unnecessary barriers of the redevelopment of commercial or industrial properties which may have environmental concerns. Arkansas has had such a program for several years.

H.R. 3017 makes several changes to the federal Brownfield related statutory provisions, which include:

  • Clarifies the liability of states and local units of government that take title to property involuntarily by virtue of their function as a sovereign
  • Clarifies when sites contaminated by petroleum may be considered a Brownfield site and when a leaseholder may qualify for certain liability protections
  • Expands eligibility for nonprofit organizations and for eligible entities that took title to a Brownfield site prior to January 11, 2001
  • Increases the limit for remediation grants under the Brownfields Program, establishes multipurpose grants and allows recovery of a limited administrative cost
  • Adds to the list of criteria for the grant program, whether a grant would facilitate the production of renewable energy
  • Allows EPA to provide additional funds for small, rural, and disadvantaged communities and Indian tribes
  • Reauthorizes funding for Section 104(k) of the Comprehensive Environmental Response, Compensation, and Liability Act and Section 128(a) of the same statute

A bill addressing federal Brownfield issues has also been introduced in the Senate (“S. 822”). This bill is denominated the “Brownfields Utilization, Investment, and Local Development Act of 2017.”

Issues addressed in S.822 include:

  • Funding for technical assistance grants to small communities and rural areas
  • Expansion of the scope of eligible grant recipients to include nonprofit community groups
  • Authorization of funding from multipurpose grants to address more complex sites
  • Allow certain entities that do not qualify as bona fide perspective purchasers to be eligible to receive grants (as long as government entities did not cause or contribute to a release or threaten the release of a hazardous substance at the property)
  • Direct EPA in providing grants to give consideration to Brownfield sites located adjacent to federally designated floodplains

A copy of H.R. 3017 can be downloaded here and copy of Senate Bill 822 here.

This article was first published on the Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. website.

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About the Author

Walter G. Wright, Jr. is a member of the Business Practice Group.  His practice has focused for almost thirty years on environmental, energy (petroleum marketing), and water law.  Mr. Wright’s expertise includes counseling clients on issues involving environmental permits, compliance strategies, enforcement defense, property redevelopment issues, environmental impact statements, and procurement/management of water rights.

Mr. Wright routinely advises developers, lenders, petroleum marketers, and others about effective strategies for structuring real estate and corporate transactions to address environmental financial risks.  He also serves as General Counsel and provides legislative representation to the Arkansas Oil Marketers Association, Arkansas Recyclers Association (scrap facilities) and Arkansas Manufactured Housing Association.  A unique part of his practice has been drafting and negotiation of a variety of specialized agreements involving the sale or consignment of motor fuels along with the ancillary agreements associated with the upstream segment of the petroleum industry.