Global Emergency Spill Response Market – Trends and Forecast

Analytical Research Cognizance recently issued a report on the Global Emergency Spill Response Market.  The report focuses on detailed segmentations of the market, combined with the qualitative and quantitative analysis of each and every aspect of the classification based on type, spill material, spill environment, vertical, and geography.

The report provides a very detailed analysis of the market based on type, the emergency spill response market has been classified into products and services.  The products include booms, skimmers, dispersants and dispersant products, in-situ burning products, sorbents, transfer products, radio communication products, and vacuum products.

The report has a services section that provides a forecast on the future growth of the services sector.  The services segment has been classified into product rental services, waste management services, manpower training services, transportation and disposal services, spill response drill and exercise services, tracking and surveillance services, risk assessments and analysis services, and other services.

Scope of the Report:

This report studies the Emergency Spill Response market status and outlook of global and major regions, from angles of players, countries, product types and end industries; this report analyzes the top players in global market, and splits the Emergency Spill Response market by product type and applications/end industries.

The market is expected to have significant growth in the coming years owing to stringent environmental regulations across the world to reduce the environmental pollution from spills.

Skimmers held the largest market size, in terms of product, primarily due to the increased demand for mechanical recovery methods for spill recovery.  Unlike other methods, the mechanical recovery methods remove the spill material from the spill environment.  Thus, skimmers are more effective in mitigating the environmental impact of the spills.

The global Emergency Spill Response market is valued at 2,530 million USD in 2017 and is expected to reach 3,410 million USD by the end of 2023, growing at a CAGR of 5.1% between 2017 and 2023.

The Asia-Pacific will occupy for more market share in following years, especially in China, fast growing India, and Southeast Asia regions.

North America, especially The United States, will still play an important role which cannot be ignored. Any changes from the United States might affect the development trend of Emergency Spill Response.

 

Innovation in Detecting Oil Spills at Sea

The company ISPAS AS, headquartered in Norway, recently announced that it has developed a Ku-band polarimetric Oil Spill Detection (OSD) radar that can detect oil spills at sea and the open water under most conditions including dead calm.

The radar is specifically developed for this purpose and uses a higher frequency than typical navigational X-band radars.  The radar has electrically steered antennas with both electromagnetic polarizations and can map an oil spill continuously using the steerable antenna.

Radar image (left) of the oil spill (seen on right).

ISPAS has completed the installation of 4 new OSD radars.  The radars small size and weight makes it easy to integrate without large structural foundations.

ISPAS participated in the 2018 “Oil on water” exercise offshore of Norway recently with a small version of the polarimetric Ku-band OSD radar. The small radar performed exceptionally well. An example showing the real time display of radar measurements of oil on seawater onboard a vessel is presented in this picture. The picture to the right presents the actual view of the sea.

The OSD radar

Setting New Legal Standards And Timelines: Alberta’s Remediation Regulation

Article by Alan Harvie, Norton Rose Fullbright Canada LLP

Alberta Environment and Parks (AEP) has amended regulations that will require all contamination caused by spills that are reported to regulators after January 1, 2019 to be delineated and assessed as soon as possible through a Phase 2 environmental site assessment that meets AEP’s standards and that is then either remediated within two years or subject to an approved remedial action plan with an approved final clean-up date. These are significant departures from the current requirements.

On June 1, 2018 the Remediation Certificate Amendment Regulation was passed into law under the Environmental Protection and Enhancement Act (EPEA). It amends the existing Remediation Certificate Regulation in a number of important ways, including changing the name to the Remediation Regulation.

Groundwater monitoring wells

The Remediation Regulation will be administered by the Alberta Energy Regulator (AER) for contamination at upstream oil and gas sites, such as wells, pipelines and facilities, and by AEP for all other sites.

Under the EPEA, a person responsible for the release of a substance into the environment that causes or has the potential to cause an adverse effect is under a legal duty, as soon as they know about the release or ought to have known about it, to report it to regulators. They must also, as soon as they know or ought to have known about the release, take all reasonable measures to repair, remedy and confine the effects of the substance, remove or otherwise dispose of the substance in such a manner as to effect maximum protection to human life, health and the environment and restore the environment to a condition satisfactory to the regulators.

Although persons have always been legally required, under the EPEA, to clean up spills, historically there was no legal requirement as to how a person was to assess contamination or any specific time limit as to how long a person could take to remediate the spill as required by the EPEA. This has now changed.

New timelines

The Remediation Regulation requires that a person responsible for a spill that is reported after January 1, 2019 must:

  • As soon as possible, either remediate the spill to meet the criteria set out in the Alberta Tier 1 and 2 Soil and Groundwater Remediation Guidelines and submit a report to the regulators about the remediation or undertake a Phase 2 environment site assessment of the site that meets the requirements of AEP’s Environmental Site Assessment Standard.
  • If the site cannot be remediated to the satisfaction of the regulators within two years, then the person responsible for the spill must submit a remedial action plan (RAP) that complies with AEP’s Alberta Tier 1 and Tier Soil and Groundwater Remediation GuidelinesEnvironmental Site Assessment StandardExposure Control Guide and Risk Management Plan Guide.
  • The RAP must include a period of time for completion of the remediation that is acceptable to the regulators.
  • The person responsible must take the remedial measures set out in the approved RAP by such time.

New legal standards

The Remediation Regulation previously incorporated into law the requirements to use the Tier 1 and 2 Soil and Groundwater Remediation Guidelines for obtaining a remediation certificate under the EPEA. It now requires that the Guidelines also be followed for assessing contaminated sites and therefore eliminates some historical practices in which persons responsible for spills used other clean-up guidelines or criteria.

The Remediation Regulation also requires the use of the Environmental Site Assessment Standard. The Standard sets out how contamination is to be vertically and horizontally delineated and assessed. The Remediation Regulation requires that this work be done within two years.

If the spill cannot be remediated within two years, then a RAP which meets the Exposure Control Guide and the Risk Management Plan Guide, and which has been approved by the regulators, must be in effect at the end of the two-year period. For some large contaminated sites, it may be challenging to fully delineate the contamination, develop a RAP and have the regulators approve it within two years. Furthermore, the clean-up under the RAP must have a stated end point.

Abandoned oil well equipment

These changes diverge from historical practices where, in some cases, contamination delineation has taken several or more years, and remedial actions, if any, have not been well planned and have had no fixed end point.

Implications

The implications of the Remediation Regulation for persons responsible for contamination are such that they will no longer be able to ignore or may only be able to slowly proceed with assessing contamination or simply monitor it over the long term. Concrete steps must now be taken according to set time periods and such steps must comply with AEP’s guidelines and standards.

Next steps

As mentioned, the new requirements to delineate and remediate a site apply only to spills reported on or after January 1, 2019. Before then, AEP is expected to release further guidance, host stakeholder workshops and potentially amend the Remediation Regulation.

 

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.

This article was first published on the Norton Rose Fulbright Canada LLP Website.

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About the Author

Alan Harvie is a senior partner at Norton Rose Fulbright Canada LLP and practices out of the Calgary office.  He has practised energy and environmental/regulatory law since 1989 and regularly deals with commercial, operational, environmental and regulatory issues, especially for the upstream oil and gas, energy, waste disposal and chemical industries. He is a member of our energy and environmental departments.

Mr. Harvie also has significant legal experience in acting for the oil and gas industry in commercial transactions and regulatory matters, including enforcement proceedings, common carrier and processor applications, forced poolings, downspacings and holdings, rateable take, and contested facility, well and pipeline applications. He has also dealt extensively with commercial, environmental and regulatory issues concerning thermal and renewable power plants, electrical transmission and distribution lines, tourism and recreation projects, forestry, mining, agriculture, commercial real estate, industrial facilities, sewage plants, hazardous waste landfills and treatment facilities, transportation of dangerous goods and water storage reservoirs.

Mr. Harvie regularly advises clients about environmental assessments and permitting, spill response, enforcement proceedings, contaminated site remediation, facility decommissioning and reclamation, chemical compliance (DSL, NDSL, MSDS and HMIRC), nuclear licensing, crude-by-rail projects and product recycling and stewardship requirements.

 

Are there Greenhouse Gas Emission Savings in Hazmat or Remediation Projects?

Up to $575,000 in support available for winners of contest held on Massachusetts Institute of Technology’s Climate CoLab platform

The Centre of Social Innovation in Toronto recently launched a contest to solicit a broad range of possible solutions to help small to medium enterprises (SMEs) in Ontario reduce their direct and indirect greenhouse gas (GHG) emissions.  The winning proposals will be eligible to receive funding and support to pilot their solutions in Ontario over eight months.

In-situ remedation may generated GHG credits vs. dig-and-dump

The contest, now sourcing proposals on the Massachusetts Institute of Technology’s (MIT’s) Climate CoLab platform, allows members of the public to provide feedback to proposal authors, and to cast votes for the People’s Choice Winner.  A panel of judges will select 3-5 winning proposals based on their desirability, feasibility, scalability and impact to potentially be piloted in Ontario.

SMEs make up 98.2% of businesses in Canada, and emit as much climate change-causing greenhouse gas (GHG) emissions per year as Canada’s combined transportation sector, including every car, truck, train, plane, and ship. Reducing their emissions can benefit SMEs by helping them grow while also building healthier communities.

“Recent research from the University of Waterloo shows us that the vast majority of SMEs believe that sustainability is important,” said Barnabe Geis, Director of Programs at the Centre for Social Innovation. “We want to support the implementation of solutions – whether technologies, programs or services – that help SMEs meet their sustainability goals as a powerful way to both strengthen our economy and improve the health and well-being of our communities.”

Barnabe Geis,
Director of Programs, Centre for Social Innovations – Toronto

Many SMEs face barriers to lowering their emissions, from lacking the technical expertise to assess options for reducing emissions to not being able to afford the upfront costs of a low-carbon technology. However, once the right technologies or practices are implemented, the savings and other benefits to SMEs can be substantial. This contest will offer support to demonstrate the value and scalability of solutions in order to make the path towards sustainability more accessible to SMEs across the province.

There may be opportunities in the hazmat and remediation sectors to reduce the generation of GHGs from SMEs.  If so, the contest offers a great chance to secure third-party funding to pursue the opportunities.

The contest is open to proposal submissions until August 3, 2018. Proposals submitted prior to July 11th, will be reviewed by the Judges and given feedback before the contest deadline.

For further information on the contest, contact Barnabe Geis, Director of Programs at the Centre of Social Innovation at barnabe@socialinnovation.ca.

Brownfields Road Map (U.S. EPA, 2018)

Prepared by the U.S. Environmental Protection Agency (U.S. EPA) Office of Land and Emergency Management, The Brownfields Road Map 6th Edition breaks down Brownfields site investigation and cleanup into an easy to understand, step-by-step process that provides valuable and up-to-date information to a wide range of Brownfields stakeholders involved in or affected by the redevelopment of Brownfields sites. It introduces readers to a range of considerations and activities, and provides links to online technical resources and tools.

The first edition of the Road Map, published in 1997, provided a broad overview of the U.S. EPA Brownfields Program and an outline of the steps involved in the cleanup of a Brownfields site. Designed primarily for stakeholders who were unfamiliar with the elements of cleaning up a Brownfields site, the Road Map built awareness of the advantages offered by innovative technologies. As the EPA Brownfields Program
matured, the second (1999), third (2001), and fourth (2005) editions were published to update information and resources associated with the program, innovative technologies, and emerging best practices. The fifth edition, published in 2012, streamlined the publication to make it more accessible to users, providing additional resources covering new technology applications and methods.

This edition builds off the streamlined approach of the fifth edition, providing updated content and guidance on the Brownfields remediation process. New features include an updated list of “Spotlights,” highlighting and describing key issues. This edition provides updated information on Brownfields funding and best management practices (BMPs), with guidance on how to incorporate greener cleanups and new standards into the cleanup process.

This edition of the Road Map will help:

  • New and less experienced stakeholders. The Road Map will help these users learn about the technical aspects of Brownfields by introducing general concepts and methods for site investigation and cleanup.
  • Decision-makers who are familiar with the EPA Brownfields Program but are also interested in obtaining more detailed information. The Road Map provides these users with up-to-date information about the applicability of technologies and access to the latest resources that can assist them in making technology decisions. In addition, it highlights BMPs that have emerged in recent years.
  • Community members. The Road Map helps to encourage community members to participate in the decision making process by providing information about the general site cleanup process and tools and alternatives to site cleanup, as well as guidelines and mechanisms to promote community involvement.
  • Tribal leaders. The Road Map offers information on technical and financial assistance specific to tribes for implementing cleanup and restoration activities on tribal lands, as well as successful remediation examples highlighting the potential community restoration opportunities associated with Section 128(a) Response Program funding.
  • Stakeholders who hire or oversee site cleanup professionals. The Road Map includes information to help stakeholders coordinate with many different cleanup practitioners, such as environmental professionals, cleanup service providers, technology vendors or staff of analytical laboratories. The Road Map provides these stakeholders with a detailed understanding of each phase in a typical Brownfields site cleanup and presents information about the roles that environmental practitioners play in the process.
  • Regulators. The Road Map will increase the understanding by regulatory personnel of site characterization and cleanup technologies and approaches. The Road Map also serves as a resource that regulators can use to provide site owners, service providers and other stakeholders with useful information about the EPA Brownfields Program. The Road Map also provides links and pointers to additional information on specific technologies, approaches, and issues.
  • Other potential Brownfields stakeholders. The Road Map helps other stakeholders, such as financial institutions and insurance agencies, by providing information for their use in assessing and minimizing financial risks associated with Brownfields redevelopment.

The Road Map draws on the EPA’s experiences with Brownfields sites, as well as Superfund sites, corrective action sites under the Resource Conservation and Recovery Act (RCRA), and underground storage tank (UST) sites to provide technical information useful to Brownfield stakeholders. Specific conditions—such as the nature and extent of contamination, the proposed reuses of the property, the financial resources available, and the level of support from neighboring communities—vary from site to site. Readers of the Road Map are encouraged to explore opportunities to use the BMPs described in the following pages in accordance with applicable regulatory program requirements. The use of BMPs and site characterization and cleanup technologies may require site specific decisions to be made with input from state, tribal, and/or local regulators and other oversight bodies.

 

Hazmat University launches Hazardous Material Online Training

The U.S. Department of Transportation requires anyone whose job involves the performance of any task regulated by the U.S. Hazardous Materials Regulations to undergo hazardous materials shipping training. Likewise, all employers must provide their employees with relevant training applicable to their job function. Hazmat University offers online training programs that can be completed on your desktop, laptop, tablet, or smartphone 24/7.

“When transporting hazardous materials/dangerous goods in commerce, compliance is a primary concern. Compliance is achieved through well maintained training programs by the hazmat employer. Training is an essential component of any shipping operation to achieve safety in the transport of hazardous materials,” said Sonia Irusta, Vice President of Bureau of Dangerous Goods, LTD.

Hazmat University recognizes the need for anyone entrusted with the handling of dangerous goods to be trained on the dangerous goods regulations and to be able to perform their job functions when handling dangerous goods.

Hazmat University makes certain their training programs are exemplary and features are excellent and easy to access. Listed below are the four reasons Hazmat University is your one-stop-shop for hazardous material shipping training.

A Variety of Training Options

  • A wide range of classes that suit a variety of needs such as different modes of transportation including ground, air and sea.
  • Classes cover a wide range of regulations including: 49 CFR Hazardous Materials Regulations, the International Air Transport Association Dangerous Goods Regulations, and the International Maritime Dangerous Goods Code.

Regular Updates

  • Hazmat University updates based on “The Hazardous Materials Regulations” multiple times each year which keeps lesson plans and materials for online content up-to-date.
  • Anyone handling hazardous materials is required stay on top of any amendments and regulatory changes made.

Everything is Online

  • All courses are offered online to relieve the stresses of travel, parking and changing schedules.
  • Lessons can be accessed from anywhere at any time whether at home or in the office.

Start Immediately

  • Begin your training from the moment that you finish placing your order.
  • Your enrollment codes come with your order confirmation, so there is no delay in getting started.
  • Certificates are issued instantly upon completion.

Hazmat University provides specialized courses in the transportation of dangerous goods by air, ground, or vessel, and training for specialized needs, such as lithium batteries, general awareness, segregation, and others.

Ontario Graphite Ltd. Subject to Control Order Issued by Environment Ministry

The Ontario Ministry of the Environment and Climate Change (MOECC) recently issued an Emergency Director’s Order to Ontario Graphite Ltd. (OGL) related to its mining site in Butt Township, Kearney, Ontario.  An Emergency Director’s Order is issued when the MOECC is of the opinion that inaction of a situation can result in one or more of the following: danger to the health or safety of any person; harm or serious risk of harm to the environment; or injury or damage or serious risk of injury or damage to any property.

Under an Emergency Order, immediate actions and environmental actions must be taken to protect the natural environment and to prevent or reduce the discharge of a contaminant into the natural environment from the undertaking or property, or to prevent, decrease or eliminate an adverse effect.

Photo Credit: NorthBayNipissing.com

Kearney is a town and municipality in the Almaguin Highlands region of Parry Sound District of Ontario, Canada.  With a landmass of 531 square kilometres and a year-round population of 882 in the Canada 2016 Census, Kearney claims to be the “Biggest Little Town in Ontario.”  Butt Township was amalgamated with the Town of Kearney in 1979.

Since the issuance of Director’s Order Amendment No. 1 Ontario Graphite Limited (OGL) has reported to the MOECC multiple exceedances of discharge limits specified in the Environmental Compliance Approval (ECA) issued for the Kearney Mine industrial sewage works and Ontario Regulation 561/94 (i.e. including exceedance of limits for acute toxicity to test organisms Rainbow Trout and Daphnia magna, iron, total suspended solids and pH).

As requested by the MOECC, OGL proposed a short term management action plan to address the effluent discharge limit exceedances from the polishing pond until such time that construction can be completed on the industrial sewage works to enhance treatment efficiency once approved by the MOECC through an ECA amendment. OGL further indicated to the MOECC that an application to amend the ECA for necessary modifications to the industrial sewage works is currently being prepared.
Following the MOECC’s review of the short term management action plan and monitoring data submitted by OGL, the MOECC is concerned that measures proposed by OGL will be insufficient in achieving adequate treatment until such time that construction and operation of the proposed modification to the industrial sewage works, subject to the planned application and subsequent approval by the MOECC, if issued, are completed.

Currently, the lime dosing system being used at the Kearney Mine as part of the existing industrial sewage works operation is operated on a batch basis over, typically, an eight hour period during daylight hours.  The enhanced pH monitoring and reporting required by the January 31, 2018 Director’s Order amendment has demonstrated that the pH of the discharge is not consistently meeting the required pH range over a 24 hour period.  Therefore, the MOECC is directing that the operation of the batched system be extended over a daily, 24-hour period to ensure compliance with pH at all times.

In addition to adjusting the lime dosing system the MOECC is ordering a contingency plan be developed to including the use of an approved mobile treatment unit to ensure adequate treatment is achieved if proposed measures are not sufficient in achieving compliance with all discharge water quality limits until such time that modifications, approved through an amendment to the ECA, are implemented.

In summary the Emergency Director’s Order requires OGL to do the following:

  • Conduct an enhanced monitoring program for pH.
  • Ensure that the operation of lime dosing system is supervised by a Qualified Person and that effluent is maintained within a pH range of 6.5 – 8.5 at all times.
  • Retain a Qualified Person to develop and submit a contingency plan to treat the Kearney Mine polishing pond waters.
  • Retain a Qualified Person to submit an amendment to the issued Industrial Sewage Works, Environmental Compliance approval.

The Order was served to the company as well as a number of a company director, the CFO & CAO, and the CEO.

Tax rebate to fund $8.6M cleanup of former Kitchener Frame site

by Catherine Thompson, Waterloo Region Record

As reported by Catherine Thompson in the Waterloo Region Record, It’ll cost about $8.6 million to rid the soil and groundwater of contaminants at the former Kitchener, Ontario Frame site.

The huge industrial site at Homer Watson Boulevard and Bleams Road has been undergoing cleanup for the past three years. The soil and groundwater were contaminated with petroleum hydrocarbons, volatile organic compounds, metals, polychlorinated biphenyls (PCBs) and polycyclic aromatic hydrocarbons (PAHs), contaminants that are often found at former industrial sites.

The former Kitchener Frame Site (Photo Credit: Philip Walker/Record staff)

The city and the developers — Gary Ball and Marty Pathak — are keen to see the site redeveloped, said Rob Morgan, the City of Kitchener’s co-ordinator of development of former industrial sites. The site of the auto parts plant variously known as Budd Canada, ThyssenKrupp Budd Canada and Kitchener Frame, has been vacant since 2009.

Redevelopment of the sprawling 32-hectare site will give a big boost to the city’s supply of industrial land, Morgan said. About 16 hectares are slated industrial, 10 hectares are retail and 1.5 hectares are office. Another four hectares will be used for things like roads and storm water management.

“It’s much-needed land,” Morgan said. “Kitchener doesn’t have a lot of vacant industrial land left to offer.” There’s a couple of parcels, on Shirley Avenue and Strasburg Road, but not much else, he said.

The developers have applied to the city and region for grants under a program to encourage remediation of contaminated land.

The former Kitchener Frame site would be the biggest property ever to apply for the program, Morgan said.

Under the program, a developer cleans up a site and redevelops it. The new development generates far more taxes than the vacant land had. The city and region hand over the additional tax revenue to the developer for a set number of years, to repay the cost of the environmental cleanup.

The site now has an assessed value of $8 million, and generates about $108,000 in property taxes a year, split roughly 40-60 between the city and the Region of Waterloo. Once it’s cleaned up and redeveloped, it’s expected to have an assessed value of around $112 million, and generate $2.2 million in municipal property taxes.

“It’s a great program,” Morgan said. In exchange for foregoing the increased taxes for a certain number of years, the city gets vacant land cleaned up and converted to a productive use that generates more taxes and jobs.

“These lands are sitting dormant, contaminated, sometimes for many years. As a resident I’d rather see it cleaned up and earning money for the tax base.”

The Kitchener Frame site will be split into 11 different parcels from 1.3 to 10 hectares. Kitchener doesn’t expect to see the first new development on the site until about 2020, and development could continue for the next 10 or 15 years beyond that.

Morgan thinks it’s likely the property will be developed well before then, though. “They’ve got a lot of interest in that property. It’s a great location, because of its proximity to the 401; you’ve got a lot of variety in the lots; Kitchener has a strong manufacturing base, and we’ve got a lot of skilled workers.”

City staff are recommending that Kitchener council approve the application, which must also be approved by regional council, likely in June.

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About the Author

Catherine Thompson covers Kitchener City Hall for the Waterloo Region Record.

U.S. Ninth Circuit Rules Military Contractor Liable on CERCLA Clean-up Costs

Written by: By Whitney Jones Roy and Whitney HodgesSheppard Mullin Richter & Hampton LLP

TDY Holdings, LLC brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial and allocated 100 percent of past and future CERCLA costs to TDY. On appeal, the Ninth Circuit held that the district court sharply deviated from the two most “on point” decisions regarding allocation of cleanup costs between military contractors and the U.S. government when it determined the cases were not comparable, clarified the applicability of those cases, and remanded the case to reconsider the appropriate allocation of cleanup costs between TDY and the U.S. government.

TDY (formerly known as Ryan Aeronautical Company) owned and operated a manufacturing plant near the San Diego airport

From 1939 through 1999, TDY (formerly known as Ryan Aeronautical Company) owned and operated a manufacturing plant near the San Diego airport. TDY’s primary customer was the U.S. government—99 percent of TDY’s work at the plant between 1942 and 1945, and 90 percent of the work thereafter was done pursuant to contracts with the U.S. military. The United States also owned certain equipment at the site from 1939 to 1979. Id. at 1006. Chromium compounds, chlorinated solvents, and polychlorinated biphenyls (PCBs) were released at the site as a result of their use during manufacturing operations. Id. In some cases, the government’s contracts required the use of chromium compounds and chlorinated solvents. Id. After passage of the Clean Water Act and other environmental laws classifying these chemicals as hazardous substances in the 1970s, TDY began environmental remediation and compliance at the site and billed the government for the “indirect costs” of that work, which the government paid. Id. at 1006–07. TDY incurred over $11 million in response costs at the site. Id. at 1007. Until the plant’s closure in 1999, the government reimbursed 90 to 100 percent of TDY’s cleanup costs at the site. Id. at 1007, 1010.

In 2004, the San Diego Unified Port District brought CERCLA claims against TDY. TDY and the Port District entered into a settlement agreement in March 2007 in which TDY agreed to cleanup releases at the site. TDY then brought suit for contribution under 42 U.S.C. § 9613(f)(1) and declaratory relief against the United States. Id. at 1007. The district court granted TDY’s motion for partial summary judgment declaring that the United States was liable as a past owner of the site under CERCLA. Id. After a 12-day bench trial on equitable allocation of costs, the district court held that the contamination caused by the hazardous substances at issue was attributable to TDY’s storage, maintenance, and repair practices, as well as spills and drips that occurred in the manufacturing process, rather than to the government’s directives to use the chemicals. Id. Accordingly, the district court allocated 100 percent of the past and future response costs for remediation of the three hazardous substances to TDY. Id. at 1008.

On appeal, TDY argued that the district court erred (1) when it allocated liability according to “fault”; (2) that the government’s role as owner rather than operator should not have been a dispositive factor in the court’s allocation, and (3) that the government should bear a greater share of response costs because it specifically required use of the chemicals at the site. Id. The court of appeals summarily rejected TDY’s first two arguments, but found that the district court did err in its analysis and application of binding authority on point: United States v. Shell Oil Co., 294 F.3d 1045 (9th Cir. 2002) and Cadillac Fairview/California, Inc. v. Dow Chem. Co., 299 F.3d 1019 (9th Cir. 2002). Id. at 1008–09. Shell Oil and Dow Chemical each produced products to support the U.S. military during World War II and incurred liability for contamination caused by hazardous chemicals that the government required to be used. In both cases, the Ninth Circuit affirmed the district courts’ allocation of 100 percent of cleanup costs to the government because “the contractors’ costs were ‘properly seen as part of the war effort for which the American public as a whole should pay.’” Id. at 1009.

The Ninth Circuit disagreed with the district court’s conclusion that Shell Oil and Cadillac Fairview were not comparable, but agreed that some deviation from their allocations were appropriate. Id. The Ninth Circuit agreed that the government exercised less control over TDY than it did over Shell Oil Co. or Dow Chemical. In support of this determination, the court noted that the government was an operator, rather than an owner, of TDY’s site, that the government-owned equipment was removed from the site 20 years before TDY ceased operations, and that TDY’s own practices at the site caused the contamination. Id. at 1010. Furthermore, the district court properly determined that “industrial operations undertaken for the purpose of national defense, standing alone, did not justify allocating all costs to the government.” Id.

However, the Ninth Circuit held that, in allocating 100 percent of cleanup costs to TDY, the district court failed to consider that the government required TDY to use two of the three chemicals at issue beginning in the 1940s, when the need to take precautions against environmental contamination from these substances was not known. Id. Furthermore, the Ninth Circuit determined that “[t]he court’s acknowledgement of the evolving understanding of environmental contamination caused by these chemicals, and TDY’s prompt adoption of practices to reduce the release of hazardous chemicals into the environment once the hazards became known, further undercuts the decision to allocate 100 percent of the costs to TDY.” Id. The district court also failed to consider the parties’ lengthy course of dealing through 1999, when the government paid between 90 and 100 percent of cleanup costs at the plant. Id. Although “a customer’s willingness to pay disposal costs . . . cannot be equated with a willingness to foot the bill for a company’s unlawful discharge of oil or other pollutants,” the Ninth Circuit nevertheless determined it should have been a relevant factor in the allocation analysis. Id.

This article was originally published on the Sheppard Mullin Real Estate, Land Use & Environment Law Blog

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About the Authors

Whitney Jones Roy is a litigation partner in firm’s Los Angeles office. Ms. Roy was recognized by Law360 as a “Female Powerbroker” and by the Daily Journal as one of the Top 100 Women Lawyers in California in 2014.  Ms. Roy has experience in all aspects of California and federal civil procedure through trial. She also defends her clients on appeal when necessary.  Ms. Roy also specializes in complex environmental litigation and related products liability litigation. Her expertise includes the Clean Air Act, CERCLA, RCRA, design defect, failure to warn, negligence, nuisance, and trespass.

Whitney Hodges is an associate in the Real Estate, Land Use and Natural Resources Practice Group in the firm’s San Diego office. She also serves on the firm’s Diversity and Inclusion Committee, Pro Bono Committee, Recruiting Committee, Energy, Infrastructure and Project Finance Team and Latin Business Team.  Ms. Hodges specializes in the representation of clients involved in real estate development. Her practice focuses on advising and representing major residential, industrial, commercial and mixed-use development projects, as well as Native American Indian tribes and renewable energy developers through all phases of the land use regulatory process and environmental compliance.

 

 

U.S. Eleventh Circuit Highlights Importance of Safety Training in Affirming Willful Violation of OSHA Standard

Author: H. Bernard Tisdale, Ogletree Deakins, Charlotte, North Carolina)

The Eleventh Circuit Court of Appeals recently had the opportunity to remind employers not to ignore training employees on safety.  Martin Mechanical Contractors, Inc. v. Secretary, U.S. Department of Labor, No. 17-12643 (March 27, 2018).

In late 2015, a heating, ventilation, and air conditioning (HVAC) contractor was installing an HVAC system on the flat roof of a warehouse in Georgia. The installation was to take place adjacent to several unguarded skylights covered only with plastic sheeting. While the onsite foreman had fall protection equipment in his truck, the employees did not wear any fall protection equipment while on the roof. These circumstances ended in tragically: one of the workers fell through a skylight and died as a result of his injuries.

The Occupational Safety and Health Administration (OSHA) cited the employer for a willful violation of 29 C.F.R. § 1926.501(b)(4)(i) for failing to protect its employees from falls. The administrative law judge concluded the supervisor’s actions supported a willful classification in that he demonstrated a “reckless disregard for the safety of his crew.” The employer appealed.

To support a willful classification, OSHA must show either (1) the employer knew of the standard and consciously disregarded it or (2) it exhibited such reckless disregard for the employees’ safety that the employer would not have cared that the conduct violated the standard.  Evidently, the supervisor claimed ignorance of the law, and the court analyzed whether the willful classification could be supported under the second standard.

Air conditioner units (HVAC) on a roof of industrial building

The court of appeals was unimpressed by the employer’s arguments. The court noted the supervisor was well aware of the danger posed by the unguarded skylights in that he warned his employees to be careful around them. The supervisor also testified it was his practice not to use fall protection equipment on flat roofs. The supervisor neither instructed anyone to wear fall protection equipment nor provided his employees with the fall protection equipment he had in his truck. Thus, the Court concluded, while the supervisor did not know of the standard’s requirements, he exhibited such reckless disregard for employee safety that he would not have cared that the conduct violated the standard.

This is where all employers may want to take heed. The court went on to observe that the supervisor’s “unfamiliarity serves, if anything, only to underscore the inadequacy of [the employer’s] training program. To hold that such inadequacy—and the resulting unfamiliarity—precludes classification of a violation as willful would perversely allow [the employer] to use its ineffective training as a defense against OSHA’s most serious charge.” The court upheld the willful classification.

Needless to say, a willful citation can have far-reaching ramifications for an employer—from tort liability and criminal penalties for the injury or death to inability to secure future work. While training may seem trivial and time consuming, doing it just might prevent a willful citation and possibly save a life.

This article was originally published on the Ogletree Deakins website.

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About the Author

Mr. Tisdale has wide experience in general civil and employment litigation. This experience ranges from advising clients on preventive measures to avoid formal charges and lawsuits, and representing clients before the United States Court of Appeals, to handling individual employment discrimination cases before the Equal Employment Opportunity Commission and the federal courts as well as handling wrongful discharge and other employment-related litigation in state and federal courts. He regularly represents employers on safety and health matters including advising and defending clients on OSHA compliance issues involving Federal OSHA and state plan states.  He regularly assists clients with contract disputes and non-compete and trade secrets advice and litigation. His experience also includes counseling clients on wage and hour compliance under the Fair Labor Standards Act and performing compliance audits under the FLSA, drafting and reviewing employment contracts and employment