U.S.: FEMA Releases Refreshed National Incident Management System Doctrine

The U.S. Federal Emergency Management Agency (FEMA) recently released the refreshed National Incident Management System (NIMS) doctrine.  NIMS provides a common, nationwide approach to enable the whole community to work together to manage all threats and hazards. NIMS applies to all incidents, regardless of cause, size, location, or complexity.

In April and May 2016, FEMA held a 30-day National Engagement Period, in which stakeholders submitted nearly 3,000 comments and provided feedback on the draft NIMS update, ensuring that it reflects the collective expertise and experience of the whole community.

FEMA will host a series of 60-minute webinars with stakeholders to discuss the updates in the refreshed NIMS and answer questions related to NIMS. All webinars are open to the whole community. For webinar dates, times, and registration information, please go here: https://www.fema.gov/latest-news-updates.

The refreshed NIMS retains key concepts and principles from the 2004 and 2008 versions, while incorporating lessons learned from exercises and real-world incidents, best practices, and changes in national policy.

Download the refreshed NIMS here: www.fema.gov/nims-doctrine-supporting-guides-tools

The refreshed NIMS:

  • Retains key concepts and principles of the 2004 and 2008 versions of NIMS;
  • Reflects and incorporates policy updates and lessons learned from exercises and real-incidents;
  • Clarifies the processes and terminology for qualifying, certifying, and credentialing incident personnel, building  a foundation for the development of a national qualification system;
  • Clarifies that NIMS is more than just the Incident Command System (ICS) and that it applies to all incident personnel, from the incident command post to the National Response Coordination Center;
  • Describes common functions and terminology for staff in Emergency Operations Centers (EOC), while remaining flexible to allow for differing missions, authorities, and resources of EOCs across the nation; and
  • Explains the relationship among ICS, EOCs, and senior leaders/policy groups.

NIMS guides all levels of government, nongovernmental organizations (NGO), and the private sector to work together to prevent, protect against, mitigate, respond to, and recover from incidents. NIMS provides stakeholders across the whole community with the shared vocabulary, systems, and processes to successfully deliver the capabilities described in the National Preparedness System. NIMS defines operational systems, including the Incident Command System (ICS), Emergency Operations Center (EOC) structures, and Multiagency Coordination Groups (MAC Groups) that guide how personnel work together during incidents. NIMS applies to all incidents, from traffic accidents to major disasters.

Please refer to the descriptions below to gain an understanding of where to locate certain information.

NIMS Doctrine Supporting Guides & Tools: The National Integration Center develops supporting guides and tools to assist jurisdictions in their implementation of the National Incident Management System (NIMS).

Training: The NIMS Training Program defines the national NIMS training program. It specifies National Integration Center and stakeholder responsibilities and activities for developing, maintaining and sustaining NIMS training.

Resource Management & Mutual Aid: National resource management efforts aid a unified approach in building and delivering the core capabilities across all five mission areas (Prevention, Protection, Mitigation, Response and Recovery).  Effective resource management is founded on the guiding principles of the NIMS.

Implementation Guidance & Reporting: Federal Departments and agencies are required to make adoption of NIMS by local, state, territorial, and tribal nation jurisdictions a condition to receive Federal Preparedness grants and awards.

NIMS Alerts: The National Integration Center announces the release of new NIMS guidance, tools, and other resources through the distribution of NIMS Alerts.

FEMA NIMS Regional Contacts: The FEMA Regional NIMS Coordinators act as subject matter experts regarding NIMS for the local, state, territorial, and tribal nation governments within their FEMA Region, as well as for the FEMA Regional Administrator and staff.

Incident Command System Resources: The Incident Command System (ICS) is a fundamental element of incident management. The use of ICS provides standardization through consistent terminology and established organizational structures.

Heiltsuk First Nation to sue Kirby Corporation over 2016 diesel spill

As reported in Coast Mountain News, this month marks the one-year anniversary of the October 13 oil spill in Bella Bella, British Columbia. With the community’s recovery efforts undermined by government and Kirby Corporation’s refusal to take responsibility for the spill and to cooperate in its aftermath, the nation says it has no option but to turn to the courts.

“The oil spill continues to be a catastrophic injury to our food sources, culture, and economy,” says Heiltsuk Tribal Council Chief Councillor, Marilyn Slett. “Thanks to Kirby Corporation and the governments of British Columbia and Canada, our community’s road to recovery keeps getting longer and longer.”

The Nathan E. Stewart articulated tug/barge was southbound from Alaska when it ran aground at Edge Reef near Athlone Island on Oct. 13, 2016. (Photo Credit: Western Canada Marine Response Corporation)

Kirby Corporation and government have kept information secret about what occurred on October 13, 2016 when the Nathan E. Stewart grounded, sank and spilled oil into Gale Pass. The Heiltsuk Tribal Council made numerous separate requests for information to the polluter (Kirby Corporation) and various government agencies, including Transport Canada, the Transportation Safety Board, and the Canadian Coast Guard. Those requests were largely denied or ignored.

The Nation claims this secrecy and lack of collaboration has continued throughout the post-spill recovery.

“Recently, we learned the B.C. Ministry of Environment and Kirby have been secretly negotiating an agreement on the post-spill environmental impact assessment since early this year,” says Chief Councillor Slett. “Since this nightmare began, the polluter and provincial and federal governments have ignored our questions and environmental concerns, our collaboration attempts, and our rights as indigenous people. We have no choice but to turn to the courts.”

The nation is preparing to take legal action, aiming to recover damages suffered by its members as well as to examine the actual state of Canada’s “world class” oil spill response system.

The case will seek compensation for loss of commercial harvesting of marine resources and infringement of Aboriginal rights relating to food, social and ceremonial importance of marine resources — factors that the current oil spill liability framework does not account for.

“When I’m not harvesting Gale Pass to feed my family, I am working there as a commercial fisherman, earning an income to support them – and I’m one of many,” says harvester and volunteer oil spill responder, Robert Johnson. “Despite our reliance on Gale Pass, the governments of British Columbia and Canada and Kirby the polluter have little interest in understanding the impacts of this oil spill on the health of my community, this environment, or our economy.”

The existing oil spill response framework excuses the polluter and government from full responsibility for oil spill impacts on Aboriginal rights otherwise protected by the Constitution.

As such, the government of British Columbia and Kirby are not required by law to do comprehensive impact assessments of the oil spill. To date, they have rejected multiple Heiltsuk requests to participate in a study of the current and long-term impacts of the oil spill on the health of the ecosystem and marine resources and the social and economic consequences associated with the loss of harvest and use of the impacted area.

Instead, Kirby Corporation and the BC Ministry of Environment are proposing a limited environmental assessment covering a minority of the area and species affected.

Heiltsuk Nation will be asking the courts to assess whether this existing regime of liability for oil spills can really be considered constitutional.

“We’re learning the hard way that indigenous people and coastal communities can’t count on polluters, Western Canada Marine Response Corporation, or the governments of B.C. and Canada in a crisis situation,” says Kelly Brown, Director of the Heiltsuk Integrated Resource Management Department. “For our sake, and the sake of our neighbours, we are consulting with a range of experts to assess damages, recovery times, and, ultimately, determine how we can prevent a similar disaster in the future.”

The Nathan E. Stewart sinking off Bella Bella, British Columbia

Analyses of the oil spill response have revealed massive safety and planning oversights by the polluter and federal and provincial government regulations. They include: a lack of spill response materials; ineffective booms and delays in employing them; a lack of safety instructions and gear for Heiltsuk first responders exposed to diesel and dangerous marine conditions; and confusion over who was in charge in the early hours of the oil spill.

“Government representatives travel the province, country, and the world preaching reconciliation and nation-to-nation relationships with first people. Meanwhile, back home, they are avoiding our calls and emails, excluding us from meetings, and ignoring our rights,” says first responder and Hereditary Chief Harvey Humchitt. “If the courts have to explain that this is not what nation-to-nation relationships and reconciliation look like, so be it.”

The Heiltsuk Tribal Council expects the results of the various impact assessments, legal analyses, and evaluations to materialize in the coming weeks.

Canada: BC Court Of Appeal Rules That Contaminated Property Must Be Assessed Using Highest and Best Use

Article by Luke Dineley and Jacob Jerome Gehlen

Borden Ladner Gervais LLP

In a highly anticipated decision for the valuation of contaminated property in British Columbia, the BC Court of Appeal overturned a decision of the BC Supreme Court and set out how contaminated property should be assessed for tax purposes.

The case involved a Brownfield – a contaminated commercial property with potential for economic redevelopment. The property in question had been operated as a retail gas station, automobile dealership, and repair shop. The soil on the property was contaminated, and the contamination had spread to neighbouring properties. The owner of the property was in considerable financial distress. In addition to tax arrears, legal bills, and accounting bills, she was defending a claim from the owner of a neighbouring property. She therefore arranged to sell the property to this owner through a share purchase agreement for $42,363.24, which was sufficient to cover her debts. She also obtained a full indemnity from any legal liabilities she might have in the future regarding the contamination. The existing structure on the property was renovated and converted into income-producing multi-tenant commercial retail units.

Abbotsford, British Columbia

In 2013, the property was assessed for taxation purposes.

The assessor had valued the land and improvements at $975,000. The property owner, Victory Motors (Abbotsford) Ltd. (“Victory Motors”), appealed, and the Property Assessment Review Panel reduced that assessment to $500,000. Victory Motors appealed to the Property Assessment Appeal Board (“Board”), claiming the property had no value. The Board reinstated the original assessment. The owner appealed again, to the Supreme Court of British Columbia. That court found that the Board had erred in law, and remitted the matter to the Board for reconsideration. The Assessor appealed that decision.

The Court of Appeal allowed the Assessor’s appeal and restored the Board’s decision.

The issue before the Court was this: how does one properly assess the value of contaminated land for taxation purposes? The assessor determined that because renovation into a two-storey structure would require remediation, the best use of the property was as it currently stood: a one-storey commercial structure. The assessor’s estimate did not otherwise take into account the presence of contamination. Their approach is known as the “income approach,” whereby a property’s value is determined according to the subject property’s highest possible annual net income. The Board agreed with the assessor’s method and ultimate evaluation.

The Supreme Court, however, held that the Board had erred in law. The chambers judge found that the assessor had ignored the property’s brownfield status, which any potential buyer would have in mind as a risk. The chambers judge further held that the land should be valued not according to value for the present owner, but according to the market in accordance with the BCCA’s decision in Southam Inc. (Pacific Newspaper Group Inc,) v. British Columbia (Assessor of Area No 14 – Surrey/White Rock), 2004 BCCA 245 [Southam]. Because there was no evidence a competitive market for the property existed, the Board’s decision was therefore unreasonable.

However, after the BCSC decision was released, a five-judge division of the BCCA overturned Southam in Assessor of Area #01 – Capital v. Nav Canada, 2016 BCCA 71, leave to appeal refused [Nav Canada]. Nav Canada supports the Board’s income-based approach.

Applying Nav Canada, the Court of Appeal allowed the assessor’s appeal and restored the Board’s decision. The Court applied the “highest and best use” principle of assessment, and found that a multi-tenant retail building was the “best use” for the purposes of assessment. The Court held: “that property has value to its current owner can be a sufficient basis on which to determine its value.” In Nav Canada, the BCCA had held that even where there was no other potential purchaser, “one must regard the owner as one of the possible purchasers.” The Court in this case agreed, and held that “when, for whatever reason, there is no market for a property that has value to its owner, that owner can serve as a proxy for a competitive market.”

Going forward, property owners should be aware that even though there are no purchasers lining up to bid for a brownfield, that property may still be assessed at a high value for taxation purposes.

About BLG

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.

About the Authors

Luke Dineley is a partner in both our Insurance and Tort Liability Group and Environmental Law Group in Borden Ladner Gervais LLP‘s Vancouver office. Luke focuses his practice on civil litigation, with an emphasis on insurance and tort law, and environmental law.  In the area of environmental law, Luke’s experience includes representing and advising clients on a wide variety of contaminated site issues relating to both commercial and residential properties — including cost-recovery actions on behalf of plaintiffs and defendants. In addition, Luke has represented and advised major companies on environmental regulatory compliance, emergency spill responses, and environmental prosecutions. Luke is also an executive board member of the British Columbia Environmental Industry Association and frequently publishes and speaks in the area of environmental law.

 

Jacob Jerome Gehlen is an articling student at Borden Ladner Gervais LLP‘s Vancouver office. He has a Juris Doctor law degree from the University of Toronto and a Bachelor’s degree from McGill University.

Canada: Managing Prosecution Risk When Regulators Issue Permits or Orders

Article by Stanley D. Berger

Fogler, Rubinoff LLP

A recent decision from the Yukon Territorial Court is a reminder of how important communication between the regulator and the regulated can be. At the same time, perhaps as an illustration of the power of fate, at least in a narrow set of circumstances, communication may make no difference at all. In R. v. Cobalt Construction Inc., released September 14, 2017 the sole shareholder/director and his road construction company were charged with failing to provide a detailed decommissioning plan in accordance with the conditions of a permit for a facility designed to accept, store and treat dirt contaminated with petroleum hydrocarbons. The defendants failed to establish a due diligence defence to the charges because of poor communication with the authorities, but were acquitted anyways because it was impossible for them to comply given the weather conditions during the time frame for compliance.

Cobalt Construction Inc. Vehicles (Credit: Brian Boyle/CBC)

The regulator’s plan required sampling results be obtained after contaminated piles of dirt were tilled as configured. The soil was to be mixed two weeks before the samples were taken for analysis. The sample results would then inform further elements of the plan including identification of an appropriate receiving facility. The defendant director testified that it would have been impossible to till the soil as required within the time frame set out by the regulator because snow on the ground would have prevented use of the excavator and the ground would have been frozen requiring a ripper to be used to break up the ground, thereby destroying the configuration of the piles. The defendants had in the initial plan set out dates for sampling beyond the time frame required by the regulator, but failed to offer any explanation as to why the sampling could not be done within the imposed time frame. Further, the defendants at no time sought an extension of time for performing the sampling. The Crown prosecutor argued that the authorities were under no obligation to notify the defendants that their initial plan was insufficient to satisfy the regulatory requirements. The Court observed that the more detailed the decommissioning plan provided, the more likely fairness would demand notification by the authorities of the deficiency and an opportunity to correct it. Conversely, the less detailed the plan, the less likely fairness would demand notification. “To decide otherwise would mean that a defendant could evade responsibility and delay consequences simply by making a cursory attempt at compliance.” The Court suggested that if the defendants had fleshed out the plan and included options for receiving facilities and restoration that would be contingent on the sampling results, this would trigger notification by the regulator that the plan was deficient. However, the initial plan provided was so clearly and objectively deficient on its face that the regulator had no obligation to notify the defendants that the plan did not comply and did not further require the authorities to give the defendants an opportunity to rectify the deficiencies prior to laying charges. The Court consequently rejected the defence of due diligence. Nevertheless, the Court acquitted the defendants, accepting the defence of impossibility, notwithstanding the absence of due diligence.

 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.

________________

About the Author

 Stanley Berger is certified by the Law Society of Upper Canada as a specialist in environmental law.  He was called to the Ontario Bar in 1981. He joined the law firm of Fogler Rubinoff on July 4 2013.  Stanley was the founder of the Canadian Nuclear Law Organization and served as its President between 2008-2015, and remains a board member.  He is also is a former President of the International Nuclear Law Association.  He has taught nuclear law for the Nuclear Energy Agency in France and is an adjunct professor for York University’s Professional Master’s Degree in Energy.  Stanley is the author of a quarterly publication entitled “The Prosecution and Defence of Environmental Offences” and edits an annual review of environmental law.

Stanley represents suppliers and operators in the nuclear industry on nuclear liability, regulatory and supply chain issues. He provides legal advice to the Nuclear Waste Management Organization. Other clients include the CANDU Owners Group and a large Ontario municipality. His environmental practice includes litigation before courts, boards and tribunals, as well as solicitor’s work on behalf of renewable energy companies, landowners and waste management entities. He represented a First Nation on regulatory matters relating to a renewable energy project. His practice also includes the protection of proprietary information on applications before Ontario’s Freedom of Information and Privacy Commission.

This article was originally published on the Fogler, Rubinoff LLP website.

Technology to prevent rail disasters is in our hands

Author: Chris Bachmann, Assistant professor, Department of Civil and Environmental Engineering, University of Waterloo

As the trial of the 2013 Lac-Megantic rail disaster begins, new policies and practices that aim to employ better technology could help avoid similar disasters in the future.

The Transportation Safety Board (TSB) found more than 18 distinct causes and contributing factors in the Lac-Megantic derailment investigation, which makes the likelihood of this type of accident seem nearly impossible.

An unattended 74-car freight train carrying crude oil ran away and derailed, resulting in the deadly fire and explosion in Lac-Mégantic, Quebec, in July 2013. (Photo Credit: CBC)

Yet other derailments in Canada involving dangerous goods would soon follow in 2014 in Plaster Rock, N.B. and Clair, Sask., and two incidents in 2015 in Gogama, Ont.

This suggests that we must be mindful of the connection between human interactions and technology and how each will continue to underlie many causes and contributing factors of future incidents.

As a civil engineering professor who researches transportation infrastructure, dangerous goods and risk, I see several new developments and changes to technology and policy that can help to reduce future accidents.

Safer tank car standards

The type of tank cars involved in the Lac-Megantic accident (“Class 111”) were known to be vulnerable to failure, even in low-speed accidents (e.g., Cornwall, Ont. in 1999).

After Lac-Megantic, Canada and the United States developed a more robust tank car standard, Class 117. This new standard features improved puncture resistance, structural strength and fractural resistance.

Despite these improvements, Canadian and U.S. regulations will still allow Class 111 tank cars to be used for the transport of certain dangerous goods until mid-2025.

Even so, Canada accelerated the phase-out of the older Class 111 tank cars from being used for crude oil service in Canada as of Nov. 1, 2016, under Protective Direction 38.

Enhanced braking

In addition to new tank car standards, the U.S. is requiring enhanced braking standards on trains carrying flammable goods.

Any train with a continuous block of 20 tank cars loaded with a flammable liquid, or 35 or more tank cars loaded with a flammable liquid dispersed throughout a train, must have a functioning two-way end-of-train (EOT) device — an electronic unit that can be mounted on the end of a freight train instead of a caboose — or a distributed power (DP) braking system, which spreads braking across different points throughout a train.

Furthermore, any train with 70 or more loaded tank cars containing flammable liquids travelling at speeds greater than 48 km/h must be operated with an electronically controlled pneumatic (ECP) braking system by May 1, 2023.

In short, these technologies enable more controlled braking behaviour through a more responsive and uniform application of brake pressure. Benefits would include shorter stopping distances, lower risks of derailment and lower pile-up effects in the event of a derailment.

More information sharing

Technology also allows more information sharing for better decision-making. For example, Protective Direction No. 36 in Canada requires railways to provide municipalities with dangerous goods reports, including information on the number of unit trains, percentage of railway cars transporting dangerous goods, information on their nature and volume and number of trains.

This information is intended to inform emergency planning and responses.

The U.S. is also requiring more accurate classification of unrefined petroleum-based products to ensure proper classification, packaging and record-keeping through a documented sampling and testing process. This information is to be made available to the Department of Transportation upon request.

Human factors

The technology to prevent rail disasters is in our hands — just as it was in 2013. While these and future technologies are likely to reduce the risks of transporting dangerous goods across Canada and the United States, the interactions between humans and other elements of the system — the “human factors” — will remain predominant.

As we now know in the Lac-Megantic accident, the train carrying 7.7 million litres of crude oil sped toward the small Quebec town at 104 km/h before derailing, killing 47 people in the resulting fire and explosions on July 6, 2013.

Hours before derailing, the train was parked and left running on the main track in Nantes, Que., awaiting departure. But shortly after the engineer parked the train, a locomotive engine caught fire and was turned off by the Nantes fire department.

Without power from the running locomotive engine, air slowly leaked from the air brake system. An insufficient number of handbrakes were applied and the train eventually began rolling downhill on its final journey toward Lac-Megantic.

Some of the causes and contributing factors in the Lac-Megantic rail disaster were not technical failures so much as they were failures of humans to properly interact with technology: To properly maintain a locomotive engine, to have knowledge of interactions between locomotive engines and air brake systems and to properly set and test the effectiveness of handbrakes.

Although technical standards were less stringent in 2013, technology did not fail us. In many of the causes and contributing factors of Lac-Megantic, it is evident that we failed to understand and interact with our technology.

______________________________

This article was originally published on The Conversation. Disclosure information is available on the original site. To read the original article:

https://theconversation.com/technology-to-prevent-rail-disasters-is-https://theconvers

About the Author

Chris Bachmann is an Assistant professor, Department of Civil and Environmental Engineering, University of Waterloo.  His research interests include the interaction between transportation and economics, trade, energy, transportation network resiliency/criticality/robustness/vulnerability, risk, dangerous goods movement, transport economics, transport project and policy evaluation.

Alberta Coal mine fined $1 million for Fisheries Act Violations

Sherritt International Corporation (Sherritt) recently pleaded guilty in the Provincial Court of Alberta to three counts of contravening the Canadian Fisheries Act.  Sherritt was sentenced to pay $1,050,000.  As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

The Coal Valley Mine, which was owned by Sherritt, from 2001 to 2014, is an open-pit coal mine located 90 km south of Edson, Alberta.  The Coal Valley Mine is a 20,660 Ha. surface mine. The mine operates both truck/shovel and dragline pits and utilizes a dragline for coal removal. The area has a long history of mining and the Coal Valley Mine was opened in 1978 to supply coal to Ontario Hydro and for overseas export.

Coal is uncovered at the mine using the two draglines  and two truck/shovel fleets. The exposed coal is hauled from the mine to the heavy media wash plant where the waste is removed and then loaded on trains to be shipped to the ports. Current annual production of the mine is 3.0 million tonnes and the plant has capacity to operate at 4.0 million tonnes per year.

On August 3rd, 2012, Environment and Climate Change Canada (ECCC) enforcement officers visited the mine in response to a spill report, and they determined that effluent being deposited from a waste-water pond was deleterious to fish. ECCC enforcement officers subsequently issued a direction under the Fisheries Act, which resulted in the deposit being stopped.  Further investigation by ECCC determined that there were two previous releases of deleterious effluent from waste-water ponds, on July 27th, 2011.

The releases went into tributaries of the Athabasca River, including the Erith River portions, which are identified by the Government of Alberta as “ecologically significant habitat” for Athabasca rainbow trout, a species at risk.

The waste-water ponds at the Coal Valley Mine collected surface water that was treated with a chemical flocculant to remove suspended sediment before being discharged.  Both suspended sediment and an excess of flocculant can be toxic to fish.

Of the $1,050,000 fine, $990,000 will be directed to the Environmental Damages Fund (EDF).  The EDF was created in 1995 by the Government of Canada. The fund follows the polluter pays principle, and it ensures that court-awarded penalties are used for projects with positive environmental impacts.

Phytoforensics: Using Trees to Find Contamination

The United States Geological Survey (USGS) recently prepared on Fact Sheet on how phytoforensics can be used to screen for contamination prior to traditional sampling methods.  Phytoforensics is a low cost, rapid sampling method that collects tree-core samples from the tree trunk to map the extent of contamination below the ground.

By utilizing phytoforensics, environmental professionals can save the cost and time associated with traditional methods of subsurface investigation – drilling boreholes, installing monitoring wells.

Scientists at the Missouri Water Science Center were among the first to use phytoforensics for contamination screening prior to employing traditional sampling methods, to guide additional sampling, and to show the large cost savings associated with tree sampling compared to traditional methods, to guide additional sampling, and to show the large cost savings associated with tree sampling compared to traditional methods.

The advantages of phytoforensics include the following: quickly screen sites for subsurface contamination; cost- and time-effective approach that uses pre-existing trees; non-invasive method (no drill rigs or heavy equipment required); and representative of large subsurface volumes.

Phytoforensics testing involves the collection of a tree-core sample with necessary sampling equipment including an incremental borer, forceps, a sample vial, and gloves.  Samples are collected at about 3 feet (1 metre) above ground surface, placed into vials for subsequent laboratory analysis.

Similar to phytoforensics, phytoremediation is the field of looking to use plants to mitigate environmental pollutants and human exposures. As plants are efficient, key components in local and global water, carbon and energy cycles, they can influence pollutant transport and availability in many different ways.

Dr. Joel Burken, Missouri S&T professor of civil and environmental engineering, tests a tree in Rolla’s Schuman Park with then high school senior Amanda Holmes and S&T graduate student Matt Limmer. Photo by B.A. Rupert

Canada: Oil Spill Liability – Kawartha Lakes Continues

By Donna Shier, Partner and Certified Environmental Law Specialist, Joanna Vince, Senior Associate and Raeya Jackiw, Student-at-Law, Willms & Shier

Background

In the most recent decision in the ongoing Kawartha Lakes saga, the Superior Court of Justice found homeowner Mr. Wayne Gendron partly responsible for an oil spill that destroyed his lakeside property.  The Court also found Mr. Gendron’s fuel distributor liable for a portion of the costs.  This decision serves to warn homeowners that a distributor’s delivery of fuel does not mean that their tanks are safe. It also cautions fuel distributors that they may be liable for spills brought about by a homeowner’s negligence.

The Facts

Thompson Fuels (“Thompson”) supplied 700 liters of fuel oil to two tanks in Mr. Gendron’s basement.  Mr. Gendron had installed the fuel tanks himself without proper shut off valves, contrary to industry standards.

During a period of financial difficulty, Mr. Gendron filled these fuel tanks with less expensive stove oil.  The stove oil introduced water and microbes into the tanks, causing the tanks to corrode.  When Thomspon delivered the fuel oil one of the tanks leaked, spilling approximately 600 liters.

In the hours following the fuel delivery Mr. Gendron tried to manage the spill on his own by collecting what he believed to be all of the leaking oil in Tupperware containers.  Approximately 24 hours later, Mr. Gendron called Thompson to complain that it had not delivered his entire shipment of fuel oil – he was short about 600 liters.  Mr. Gendron never called to report the spill to the MOECC’s Spills Action Centre hotline.

The fuel oil migrated under Mr. Gendron’s house, through the City of Kawartha Lake’s drainage system, and into nearby Sturgeon Lake. The Ontario Ministry of the Environment and Climate Change (MOECC) ordered Mr. Gendron and his wife to “ameliorate the adverse effects caused by the discharge of the furnace oil” and “restore the natural environment… to the extent practicable.”  Mr. Gendron began remediation of the contamination of his property and the contamination of Sturgeon Lake.

Early remediation efforts were complicated by the frozen lake and soil. Mr. Gendron’s personal insurance was rapidly exhausted.  His insurer eventually refused to fund further off-site remediation of Sturgeon Lake.

The remediation efforts cost nearly $2 million  and required the demolition of Mr. Gendron’s home.

Sturgeon Lake, Kawatha Lakes Region, Ontario

The City’s MOECC Order

The MOECC ordered the City of Kawartha Lakes to clean up any fuel oil remaining in the City’s culverts and sewers that could re-contaminate Sturgeon Lake.  The City appealed the order first to the Environmental Review Tribunal, then to the Divisional Court, and ultimately to the Ontario Court of Appeal, losing each time. (See our previous article on the Court of Appeal’s decision here.)

Environmental Protection Act Claims

Using its powers under the Ontario Environmental Protection Act (“EPA”), s. 100.1 the City ordered compensation for its remediation costs from Mr. Gendron, Thompson and the Technical Standards and Safety Authority (“TSSA”).  Mr. Gendron, Thompson and the TSSA appealed the order to the Environmental Review Tribunal.  Thompson and the TSSA settled with the City and withdrew their appeals.  Mr. Gendron’s appeal was unsuccessful and he was required to pay more than $300,000 of the City’s costs.  Mr. Gendron then brought a claim for contribution and indemnity against Thompson under EPA, s. 100.1(6).  In this most recent case, the Court found that Mr. Gendron could not make out his EPA claim because ownership and control of the fuel oil had transferred to him when the fuel oil was delivered to him by Thompson.  Mr. Gendron’s claim for contribution under the EPA was dismissed.

About the Authors

Donna Shier, Partner & Certified Environmental Law Specialist.  With almost 40 distinguished years of experience practicing environmental law, Donna Shier is one of Canada’s leading environmental counsel to major industrial corporations. Donna is also frequently called upon by corporate, commercial and real estate lawyers to assist their clients with environmental legal issues, and provides environmental law expertise to external litigation counsel. Donna is a qualified mediator and is an accredited member of the ADR Institute of Canada. Donna is called to the bar of Ontario.

Joanna Vince, Senior Associate.  Joanna Vince has significant expertise representing a wide range of clients with environmental issues, civil claims and prosecutions, orders and appeals. Joanna was admitted to the bar of Ontario in 2011.  Joanna has a B.Sc. (Hons., High Distinction) in biology and environmental science, and a Certificate in Environmental Studies. Joanna’s knowledge of and commitment to environmental issues was recognized by the University of Toronto, which awarded her the Arthur and Sonia Labatt Fellowship and the Douglas Pimlott Scholarship. Also at the University of Toronto, Joanna assisted with preparing academic papers and books as a research assistant on wind power, carbon taxes and climate change.

Raeya Jackiw, Student-at-Law.  Prior to articling at Willms & Shier, Raeya was a summer student at the firm and conducted legal research on issues in environmental, aboriginal, energy, constitutional, administrative, contract, tort, and civil procedure law. She has a Juris Doctor, Certificate in Environmental Law from the University of Toronto, a Masters Degree in Environmental Science from the University of Guelph, and a Bachelor’s Degree in Environmental Science from Queen’s University.

This article was originally published on the Wilms & Shier website.

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

New Canadian Regulations Proposed on Rail Security of Dangerous Goods

The Canadian federal government recently proposed new regulations under the Transportation of Dangerous Goods Act. Trains transporting dangerous goods can be particularly vulnerable to misuse or sabotage, given the harmful nature of the goods and the extensive and accessible nature of the railway system. To mitigate these risks and to better align Canadian standards with international standards, Transport Canada is proposing the introduction of risk-based regulations for the transportation of dangerous goods by rail in Canada.

If eventually promulgated, the Transportation of Dangerous Goods by Rail Security Regulations (referred to as the Rail Security Regulations) will strengthen the security by requiring rail carriers and consignors to proactively engage in security planning processes and manage security risks, by introducing the following elements:

security awareness training for all employees;
security plans that include appropriate measures to address assessed risks; and
security plan training for employees with duties related to the security plan or security sensitive dangerous goods.
Rail carriers would also be required to

conduct security inspections of railway vehicles containing dangerous goods for which a placard is required when accepted for transport and when placed in a train;
report potential threats and other security concerns to the Canadian Transport Emergency Centre (CANUTEC); and
have a rail security coordinator.

The proposed Regulations are expected to have a positive impact on public security, by increasing the likelihood that terrorist activities would be detected and prevented, and by minimizing the consequences should an incident occur, such as loss of life, property damage, environmental damage, and reduced international trade flows. The proposed Regulations would also enhance regulatory alignment with the United States, to facilitate the cross-border movement of dangerous goods by rail.

The proposed Regulations are expected to result in costs to rail carriers and consignors and the Government of an estimated $18 million over a 10-year period (present value). As with the analysis of any security proposal, it is difficult to quantify the benefits; however, it is expected that the positive impact on public security would outweigh the associated costs.