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

Environmental Insurance in Canada

By Indrani Nadarajah

Environmental insurance policies are now widely available in Canada. While there are problems with wordings in many of those policies, the portfolio is evolving with more targeted products becoming available to address the changing liability landscape.  Meanwhile, a parliamentary review of the Canadian Environmental Protection Act has just been completed, confirming that the country’s main pollution laws are outdated, and the courts have been leaning towards a more generous interpretation of current legislation in order to better protect the environment.  Environmental activism is not affecting the insurance portfolio yet as actions thus far have been targeted at prospective projects, but as stakes rise, this may change.

Environmental insurance has been available in this country for a while, with insurers relying on foreign policy wordings without necessarily ensuring their offerings cohere with the Canadian regulatory environment, explains Carl Spensieri, Vice President, Environmental Insurance at Berkley Canada.

“Most of the policies currently available in the Canadian marketplace originate from parent companies based in the US or Europe, where environmental regulations are much tougher.  It doesn’t always make commercial sense for the overseas-based insurers to tailor their wordings specifically to the market here, given that the size of the environmental insurance portfolio in Canada is only about $150 million, about 10 times smaller than the estimated $1.5-$2 billion market in the US,” Spensieri explains.

A complicating factor for the environmental portfolio is that unlike many developed jurisdictions, Canada is not regulated by prescriptive environmental standards. Rather, there are guidelines. (There are, however, exceptions such as when a former industrial site is to be converted to residential use. In these situations, requirements are very explicit.)

It is this difference that creates a misalignment between policy wordings and cover intent, Spensieri explains. The guidelines that stand in lieu for regulation, rather than allowing for greater latitude during cleanup, often pose problems for both the insured and the insurer when a claim is made.

For example, a policy may state that the insurer will foot the cost of cleaning up a polluted site to the standard “as required by law,” but what happens when the law is silent on the matter?

The claim is often denied, which then forces the insured to petition a regulatory authority to issue a cleanup order.  Canadian regulators, however, are very hesitant to offer specific advice or issue orders.  “In Canada, we have the underlying philosophy of the polluter pays principle.  But if the property you pollute is your own, there is rarely any requirement to remediate,” Spensieri points out.  A regulator, however, will take action (including issuing an order) if the pollution seeps or affects a neighbouring property not owned by the polluter, or a public natural resource.

This lack of clarity has served to dampen the environmental insurance market, with some insurers electing to only offer policies which respond to cleanup when legally required.

David V. Tupper, a partner at Blake, Cassels & Graydon LLP in Calgary, notes that the courts have yet to give clear direction in an area which affects commercial and general liability (CGL) policies. CGL policies have a 120-hour provision within which the insured has to report the pollution to the insurer.  Only then can the provision for cover be triggered.  However, whether the 120-hour provision is an absolute requirement has not been clarified by the courts, with no resolution of this matter in terms of reported decisions, says Tupper.

 EVOLVING PORTFOLIO

According to Tupper, there are three broad developments in environmental liability insurance that have occurred over the last five years.

  1. Environmental impairment liability policies (EIL)

EIL policies cover third party exposures for the manufacturing or servicing industries. They cover first party cleanup expenses and pollution from waste material, as well as third party cleanup expenses, bodily injury and property damage arising from a pollution event.

“EIL policies are usually not tied to sudden accidental release of pollutants, but most do provide broad coverage for businesses after extensive due diligence by the insurers,” says Tupper.  “EIL policies also have strict limits.”  Such policies tend to focus on non-legacy, light hazard, and fixed site exposures.  They typically avoid known contamination conditions.

Strategic Underwriting Managers for example, bills its EIL policy as an endorsement that is meant to address the gap created by the pollution exclusion in CGL policies.

  1. D&O insurance and environmental liability

The second development in environmental insurance arose out of a recent case in Ontario.

The decision in Baker et al. v. Director, Ministry of the Environment cast a pall over Canadian boardrooms when the former directors and officers of Northstar Aerospace, Inc. and its parent, Northstar Aerospace (Canada) Inc., were held personally liable by the Ontario Ministry of the Environment (MOE) for contamination at the insolvent company’s former manufacturing and processing facility in Cambridge, Ontario.

Northstar Aerospace Facility, Cambridge, Ontario (Photo Credit: Richard Vivian, Cambridge Times Staff )

The environmental contamination arose from the migration of trichloroethylene from the site to nearby residential properties.  Northstar began a voluntary remediation of the site in 2005 but after it began to encounter financial difficulties, the MOE issued a remediation order in March 2012 to secure continued performance of the work. Following the sale of substantially all the company’s operating assets (other than the site) in July 2012 under the Companies’ Creditors Arrangement Act (CCAA), no personnel or resources were left to continue the work.  Due to human health concerns, the MOE took the extraordinary step in August 2012 of undertaking the remediation work itself.

When the stay of proceedings under the CCAA expired in October 2012, the MOE issued a remediation order against certain directors and officers of the company.  The directors and officers appealed to the Ontario Environmental Review Tribunal, pointing out that some of them were not on the board when the contamination occurred and they had had no specific responsibility for environmental matters.  The MOE counter- argued, pointing out that the directors and officers had allowed the company to file for CCAA protection and stop remediation activities, which therefore made them responsible for remediation under the Ontario Environmental Protection Act.  The ERT agreed with the MOE’s argument and ordered the directors and officers to foot the bill so that remediation work could continue until the appeal process was completed. The directors and officers were forced to pay approximately $800,000 for the interim work and subsequently reached a settlement with the MOE, where eight of the individuals paid a total of $4.75 million.

“It’s not surprising that this case created a significant concern among directors and officers that they would be pursued for environmental cleanup,” says Tupper.  “And what’s happened in the last few years – a focus on D&O insurance and the environmental provision.”

Some D&O policies have been revamped to include environmental cover.  For example, last September, RSA Insurance introduced a policy called “Ironclad,” which the company describes as a comprehensive Side A DIC (Difference in Conditions) insurance policy to bridge the gap between “unavailable corporate indemnification, an unresponsive or exhausted underlying D&O policy, and the directors’ and officers’ personal assets.”  But there are questions about the level of protection that would actually be offered, warns Tupper.

  1. New entrants in the marketplace

There is no doubt that notwithstanding certain shortcomings outlined above, the environmental insurance portfolio is evolving with new entrants in the marketplace differentiating themselves.

Berkley Canada, for example, offers expedited cleanup in its environmental policies, a feature which it says is unique in Canada.  Expedited cleanup not only ensures that an insured can file a claim for cleanup, but also ensures the cleanup method used is fast and efficient, rather than the most cost-effective.  This enhancement helps minimize project delays, says Carl Spensieri.

The company is also specifically targeting public private partnership consortiums involved in major infrastructure projects in Canada.  Berkley’s environmental policies target companies undertaking such projects by covering not only cleanup of pollution caused by the contractor’s work, but also the financial cost when pollution is discovered on the owner’s site.

“Today, risk is more complex than ever before.  As such an insured should always undertake the appropriate level of due diligence and ensure they are engaging the appropriate underwriting and broking expertise when purchasing environmental insurance,” Spensieri warns.

Over the summer, Beazley, a provider of specialist environmental liability insurance launched its local environmental coverage in Canada, focusing on fixed site and operational liability risks.

“Key target industries are the manufacturing, industrial, real estate, hospital and educational sectors,” notes a company statement.

CANADIAN LEGAL INTERPRETATION BROADENING?

In 2013, the Supreme Court of Canada held that environmental laws may be interpreted broadly, even when no obvious damage to the environment was discerned, in order to better protect the public.

In Castonguay Blasting v Ontario, a company, Castonguay Blasting, conducted a blasting operation when it was working on a highway-widening project in Eastern Ontario.  The blast damaged a nearby home and vehicle with fly-rock from the blast-site, but the natural environment was not harmed.  However, Castonguay was charged and convicted for failing to report the incident to the environment ministry under Ontario’s Environmental Protection Act.

Castonuay Blasting,a drilling and blasting contractor, has more than 40 years of experience in the quarry sector

Castonguay Blasting, which was granted leave to appeal to the Supreme Court of Canada, argued that the EPA does not apply if the natural environment is not also harmed.  A unanimous Supreme Court, however, disagreed with Castonguay’s position.

Justice Rosalie Abella, writing for the seven-member Court, held that the EPA is entitled to a generous interpretation to ensure that it can properly respond to a wide variety of environmentally harmful scenarios so as to protect the public.  “The statute places both the obligation to investigate and the decision about what further steps are necessary with the Ministry and not the discharger,” she affirmed.

In a separate case, however, the British Columbia Court of Appeal confirmed the application of the environmental exclusion provision in CGL policies.

In Precision Plating Ltd. v. Axa Pacific Insurance Company, 2015 BCCA 277, the BC Court of Appeal held that the insurer had no duty to defend the insured for claims alleging property loss arising from the escape of toxic chemicals.

The insured, Precision Plating, had leased a space within a multi-tenanted commercial strata building and stored vats filled with toxic chemicals used in its electroplating business.  In 2011, a fire broke out on the insured’s premises, activating the sprinkler system.  The water caused the toxic chemicals in the vats to overflow and seep into neighbouring units.  The insured applied for a declaration that the insurer had a duty to defend these claims, which Axa disputed.

At issue was the interpretation of the pollution exclusion clause in the CGL policy.

Precision’s CGL policy stated that insurance does not apply to “Bodily Injury, Personal Injury or Property Damage caused by, contributed to by, or arising out of the actual, alleged or threatened discharge, emission, dispersal, seepage, leakage, migration, release or escape at any time of Pollutants.”

The trial judge determined that a literal interpretation of the pollution exclusion clause would lead to a result that was inconsistent with the insured’s “reasonable expectations” of coverage, especially since the main purpose of the insurance policy was to indemnify against liability for fire damage.

On appeal, Axa contended that the unambiguous terms of the pollution exclusion in the policy state clearly that any liability created because of property damage caused by the “seepage or leakage, migration, release, or escape of a pollutant is expressly excluded from coverage.”  The Appeal Court upheld Axa’s reading, noting that the CGL policy “does not cover a claim where liability associated with the release of pollutants is alleged, whether as a sole or concurrent cause.”

On January 14, 2016, the Supreme Court of Canada dismissed, with costs, the application for leave to appeal the decision of the BC Court of Appeal.

ENVIRONMENTAL ACTIVISM AND INSURANCE PORTFOLIOS

TransMountain Expansion Project

Based on media coverage, it would appear that environmental activism is getting noisier and, in some cases, becoming quite effective in changing the course of projects and the direction of business investments.

In a recent BNN TV interview, ‎managing director and head of portfolio strategy at CIBC World Markets, Ian de Verteuil, said that analysts calculate that about $25 billion of global energy money has left Canada this year, primarily because of the negative reputation that Canada’s oil sands have in Europe.

In March 2017, Royal Dutch Shell and Houston-based Marathon Oil sold their stake in the Athabasca Oil Sands Project for $12.7 billion to Canadian Natural Resources. Then, in the same month, ConocoPhillips sold its $6.8 billion stake in Cenovus Energy, in order to exit the oil sands.

Global players have a relatively small part of their production output tied to Canadan oil sands but de Verteuil said  European management would regularly be confronted by persistent questioning from a certain segment of shareholders.  For many, the trouble that oilsands was causing them was just not worth their while.  “This exit boils down primarily to environmental concerns,” de Verteuil said.

Blake’s Tupper notes that thus far, environmental activism has not impacted the environmental insurance portfolio because the actions are directed at prospective projects.

Map of proposed Trans Mountain Pipeline Expansion Configuration (Credit: NRCAN)

An example is the highly contentious TransMountain Expansion Project (TMEP), which was approved by the Federal Government in November 2016. TMEP is currently facing 18 court challenges.  Most recently, Reuters reports that more than 100 environmental activists are practising seaborne drills to disrupt construction, slated to begin in September.  Analysts Credit Suisse even acknowledged in an investment note that, “British Columbia’s political changes translate into a difficult path for TMEP,” after the British Columbia government applied for intervener status in court challenges against the pipeline expansion.  The province’s former Liberal government had issued an environmental certificate for the project earlier this year, but Premier John Horgan successfully campaigned in the spring provincial election on doing everything possible stop it.

Kinder Morgan Canada, however, says it remains committed to expanding its TransMountain Pipeline, and says it expects to have the project in service by the end of 2019.  It reportedly has approximately $4-billion in financial capacity to clean up a pipeline spill — $750-million in spill liability insurance and $3.2 billion in equity (cash reserves and cash flow.)

This is an excerpt from the September 2017 CIP Society trends paper, Environmental Insurance. You can read the full paper online at https://www.insuranceinstitute.ca/en/cipsociety/information-services/advantage-monthly/0917-environmental-insurance

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About the Author

Indrani Nadarajah is a business and insurance writer with extensive international experience. She is also an experienced health writer, who enjoys writing on the latest medical developments as well as health economics issues.  She has co-authored papers with researchers from the University of Toronto that have been published in prestigious journal including the Journal of the American Society of Information Science and Technology (JASIST).  She has previous been the editor of Thomson Reuters Australia for nine years and the news editor at Reed Business Information.  Indrani has a Master’s degree in Library and Information Science and a M.A. in Literature from the National University in Singapore.

B.C. First Nation says it has created world-class oil spill response plan

As reported by CTV News, A British Columbia First Nation has released a plan it says will give it a leading role in oil spill prevention and response on the province’s central coast.

A report from the Heiltsuk Nation calls for the creation of an Indigenous Marine Response Centre capable of responding within five hours along a 350 kilometre stretch of the coast.

The centre proposal follows what the report calls the “inadequate, slow and unsafe” response to the October 2016 grounding of the tug the Nathan E. Stewart that spilled about 110,000 litres of diesel and other contaminants.

Bella Bella Oil Spill (Photo Credit: HEILTSUK FIRST NATION)

Heiltsuk Chief Councillor Marilyn Slett says during that disaster her people saw what senior governments had described as world-class spill response and she says the Heiltsuk promised themselves that this would never happen in their territory again.

The report says the proposed centre, on Denny Island across from Bella Bella, and satellite operations dotted along the central coast, would need a total investment of $111.5 million to be operational by next summer.

Unlike current response programs which the report says are limited specifically to spills, the new centre would answer all marine calls with the potential for oil contamination, including groundings, fires, bottom contacts and capsizings.

“(The centre’s) effectiveness hinges on a fleet of fast response vessels capable of oil clean up and containment, and a tug and barge system providing storage and additional oil spill clean-up capabilities,” the report says.

The barge would also be equipped with enough safety gear, provisions and living space to allow a response team to remain on site for up to three weeks without outside support.

The marine response centre would have annual operating costs of $6.8 million, covering a full-time staff and crew of 37.

“From Ahousaht with the Leviathan II to Gitga’at with the Queen of the North to Heiltsuk with the Nathan E. Stewart, Indigenous communities have shown that we are and will continue to be the first responders to marine incidents in our waters,” says the report, signed by Slett and hereditary Chief Harvey Humchitt.

Indigenous rescuers were first on the scene when six people died after the whale-watching vessel the Leviathan II capsized north of Tofino in 2015. Two people were killed when the Queen of the North hit an island and sank in 2006 west of Hartley Bay and First Nations helped in the rescue.

“The time has come to meaningfully develop our capacity to properly address emergencies in our territories as they arise,” the report says.

Victoria Harbour, B.C. cleanup contract awarded to Milestone Environmental Contracting Inc.

Cleanup work to remove hazardous substances from Victoria Harbour in British Columbia is scheduled to begin shortly with the announcement early this month by Transport Canada that a clean-up contract had been awarded to Milestone Environmental Contracting Limited.  Under the $5,344,000 contract, Milestone will remove hazardous chemicals in sediments from Victoria’s Middle Harbour sea bed.

Victoria, B.C. is located on the southern tip of Vancouver Island off Canada’s Pacific coast.  The city has a population of 86,000.  The harbour serves as a cruise ship and ferry destination for tourists and visitors to the city and Vancouver Island.

Map of Sediment Clean-up Area of Victoria Harbour, British Columbia

Once the contaminated sediments are removed, it is anticipated that the environmental health of the harbour will be restored.  Studies by Transport Canada found that presence of persistent contaminants in the sediments that don’t break down and remain in the environment.  The contaminants threaten the marine food web.

The cleanup work will begin in November 2017 and is expected to be completed by January 2018.  This involves dredging of contaminated sediment, and transporting the sediment by barge to an approved facility for treatment and disposal.  It is estimated that the dredging work will remove 1,200 cubic metres (4,200 cubic feet) of contaminated sediment from the sea bed.  The harbour bed will be backfilled with clean material.

The project will be closely monitored by Transport Canada to ensure the safety of workers and the community.  Sediment and water quality will be monitored throughout the project to ensure that cleanup objectives are met and that the dredging activities do not have a negative impact on the surrounding environment.  For the public’s safety, sections of the lower David Foster Pathway at Laurel Point Park may be closed, but the upper pathway will remain open for the duration of the project.

The Victoria Middle Harbour Remediation Project is funded through the Federal Contaminated Sites Action Plan, which is coordinated by Environment and Climate Change Canada and the Treasury Board of Canada Secretariat, and provides funding to assess and remediate federal contaminated sites.

The source of the contamination in the harbour is from a paint factory that occupied Laurel Point from 1906 until the mid-1970’s.  Factory operations caused damage to the sediments surrounding Laurel Point Park.

Laurel Point, Victoria Harbour, British Columbia

U.S. EPA reaches settlement with Hazardous Waste Facility over Environmental Violations

The U.S. Environmental Protection Agency (U.S. EPA), Region 10, recently reached a settlement with Emerald Services, Inc., a hazardous waste storage and treatment facility in Tacoma, Washington, over violations of the Resource Conservation and Recovery Act (RCRA) and violations of the facility’s RCRA permit. This enforcement action was coordinated with the Washington Department of Ecology. The facility is located within the boundaries of the Puyallup Tribe’s reservation.

Emerald Services manages large volumes of hazardous waste, solvents, and antifreeze and re-refines used oil at the Tacoma facility. Emerald was purchased by Safety-Kleen Systems, Inc. on July 8, 2016, and both Emerald and Safety-Kleen are owned by parent holding company, Clean Harbors, Inc. Ensuring that funds will be available if the company’s operations harm people or damage property is an essential element of the “cradle to grave” RCRA hazardous waste management program.

Emerald Services Inc. Facility, Washington State, U.S.A.

This settlement resolves several RCRA violations at the Tacoma-area facility. Specifically, the company failed to maintain adequate third-party liability insurance coverage of the facility for the past six years.  As part of the settlement, Emerald Services agreed to pay a $125,800 penalty and amended its current insurance policy to comply with its RCRA permit.

“Having adequate insurance coverage for your business, especially one that stores and handles hazardous waste, isn’t an option, it’s the law,” said Ed Kowalski, Director of EPA’s Region 10 Compliance and Enforcement Division in Seattle. “Liability insurance is a key requirement of the hazardous waste permitting system, ensuring that commercial hazardous waste handlers operate in a safe manner to protect people’s health and the environment.”

There is a history of spills and incidents at Emerald’s Tacoma facility. In 2013, a 1,900-gallon spill of a highly dangerous fuel oil/asphalt mixture injured a worker. Emerald’s pattern of spills and releases suggests the facility may have a higher probability of future accidents, underscoring the need to have liability coverage for possible bodily injury, property damage and environmental restoration.

Violating environmental laws puts public health and the environment at risk. EPA protects communities by ensuring compliance with federal environmental laws. By fairly enforcing environmental laws, we level the playing field by deterring violators and denying companies an unfair business advantage over facilities and businesses that follow the rules.

U.S. EPA Assesses Sunken, Leaking Marine Vessels

The U.S. Environmental Protection Agency (U.S. EPA) continues its response to Hurricanes Maria and Irma in close coordination with federal, commonwealth, territory, and local partners. EPA remains focused on environmental impacts and potential threats to human health as well as the safety of those in the affected areas.

“Our role is to assist both Puerto Rico and the U.S. Virgin Islands to minimize environmental damage from boats leaking gasoline, fuel or other contaminants,” said EPA Regional Administrator Pete Lopez. “We are doing this in a way that respects the vessel owner’s rights while still protecting people from spills and hazardous substances that might be onboard the vessels.”

Marine Vessels Recovery Operations

EPA is supporting Puerto Rico, the U.S. Virgin Islands and the U.S. Coast Guard in marine vessel recovery work. Teams continue to locate, assess and retrieve sunken, damaged and derelict vessels around Puerto Rico and the USVI.  We are also assisting with the recycling and disposal of recovered oil and hazardous materials from the vessels.

The U.S. EPA’s support role includes recording the vessel’s location and collecting information such as the name of the vessel and identification number, condition, impact to surrounding areas and/or sensitive/protected habitats (e.g. mangroves, coral reefs) for future recovery missions and owner notifications.  A higher priority is placed on vessels found to be actively leaking fuel or hazardous materials, where containment and absorbent booms are placed to decrease contamination.

Once the damaged vessels are brought to shore, or are processed on a staging barge, EPA will be handling various hazardous materials for recycling and disposal, including petroleum products (oil, gas or diesel fuel), batteries, and e-waste, which can harm the environment if they’re not removed from the waters. EPA will also recycle or dispose of any “household hazardous wastes”, such as cleaners, paints or solvents and appliances from the vessels. It is important to properly dispose of these items to prevent contamination to the aquatic ecosystem.

Vessels are being tagged by assessment teams with a sticker requesting that owners contact the U.S. Coast Guard to either report their vessel’s removal, or to request U.S. Coast Guard assistance in its removal. There is no cost, penalty or fine associated with the removal of the vessels.

As of November 16, 2017,

  • 340 vessels were identified as being impacted in Puerto Rico
  • 589 vessels were identified as being impacted in the U.S. Virgin Islands

The effects of an spills from marine vessels will depend on a variety of factors including, the quantity and type of liquid (i.e., fuel, oil) spilled, and how it interacts with the marine environment. Prevailing weather conditions will also influence the liquid’s physical characteristics and its behaviour. Other key factors include the biological and ecological attributes of the area; the ecological significance of key species and their sensitivity to pollution as well as the time of year. It is important to remember that the clean-up techniques selected will also have a bearing on the environmental effects of a spill.

Asbestos & Disaster Relief Precautions

By Alison Grimes, MAA Center

2017 has proven to be an unfortunate memorable year of natural disasters.  Across the globe, countries including Afghanistan, China, Colombia, The Democratic Republic of the Congo Mexico, Peru, Sierra Leone, South Asia, Sri Lanka, Zimbabwe and more, have all suffered heartache and destruction as a result of natural disasters.

The United States even experienced the hardship of more than 50 separate weather, climate and flood disasters, above the 10-year average of 45 disasters.  With hundreds and thousands of lives affected, fast action and relief saves lives. However, although quick relief is important, safety and health should not be taken for granted.

Aerial view of flood damage from Hurricane Harvey (Photo Credit: Brett Coomer, Houston Chronicle)

Disaster Relief Precautions

Following a natural disaster, first responders, insurance adjusters, and contractors are called upon to re-build or repair damage in the home or workplace.  To ensure safety with relief and reconstruction, the following precautions and best practices will ensure good health and well-being, long after a natural disaster.

Asbestos

While managing flood recovery and other natural disaster reconstruction, asbestos is not often thought of.  Although entirely natural, asbestos is very harmful to health, leading to cancer such as mesothelioma, asbestosis, lung cancer and more.  There is no safe level of asbestos exposure and once asbestos fibers are consumed by way of inhalation or ingestion, health concerns can develop anywhere between 10-50 years later.  Therefore, it is important to consider the age of a structure before performing a repair.

Flood Damage Asbestos Abatement (Photo Credit: Patriot Abatement Services)

Asbestos use was widespread during the early 1930s with heightened use during the mid to late 1970s throughout the 1980s.  Its fire-resistant properties, abundance and malleability made it a popular additive in many products used in construction such as tiling, insulation, cements, caulking, heating ducts, roofing, siding, drywall and more.  When such products or materials that contain asbestos are properly encapsulated or enclosed, they will not pose harm to health, however in the case of natural disasters and water damage, the risks of being exposed to asbestos increase as a result.

 Mold

Natural disaster relief zones are breeding grounds for mold, which can begin to develop in as little as 48 hours.  Similar to asbestos, mold is often forgotten about during repairs and disaster relief.  When mold forms, spores enter the air and are easily inhaled, causing skin, eye and nasal passage irritation, wheezing and respiratory health concerns.  Considering the harm associated with mold exposure, it is essential to first dry any wet, humid or damp areas to prevent mold growth.  Additionally, any existing mold should be remediated by a specialist to ensure that all mold spores are eradicated. Control and prevent mold growth by limiting humidity levels, fixing leaky roofs, windows and pipes, cleaning and drying wet areas, and ensuring proper shower, laundry and cooking area ventilation.

 Awareness and training are two essential steps to ensure successful and safe, disaster relief.  However, asbestos and mold are only two concerns to be mindful of,  as lead, silica, PCBs, particulate matter and other hazardous building materials pose great harm to health as well.  Moreover, first responders and all others called upon during disaster relief, must prioritize self-care techniques to prevent burnout and secondary traumatic stress.

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About the Author

Alison Grimes is a Health Advocate at the Mesothelioma + Asbestos Awareness Centre (MAA Center).  The MAA Center is an independent group working to help mesothelioma patients, caregivers, advocates, and others looking to learn more about the disease.

New Canadian Soil Quality Guidelines for Methanol

The Canadian Council of Ministers of the Environment (CCME) recently published an updated the Canadian Soil Quality Guidelines for the Protection of Environmental and Human Health: Methanol.

Canadian environmental quality guidelines are numerical concentrations or narrative statements recommended to provide a healthy, functioning ecosystem capable of sustaining the existing and likely future uses of the site by ecological receptors and humans.  Canadian soil quality guidelines can be used as the basis for consistent assessment and remediation of contaminated sites in Canada. The guidelines in the report were derived according to procedures described in A Protocol for the Derivation of Environmental and Human Health Soil Quality Guidelines (CCME 2006).  According to this protocol, both environmental and human health soil quality guidelines are developed and the lowest value generated from the two approaches for each of the four land uses is recommended by the Canadian Council of Ministers of the Environment (CCME) as the Canadian Soil Quality Guidelines (CCME 2006).

Sufficient data were available to develop soil quality guidelines for methanol protective of human health, in accordance with the soil protocol.  The human health soil quality guidelines for methanol are 4.6 mg/kg for coarse soil and 5.6 mg/kg for fine soil for all four land uses.  Human health soil quality guidelines were calculated for soil ingestion, inhalation of indoor air, and protection of groundwater for drinking water. The limiting pathway in the calculation of human health guidelines was drinking water.

Sufficient data were available to develop soil quality guidelines for methanol protective of environmental health, in accordance with the soil protocol.  The environmental health soil quality guidelines for methanol are: 7.7 mg/kg for coarse soil and 190 mg/kg for fine soil for all four land uses. Environmental health soil quality guidelines were calculated for ecological direct contact and protection of groundwater for aquatic life.  The limiting pathway in the calculation of environmental health guidelines was aquatic life.  Since it was possible to calculate both human health and environmental soil quality guidelines for methanol, the overall methanol soil quality guidelines are the lower of the two, which are 4.6 mg/kg for coarse soil and 5.6 mg/kg for fine soil for all four land uses.

Advance Technology Camera spots hidden Oil Spills

As reported in the New Scientist, a new kind of polarising camera is available that can detect otherwise invisible oil sheens.

Like many oil imagers, the Pyxis camera sees the infrared radiation emitted by all objects.  That is important because there is often a temperature difference between oil and water.  However, if there isn’t one, thermal imagers don’t work.  So the Pyxis also detects differences between the way oil and water scatter light.  Thanks to this differing polarisation, it works not only when the oil and water are the same temperature – but also in pitch darkness.

Infrared polarimetry has been used in astronomy to help identify distant stellar objects. Polaris Sensor Technologies, based in Alabama, has modified the technology for a new use.

“The optical system and the physics behind it are very complex,” says David Chenault, President of Polaris Sensor Technologies.  “We started building infrared polarimeters several decades ago, but they were bulky and not capable of looking at dynamic scenes.” Only in the past few years did it become possible to significantly shrink the sensor – now roughly the size of a fist – and make it capable of imaging moving scenes. That is important for detecting oil on water.

The new camera can see spills invisible to the naked eye from 2 kilometres away.  Its size means it can be mounted on a small drone or other robot.

Doug Helton of the National Oceanic and Atmospheric Administration Emergency Response Division says these cameras could augment NOAA satellite networks, which detect and track suspected oil spills.  While they can spot even small spills, visual confirmation is crucial to rule out false positives. “Wind shadow may look like an oil slick,” he says.

Confirmation is usually done by people in a helicopter or plane, so that is where a drone-mounted camera could save a lot of time.

The camera can also spot and track oil washed up on beaches. Typically, this is a time-consuming task that must be done by people on the ground.

The sensor passed extensive tests with crude oil and diesel in different wave conditions at the massive Ohmsett test facility pool in New Jersey and at an actual spill off Santa Barbara, California, in 2015.  Russell Chipman at the University of Arizona says this is a significant development. “The costs of polarimeters are decreasing,” he says, and the miniaturisation and commercialisation of infrared polarimetric sensors means this technology can now be deployed widely to detect all kinds of oil slicks.

While Polaris is currently concentrating on oil detection, more applications for the camera are likely to be discovered when it goes into mass production, anticipated early next year.

 

United States: Protect Your Company from Waste Liability

Written by: Viggo C. Fish, McLane Middleton

Question: My company is purchasing real estate, and we are concerned there may be existing environmental contamination on the property. What steps can we take to protect ourselves from liability?

 Answer:  Conducting environmental due diligence correctly is essential to protect purchasers of potentially contaminated commercial properties from possible liability far exceeding the value of the property. Strict hazardous waste regulation exists at the federal, state and, sometimes, even the municipal level.

Under both the U.S. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), commonly known as Superfund, and corresponding state law, owners of contaminated properties are liable, without regard to fault, for environmental conditions on the property, whether or not the owner was involved in any way in the initial release of the contamination. There are, however, steps prospective purchasers can take to limit this liability.

Hazardous waste laws allow purchasers of potentially contaminated property to conduct the necessary level of investigation, and, if performed correctly, limit their liability.

For example, the Superfund All Appropriate Inquiry (AAI) rule provides for certain limitations on liability of a so-called “innocent purchaser” if such an investigation is completed before the acquisition.

The innocent purchaser provision allows a purchaser who, under certain circumstances, did not know and “had no reason to know” that the property was contaminated to avoid later Superfund liability. Similar rules apply to state hazardous waste liability. Importantly, to avoid that liability, the purchaser must be able to establish it “carried out all appropriate inquiries … into the previous ownership and uses of the facility in accordance with generally accepted good commercial and customary standards and practices.”

Careful compliance with AAI requirements can be used later to support the “innocent landowner” defense to liability of the new owner. The burden of proof is on the purchaser to establish it is entitled to this and other such landowner liability defenses.

The key element of proof is the Environmental Site Assessment (ESA).  Buyers of commercial property typically conduct a Phase I ESA to evaluate the potential for contamination in accordance with ASTM Standard E1527-13.

Following the ASTM Standard demonstrates compliance with the EPA’s AAI rule, that protects prospective purchasers of property from liability under CERCLA.  This area of the law is unusually complicated, and it is therefore usually necessary to have the advice and assistance of qualified environmental consultants and environmental legal counsel to assure that the legal and financial protections against hazardous waste liability will actually be available, if needed in the future.

This article was first published in Know the Law, a bi-weekly column sponsored by McLane Middleton, Professional Association.  Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation. 

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About the Author

Vigo C. Fish is an Environmental and Energy Associate in the Administrative Law Department where he assists clients with a wide variety of energy and environmental matters.  Viggo received his J.D., cum laude, and Master of Energy Regulation and Law (MERL) degree, magna cum laude, from Vermont Law School (2015), and his B.A. in English from Providence College (2010). While in law school, Viggo worked as a Research Analyst at Vermont Law School’s Institute for Energy and the Environment and as a Clinician in the Energy Clinic. In addition, Viggo worked as a Markets and Policy Intern in the National Renewable Energy Laboratory’s Strategic Energy Analysis Center.