Quebec Town Fined $100,000 for Violating Canadian PCB Regulations

Earlier this year, the Town of Amos, located in northwestern Quebec, pleaded guilty in court to one charge and was fined $100,000 for violating the PCB Regulations, thereby committing an offence under the Canadian Environmental Protection Act, 1999 (CEPA).

Amos is located 110 km northeast of Rouyn-Noranda in northwestern Québec. The Town has a population of 13,000.  Its main resources are spring water, gold, and wood products, including paper.

Charges were laid against the Town of Amos after an investigation conducted by staff from Environment Canada and Climate Change (ECCC) showed that, in April 2015, the Town of Amos sold products containing PCBs in a concentration of 50 mg/kg or more, which is in violation of the PCB Regulations.

The amount of the fine will be directed to the Environmental Damages Fund (EDF) administered by Environment and Climate Change Canada.

What are PCBs?

PCBs (Polychlorinated Biphenyls) are a group of man-made organic chemicals consisting of carbon, hydrogen and chlorine atoms. The number of chlorine atoms and their location in a PCB molecule determine many of its physical and chemical properties.  Due to their non-flammability, chemical stability, high boiling point and electrical insulating properties, PCBs were used in hundreds of industrial and commercial applications including:

  • Electrical, heat transfer and hydraulic equipment
  • Plasticizers in paints, plastics and rubber products
  • Pigments, dyes and carbonless copy paper
  • Other industrial applications

Although no longer commercially produced in North America, PCBs may be present in products and materials produced before the 1979 PCB ban. Products that may contain PCBs include:

  • Transformers and capacitors
  • Electrical equipment including voltage regulators, switches, re-closers, bushings, and electromagnets
  • Oil used in motors and hydraulic systems
  • Old electrical devices or appliances containing PCB capacitors
  • Fluorescent light ballasts
  • Cable insulation
  • Thermal insulation material including fiberglass, felt, foam, and cork
  • Adhesives and tapes
  • Oil-based paint
  • Caulking
  • Plastics
  • Carbonless copy paper
  • Floor finish

The PCBs used in these products were chemical mixtures made up of a variety of individual chlorinated biphenyl components known as congeners. Most commercial PCB mixtures are known in the North America by their industrial trade names, the most common being Arochlor.

Canadian Government’s Role in the Management of PCBs?

Health Canada and Environment Canada have taken strong and effective steps under the Canadian Environmental Protection Act (CEPA) to control the use, importation, manufacture, storage and release of PCBs.

CEPA states that PCBs are toxic, and Environment Canada is working on revisions to CEPA that would further strengthen controls over all PCBs in service or in storage anywhere in Canada.

The Government has also established regulations regarding hazardous wastes and has signed a number of international agreements, such as the Canada-USAgreement on PCBs, and the Basel Convention, which are all aimed at the safe use, storage, transport and disposal of PCBs, both nationally and internationally.

In addition, Health Canada continues to monitor the amount of PCBs in food, air and water to ensure that Canadians are not exposed to levels that pose a health risk. Health Canada also tracks and assesses ongoing research about the health effects of exposures to PCBs.

Funding available for Cleantech Demonstration Projects in Ontario

BLOOM is issuing a call for funding applications to support the completion of low carbon, clean technology demonstration Projects in Ontario.  BLOOM is a private, not-for-profit federally incorporated company that brings together public and private sector stakeholders to achieve sustainable outcomes that manage risk and deliver economic, environmental and social benefit.

As a requirement, applications must be submitted by 2 co-applicants: a cleantech solution provider and a customer host that is representative of a broader sector.

BLOOM will be providing grant funding on a 50:50 cost-share basis, up to a maximum of $150,000 per Project.  BLOOM is responsible for managing this Program to support Ontario’s Climate Change Action Plan and transition to a low carbon economy.  Ideally, proposed Projects have strategic partners to support the roll-out and market adoption of the low carbon cleantech solution, following completion of the demonstration Project.

Applications are due by May 31, 2018. Successful co-applicants will be notified by June 30, 2018. Demonstration projects must be completed by March 15, 2019.

For additional information, click here.

SJC Clarifies Statute of Limitations for Contaminated Property Damage Claims but Raises Questions of Application

by Marc J. GoldsteinBeveridge & Diamond PC

Plaintiffs with property damage claims under the Massachusetts cleanup law have more time to bring their claim than might be expected under the three-year statute of limitations according to a recent ruling by the top Massachusetts court.  The Supreme Judicial Court ruled that the statute of limitations begins running when the plaintiff knows that there is damage to the property that is “permanent” and who is responsible for the damage, pointing to the phases of investigation and remediation in Massachusetts’ regulatory scheme as signposts for when a plaintiff should have that knowledge.  Grand Manor Condominium Assoc. v. City of Lowell, 478 Mass. 682 (2018).  However, the Court left considerable uncertainty about when the statute of limitations might begin for arguably more temporary property damages such as lost rent.

In this Google image, the Grand Manor condominium complex is visible at the center-right.

In this case, the City of Lowell owned property that it used first as a quarry and then as a landfill in the 1940s and 50s before selling the property in the 1980s to a developer.  The developer constructed a condominium project on the site and created a condominium association soon thereafter. As part of work to install a new drainage system in 2008, the contractor discovered discolored soil and debris in the ground.  Subsequent sampling indicated that the soil was contaminated and that a release of hazardous materials had occurred.  The condo association  investigated in early 2009, and MassDEP issued notices of responsibility to both the condo association as well as the city in May 2009.  The city assumed responsibility for the cleanup and worked the site through the state regulatory process known as the Massachusetts Contingency Plan (MCP).  In the city’s MCP Phase II and III reports in June 2012, it concluded that the contamination was from the city’s landfill operations, that it would not be feasible to clean up the contamination, and proposed a pavement cap and a deed restriction.

The condo association and many of its members filed suit in October 2012 for response costs under Chapter 21E, § 4 and damage to their property under G.L. c. 21E, § 5(a)(iii).  At trial, the jury awarded the plaintiffs response costs under Section 4 but found that the plaintiffs had failed to prove that their property damage claim was brought within the three-year statute of limitations for such claims under G.L. c. 21E, § 11A.  The Supreme Judicial Court took the case on direct appellate review.

Section 11A provides that an action to recover damage to real property “be commenced within three years after the date that the person seeking recovery first suffers the damage or within three years after the date the person seeking recovery of such damage discovers or reasonably should have discovered that the person against whom the action is being brought is a person liable…”  Quoting Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 226 (2002), the Court summarized this as a requirement that the claim must be brought within three years of when plaintiff “discovers or reasonably should have discovered [1] the damage, and [2] the cause of the damage.”

The Court quickly agreed that “the damage” referred to in Section 11A was, for these purposes, the property damages of Section 5 and moved on to the plaintiffs’ contention that the limitations period should not run until they discovered or reasonably should have discovered that the damage was “permanent” or, in other words, not reasonably curable.  Until that time, they argued, they could not know if they had a property damage claim because the site could be fully remediated.

The Court examined the application of the statute of limitations in the context of the statutory scheme for investigating and remediating sites in Massachusetts.  The Court found that the primary purpose of Chapter 21E is to clean up environmental contamination and to ensure responsible parties pay for the costs of that cleanup.  As a result, the statute prioritizes “performance and financing of cleanup efforts, and then considers the calculation of property damage that cannot be cured by remediation and remediation cost recovery.”

In interpreting the statute of limitations, the Court crystalized the question as “whether the word ‘damage’ in § 11A(4) refers specifically to damage under § 5, that is, damage that cannot be cured and compensated by the cleanup and cleanup cost recovery processes defined by the MCP and §§ 4 and 4A, such that the limitations period does not begin to run until the plaintiff knows there is residual damage not subject to remediation and compensation.”  In order to have knowledge that a plaintiff has suffered damage that is not curable by the MCP remediation process, the MCP process must have run sufficiently to know that § 5 damages exist – that there is contamination that will not be addressed through remediation leaving the property at a diminished value.  Since the liable party is required to determine the extent of the damage in Phase II and evaluate available remedies in Phase III of the MCP, as the Court noted, “[i]t would make little sense to require the plaintiff to independently determine whether residual property damage exists prior to the completion of these reports.” As a result, the Court concluded that the statute of limitations did not start to run until the plaintiff became aware that the site would not be fully remediated in the Phase II and III reports in June 2012 months before they filed their lawsuit.  Exactly what constitutes full remediation remains to explored in further cases, as the range of outcomes from achieving background conditions, implementing deed restrictions, reaching temporary solutions, or even leaving just a few molecules of contamination left behind could impact this analysis.

The Court contended that this interpretation of the statute of limitations provides a “prescribed and predictable period of time” within which claims would be time barred, given that there are timetables associated with the production and submission of MCP Phase II and III reports.  Under normal circumstances, the Court expected that a plaintiff will know it has a claim within five years of notifying MassDEP of contamination.

Despite the Court’s pronouncement that it had provided predictability for these types of claims, the statute of limitations for non-permanent property damages, such as lost rental value, or for sites where there is a long-term temporary solution in place, remain uncertain.  Lawyers and clients evaluating how and when to bring claims for temporary and permanent damages will need to carefully evaluate a range of potential options in pursuing a preferred single case for property damage without unacceptable risk that an uncertain statute of limitation may have run.

The article was first published at the Beveridge & Diamond website.

Beveridge & Diamond’s Massachusetts office assists parties at all phases of contaminated sites, guiding clients through the MCP investigation and remediation process and prosecuting and defending claims in court for cost recovery and property damage.  For more information about this practice, contact Marc Goldstein or Jeanine Grachuk.

About the Author

Marc Goldstein helps clients resolve environmental and land use disputes and to develop residential, commercial, and industrial projects. He serves as the Managing Principal of Beveridge & Diamond’s Wellesley, Massachusetts office and the Chair of the firm’s Technology Committee.

Marc provides practical, cost-effective advice to clients with environmental contamination issues, whether those clients are cleaning up hazardous materials and seeking contribution from previous owners or adjacent landowners or facing claims under Chapter 21E or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for their alleged role in contamination.

Ontario Announces Cleantech Strategy & Support for Cleantech Companies

Article by Richard CorleySophie Langlois and Catherine Lyons

Goodmans LLP

Recently, the Ontario Minister of Research, Innovation and Science, Reza Moridi, launched Ontario’s Cleantech Strategy (the “Cleantech Strategy“) which aims to catalyze the growth of Ontario’s clean technology sector to support sales into a global market which is expected to grow to $2.5 trillion by 2022. The Cleantech Strategy is aligned with Ontario’s five-year Climate Change Action Plan (CCAP) to fight climate change, reduce greenhouse gas (GHG) pollution, and drive the transition to a low-carbon economy.  It is also aligned with Ontario’s Business Growth Initiative (BGI), which is, among other things, assisting innovative companies to scale up.

Purpose of the Cleantech Strategy

The Cleantech Strategy bolsters Ontario’s commitment to support the development of new, globally competitive low-carbon technologies that will contribute to fighting climate change and to meeting Ontario’s GHG pollution reduction targets of 15% below 1990 levels by 2020, 37% by 2030 and 80% by 2050. As Minister Moridi explained:

By helping our cleantech companies get ready to scale – and helping them to connect to early customers here in Ontario – Ontario is supporting innovation and reducing emissions and environmental impact across industries. Over the longer term, we expect to see more scaled-up Ontario cleantech companies recognized as North American leaders.

Ontario has the largest share of cleantech companies in Canada and the Cleantech Strategy further supports the province’s leadership in GHG pollution reduction through the development and scaling of cleantech solutions.

Principal Elements of the Cleantech Strategy

Based on Ontario’s strengths in cleantech and global demand, the Cleantech Strategy prioritizes the following four cleantech sub-sectors: energy generation and storage, energy infrastructure, bio-products and bio-chemicals, and water and wastewater.

The Cleantech Strategy has four interrelated pillars through which the province intends to meet its objective of helping cleantech companies scale up and meet global demand:

  1. Venture and scale readiness – strengthening opportunities for in-house research and development, strengthening entrepreneur knowledge of key global markets, reducing regulatory uncertainty to facilitate access to capital, and attracting and developing a strong pool of sales, marketing and management talent
  2. Access to capital – increasing access to scaling capital, providing guidance on available provincial and federal cleantech funding, and simplifying access to such capital
  3. Regulatory modernization – streamlining the regulatory environment where possible to reduce barriers for cleantech market entry, supporting performance-based standards and approvals processes, and supporting the development of harmonized industry standards
  4. Adoption and procurement – increasing demonstration and pilot opportunities to de-risk and validate new technologies, and addressing prescriptive and risk-averse procurement practices

Initiatives funded through Ontario’s carbon market as part of the Cleantech Strategy include the Global Market Acceleration Fund (GMAF) and the Green Focus on Innovation and Technology (GreenFIT).

The Global Market Acceleration Fund

The GMAF will help companies lower the risk associated with expanding production of a proven clean technology.  The fund will also assist companies with the cost of scaling up inventory, distribution and sales to domestic and global markets.  The GMAF can provide between $2 million and$5 million of funding to Ontario-based companies with promising GHG reduction technologies and scale-up and export potential.  To receive funding, these companies must be able to demonstrate funding commitments for at least 50% of the eligible project costs. A total of $27 million has been allotted to the GMAF.

Green Focus on Innovation and Technology

Through the GreenFIT program, Ontario will commit $10 million towards demonstration projects of new technologies and services. Early adoption of these new technologies and services will benefit both the adopting public sector institutions with support for their emissions reductions and participating companies with opportunities for validation and credibility for their products.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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About the Authors

Richard Corley is a partner at Goodmans LLP and leads the firm’s Cleantech Practice Group.

Sophie Langlois is an associate at Goodmans LLP.  She practices in the area of corporate and securities law and mergers and acquisitions.

Catherine Lyons is a partner at Goodmans LLP.  She dedicates her practice to representing both private and public sector clients at the intersection of municipal and environmental law.

 

This article was first published on the Goodmans LLP website.

Are You an Early Adopter? The growth of novel contaminant delineation technology

by Kevin French, Vertex Environmental

In the 1920s researchers became interested in the sociology of exactly how rapidly advancing technologies were dispersed and then adopted by farmers.

By the 1960s a theory known as diffusion of innovation detailed the process of how, why, and at what rate any new technology is spread to a community.

A key group in a community are known as Early Adopters. These folks, representing an estimated 13.5% of the population, are the first to embrace new advances and allow a technology to gain an early foothold. Early Adopters may also enjoy a competitive advantage in the marketplace.

In this article, on an animated map you can see how a novel contaminant delineation technology has spread across Canada since 2011. Were you one of the Early Adopters back in 2011?

Vertex started with High Resolution Site Characterization (HRSC) during a pilot-scale trial back in 2011. The technology is now used country-wide and has even been adopted into the CCME Guidelines for delineationpractices.

The Diffusion of High Resolution Technology in Canada.

The Toronto waterfront was the site of our first use of HRSC technology in Canada back in April of 2011. Early Adopter clients understood that real-time field readings could eliminate multiple mobilizations with a drilling crew. The iterative process of a delineation program suddenly had, well, fewer iterations.

Take a look at the map below showing the growth and spread of HRSC across Canada:

The number of new clients adopting HRSC technology across Canada has also generally followed the same lifecycle curve as shown above. Here is the number of meters profiled per year for a 6 year period:


The number of clients and number of annual meters profiled has increased each year since 2011, with over 11 km profiled during 2016 alone! It is interesting that innovation adoption lifecycle still holds true after 50 years – even with incredible advances in new technology that couldn’t even have been predicted back then!

As with anything new, explaining the advantages and benefits requires answering a lot of good questions. Here are a few of the most common that we encounter:

  1. Can HRSC Replace Laboratory Analysis?

Yes and No. A major advantage is the collection of on-the-fly information. Massive amounts of HRSC data is collected, quickly and cost-effectively. When combined with traditional Phase II Environmental Site Assessment (ESA) methods, they greatly enhance the understanding of presence, concentration and distribution of contamination in the subsurface. The rapidly collected data in turn reduce the number of field mobilizations for drilling and sampling and the number of samples required for laboratory analysis. Laboratory analysis is required to validate field contaminant concentrations detected by the HRSC instrumentation. In some cases it is even possible to produce a correlation between HRSC readings and laboratory analytical data, greatly simplifying the approach to accurate delineation of contamination in the field.

  1. Is this Technology Accepted Practice in Canada?

Often this question is phrased along the lines of “where have you used this?” The real meaning of the question: “is this an accepted technology”?  HRSC technology was first developed in the United States and was actively deployed in the U.S for at least a decade before we brought it to Canada full time. However, common practice in the U.S. does not necessarily translate into accepted practice in Canada. And certainly not right away.

By the end of our first year in 2011, we had successfully deployed the HRSC tools at fifteen sites. As we approach the end of 2017, we have now used the technology at over 170 sites! Many of these are situated in Southern Ontario and Quebec. But our clients have also applied the technology extensively at sites from Goose Bay, Labrador to Cold Lake, Alberta to northern British Columbia, to Whitehorse, Yukon. Site types vary from corner gas stations, industrial manufacturing facilities, upstream oil and gas facilities, highway maintenance yards to Canadian Forces Bases. Along with this variety of sites the geologies that Vertex has had to profile have varied widely across Canada. Everything from tight silt tills to glacial sand and gravel deposits. Each geology presents its own unique challenges and Vertex has been able to tackle them all learning more and more, and expanding HRSC capabilities along the way. Being able to capture these data sets for clients across Canada has been quite a journey and we can’t wait to see where it leads us in the future!

  1. How Much Does it Cost?

The cost of this type of investigation is quite affordable when comparing the amount of data collected with the HRSC instruments vs the data collected with traditional investigation techniques (drilling and sampling). We have mobilized and completed cost-effective HRSC programs on both the east and west coasts and in the arctic of Canada. The HRSC technology is very affordable when your site investigation or delineation program would otherwise require multiple mobilizations and iterations of testing or when a high level of detail is required to understand subsurface site conditions. For detailed costing and estimating please feel free to contact us and we will be happy to help out and design a HRSC program that fits your site needs and budget.

  1. What is Coming Next?

The world of HRSC is constantly moving forward with new technology and tooling being invented and tested. Recently, Vertex deployed a dual Laser Induced Fluorescence (LIF) probe to complete an interesting site investigation, the first of its kind in Canada. The dual LIF probe housing both a TarGOST and UVOST unit was deployed in Ontario to further investigate a large development site in Toronto. This dual LIF probe was able to simultaneously detect petroleum hydrocarbon Light Non-Aqueous Phase Liquid (LNAPL) and Dense Non-Aqueous Phase Liquid (DNAPL) products! The data was then used to refine in-situ pilot-scale remediation activities in order to better account for subsurface contamination conditions at the site.

Stay tuned to see what comes next in the world of HRSC!

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About the Author

Kevin French, B.A.Sc., P.Eng., has 25 years of experience in environmental assessment and remediation. Kevin holds a Bachelor’s Degree from the University of Waterloo where he studied Civil and Environmental Engineering. Since that time, Kevin has been involved in the design and implementation of remediation programs relating to chlorinated solvents (including DNAPL), petroleum hydrocarbons (including LNAPL), PAHs/coal tar, heavy metals, etc., at hundreds of sites across Canada.

This article was first published in Vertex Environmental Inc. Newsletter.

Nominations Open from Canadian Brownfields Awards

2018 HUB Awards Nominations are Open!  Nominate a Distinguished Brownfielder Today

Do you know someone who is making an important contribution to brownfields?  Nominate them for the 2018 HUB Awards!

The CBN HUB (Heroes Underpinning Brownfields) Awards recognize members of the brownfield community who make the exceptional projects we see every day a possibility.

The HUB Awards are given in three categories, relating to the three stages of brownfielders’ careers:

  • Foundation: Presented to a contributor to the Brownfield industry in Canada who has had a profound impact on how things are done today. Their work has provided a Foundation upon which the current practices and policies have been based. This is a “career achievement” award
  • Pillar: Presented to a recipient who has proven to be a Pillar of Strength in a significant aspect of the Brownfield industry in Canada. They continue to provide valuable expertise and influence into the policies and practices that we are employing. The Pillar award is a mid-career award
  • Vision: Presented to someone who is at an early stage in their career in the Brownfield Industry in Canada and who is already providing valuable insight into programs, policies or practices that will be improving how Brownfield redevelopment in Canada is completed

What makes a HUB Award winner? Take a look at the 2017 winners to see.

To submit a nomination, please complete our interactive nomination form.

City of Welland, Ontario and Brownfields Development

As reported in the Welland Tribune, Welland, Ontario is on top of the heap when it comes to incentivizing its brownfield community improvement programs and has success stories it can share and build off of, a consultant told city council this week.

Luciana Piccioni, president of RCI Consulting, was before council Tuesday night to talk about Welland’s draft brownfield community improvement program, an 11-year-old document in need of a review and update.

Piccioni went through four programs the city currently has in place — an environmental site assessment grant program (ESA), brownfields tax assistance program (TAP), brownfields rehabilitation grant program (TIG), and brownfields planning and building permit fees refund program — and what needed to be updated and changed with each.

“Overall, with the exception of the rehabilitation grant program, Welland’s brownfield incentive programs are still competitive. Welland is one of only a few municipalities in Ontario that offers both a development charge reduction and a TIG for brownfield redevelopment projects,” Piccioni said.

He said it’s one thing that sets the municipality apart from others in the province.

Former Atlas Steel Plant in Welland Ontario

As RCI began to update the brownfield community improvement programs, a half-dozen key stakeholders in the development industry and brownfield developers were invited to a workshop.

“That went very well … and we brought back revisions to them and they were very supportive.”

Piccioni said the stakeholders had positive responses about applying for incentive programs and said city staff were recognized as being responsive and good to work with.

The stakeholders also said the city has an open for business and co-operative mindset, but suggested increasing dedicated city staff resources to help speed up the application process.

Comments about Niagara Region with respect to the handling of brownfield and other CIP incentive programs applications were less than positive, Piccioni told council.

Stakeholders also suggested the city increase its flexibility when it comes to interpreting program requirements, allowing for unique situations to be looked at and evaluated for possible inclusion.

It was also suggested the city consider expanding and enhancing the marketing of off of the incentive programs, success stories and long-term benefits.

“You’re starting to have those success stories now,” Piccioni said, adding he expected to have a final draft ready for council to see in April.

Council heard some of the changes being made to the plans included making it harder for people just trying to get financing for a brownfield property with no intention of developing it.

Piccioni said developers would be asked to provide a letter of intent.

“It would prove to us that they intend to redevelop the property. There would be just enough hoops to discourage the pretenders and encourage the intenders.”

As of March 2017, there were 17 applications submitted for ESA grants, the TIG and rehabilitation grants, with 15 approved, two not approved and two abandoned. The total grant amount requested was roughly $560,000.

Mining company working with environmentalists to clean up old mining sites

As reported by the CBC, Calgary-based mining company Margaux Resources has announced a plan to clean up old tailings sites by using new mining technologies to extract the remaining minerals.

Tailings have long been known to cause environmental damage including loss of animal habitats and contamination of soil, groundwater and waterways.

Margaux has partnered with the Salmo Watershed Sreamkeepers Society — a non-profit engaged in protecting and maintaining the Salmo River in southeastern B.C.— for the remediation project.

“What we have here is an industry leader that is sympathetic and realizes the situation that historic mining efforts have left,” said Gerry Nellestijn, the coordinator of the Salmo Watershed Streamkeepers Society.

Margaux president and CEO Tyler Rice says the benefits are two-fold as the company hopes to profit from the extractions made.

“When this material was mined historically, they didn’t have 100-percent recovery of the elements … with advancements of technology we feel there is an opportunity to potentially extract the materials that weren’t fully recovered,” Rice said.

The first site scheduled for extraction and remediation is the Jersey-Emerald mine, located just outside of Salmo B.C., and once a large producer of tungsten.

Aerial view of the Jersey-Emerald tungsten tailings pile

Margaux has submitted an application to both the Ministry of Environment and the Ministry of Energy and Mines to take a bulk sample from the Jersey-Emerald site to, “assess the viability of remediating the tailings site and the potential to economically produce a marketable mineral concentrate,” according to a news release issued earlier this month.

Rice admits the site will likely not be fully remediated for a couple of years.

Meanwhile, the Salmo Watershed Society says there are over 40 tailings sites in the area and they are working to assess them.

“It’s an approach to actually go out there and assess tailings, size them, try to figure out what the pollution pathways may be, what the constituents of that tailing might be and look for remediation efforts that would be easy to implement,” said Nellestijn.

And both partners seem to be happy with the current government’s responsiveness to their project.

“We have a strong government that may very well be interested in participating with this kind of movement — it’s been a long time coming,” Nellestijn said.

Eco Waste Solutions to demonstrate WTE technology under US Department of Defense ESTCP Program

The US Department of Defense’s Environmental Research Programs has announced that Eco Waste Solutions has been approved to move forward with its Deployable Waste-to-Energy Convertor for Expeditionary Bases (DWECX) with Thermal Energy to Electrical Power System (TEEPS); a project in collaboration with Ethosgen and their teammate Rockwell Collins. Ethosgen will provide project management and system engineering while Rockwell Collins will provide detailed design and hardware for the integrated TEEPS.

“We’ve known for a long time that one of the major environmental challenges facing the Department of Defense is dealing with solid waste on expeditionary bases,” says Jean Lucas, President of Eco Waste. “Military installations often use open burn pits, which pose significant risks to the health of military troops, local populace, and the environment. Our containerized waste systems can solve this problem, as they are easily deployable, operate in extreme climates, and don’t create airborne health hazards. The ESTCP project gives us an opportunity to take this further and demonstrate a practical approach to small-scale power generation from waste.”

Jean Lucus, President and CEO for Eco Waste Solutions

“This is a tremendous opportunity for the US military to position itself on the cutting edge of waste-to-energy technology,” says James Abrams, founder and President of EthosGen. “Successful small-scale waste-to-energy simply hasn’t been done like this before, and it could transform the way all expeditionary forces deal with waste.”

The ESTCP’s goal is to identify and demonstrate the most promising innovative and cost-effective technologies and methods that address the DoD’s high-priority environmental requirements. To ensure that demonstrated technologies have real impact, ESTCP collaborates with end-users and regulators throughout the process of development and execution. Demonstration results are subject to rigorous technical reviews to ensure that conclusions are well-supported by data.

The DOD has committed to addressing burn pit issues and meeting its operational energy objectives, but solutions need to meet requirements for mobility, simplicity and efficiency. Eco Waste’s partnership with EthosGen solves these challenges.

“Our containerized waste systems have been used on military bases around the world for more than 10 years,” notes Lucas, recognized for her work on small-scale waste-to-energy. “However, the challenge has been finding an appropriate energy recovery technology to integrate with them. Our Deployable Waste-to-Energy Converter for Expeditionary Bases (DWECX) with Thermal Energy to Electrical Power System (TEEPS) can do both – while still maintaining a footprint no larger than the 20-foot ISO container required by expeditionary forces.”

About Eco Waste Solutions

Eco Waste Solutions (EWS) is a world leader in delivering modular thermal waste conversion solutions for military, industry and communities.  EWS delivers proven, bankable, waste management and energy-from-waste technologies. With clients as varied as Canadian Department of National Defence, the Swedish Armed Forces, and mining companies with projects all over the world, EWS continues to set the standard for waste management technology in North America and worldwide. www.ecosolutions.com

About EthosGen

EthosGen has established itself as an emerging global leader in deploying modular utility-grade systems to meet onsite electrical power and heating/cooling needs.  EthosGen offers scalable, flexible, packaged mechanical systems that convert heat from otherwise wasted sources such as waste streams, industrial processes, or geothermal heat to produce valuable energy at double-digit efficiencies.  EthosGen contributes to our clean energy future through its packaged solutions that are within reach of nearly anyone, anywhere. www.ethosgen.com

About Rockwell Collins

Rockwell Collins (NYSE: COL) is a leader in aviation and high-integrity solutions for commercial and military customers around the world. Every day we help pilots safely and reliably navigate to the far corners of the earth; keep warfighters aware and informed in battle; deliver millions of messages for airlines and airports; and help passengers stay connected and comfortable throughout their journey. As experts in flight deck avionics, cabin electronics, cabin interiors, information management, mission communications, and simulation and training, we offer a comprehensive portfolio of products and services that can transform our customers’ futures. www.rockwellcollins.com

U.S. EPA Guidance Documents Are Not Enforceable Rules Says DOJ

by Van P. Hilderbrand, Jr. and Russell V. Randle at Miles & Stockbridge P.C.

Companies regulated by the U.S. Environmental Protection Agency (U.S. EPA) have long complained that U.S. EPA too often uses guidance documents improperly, both to expand regulatory requirements beyond what the law permits and to avoid judicial review of such expansions. Moreover, regulated parties often argue that the U.S. EPA rigidly enforces such guidance as binding federal rules, but ignores such guidance when it likes. Without expressly referencing the U.S. EPA, the Department of Justice (DOJ) has now taken action that will make it harder for such alleged misuse to occur, whether by the U.S. EPA or by other agencies whose rules the DOJ enforces in federal civil cases through civil penalties and injunctive relief.

Guidance documents serve an essential role in environmental regulation, given the great complexity of the ecosystems to be protected and the intricacies of the industries regulated. The U.S. EPA often publishes policy and guidance documents to clarify enforcement authority, to encourage compliance, and to offer the official interpretation or view on specific issues. Over time, these policies and guidance documents have become a key tool in the DOJ’s enforcement toolbox. DOJ attorneys have used non-compliance with these policies and documents as evidence that the underlying regulation or statute has been violated.

Regulated parties have long objected to this practice because, unlike the underlying regulations, these guidance documents seldom are subject to the notice-and-comment procedures of the Administrative Procedure Act (APA) or judicial review before an enforcement case is brought, when a challenge to the EPA interpretation is a very high stakes gamble.

On January 25, 2018, the DOJ offered the regulated community some relief from this practice. Ironically, it did so in a Policy Memorandum – a guidance document – entitled, “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases.” This policy memo prohibits DOJ attorneys from relying on agency guidance documents as the sole basis for their civil enforcement actions. In other words, DOJ attorneys can no longer bring enforcement actions that require compliance with agency policy and guidance in lieu of clearly articulated requirements in properly promulgated and binding federal rules. The Policy Memorandum’s impact across various regulated industries such as healthcare, finance, and tax will differ and remains uncertain; however, we see a particularly significant effect on DOJ’s ability to enforce environmental regulations and statutes administered by the U.S. EPA.

What does the Policy Memorandum say?

The Policy Memorandum memorializes what the regulated community has argued for many years – that “[g]uidance documents cannot create binding requirements that do not already exist by statute or regulation” – and provides a list of how DOJ attorneys may and may not use agency guidance in future and pending affirmative civil enforcement actions. According to the Policy Memorandum, DOJ may not:

  • Use its enforcement authority to effectively convert agency guidance documents into binding rules;
  • Use noncompliance with guidance documents as a basis for proving violations of applicable law in civil enforcement cases; and
  • Treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.

The Policy Memorandum does not impose an absolute bar against using agency guidance; instead, DOJ attorneys may “continue to use agency guidance documents for proper purposes in such cases.” For example, guidance documents are often used as evidence that a regulated party had “requisite knowledge of the mandate.” This use is expressly still allowed. So is the use of guidance documents that simply explain or paraphrase the legal requirements in the four corners of the existing statutes or regulations, as long as the guidance doesn’t create new requirements.

What does the Policy Memorandum mean for the regulated community?

In practice, the new policy may reduce the use of civil enforcement actions to advance new EPA policy interpretations, interpretations which typically push the boundaries of the U.S. EPA’s legal authority. This effect may be particularly noticeable in connection with claimed violations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the Clean Water Act, and the Clean Air Act.

Enforcement under these statutes relies heavily on thousands of pages of the U.S. EPA guidance documents. The interpretations of these guidance documents are often a moving target because very few have been subject to comment by the regulated community and the public or judicial review, as DOJ routinely argues that they are not “really” binding or justiciable.

The Superfund program, in particular, relies upon guidance documents to flesh out its requirements for removal and remedial work, rather than relying upon rules established under APA procedures. The government will have a more difficult time arguing that violations of EPA guidance constitutes a violation of CERCLA requirements; in practice, such guidance often imposes very detailed and sometimes onerous requirements not mentioned in the statute or any implementing regulation.

Similarly, the U.S. EPA and the U.S. Corps of Engineers are no longer relying upon the controversial 2015 rule defining “waters of the United States,” but instead rely upon guidance documents. The DOJ Policy Memorandum may have significant and unanticipated effects in that context, since the court decisions are divided as to what constitutes waters of the United States and what may constitute a jurisdictional wetland subject to permit requirements for dredge and fill work under Section 404 of the Clean Water Act.

It will also make it more difficult for DOJ to enforce settlement documents, consent decrees, and unilateral administrative orders since they are typically based on compliance with requirements discussed in dozens of EPA policies and guidance documents.

Although the DOJ Policy Memorandum does not address the U.S. EPA’s use of its own guidance documents in settlement discussions, in administrative enforcement proceedings, and when issuing notices of violations, DOJ’s announced unwillingness to rely upon the U.S. EPA guidance documents in subsequent civil enforcement actions should restrain such use, and force the U.S. EPA enforcement personnel to focus on clearer potential violations than in the past. That said, nothing in the Policy Memorandum prohibits a regulated party from citing agency guidance documents in its defense.

The Policy Memorandum is part of this Administration’s deregulatory agenda.

DOJ enforcement capability was already constrained by a November 16, 2017 “Prohibition of Improper Guidance Documents” which prevented DOJ from relying on its own published guidance documents. This policy memorandum issued by Attorney General Sessions prohibited DOJ attorneys from:

  • Issuing guidance documents that effectively create rights or obligations binding on the public without undergoing the notice-and-comment rulemaking process;
  • Creating binding standards by which DOJ will determine compliance with existing statutory or regulatory requirements; and
  • Using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.

It is no secret that the current Administration has set out a broader regulatory reform agenda focused on regulatory rollbacks to reduce unnecessary regulatory burdens. The recent February 2018 Policy Memorandum is an extension of the limitations imposed by the November 16, 2017 memorandum, and follows on the heels of other regulatory reform measures such as the establishment of various reform task forces and Executive Order (EO) 13771, “Reducing Regulation and Controlling Regulatory Costs,” which requires that any new incremental costs associated with a new regulation be offset by eliminating two existing regulations. Either by EO or by DOJ mandate, the current Administration continues to charge ahead with a deregulatory agenda that establishes less-restrictive rules for the regulated community.

Conclusion

As a result of this new policy, successful enforcement by the U.S. EPA and its enforcement counsel at DOJ will have to focus on clearer and it is hoped, more substantive violations of the U.S. EPA rules, and rely far less on requirements sought to be imposed by agency guidance documents. The impacts may be most pronounced in the Superfund and wetlands contexts, but will be a factor in almost every environmental regulatory program, given the complexity of these programs, and the undeniable need for agency guidance about practical implementation

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS.

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About the Authors

Van P. Hilderbrand, Jr. is a member of Miles & Stockbridge  Products Liability & Mass Torts Practice Group.  He focuses his practice on environmental litigation, regulatory compliance issues, and advising on the environmental aspects of business and real estate transactions. His work also includes consulting on renewable energy project development and project finance transactions, conducting due diligence and assisting with permitting issues. He represents clients in a wide range of industries, including energy, manufacturing, consumer products, pharmaceuticals, chemicals, transportation, technology and real estate.

Formerly an associate with Sullivan & Worcester LLP in Washington, D.C., he previously practiced environmental law at Parker Poe Adams & Bernstein LLP in Charlotte, North Carolina.

Russell V. Randle is a seasoned environmental and export control practitioner with decades of experience managing litigation, regulatory compliance and transactional due diligence for his clients.

He has extensive experience with Superfund and contaminated properties, including many on the National Priorities List. Russ also has handled numerous matters arising under the Clean Air Act, Clean Water Act and Oil Pollution Act, as well as antimicrobial issues under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

In his export controls and sanctions practice, Russ covers the full spectrum of compliance, enforcement actions and audit issues related to defense trade, financial transfers and non-governmental organizations working in areas affected by U.S. sanctions.

 

This article was first published on the Miles & Stockbridge P.C. website.