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

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

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

Photo Credit: NorthBayNipissing.com

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

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

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

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

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

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

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

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

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

by Catherine Thompson, Waterloo Region Record

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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About the Author

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

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

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

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

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

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

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

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

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

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

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

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About the Authors

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

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

 

 

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

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

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

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

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

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

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

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

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

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

This article was originally published on the Ogletree Deakins website.

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About the Author

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

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.