Evolution of Emergency Management

by Lee Spencer, Spencer Emergency Management Consulting

You would have to be living under a rock to have not heard the resounding thud of the Ontario Auditor General’s report on the state of emergency management in Canada’s most populated province hitting the desks of the emergency management community in Canada (report) . I for one was not shocked by the findings and believe most jurisdictions in Canada would see similar criticism if subject to an OAG review.

For generations, provincial level emergency management has been an after thought.  Historically staffed by second career fire/police/military retirees who were expected to be seen and not heard.  These legacy EMOs were counted on to create order in the otherwise chaotic response phase of large scale disaster and otherwise quickly to be ignored again once the situation was restored and recovery programs began to hand out government grants.

After 9/11 it was clear to elected officials that the public had an expectation of the EMO cavalry galloping in to defeat any hazard, risk or terrorist.  But the costs and the growth that would be needed to meet that expectation could not compete with the schools, hospitals, roads and bridges built to ensure tangible things could be pointed to when an election rolled around.  After all the last thing most governments want claim at election time is they added more civil servants.

So in this era of increased public expectation, EMOs were given very little new resources to modernize and adapt to the new reality.  Provincial EMOs were left to the task of preparedness and response in the modern context with resources more suited to the National Survival primordial ooze from which provincial EMOs emerged.

I am hopeful that the public shaming of our most densely populated economic engine, will lead to a national discussion of the investment required to truly meet the realities and expectations of modern emergency management.There are already several emerging national strategies that will aid in this effort, Canada’s emerging Broadband Public Safety Network and the expanding National Public Alerting Systems are modern capabilities that will go a long way to enhance capacity at even the most modest EMO.

We are also starting to see an expansion in post secondary degrees and diplomas which will lead to firmly establishing emergency management as a profession in Canada.  These emerging professionals will eventually take over the leadership roles from folks like me (second career), bringing with them the education and experience to combine the historical EMOs with modern thinking.

I know my former colleagues in the EMO’s across Canada are shifting uncomfortably at there desks at the moment waiting for their own leaders to ask how they compare to Ontario.  It would seem to me that if your not uncomfortable you just don’t get it.

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About the Author

 Lee Spencer is founder and President of Spencer Emergency Management Consulting.  The company is focused on the strategic integration of emergency management concepts towards an outcome of resilience within a community, business or government.

 

This article was first published Spencer Emergency Management Consulting e-blog site.

Avoiding Common Phase Two ESA Errors – Part 1

By: Bill Leedham, P.Geo, QP, CESA.

Previously I have written about common errors I have encountered in reviewing Phase One Environmental Site Assessment reports, now it’s time to focus on some of the commonplace mistakes I have seen in planning and conducting Phase Two ESAs.

A properly scoped Phase Two needs to be based on accurate site data, which should entail completing a thorough Phase One ESA to identify actual and potential environmental concerns. An incomplete or deficient Phase One ESA (or absence of any prior site assessment) can lead to un-investigated areas, unidentified contaminants, missed contamination, and costly oversights when it comes to completion of the Phase Two work. With the high costs of drilling, sampling and lab analyses – and the even higher costs of remediation; it is vital that the consultant knows where to look and what to look for, in any intrusive site investigation; which requires a diligent and comprehensive Phase One ESA to get it right.

Photo by Azad K. (Geo Forward Inc.)

A Phase Two ESA can be required for a variety of reasons; including transactional due diligence, litigation, remedial planning, and obtaining regulatory approvals. The consultant must know and understand all client and stakeholder objectives, as well as the local regulatory requirements.  Conducting a CSA-compliant Phase Two ESA when the Client is expecting ASTM protocols and the regulator requires a different legislation-specific format to support regulatory approval will lead to problems, delays, possible costs over-runs – and a very dissatisfied client.  Two-way communication and full understanding of the project before, during and after the Phase Two plays an important role in successful and timely project completion.

Once the project requirements are defined, a Sampling Plan must be developed to meet these requirements.  Too often, mistakes are made when the number and location of sampling points is underestimated, or improperly selected. The consultant must consider all the potentially impacted media to be sampled. This could include not just soil; but often groundwater, sediment, and surface water; and sometimes soil vapour, indoor air quality, and building materials.  Consideration of the frequency and extent of sampling is necessary to investigate all relevant media and to fully characterize the environmental condition of the Site.  Utilizing a Conceptual Site Model to consider the contaminant sources, migration pathways and potential receptors unique to the Phase Two property is a useful and too often under-used method of developing a suitable Sampling Plan.

Site specific conditions, access, logistics, safety and (unavoidable) budgetary considerations also play a huge part in properly scoping and conducting any successful Phase Two ESA, but these are all wide ranging topics to cover another day.  Next month I will discuss other methods to recognize and avoid common errors in field sampling.

 

About the Author

Bill is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (AESAC); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at info@down2earthenvironmental.ca

Innovations in Pipeline Design: Leak-proof technology

By Dema Mamon, M.Sc.Pl, BES and John Nicholson, M.Sc., P.Eng.

In Canada, getting approval to construct an oil pipeline has become increasingly difficult.  Every oil pipeline incident that involves a leak and subsequent clean-up is widely covered in the media,  providing fuel for pipeline opponents that call an end to the construction of new pipelines.

Abacus Data Inc., an Ottawa-based research firm, has been tracking public opinion on the construction of new pipeline capacity and has found some interesting trends.  Since 2014, polling has shown that the negative view of building new oil pipelines has remained steady at 21 to 22% range.  However, there was a drop in the positive attitude amongst Canadians toward building new pipelines – from 58% in 2014 to 44% in 2017.  Over that three year span, a good proportion of Canadians who once viewed building new pipeline capacity with a positive attitude have shifted to a neutral view.  The neutral view on oil pipelines have grown from 20% in 2014 to 36% in 2017.

There can be many theories to explain the three year shift in public opinion on new oil pipelines.  One plausible theory is that oil spills from pipelines typically make headline news, thus leaving an impression in the minds of Canadians the perhaps pipelines are not as safe as the industry states.  Oil leaks from pipelines damage the environment, are costly to clean-up, and fuel public opinion that pipelines are not safe.

One way to eliminate the perception that building new oil pipelines is bad for the environment and shift public opinion in favour of such projects is to build pipelines that don’t leak.  However, is it even possible to build leak-proof pipelines?

Are Double-Walled Pipelines the Answer?

One logical idea for building leak-proof pipelines is for them to be double-walled.  The outer wall would serve as protection from external damage.  The technology does exist to construct double-walled pipelines and they are used in certain circumstances such as when there is a large temperature difference between the liquid in the pipe and the surrounding environment.

Double-walled pipelines are not considered the cure-all by some in the industry.  Those resistant to the use of double-walled pipelines note that in some instances, it may be more cost effective to protect pipelines from the potential of external damage by burying them or placing slabs over them in higher risk areas.  Furthermore, it can be more difficult to monitor a double-walled pipeline and an outer pipe interferes with the maintenance of the inner pipe.

At the University of Calgary, researchers believe their two-walled pipeline design and monitoring system is the solution to preventing spills.  Although double-walled pipelines have been around since the 1980’s, Thiago Valentin de Oliveira, an electrical and computer-engineering master’s student, and Martin Mintchev, an engineering professor, say that their design is superior.

The U of Calgary researchers designed and constructed their prototype to consist of a typical steel inner layer with either a steel or plastic outer layer.  There is an air gap between inner and outer pipeline contains the oil that leaks from the inner pipeline leak.  The real innovation developed by the U of Calgary is the segmentation of the inter-pipe space and the inclusion of a linear wireless network linking the segments.  With the segmentation, a leak of oil from the inner pipe enters the air gap between the two pipes and is contained in a section of pipe.  Wireless pressure sensors between the two walled layers detect the pressure build up and send an alert to the pipeline control staff.

 

If commercially implemented, the U of Calgary system would allow pipeline operators with the means of quickly shutting down the pipeline when a leak was detected into the outer pipeline and crews could be dispatched to make repairs.  The oil that leaked from the inner pipe would be contained in the air gap between the two pipes and be confined to one section of the pipeline.

The U of Calgary researchers estimate that their design would result in an additional 25% in the capital cost of building pipelines.  They believe this cost could be reduced if the outer pipeline material was composite materials or plastic.

Is Advanced Monitoring the Solution?

Also in Alberta, a Calgary-based firm, HiFi Engineering, recently announced that it has developed an innovative pipeline leak detection system.  Dubbed High-Fidelity Dynamic Sensing (HDS™), the monitoring system can spot the exact location of a leak in a pipeline within seconds of it occurring.  The system continuously monitors temperature, sonic and ultrasonic acoustics, and vibration and strain.  Any anomaly in the measurements results in an alert being sent to the pipeline company control room.

Hifi Engineering’s High Fidelity Dynamic Sensing (HDS) technology is being called the ‘ears of pipeline monitoring.’

The system works utilizing fiber optic cables that run the length of the pipeline.  A laser beam is sent down the length of the optic cable and sends signals back that provide a multitude of information to the pipeline control room.

TransCanada Pipelines Corporation has already installed the HiFi HDS™ monitoring system in sections of the Keystone XL oil pipeline that runs from Canada to the U.S.  Also, Enbridge employs the technology in its new northern Alberta pipeline.

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About the Authors

Dema is a graduate of York University’s Bachelor in Environmental Studies program (2008) and the University of Toronto’s Masters of Science in Planning Programme (2010). She is currently pursuing her Canada Green Building Council’s Leadership in Energy and Environmental Design’s Green Associate certification. Her research interests include environmental conservation, green infrastructure, and sustainability. She can be reached at dema.mamon@gmail.com.

John Nicholson is the editor of Hazmat Management Magazine.  He has over 25 years of experience in the environmental and cleantech sectors.  He is a registered professional engineer in the Province of Ontario and has a M.Sc. in environmental engineering.  His professional experience includes time at a large engineering consulting firm, a major Canadian law firm, and the Ontario Ministry of the Environment and Climate Change.

Top 10 Questions to Consider If Sued under U.S. RCRA’s Citizen Suit Provisions

by Beveridge & Diamond PC

No longer only a tool of public interest groups, an ever-expanding group of plaintiffs – including commercial plaintiffs – are using the citizen suit provision of the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6972, to address alleged regulatory violations, seek cleanup of wastes alleged to be causing an imminent and substantial endangerment, and pursue fee awards. In addition, RCRA citizen suits have moved beyond traditional allegations of subsurface wastes migrating to soil and groundwater, and may include claims such as vapor intrusion. In light of this diversified landscape of plaintiffs and media, defendants should consider the following key questions when sued under RCRA’s citizen suit provisions.

  1. Do deficiencies in plaintiff’s pre-suit notice provide grounds for dismissal?

RCRA requires 60-day notice for suits brought under § 6972(a)(1)(A) (violation of specific RCRA requirement), and 90-day notice for suits brought under § 6972(a)(1)(B) (imminent and substantial endangerment). RCRA provides an exception for the notice period for citizen suits alleging violations of Subtitle C hazardous waste management provisions, which can be filed immediately after providing notice. The notice requirement reflects the preference for the government to take the lead enforcement role (rather than citizens), and serves to provide the defendant with adequate information to understand basis of the citizen suit. Evaluate whether the notice satisfies the statutory requirements of § 6972(b), and if applicable, the regulatory requirements of 40 C.F.R. § 254.3. If not, consider a motion to dismiss. Courts routinely dismiss RCRA citizen suits for failure to meet these requirements. In addition, check the law in your jurisdiction for other notice-based grounds for a motion to dismiss. For example, the U.S. Court of Appeals for the Second Circuit has affirmed dismissal where plaintiff’s notice only identified waste practices, but did not identify the specific contaminants at issue. Dismissal due to lack of notice typically is without prejudice to refile after proper notice is given, but dismissal may provide strategic or procedural advantages.

  1. Has plaintiff alleged an injury sufficient to satisfy constitutional standing requirements?

A plaintiff must meet the standing requirements of Article III of the U.S. Constitution in order to have standing to sue in federal court. An invasion of a concrete and particularized legally protected interest that is actual or imminent is required to establish standing; the injury may not be conjectural, hypothetical, or too temporally remote. In the RCRA context, standing defenses can be asserted, for example, where there are allegations of an injury to property the plaintiff no longer owns, where the claimed injury is based on future, speculative development plans, or a corporation claims its aesthetic interests have been injured. In such situations, an early motion for summary judgment may expose a plaintiff’s inability to show actual harm, although plaintiffs’ claims of standing are often viewed liberally.

  1. Is plaintiff’s claimed injury redressible by RCRA?

An injury must also be redressible for a plaintiff to have constitutional standing. RCRA provides only forward-looking injunctive relief; not monetary compensation for past costs. Accordingly, suits seeking such compensation are not redressible under RCRA, and thus lack standing. Additionally, where a remediation plan is in place and cleanup is ongoing, the plaintiff may lack an injury needing redress because a court cannot order superfluous relief.

  1. Is there government action that bars the suit?

Certain RCRA citizen suits are barred where the U.S. Environmental Protection Agency (“EPA”) or the state is “diligently prosecuting” a RCRA or Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) action. Plaintiffs have the burden of proving that prosecution is not diligent. This burden is heavy as a presumption of diligence attaches to government prosecution of actions; complaints about the government’s prosecution schedule or strategy generally will not suffice in themselves. Some courts have found that consent decrees and their enforcement amount to diligent prosecution.

  1. Is there an action under CERCLA that bars the suit?

Certain CERCLA removal and remedial actions will bar a RCRA citizen suit. These CERCLA actions include: (i) state or federal government engagement in a CERCLA § 104 removal action; (ii) federal or state government incurrence of costs to initiate a CERCLA § 104 remedial investigation/feasibility study (“RI/FS”) combined with diligent remedial action; and (iii) a court order (including a consent decree) or an administrative order under CERCLA § 106 or RCRA § 7003, pursuant to which a responsible party is “diligently” conducting a removal action, RI/FS, or a remedial action. RCRA suits are also precluded if they “challenge” a removal or remedial action selected under CERCLA § 104. Courts generally find any actions consistent with initial investigations, monitoring, initial clean up, or negotiation or entry of a consent decree will constitute a CERCLA removal action sufficient to preclude a RCRA claim. Remedial actions barring RCRA claims generally consists of those actions consistent with the permanent remedy.

  1. Is the plaintiff alleging entirely past regulatory violations, or violations of superseded federal regulations?

Many RCRA citizen suits concern activities that occurred several decades ago. If a suit alleges regulatory violations based on claims of entirely past conduct (i.e., the violations are not ongoing), such claims should be dismissed. Courts have also ruled that a plaintiff may not bring suit to enforce federal RCRA regulations where they have been superseded by an authorized state program. (However, suits seeking enforcement of state regulations issued pursuant to a state program

authorized under RCRA are typically allowed to proceed in federal court). All claims of regulatory violations should be scrutinized in light of these simple arguments, which can be applied to quickly narrow the claims in a RCRA citizen suit.

  1. Do primary jurisdiction or abstention doctrines provide grounds for a stay, or dismissal?

The doctrines of primary jurisdiction and abstention have seen success as defenses to RCRA citizen suits in some jurisdictions. Abstention doctrines arise out of concern for the proper jurisdictional balance between state and federal courts, and can provide a basis for dismissal of a federal court complaint. Defendants in RCRA citizen suits most frequently invoke the doctrine known as Burford abstention, which applies in situations where a federal suit will interfere with a state administrative agency’s resolution of difficult and consequential questions of state law or policy doctrine. While some courts have rejected the application of Burford abstention to RCRA citizen suits, the argument has seen more consistent success in suits challenging agency permitting, licensing or siting decisions under state law.

Under the doctrine of primary jurisdiction, a federal court may stay proceedings where a claim involves issues within the special competence of an administrative body. Primary jurisdiction has been found applicable where: a consent order with the state completely overlapped with the relief sought by plaintiff’s RCRA claims; where EPA investigation and remediation had been diligent and ongoing for many years, and injunctive relief ordered by court could be conflicting; and where a state agency had extensive involvement in addressing alleged contamination and federal court intervention could result in delay of state agency response or substantial duplication of effort. Courts have been willing to apply primary jurisdiction to stay (or even dismiss) RCRA suits to allow these types of administrative activities to run their course.

  1. If plaintiff has alleged an endangerment to health or the environment, is it imminent?

To prevail on the merits of a RCRA citizen suit, a plaintiff must establish that an endangerment to human health or the environment is “imminent.” The Supreme Court has ruled that “[a]n endangerment can only be ‘imminent’ if it ‘threatens to occur immediately,’ and the reference to waste which ‘may present’ imminent harm quite clearly excludes waste that no longer presents such a danger.” Imminence may be absent where the endangerment is premised on speculative development plans or contingencies, where there is no exposure pathway (e.g., a claim of endangerment to human health based on alleged groundwater contamination, where groundwater is not used for drinking), or remediation has occurred, and to the extent waste remains, it no longer poses a risk. Imminence can be found lacking in these types of fact patterns, notwithstanding the presence of contamination.

will not likely be met. Risk assessments may also be very useful in showing the absence of a substantial risk, and defendants should evaluate the relative risks and benefits of performing such an assessment. For example, in a recent case alleging vapor intrusion, a risk assessment showed that the alleged vapor levels were many magnitudes below risk thresholds, and even below the risk presented by the same contaminants present in ambient (outdoor) air.

  1. If plaintiff has alleged an endangerment, is it substantial?

If a plaintiff cannot show that an alleged endangerment is imminent, it follows that it that RCRA’s substantiality requirement will not likely be met. Risk assessments may also be very useful in showing the absence of a substantial risk, and defendants should evaluate the relative risks and benefits of performing such an assessment. For example, in a recent case alleging vapor intrusion, a risk assessment showed that the alleged vapor levels were many magnitudes below risk thresholds, and even below the risk presented by the same contaminants present in ambient (outdoor) air.

  1. Can you recover your attorneys’ fees?

Although the majority of fee awards under RCRA are for plaintiffs, fee awards have been granted to defendants, especially where the suit was frivolous, unreasonable, or groundless, or where the plaintiff continued to litigate after it clearly became so. Don’t overlook other bases for fees as well. If there is a contractual relationship with the plaintiff (for example, as is common between successive property owners), all contracts should be reviewed for any applicable fee shifting provisions.

In conclusion, if sued under RCRA’s citizen suit provision, consider whether these common defenses or fact patterns apply. Defenses based on notice, standing, or governmental action can provide an early and cost-effective dismissal of the case. Facts showing, for example, speculative alleged endangerment or lack of an exposure pathway should be explored fully in discovery, as they can provide effective defenses on the merits.

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Beveridge & Diamond holds a United States nationwide Tier 1 ranking for Environmental Litigation in U.S. News/Best Lawyers. The Firm’s litigators perform trial and appellate work in enforcement defense (civil and criminal), citizen suit defense, rulemaking challenges and defenses, and private litigation under all major federal and state environmental laws.  For more information about our experience defending RCRA citizen suits, please contact Harold L. Segall (+1.202.789.6038, hsegall@bdlaw.com) or Bina R. Reddy (+1.512.391.8045, breddy@bdlaw.com).

This update is not intended as, nor is it a substitute for, legal advice. You should consult with legal counsel for advice specific to your circumstances. This communication may be considered lawyer advertising.

This article was first published on the Beveridge & Diamond website.

New Leaching Environmental Assessment Framework (LEAF) Methods

The Leaching Environmental Assessment Framework (LEAF) is a leaching evaluation system, which consists of four leaching methods, data management tools, and scenario assessment approaches designed to work individually or to be integrated to provide a description of the release of inorganic constituents of potential concern (COPCs) for a wide range of solid materials. The LEAF methods have been designed to consider the effect of key environmental conditions and waste properties on leaching. The LEAF “How-To” Guide describes how the LEAF method results can be used to develop screening level assessments of constituent release or to develop more accurate estimates of release in specific use or disposal scenarios.

LEAF Methods and “How-To” Guide

Method 1313 is designed to evaluate the partitioning of constituents between liquid and solid phases at or near equilibrium conditions over a wide range of pH values. The method consists of 9-10 parallel batch extractions of solid material at various target pH values.

Method 1314 is a percolation column test designed to evaluate constituent releases from solid materials as a function of cumulative liquid-to-solid ratio. The method consists of a column packed with granular material with moderate compaction. Eluent is pumped up through the column to minimize air entrainment and preferential flow.

LEAF Method 1314

Method 1315 is a semi-dynamic tank leaching procedure used to determine the rate of mass transport from either monolithic materials (e.g., concrete materials, bricks, tiles) or compacted granular materials (e.g., soils, sediments, fly ash) as a function of time using deionized water as the leaching solution. The method consists of leaching a sample in a bath with periodic renewal of the leaching solution at specified cumulative leaching times.

Method 1316 is an equilibrium-based leaching test intended to provide eluate solutions over a range of liquid-to-solid ratios. This method consists of five parallel batch extractions of a particle-size-reduced solid material in reagent water over a range of liquid-to-solid ratios. At the end of the contact interval, the liquid and solid phases are separated for constituent analysis.

The purpose of the LEAF “How-To” Guide is to provide an understanding of the Leaching Environmental Assessment Framework to facilitate its broader use in environmental assessment. The guide provides background on the LEAF methods, how to perform the methods, and how to understand the method results. It also provides guidance on the application of LEAF to assess leaching potential of COPCs from solid waste materials for beneficial use, disposal, treatment, and remediation applications. In addition, the guide addresses frequently asked questions about the four LEAF methods, data management and reporting using freely-available software, and potential applications of the LEAF approach.

SW-846 Update VI – Phase III will be available for public comment until January 31, 2018. Comments can be submitted using the EPA Docket, ID# EPA-HQ-OLEM-2017-0210.

For questions about Update VI to SW-846 or submitting public comments, or to sign up for the SW-846 mailing list, please contact orcrSW846@epa.gov.

Canadian Brownfield Award Winners

Sixteen projects, representing municipalities from across Canada, were named as finalists for six main categories at the Brownie Awards sponsored by The Canadian Brownfields Network (CBN) and Actual Media Inc.  The Brownie Awards recognize the rehabilitation efforts of brownfield sites in Canada, which are former industrial sites that are vacant or underused.

The six Brownie Awards categories for which nominations are accepted are: REPROGRAM, REMEDIATE, REINVEST, REBUILD, RENEW and REACH OUT.  There are three other awards that acknowledge the best small-scale project, best large-scale project, and best overall project for 2017; all projects are eligible for these three awards.  In addition, we present the “Brownfielder” of the Year.

The 2017 Brownie Award winners were announced during a gala dinner at the Delta Hotels Toronto on Wednesday, November 22nd, 2017.

The winners (in bold) and finalists for the 2017 Brownie Award Finalists are:

Category 1:  REPROGRAM – Legislation, Policy and Program Initiatives

  • Contaminated Sites Approved Professionals Society, British Columbia
  • Excess Soils Bylaw Tool, Ontario
  • Toronto Portlands Due Diligence, Ontario

Category 2:  REMEDIATE – Sustainable Remediation and Technological Innovation

  • New Calumet Mine, Ile-du-Grand-Calumet, Québec
  • BC Hydro Rock Bay Project, Victoria, British Columbia
  • Triovest Block M, Hamilton, Ontario

Category 3:  REINVEST – Financing, Risk Management and Partnerships

  • Port Credit West, Mississauga, Ontario
  • SunMine, Kimberley, British Columbia

Category 4:  REBUILD – Redevelopment at the Local, Site Scale

  • New Eva’s Phoenix, Toronto, Ontario
  • Broadview Hotel, Toronto, Ontario

Category 5:  RENEW – Redevelopment at the Community Scale

  • 4th Avenue Flyover, Calgary, Alberta
  • The askiy project, Saskatoon, Saskatchewan
  • East Bayfront/Bayside Development, Toronto, Ontario
  • East Village Junction, Calgary, Alberta

Category 6:  REACH OUT – Communication, Marketing and Public Engagement

  • Inspiration Port Credit, Mississauga, Ontario
  • North Pacific Cannery Conservation Master Plan, Municipality of Port Edward, British Columbia

Category 7:  Brownfielder of the Year

  • Lisa Fairweather, Alberta Environment and Parks, Edmonton, Alberta

Category 8:  Best Small Project:  the askiy project, Saskatoon, Saskatchewan

Category 9:  Best Large Project:  SunMine, Kimberley, British Columbia

Category 10:  Best Overall Project:  Toronto Portlands Due Diligence

The City of Mississauga received a 2017 Brownie Award for Inspiration Port Credit for Communication, Marketing and Public Engagement.

With Mississauga having one of the most significant brownfield sites on the north shore of Lake Ontario, it has been the focus of several community engagements. Located at 70 Mississauga Rd. S., the brownfield site is 72 acres (29 hectares) and 600 metres of Lake Ontario shoreline that neighbours the City’s historic urban waterfront village of Port Credit.

“It is a great honour for the City of Mississauga to receive this national award for our achievement in planning for and contributing to the growth of healthy communities and our remarkable waterfront,” said Mayor Bonnie Crombie. “Congratulations to the team for their hard work and dedication while ensuring the needs and interests of the community are considered.”

The City-led community engagements explored future possibilities for the site with a Master Planning Framework that will help guide redevelopment. Working with a consultant team, the City involved residents and stakeholders in a variety of interactive sessions.

“The Brownie Awards recognize the best in brownfield site restoration projects in Canada,” added Ed Sajecki, Commissioner, Planning and Building. “We are excited to receive this award and be recognized by industry experts for our communication and engagement efforts on this waterfront project. The result is a vision of the site’s future as a model of sustainability.”

Some of the Award Winners at the 2017 Brownie Awards Gala

Environmental Insurance in Canada

By Indrani Nadarajah

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

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

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

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

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

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

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

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

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

 EVOLVING PORTFOLIO

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

  1. Environmental impairment liability policies (EIL)

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

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

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

  1. D&O insurance and environmental liability

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

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

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

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

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

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

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

  1. New entrants in the marketplace

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

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

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

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

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

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

CANADIAN LEGAL INTERPRETATION BROADENING?

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

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

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

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

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

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

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

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

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

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

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

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

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

ENVIRONMENTAL ACTIVISM AND INSURANCE PORTFOLIOS

TransMountain Expansion Project

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

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

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

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

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

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

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

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

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

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About the Author

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Laurel Point, Victoria Harbour, British Columbia

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

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

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

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

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

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

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

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