$1 billion Lawsuit for Contamination from Love Canal

The Town of Wheatfield, New York, just east of Niagara Falls, is being sued by current and former residents who claim that contaminants from the old Niagara Sanitation landfill impact their adjacent properties.

There are 16 notices of claim that make up the lawsuit and more are expected.  Each notice is for $60 million in damages.  According to the filing notice, the plaintiffs have 15 months to file a formal lawsuit.

The claim made by the plaintiffs, all current or former residents of Forbes Street in North Tonawanda, claim that their poor health is a result of chemicals migrating from the old Niagara Sanitation Landfill in the Town of Wheatfield.  The residents claim that they are experiencing headaches, nausea, respiratory issues and nervous system disorders

The site has been reclassified in recent years by the NYDEC to a Class 2 site on the New York State Registry of Inactive Hazardous Waste Sites.  The reclassification of the site by the NYDEC was due to recently characterized elevated surface soil concentrations identified in several locations and the presence of hazardous waste in the subsurface.

In a December 21st 2015 Public Notice, the NYDEC stated “The landfill does not have a Part 360 cap or access restrictions.  Both conditions indicate a concern for potential exposures to people who enter the site.  This exposure concern has been documented as people are using the landfill as a jogging and play area.  Dirt bike trails are evident throughout the site and use of such has resulted in landfill materials to become exposed at the surface.  Therefore, the site represents a significant threat to the environment and public health.”

According to a March 2016 Information Update by the New York Department of Environmental Conservation (NYDEC), there is not off-site migration of contaminants.  The March 2016 Information Update states “Surface water is confined to the landfill in ponded areas and does not run off the site.  No significant off-site contamination is anticipated due to a naturally existing clay layer beneath and around the landfill which limits the migration of contaminants from the landfill.”

The old Niagara Sanitation Landfill is a former municipal and industrial landfill that accepted waste from multiple sites, including Niagara Falls Air Force Base, Bell Aerospace, Carborundum, Frontier Chemical, Graphite Specialties, Continental Can, and Grief Brothers.  Contaminants at the landfill site include metals, polycyclic aromatic hydrocarbons, polychlorinated biphenyls, pesticides, caustics, and plating tank sludge.

The old Niagara Sanitation Landfill operated from the 1950’s to 1968.  The former owner of the site, Niagara Sanitation, accepted chemical and industrial waste including material from the infamous Love Canal which is only 10 km (6 miles) west.

Love Canal is characterized on the US EPA website as one of the most appalling environmental tragedies in American history.  An abandoned canal was used as a hazardous waste disposal site starting in the 1920’s until the early 1950’s by the Hooker Chemical Company.  In 1978 the dump literally exploded.

The Love Canal waste that had been deposited in the old Niagara Sanitation Landfill was removed in 2014 and 2015.  It was to be transported to the hazardous waste incinerator in Sarnia, Ontario for destruction but political outcry in Canada resulted in it being transported by rail to the hazardous waste incinerator in Kimball, Nebraska.

According to a news article in the Buffalo News, the residents along Forbes Street that are suing the Town of Wheatfield paid for their own private environmental investigation and found that contamination from the landfill had migrated onto their properties.

The Town of Wheatfield is currently in the process of fencing off the 20.8-acres landfill site and the NYDEC is in the process of continuing its investigation on the extent of contamination at the landfill and preparing a clean-up plan for the site to be completed in 2019.

Environmental Health and Safety Market Analysis

According to a market analysis report prepared by Grand View Research Inc., the global environmental health and safety market is expected to reach $96.18 billion (USD) by 2025.  The increasing number of regulations imposed by environmental protection and governmental agencies worldwide is expected to be one of the major factors driving demand during the forecast period.

The market analysis report breaks down the environmental health and safety market down by product (Software, Services), by Application (Medical & Pharmaceutical Waste Management, Industrial Waste Management, Waste Water Management), by end use, and segment forecasts.

Economic slowdown in several parts of the globe has led to significant corporate restructuring, plant closures, and mothballing.  These business decisions are, however, made taking into consideration the various environmental challenges posed by these decisions.  There is an increasing need for minimizing environmental liabilities and eliminating long-term risks.

These factors have led several agencies and governmental organizations to impose stringent compliance requirements across industries, with regards to ecological conservation, and safety and health of personnel.  This trend is mainly being witnessed in the North American region, followed by Asia Pacific.

There are various safety hazards in core industries such as energy & mining, construction, etc., which pose several challenges in the form of ecological contamination, injuries to personnel, and personnel deaths.  For instance, the oil & gas industry globally is faced with hazards such as explosions, fires, vehicle accidents, and caught-in or caught-between accidents caused by moving equipment, high-pressure lines, and falling equipment.

As a result of the aforementioned factors, companies across core industries such as chemicals, petrochemicals, energy & mining, construction, manufacturing, healthcare, and telecommunications are being increasingly pressurized to comply with the various regulations put forth by governmental agencies to ensure environmental and worker health and safety.

 Further key findings from the report suggest

·       The industrial application segment accounted for over 55% of the overall market revenue in 2015, owing to the growing compliance requirements in key industries such as oil & gas, construction, manufacturing, and chemicals;

·       The demand for the service in energy & mining is expected to grow at a CAGR of over 8% from 2016 to 2025, owing to high regulatory compliance pertaining to work place safety in the industry;

·       The U.S. is the largest market for EHS as of 2015, and is expected to continue its dominance through the forecast period, projected to grow at a CAGR of over 8.5% from 2016 to 2025;

·       The growth of the oil & gas industry in the country, along with the rapid recovery of the construction and manufacturing industries, is expected to increase the demand for EHS solutions in the U.S. during the forecast period; and

·       Key participants in the industry, such as HS&E Group, AECOM, EHS Data Ltd., and RPS Group are focusing on satisfying stakeholder expectations, preservation on brand value, and efficient EHS compliance, thereby moving towards centralized EHS management models

MPs Vote to Continue Marathon Talkfest as “Strategy” for Disposal of Mercury in CFLs

March 12, 2017 by Kathleen Cooper, Canadian Environmental Law Association

When I was about seven years old I recall my mother getting very upset upon breaking a thermometer.  On her knees and chasing shiny globules of mercury across the kitchen floor, she told me it was poison.  Suitably impressed I did not forget.  But, she put it in the trash unknowingly allowing the release of mercury vapour into our home until garbage day.

Over fifty years later, most Canadians do the same when a compact fluorescent lightbulb (CFL) gets broken, or doesn’t work anymore.  The amount of mercury is a lot less than in the old thermometers but the health risk is the same.  Even for people who know CFLs contain mercury, many throw them in the trash unaware of the need for very careful disposal.

Health Canada, like many other public agencies, has long issued warnings and disposal advice about broken CFLs (remove people and pets, open windows and close all doors, leave the room and air it out for 10 to 15 minutes, turn off the forced air heat, don’t vacuum or sweep, wear rubber gloves, use sticky tape for small particles of glass and powder, wipe surfaces with damp paper or cloth and dispose of the cloth, seal all broken pieces in a glass jar and dispose of as hazardous waste).

The reaction to such advice can be stunned silence.  Likewise, people are often surprised that mercury is in these bulbs and creates a health risk when they are broken.  Despite more than ten years of educational work on this issue, it has largely failed to get the necessary attention.

Over the same time period a marathon talkfest has occurred among federal, provincial, territorial, and municipal governments, and other affected stakeholders such as CFL retailers.  Reports, progress reports, and public outreach materials have documented the problem and urged a careful response.  Likewise, guidance documents have spelled out waste management strategies.  Retailers, with varying degrees of success and consistency have provided CFL take-back programs. Enterprising companies have established CFL recycling facilities.

What has not occurred is an effective or comprehensive strategy to recover the millions of CFLs sold in Canada.  Such sales are due in part to the action of Parliament in 2012 to mandate the elimination of incandescent bulbs.  Now being overtaken by newer and even more efficient LED technology, these millions of CFLs are nearing the end of their, albeit long lifespans.

Despite nearly ten years of talk and report writing there is an inconsistent and incomplete patchwork of slow and inadequate responses across Canada to the problem of CFL disposal.

Enter Canadian Federal Bill C-238, MP Daren Fisher’s proposal to establish a national strategy for CFL disposal.  Introduced during 2016 CELA was very supportive.  While private member’s bills rarely get passed this one did.  Unfortunately, it likely passed because it won’t do more than was already planned, that is, to keep the talkfest going.

During a single day of review last November, the Parliamentary Standing Committee on Environment and Sustainable Development removed from the bill its most important aspect.

The bill had intended to establish national standards for the safe disposal of CFLs.  This provision was replaced with “the identification of practices for facilities involved in the safe disposal of such lamps….”  In other words more talking, probably more reports, needless delay, and no requirement to act.

Such CFL disposal practices are already well-studied.  Environment Canada described them in a guidance document published in 2015.  The Canadian Council of Ministers of the Environment (CCME) has published similar guidance.  Nine years after the CCME committed to addressing this problem, the lack of action on such guidance results from a lack of political will or legal mandate to do so.

Measurable and effective action to protect the public, especially fetuses and children, from exposure to a very common source of mercury is long overdue.  There is only a small window of time to get this right – likely over the next five to ten years as these bulbs are phased out.  There is no room for further delay and inaction.

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About the Author

Kathleen Cooper is a Senior Researcher at the Canadian Environmental Law Association.  She has done environmental, health, and policy research for thirty years and joined the Canadian Environmental Law Association (CELA) in 1987.  As Senior Researcher at CELA she provides casework support to environmental litigation files and has directed several law reform campaigns.

 

This article was first published on CELA’s website.

Statutory Right to Compensation for Remediation Applies to Spills Occurring before the Right was in Force

On March 6th, 2017 Superior Court Judge P.E. Roger ruled in Huang v. Fraser Hillary’s Ltd., 2017 ONSC 1500 that section 99 of Ontario’s Environmental Protection Act R.S.O. 1990, c.E19 allowed the plaintiffs to recover compensation against a neighbouring dry cleaning business for remedial expenses for the tetrachloroethylene (PCE, PERC) and trichlorethylene (TCE) contamination of soils and groundwater on the plaintiff’s property.  The statutory right under s.99 is confined to spills which are defined in s.91(1) of the Act as “from, or out of, a structure, vehicle or other container”.  Fault or negligence is not a requirement of the statutory right to compensation under s.99.  The evidence established that the PCE/TCE moved from a structure or container into the natural environment for a 14 year period between 1960 and 1974.  The right to compensation in the Act was introduced in 1979 and only proclaimed in 1985 after the “spills” had stopped.  The Court decided that applying the statute to the spills did not amount to retrospective application.  Alternatively, the presumption against retrospective application of the law was inapplicable given that the right was designed to protect the public.  Finally and in any event, even if the presumption against retroactivity applied, it had been rebutted by clear language in the statute.

On the law being prospective in its application, the Court said at par. 84: “Allowing, at this time, a right to compensation for spills that occurred before the section came into force does not change anything done in the past.  Rather, it protects the public by creating a right to compensation and, as such, does not constitute a retrospective application.”  Alternatively, the purpose of this right was to protect the public and more particularly, innocent parties by granting a “new and powerful tool to seek compensation from the owner of the pollutant and the persons having control of the pollutant without any requirement of intent, fault, duty of care, or foreseeability.  see Midwest Properties at pars. 70, 73” (at par. 97).  In so doing, the presumption against retroactivity would not apply since the statute conferred a benefit and was not punitive.  Finally, even if the compensation provision was punitive and for that reason would not rebut the presumption of retroactivity just because it was protective of the public, the right to compensation was expressed as a present right and the definition of spills was not limited to discharges occurring after the coming into force of the section in 1985.

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About the Author

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in environmental law.  He was called to the Ontario Bar in 1981. He joined the law firm of Fogler Rubinoff on July 4, 2013.  Stanley was the founder of the Canadian Nuclear Law Organization and served as its President between 2008-2015, and remains a board member.  He is also is a former President of the International Nuclear Law Association.  He has taught nuclear law for the Nuclear Energy Agency in France and is an adjunct professor for York University’s Professional Master’s Degree in Energy.  Stanley is the author of a quarterly publication entitled “The Prosecution and Defence of Environmental Offences” and edits an annual review of environmental law. Before joining Foglers Stanley served for 14 years as Assistant General Counsel to Ontario Power Generation Inc (OPG).  Prior to joining OPG, Stanley served as Deputy Director of the Law Division for Prosecutions for the Ontario Ministry of Environment.  Stanley started his legal career as a prosecutor in Toronto’s criminal courts and in that capacity had carriage of over 20 jury trials as well as a number of coroner’s inquests

Podcast on Re-Engineering Remedial Processes Cost-Efficiently

A podcast is available on re-engineering traditional remedial processes to treat soils and groundwater in order to make them more cost efficient is available on the Accelerated Remediation Technologies LLC (ART) website.

The podcast, presented by Mohamed Odah, PhD, P.E., first discusses that some traditional remedial technologies have demonstrated mixed results at reducing contamination in soil and groundwater in-situ due to geological, hydrogeological and contaminant physicochemical properties.   Many sites impacted with a wide range of contaminants are in need of comprehensive treatment measures that can simultaneously treat constituents including petroleum and chlorinated compounds along with recalcitrant constituents such as MTBE and 1,4 dioxane.

The podcast then goes to describe how the ART process combines in situ air stripping, air sparging, soil vapor extraction, enhanced bioremediation/oxidation and subsurface circulation in an innovative wellhead system.  The multiple remediation concepts combined within the ART process are well suited for volatizing organic compounds as well as recalcitrant compounds because the synergistic systems are physically and chemically attacking contaminants on a number of fronts.  The multiple, in-well stripping passes results in a high air-to-water contact ratio within the well (via stripping and sparging) which is integral to the physical removal of contamination.

Concurrently, the ART process involves a subsurface circulation process that actively mobilizes residual contamination from the soil matrix and to the well for further treatment by multiple pore volume exchanges.  The circulation and extraction processes also actively and continuously provide significant dissolved oxygen boost throughout the radius of influence, enhancing bioremediation of the hydrocarbon compounds.

Several case studies are discussed in the podcast including site specific data that exhibits the ART process efficacy in reducing petroleum and chlorinated contaminants concentrations in a short time while providing overall project cost reductions.

Webinar: Balancing the Costs of Cleanup during Remedial Planning

REGENESIS® is hosting a remediation presentation with special guest speaker, Jeffrey Carnahan, MS, LPG, Executive Vice President for EnviroForensics.  Mr. Carnahan’s presentation will cover balancing the costs of active cleanup and long-term stewardship (LTS) during remedial planning, and will include real-world examples of remedial objective decision making involving an LTS component and actual costs.  Mr. Carnahan will be presenting this live webinar on Wednesday, March 22nd at 11am pacific / 2pm eastern.

Jeff Carnahan is a Licensed Professional Geologist (LPG) with over 18 years of environmental consulting and remediation experience. As Executive Vice President, Jeff contributes to the leadership of EnviroForensics through strategic market analysis and corporate risk management, as well as continuing his technical consulting practice as an environmental expert.

 

 

ONEIA Event with Ontario Environmental Commissioner – March 28th, 2017

The Ontario Environment Industry Association (ONEIA) is pleased to announce that the Ontario Environmental Commissioner Dianne Saxe will offer her annual address to the province’s environment and cleantech industry on March 28th.

The Commissioner will join us earlier in the afternoon for a facilitated discussion where we will hear her perspective on recent developments in the Ontario waste sector.  Topics for discussion will include:

  • Where is the province going with respect to organics?
  • What will the Clean/Renewable Fuels Standard mean for companies in our sector?
  • What impact will ongoing approvals reform have on waste and Innovation?
  • How will the Commissioner’s office be examining the outcomes of new waste policies?  What should we look for in coming years?

Join us for an open discussion, then stay as the Commissioner offers remarks and meet attendees at the informal cocktail networking reception – or just come for the reception and networking.

DETAILS:

WHO: Ontario Environmental Commissioner Dianne Saxe

WHEN:  Tuesday March 28, 2017. Registration opens at 2:00 PM 3:00 – 4:30  facilitated discussion with Environmental Commissioner on resource recovery issues 4:30 – 6:30 PM  networking reception with remarks offered by Environmental Commissioner

WHERE:  Offices of Norton Rose Fulbright Canada LLP Suite 3800, Royal Bank Plaza, South Tower, 200 Bay Street, Toronto, ON, M5J 2Z4 C

OSTS: ONEIA member $99.00; not-yet ONEIA member $129.00

REGISTRATIONhttps://commissioneraddress.eventbrite.com

Webinar: Fundamentals in Site Characterization

This series will help you plan and implement effective site characterization strategies. Webinars cover both classic methods and innovative approaches to characterize soil, groundwater and soil vapour quality. Learn how to demonstrate delineation using data supported by your conceptual site model – and then go on to plan effective remediation strategies.

·        SOIL CHARACTERIZATION – April 11 & 13

·        SOIL VAPOUR CHARACTERIZATION – April 18  & 20

·        GROUNDWATER CHARACTERIZATION – April 25 & 27

Sign up for individual topics or for entire series at the GeoEnviroPro website.

Health & Safety Conference & Trade Show – Toronto, May 2-3, 2017

Workplace Safety and Prevention Services is hosting Partners in Prevention 2017 Conference and Trade on May 2nd and 3rd.  The event will be held at the International Centre in Mississauga, Ontario.  The conference features two days of keynote speakers, cutting-edge sessions, workshops and professional development courses.  Also included is a trade show with over 410 booths highlighting the latest in market trends, workplace products and services, and interactive experiences for the health and safety professionals.

May 2 – 3, 2017
The International Centre
Mississauga, Ontario

 

“The New Workplace” is the theme of the conference.  The Partners in Prevention Conference and Trade Show is  Canada’s largest and longest-running health and safety conference and trade show.  

For the 2017 Conference, keynote speakers will include:

  • Neil Pasricha, award winning blogger and New York Times best-selling author of The Book of Awesome and The Happiness Equation: Want Nothing + Do Anything = Have Everything – Neil Pasricha dazzles audiences with ideas and frameworks that promote happiness.
  • Curt Steinhorst, Distraction Expert – Having spent years studying the impact of tech on human behavior, Curt Steinhorst is on a mission to help today’s workforce win the battle against digital distractions.
  • Steven Page, Canadian singer, songwriter and recording artist – Having spent two decades with The Barenaked Ladies, Steven Page is now an outspoken advocate for mental health awareness.

Participants can choose from two-day, one-day and trade show only (free until April 14) registrations, as well as individual pricing for professional development courses.

For more information or to register, visit www.PartnersinPreventionConference.comor contact the WSPS Customer Care Department: toll-free at 1-877-494-9777 orcustomercare@wsps.ca.

Workplace Safety & Prevention Services (WSPS) is a leader in providing impactful risk management solutions that drive lasting business success for our customers.  WSPS offers health and safety expertise, insight and solutions for creating healthy work environments where employees thrive and businesses prosper.  WSPS is a $43-million organization servicing 154,000 member firms.  WSPS is primarily focused on the agricultural, industrial/manufacturing and service sectors.

 

Law Moot on Legal Liabilities associated with Contaminated Sites

Willms & Shier Environmental Law Moot will be held on March 4, 2017 at the Ontario Court of Appeal, Osgoode Hall, in Toronto.  The Law Moot may be of interested to professionals that deal with contaminated sites as the moot case is based on the 2015 Ontario Court of Appeal decision in Midwest Properties Ltd. v Thordarson.  This case sets an important precedent about legal liabilities associated with soil and groundwater contamination.

About the Moot

The Willms & Shier Environmental Law Moot, Canada’s first national moot court competition devoted to environmental law, is a joint initiative of Willms & Shier Environmental Lawyers LLP and Osgoode Hall Law School.  The Moot competition brings together law school students, leading environmental law practitioners and judges from all levels of court across Canada.

Program—A full day event on March 4, 2017, beginning with moot rounds early in the morning, semi-final and final rounds in the afternoon, and finishing with an evening networking event and the moot awards dinner in the Law Society of Upper Canada’s Convocation Hall

Schools —Law schools from coast to coast will register for the 2017 Moot

Distinguishing Feature — Students must argue both sides of the case. In the preliminary round, the students will start in their first match on one side of the argument, and then switch to the other side for their second match. This switching of sides requires students to exhibit mental agility under pressure.

The 2017 Moot Court Case

This year’s moot case is based on the 2015 Ontario Court of Appeal decision in Midwest Properties Ltd. v Thordarson. This case sets an important precedent about legal liabilities associated with soil and groundwater contamination.

Midwest Properties Ltd. and Thorco Contracting Limited own adjoining properties in an industrial area of Toronto. Thorco historically stored large volumes of petroleum hydrocarbons (“PHCs”) at its property.

Prior to its purchase of the property, Midwest obtained a Phase I Environmental Site Assessment of the property and was advised that further investigation was not required. Subsequently, Midwest discovered that PHC contamination had migrated to the Midwest property from the Thorco property. Midwest sued Thorco and Thorco’s principal, John Thordarson, relying upon three causes of action: (i) breach of Ontario’s Environmental Protection Act (“EPA”) section 99(2), (ii) nuisance, and (iii) negligence.

Between 1988 and 2011, Thorco was in breach of Orders issued by the Ministry of the Environment and Climate Change. In 2000, Thorco and Mr. Thordarson were convicted of offences under the EPA and a Court Order was issued requiring removal of waste. At the time of trial, the respondents were in breach of both Ministry and Court orders.

At trial, Thorco and Mr. Thordarson were unsuccessful under all causes of action.  On appeal, the Court found Thorco and Thordarson jointly and severally liable under all causes of action. Further, the Court of Appeal held that EPA section 99(2) is a separate and distinct ground of liability for polluters. The Court awarded $1.3 million in damages and $100,000 in punitive damages ($50,000 each) from Thorco and Mr. Thordarson. Leave to appeal to the Supreme Court of Canada was denied.