Ontario Superior Court finds insurer obliged to share equally in defence of Pollution Claim

Author Michael S. Teitelbaum

In Aviva Insurance Co. of Canada v. Intact Insurance Company, Ontario Superior Court Justice Cavanagh granted Aviva’s request for a declaration that the CGL policy issued by Intact’s predecessor company, Cornhill, to Avondale Stores Limited, effective from 1983 to 1986, is triggered by the allegations made against  Avondale in an Ontario Superior Court action brought by Crombie Property Holdings Limited.  The underlying action alleged contamination of Crombie’s property as a result of alleged migration of fuel oil from Avondale’s neighbouring property.

His Honour also ordered Intact to defend Avondale and/or participate in the defence of Avondale with respect to the allegations made against it in the underlying action.

His Honour noted that Avondale tendered the underlying action to all of its liability insurers seeking a defence and indemnity.  All of the liability insurers with the exception of Aviva denied coverage to Avondale.  Aviva has acknowledged that, with the exception of Intact, the other Avondale liability insurers were entitled to take a denial position based upon the language of the pollution exclusions in their respective policies.  Aviva acknowledged that it has a duty to defend under the Aviva umbrella policies which were in place from January 15, 1993 to January 15, 1997 because it concluded that, given the allegations in the Statement of Claim in the underlying action, it was unable to determine if the discharge, dispersal or escape of pollutants was “sudden and accidental”.  Aviva denied coverage under the Aviva primary policies and the Aviva umbrella policies from January 15, 1997 to January 15, 1999, as those policies contain pollution liability exclusionary wording which, according to Aviva, justify denial of coverage.

Aviva appointed defence counsel to defend Avondale.  As of September 29, 2016, Aviva has incurred defence costs totaling $103,939.23 inclusive of HST and disbursements.

Intact’s response was that the damages claimed as described in the Claim in the underlying action are specifically excluded from coverage under all three Cornhill policies. With respect to the Intact 1983-86 Policy, Intact relied upon the environmental liability exclusion.  Intact declined to provide a defence.

Given the allegations in the Claim, His Honour found that he did not have to determine “whether the word ‘sudden’, as used in the exception [to the subject pollution exclusion], does or does not have a temporal component.  Therefore, I do not find it necessary to decide which of the divergent lines of judicial authority with respect to the interpretation of the term “sudden and accidental” in the exception is correct.”  He noted this determination should be made based on a proper evidentiary record.

In respect of apportionment, given both insurers were on risk for a period of four years each, His Honour ordered equal sharing of the defence costs.

His Honour’s Analysis reads:

[19] Whether Intact has a duty to defend Avondale in the Underlying Action depends upon whether it has satisfied its onus of demonstrating that there is no possibility of coverage under the Intact 1983-86 Policy for the claims made against Avondale based upon the allegations in the Statement of Claim because such claims are excluded from coverage by the environmental liability exclusion clause in the Intact 1983-86 Policy.

[20] Whether there is a possibility of coverage under the Intact 1983-86 Policy for property damage arising out of the discharge, dispersal, release or escape of “Contaminants” (as defined in the Statement of Claim) depends upon whether it is possible that the environmental liability exclusion will not apply because it is possible that the exception to this exclusion applies, because the discharge, dispersal, release or escape of “Contaminants” out of which the property damage arises is determined to be “sudden and accidental”.

[21] Intact acknowledges that if there is a “mere possibility” that a claim falls within coverage, it will have a duty to defend and the application will succeed.  However, Intact submits that there is no such possibility.

[22] There are divergent authorities in both Canada and the United States concerning whether the word “sudden” as it is used in the exception to the applicable environmental liability exclusion clause in relation to the discharge, dispersal, release or escape of the contaminants means only “unexpectedly” or “without warning”, or whether there is also a temporal component of “briefness”.

[23] There are three cases in Ontario that have addressed the interpretation to be given to the term “sudden and accidental” as it appears in the exception to the environmental liability exclusion clause that has the same language as the clause in the Aviva 1993-97 Umbrella Policies and the Intact 1983-87 Policy.  Each of these cases involved leaks from fuel oil tanks.

[24] In Murphy Oil Co. v. Continental Insurance Co., the trial judge found as a fact that water in the well on property owned by the plaintiff in the underlying action was rendered useless for human consumption by reason of the escape of a quantity of gasoline from the area of the underground storage tanks and pipes located on the insured’s premises.  The trial judge accepted evidence that the underground installation on the insured’s premises was defective in that there was leakage from a pipe or pipes and that the gasoline which escaped seeped into the well on the adjacent property of the plaintiff in the underlying action.

[25] The trial judge in Murphy considered whether the exception to the environmental liability exclusion provision in the applicable policy applied.  The trial judge concluded that if a leak occurs in a pipe, it occurs suddenly in the sense that at one point in time the pipe is not defective and at another point in time there is a leak in the pipe.  The trial judge decided that, in this context, it was not necessary to consider the cause of the leak.  The trial judge decided, therefore, that the exception to the environmental exclusion clause applied.

[26] The second Ontario case that addressed the exception to the environmental exclusion clause based upon a sudden and accidental discharge of fuel oil is Zatko v. Paterson Spring Service Ltd., 1985 CarswellOnt 796 (Ont. S.C.).  In Zatco, there was a settlement with the defendant’s insurer but additional property damage was discovered later, and the plaintiffs sued the defendant for damages resulting from the subsequent property damage.  The defendant brought a third party claim against its insurer for indemnification for liability for damages caused by the subsequent property damage.  The trial judge decided both (i) whether the defendant was liable to the plaintiffs for damages caused by a flow of oil from property occupied by the defendant, and (ii) whether the defendant was entitled to indemnification from its insurer.  The insurance policy had the same environmental liability exclusion provision as the provision in the Aviva 1993-97 Umbrella Policies and the Intact 1983-86 Policy.

[27] In Zatko, the trial judge found that the oil drained out of the tank over a considerable period of time and gradually, through the action of water, moved towards, onto and under the plaintiffs’ property.  The trial judge, at para. 33, cited a U.S. case that followed one line of the divergent authorities and concluded that there was “no doubt” that the original escape of oil was sudden and accidental and that the original property damage (that was the subject of the settlement) was covered by the insurance policy.  The trial judge held, however, that because the plaintiffs knew about the leak that resulted in the original dispersal, the subsequent property damage was not accidental. The third party claim against the defendant’s insurer was dismissed.

[28] The third Ontario case that addressed this exception to the environmental exclusion clause is BP Canada Inc. v. Comco Service Station 1990 CarswellOnt 637 (Ont. S.C.).  This decision was made on a motion for an order declaring that a third party insurer is obliged to defend claims made against its insured.

[29] At the hearing of the motion in BP Canada, an affidavit was admitted into evidence on consent of the parties.  The motion judge, Sutherland J., accepted, for purposes of the motion, that the gas had leaked from a cracked coupling in the storage system on the defendants’ property, that the coupling had been defective from the time of its installation, and that the leak had been going on for a considerable although unspecified period of time. Sutherland J. considered the meaning of the term “sudden and accidental” as it is used in the environmental exclusion clause.  He reviewed the U.S. authorities as well as the Murphy and Zatko decisions in Ontario and concluded that the word “sudden” means something more than “undesired, unintended and unexpected”.  Sutherland J. decided that the term “sudden and accidental” definitely includes a temporal element and is clearly not to be extended to include unintended consequences that are not sudden.

[30] In each of the three Ontario cases where the court considered the meaning of the word “sudden” as it is used in the exception to the environmental liability exclusion clause, there was evidence (and, in BP Canada, also the agreement of the parties) concerning the cause of the oil leak.  In contrast, the Statement of Claim in the action brought by Crombie against Avondale does not allege facts that would allow one to know whether it is alleged that the escape of Contaminants onto the Source Property was caused by something such as, for example, an accidental puncture or rupture of the underground fuel oil tank during construction, or an accidental spill of fuel oil from a delivery truck, which would have resulted in the escape of Contaminants onto the Source Property over a short period of time, or by another cause that would have resulted in a slow and gradual escape of Contaminants over an extended period of time. The Statement of Claim also does not allege when the escape of Contaminants occurred.

[31] It is therefore possible, depending upon the evidence tendered in the Underlying Action and the findings at trial, that the court could decide that fuel discharged, dispersed, released or escaped onto the Source Property over a short period of time before it migrated to the Contaminated Property.

[32] Intact submits that, in its Statement of Claim, Crombie uses the term “migrate” repeatedly and that the meaning of this term is equivalent to the meanings of the words “drift”, “wander” or roam”, all of which stand in contrast to terms such as “burst”, “rupture”, “torrent”, “surge” or “rush”, none of which is used in the Statement of Claim.  Intact submits that the true nature and substance of Crombie’s claim, as shown by its repeated use of the term “migrate”, is that there was a gradual movement of pollutants over the Source Property and eventually onto the Contaminated Property.  Intact submits that these are the precise circumstances in which the environmental liability exclusion clause is meant to apply. [33] In my view, the submission by Intact concerning the use of the term “migrate” in the Statement of Claim does not address the main area of contention in respect of the interpretation to be given to the word “sudden”, that is, whether in relation to the escape of Contaminants “into or upon land, the atmosphere or any water of any description no matter where located or how contained” (the language in the environmental liability exclusion clause), the meaning of this word should include a temporal component of briefness.  While the damage to the Contaminated Property may have been slow and gradual because of migration of contaminants from the Source Property over a period of months or years, the exception may still apply, in my view, if the discharge, dispersal, release or escape of Contaminants onto the Source Property was accidental and happened over a brief period of time.  Such a determination is possible whether or not the word “sudden” as used in the exception, properly interpreted, has a temporal component.

[34] In Murphy, the trial judge addressed the submission that the discharge, dispersal, release or escape of a petroleum product was not “sudden” because the product found its way into the well on the plaintiff’s property only gradually. He wrote, at para. 6:

It must be borne in mind that upon a close reading of this clause it is the emission that must be sudden and accidental, not the damages resulting therefrom, in order to afford the plaintiffs coverage under the policy.  Let us consider a situation when the cause of the emission was an explosion and not leakage.  Clearly the explosion would be sudden.  Let us further suppose that the explosion did not cause immediate contamination but as a result thereof the petroleum product which escaped seeped into a well over a period of time.  Could this defendant then be heard to say that the damages were only caused gradually and that there is no coverage under the policy?  If that is what was intended by the clause now being considered, than the language used is quite inadequate to express it.  Based upon this reasoning, it is possible that the word “sudden” as used in the exception will be held to relate to the discharge, dispersal, release or escape of contaminants out of which damage to property arises, and not to the damage to property arising therefrom.

[35] Intact’s submission in relation to the use of the word “migrate” in the Statement of Claim does not address the initial escape of Contaminants, as pleaded in paragraph 21 of the Statement of Claim, “from the Service Station and underground tanks into the natural environment” of the Source Property, but focuses exclusively, incorrectly in my view, on the pleaded allegations that Contaminants had migrated and continue to migrate from the Source Property onto the Contaminated Property.  It is not possible to know from the allegations in the Statement of Claim how or when the Contaminants escaped onto the Source Property including, in particular, whether such escape occurred over a brief period of time or over an extended period of time.

[36] I have concluded that Intact has not satisfied its onus to demonstrate that all of the claims made against Avondale are excluded from coverage by the environmental liability exclusion clause in the Intact 1983-86 Policy because it is possible, based upon the evidence to be adduced and the findings to be made at the trial of the Underlying Action, that the exception to the environmental liability exclusion clause will be held to apply.  The same approach was followed by Dunphy J. in Aquatech Logistics v. Lombard Insurance Co., 2015 CarswellOnt 14289 who concluded, at para. 33, that “it would be mere speculation to assert what facts the plaintiffs may succeed in proving at trial”, where the exact means by which the incident was caused was not pleaded and remained for the plaintiffs to establish.

[37] My conclusion does not depend on whether the word “sudden”, as used in the exception, does or does not have a temporal component.  Therefore, I do not find it necessary to decide which of the divergent lines of judicial authority with respect to the interpretation of the term “sudden and accidental” in the exception is correct.  This interpretation should be made based upon a proper evidentiary record: Privest Properties Ltd. v. Foundation Co. of Canada Ltd., 1991 CarswellBC 142, at paras. 309-310.
Apportionment of Defence Costs

[38] Where there are multiple insurers whose duty to defend is triggered by allegations in the Underlying Action, the insurer that accepts the duty to defend may compel a contribution to defence costs from any other insurer which improperly denies the duty to defend. The respective obligations of the insurers, while not a matter of contract, are governed by principles of equity and good conscience: Broadhurst & Ball v. American Home Assurance Co., 1990 CarswellOnt 638 (C.A.), at para. 41. [39] Aviva submits that I should determine an appropriate apportionment of defence costs between Aviva and Intact, which is a matter of equity.  Aviva submits that the apportionment of defence costs is not determined by a simple formula, nor by the application of principles of time on risk, although these are factors that can be considered. Aviva submits that both it and Intact provided coverage for approximately the same length of time (four years), and it would be reasonable to apportion defence costs equally based upon the relative exposure and time on risk of Aviva and Intact, respectively.

[40] Intact submits that apportionment of defence costs need not be addressed on this application and, if Aviva is successful, the parties may agree on the amount of contributions to be made to the expenses for defence costs already incurred and to the additional costs going forward, failing which resort may be had to the court.  Further, Intact submits that it is unable to make an informed decision on the reasonableness of the defence costs incurred to date because the invoices provided by Aviva are redacted, and omit a description of the services provided. [41] With respect to the question of apportionment of the costs already incurred by Aviva and the defence costs going forward, both the Intact 1983-86 Policy and the Aviva 1993-97 Umbrella Policies provide coverage for defence costs in four policy years.  In my view, given these circumstances, the most equitable apportionment is that each of Aviva and Intact should share equally in the obligation to provide a defence to Avondale.  Accordingly, Aviva should be reimbursed by Intact for one-half of the expenses for defence costs already incurred by Aviva (subject to satisfaction by Intact of the reasonableness of the charges or, if necessary, determination by the Court of the amount to be reimbursed).  The expenses for defence costs going forward should be paid equally by Aviva and Intact. [42] Aviva has introduced evidence that it has incurred defence costs in the amount of $103,939.23 to date, inclusive of HST and disbursements.  The descriptions of the services provided by the law firm in the invoices that were put into evidence are redacted in their entirety.  Only the date of the service, hours, hourly charge and the initials of the lawyer are shown.  I have no reason to question the reasonableness of the charges, but I accept that Intact should have more information about the services provided before it agrees, or is ordered, to pay one-half of the charges for defence costs already incurred by Aviva.

Disposition

[43] For the foregoing reasons, I make an order:

  1. declaring that the Intact 1983-86 Policy is triggered by the allegations made against Avondale in the Underlying Action and requires Intact to participate in the defence of Avondale with respect to the allegations made against it in the Underlying Action;
  2. declaring that Aviva and Intact shall share equally in the costs of defending Avondale with respect to the allegations made against it in the Underlying Action and directing Intact to contribute equally with Aviva to payment of expenses incurred for defence costs of the Underlying Action going forward; and
  3. adjourning the portion of the application whereby Aviva requests an order directing Intact to reimburse it for Intact’s proportionate share of all expenses and defence costs incurred by it to date, in order to enable Intact to obtain information with respect to the services provided by the law firm that is representing Avondale in the Underlying Action. Counsel are directed to contact my assistant within 30 days to schedule a date for the hearing of this portion of the application, if necessary, or as I expect, to advise that this remaining portion of the application has been resolved.

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About the Author

Michael S. Teitelbaum practices civil litigation with particular emphasis on insurance coverage and policy interpretation on behalf of both insurers and insureds.  He provides insurance coverage and policy drafting advice to, and engages in all forms of dispute resolution, including litigation, on behalf of commercial and governmental institutions.  He also focuses on professional liability, governmental liability, products liability, environmental law, personal injury, and defamation matters. Michael has appeared before all levels of the Ontario courts and various administrative tribunals.

He is certified by the Law Society as a Specialist in Civil Litigation.  He is Peer Rated as Martindale-Hubbell Distinguished for High Professional Achievement and High Ethical Standing.  He has been selected by his peers for inclusion in The Best Lawyers in Canada in the field of Insurance Law, beginning with the 2009 edition, and including the 2017 edition, and in the 2011 to 2016 Canadian Legal Lexpert Directory as a leading practitioner in “Litigation — Commercial Insurance”.  He has been listed in the 2015 and 2016 editions of “Who’s Who Legal: Insurance & Reinsurance”, and in the Insurance & Reinsurance chapter of “Who’s Who Legal: Canada 2016”, which identify a select group of lawyers with expertise in representing insurance underwriters and corporate insurers, among others, regarding the resolution of insurance disputes.

Michael heads the firm’s Insurance Coverage Counsel Group, and also acts as the firm’s Knowledge Management Partner.

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This article was originally published in in Duty to Defend web “BLAWG” of Hughes Amys LLP.  It is intended for general informational purposes only and not to provide specific legal advice.  This article does not constitute legal or other professional advice and no lawyer-client or other relationship is created between the reader and Hughes Amys LLP or its lawyers.

Industry asks U.S. DOT to Issue Hazmat Safety Rule

In a letter sent on recently to incoming U.S. Secretary of Transportation Secretary, Elaine Chao, 22 corporations and trade associations sought “the earliest possible approval” of a final rule that would address hazmat transport safety issues by harmonizing the U.S. hazardous materials regulations with international dangerous goods standards that took effect on January 1st, 2017.  The White House currently has a regulatory freeze that prevents the any new regulations from becoming law.

The release and publication of U.S. DOT’s Pipeline and Hazardous Materials Safety Administration final rule was initially posted on the Federal Register website but was put on hold per the regulatory freeze imposed by the January 20th 2017 White House memorandum to the heads of all federal departments and agencies.

In reference to the harmonization regulation, the letter states: “Its promulgation will not create any new risks in transport.  In fact, it will ensure the U.S. hazardous materials regulations maintain alignment with international standards, thus assuring safety and avoiding disruptions to supply chains.  Avoidance of such disruption is critically important to all of the undersigned manufacturers, retailers, wholesalers, exporters, importers, carriers, and industries.”

“Our endorsement of the regulation also is consistent in our long-standing endorsement of harmonizing the U.S. HMR (hazardous materials regulations) with international standards. Harmonization avoids confusion among shippers, carriers and others in the logistics chain, maximizes safety, and reduces costs for U.S. businesses,” the letter said.

Signatories to the letter include numerous corporations and an array of trade associations representing airlines, battery and electronic product manufacturers, outdoor equipment and power tool manufacturers, the security industry, shippers of dangerous goods, and sporting arms and ammunition manufacturers.

The Rechargeable Battery Association Executive Director, George Kerchner, said trade association members were prepared to comply with the PHMSA regulation’s new labeling, packaging and testing requirements for lithium batteries that match the stringent international standards.  “Different regulations create a fog of confusion that undermines safety while forcing companies to comply with inconsistent regulations when shipping domestically and internationally,” Kerchner emphasized.

Contaminated mine “an embarrassment to Canada”

As reported by the CBC, a Yukon judge recently gave a scathing assessment of the clean-up efforts at the Mount Nansen mine.   Formerly owned by BYG Natural Resources Inc., the Mount Nansen mine is an abandoned former gold and silver mine located in the heart of the Yukon Territory in northwestern Canada.  It is currently under government care.

Yukon Supreme court justice Ron Veale approved a clean-up plan for the abandoned Mount Nansen mine in the spring of 2016.  However, he issued his written decision only recently.

In the decision, the judge heavily criticizes the former owner of the mine, BYG Resources, for an “unscrupulous history of … operational mismanagement” that left a big, toxic mess is to be clean-up using Canadian taxpayers’ money.

“This case stands as a painful reminder of the lasting and egregious damage that unscrupulous and unchecked profiteering can bring about in the mining sector.  It is an embarrassment to Canada, Yukon and the responsible mining community,” Veale’s decision reads.  “It is my opinion that an account of BYG’s historical activity in the Yukon should be brought to the attention of the federal and territorial taxpayers, who remain fiscally responsible for remediation efforts.”

History of the Mine

BYG began mining gold and silver at the Mount Nansen site in 1996.  By 1999, the company ceased operations as it was unable to meet the requirements of its water licence.

Immediately after shutdown, BYG appointed a receiver to the site.  In July 1999, the receiver abandoned the property.  The Government of Canada took control of the site and began implementing care and maintenance operations.

In 2003, under an agreement between the Yukon and Canadian governments, the Yukon government became responsible for the property along with the development and implementation of a remediation plan.  The financial responsibility for the site resides with the Government of Canada.

In a 2007 decision by the Yukon Supreme Court ruled on environmental charges, the court found the company guilty of “raping and pillaging” the Yukon’s resources.

A 2011 environmental assessment at Mount Nansen estimated about 55,000 cubic metres of contaminated soil, 300,000 cubic metres of tailings and 500,000 cubic metres of waste rock at the site.

To date, it is estimated that approximately $25 million has been spent by the government to monitor and control the site.

Business Opportunity

The mine currently for sale to whomever is willing to take on a “government subsidized remediation project,” according to Veale.

In late 2016, pwc, the court-appointed receiver for the mine, announced a shortlist of proponents who successfully responded to a Request for Qualifications on the purchase of assets and remediation work.  The successful respondents are as follows:

  • 536086 Yukon Inc. (lead respondent Merit Consultants International)
  • Alexco Environmental Group Inc. (lead respondent)
  • Morgan Construction & Environmental Ltd. (lead respondent)

It is expected the pwc will issue a Request for Proposals shortly.  The costs to implement the remediation plan would be paid by the Government of Canada.

Under the conditions of sale, the purchaser will be required to prepare a detailed design for the remediation plan, subject to peer review, and approval under the Yukon Environmental and Socio-Economic Assessment Act.

Required remediation tasks include de-watering the existing pit in preparation to accept the waste rock, tailings, and contaminated soil, then sealing the pit with a permanent liner.  The plan calls for a clean up “as close to walk away as possible,” with nothing left on site that is not required for long term monitoring and maintenance.

The winning proponent will have up to 10 years to complete the tasks required, and could then acquire permits to mine any viable mineral deposits on the property.

$130,000 in Penalties for Improper Storage of Petroleum Products

The Clearwater River Dene Nation, the Clearwater Store, and band administrator, Walter Hainault, were recently sentenced in the Provincial Court of Saskatchewan after pleading guilty to failing to comply with an environmental protection compliance order (EPCO) issued by Environment and Climate Change Canada (ECCC).  The Clearwater River Dene Nation was fined $100,000; Clearwater Store was fined $25,000; Walter Hainault was fined $5,000.

The EPCO was issued following an inspection at the store to verify compliance with the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations.  Charges were laid under the Canadian Environmental Protection Act, 1999 after the EPCO failed to bring about full compliance with the Regulations.

EPCOs are issued under the Canadian Environmental Protection Act, 1999 by ECCC enforcement officers to direct that various measures be taken to stop or to prevent the commission of an alleged contravention of the Act or its regulations.

The purpose of the Storage Tank Systems for Petroleum Products and Allied Petroleum Products Regulations (SOR, 2008-197) is to reduce the risk of contaminating soil and groundwater due to spills and leaks of petroleum products and allied petroleum products from storage tank systems.  The regulations establish technical standards for the design and installation of storage tank systems, and include requirements for operation, maintenance, removal, reporting and record-keeping.

The fines collected will be directed to the Environmental Damages Fund. The Environmental Damages Fund (EDF) follows the Polluter Pays Principle to help ensure that those who cause environmental damage or harm to wildlife take responsibility for their actions.  The EDF is a specified purpose account, administered by ECCC, to provide a mechanism for directing funds received as a result of fines, court orders, and voluntary payments to priority projects that will benefit our natural environment.

The US has one inspector for every 5,000 miles of oil pipeline

There are 2.7 million miles of pipeline snaked across the US. Some of the pipes carry hazardous chemicals, others carry crude oil, and still others carry highly pressurized natural gas.  And when it comes to safety, all of them are under the care of 528 government inspectors.  That’s more than 5,000 miles of pipeline or more than twice the length of the United States, per inspector.

The little-known and notoriously understaffed Pipeline and Hazardous Materials Safety Administration, or PHMSA, has 188 federal inspectors.  States have another 340 inspectors, all of whom go through PHMSA-certified training.  According to the agency’s website, those two forces combined are “responsible for regulating nearly 3,000 companies that operate 2.7 million miles of pipelines, 148 liquefied natural gas plants, and 7,574 hazardous liquid breakout tanks.”

If US president Donald Trump’s plans to complete both the long-disputed Keystone XL and Dakota Access pipelines come to fruition, they would add 327 miles and 1,172 miles, respectively, to that burden.  It is unclear if PHMSA will add new inspectors to accommodate that increase, and PHMSA has yet to return a request for comment.

So far, the White House has released no word about Trump’s plans for the Department of Transportation budget, which oversees PHMSA, although his transition team reportedly proposed big cuts for the agency. The cuts would be at odds with Trump’s campaign promise to invest heavily in infrastructure during his first year in office.

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About the Author

Zoe Schlanger is an environmental reporter at Quartz.  She focuses on developing coverage of climate change and environmental policy.   Ms. Schlanger was previously a senior reporter at Newsweek, where she got national pickup on her coverage of Detroit air pollution and won an award for a story on the threat of overpopulation.  She has written for a number of other outlets including The New York Times, Guernica, The Nation, Maddowblog, Gothamist, Guernica, and Talking Points Memo. She has a bachelor’s from NYU in politics and environmental studies and speaks Spanish.

This article first appeared in Quartz.

Cloud Delivery of Product Safety, Dangerous Goods, and Scientific Content

3E Company, a provider of environmental health and safety (EH&S) compliance and information management services, recently announced that its product safety, dangerous goods, and scientific content can now be accessed via the cloud for seamless integration with the SAP® Environment, Health, and Safety (EHS) system.  3E’s Ariel® Content for the Cloud is a secure solution for optimized data delivery and maintenance that provides SAP users with improved access to the regulatory and scientific content needed to enhance product and facility compliance.  

Cloud delivery of 3E’s continually updated and value-added global regulatory research can reduce the cost and complexity of information technology (IT) setup and maintenance, accelerate content updates, streamline compliance processes, facilitate informed decision making, and mitigate the risk of noncompliance.  

Ariel Content for the Cloud enables Internet-based delivery of 3E’s global product safety, dangerous goods, and scientific content.  Together with 3E’s supplier data and hazard communication rules, phrases, and templates, Ariel Content for the Cloud offers a comprehensive compliance solution, allowing users to more easily manage inbound and outbound data and documents.

Compared with earlier generation content management approaches, Ariel Content for the Cloud offers a simpler, more efficient way to load and update 3E’s data into SAP EHS.  3E developed the solution to eliminate time consuming and resource intensive manual data maintenance processes, reduce technical infrastructure requirements, simplify deployment, and make software and content updates immediately available for customers.  By eliminating the need to host the server and database behind their firewall alongside their SAP EHS application, the flexible architecture and lighter technical footprint help lower the total cost of ownership for clients, particularly for smaller companies or those maintaining multiple SAP environments.

3E Company, a Verisk Analytics (Nasdaq:VRSK) business, offers a comprehensive suite of data and solutions for environmental health and safety (EH&S) compliance management.  3E was founded in 1988 and is headquartered in Carlsbad, California.

 

Remediating Groundwater Contamination with Nanotechnology

The NanoRem Bulletin recently published a bulletin describing a pilot study to evaluate the nanoscale zerovalent iron (nZVI) remediation of arsenic (As) in groundwater.  It was undertaken as part of the NanoRem Project (Taking Nanotechnological Remediation Processes from Lab Scale to End User Applications for the Restoration of a Clean Environment), which was funded through theEuropean Union Seventh Framework Programme.

The pilot project was undertaken at the Nitrastur site in Asturias, Spain which is characterised by high concentrations of As in both soil and groundwater.  The goal of the study was to determine if NZVI could be used for in situ remediation applications for treating arsenic contamination in groundwater.

The pilot study presented an opportunity for testing the application of nanoparticles (NPs) in real site conditions, focusing on the treatment of dissolved As in groundwater.  In order to be able to evaluate the performance of the field application, three objectives were set as part of the injection and monitoring plan:

Objective 1: To determine the effectiveness of arsenic nanoremediation;

Objective 2: To determine the temporal and spatial dispersion of nZVI; and

Objective 3: To assess the potential risks associated with nZVI injection and changing groundwater geochemical conditions.

The results of the pilot study were encouraging, although further study was recommended before commercial application of the technology.

The NanoRem project (2013-2017) focused on facilitating practical, safe, economic and exploitable nanotechnology for in situ remediation.  This was undertaken in parallel with developing a comprehensive understanding of the environmental risk-benefit, market demand, overall sustainability, and stakeholder perceptions of the use of nanoparticles (NPs). Twelve NanoRem Bulletins have been created to transfer the knowledge developed within NanoRem to end-users.

U.S. EPA adds Subsurface Intrusion to the Superfund Hazard Ranking System

The U.S. EPA has finalized a proposal to expand the hazards that qualify sites for the Superfund National Priorities List (NPL).  The U.S. EPA assesses sites using the Hazard Ranking System (HRS), which quantifies negative impacts to air, groundwater, surface water and soil.  The U.S. EPA is adding a subsurface intrusion (SsI) component to the Hazard Ranking System (HRS).

In adding the SsI component to the HRS, sites in the U.S. previously not eligible for the Superfund National Priorities List (NPL) based on other exposure or migration pathways may now be eligible after evaluation of the threat posed by intrusion of contaminants into occupied structures from the subsurface.  The subsurface intrusion component will add the subsurface intrusion threat evaluation to a restructured and renamed soil exposure and subsurface intrusion pathway.  The previous HRS (40 CFR 300, Appendix A), promulgated December 14, 1990, did not consider the threat posed by subsurface intrusion in its evaluation of relative risk posed by a site.  In 1990, the available science and sampling methods were not considered sufficient to evaluate subsurface intrusion threats for scoring purposes.  Therefore, the previous HRS did not provide a complete assessment of the relative risk that a site may pose to the public.

 

Hefty Fine for Oil Pipeline Spill in Montana

As reported in the Billings Gazette, the Montana Department of Environmental Quality (DEQ) recently announced a civil penalty of $1 million (U.S.) against Bridger Pipeline LLC for pipeline spill the resulted in the release of 31,000 gallons of oil into the environment.  The oil made its way into the Yellowstone River and contaminated City of Glendive’s water supply.

The penalty will be paid as $200,000 to the State of Montana’s general fund and at least $800,000 will be earmarked for approved “supplemental environmental projects” aimed at reducing pollution, benefiting public health and restoring the environment, according to the DEQ.

The accident occurred in January 2015 when the oil pipeline owed by Bridger Pipeline LLC split at a weld and oil began spilling into the Yellowstone River, just upstream from Glendive, a City with a population of approximately 2,000.  Around the same time, residents of the City began reporting a bad taste and smell from drinking water.  The community switched to bottled sources.

Analysis of the drinking water found benzene at a level three times the limit for long-term exposure risk, according to the U.S. Environmental Protection Agency.  Oil was detected in fish captured near the leak site.

Recovery and containment of the spill in the Yellowstone River was made difficult due to ice cover. At times, clean-up efforts were halted due to ice on the river.  Much of the oil traveled downstream under the ice, according to the Montana DEQ.  Oil sheens were reported as far away as Williston, North Dakota, almost 100 miles downstream.  It was estimated that less than 10 percent of the oil was recovered as part of the cleanup efforts.

The busted oil pipeline was the responsibility of Bridger Pipeline LLC, which is one of many companies operated by True Oil out of Casper, Wyoming.  The business had a history of 30 spills and a number of fines prior to the January 2015 incident.

Prior to the announced on the penalty by the Montana DEQ, Bridger Pipeline paid for spill response, cleanup and site management work by the Montana DEQ, according to department spokeswoman Jeni Flatow.  To date, the company has paid $80,000 toward those costs, she said.

The company also paid as much as $100,000 for monitoring equipment at Glendive’s water treatment plant, according to Mayor Jerry Jimison.  “As far as the city of Glendive is concerned, our water plant is back up and functioning flawlessly,” he said.  “We are happy with the final result here in Glendive.”

A separate environmental assessment will continue, which could lead to more fines for Bridger Pipeline.  In October, the Montana Department of Justice announced it would seek compensation for damages caused in the spill.

Robots Mapping and Cleaning Nuclear Sites

As report in Sputnik News, a team of researchers at the University of Manchester in Great Britain has been awarded a grant by the UK Engineering and Physical Sciences Research Council to develop a robotic system equipped with a wider range of sensors than ever before to map nuclear sites.

The world is home to a large number of sites contaminated by radioactive waste, which require the extent of the contamination to be delineated and remediation to occur.  The currently available methodology for mapping and assessing these radioactive sites are extremely expensive and time consuming, involving humans clad in radioactive protective gear, taking samples, and subsequent lab analysis.  In some cases, remote sensors are used which only offer part of the necessary picture.

The robotic system being development at the University of Manchester features optical spectroscopic techniques, advanced radiation detection methods and modern sensor technologies. Each piece of monitoring equipment on the robot will provide a piece of a holistic jigsaw, together with three dimensional mapping of materials within an environment.

The robot system was inspired by NASA’s Curiosity Rover, the robot used to explore the surface of Mars.  The robot will utilize advanced robotics and control technologies similar to those used in the Mars’ Rover.  It is due to be trialled at nuclear contaminated sites including Sellafield in the UK andFukushima in Japan.