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.

Opportunities within the European Hazardous Waste Management Market

A recent market report from Frost & Sullivan found that incentives to implement sustainable manufacturing practices resulted in impetus to market growth for hazardous waste management.

Communication and semiconductor technologies such as global positioning systems (GPS) and radio frequency identification (RFID) are opening up vast revenue opportunities in the hazardous waste management services market in Europe.  For instance, routing software is improving cost controls, enabling industry players to adopt an aggressive pricing strategy that is creating a more competitive market.

“The deployment of smart data solutions can significantly enhance the efficiency of the collection and the treatment of hazardous waste,” said Frost & Sullivan Energy & Environment Research Analyst Akshaya Gomatam Ramachandran.  “With effective waste minimisation at source, total hazardous waste volumes are anticipated to decrease from 72.8 million tonnes in 2016 to 66.9 million tonnes in 2021.  However, the price per ton will increase with the rising investments in technology.”

European Hazardous Waste Management Services Market is part of Frost & Sullivan’s Environment & Water Growth Partnership Subscription.  The study segments the treatment methods into recycling, thermal treatment, other hazardous waste treatment, and landfill.  It highlights the latest trends, drivers and restraints that are influencing the market, while detailing the current amount of hazardous waste generated, collected and treated in all European countries.  Related topics covered by the subscription include water and wastewater management, environmental services, water value chain, smart water meter and residential water softener solutions.

Frost & Sullivan, the Growth Partnership Company, works in collaboration with clients to leverage visionary innovation that addresses the global challenges and related growth opportunities that will make or break today’s market participants.

Manitoulin Transport opens new terminal in Northern Ontario

Manitoulin Transport recently opened a new, larger terminal in Wawa, Ontario replacing an older facility that had limited storage.  The new facility, which sits on 1.8 acres, will be able to handle twice as many shipments as the old building, according to a company release.

“This new, larger terminal demonstrates our commitment to Wawa and surrounding areas. It also emphasizes our readiness to support businesses here as they grow,” said Jeff King, president of Manitoulin Transport, in the release.  King noted that Manitoulin transport provides “the widest direct national coverage of any provider in Canada.  This enables shipments to get to their destination without leaving our hands, minimizing the risk of damage, loss and delay.”

As a transportation and logistics solutions provider, it offers services including expedited less-than-truckload and truckload, transborder, intermodal, private fleet, guaranteed service, heavy haul, temperature-controlled, dangerous goods and supply chain management.

Bioremediation of petroleum-contaminated soil and microbial population and activity determination

Bioremediation of hydrocarbon degradation in petroleum-polluted soil is carried out by various microorganisms.  In the article, collaborating researchers from Xi’an University in China and The Ohio State University argue that little information is available for the relationships between hydrocarbon degradation rates in petroleum-contaminated soil and microbial population and activity in laboratory assay.

In their microcosm study, the researchers determined the degradation rate and efficiency of total petroleum hydrocarbons (TPH), alkanes, and polycyclic aromatic hydrocarbons (PAH) in a petroleum-contaminated soil using an infrared photometer oil content analyzer and a gas chromatography mass spectrometry (GC-MS).

The study also involved the enumeration of the populations of TPH, alkane, and PAH degraders were by a modified most probable number (MPN) procedure, and the hydrocarbon degrading activities of these degraders were determined by the Biolog (MT2) MicroPlates assay.

The results of their investigation showed linear correlations between the TPH and alkane degradation rates and the population and activity increases of TPH and alkane degraders, but no correlation was observed between the PAH degradation rates and the PAH population and activity increases.  Petroleum hydrocarbon degrading microbial population measured by MPN was significantly correlated with metabolic activity in the Biolog assay.  The results suggest that the MPN procedure and the Biolog assay are efficient methods for assessing the rates of TPH and alkane, but not PAH, bioremediation in oil-contaminated soil in laboratory.