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

by Catherine Thompson, Waterloo Region Record

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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About the Author

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

Controlling cleanup costs for contaminated land

by Dr. Harm Gross, Western Investor

As reported by Dr. Harm Gross in the Western Investor, in British Columbia, the cost of contaminated site cleanup has grown steadily since the Contaminated Site Regulation became law on April 1, 1997. There are several reasons for this change, some of which are under the control of “persons responsible”, chiefly landowners.

An uncontrollable cost factor is the proliferation of regulations, which ballooned to an estimated 10,000 double-sided pages in British Columbia. On November 1, 2017, Stage 10 omnibus amendments to the CSR came into effect, changing concentrations deemed harmful for a broad range of contaminants and adding a significant number of new ones. This meant that work before that date would become non-compliant overnight, causing environmental consulting companies to rush over 100 submissions for a Certificate of Compliance before this deadline to grandfather their work and avoid additional costs for their clients.

Regulations pertaining to contaminated sites are not just evolving in British Columbia, but have seen substantial updates across Canada in recent years.

Saskatchewan’s updated Environmental Management and Protection Act came into effect in June 2015. This legislation thoroughly overhauled the old Act by introducing a new impacted sites registry and by providing the regulator with more power to order persons responsible to conduct site assessments.

New guidelines were also introduced in Alberta, where the regulator released a new Environmental Site Assessment Standard in March 2016.

Manitoba enacted amendments to the Province’s Contaminated Sites Remediation Regulation in April 2014. While the intended aim of these new regulations and guidelines is to move the focus towards results-based frameworks, any change and expansion of rules inevitably leads to uncertainty for stakeholders. Uncertainty particularly stems from the need of establishing precedent with the regulator when the new rules are applied in the real world. It is up to the consultant to successfully navigate their clients through the new reality and reduce uncertainty. The consultant’s knowledge of the regulations, and proficiency in correctly interpreting and applying new rules, can have significant impacts on the accuracy of cost estimates and actual costs for site assessments and remedial work.

Former bulk fuel storage leak, North Vancouver, BC

With regulations in flux and frequent changes in rules, the potential for lowering and accurately predicting costs for site remediation projects is thus of great interest to responsible persons. The potential savings by inviting an experienced review of proposed remediation plans can be significant. At one site the savings for a client was $15 million; more commonly, savings are in the 6-figure or low 7-figure range. Incorrect investigative work is the most frequent source of error. This ranges from faulty field techniques when sampling groundwater wells, through unfamiliarity with laboratory methods for distinguishing man-made from naturally occurring substances, to inadequate comprehension of the myriad environmental regulations. Investigating contaminants requires great care when the difference between contamination and no contamination is measured at the extremely low concentrations of parts per million in soil, or the even lower concentrations of parts per billion in water. We have seen numerous examples where mistakes have tarred a site.

The public sector is no less prone to erroneous estimations of remediation cost. In April 2014, the parliamentary budget officer reported that the federal government has underestimated the cost of cleaning up contaminated sites under its jurisdiction by at least $2 billion, putting the total liability for contaminated sites to almost $7 billion. This was due to the fact that many sites in the inventory had yet to be assessed. While it seems relatively self-evident that proper site investigations are a prerequisite and absolute must for cost estimates to be accurate, such oversights are unfortunately abundant in the private sector. All too often consultants provide flimsy cost estimates based on incomplete or deficient investigative data.

Businesspeople frequently complain about the irritation of unreliable cost estimates, and rightfully so – nowhere is this more prevalent than in the environmental consulting industry.

Technical experts are often loathe to accept responsibility for cost estimates for fear of finding undiscovered contamination, running into regulatory snafus or overlooking issues which later prove substantial.

Next Environmental has taken the unprecedented step of providing fixed price quotes for a comprehensive scope of work at each step of investigation or remediation, thus entirely eliminating the cost uncertainties for clients. This service, unique in the contaminated sites business, is possible due to the skillful application of regulatory proficiency to address the business needs of clients. Time will tell whether this cost control measure spreads to other firms.

This article was originally published in Western Investor.

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About the Author

Dr. Harm Gross is the owner and President NEXT Environmental Inc.  He is currently a Registered Professional Biologist (R.P.Bio) and an Approved Professional of the Contaminated Sites Approved Professionals Society (CSAP Society), and has a wealth of experience obtaining Ministry Instruments and other environmental certifications for NEXT’s Clients. NEXT provides environmental consulting services including investigation, remediation and risk assessment of contaminated property for clients throughout BC and Alberta.

 

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

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

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

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

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

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

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

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

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

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

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About the Authors

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

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

 

 

Activated Carbon-Based Technology for In Situ Subsurface Remediation

The U.S. EPA Office of Superfund Remediation and Technology Innovation recently published a fact sheet about an emerging remedial technology that applies a combination of activated carbon (AC) and chemical and/or biological amendments for in situ remediation of soil and groundwater contaminated by organic contaminants, primarily petroleum hydrocarbons and chlorinated solvents.  The technology typically is designed to carry out two contaminant removal processes: adsorption by AC and destruction by chemical and/or biological amendments.

With the development of several commercially available AC-based products, this remedial technology has been applied with increasing frequency at contaminated sites across the country, including numerous leaking underground storage tank (LUST) and dry cleaner sites (Simon 2015).  It also has been recently applied at several Superfund sites, and federal facility sites that are not on the National Priorities List.

The fact sheet provides information to practitioners and regulators for a better understanding of the science and current practice of AC-based remedial technologies for in situ applications. The uncertainties associated with the applications and performance of the technology also are discussed.

AC-based technology applies a composite or mixture of AC and chemical and/or biological amendments that commonly are used in a range of in situ treatment technologies.  Presently, five commercial AC-based products have been applied for in situ subsurface remediation in the U.S.: BOS-100® & 200® (RPI), COGAC® (Remington Technologies), and PlumeStop® (Regenesis) are the four most commonly used commercial products.  CAT-100® from RPI is the most recent product, developed based on BOS-100®.  One research group in Germany also developed a product called Carbo-Iron®.  The AC components of these products typically are acquired from specialized AC manufacturers.  These types of AC have desired adsorption properties for chlorinated solvents and petroleum hydrocarbons.  Different products also have different AC particle sizes, which determine the suitable injection approach and the applicable range of geological settings.

Example of powdered activated carbon “fracked” into the subsurface under high-pressure, causing preferential pathways into existing monitoring wells (Photo Credit: Regenesis)

 

In Situ Treatment Performance Monitoring: Issues and Best Practices

The U.S. EPA recently released an issue paper (EPA 542-F-18-002) that describes how in situ treatment technologies may impact sampling and analysis results.  The paper discusses the best practices to identify and mitigate issues that may affect sampling and analysis.

The utility of monitoring wells for performance or attainment monitoring is based on the premise that contaminant concentrations measured in the wells are representative of aquifer conditions. However, during in situ treatment, various biogeochemical and hydrogeological processes and sampling and analysis procedures may affect the representativeness of the monitoring well and sample quality, which may not be adequately considered in current remediation practice.

A properly designed monitoring network that anticipates the distribution of amendments after injection would minimize impacts to monitoring wells.  However, predicting amendment distribution prior to injection is challenging such that impacts to monitoring wells are likely.

The purpose of The U.S. EPA issue paper is to:
• describe how in situ treatment technologies may impact sampling and analysis results used to monitor treatment performance; and
• provide best practices to identify and mitigate issues that may affect sampling or analysis.

The U.S. EPA issue  paper discusses eight potential sampling or analytical issues associated with groundwater monitoring at sites where in situ treatment technologies are applied. These issues are grouped under three topic areas:
• Issues related to monitoring wells (Section 2).
• Representativeness of monitoring wells (Section 3).
• Post-sampling artifacts (Section 4).

The paper presents issues that pertain to collecting water samples directly from a monitoring well and does not discuss the use of other sampling techniques, such as passive diffusion bags or direct push groundwater sampling.

Canadian National Brownfield Summit – June 13th 2018

Learning from the Past; Charting the Future
Attend Canada’s First Brownfield Summit, hosted by CBN

CBN is pleased to host the first-ever Brownfield Summit as this year’s edition of our annual conference. Join us in
Toronto June 13. The summit will feature:

  • Our popular Cross-country Check-up: a session on recent regulatory changes and an opportunity to learn about new initiatives from our panel of regulators
  • Legal Update: case law shapes our practice as brownfielders. This session will feature presentations on the most recent court cases affecting brownfields
  • Emerging Technology: focused presentations on the technological trends that will affect your brownfield practice today and in the future
  • NRTEE +15: the cornerstone of the Summit. Revisit the 2003 National Round Table on the Environment and the Economy (NRTEE) report as we find out what has worked, what still needs to be done, and what challenges are emerging. Then, join us in a discussion and determination of the brownfield agenda for the next few years

This will be a working event, so be prepared – bring the knowledge you’ve gained as a brownfield practitioner and your insights into brownfield redevelopment/reuse, roll up your sleeves and set the stage for the future of brownfields in Canada!

Register Today!

Clean-up of Radioactive Material in Port Hope Finally Underway

After decades of study and planning, the clean-up or radioactive contamination in the community of Port Hope, Ontario is finally underway.  The Town of Port Hope, located approximately 100 km (60 miles) east on Toronto on Lake Ontario, has an estimated 1.2 million cubic metres (1.5 million cubic yards) of historic low-level radioactive waste scattered at various sites throughout the town.

The contaminated soil and material will be excavated to moved to the LongTerm Waste Management Facility, which is essentially an engineered aboveground landfill where the waste will be safely contained, and the long-term monitoring and maintenance of the new waste management facility.

Other historic low-level radioactive waste – primarily soil contaminated with residue ore from the former radium and uranium refining activities of Eldorado Nuclear — and specified industrial waste from various sites in urban Port Hope will be removed and safely transported to the new facility.

The historic low-level radioactive waste and contaminated soil, located at various sites in the Municipality of
Port Hope, are a consequence of past practices involving the refining of radium and uranium by a former federal Crown Corporation, Eldorado Nuclear Limited, and its private-sector predecessors. These waste materials contain radium-226, uranium, arsenic and other contaminants resulting from the refining process.

The historic waste and surrounding environment are monitored and inspected regularly to ensure the waste does not pose a risk to health or the environment. As part of the Port Hope Area Initiative (PHAI) construction and clean-up phase, the waste will be excavated and relocated to the new Port Hope long-term waste management facility.

In an interview with CBC, Scott Parnell is the General Manager of the Port Hope Area Initiative, which is in charge of the cleanup. He says that after decades of planning, the first loads of an estimated 1.2 million cubic metres of historic low-level radioactive waste will be on the move.

Scott Parnell, general manager of the Port Hope Area Initiative, stands near the town’s harbour.

“There’s been a lot of planning a lot of studies a lot of determination into how to approach the work safely, but this will be the first time we will be removing waste from the community,” said Parnell, who has overseen similar operations in Washington state and Alaska.

The $1.28-billion cleanup operation is a recognition by the federal government that the waste is its “environmental liability.” The radioactive tailings were the byproduct of uranium and radium refining operations run by Eldorado, a former Crown corporation, between 1933 and 1988.

Parnell says that the tailings were given away for free, which helps explain how the contamination was spread through the town.

“So, basically they offered it up and it was used for fill material to level up people’s backyards, for building foundations, for those kinds of things. So, that’s how the material got spread around the community,” Parnell said.

Parnell says an estimated 800 properties may be affected, but says there’s no indication the low levels of radiation are dangerous.

“There’s little human risk associated with the waste that’s identified here in Port Hope,” he said.

The first wastes to be remediated are currently stored under tarps at three locations including the Centre Pier, the Pine Street North Extension in the Highland Drive Landfill area and at the municipal sewage treatment plant. The Centre Pier is the first site to be remediated.

Aerial image of the first locations to be remediated. (source: Canadian Nuclear Laboratories)

 

 

Environmental charges laid against Husky Energy Inc. and Husky Oil Operations Limited

Environment Canada and Climate Change (ECCC) recently laid a number of charges against Husky Energy Inc. and Husky Oil Operations Limited relating to the blended heavy crude-oil spill, in July 2016, which impacted the North Saskatchewan River, near Maidstone, Saskatchewan. The Government of Saskatchewan also filed a charge under the Environmental Management and Protection Act, 2010. These charges result from a 19-month joint federal-provincial investigation.

There are a total of ten charges which include one charge under subsection 36(3) of the federal Fisheries Act, one charge under subsection 38(5) of the federal Fisheries Act, six charges under subsection 38(6) of the federal Fisheries Act, one charge under the federal Migratory Birds Convention Act, 1994, and one charge under Saskatchewan’s Environmental Management and Protection Act, 2010.

The first appearance was at the end of March at the Lloydminster Provincial Court office.  According to the Premier of Saskatchewan’s office, the company faces a possible maximum $1 million fine.

Shoreline cleanup for the Maidstone-area oil spill (Jason Franson/Canadian Press)

Saskatchewan Minister of Environment Dustin Duncan said the spill led to significant changes in the provincial Pipelines Act; changes that include greater regulation, auditing powers, penalty provisions and licensing flowlines.

“We take this very seriously. There, to my knowledge, hasn’t been a charge with respect to the unintended release of oil from a pipeline in the province’s history,” he told reporters in late March.

Duncan said the site cleanup was completed by the end of last year, but Husky will have to work with the province’s Water Security Agency and the Ministry of Environment to make sure nothing else is required.  He said he expects full co-operation.

“In the last year, despite a very unsettling situation, Husky was very responsive when it came to the cleanup but also responding to the concerns by First Nations, by communities along the river, as well as to the requests that were made by the government department,” Duncan said.

All charges are currently before the Court, and they have not yet been proven. Under Canadian law, those charged are presumed innocent until proven guilty. Therefore, Environment and Climate Change Canada and Saskatchewan’s Water Security Agency, which has a responsibility for the specific charge under the provincial Environmental Management and Protection Act, 2010, will not be commenting further at this time.

 

SJC Clarifies Statute of Limitations for Contaminated Property Damage Claims but Raises Questions of Application

by Marc J. GoldsteinBeveridge & Diamond PC

Plaintiffs with property damage claims under the Massachusetts cleanup law have more time to bring their claim than might be expected under the three-year statute of limitations according to a recent ruling by the top Massachusetts court.  The Supreme Judicial Court ruled that the statute of limitations begins running when the plaintiff knows that there is damage to the property that is “permanent” and who is responsible for the damage, pointing to the phases of investigation and remediation in Massachusetts’ regulatory scheme as signposts for when a plaintiff should have that knowledge.  Grand Manor Condominium Assoc. v. City of Lowell, 478 Mass. 682 (2018).  However, the Court left considerable uncertainty about when the statute of limitations might begin for arguably more temporary property damages such as lost rent.

In this Google image, the Grand Manor condominium complex is visible at the center-right.

In this case, the City of Lowell owned property that it used first as a quarry and then as a landfill in the 1940s and 50s before selling the property in the 1980s to a developer.  The developer constructed a condominium project on the site and created a condominium association soon thereafter. As part of work to install a new drainage system in 2008, the contractor discovered discolored soil and debris in the ground.  Subsequent sampling indicated that the soil was contaminated and that a release of hazardous materials had occurred.  The condo association  investigated in early 2009, and MassDEP issued notices of responsibility to both the condo association as well as the city in May 2009.  The city assumed responsibility for the cleanup and worked the site through the state regulatory process known as the Massachusetts Contingency Plan (MCP).  In the city’s MCP Phase II and III reports in June 2012, it concluded that the contamination was from the city’s landfill operations, that it would not be feasible to clean up the contamination, and proposed a pavement cap and a deed restriction.

The condo association and many of its members filed suit in October 2012 for response costs under Chapter 21E, § 4 and damage to their property under G.L. c. 21E, § 5(a)(iii).  At trial, the jury awarded the plaintiffs response costs under Section 4 but found that the plaintiffs had failed to prove that their property damage claim was brought within the three-year statute of limitations for such claims under G.L. c. 21E, § 11A.  The Supreme Judicial Court took the case on direct appellate review.

Section 11A provides that an action to recover damage to real property “be commenced within three years after the date that the person seeking recovery first suffers the damage or within three years after the date the person seeking recovery of such damage discovers or reasonably should have discovered that the person against whom the action is being brought is a person liable…”  Quoting Taygeta Corp. v. Varian Assocs., Inc., 436 Mass. 217, 226 (2002), the Court summarized this as a requirement that the claim must be brought within three years of when plaintiff “discovers or reasonably should have discovered [1] the damage, and [2] the cause of the damage.”

The Court quickly agreed that “the damage” referred to in Section 11A was, for these purposes, the property damages of Section 5 and moved on to the plaintiffs’ contention that the limitations period should not run until they discovered or reasonably should have discovered that the damage was “permanent” or, in other words, not reasonably curable.  Until that time, they argued, they could not know if they had a property damage claim because the site could be fully remediated.

The Court examined the application of the statute of limitations in the context of the statutory scheme for investigating and remediating sites in Massachusetts.  The Court found that the primary purpose of Chapter 21E is to clean up environmental contamination and to ensure responsible parties pay for the costs of that cleanup.  As a result, the statute prioritizes “performance and financing of cleanup efforts, and then considers the calculation of property damage that cannot be cured by remediation and remediation cost recovery.”

In interpreting the statute of limitations, the Court crystalized the question as “whether the word ‘damage’ in § 11A(4) refers specifically to damage under § 5, that is, damage that cannot be cured and compensated by the cleanup and cleanup cost recovery processes defined by the MCP and §§ 4 and 4A, such that the limitations period does not begin to run until the plaintiff knows there is residual damage not subject to remediation and compensation.”  In order to have knowledge that a plaintiff has suffered damage that is not curable by the MCP remediation process, the MCP process must have run sufficiently to know that § 5 damages exist – that there is contamination that will not be addressed through remediation leaving the property at a diminished value.  Since the liable party is required to determine the extent of the damage in Phase II and evaluate available remedies in Phase III of the MCP, as the Court noted, “[i]t would make little sense to require the plaintiff to independently determine whether residual property damage exists prior to the completion of these reports.” As a result, the Court concluded that the statute of limitations did not start to run until the plaintiff became aware that the site would not be fully remediated in the Phase II and III reports in June 2012 months before they filed their lawsuit.  Exactly what constitutes full remediation remains to explored in further cases, as the range of outcomes from achieving background conditions, implementing deed restrictions, reaching temporary solutions, or even leaving just a few molecules of contamination left behind could impact this analysis.

The Court contended that this interpretation of the statute of limitations provides a “prescribed and predictable period of time” within which claims would be time barred, given that there are timetables associated with the production and submission of MCP Phase II and III reports.  Under normal circumstances, the Court expected that a plaintiff will know it has a claim within five years of notifying MassDEP of contamination.

Despite the Court’s pronouncement that it had provided predictability for these types of claims, the statute of limitations for non-permanent property damages, such as lost rental value, or for sites where there is a long-term temporary solution in place, remain uncertain.  Lawyers and clients evaluating how and when to bring claims for temporary and permanent damages will need to carefully evaluate a range of potential options in pursuing a preferred single case for property damage without unacceptable risk that an uncertain statute of limitation may have run.

The article was first published at the Beveridge & Diamond website.

Beveridge & Diamond’s Massachusetts office assists parties at all phases of contaminated sites, guiding clients through the MCP investigation and remediation process and prosecuting and defending claims in court for cost recovery and property damage.  For more information about this practice, contact Marc Goldstein or Jeanine Grachuk.

About the Author

Marc Goldstein helps clients resolve environmental and land use disputes and to develop residential, commercial, and industrial projects. He serves as the Managing Principal of Beveridge & Diamond’s Wellesley, Massachusetts office and the Chair of the firm’s Technology Committee.

Marc provides practical, cost-effective advice to clients with environmental contamination issues, whether those clients are cleaning up hazardous materials and seeking contribution from previous owners or adjacent landowners or facing claims under Chapter 21E or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) for their alleged role in contamination.

Chemical and Biological Remediation Tetrachloroethene – Case Study

Tetrachloroethene is the systematic name for tetrachloroethylene, or perchloroethylene (“perc” or “PERC”), and many other names.  It is a manufactured chemical that is widely used in the dry-cleaning of fabrics, including clothes. It is also used for degreasing metal parts and in manufacturing other chemicals. Tetrachloroethene is found in consumer products, including some paint and spot removers, water repellents, brake and wood cleaners, glues, and suede protectors.

Tetrachloroethene is a common soil contaminant. With a specific gravity greater than 1, tetrachloroethylene will be present as a dense nonaqueous phase liquid(DNAPL) if sufficient quantities are released. Because of its mobility in groundwater, its toxicity at low levels, and its density (which causes it to sink below the water table), cleanup activities are more difficult than for oil spills (which has a specific gravity less than 1).

In the case study, researchers from Manchester Geomicro, a geo-microbiology and molecular environmental science research group affiliated with the University of Manchester, used combined chemical and microbiological contaminant degradation processes to remediate tetrachloroethene at a contaminated site in Germany.

In the study, the researchers used Carbo-Iron®, an applied composite material consisting of colloidal activated carbon and embedded nanoscale zero valent iron (ZVI). In a recent long term study of a field site in Germany, it was injected into an aquifer contaminated with tetrachloroethene (PCE). Carbo-Iron® particles accumulated the pollutants and promoted their reductive dechlorination via a combination of chemical and microbial degradation processes.

Schematic illustrating Carbo-Iron® particle structure and key chemical and microbial dechlorination pathways

The presence of the dominant degradation products ethene and ethane in monitoring wells over the duration of the study indicates the extended life-time of ZVI’s chemical activity in the composite particles. However, the identification of the partial dechlorination product cis-dichlorethene (cis-DCE) at depths between 12.5m and 25m below ground level one year into the study, suggested additional microbially mediated degradation processes were also involved.

Hydrogen produced by the aqueous corrosion of ZVI contributed to a decrease in the redox potential of the groundwater up to 190 days promoting organo-halide reducing conditions that lasted for months after. The long lasting reducing effect of Carbo-Iron® is crucial to efficiently supporting microbial dehalogenation, because growth and activity of these microbes occurs relatively slowly under environmental conditions. Detection of increased levels of cis-DCE in the presence of various organohalide reducing bacteria supported the hypothesis that Carbo-Iron® was able to support microbial dechlorination pathways. Despite the emergence of cis-DCE, it did not accumulate, pointing to the presence of an additional microbial degradation step.

The results of state-of-the-art compound specific isotope analysis in combination with pyrosequencing suggested the oxidative degradation of cis-DCE by microorganism related to Polaromonas sp. Strain JS666. Consequently, the formation of carcinogenic degradation intermediate vinyl chloride was avoided due to the sequential reduction and oxidation processes. Overall, the moderate and slow change of environmental conditions mediated by Carbo-Iron® not only supported organohalide-respiring bacteria, but also created the basis for a subsequent microbial oxidation step.

This study, published in Science of the Total Environment (Vogel et al. 2018, vol. 628-629, 1027-1036) illustrates how microbes and nanomaterials can work in combination for targeted remediation. The work was led by collaborators (Katrin Mackenzie and Maria Vogel) at the Helmholtz Centre for Environmental Research in Leipzig, Germany, and adds to a growing portfolio of research highlighting the potential of Carbo-Iron® as an in situ treatment for contaminated groundwater.