Arsenic found to control uranium contamination

As reported by World Nuclear News, an international team led by the University of Sheffield has discovered that the toxic element arsenic prevents uranium from an abandoned mine in the UK migrating into rivers and groundwater.  The discovery could help in the remediation of former uranium mines and other radioactively contaminated areas around the world, the scientists believe.

The team of scientists – led by the Department of Materials Science and Engineering at the University of Sheffield – studied the uranium and arsenic in the topsoil at the abandoned South Terras uranium mine in Cornwall, England.

The researchers used some of the world’s brightest synchrotron X-ray microscopes – the Swiss Light Source and the USA’s National Synchrotron Light Source – to unearth what is believed to be the first example of arsenic controlling uranium migration in the environment.  These microscopes use intense X-ray beams to focus on a spot just one-millionth of a metre in diameter.

“We use synchrotron X-rays to identify and isolate the microscopic uranium particles within the soils and determine their chemical composition and mineral species,” said co-author of the study, Neil Hyatt.  “It’s like being able to find tiny uranium needles in a soil haystack with a very sensitive metal detector.”

Source: © Claire Corkhill
The abandoned South Terras mine in Cornwall where uranium was mined until 1930

According to the study – published on 14 December in Nature Materials Degradation – ore extraction processes and natural weathering of rock at the South Terras mine has led to the proliferation of other elements during degradation, particularly arsenic and beryllium, which were found in significant concentrations.  The arsenic and uranium were found to have formed the highly insoluble secondary mineral metazeunerite.

“Significantly, our data indicate that metazeunerite and metatorbernite were found to occur in solid solution, which has not been previously observed at other uranium-contaminated sites where uranyl-micas are present,” the study says.

Claire Corkhill, lead author of the study, said: “Locking up the uranium in this mineral structure means that it cannot migrate in the environment.”

The researchers concluded that this process at South Terras – which operated between 1873 and 1930, producing a total of 736 tonnes of uranium – is the result of a set of “rather unique” geological conditions.  “To identify this remediation mechanism at other sites, where arsenic and uranium are key co-contaminants, further detailed mineralogical assessments are required,” they said.  “These should be considered as an essential input to understand the ultimate environmental fate of degraded uranium ore.”

“The study has far-reaching implications, from the remediation of abandoned uranium mines across the world, to the environmental clean-up of nuclear accidents and historic nuclear weapons test sites,” according to the scientists.  “It also shows the importance of local geology on uranium behavior, which can be applied to develop efficient clean-up strategies.”

Keystone Pipeline Spill Response deemed a Success

In early December, a section of the Keystone Pipeline leaked 210,000 gallons of oil near the South Dakota City of Amherst.  Representatives of Trans-Canada Pipeline, the owner of the pipeline, deemed the detection of the leak and prompt spill response as an example of its exemplary contingency measures that are in place to detect and respond to such incidents.

An aerial view shows the darkened ground of an oil spill which shut down the Keystone pipeline between Canada and the United States, located in an agricultural area near Amherst, South Dakota.
REUTERS/Dronebase

When fully complete, the Keystone Pipeline will carry bitumen from the Alberta oil fields to refineries in Texas.  At present, the pipeline runs from Alberta, through North Dakota and South Dakota.

As reported in the Prairie Public News, Julie Fedorchak of the North Dakota Public Service Commission (PSC) stated that the company’s quick response to the incident shows that its response plan worked perfectly.

“The system was shut down within three minutes,” Fedorchak said.  “And importantly, the spill was detected.”

Fedorchak said the spill showed up on its detection equipment, and the people overseeing system noticed it, and.

“They knew it was something off,” Fedorchak said.  “And the quick shutdown prevented what could have been a much more difficult spill.”

But Fedorchak said there are still questions about why the spill happened.

“It’s a new line,” Fedorchak said. “New lines like this shouldn’t be having those kinds of issues.”

Fedorchak said it’s important that the company and federal pipeline regulators do the tests needed on that pipeline, to try to figure out what caused it.

“That’ll be a learning opportunity for the entire industry,” Fedorchak said.

The company believes it may have been caused by an abrasion on the pipeline coating, that happened during construction.

“Perhaps there were some things in the ground that could have caused it,” Fedorchak said. “Or it could have been a problem with the pipeline protection itself. They’re looking at a number of things.”

Clean-up work continues at the spill site.

Growing Interest in Brownfield Redevelopment in Windsor

As reported in the Windsor Star, it has taken almost seven years for a municipal brownfields development incentive program to take hold in the City of Windsor, immediately across the Detroit River from the City of Detroit.

In the last several months, applications to the Brownfield Redevelopment Community Improvement (CIP) Plan have been steadily streaming in — seeking grants to help fund feasibility and soil studies, and then even more money to help pay for the pricey cleanup.

If they become realities, these developments could add up to hundreds of new residences on: the former GM Trim site on Lauzon Road; a collection of former industrial properties between Walkerville and Ford City; and most recently a large property near Tecumseh Road and Howard Avenue that for 50 years was the home of Auto Specialties, a manufacturer of malleable castings and automotive jacks for the auto industry.

Greg Atkinson, a senior planner with the city who co-ordinates the Brownfields CIP program, said it’s “awesome news” that investors are finally taking advantage of this “great incentive package.”  The reason they’re jumping aboard now, he said, is that Windsor’s land prices have risen and residential vacancy rates have declined to the point where developing these cheaper brownfield properties now make financial sense.

“But without the incentives I don’t think they would be redeveloped,” Atkinson said. “With them, they’re pushed into that realm of viability, and that’s what we’re starting to see.”

Almost 140 sites across the city have been identified as brownfield properties, covering 559 acres.

“Historically, there has been little interest in redeveloping brownfield sites due to the uncertainty surrounding the extent of contamination and the potential cost of cleanup,” says a city report that goes to the city’s planning, heritage and economic development standing committee Monday. It says one redeveloped brownfield acre saves 4.5 acres of farmland on a city’s outskirts from being developed, and that for every dollar invested in brownfield redevelopment, $3.80 is invested in the community.

An illustration cut out from an unknown trade publication/manual, circa 1940, shows the Auto Specialties Manufacturing Company (Canada) located near the northeast corner of Tecumseh Road and Howard Avenue. The plant made malleable castings for the automotive industry and also automotive jacks. Photo courtesy of the University of Windsor, Leddy Library. UNIVERSITY OF WINDSOR / WINDSOR STAR

“It’s great to see owners and developers coming forward and saying ‘We’d like to tap into this fund because we’re interested in redeveloping this site,” Mayor Drew Dilkens said of the recent flow of applications. “The more of these 140 properties we can activate, the better it will be for all of us in the City of Windsor because it provides more taxes and lowers everyone’s share.”

The most recent application is from THMC Windsor, for a $7,000 grant to pay half the cost of a feasibility study on the viability of redeveloping part of the massive parking lot behind the medical buildings at Howard and Tecumseh into a residential project. Auto Specialties operated on the 12.5-acre site from the 1920s to the 1970s.

The next grant THMC could apply for provides up to $15,000 to cover half the cost of soil and groundwater testing for possible contamination. Then if the owner decides to go ahead with cleanup, the Brownfield Rehabilitation Program compensates for the cleanup costs by effectively freezing taxes where they are (versus what they would rise to when the site’s redeveloped) for the first 10 years. There’s even a big break on development fees.

“It really does cover a lot of costs,” Atkinson said of the program.

Of the 15 applications to the program since 2010, 13 have come in the last 22 months. Grants have totalled $1.9 million, leveraging $16.9 million in private sector investment, according to the city.

The earliest and most prominent success happened at a former gas station property at Dougall Avenue and West Grand Boulevard, which was turned into a small commercial development with the help of $67,000 in city grants. The former Wickes bumper plant — now run as a big UHaul operation, also was rejuvenated thanks to $1.5 million worth of grants. A former gas station at Riverside Drive and Marentette Avenue has been cleaned up and readied for redevelopment. And earlier this year, the Sood family received study grants to redevelop the former Seagrave fire truck plant property on Walker Road into about 12 townhouses and turn 17 acres of largely vacant industrial land south of Edna Street, west of St. Luke Road and north of Richmond Street into between 200 and 250 residential units.

On Monday night, council approved grants totalling $32,000 to help pay for three feasibility and environmental studies costing $97,000 for the 60-acre former GM Trim site. The current owner Farhi Holdings has plans to redevelop the site into a commercial-residential project with about 240 residential units. 

Dilkens said there’s clearly a demand for residential development in the east side of the city where Farhi’s land is located, and replacing the derelict site with a new housing project would benefit the entire area.

But Atkinson cautioned that not all these projects end up being developed. “Sometimes, they’ll determine it’s not feasible, there’s no demand for what they’re thinking of, or they might do the sampling and find out it costs too much to clean up.”

The Walker Power Building in Windsor, Ont., summer 2015

Nearly $3 million awarded for R&D of Marine Oil Spill Response Technology by Canadian Federal Government

The Canadian federal government recently announced investments of $2.89 million for four projects to enhance marine incident prevention and responsiveness along Canada’s ocean coastlines.

Centre for Cold Ocean Resources Engineering (C-CORE)

Through its Oil Spill Response Science (OSRS) program, the federal government provided $991,500 to C-CORE, a St. John’s-based research and development company, to increase the efficiency of existing mechanical oil recovery systems for heavy oil products in harsh, cold environments.  The government of Newfoundland and Labrador will also provide $428,500 to the project.

“This project leverages C-CORE’s expertise in analytical modelling, computer simulation and large-scale physical tests to assess and optimize technology performance in harsh environments,” Mark MacLeod, C-CORE president and chief executive officer, said in a statement.

Lab-scale test apparatus for oil recovery

The main intermediate outcome of this project consists of an improved oil spill collection and separation system that can be integrated in an efficient response technique including a specially designed vessel.  The system will be based on the established concepts and proven technologies for recovery of heavy oil spills from sea water in cold and ice prone ocean environments.

The long-term outcome of the project will include specialized vessels with the required detection, storage, and spill removal systems, tested and proven in the real life conditions.

Project partners with C-CORE include Elastec, Eastern Canada Response Corporation Ltd. (ECRC), and InnovatechNL.

University of Toronto

A further $400,000 will go to a University of Toronto project that will develop a sorbent-based direct oil collector (called In-Situ Foam Filtration System or ISFFS) for use in oil spills.  This system will be capable of directly reclaiming the dissolved, emulsified, dispersed, and free oil from marine spill sites.  To meet this objective, the development of advanced functional foams (sorbents), implementing a bench-top system, and design and optimization of in-situ filtration process as a proof-of-concept will be undertaken.

The ISFF will directly collect the oil from the spill site by pumping through oil sorbent bed, which serves as the filtration media.  For this type of foam, there is no need for high oil-sorption capacity thus, functionalizing the foam with toxic and expensive elements can be avoided along with minimizing material costs.  Moreover, the in-situ filtration will make the oil sorption process continuous, simplifies oil collection, making oil spill response quicker and more cost effective.

Project partners include Tetra Tech, Polaris Applied Sciences Inc., Dr. Foam Canada, Gracious Living Innovations Inc., and ShawCor Ltd.

University of Alberta’s Advanced Water Research Lab

The OSRS program will be contributing $600,000 towards a $1.65 million project be undertaken at the University of Alberta.  The project involves the development of an on-board membrane based hybrid oil/water separation system.  If successfully developed, the system will significantly increase the capacity of recovery vessels that physically collect oil spilled at sea, thereby reducing the cost and spill response time for cleanup.  The technology can be directly and easily incorporated into existing rapid deployment spill clean-up systems mounted on ships or barges.  It would be ready to commercialize for manufacturers of existing oil spill clean-up tankers, making the research easy to implement for large or small-scale spills and for potential use in future high-risk areas of development.

BC Research Inc.

Finally, the federal OSRS program committed $925,000 to BC Research Inc., a company with a broad experience in chemical product development, to further develop a hybrid spill-treating agent (STA) that will help slow or prevent the spread of an oil slick on water.

If the R&D project is successful, a hybrid STA will be commercially available that can be used to combat marine oil spills at large scale.  The hybrid STA would have both gelling and herding properties, to prevent or slow down the spreading of an oil slick by rendering it into a thickened (gelled) state, as well as to use it as a herding agent, to facilitate either controlled burn or skimming operations.

Current oil recovery rates for spills on water are estimated to be in the range of 10-20%.  With current STAs, there are few options to prevent or slow down weathering processes, including spreading and dispersion. Delaying the spreading and weathering process would potentially facilitate cleanup and improve the degree/rate of oil removed.

Project partners include NORAM Engineers and Constructors and the University of British Columbia.

Volunteers cleaning Ambleside Beach in West Vancouver, 1973. (Source: John Denniston)

Brownfield Redevelopment in Western New York

As reported in the Buffalo Law Journal/Buffalo Business First, Gov. Andrew Cuomo designated four Brownfield Opportunity Areas in Buffalo last month, providing another tool for area stakeholders to have the areas developed.

He designated areas in South Buffalo, the Buffalo Harbor, the Buffalo river corridor and the Tonawanda Street corridor.

“These designations will equip Buffalo officials with tools and resources needed to carry out their vision of community revitalization and help turn these blighted properties back into economic engines,” he said. “This is one more reason why Buffalo remains a city on the move.”

Before the designation, the city had to submit plans for the areas, said Michael Hecker, senior associate at Hodgson Russ. “The goal is to find these areas and figure out a way for the state to work with them to help them with long-term planning on how to redevelop the sites.”

It’s a three-step grant process to determine how to revitalize a brownfield area, Hecker said.

“The first step is a pre-nomination study,” he said. “The second is step is nomination and the third is implementation strategy.”

South Buffalo Brownfield Opportunity Area (Credit: Buffalo Urban Development Corporation)

In the pre-nomination phase, a municipality and associated groups look at an area that may have an issue and explore ways to revitalize the area. In the nomination process, funding sources are considered, as well as market trends. And in the third step, implementation of the plan is identified and there’s a thorough accounting of funding sources.

“It’s a wholesome package that the state has developed as a basis to spur economic development,” Hecker said.

The three steps are completed through the New York State Department of State. Once the governor designates a brownfield opportunity area, various programs can lead to more state benefits.

“If you do your redevelopment project through a BOA, there are additional tax credits available,” Hecker said.

“It’s basically the governor recognizing that these areas have spent the time and focus on an economic redevelopment strategy and they should qualify for additional credits to spur redevelopment in these areas.”

He said the designations fit in with the city’s Green Code under Mayor Byron Brown.

“(BOAs) are a central component of our city’s Green Code initiative and my administration’s place-based economic development strategy,” Brown said in a statement.

“The State’s approval of the BOAs, created by the city of Buffalo with significant public input, places Buffalo at the forefront of brownfield redevelopment nationally and will further enhance Buffalo’s ability to compete for investment, bringing new life to even more neighborhoods by making use of underutilized properties that create jobs for city residents.”

Some of the areas will need to go through remediation in order to be redeveloped, according to Hecker. For instance, the South Buffalo Brownfield Opportunity Area, which consists of approximately 1,968 acres in an area that was once heavily industrialized by the steel industry, has sites that will require remediation.

Plans for that site include a nine-hole golf course, indoor and outdoor recreation and expansion of the Tifft Nature Preserve.

The Buffalo River Corridor Brownfield Opportunity Area also has long-standing contamination issues. It’s made up of 1,050 acres in the Old First Ward, containing 58 possible brownfield sites.

“One of the main areas of that project is restoration and enhancement of the environmental quality of the river and enhancing waterfront access,” Hecker said.

“Buffalo is lucky in the fact that it has an unbelievable natural resource with water access. Over the last 10 to 15 years, you’ve definitely seen an enhanced focus on trying to leverage that natural resource to be an economic driver. I think the city, to its credit, has done a very good job of doing that. This is just another option for them to utilize that program to benefit it.”

The Buffalo Harbor Brownfield Opportunity Area is 1,045 acres, with six brownfield sites. The area includes waterfront space at both the Inner and Outer harbors.

Assemblyman Sean Ryan said BOA designation will help with future waterfront development.

“Investing in environmental remediation prepares our communities for revitalization and renewed economic activity,” Ryan said. “Contaminated sites along our waterfront have made progress difficult over the years.”

The Tonawanda Street Corridor Brownfield Opportunity Area is 650 acres containing 46 potential brownfield sites. Plans include reconstruction of the Scajaquada Expressway and restoration of Scajaquada Creek.

Hecker said the designated areas represent places where longtime residents can see the potential benefit to redevelopment.

“One of the interesting things to me about these projects is that they really are fully integrated community projects,” he said.

Brownfield funding is available at the federal level through the Environmental Protection Agency, as well, Hecker said.

While the Trump administration has pared back the EPA, Administrator Scott Pruitt has said that brownfields would remain a priority to the agency.

“There hasn’t been any change in that area,” Hecker said.

Pruitt is focused on shifting the responsibility for contaminated sites to states, Hecker said.

“(Pruitt) wants states to work together with the federal government in a limited capacity to manage these things on their own,” he said.

“From a standpoint of economic development, especially with President Trump’s focus on infrastructure, I don’t think this is going to be a major issue unless there are further cuts in the budget. That remains to be seen.”

Canadian Government to spend $80 million to Study Oil Spills

Building on the announcements of $3 million in funding for R&D on oil spill response technology, the federal government recently announced it is spending $80-million on oil spill research on preventing spills as well as their effect on the marine environment.

There will be $45.5-million set up for a research program that will foster collaboration among researchers in Canada and around the world, with $10-million a year to bring scientists together to study how oil spills behave, how to clean and contain them and how to minimize environmental damage. 

The Centre for Offshore Oil, Gas and Energy Research in Halifax will also get some of the $16.8-million in funding for new scientists and specialized equipment.  It will support oil spill research to better understand how oil degrades in different conditions.

Another $17.7-million will be used to fund research and development of enhanced ocean computer models of winds, waves and currents to allow responders to better track spills.

The funds are part of the $1.5-billion Oceans Protection Plan, which is aimed at developing a marine safety system.

 

U.S. EPA Targets Superfund Sites for Immediate Clean-up

The United States Environmental Protection Agency (U.S. EPA) recently released a list of Superfund Sites targeted for immediate, intense action, as of December 8th 2017. The list is a response to July’s Superfund Task Force Recommendations. The U.S. EPA considers the sites listed to benefit from Administrator Scott Pruitt’s direct engagement, requiring timely resolve of specific issues to streamline cleanup and redevelopment and protect human health and the environment.

3D Image of NAPL contamination at the B.F. GOODRICH facility in Calvert City, KY

The list, spanning all ten EPA regions across the United States, with accompanying plans, issues, and categorizations associated with each site, can be found here.

As reported in the Washington Post, the push is part of Administrator Scott Pruitt’s promise to prioritize the decades-old cleanup program, even as the Trump administration shrinks the size and reach of the EPA. The 21 sites highlighted by the agency span the country, from a former tannery site in New Hampshire to a contaminated landfill from the World War II-era Manhattan Project in St. Louis to an abandoned copper mine in Nevada.

“By elevating these sites, we are sending a message that EPA is, in fact, restoring its Superfund program to its rightful place at the center of the agency’s mission,” Pruitt said in a statement. “Getting toxic land sites cleaned up and revitalized is of the utmost importance to the communities across the country that are affected by these sites.”

The U.S. EPA said that it developed the list using sites “where opportunities exist to act quickly and comprehensively.” Notably, the agency also acknowledged that “there is no commitment of additional funding associated with a site’s inclusion on the list.”

RFPs for Spill Response Equipment by Canadian Coast Guard

The Canadian Coast Guard is soliciting bids for new spill response equipment for use on its marine vessels.  The equipment will be used to contain and remove oil and other contaminants from the water in the case of a spill.

The RFPs can be found at the following web sites:

All interested suppliers may submit a bid which is open to companies from Canada, the United States, and other countries that are part of various trade agreements with Canada.

The competitive procurement strategy will be based on lowest bid meeting the technical specifications.

This will be the first equipment acquired under the Environmental Response Equipment Modernization initiative of the Oceans Protection Plan.  The equipment will include curtain booms, high-speed sweep systems, and small, portable multi-cassette skimmers.

The Environmental Response Equipment Modernization initiative will bring the Coast Guard in line with and beyond current standards regarding environmental spill response and take advantage of innovations and advancements in technology.

Canada: Courts Struggle to Mix Bankruptcy and Environmental Law – SCC To Hear Redwater Appeal

Article by John GeorgakopoulosGiselle Davidian and Serin Remedios

Willms & Shier Environmental Lawyers LLP

The Supreme Court of Canada (SCC) granted leave to hear the appeal of Orphan Well Association v Grant Thornton Limited.1 The SCC will reconsider whether trustees and receivers in bankruptcy must remediate wells in priority to the claims of secured creditors.

In April 2017, the Alberta Court of Appeal released its decision in Redwater.2 The Court found that the Government of Alberta’s environmental orders for oil well remediation did not have priority over secured creditors in bankruptcy proceedings.

In upholding the lower court’s decision, set out in our previous update, the Court of Appeal added to the “untidy intersection” between bankruptcy proceedings and provincial environmental law. Both Courts concluded that receivers and trustees were permitted to renounce an insolvent debtor’s interest in its licensed assets while selling valuable licensed assets to maximize recovery for secured creditors.

The decision, as it stands, allows receivers and trustees in bankruptcy to disclaim unprofitable assets and not be required to fulfill certain environmental obligations associated with those disclaimed assets.

Recap

The case revolves around the assets of a junior, insolvent oil and gas producer, Redwater Energy Corporation (Redwater).

Orphan Oil Well

When Redwater’s primary secured creditor began enforcement proceedings under the Bankruptcy and Insolvency Act (BIA), Grant Thornton Limited (GTL) was appointed as receiver and trustee.3 Several of Redwater’s oil wells had costs of remediation exceeding the value of the wells. GTL took control of only 20 of 127 Redwater’s assets and disclaimed the oil wells that had onerous environmental abandonment costs.

Alberta oil and gas legislation requires licensees, including trustees, to comply with “end-of-life” rules for oil wells. Where no one is financially capable of remediating and abandoning a well, the well is designated an “orphan well” under Alberta’s Oil and Gas Conservation Act (OGCA).4/em>

The Alberta Energy Regulator (AER) ordered GTL to remediate the disclaimed oil wells before distributing funds to creditors. When GTL indicated that it did not intend to remediate the wells, AER and the Orphan Well Association (OWA) brought applications asking the court to void GTL’s disclaimer of the non-producing wells and order GTL to comply with AER’s orders. AER argued that Redwater’s insolvency and bankruptcy did not affect Redwater’s environmental obligations and that GTL was legally required to discharge those obligations before paying Redwater’s creditors.

GTL brought a cross-application challenging the constitutionality of AER’s stance on GTL’s environmental obligations and seeking approval of the sale of Redwater’s valuable wells.

At issue was whether AER’s orders were provable claims in bankruptcy and therefore subject to bankruptcy proceedings. If AER’s orders were subject to bankruptcy proceedings, other creditor’s claims would take priority. The practical outcome being that the corporation would likely have no means of satisfying its environmental obligations after settling its obligations to other creditors. The cost of remediating the orphan wells would then fall on the Government of Alberta.

As we previously reported, Alberta Court of Queen’s Bench concluded that the applicable sections of the OGCA and Pipeline Act (PA) frustrate the federal purpose of the BIA of managing the winding up of insolvent corporations and settling the priority of claims against them. Based on the doctrine of paramountcy, the OGCA and PA were inoperable to the extent that they conflicted with section 14.06 of the BIA. This section of the BIA exempts a receiver or trustee from personal liability, allowing a trustee and receiver to disclaim assets, and prescribes the priority of environmental remediation costs.

OWRA and AER appealed the decision.

Court of Appeal Decision

The Court of Appeal upheld the lower court decision. The key issue on appeal was the priority and treatment of environmental claims in bankruptcy, and whether environmental claims were provable claims under section 14.06 of the BIA.

Priority and Treatment of Environmental Claims in Bankruptcy

The Court found that the BIA was amended in 1997 to specifically address environmental claims. The BIA now incorporates environmental claims into the general bankruptcy process, rather than exempting them. Following the test set out in Newfoundland and Labrador v AbitibiBowater Inc., the Alberta Court of Appeal found that AER’s orders were subject to bankruptcy proceedings.5 By refusing to permit the transfer of Redwater’s valuable assets unless funds were set aside for remediation, AER reduced the environmental obligations to “sufficiently certain” monetary claims. Accordingly, AER cannot indirectly interfere with the value of assets in a bankruptcy by placing financial preconditions on the transfer of AER licences.

Constitutional Law Issue

The Court of Appeal held that there was an operational conflict between federal and provincial regimes. The Court found that the provincial regulatory scheme frustrated the purposes of the BIA, which include determining the priority of claims against insolvent corporations. The practical outcome being that GTL did not have to comply with AER’s remediation obligations prior to settling claims of secured creditors.

Nortel and Northstar

The dissenting opinion briefly considered the two leading cases in Ontario on environmental claims in bankruptcy and insolvency: Nortel Networks Corporation (Re) and Northstar Aerospace Inc. (Re).6 In Nortel, the Court found that some of the Ministry of the Environment’s (MOE, as it then was) orders had priority over creditor claims, but in Northstar, the Court found that the MOE’s orders did not have priority.

Implications

The practical implications of Redwater may be far reaching not only for the worlds of bankruptcy & insolvency and oil & gas, but also for the world of director and officer liability.

Will we see more Alberta provincial environmental orders aimed at former directors and officers? In Northstar, after the Court found the MOE’s orders did not have super priority in insolvency proceedings, the MOE issued a remediation order personally against the former directors and officers.7

We will look to the SCC to provide clarity on this important, albeit untidy, area of law.

Footnotes

1 2017 ABCA 124 [Redwater].

2 Ibid.

3 RSC 1985, c B-3 [BIA].

4 Redwater at para 21; Oil and Gas Conservation Act RSA 2000, c O-6, s 70 [OGCA].

5 2012 SCC 67.

6 Nortel Networks Corporation (Re), 2013 ONCA 599 [Nortel]; Northstar Aerospace Inc. (Re), 2013 ONCA 600 [Northstar].

7 Northstar Aerospace, Inc. (Re), 2012 ONSC 4423. Subsequently, on November 14, 2012, the MOE issued a Director’s Order against the former directors and officers personally.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

__________________________________

About the authors

John Georgakopoulos resolves complex environmental legal issues for clients, uniquely drawing on his technical knowledge as a former senior environmental scientist with the Ontario Ministry of the Environment and Climate Change. John is called to the bars of Ontario and Alberta.

Giselle Davidian is an associate lawyer practicing in the areas of environmental law, environmental litigation, energy and natural resource law and Aboriginal law.  Giselle draws upon her technical knowledge as a former environmental scientist at a consulting engineering firm to help clients meet their goals.  Giselle is fluent in French and Armenian and has a working knowledge of Italian.  Giselle is called to the bar of Ontario.

Serin Remedios is an associate lawyer practicing environmental litigation as well as environmental, Aboriginal, northern and energy law.  Serin’s past experience in environmental science helps her understand clients’ problems and assist them in meeting their goals.  Serin is called to the bar in Ontario.

This article was first published in the Willms & Shier Environmental Lawyers LLP website.

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

by Beveridge & Diamond PC

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

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

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

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

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

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

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

  1. Is there government action that bars the suit?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  1. Can you recover your attorneys’ fees?

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

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

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

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

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