U.S. EPA Funding for Small Business Innovation Research

The United States Environmental Protection Agency (U.S. EPA) is pre-soliciting companies interested in bidding on $100,000 grants under the Agency’s Small Business Innovation Research (SBIR) Program.  Under the program, the U.S. EPA will award about 12 firm-fixed-price contracts of $100,000 each under during FY 2018 to small businesses that propose winning research proposals.

The U.S. EPA has identified six topic areas of priority for feasibility-related research or R&D efforts including removal of PFOA/PFOS from drinking water, removal of PFOA/PFOS from wastewater, and remediation of PFAS-contaminated soil and sediment.

The anticipated release date of the solicitation is October 17, 2017, with proposals likely due December 7, 2017.  The U.S. EPA will grant the awards June 30, 2018, each with a 6-month period of performance.  For more information, see http://www.epa.gov/sbir/sbir-funding-opportunities.

CERCLA Trumps As-Is Sales

By Steven L. Hoch, Attorney, Clark Hill

A federal court in Alaska assessed responsibility against the City of Fairbanks (City) for remediation costs found necessary to clean up property it previously owned.  The court concluded that the City should have mitigated the problem or at least warned the purchaser about the contamination, even though the property was sold “As-Is”.  Under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) liability is assessed without reference to cause.  Further, the court said that numerous courts have held that CERCLA liability cannot be defeated by contract, unless specifically and clearly addressed in the contract language.

In Gavora, Inc. v. City of Fairbanks , Case No. 4:15–cv-00015-SLG, BL 256894 (D. Alaska July 25, 2017), the City owned two parcels of land and Gavora held leasehold on one of the parcels. For a considerable length of time, a dry cleaning business operated in the shopping center located on their parcel.  Eventually, the contamination drew the attention of the State of Alaska, who told the City about the contamination and that they suspected the contamination migrated from that parcel to the other.  While the State did not verify the findings, the district court found it clear that the City knew or should have known that the first parcel was also contaminated.

Fairbanks Mall – Satellite Image showing borehole and monitoring well locations as well as PCE contamination levels

The City sold the first parcel to Gavora on an “As-Is, Where-Is” basis.  This sale occurred 10 years after the City first learned of the contamination on the second parcel.  When the purchase took place, Gavora did not perform its own environmental assessment.  Five years later, contamination was discovered on the first parcel owned by Gavora.  Lacking options, Gavora remediated the parcel and sued the City of Fairbanks for contribution.

Even though the sale was “As-Is”, the court nevertheless held the seller liable. Further, the court allocated 55% of the costs to the City and 45% of the costs to the current owner. The court rationalized that this allocation was appropriate because (1) the city knew or should have known of the contamination, yet failed to inform the purchaser; (2) the current owner made substantial corrective action efforts upon learning of the problem whereas the City took no action, and (3) it would be inequitable to hold the current owner responsible for contamination occurring prior to its master lease, but the court could not “effectively apportion the contamination”, but (4) the current owner would obtain a greater benefit than the prior owner from the remediation.

In the final analysis this case affirms that “As-Is” does not exculpate a seller from CERCLA liability, and that not disclosing contamination even when it did not make any representation to the contrary. As this was a district court opinion, it does not have significant legal value, but should not be dismissed out of hand when confronting similar issues.

 

This article was first published on the Clark Hill website.

_________________

About the author

Steven Hoch has over 40 years of experience with both federal and state environmental laws and regulations in the context of permitting, regulatory proceedings, litigation, enforcement actions, water supply, public policy formation, and advice.  His work includes contamination of land and ground and surface water.  Steven has critical experience in the areas of environmental law and the federal and state Safe Drinking Water Acts, Title 23, water supply, and the mechanics of water distribution.  His experience also extends to groundwater modeling and water quality testing.  He also has significant experience in hazardous substances and waste handling practices, remediation, soil erosion, and claims of toxic exposures

Steven has in-depth experience working with numerous public water systems throughout the state.  He has also established a sterling reputation for his work with the Regional Water Quality Control Boards, the Department of Toxic Substance Control, and the United States Environmental Protection Agency both in the administrative and litigation.  His clients range from the country’s largest municipal water agency to individuals selling or buying contaminated sites.

Steven often takes primary roles in many environmental trials, and has served as liaison counsel for groups or parties at the request of fellow counsel.  He has been involved in several landmark cases, including acting as PG&E’s counsel in the case made famous by the movie Erin Brockovich.

 

U.S. EPA Evaluates Hurricane Harvey impact on U.S. Superfund Sites in Texas

In a September 8th update, the U.S. Environmental Protection Agency (U.S. EPA) and the Texas Commission of Environmental Quality (TCEQ) stated that the two agencies continue to get updates about the status of specific Superfund sites from the parties responsible for ongoing cleanup of the sites.  The TCEQ has completed the assessment of all 17 state Superfund sites in the area affected by Hurricane Harvey.  The two agencies reported that there were no major issues noted.  The TCEQ will continue to monitor sites to ensure no further action is needed in regards to the storm.

The U.S. EPA completed site assessments at all 43 Superfund sites affected by the storm.  Of these sites, two (San Jacinto and U.S. Oil Recovery) require additional assessment efforts.  Assessments of these sites will take several more days to complete.

Harris County, Texas Superfund Sites Map

 

The San Jacinto Waste Pits site has a temporary armored cap designed to prevent migration of hazardous material.  The U.S. EPA remedial manager is onsite and overseeing the assessment.  Crews continue to survey portions of the cap that are submerged.  There are some areas where rock has been displaced and the liner is exposed.  The potential responsible party has mobilized heavy equipment and is placing rock on different places on the armored cap to repair the defensive surface. The liner is in place and functional so we don’t have any indication that the underlying waste materials have been exposed. If we find a breach in the exposed liner, we direct the responsible party to collect samples to determine if any materials have been released. Also, the EPA has dive teams to survey the cap underwater if needed.

Work to improve conditions after the storm has continued at the U.S. Oil Recovery site to address flood water from the storm.  Nine vacuum truckloads of approximately 45,000 gallons of storm water were removed and shipped offsite for disposal.  No sheen or odor was observed in the overflowing water, and an additional tank is being used to maintain freeboard to keep water on-site.  The U.S. EPA has directed potential responsible parties or has independently started collecting samples at the 43 Superfund sites to further confirm any impacts from the storm.  The total number of Superfund sites increased from 41 to 43 with the addition of Rapides Parish, Louisiana and Waller County, Texas as disaster declared areas.  Sampling efforts of all 43 sites is expected to be completed early next week with sample results will be available soon.

Victoria, B.C. faces Major Bill to Clean up Contaminated Park

As reported in Victoria News, Laurel Point Park is contaminated and the City of Victoria is looking at a potential $5-million bill to clean it up.

The City will spend up to $350,000 to confirm the degree of contamination and create a remediation plan.

The park, located along the David Foster Harbour Pathway next to property owned by Transport Canada, is contaminated with high levels of metal and petroleum hydrocarbons in the soil and groundwater, according to a staff report presented to council last week. Chemical discharges from nearby property likely contaminated the aquatic environment, water and the soil because of area’s industrial past, the report stated.

Laurel Point Park, Victoria, B.C.

For now, there is little risk to the public.  Counsellor Chris Coleman said the contamination is capped and secured, as long as it is left alone.

“If there was (a risk to the public), then we would close the park,” he said.

“It’s the sort of thing that we’ve seen in the past, when there was leeching from the Hartland Road landfill,” Coleman added. “It went into the groundwater … it then caused an algal bloom in the Butchart Gardens. That’s what you’re trying to control for here.”

The park, and the surrounding lands on the Laurel Point peninsula, were burial grounds for the Songhees people prior to 1885, after which it was used by various industrial facilities, including paint factories, machine shops, and for processing coal and oil.

Victoria council approved the next stage of SLR Consulting’s environmental investigation using money from the environmental remediation funds in city’s financial plan for 2017.

The next step in the process is a risk assessment, with an estimated cost of up to $150,000. It will take an additional $50,000 for the remediation plan, and up to $5 million to put the plan into action.

The surrounding land owned by Transport Canada will also have to be excavated and disposed off-site, according to preliminary reports.

Tribunal gives Ontario Environment Ministry Broad Preventative Powers over Migrating Contamination

by Stanley D. Berger

On September 1, 2017, the Ontario Environmental Review Tribunal in the matter of Hamilton Beach Brands Canada Inc. et al. v. the Director, Ministry of the Environment and Climate Change made a preliminary ruling that the Director had jurisdiction to make an order under s.18 of the Environmental Protection Act (EPA) requiring a person who owns or owned, or has or had management or control of a contaminated undertaking or property to delineate contamination that had already migrated to off-site properties. The property in question, formerly a small-appliance manufacturing business, was contaminated and the various contaminants were of concern to the Ministry, having migrated to other Picton residential, commercial and institutional properties where they might be entering nearby buildings by vapour intrusion. Section 18 of the EPA provides that the Director may make orders preventing, decreasing or eliminating an adverse effect that may result from the discharge of a contaminant from the undertaking or the presence or discharge of a contaminant in, on or under the property. The Director’s Order was challenged on three grounds:

  1. The adverse effect the Director could address was limited to a future event or circumstance (given that s.18 is prospective and preventative);
  2. The adverse effect had to relate to the potential off-site migration of a contaminant that was on an orderee’s property at the time the order was made;
  3. The order could require work only on site but not off-site, to address the risk of an adverse effect.

The Tribunal rejected all three arguments, reasoning that adverse effects resulting from contamination were frequently ongoing rather than static, with no clear line between existing and future effects. The Tribunal looked to the purpose of the EPA which was to protect and conserve the natural environment and found the orderees’ arguments were inconsistent with this purpose. Contamination and adverse effects were not constrained by property boundaries and therefore it was immaterial whether the contaminant was on the orderee’s property at the time the order was made. Finally, the list of requirements that could be ordered under s.18(1) EPA included off-site work. _________________

About the Author

Mr. Berger has practiced regulatory law for 36 years. He is a partner at Fogler Rubinoff LLP. He is certified by the Law Society of Upper Canada as a specialist in Environmental Law. He represents nuclear operators and suppliers in regulatory and environmental matters and in the negotiation of risk clauses in supply contracts and government indemnity agreements.He has prosecuted and defended environmental , occupational health and safety and criminal charges . He represents clients on access to information appeals before Ontario’s Freedom of Information Commission. He has also represented First Nations seeking equity partnerships in renewable energy projects. He started as an Assistant Crown Attorney in Toronto (1981), became the Deputy Director for Legal Services /Prosecutions at the Ministry of the Environment (1991) and Assistant General Counsel at Ontario Power Generation Inc.(1998-2012) During his 14 years at OPG, Mr. Berger won the President’s Award for his legal contribution to the Joint Review Panel environmental assessment and licensing hearing into the Nuclear New Build Project for Clarington . He won a Power Within Award for his legal support of the Hosting Agreement with local municipalities for the project to create a long term deep geologic repository for low and intermediate nuclear waste in Tiverton, Ontario.

 

Validation of handheld X-Ray Fluorescence for In-Situ Measurement of Mercury in Soils

Researchers recently reported the results of an evaluation of a handheld X-ray fluorescence (XRF) device as a field screening tool for soil mercury as part of on-going remedial investigations along the South River in Waynesboro, Virginia.  As reported by the research team, the method achieved a detection limit of 7.4 mg/kg Hg with a 60-s analysis time, which improves upon earlier attempts and is sufficient for detecting mercury at generic risk assessment soil screening levels (23 mg/kg Hg).  The study also demonstrated levels of accuracy and precision for the method that rivaled traditional laboratory methods.  In a split-sample comparison with laboratory Method 7471A, field XRF results agreed with an R2 of 0.93 and a median coefficient of variation of 15%.  Precision estimates from duplicate and triplicate samples were not statistically different between the two methods and were constrained by sample heterogeneity rather than by method capabilities.

The study demonstrated that handheld XRF can be successfully used at contaminated sites to achieve high quality Hg results that are accurate, precise, and at a level of sensitivity commensurate with generic risk assessment screening levels.

Schematic of an X-ray fluorescence (XRF) device

Arcadis achieves U.S. Department of Defense Accreditation

Arcadis, a design and consultancy firm for natural and built assets, recently announced that it achieved U.S. Department of Defense (DoD) accreditation for its Advanced Geophysical Classification (AGC) quality and technical platforms, enabling Arcadis to identify, test and remove explosive hazards at defense sites and avoid costly excavation of non-explosive debris.

Arcadis was accredited by the American Association for Laboratory Accreditation (A2LA) to perform AGC under the DoD AGC Program to perform complex subsurface munitions identification work.  Accreditation is based on the internationally recognized ISO/IEC 17025 standard and is achieved through a multi-step process including the review, assessment and on-site audit of the Arcadis Quality Management System and demonstration of ability to classify subsurface metallic objects as munitions at a DoD test site.

AGC is an innovative approach to munitions response remediation activities because it classifies subsurface objects as unexploded ordnance potentially containing explosive hazards or non-hazardous materials that can be left in the ground.  Using AGC significantly reduces the number of subsurface objects requiring intrusive investigation and reduces remediation completion costs. The DoD anticipates AGC will significantly reduce their environmental liability by millions of dollars and will accelerate the cleanup of defense sites.

AGC has been successfully used at sites across the U.S. for the DoD Environmental Securities Technology Certification Program, the U.S. Army Corps of Engineers and the U.S. Navy, including a contract with the U.S. Army Engineering and Support Center Huntsville to locate and safely remove World War II-era military ordnance from residential and recreational areas at Fort Pierce, Florida.

Aracadis Advanced Geophysical Classification Equipment

 

Canadian Brownie Award Nominations Deadline – September 15th

There is still time to nominate for the Canadian Brownie Awards!

The Brownie Awards recognize the builders, innovators and visionaries who are dedicated to the rehabilitation of brownfield sites that were once contaminated, under-utilized and undeveloped into productive residential and commercial projects that contribute to the growth of healthy communities across Canada.

The Brownies are open to everyone in the Canadian brownfield community.

The Brownies are designed to recognize excellence in projects or programs. Any organization involved in brownfield redevelopment in Canada can submit a nomination – municipalities, utilities, developers, consultants, property owners, non-governmental organizations, regulators, etc. – either on behalf of someone else or for its own work.

If you have completed, or are working on, a project that fits in one of the award categories below, please consider submitting a nomination. NOMINATIONS CLOSE FRIDAY, SEPTEMBER 15.

The Brownie Awards will be presented on
Wednesday, November 22, 2017
at a gala celebration at the Delta Toronto Hotel.
Reception: 5 p.m.  •  Dinner: 6 p.m.

For award category sponsorships, corporate tables or single tickets, please contact:
Elena Langlois • elena@actualmedia.ca • (416) 444-5842 ext. 151

Labrador Dump to be converted to Wetland

As reported by the CBC, The Canadian Department of National Defence is cleaning up an old dump in Happy Valley-Goose Bay, Newfoundland and Labrador.

Crews are working to clean up the old dump used by the 5 Wing Goose Bay base, and will be creating an engineered wetland to filter out potential contaminants in the soil.

Happy Valley-Goose Bay is a town of 8,000 people in the located in in the central part of Labrador on the coast of Lake Melville and the Grand River, near the North Atlantic Ocean.

This kind of wetland differs from others that focus on preserving at-risk species of ducks and waterfowl, says Lori Whalen, contaminated sites manager with the Department of National Defence.

“An engineered wetland is a passive designed wetland that is meant to be part of a remedial system, so it’s actually acting like a filter,” she said.

Lori Whalen, contaminated sites manager with the Department of National Defence (Photo Credit: Gary Moore/CBC)

The site was used as the main dump for 5 Wing Goose Bay, and Whalen said the pollution is mainly a legacy of the American Air Force when they used the base in the mid- to late 1900s.

At that time, Whalen said, there were not environmental regulations in place to ensure things were disposed of properly.

“We have material from domestic waste, construction debris, barrels that would have contained fuels and lubricating materials, even vehicles … that were just thrown over the bank,” Whalen said.

The Goose Bay Remediation Program has a $13.5-million cost and is part of a larger federal government program to clean up contaminated sites around Canada.

A majority of the work will be done this summer, National Defence said, and while it continues, people are being asked to steer clear of the site.

Whalen said this project should help ease concerns in the community over the years that pollution from the base could be affecting the water.

“The extensive sampling programs that we’ve done over the past 20 years points out that drinking water is safe for consumption,” Whalen said.

“The surface water that’s flowing through the culverts off site is below the appropriate criteria and we haven’t seen any issues in the ground water as well.”

Aerial view of the Goose Bay remediation project

Meanwhile, people in the community like John Hickey, who has been pushing for the base’s cleanup since he was mayor in the early 2000s, said there’s plenty more to be done.

“When it comes to the environment, we’ll never be satisfied,” said Hickey, who was also an MHA for the area.

“We have to ensure now that, while this work is being done, other work that needs to be done is identified and is cleaned up.”

But Hickey said he is happy to see this site getting the attention it deserves.

“This is going to be, I think, a very nice place when it’s finished and completed,” Hickey said.

“I think you’ll see a lot of waterfowl and things moving in to the area, which is all good for our community.”

BC Ministry of the Environment – New Draft Analytical Methods Posted for Review

New draft analytical methods listed below, were developed by the B.C. Environment Ministry with the assistance of the British Columbia Environmental Laboratory Technical Advisory Committee (BCELTAC).  They were recently posted for review and comment to the ministry’s Sampling, Methods & Quality Assurance webpage, BC Environmental Laboratory Manual, “Methods Posted for Review”.

  1. Liquid-Solid Partitioning (Leachability) of VOCs – Prescriptive
  2. Asbestos in Water by Transmission Electron Microscopy (TEM) – Prescriptive
  3. Perfluorinated Alkyl Acids (PFAA) in Soils by LC/MS/MS – PBM
  4. Perfluorinated Alkyl Acids (PFAA) in Water by LC/MS/MS – PBM

The majority of these new draft methods have been developed in support of the Stage 10 (Omnibus) amendment to the B.C. Contaminated Sites Regulation.

The B.C. Ministry of the Environment is asking for comments on the new methods by September 5, 2017.  Comments can be sent to Joyce Austin, Senior Provincial Laboratory Specialist, Knowledge Management Branch at Joyce.Austin@gov.bc.ca.

Technical questions regarding the proposed new method should be directed to: Mark Hugdahl (BCELTAC Chair) at Mark.Hugdahl@alsglobal.com.