Transport Canada amends TDGR – Marine Requirements and other miscellaneous changes

As reported by the Compliance Center, the December 13, 2017 edition of the Canada Gazette II contains the expected rewrite of Part 11 “Marine” requirements of the Transportation of Dangerous Goods Regulations (TDGR). In addition, there are related changes in other parts, as well as some unrelated miscellaneous changes in other areas.

Marine Amendment

The most wide-reaching change, although perhaps of relatively minor significance to the general regulated community, is the replacement of the term “ship” with “vessel”. This, among other changes, is to update the TDGR to current Canada Shipping Act (CSA, and related regulations) terminology. Many aspects of Part 11 related to the CSA had not been updated since 2008.

Note: Interestingly, the referenced definition of “vessel” in the CSA includes all “means of propulsion”:
http://laws-lois.justice.gc.ca/eng/acts/C-10.15/page-1.html#h-2

This differs from the TDGR definitions for road and rail vehicles which expressly exclude “muscle power” as a means of propulsion. 

Other definition changes include elimination of the reference to “short run ferry”, previously defined in TDGR Part 1.3 as operating between points “not more than 3 km apart”. TDGR 1.30 special case exemption now refers only to “Ferry,” but describes within the exemption that it’s applicable to operating between two points “not more than 5 km apart.

The definition of an “inland voyage” now cites the CSA Cargo, Fumigation and Tackle regulations (CFTR):
http://laws-lois.justice.gc.ca/eng/regulations/SOR-2007-128/index.html

; which, in turn, defer to the Vessel Certificate regulations (VCR):
http://laws-lois.justice.gc.ca/eng/regulations/SOR-2007-31/

Other aspects of dangerous goods vessel shipment are also found in these CSA regulations.

One more definition that’s been changed to a citation is the one for a roll-on/roll-off (ro-ro) ship. The vessel is still referred to as a “ship”- since the definition cites the IMDG Code. For those without ready access to the IMDG, the current Ed. 38-16 version reads, in Chapter 1.2 (s. 1.2.1 Definitions):

“…Ro-ro ship (roll-on/roll-off ship) means a ship which has one or more decks, either closed or open, not normally subdivided in any way and generally running the entire length of the ship, carrying goods which are normally loaded and unloaded in a horizontal direction.”

Additional requirements now apply also to ferries regarding passenger vessel limitations, location of shipping documents and incident reporting.

Vessel Restrictions & Exemptions

Schedule 1 Column 8 restrictions regarding carrying DG on passenger vessels is further clarified by TDGR Part 1 sections 1.6 and new special case 1.10.

Gasoline and propane now have a Part 1 special case exemption 1.30.1 to facilitate fuel deliveries and reduce the need for equivalency certificates.

UN3156 is also now permitted in 25 L quantities on passenger vessels.

Mercurous chloride (calomel) is no longer included in the s. 1.46 special case exemption list.

The requirement to mark the flash point on packages with Class 3 contents (s. 4.13) has been removed as it was never an IMDG requirement.

IMDG v. TDGR

Additionally, the often-confusing reference to “Home Trade Voyages” in determining the applicability of the IMDG Code, versus the “standard” TDGR extension of ground requirements, has been replaced by a direct, simplified explanation. Voyages where the vessel (oops – I almost said ship!) is within 120 nautical miles – i.e. 222 km- from shore are considered non-IMDG unless the vessel travels south of the ports of New York or Portland, Oregon, or to another foreign destination. Thus, vessel transport of dangerous goods to St. Pierre and Miquelon (territories of France), despite being within 20 km or so from Newfoundland, require compliance with IMDG.

Inland (mostly “fresh water”) voyages between Canada and other countries – e.g. Great Lakes or rivers to the US – remain excluded from mandatory IMDG compliance. Conversely, vessels registered in Canada but transporting between two foreign destinations, remain under IMDG requirements.

Other Amendments

Changes not directly related to Part 11 topics include correction of some typographical and miscellaneous errors in the TDGR or website html information.

Examples include re-entering the PG II information for UN1790, UN2734 on the website; editing SP 159 to clarify that the new Class 9 Lithium Battery label illustration is only used for labels and not used for placarding purposes – standard Class 9 placards are used (as is the case in air, ocean and US 49 CFR); and updating ICAO references in Part 12.

The Table in 5.16 has been repealed due to the updates in the referenced CSA standards.

Transition:

The changes are effective as of the December 13th CG II publication date and have a transition period of 6 months for mandatory implementation. The CGII document which includes a discussion of the changes in the RIAS (Regulatory Impact Analysis Statement) is found at:

http://canadagazette.gc.ca/rp-pr/p2/2017/2017-12-13/html/sor-dors253-eng.html

 

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

Spill Response Questioned for Pipeline underneath the Great Lakes

As reported in the Maritime Executive, Canadian pipeline operator Enbridge is engaged in a debate with environmental groups over the operation of an underwater pipeline that runs beneath the Straits of Mackinac, the narrow waterway between upper and lower Michigan.

Last month, Enbridge reached an agreement with Michigan state government that allows it to continue operating the line, except during weather conditions that would interfere with a spill response.  The agreement defined poor weather as wave heights over eight feet.  In return, Enbridge promised to study the possibility of replacing the line – which sits above the surface of the lakebed – with a pipe buried in a tunnel.  The firm said that it would also look at measures to reduce the risk of damage to the current pipeline from boat anchors.

Red lines show where Line 5 crosses Straits of Mackinac (Source: Enbridge)

Recently, Michigan’s Pipeline Safety Advisory Board called for the Governor of Michigan to shut down the line until repairs are made to areas where the exterior protective coating is missing.  It also requested that State Government’s deal with Enbridge be revised to allow pipeline operations only when waves are three feet high or under.

Local environmental advocates contend that these measures do not go far enough.  These ativists say that the board and the governor did not take into account a prominent feature of wintertime navigation on the Straits of Mackinac: ice.  The Coast Guard is the only entity in the region with icebreakers, and its vessels are usually busy ensuring the safety of navigation during the wintertime.  In the event of a spill, the service says, the nearest icebreaker could be up to two days away.

In congressional testimony last month, Coast Guard Commandant Adm. Paul Zukunft said bluntly that his service is not prepared to handle the worst-case scenario for pipelines like Line Five. “I will go on the record and say that the Coast Guard is not Semper Paratus [always ready] for a major pipeline oil spill in the Lakes,” he said.

Enbridge says that Line Five’s dual 20-inch pipelines remain in excellent condition and have never experienced a leak in their 60 years of operation. The line is used to transport natural gas liquids, light crude oil and light synthetic crude, and it supplies most of Michigan’s propane.

“We’re committed to the letter and spirit of this important agreement [with the governor], and to the options outlined in the agreement that move us to a longer-term set of decisions about the future of Line Five,” said Enbridge spokesman Guy Jarvis, speaking to Michigan Public Radio.

 

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.

 

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.

Innovations in Pipeline Design: Leak-proof technology

By Dema Mamon, M.Sc.Pl, BES and John Nicholson, M.Sc., P.Eng.

In Canada, getting approval to construct an oil pipeline has become increasingly difficult.  Every oil pipeline incident that involves a leak and subsequent clean-up is widely covered in the media,  providing fuel for pipeline opponents that call an end to the construction of new pipelines.

Abacus Data Inc., an Ottawa-based research firm, has been tracking public opinion on the construction of new pipeline capacity and has found some interesting trends.  Since 2014, polling has shown that the negative view of building new oil pipelines has remained steady at 21 to 22% range.  However, there was a drop in the positive attitude amongst Canadians toward building new pipelines – from 58% in 2014 to 44% in 2017.  Over that three year span, a good proportion of Canadians who once viewed building new pipeline capacity with a positive attitude have shifted to a neutral view.  The neutral view on oil pipelines have grown from 20% in 2014 to 36% in 2017.

There can be many theories to explain the three year shift in public opinion on new oil pipelines.  One plausible theory is that oil spills from pipelines typically make headline news, thus leaving an impression in the minds of Canadians the perhaps pipelines are not as safe as the industry states.  Oil leaks from pipelines damage the environment, are costly to clean-up, and fuel public opinion that pipelines are not safe.

One way to eliminate the perception that building new oil pipelines is bad for the environment and shift public opinion in favour of such projects is to build pipelines that don’t leak.  However, is it even possible to build leak-proof pipelines?

Are Double-Walled Pipelines the Answer?

One logical idea for building leak-proof pipelines is for them to be double-walled.  The outer wall would serve as protection from external damage.  The technology does exist to construct double-walled pipelines and they are used in certain circumstances such as when there is a large temperature difference between the liquid in the pipe and the surrounding environment.

Double-walled pipelines are not considered the cure-all by some in the industry.  Those resistant to the use of double-walled pipelines note that in some instances, it may be more cost effective to protect pipelines from the potential of external damage by burying them or placing slabs over them in higher risk areas.  Furthermore, it can be more difficult to monitor a double-walled pipeline and an outer pipe interferes with the maintenance of the inner pipe.

At the University of Calgary, researchers believe their two-walled pipeline design and monitoring system is the solution to preventing spills.  Although double-walled pipelines have been around since the 1980’s, Thiago Valentin de Oliveira, an electrical and computer-engineering master’s student, and Martin Mintchev, an engineering professor, say that their design is superior.

The U of Calgary researchers designed and constructed their prototype to consist of a typical steel inner layer with either a steel or plastic outer layer.  There is an air gap between inner and outer pipeline contains the oil that leaks from the inner pipeline leak.  The real innovation developed by the U of Calgary is the segmentation of the inter-pipe space and the inclusion of a linear wireless network linking the segments.  With the segmentation, a leak of oil from the inner pipe enters the air gap between the two pipes and is contained in a section of pipe.  Wireless pressure sensors between the two walled layers detect the pressure build up and send an alert to the pipeline control staff.

 

If commercially implemented, the U of Calgary system would allow pipeline operators with the means of quickly shutting down the pipeline when a leak was detected into the outer pipeline and crews could be dispatched to make repairs.  The oil that leaked from the inner pipe would be contained in the air gap between the two pipes and be confined to one section of the pipeline.

The U of Calgary researchers estimate that their design would result in an additional 25% in the capital cost of building pipelines.  They believe this cost could be reduced if the outer pipeline material was composite materials or plastic.

Is Advanced Monitoring the Solution?

Also in Alberta, a Calgary-based firm, HiFi Engineering, recently announced that it has developed an innovative pipeline leak detection system.  Dubbed High-Fidelity Dynamic Sensing (HDS™), the monitoring system can spot the exact location of a leak in a pipeline within seconds of it occurring.  The system continuously monitors temperature, sonic and ultrasonic acoustics, and vibration and strain.  Any anomaly in the measurements results in an alert being sent to the pipeline company control room.

Hifi Engineering’s High Fidelity Dynamic Sensing (HDS) technology is being called the ‘ears of pipeline monitoring.’

The system works utilizing fiber optic cables that run the length of the pipeline.  A laser beam is sent down the length of the optic cable and sends signals back that provide a multitude of information to the pipeline control room.

TransCanada Pipelines Corporation has already installed the HiFi HDS™ monitoring system in sections of the Keystone XL oil pipeline that runs from Canada to the U.S.  Also, Enbridge employs the technology in its new northern Alberta pipeline.

_____________________

About the Authors

Dema is a graduate of York University’s Bachelor in Environmental Studies program (2008) and the University of Toronto’s Masters of Science in Planning Programme (2010). She is currently pursuing her Canada Green Building Council’s Leadership in Energy and Environmental Design’s Green Associate certification. Her research interests include environmental conservation, green infrastructure, and sustainability. She can be reached at dema.mamon@gmail.com.

John Nicholson is the editor of Hazmat Management Magazine.  He has over 25 years of experience in the environmental and cleantech sectors.  He is a registered professional engineer in the Province of Ontario and has a M.Sc. in environmental engineering.  His professional experience includes time at a large engineering consulting firm, a major Canadian law firm, and the Ontario Ministry of the Environment and Climate Change.

Groundwater and PFAs: State of Knowledge and Practice

National Ground Water Association (NGWA) Press, Westerville, OH. ISBN: 1-56034-037-1, 114 pp, 2017

Perfluoroalkyl and polyfluoroalkyl substances (PFASs) are a group of chemicals that are emerging contaminants of concern due to their persistence in the environment, bioaccumulative potential, and toxicity.

Chemical structure of perfluorooctanoic acid

PFASs have previously been used in a range of industrial processes, consumer products (such as 3M’s Scotchgard fabric and upholstery protector), aviation hydraulic fluid and fire-fighting foam. The two main PFASs are perfluorooctane sulfonate (PFOS) and perfluorooctanoic acid (PFOA). The unique properties of PFASs that make them useful in products and industrial processes also mean that they are persistent in the environment and highly mobile. They are therefore challenging to manage and remediate once released into the environment. They are potentially bioaccumulative and potential health effects may include developmental, reproductive and systemic effects and possibly cancer. PFOS has been listed as a persistent organic pollutant (POP) in Annex B of the Stockholm Convention since 2010. The use of PFOS in products has been phased out in Australia since the early 2000’s.

Beginning in October 2016, 37 scientists and engineers voluntarily collaborated through the National Ground Water Association to develop information on per- and polyfluoroalkyl substances (PFASs) for the broader groundwater community. Using a consensus-driven process that included a public comment period, their efforts were completed toward the end of 2017.  NGWA published this PFAS document to assist members and other groundwater professionals who may be tasked with investigating the transport pathways and extent of PFASs in groundwater and surface water, assessing potential risks to receptors, or designing and constructing engineering controls to manage subsurface PFAS contamination.  The main purpose of this document is to summarize the current state of knowledge and practice regarding PFAS fate, transport, remediation, and treatment, recognizing that knowledge in this field continues to advance. This document also summarizes current technologies, methods, and field procedures being used to characterize sites and test remediation and treatment technologies. Temporarily available at http://www.ngwa.org/Professional-Resources/Pages/Groundwater-and-PFAS.aspx

PFAs can be used in fire fighting foams

 

Canadian Brownfield Award Winners

Sixteen projects, representing municipalities from across Canada, were named as finalists for six main categories at the Brownie Awards sponsored by The Canadian Brownfields Network (CBN) and Actual Media Inc.  The Brownie Awards recognize the rehabilitation efforts of brownfield sites in Canada, which are former industrial sites that are vacant or underused.

The six Brownie Awards categories for which nominations are accepted are: REPROGRAM, REMEDIATE, REINVEST, REBUILD, RENEW and REACH OUT.  There are three other awards that acknowledge the best small-scale project, best large-scale project, and best overall project for 2017; all projects are eligible for these three awards.  In addition, we present the “Brownfielder” of the Year.

The 2017 Brownie Award winners were announced during a gala dinner at the Delta Hotels Toronto on Wednesday, November 22nd, 2017.

The winners (in bold) and finalists for the 2017 Brownie Award Finalists are:

Category 1:  REPROGRAM – Legislation, Policy and Program Initiatives

  • Contaminated Sites Approved Professionals Society, British Columbia
  • Excess Soils Bylaw Tool, Ontario
  • Toronto Portlands Due Diligence, Ontario

Category 2:  REMEDIATE – Sustainable Remediation and Technological Innovation

  • New Calumet Mine, Ile-du-Grand-Calumet, Québec
  • BC Hydro Rock Bay Project, Victoria, British Columbia
  • Triovest Block M, Hamilton, Ontario

Category 3:  REINVEST – Financing, Risk Management and Partnerships

  • Port Credit West, Mississauga, Ontario
  • SunMine, Kimberley, British Columbia

Category 4:  REBUILD – Redevelopment at the Local, Site Scale

  • New Eva’s Phoenix, Toronto, Ontario
  • Broadview Hotel, Toronto, Ontario

Category 5:  RENEW – Redevelopment at the Community Scale

  • 4th Avenue Flyover, Calgary, Alberta
  • The askiy project, Saskatoon, Saskatchewan
  • East Bayfront/Bayside Development, Toronto, Ontario
  • East Village Junction, Calgary, Alberta

Category 6:  REACH OUT – Communication, Marketing and Public Engagement

  • Inspiration Port Credit, Mississauga, Ontario
  • North Pacific Cannery Conservation Master Plan, Municipality of Port Edward, British Columbia

Category 7:  Brownfielder of the Year

  • Lisa Fairweather, Alberta Environment and Parks, Edmonton, Alberta

Category 8:  Best Small Project:  the askiy project, Saskatoon, Saskatchewan

Category 9:  Best Large Project:  SunMine, Kimberley, British Columbia

Category 10:  Best Overall Project:  Toronto Portlands Due Diligence

The City of Mississauga received a 2017 Brownie Award for Inspiration Port Credit for Communication, Marketing and Public Engagement.

With Mississauga having one of the most significant brownfield sites on the north shore of Lake Ontario, it has been the focus of several community engagements. Located at 70 Mississauga Rd. S., the brownfield site is 72 acres (29 hectares) and 600 metres of Lake Ontario shoreline that neighbours the City’s historic urban waterfront village of Port Credit.

“It is a great honour for the City of Mississauga to receive this national award for our achievement in planning for and contributing to the growth of healthy communities and our remarkable waterfront,” said Mayor Bonnie Crombie. “Congratulations to the team for their hard work and dedication while ensuring the needs and interests of the community are considered.”

The City-led community engagements explored future possibilities for the site with a Master Planning Framework that will help guide redevelopment. Working with a consultant team, the City involved residents and stakeholders in a variety of interactive sessions.

“The Brownie Awards recognize the best in brownfield site restoration projects in Canada,” added Ed Sajecki, Commissioner, Planning and Building. “We are excited to receive this award and be recognized by industry experts for our communication and engagement efforts on this waterfront project. The result is a vision of the site’s future as a model of sustainability.”

Some of the Award Winners at the 2017 Brownie Awards Gala