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Unsafe Levels of Contamination found in Edmonton Neighbourhood

As reported in the Edmonton Journal, unsafe levels of hazardous chemicals were found in unoccupied land near the property that was previously occupied by a wood treatment plant site.  However, the analytical results from soil samples taken from residential properties in the vicinity of the plant found no hazardous chemicals in the top level of soil.

An Alberta Health official recently stated that soil testing has been completed in the Verte-Homesteader community — located near the former Domtar wood treatment facility.

Workers drill core samples in a contaminated parcel of land at the old wood treatment plant site in Edmonton, June 28, 2018. (Photo Credit: Kaiser/Postmedia)

“The results show no issues in the surface soil of any of the homeowners’ properties, but there were four areas of unoccupied land in the southeast corner of the neighbourhood where chemicals were found above health guidelines and that area is now being fenced off,” spokesman Cam Traynor said in an email.

A map showed two tests in the soon-to-be-fenced area exceeded human health guidelines for dioxins and furans.

In the spring, about 140 homeowners near the site of the former wood treatment plant at 44 Street and Yellowhead Trail were warned soil and groundwater in the area was contaminated with a list of potentially cancer-causing substances.

Officials said no contaminants were known to be in residential areas.

From 1924 to 1987, the land was the site of a plant in which toxic chemicals were used to treat railroad ties, poles, posts and lumber. Parts of the property are now a housing development.

The site’s current owners and developers, 1510837 Alberta Ltd. and Cherokee Canada Inc., were ordered to build a fence around the contaminated land to reduce potential health risks earlier this year.  Cherokee Canada did not immediately respond to a request from the Edmonton Journal.

Alberta Environment and Parks also directed the companies, including former owner Domtar, to take environmental samples and create plans to remove contaminants and conduct human health risk assessments. The orders also affected a greenbelt southeast of the site currently owned by the City of Edmonton.

The recently completed testing covered the top one-third of a metre of soil. Traynor said deeper soil testing in the broader area is ongoing. That work, along with a human health risk assessment, is expected to be completed this fall.

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

by Marc J. GoldsteinBeveridge & Diamond PC

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

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

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

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

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

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

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

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

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

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

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

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

About the Author

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

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

Successful Demonstration of Enhanced Soil Vapour Extraction

Researchers at Integrated Science & Technologies Inc. recently presented the findings from a field demonstration project that showed that enhanced soil vapour extraction significantly reduced the concentration of 1,4-Dioxane in soil.

1,4-Dioxane is often called simple dioxane because the other dioxane isomers (1,2- and 1,3-) are rarely encountered.  1,4-Dioxane is a synthetic industrial chemical that is completely miscible in water.  It is used as a solvent for a variety of applications.  1,4-Dioxane is a likely contaminant at many sites contaminated with certain chlorinated solvents (particularly 1,1,1-trichloroethane [TCA]) because of its widespread use as a stabilizer for chlorinated solvents

With respect to remediation, some 1,4-dioxane can be removed from pore water found in the vadose zone (unsaturated zone) in the subsurface by conventional soil vapor extraction (SVE), remediation is typically inefficient.  SVE extracts vapors from the soil above the water table by applying a vacuum to pull the vapors out.

SVE is inefficient at removing 1,4-dioxane from pore water in the subsurface vadose zone.  1,4-dioxane has a low Henry’s Law constant at ambient temperature.  This means that there is a low concentration of dissolved 1,4-dioxane gas proportional to its partial pressure in the gas phase.

To enhance the extraction for 1,4-dioxane in the subsurface, the researchers used heated air injection and more focused SVE extraction (XSVE).  The pilot teste was conducted at the former McClellan Air Force Base located in the North Highlands area of Sacramento County, 7 miles (11 km) northeast of Sacramento, California.

Soil Vapor Extraction unit at former McClellan Air Force Base, Calif. (U.S. Air Force Photo by Scott Johnston)

The pilot test consisted for four peripheral heated air injection wells of the XSVE system surrounded a 6.1 m x 6.1 m x 9.1 m deep treatment zone with a central vapor extraction well.

Soil temperature measurements were taken during the pilot test.  Soil temperatures reached as high as ~90°C near the injection wells after 14 months of operation and flushing of the treatment zone with ~20,000 pore volumes of injected air.  Results post treatment showed dioxane reductions of ~94% and ~45% decrease in soil moisture.  See additional information in slides at http://www.contaminantssummit.com/images/presentations/3_RobHinchee.pdf .

The Supreme Court of Canada to Decide who pays to Clean-up Toxic Industrial Sites

The Supreme Court of Canada is hearing a controversial case this week concerning who is responsible for cleaning up toxic industrial sites when a company goes bankrupt.

At stake is potentially billions of dollars in environmental clean-up costs. And entities ranging from governments to Canada’s big banks to oil and gas companies and farmers are all looking to ensure that they don’t end up on the hook for cleaning up toxic sites – many of them in remote rural and northern areas of the country.

The case itself focuses on a small Alberta oil company, Redwater Energy, which entered creditor protection in 2015. Only a few of the company’s assets had value, so the bank wanted to sell those wells to recover some of its debt and abandon the rest of the oil and gas sites. The question became whether Redwater’s assets should help pay its debts or be used to pay for the cleanup cost of its worthless oil and gas wells?

The case will address a fundamental public policy dilemma about what happens when a resource company bites the dust. For instance, every mine in the country has environmental regulations attached to its licence about reclaiming the site when the mine closes.

But if the company goes belly up, does the bank take over those end-of-life responsibilities? If not, is the site abandoned or do taxpayers pick up the hefty tab?

The question for the Government of Alberta and area farmers that had Redwater oil and gas wells on their land became whether Redwater’s assets should help pay its debts or be used to pay for the clean-up cost of its worthless and contaminated work sites?

The Supreme Court case addresses a fundamental public policy dilemma about what happens when a resource company fails. Every mine operation in Canada has environmental regulations attached to its licence about reclaiming the site when the mine closes. But if the company goes belly up, does the bank take over those end-of-life responsibilities? If not, is the site abandoned or do taxpayers pick up the hefty tab when the provincial government pays to clean it up? And how much cost should farmers and other landowners bare for clean-up and reclamation costs?

“We need to be able to ensure the people of Alberta, collectively, are protected,” Alberta Premier Rachel Notley told reporters earlier this week.

The Alberta Energy Regulator (AER) says there are approximately 1,800 abandoned oil and gas sites in that province alone and pegs the cost to remediate them at $8.6 billion.

If the Supreme Court sides with previous court rulings, the AER will likely respond by increasing the orphan levy imposed on well licensees. However, a portion of the expense will inevitably fall to the provincial government, and thus to taxpayers. But if the Supreme Court decides to reverse the decision, it will create hesitancy among lenders. Financial institutions will likely respond by tightening their purse strings as they begin pricing the risk into new loans made out to the industry.

This case has consequences that reach far beyond one small energy company. The Redwater case could act as precedent in other provinces. If the previous rulings are upheld, it will send a clear signal to natural resource companies’ creditors that bankrolling fossil fuel infrastructure, mining projects, and pulp and paper mills without accounting for clean-up costs is not only acceptable, but encouraged in a legal climate where the public—not the polluter—pays.

“The Redwater decision impacts Alberta’s constitutional right to manage its own resources,” said AER spokeswoman Cara Tobin, adding that “By rejecting the polluter pays principle that underlies virtually all of Alberta’s oil and gas legislation, it’s shifted liability from the polluter to innocent third parties and the public.”

The provincial governments of Ontario, which currently has about 2,400 oil and natural gas producing wells, along with British Columbia and Saskatchewan have also joined the Supreme Court Case, which will be heard in Ottawa this week. The Canadian Association of Petroleum Producers is also an intervener in the legal case.

Long Lake Gold Mine remediation project hits stumbling block

As reported by the CBC, the Long Lake Gold Mine Remediation Project near Sudbury, Ontario will not be getting started until 2019.

The Province on Ontario first announced its commitment to remediate the abandoned gold mine back in 2013.  The lake, located near a popular recreation area, had high levels of arsenic.

Long Lake Gold mine operated intermittently from 1908 to 1937 and produced approximately 200,000 tonnes of tailings.  The tailings were discharged directly to the environment without containment.  The tailings have since eroded into Luke Creek and Long Lake.  The tailings are acid generating and leach acidic water that is high in metal contamination, specifically arsenic.  The Ontario Ministry of Northern Development and Mines (MNMD) sampling in the south end of Long Lake identified arsenic contamination above the Ontario Drinking Water Standard.

Long Lake (Photo Credit: Markus Schwabe/CBC)

The MNDM initiated a review of remediation alternatives to clean up the tailings area and has selected a preferred method of relocating all fugitive tailings to a new containment facility that will be constructed on site.  The objective of remediation efforts is to reduce the arsenic concentration in Long Lake below the provincial drinking water limit, such that water quality in the south bay of Long Lake will recover to background conditions.

The latest delay in the remediation project is the result of the MNDM addressing some concerns of nearby residents who are concerned that the clean-up will result in increased truck traffic on the existing road to the lake.

The chair of the Long Lake Stewardship group says residents are aware of the notion “short term pain for long term gain” when it comes to the completion of the remediation project.

“But I think the concern I heard was the number of trucks that would be travelling on the road, day-in and day-out through the restoration phase,” Scott Darling said.

“Primarily what I heard in terms of the concerns were the traffic, the increased traffic that’s going to occur over the two-year period on Long Lake Road and Tilton Lake Road and South End Road — the wavy trail.”

Roads in the area will see 50 to 60 trucks a day hauling out contaminated material and bringing in clean fill.

The remediation project is expected to run between two and three years.

Darling says it could be closer to 2019 before the project gets started.

More information on the proposed clean-up of the Long Lake can be found in the MNMD environmental assessment document.

 

Phytoforensics: Using Trees to Find Contamination

The United States Geological Survey (USGS) recently prepared on Fact Sheet on how phytoforensics can be used to screen for contamination prior to traditional sampling methods.  Phytoforensics is a low cost, rapid sampling method that collects tree-core samples from the tree trunk to map the extent of contamination below the ground.

By utilizing phytoforensics, environmental professionals can save the cost and time associated with traditional methods of subsurface investigation – drilling boreholes, installing monitoring wells.

Scientists at the Missouri Water Science Center were among the first to use phytoforensics for contamination screening prior to employing traditional sampling methods, to guide additional sampling, and to show the large cost savings associated with tree sampling compared to traditional methods, to guide additional sampling, and to show the large cost savings associated with tree sampling compared to traditional methods.

The advantages of phytoforensics include the following: quickly screen sites for subsurface contamination; cost- and time-effective approach that uses pre-existing trees; non-invasive method (no drill rigs or heavy equipment required); and representative of large subsurface volumes.

Phytoforensics testing involves the collection of a tree-core sample with necessary sampling equipment including an incremental borer, forceps, a sample vial, and gloves.  Samples are collected at about 3 feet (1 metre) above ground surface, placed into vials for subsequent laboratory analysis.

Similar to phytoforensics, phytoremediation is the field of looking to use plants to mitigate environmental pollutants and human exposures. As plants are efficient, key components in local and global water, carbon and energy cycles, they can influence pollutant transport and availability in many different ways.

Dr. Joel Burken, Missouri S&T professor of civil and environmental engineering, tests a tree in Rolla’s Schuman Park with then high school senior Amanda Holmes and S&T graduate student Matt Limmer. Photo by B.A. Rupert

Potential $9 million incentive to Developer for Clean-up and Develop Brownfield Site in Ottawa

As reported by the CBC, Ottawa city staff are proposing to offer a developer more than $9 million in incentives to build a multi-use building with three residential towers across from the future Bayview Station light rail station, approximately 2 kilometers (one mile) west of Parliament Hill.

TIP Albert GP Inc. owns the property at 900 Albert St. at the corner of Albert and City Centre Avenue, and is proposing a building that would have 1,632 residential units as well as retail and office space.

The site, a one-time rail yard and later a storage yard and snow disposal site, is eligible for the city’s brownfields rehabilitation grant program.  Under the program, developers can apply to have municipal development charges and soil remediation costs reduced, up to about half the expected cost of the cleanup.

City staff are recommending a grant not exceeding $8,255,397 over a maximum of 10 years, according to a report tabled in advance of next week’s finance and economic development committee meeting.

The property is also along the path of city sanitary and storm sewers, and for the development to go forward, the builder will have to move that infrastructure to an adjacent city property.

While the developer would pay for that work to be done, the city would have to release their eight easements on the property.

While normally the city would get market value from a developer for giving up those easements — an estimated $920,000 — city staff are proposing waiving that policy to make the project happen.

Somerset Ward Coun. Catherine McKenney, in a comment appended to the report, wrote that while she supported the brownfield grant, she couldn’t support waiving the encroachment fee, calling it “premature.”

“As this application is still under negotiation I believe it would be more prudent to measure the total monetary value to be waived against measurable features of the proposed development in its final form as ultimately presented to committee and council,” she wrote.

McKenney said such features would include affordable housing and contributions to active transportation networks like cycling and walking paths.

The development is not the only project being considered for a grant at next week’s committee meeting.

City staff are also proposing a grant of up to $2,320,420 over a maximum of 10 years to Colonnade Development Inc. to build a hotel near the Department of National Defence headquarters.

That grant, for the property at 300 Moodie Dr., would come from the Bells Corners Community Improvement Plan, which aims to encourage development in the area.

It would provide what would amount to a 75 per cent property tax break after the property is developed. If the development doesn’t happen, no grant would be paid.

Colonnade is proposing a restaurant with a drive-thru and a six-storey, 124-room hotel. Right now, the site is home to a Salvation Army thrift store, an automotive repair garage and auto parts distributor.

The finance and economic development committee will consider both proposals.

One Proposal for Development of 900 Albert Street, Ottawa

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