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New Year, New Environmental Rules: Alberta’s Revised Remediation Rules Take Effect in 2019

by Dufferin Harper and Lindsey Mosher, Blake, Cassels & Graydon LLP

On January 1, 2019, significant amendments to Alberta’s Remediation Certificate Regulation came into force. These include:

  • Renaming the regulation the Remediation Regulation
  • Creating a site-based remediation certificate
  • Creating a new reporting requirement for impacts
  • Defaulting to the application of Tier 1 rather than Tier 2 Guidelines
  • Issuing a Tier 2 compliance letter
  • Establishing a new mandatory remedial measures timeline

As discussed in more detail below, many of the amendments address long-standing concerns within the existing remediation certification process. However, in several instances they also introduce new areas of regulatory uncertainty.

SITE-BASED REMEDIATION CERTIFICATE

One of the primary concerns with the existing regime is that it is too limited in scope. Although it provides for remediation certificates to be issued for specific areas of land impacted by a contaminant release, it does not enable a property owner to obtain regulatory signoff for a complete site as opposed to only an area of a site.

In response to that concern, the Remediation Regulation introduces a new type of remediation certificate applicable to a complete site, which is referred to as a “site-based remediation certificate”. A site-based remediation certificate confirms that all contaminants and areas of potential concern both on and off site have been addressed and necessarily involves the submission of more extensive documentation than what is required for a limited remediation certificate.  To assist in the application process, the Alberta government is expected to develop and release a new application form and guide for a site-based remediation certificate application prior to January 2019.

NEW REPORTING REQUIREMENT

A person responsible for a release currently has a statutory obligation to report the release. In addition to this existing obligation, the Remediation Regulation imposes an additional obligation to report any new information about the “impact” of a released substance. Neither of the terms “new information”, nor “impact”, are defined in the Remediation Regulation, and it remains to be seen what additional guidance, if any, will be provided to clarify the scope of the additional obligation. Until that occurs, or until the courts clarify the scope of the obligation, uncertainty will likely prevail.

APPLICATION OF TIER 1 VERSUS TIER 2 GUIDELINES

Under the current Remediation Certificate Regulation, a person applying for a remediation certificate may elect to apply either generic Tier 1 Soil and Groundwater Remediation Guidelines (Tier 1 Guidelines) or site -specific Tier 2 Soil and Groundwater Remediation Guidelines (Tier 2 Guidelines).

The Remediation Regulation removes this discretionary election. Instead, the Tier 1 Guidelines will always be the default remediation standard. Regulatory approval will be required to remediate to Tier 2 Guidelines.

TIER 2 COMPLIANCE LETTER

Another major concern (and criticism) of the existing regime involves the situation where contaminant levels exceed Tier 1 Guidelines but not Tier 2 Guidelines. In such a situation, if the Tier 2 Guidelines are applied, the affected area will not require remediation. Notwithstanding the levels exceed Tier 1 Guidelines and would otherwise require remediation but for the application of the Tier 2 Guidelines, the regulator’s position is that, since there has been no “remediation”, it is unable to issue a “remediation certificate”.  The Remediation Regulation addresses this situation, albeit indirectly.  Rather than amending the scenarios under which a remediation certificate can be issued to account for the above situation, the Remediation Regulation introduces a hybrid type of approval, described as a “Tier 2 compliance letter”. Such a letter will be issued by the regulator when it is satisfied the area or the site meets Tier 2 Guidelines and therefore does not need to be remediated. The difficulty with such a hybrid approach is that it is unclear what type of legal protection a “Tier 2 compliance letter” provides. For example, a remediation certificate currently provides protection against a subsequent environmental protection order being issued for the same contaminant and area. A Tier 2 compliance letter provides no similar protection.  Furthermore, no reference to a Tier 2 compliance letter is set out in Environmental Protection and Enhancement Act and its legal significance is therefore unknown.

NEW REMEDIAL MEASURES TIMELINE

The Remediation Regulation introduces a mandatory timeline for remedial measures for all releases reported after January 1, 2019. If remediation cannot be completed to the satisfaction of the regulator within the following two years, a remedial action plan acceptable to the regulator must be submitted in accordance with the requirements of the Remediation Regulation.

The timeline is not mandatory for the complete remediation of a release. Rather, it is a timeline for the submission of a remedial action plan that will describe what further remedial activities will occur in the future. As such, it appears to be nothing more than an administrative requirement as opposed to an actual remedial efficiency requirement.

NEXT STEPS

The Remediation Regulation came into force as of January 1, 2019, and all releases now must comply with its provisions. Releases reported before January 1, 2019 continue to be regulated in accordance with the old regime under the Remediation Certificate Regulation.

This article was first published on the Blakes Business Class website. It is republished with the permission of the authors and Blakes. Copyright of this article remains with Blakes.


About the Authors

Dufferin (Duff) Harper practices in the areas of environmental law, commercial litigation and regulatory law. He routinely acts for clients on environmental due diligence and liability issues, especially as they pertain to brownfield redevelopment and transportation of dangerous goods. On the corporate side, he specializes in crafting complicated environmental agreements that allocate environmental risks and address remediation requirements. He also advises clients on greenhouse gas matters including the purchase and sale of greenhouse gas emissions credits, offset credits and other environmental attributes.

Duff has acted as lead counsel in several litigation cases involving contaminated sites, both on behalf of contaminated property owners and parties who were allegedly responsible for the contamination. On the regulatory front, he has appeared before numerous levels of courts and assessment tribunals, including tribunals constituted pursuant to the Canadian Environmental Assessment Act (CEAA) ), the National Energy Board (NEB) and numerous provincial regulators.

Duff also provides strategic regulatory compliance and environmental impact assessment advice to industrial clients, such as conventional oil and gas companies, mining companies, companies operating in the oil sands, and liquefied natural gas proponents.

Lindsey Mosher’s practice focuses on energy regulation, as well as environmental and administrative law. She has experience in a broad range of regulatory matters, including regulatory compliance issues, regulatory approvals and hearings, and corporate matters.

Prior to joining Blakes, Lindsey obtained industry experience working in the legal department of a large Canadian oil and gas company, Alberta’s utilities regulator and a large Canadian telecommunications company.

Lindsey has appeared before Alberta’s utilities regulator, the Provincial Court of Alberta and the Court of Appeal of Alberta.

United States: Successor Liability for Environmental Liabilities

by Julie Vanneman, Director, Cohen & Grigsby

What happens when one company acquires the assets of another, then—many years later—receives a demand to participate in the clean-up of a contaminated site based on the acquired company’s long-ago shipment of materials to the site? 

As a general rule, the buyer of assets in an asset acquisition does not automatically assume the liabilities of the seller. However, under the doctrine of successor liability, a claimant may be able to seek recovery from the purchaser of assets for liabilities that were not assumed as part of an acquisition. This claim may be employed in cases involving environmental liabilities, especially when the original party is defunct or remediation costs are greater than the original entity’s ability to pay for the cleanup.[1]

Courts have taken different positions on whether state law or federal common law governs the determination of successor liability for claims under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), known also as Superfund. This distinction may have little practical effect because federal common law follows the traditional state law formulation. Notably, though, when evaluating successor liability under federal law, and specifically environmental laws like CERCLA, the doctrine may be more liberally applied because of policy concerns about contamination.[2]

Under the successor liability doctrine, a buyer can be held responsible for liabilities of the seller if one of four “limited” exceptions applies:

(1) the successor expressly or impliedly agrees to assume the liabilities; (2) a de facto merger or consolidation occurs; (3) the successor is a mere continuation of the predecessor; or (4) the transfer to the successor corporation is a fraudulent attempt to escape liability.

K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1021 (8th Cir. 2007) (citing United States v. Mex. Feed & Seed, Co., Inc., 980 F.2d 478, 487 (8th Cir. 1992)). A fifth exception, the substantial continuity exception, is a broader standard,[3] but most circuit courts do not apply it in CERCLA cases.[4]

Exception 1, express or implied assumption, must be analyzed in terms of the specific asset agreement in question. Exception 4, fraud, is generally employed in circumstances where the acquired company shifts its assets to avoid exposure to another entity.[5]

Courts have addressed the main issue of successor liability by asking whether the transaction is simply the handing off of a baton in a relay race (successor liability) or whether the new company is running a separate race (no liability).[6]  Examining factors relevant to the remaining elements—numbers 2 (de facto merger) and 3 (continuation)—helps answer the question. Under the doctrine of a de facto merger, successor liability attaches if one corporation is absorbed into another without compliance with statutory merger requirements. A court would look at whether there is a continuity of managers, personnel, locations, and assets; the same shareholders become part of the acquirer; the seller stops operating and liquidates; and the acquirer assumes the seller’s obligations to continue normal business operations.[7]  The “mere continuation” theory “emphasizes an ‘identity of officers, directors, and stock between the selling and purchasing corporations.’”[8]

Given the high stakes that can be involved with CERCLA cleanups, assessing prospects for applying the successor liability doctrine could be an important part of the liability analysis.


[1] See, e.g., James T. O’Reilly, Superfund and Brownfields Cleanup § 8:16, at 360 (2017-2018 ed.) [hereinafter O’Reilly] (“Mergers, sales of assets, and changing corporate names does not remove potential CERCLA liability.”).

[2] See O’Reilly § 8:16; see also, e.g.In re Acushnet River & New Bedford Harbor Proceedings re Alleged PCB Pollution, 712 F. Supp. 1010, 1013-19 (D. Mass. 1989) (in the CERCLA context, concluding that successor liability applied where there would be “manifest injustice” if one of the companies could “contract away” liability for PCB contamination).

[3] See K.C.1986 Ltd. P’ship v. Reade Mfg., 472 F.3d 1009, 1022 (8th Cir. 2007)

[4] See Action Mfg. Co. v. Simon Wrecking Co., 387 F. Supp. 2d 439, 452 (E.D. Pa. 2005).

[5] See, e.g., Eagle Pac. Ins. Co. v. Christensen Motor Yacht Corp., 934 P.2d 715, 721 (Wash. Ct. App. 1997). This exception is rarely used. Restatement (Third) of Torts:Prod. Liab. § 12 cmt. e (Am. Law Inst. 1998).

[6] See, e.g.Oman Int’l Fin. Ltd. v. Hoiyong Gems Corp., 616 F. Supp. 351, 361-62 (D.R.I. 1985).

[7] Asarco, LLC v. Union Pac. R.R. Co., No. 2:12-CV-00283-EJL-REB, 2017 WL 639628, at *18 (D. Idaho Feb. 16, 2017).

[8] United States v. Mex. Feed & Seed Co., 980 F.2d 478, 487 (8th Cir. 1992)  (quoting Tucker v. Paxson Mach. Co., 645 F.2d 620, 626 (8th Cir. 1981)).

This article was first published on the Cohen & Grigsby website.

About the Author

Julie counsels and represents clients in a range of environmental and litigation matters. She assists clients with day-to-day environmental compliance concerns and provides enforcement defense counseling, particularly with solid waste and groundwater issues. Her extensive background in CERCLA matters includes serving as legal counsel for clients involved in remediation initiatives at complex Superfund sites as well as litigating cases through multiple phases, including discovery, allocation negotiations, and alternative dispute resolution. Julie’s litigation practice encompasses not only environmental matters, but also insurance coverage actions and other commercial and business disputes.

Former Contaminated Mine Site in NWT Declared Clean

The Government of Canada recently announced that the former Tundra Gold Mine, located in the Northwest Territories, has been successfully remediated.  The cost of clean-up was $110 million and was paid for by the government.

Tundra Mine was briefly operational in the 1960’s and was used as a dumping ground in the 1980’s.  It’s former owner, Royal Oak Mines went bankrupt in 1999.

Remediation of the site included revegetating soil, sealing mine openings, consolidating and isolating tailings and waste rock, treating petroleum hydrocarbon impacted soils, erecting barriers for erosion control, and removing buildings.  The clean-up project lasted more than a decade.

Though some re-vegetation has begun, the land – around 240 km north-east of Yellowknife – will remain recognizably an old industrial site for decades to come.

Tundra Mine Site post clean-up (Photo Credit: Jamie Malbeuf/CBC)

Dominic LeBlanc, Canada’s newly installed minister for northern affairs, called Tundra’s remediation “a great example of the hard work of northerners and the importance of partnerships with local Indigenous communities.”  Northern residents represented 76 percent of the project’s suppliers and 61 percent of its employees.  The Minister stated that the restoration will help local Dene and Métis peoples once again use the land for traditional practices.

The Canadian government will continue to oversea that monitoring of the site to ensure it remains stable.  Monitoring, using a combination of on-site equipment and drones, will cost an unspecified further sum each year.

More work to be done remediating the North

According to an article in Cabin Radio, Tundra’s successful clean-up remains a drop in the larger ocean of contaminated sites within the NWT.  Tundra is the 24th site under federal supervision to have reached this stage, a spokesperson for Crown-Indigenous Relations and Northern Affairs Canada said by email to on Cabin Radio.

federal webpage last updated in 2013 suggests Canada is responsible for more than 50 significant contaminated sites in the territory, including those 24.

separate federal website lists 1,634 contaminated sites within the Northwest Territories, where a contaminated site is defined by the Federal Goverment as “one at which substances occur at concentrations (1) above background (normally occurring) levels and pose or are likely to pose an immediate or long term hazard to human health or the environment, or (2) exceeding levels specified in policies and regulations.”

Some entries on the latter list are considered remediated and their files closed. Some are smaller sites not felt worthy of their own, separate clean-up projects.  Several dozen of them, for example, are grouped under one project to clean up the Canol Trail, a World War Two initiative which left contaminated soil, asbestos, and a range of hazardous materials strewn across 355 km of the Sahtu.

In the 2017-18 financial year, public records show federal agencies were obliged to spend money on some 275 separate contaminated sites in the Northwest Territories.  $157,000 was spent assessing a range of those sites, while a little over $103 million was spent on remediation work.

Of that figure, around $23.6 million was spent remediating the Tundra site in that financial year.

Unsurprisingly, Yellowknife’s Giant Mine – considered among the most toxic sites in Canada, harbouring 237,000 tonnes of poisonous arsenic trioxide in underground chambers – was the only site receiving more remediation money.

In the same period Canada spent just over $36 million on Giant, where full remediation work does not even begin until 2020.

Giant, like Tundra, was owned by Royal Oak when the company collapsed and the site became an unwanted federal problem. The full bill for Giant’s clean-up and maintenance – a program of indefinite, certainly decades-long duration – is expected to reach $1 billion in today’s money.

Tundra Mine 1963 (Photo Credit: Gerry Riemann)

 

British Columbia: Invitation to Participate: Land Remediation Client Survey

The British Columbia Ministry of Environment and Climate Change Strategy is requesting the assistance on B.C. environmental professionals to complete a survey regarding the suite of contaminated site services provided by the Land Remediation Section.  The survey is part of an internal Ministry effort to examine and evaluate the ways in which contaminated sites services are provided in support of administering the Environmental Management Act and Contaminated Sites Regulation, and feedback will inform efforts to improve the client experience in obtaining these services.

The survey takes approximately 10 minutes to complete, allowing for more or less time depending on how many or few contaminated sites services you use. The survey is open for approximately 6 weeks, and will close on September 5, 2018.

Questions regarding the survey can be forwarded to site@gov.bc.ca.

 

Canadian DND searching possible contaminated sites for buried Agent Orange stocks

As reported by the CBC, the Canadian Department of National Defence (DND) has identified up to six known contamination sites at a New Brunswick military base as it works to determine whether the cancer-causing defoliant Agent Orange was buried surreptitiously there decades ago.

Agent Orange is an herbicide and defoliant chemical. It is widely known for its use by the U.S. military as part of its herbicidal warfare program during the Vietnam War from 1961 to 1971. It is a mixture of equal parts of two herbicides, 2,4,5-T and 2,4-D. In addition to its damaging environmental effects, the chemical has caused major health problems for many individuals who were exposed.

Officials at the department’s Directorate of Contaminated Sites presented a map showing the various locations to a former military police officer and a retired civilian employee of Canadian Forces Base Gagetown, N.B. — both of whom say they witnessed chemical drums being buried on the base in separate incidents over 30 years ago.

Past Use of Agent Orange at CFB Gagetown

Agent Orange had been used on the base in the past.  In 2010, Jean-Pierre Blackburn, the Canadian Minister of Veterans Affairs and Minister of State (Agriculture) at the time, announced that the Government of Canada was extending the one-time, tax-free ex gratia payment of $20,000 related to the testing of unregistered U.S. military herbicides, including Agent Orange, at Canadian Forces Base (CFB) Gagetown in 1966 and 1967.

For three days in June 1966 and four days in June 1967, Agent Orange, Agent Purple and other unregistered herbicides were tested at Canadian Forces Base (CFB) Gagetown in cooperation with the U.S. military to evaluate their effectiveness. These are the only known instances that these military test chemicals were used at CFB Gagetown. Agent Orange, Agent Purple and other unregistered herbicides are not used at the base today. The base uses only federally regulated herbicides for brush control during its annual vegetation management program.

Claims 

The claims by retired sergeant Al White and Robert Wilcox, who worked at the training base in the 1970s and 1980s, were first reported by CBC News last month.

Defence Minister Harjit Sajjan promised an investigation and officials are now trying to cross-reference the eyewitness accounts with existing records. The maps are meant to jog the memories of the two men, and to find out whether their claims involve existing dumps or unreported ones.

A massive asbestos dump

The list of contaminated sites is extraordinary. It shows, among other things, more than 3,900 barrels of asbestos waste buried in the same area as the suspected chemical dump.

Officials have offered to escort White onto the base so he can point out the area where he believes Agent Orange was buried. They and White have yet to agree on a date for the visit.

“Pointing on a map isn’t going to work … obviously it has to be a face-to-face opportunity,” White said in an interview.

A spokesman for the defence department confirmed an invitation had been extended but downplayed the significance, saying officials were “simply conducting discussions … in order to gain further insight into their claims.”

The visit would be closed to the media, said department spokesman Dan Lebouthillier in an email.

White said none of the locations pointed out thus far by defence officials match his recollection of the location.

“I say that with clarity,” he said.

The burial, he claimed, involved over 40 barrels stacked on a flatbed truck. It took place early in the morning in the late spring of 1985 and happened in what he described as a disturbing, clandestine manner that has troubled him ever since.

Map showing the Use of Herbicides at CFB Gagetown from 1952 to Present Day

White said he didn’t believe it was his place to come forward until he lost three friends — all former Gagetown soldiers — to cancer.

Wayne Dwernychuk, an expert who spent over 15 years studying Agent Orange contamination and its effects on combatants during the war in Vietnam, said it’s good the federal government is trying to get to the bottom of the mystery.

Once White points out the area, he said, ground scanning technology can quickly and accurately assess what might be underground.

“They should initiate some sort of ground penetrating radar,” he said. “If something turns up, I believe they should follow through with some deep core sampling to determine the extent of the contamination.”

One of the sites listed by National Defence was a chemical dump that has since been excavated — something Wilcox, the second witness, claims to have seen.

Another location is where the military claims to have disposed of rinsed, empty chemical drums.

The main refuse site — known as the Shirley Road dump — “may also [have] accepted drums,” according to a department statement. There was a separate place for dumping ash from burning coal.

During the investigation 14 years ago into the spraying of Agent Orange at the base in the 1960s, officials looked at a fifth location near a tank firing range, but claimed nothing was buried at that spot.

The sixth possible location involves the dumping of asbestos. Federal environment officials have acknowledged in the past that the fire-resistant insulation, ripped out of 15 nearby federal buildings in 1980s, was present at the base, but have never acknowledged the enormous quantity of it.

The waste asbestos was all wrapped and stuffed into metal barrels.

Five years ago, the federal government’s annual report on contaminated sites pointed to the same locations on the base and said assessment on further remediation was under consideration.

The risks of remediation

The same report noted the unique challenges such a clean-up would involve.

“The waste materials might contain ordnance, presenting an unacceptable safety risk to a remediation team,” said the 2013 review.

The report said tests of the wetland adjacent to the contaminated sites did not show chemical concentrations that would be of concern.

Lebouthillier said the locations are “capped” — meaning there’s a barrier between contaminated and uncontaminated soil — managed and monitored “according to federal environmental regulations and guidelines.”

Agent Orange used during the Vietnam war has left that country’s the soil contaminated and compromised.  Many Vietnamese have life-long health problems as a result to exposure to Agent Orange.  The United States has provided almost $42 million since 2007 toward the effort to clean up the effects of Agent Orange in Vietnam.

Past Investigations in Canada

In 2006, Golder Associates Ltd. (Golder) was retained by Public Works and Government Services Canada on a series of contracts on behalf of the Department of National Defence (DND) to research, organise and analyse all available information concerning the herbicides used at each Canadian Forces (CF) site across Canada. An objective of this undertaking was to confirm whether tactical herbicides such as Agent Orange and Agent Purple tested in 1966 and 1967 at CFB Gagetown were ever tested at other current and former CF Bases, Stations or Wings.

Golder’s review of the information has found no evidence of spray applications of the tactical herbicides Agent Orange or Agent Purple at any Bases, Stations or Wings aside from CFB Gagetown. Records do indicate that the non-tactical and commercially available herbicides 2,4,5-T and 2,4-D were potentially concurrently used, stored or disposed at each of Carp (Ontario), CFB Chatham and CFB Gagetown (New Brunswick), CFB Borden (Ontario) and another unidentified site.

As such, evidence to-date is to the effect that Agent Orange and Agent Purple were only applied at CFB Gagetown.

Soldiers detect Unexploded Ordnance (UXO) and defoliant Agent Orange in Vietnam’s central Da Nang City.

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

by Catherine Thompson, Waterloo Region Record

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

__________________

About the Author

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

Guideline for the Management of Sites Contaminated with Light Non-Aqueous Phase Liquids

Light Non-Aqueous Phase Liquid (LNAPL) Management is the process of LNAPL site assessment, monitoring, LNAPL Conceptual Site Model development, identification and validation of relevant LNAPL concerns, and the possible application of remediation technologies. The presence of LNAPL can create challenges at any site.  Examples of LNAPLs include gasoline, diesel fuel, and petroleum oil.

In 2009, the United States Interstate Technology and Regulatory Council (ITRC) published LNAPL-1: Evaluating Natural Source Zone Depletion at Sites with LNAPL (ITRC 2009b) and LNAPL-2: Evaluating LNAPL Remedial Technologies for Achieving Project Goals (ITRC 2009a) to aid in the understanding, cleanup, and management of LNAPL at thousands of sites with varied uses and complexities. These documents have been effective in assisting implementing agencies, responsible parties, and other practitioners to identify concerns, discriminate between LNAPL composition and saturation-based goals, to screen remedial technologies efficiently, to better define metrics and endpoints for removal of LNAPL to the “maximum extent practicable,” and to move sites toward an acceptable resolution and eventual case closure.

This guidance, LNAPL-3: LNAPL Site Management: LCSM Evolution, Decision Process, and Remedial Technologies, builds upon and supersedes both previous ITRC LNAPL guidance documents in an updated, web-based format. LNAPL-1 and LNAPL-2 are still available for review; however, LNAPL-3 is inclusive of those materials with new topics presented and previous topics elaborated upon and further clarified.

This guidance can be used for any LNAPL site regardless of size and site use and provides a systematic framework to:

  • develop a comprehensive LNAPL Conceptual Site Model (LCSM) for the purpose of identifying specific LNAPL concerns;
  • establish appropriate LNAPL remedial goals and specific, measurable, attainable, relevant, and timely (SMART) objectives for identified LNAPL concerns that may warrant remedial consideration;
  • inform stakeholders of the applicability and capability of various LNAPL remedial technologies
  • select remedial technologies that will best achieve the LNAPL remedial goals for a site, in the context of the identified LNAPL concerns and conditions;
  • describe the process for transitioning between LNAPL strategies or technologies as the site moves through investigation, cleanup, and beyond; and
  • evaluate the implemented remedial technologies to measure progress toward an identified technology specific endpoint.

Initial development and continued refinement of the LCSM is important to the identification and ultimate abatement of site-specific LNAPL concerns. Figure 1-1 identifies the stepwise evolution of the LCSM, the specific purpose of each LCSM phase, and the tools presented within this guidance to aid in the development of the LCSM. As depicted, the LCSM is the driving force for identifying actions to bring an LNAPL site to regulatory closure.

LNAPL remediation process and evolution of the LNAPL conceptual site model (LCSM).

This guidance document is organized into sections that lead you through the LNAPL site management process:

  • Section 2 – LNAPL Regulatory Context, Challenges, and Outreach
    Section 2 identifies some of the challenges implementing agencies face when investigating, evaluating, or remediating LNAPL sites. These challenges include regulatory or guidance constraints, a lack of familiarity or understanding of LNAPL issues, and poorly or undefined objectives and strategies. This section also stresses the importance of identifying and communicating with stakeholders early in the process in order to address issues or concerns that can lead to delays or changes in strategy. Understanding and recognizing these challenges and concerns during development of a comprehensive LCSM can help reduce costs and lead to a more effective and efficient resolution at an LNAPL site.
  • Section 3 – Key LNAPL Concepts
    Section 3 provides an overview of key LNAPL terminology and concepts including LNAPL behavior following a release to the subsurface (i.e., how LNAPL spreads away from the primary release point, its behavior above and below the water table, and how its migration eventually stops and naturally depletes). An understanding of these basic terms and concepts is crucial for developing a comprehensive LCSM and an effective LNAPL management plan.
  • Section 4 – LNAPL Conceptual Site Model (LCSM)
    The LCSM is a component of the overall conceptual site model (CSM), and emphasizes the concern source (i.e., the LNAPL) of the CSM. The presence of LNAPL necessitates an additional level of site understanding. The unique elements of the LCSM are presented as a series of questions for the user to answer to help build their site-specific LCSM. Ultimately, a thoroughly-developed, initial LCSM provides the basis for identifying the LNAPL concerns associated with an LNAPL release.
  • Section 5 – LNAPL Concerns, Remedial Goals, Remediation Objectives, and Remedial Technology Groups
    Section 5 describes the decision process for identifying LNAPL concerns, verifying concerns through the application of threshold metrics, establishing LNAPL remedial goals, and determining LNAPL remediation objectives. This section also introduces remedial technology groups, the concept of a treatment train approach, and how to transition between technologies to address the identified LNAPL concern(s) systematically and effectively. It is important to understand the content of this section prior to selecting and implementing an LNAPL remedial strategy.
  • Section 6 – LNAPL Remedial Technology Selection
    Section 6 describes the remedial technology screening, selection, and performance monitoring process. This section begins by identifying technologies recognized as effective for mitigating specific LNAPL concerns and achieving site-specific LNAPL remediation objectives based on the collective experience of the LNAPL Update Team. The LNAPL Technologies Appendix summarizes each of the technologies in detail and presents a systematic framework to aid the user in screening out technologies that are unlikely to be effective, ultimately leading to selection of the most appropriate technology(ies) to address the specific LNAPL concerns.

This guidance also includes relevant, state-of-the-science appendices for more detailed information on LNAPL specific topics:

  • LNAPL Technologies Appendix 
    This appendix describes in more detail each of the 21 LNAPL technologies introduced in the main document. The A-series tables describe information to evaluate the potential effectiveness of each technology for achieving LNAPL goals under site-specific conditions. Information includes the basic remediation process of each technology, the applicability of each technology to specific remedial goals, and technology-specific geologic screening factors. The B-series tables describe information to evaluate the potential implementability of each technology considering the most common site-specific factors. The C-series tables describe the minimum data requirements to make a final technology selection through bench-scale, pilot, and/or full-scale testing; they also describe metrics for tracking remedial technology performance and progress.
  • Natural Source Zone Depletion (NSZD) Appendix
    This appendix provides a technical overview of NSZD for LNAPL and the methods by which rates can be estimated and measured. It also provides a discussion of long-term LNAPL site management and how NSZD can be applied as a remedy including decision charts to support integration of NSZD and case studies demonstrating its use. For this document, the original ITRC NSZD document (ITRC LNAPL-1) was updated and incorporated into the main body and appendix.
  • Transmissivity (Tn) Appendix
    LNAPL transmissivity has application throughout the life cycle of a LNAPL project. This appendix provides an understanding of how transmissivity connects to the broader framework for LNAPL management including LNAPL recovery and mobility, and the potential for NSZD to decrease LNAPL transmissivity and mobility over time.
  • Fractured Rock Appendix
    This appendix describes the behavior and differences of how LNAPL behaves in fractured bedrock formations. While some of the same physical principles apply for multiphase flow in fractured aquifers as in porous aquifers, unique characteristics of finite and restricted fluid flow paths can lead to unexpected results in fractured settings.
  • LNAPL Sheens Appendix
    This appendix details how LNAPL sheens form, the concerns and challenges of sheens, and potential sheen mitigation technologies.

LNAPL Contamination of the Subsurface

Remediation of Trichoroethane (TCE) – contaminated groundwater by persulfate oxidation

Researchers in Taiwan performed field trials on the ability of persulfate to remediate trichloroethane (TCE) contaminated groundwater.  The purpose of the field trial was to (1) evaluate the efficacy of TCE treatment using persulfate with different injection strategies; (2) determine the persistence of persulfate in the aquifer; (3) determine the persulfate radius of influence and transport distance; and (4) determine the impact of persulfate on indigenous microorganisms during remediation.

The researchers discovered that persulfate removed up to 100% TCE under specific conditions.  Overall, they found a single, higher does of persulfate was more effective at destroying TCE than two separate, smaller doses.

Results show that sequential injections of a large amount of persulfate are suggested to maintain good long-term performance for TCE treatment. This paper is available at http://pubs.rsc.org/en/content/articlehtml/2018/ra/c7ra10860e.

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.”

Guidance on Characterization and Remediation of Fractured Rock

The U.S. Interstate Technology and Regulatory Council (ITRC) recently released its newest guidance document, Characterization and Remediation of Fractured Rock.  The guidance addresses significant advances in skills, tools, and lessons-learned in understanding contaminant flow and transport in fractured rock environments.  If the unique characteristics of fractured rock sites are understood, then modern tools and approaches can be applied to successfully set and meet characterization and remediation goals at these sites.

Contaminated fractured rock sites have often been considered too complex to be remediated, so site managers often default to simply containing the contamination. This guidance provides a high-level introduction to the unique puzzle faced when investigating and remediating fractured rock sites. With the new strategies and technologies presented here, fractured bedrock challenges that may have prevented site remediation in the past are now surmountable.

The guidance begins with a general discussion of fractured rock characteristics and a comparison of fractured rock and porous media CSMs. The guidance further introduces the parameters necessary for developing a fractured rock CSM and stresses the need for an experienced multidisciplinary team. The 21-Compartment Model is also introduced. This model is an adaptation of the 14-Compartment Model (Sale 2011) for unconsolidated materials. This model helps its users to visualize and understand contaminant storage, flux, and flow pathways in fractured rock.

Understanding contaminant fate and transport in fractured rock allows site managers to develop a robust CSM that can guide remediation. Specific geology and lithology and structure control the unique mechanics of fluid flow in fractured rock. In addition to these physical properties, chemical properties affect fate and transport and are equally important in developing the CSM.

This guidance details specific steps in solving the puzzle of fractured rock contaminant fate and transport, including:

  • reviewing and refining the CSM
  • defining the characterization problem
  • identifying significant data gaps
  • defining data collection objectives
  • identifying potential tools for data collection
  • developing and implementing the work plan
  • managing, interpreting, and presenting the data

A downloadable and searchable Tools Selection Worksheet is provided , which was initially used in ISC-1 (ITRC 2015b). The Tools Selection Worksheet allows users to screen for tools to address specific data needs and collect qualitative, semiquantitative or quantitative data as needed. The Tools Selection Worksheet links to detailed descriptions of all the tools and to references for further information. The guidance describes how data can be managed, interpreted, and displayed. Table 5-4 presents valuable lessons learned from real-world fractured rock characterization and remediation projects.

As a CSM nears completion, the guidance offers direction for developing remedial objectives and strategies. A table shows how to assess the different remedial strategies that may address mass stored in the compartments described in the 21-Compartment Model.

Strategies for monitoring contamination for compliance, system operation, and performance are also provided. The guidance explains how to design a monitoring well network that will provide the data needed to understand site conditions, remedy performance, and compliance.

When applied properly, mathematical models are powerful tools for understanding contaminant flow. Chapter 8 describes various model types, proper application, data needs, calibration, sensitivity, and limitations.

Finally, a discussion on stakeholder and regulatory considerations are presented, followed by a collection of case studies that demonstrate practical application of the concepts presented throughout the guidance.

Click HERE to access the document.

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