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Alexco/JDS Group buys Abandoned Mine, Agrees to Remediate it

The Supreme Court of Yukon Territory recently approved the sale of the abandoned Mount Nansen Mine site to the Alexco/JDS Group. The unique arrangement with the Alexco/JDS Group, allows the company to pursue future work at the mine while obligating them to remediate contamination from past mining activities at the site.

The abandoned Mount Nansen site is a former gold and silver mine located in the traditional territory of the Little Salmon/Carmacks First Nation, near the Village of Carmacks. As a Type II Mine site, the Canadian federal government accepted responsibility for its existing liabilities in the 2012 Yukon Devolution Transfer Agreement. The federal government provides 100% of the funding for site care and maintenance operations as well as for the development of long-term remediation plans. This funding is provided through the Federal Contaminated Sites Action Plan 

Mt. Nansen; August 14; 2008; aerial photo; mill

The sale process began in 2016, when the Yukon Supreme Court appointed PriceWaterhouseCoopers Interim Receiver and Receiver-Manager of the mine’s former operator.

The sale of the mine was complicated by the fact that in involved the court-appointed receiver for the former owner of the mine, the Canadian federal government, the Yukon Territory government, and the Little Salmon/Carmacks First Nation.

Under the conditions of the sale, Alexexco/JDS Group must immediately accelerate work on the remediation plan that had been initiated by the Yukon government and submit it for regulatory approval. The Canadian government has committed funding to pay for the remediation.

Russell Blackjack, Chief of Little Salmon/Carmacks First Nation, stated in a news release: “After almost three decades of concern and constant pressure and monitoring from Little Salmon/Carmacks First Nation government, the citizens of the Little Salmon/Carmacks First Nation will be pleased to see the finalization of the agreements that will lead to the remediation of the abandoned BYG mine site at Mt. Nansen. ”

The new owners, Alexco/JDS Group, consists of Alexco (TSX: AXR / NYSE-American: AXU) , a primary silver company headquartered in Vancouver and JDS Energy & Mining Inc. , a Canadian-based resource development company with experience in mine design, development.

The Mount Nansen Mine is listed on the Federal Contaminated Sites Inventory. Approximately 5,400 hectares of land is contaminated at the site. There is also surface water contamination. Contaminants include petroleum hydrocarbons and metals.

The federal government estimates that clean-up of the site will cost $37 million with an additional $2.8 million for care and maintenance. It is estimated that the remediation of the mine site will take up to 10 years.

Managing Environmental Risk through Brownfield Programs When Buying or Leasing Real Property in the United States

Written by Brooke F. Dickerson, Arnall Golden Gregory LLP

American environmental laws can be daunting for a foreign investor. For example, both federal and state laws can impose strict liability, which is liability regardless of fault or intent, on the owner or tenant of a contaminated property, which is sometimes called a “brownfield property.” Such liability could lead to the imposition of penalties, the obligation to perform cleanup work, the duty to reimburse another party for its damages, or the restriction of use of the property itself, even if the contamination occurred prior to the acquisition or lease of the property or if the contamination was not caused by the owner or tenant. There are certain compliances that need to be met if you’re a property owner of a normal building, let alone a contaminated property. Property managers need to make sure the building is compliant with regulations for that industry. They use software to keep track of the reporting and archiving of tasks, find out more about property compliance platform here if you’re interested. The owner/property manager needs to ensure contaminations are dealt with and compliant or will be penalized. However, there are various methods that an entity can use to limit or avoid such liability, as well as unexpected costs, time, expenses and possibly reverse phone lookup checks. A purchaser or incoming tenant of property that could be contaminated can protect itself by performing due diligence and availing itself of one or more of these methods.

One method frequently used to manage environmental liability is participation in a “Brownfield Program.” Brownfield programs provide liability protection and other benefits to a purchaser or new tenant of real property and have been adopted by several states. Generally, brownfield programs require that a party apply for acceptance either prior to or within a short time after acquiring a property interest. Both the property and the applicant must qualify under the particular criteria for that program. In the state of Georgia, for example: (1) the property must have a preexisting release of a hazardous substance but it cannot already be subject to cleanup requirements under other environmental laws; and (2) the applicant must not be a person who contributed to the contamination or have a close relationship with a person who contributed to the contamination, and the applicant must not be in violation of any environmental order or law. The applicant must agree to adequately assess the environmental conditions of the property, if not already done, and to address any releases that exceed regulatory clean up levels; the proposed assessment and remediation work are submitted in the application as part of a proposed corrective action plan. Finally, the applicant must certify to the agency that it has achieved its corrective action plan tasks after all the work is completed.

In return, an applicant will receive a “Limitation of Liability” under the brownfield law for all of the contaminants that it assessed and/or addressed. The limitation of liability is usually granted as soon as an application is approved, conditioned on the full performance of the corrective action plan. The limitation of liability becomes final upon approval of the applicant’s certification of compliance. The scope of a limitation of liability varies by state, but usually will include protection against any claim by the government for additional cleanup as well as by a third party, such as a neighboring property owner.

Participation in a brownfield program provides several other advantages as well. Remediation requirements can be reduced according to the specific intended use of the property and likely risks of exposure to human health or the environment. A residential use will require a more strict clean up than an industrial use; consequently, the cost to clean up property for an industrial plant will be much less than the costs to clean up property to be a housing development. A prospective purchaser or tenant will have a good estimate of how much it will have to spend and how much time it will take to address environmental problems before it acquires the property, enabling better budgeting and cost evaluation. A very important benefit is that the brownfield limitation of liability runs with the land, which means that the protections pass from the initial applicant to all subsequent owners and tenants of the property. Existing brownfield protection is a significant advantage when marketing the property if and when the owner wants to sell or re-lease it.

As with the extent of liability protection, other brownfield benefits can also vary state by state. Using the Georgia program as an example, a purchaser or new tenant in the brownfield program is excused from having to address any groundwater contamination (which is often the most costly type of remediation work), and the corrective action plan can be performed autonomously, only requiring governmental involvement when the entity submits its final certification of compliance with the corrective action plan. Not being required to obtain governmental approval at various milestones will save the owner or tenant significant time in completing the project.

Many states also offer tax benefits. The Georgia brownfield program incorporates property tax abatements up to the amount of eligible brownfield costs incurred. Eligible brownfield costs include almost all expenses related to assessing the property, working with consultants, cleaning up the property, preparing and submitting all required documentation and finalizing the limitation of liability; legal fees and true construction costs are not eligible. In essence, a new property owner or tenant can get reimbursed for all of its environmental costs through tax savings and still recoup the brownfield liability protection, limitation and certainty of expenses and time, and marketing benefits for resale.

In sum, a potential purchaser or tenant might want to give a contaminated property a second look. Such an investment may yield greater returns than locating on a clean property. So if you’re looking for new property to invest in, whether clean or contaminated, you may want to think about getting cash for your house in Seattle.

This article has been republished with the permission of the authors. It was first published on the AGG website.


About the Author

Brooke F. Dickerson focuses her practice on transaction, regulatory, compliance and permitting matters. With regards to environmental work, she has significant experience with Superfund (CERCLA), hazardous waste (RCRA and HWMA), the Georgia Hazardous Site Response Act (HSRA), solid waste, Brownfields, wetlands, and site evaluation, assessment and remediation issues. She also advises clients on stormwater compliance, green leasing issues and green/sustainable building practices. With regards to construction work, Ms. Dickerson advises owners and developers on the drafting and negotiation of architect, construction and construction management agreements. She has represented clients in connection with the construction of office, multi-family, mixed use and tenant improvement projects. She also advises clients on OSHA matters and has represented several companies in obtaining reduced or dismissed penalties in settlement negotiations.

Investigation finds Contaminated Soil from Montreal is being dumped on Prime Farmland

As reported by Marie-Maude Denis and Jacques Taschereau of CBC News, contaminated soil generated from the development of properties in Montreal is ending up on prime agriculture land.

Radio-Canada’s investigative program Enquête recently tracked demolition waste from Montreal sites to farmland in Saint-Rémi. When the investigators confronted the farmer, he claimed the material dumped on his property would be used as a foundation for a greenhouse and that it was legal.

An environmental lawyer contacted by the Radio Canada investigators disagreed with the farmer as did Quebec’s Environment Ministry. The Environment Ministry confirmed it found contaminated soil at the site last year, but it’s offered no further details about its origin, saying the matter is still under investigation.

When The Radio Canada investigators questioned the general contractor working on the site that was the source of the contaminated soil, he claimed the a subcontractor properly trucked the soil away.

Properly managed soil treatment facility

The claim of the general contractor and farmer is that the material is construction debris consisting mainly of bricks and stones and not contaminated soil. The investigators noted that the material they saw dumped on the farm included metal and concrete. According to the Environment Ministry, the kind of debris that was tracked by the investigators can’t be legally be use for the intended farmland construction.

In a similar investigation conducted by Radio Canada in 2016, investigative reporters followed trucks and observed debris being dumped in the countryside. The investigators arranged for the sampling and analysis of the soil from several farms and that found some samples to be contaminated.

Yukon’s Contaminated Site Mapped Online

The Government of Yukon Territory recently posted an online map that shows all known contaminated sites in the Territory.

Map of Contaminated Sites in Yukon

To access the contamination history of properties in the territory, one can visit the online map. This information was previously only available to the public on request.

Properties considered contaminated and included in the map are ones that have the confirmed presence of substances such as petroleum hydrocarbons and metals above specific concentrations. The Government of Yukon claims that many contaminated locations pose no risk to the public. However, in an effort to be transparent, it has created the online map.

The map is based on information the Government of Yukon receives and maintains. There are approximately 529 sites recorded by the Government of Yukon on the contaminated sites map. Of these sites 207 are considered contaminated, 151 are unknown and 171 are remediated.

Indigenous and Northern Affairs Canada Map of Contaminated Sites in the Yukon, 2012

The Yukon Minister of the Environment, Pauline Frost stated in a press release, “This online tool will help increase the health and safety of communities across Yukon, support remediation efforts and help prevent future instances of contamination through greater public awareness. It is an example of our commitment to openly sharing information that is important to Yukoners and making it as accessible as possible.”

Other Canadian Jurisdictions

The federal government has a searchable federal contaminated sites inventory. The Federal Contaminated Sites Inventory includes information on all known federal contaminated sites under the custodianship of departments, agencies and consolidated Crown corporations as well as those that are being or have been investigated to determine whether they have contamination arising from past use that could pose a risk to human health or the environment. The inventory also includes non-federal contaminated sites for which the Government of Canada has accepted some or all financial responsibility. It does not include sites where contamination has been caused by, and which are under the control of, enterprise Crown corporations, private individuals, firms or other levels of government.

According to information compiled by Ecosense in 2018, contaminated site registry systems are in place in 76% of provinces and territories within Canada. This may include contaminated sites that are apart of a stand alone or another property listing system. Provinces and territories that have a registry include: Alberta, British Columbia, Manitoba, Yukon, Quebec, Ontario, North-West Territories, Newfoundland, and Prince Edward Island. However, the degree of information shared within these listings vary extensively. For example, Ontario’s database includes records of site condition (RSC) which entails detailed information of the type of contaminants at a site, contaminant concentrations, as well as information on the phases of environmental site assessments (ESA) completed, the date of site closure and company involved (PIRI, 2014). In contrast, Manitoba’s database provides only a file number, company name, city and address on an impacted sites list. No details of a site’s contamination levels, information concerning the degree of contamination or site remedial status is provided (PIRI, 2014).

Provinces within Canada that provide and inventory on contaminated sites that is available for public access include from west to east: Yukon (YK), British Columbia (BC), North West Territories (NT), Alberta (AB), Manitoba (MN), Ontario (ON, Quebec (QC), Prince Edward Island (PEI) and Newfoundland and Labrador (NL).

In addition, more than half (58%) of the provinces in Canada record contamination over the area of a property (based on property specifics) versus recording contamination over an area (area wide). Contamination doesn’t tend to stick to the boundaries of property lines, therefore inventories that record entries based on property specifics will not accurately represent the breadth or extent of contamination within a given area (PIRI, 2014). Provinces that record area-wide contamination are BC, NT, and NB. Many registries also do not include site information that track the process of assessment or cleanup. AB (only if submitted to the department), BC, YK, QC, and NB keep track of site progress.

Leaking Sewers Cost City 50% of Dry Cleaner Site Cleanup Costs

Written by John A. McKinney Jr., Chiesa Shahinian & Giantomasi PC

Are you in a case where an on-site and off-site groundwater plume of dry-cleaning solution (perchloroethylene or PCE) or other hazardous substance is intersected by sewers through which the used and disposed solution flowed?  If so, the case of Mission Linen Supply v. City of Visalia (2019 WL 446358) bears your close review.

Based on the facts and expert testimony adduced at the bench trial, the court determined that: 1) the sewers were installed by the City below general industry standards; 2) the City sewers had numerous defects including holes and broken pipes, cracks, separated joints, missing portions of pipes, root intrusion and other conditions; and, 3) PCE was released into the environment as a result of these defects.

Pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq.), the two dry cleaners who operated at the site and the City were found liable.  In allocating the future cleanup costs, the court determined the equitable basis for allocation was the plume itself.  The prior dry cleaners were responsible for the on-site costs and the City was responsible for the off-site costs “because the City’s defective/leaking pipes transported and spread the PCE beyond the property boundaries.”   50% of future costs were assigned to the City.

A review of this case’s Findings of Fact show what expert testimony and evidence is necessary to reach the result reached by this court.  The case is also a warning to municipalities with sewer lines intersecting cleanup sites or what could become cleanup sites.  Do not fail to regularly and properly maintain your sewer systems.


This article has been republished with the permission of the author. It was first published on CSG’s Environmental Law Blog.

About the Author

John A. McKenney Jr. has been a frequent speaker at conferences and continuing legal education programs. For 18 years, John was on the faculty of Seton Hall University School of Law as an Adjunct Professor where he taught New Jersey Environmental Law. He also served as moderator of the ABA satellite seminar on Hazardous Waste and Superfund.

John is a co-editor of the ABA publication, CERCLA Enforcement – A Practitioner’s Compendium of Essential EPA Guidance and Policy Documents and co-authored the Generators’ Obligations chapter of the ABA’s RCRA Practice Manual. The standard form group agreement used at many remedial sites around the nation is based on a version he developed for The Information Network for Superfund Settlements.

Handbook on Managing Emerging Contaminants

The term “emerging contaminants” and its multiple variants has come to refer to unregulated compounds discovered in the environment that are also found to represent a potential threat to human and ecological receptors. Such contaminants create unique and considerable challenges as the push to address them typically outpaces the understanding of their toxicity, their need for regulation, their occurrence, and techniques for treating the environmental media they affect.

Unregulated compounds that could be potential issues continually surface as detection technology improves, driving the need to more quickly evolve our understanding, technology, and appropriate response options to address them. It is clear that conquering this challenge will play a role in protecting our quality of life.

In Emerging Contaminants Handbook, published by CRC Press, editors Caitlin H. Bell, Margaret Gentile, Erica Kalve, Ian Ross, and John Horst review the latest insights on emerging contaminant occurrence, regulation, characterization, and treatment techniques. The goal is to serve as a primer for deepening your emerging contaminant acumen in navigating their management where they may be encountered.

Use Emerging Contaminants Handbook to:

  • Explore the definition, identification, and life cycle of emerging contaminants.
  • Review current information on sources, toxicology, regulation, and new tools for characterization and treatment of:
    • 1,4-Dioxane (mature in its emerging contaminant life cycle)
    • Per- and polyfluoroalkyl substances (PFASs; a newer group of emerging contaminants)
    • Hexavalent chromium (former emerging contaminant with evolving science)
    • 1,2,3-Trichloropropane (progressing in its emerging contaminant life cycle)
  • Examine opportunities in managing emerging contaminants to help balance uncertainty, compress life cycle, and optimize outcomes.

Emerging Contaminants Handbook can be purchased at CRCPress.com or Amazon.com.

Top Environmental Clean Up Projects throughout Canada

by David Nguyen, Staff Writer

1. The Randle Reef Contaminated Sediment Remediation Project – Hamilton, Ontario

Cost: $138.9 million

Contaminant: polycyclic aromatic hydrocarbons (PAHs),
heavy metals

Approximately 60 hectares in size and containing 695 000 cubic metres of sediment contaminated with polycyclic aromatic hydrocarbons (PAHs) and heavy metals, the Randle Reef restoration project is three decades in the making. The pollution stems from various industries in the area including coal gasification, petroleum refining, steel making, municipal waste, sewage and overland drainage.1

Slated to be completed in three stages, the first stage involved the completion of a double steel sheet-piled walled engineered containment facility (ECF) around the most contaminated sediments, with stage 2 consists of dredging of the contaminated sediments into the ECF. Stage 3 will involve dewatering of the sediments in the ECF and treating the wastewater to discharge back into the lake, and the sediments will be capped with 60 cm of sand and silt enriched with organic carbon. This cap will both the isolate the contaminated sediments from the environment and form a foundation or future port structures. The ECF will be capped with layers of several material, including various sizes of aggregate, geo-textile and geo-grid, wickdrains, and asphalt and or concrete. This isolates the contaminants and provides a foundation for future port structures.

The project is expected to be completed by 2022 and cost $138.9 million. The Hamilton Port Authority will take over monitoring, maintenance, and development responsibilities of the facility for its expected 200-year life span. It is expected to provide $151 in economic benefits between job creation, business development, and tourism.

The Canada–United States Great Lakes Water Quality Agreement listed Hamilton harbour (which contains Randle Reef) as one of 43 Areas of Concern on the Great Lakes. Only 7 have been removed, 3 of which were in Canada.

2. Port Hope Area Initiative – Port
Hope, Ontario

Cost: $1.28 billion

Contaminant: low-level radioactive waste (LLRW),
industrial waste

The town of Port Hope, Ontario has about 1.2 million cubic metres of historic LLRW across various sites in the area. The soils and materials contain radium-226, uranium, arsenic, and other contaminants resulting from the refining process of radium and uranium between 1933 and 1988. Additional industrial waste containing metals, hydrocarbons, and dried sewage and sludge with copper and polychlorinated biphenyl (PCBs) will also be contained at the new facility.

The material was spread across town as the tailings were given away for free to be used as fill material for backyards and building foundations. An estimated 800 properties are affected, but the low-level radiation poses little risk to humans. The Port Hope Area Initiative will cost $1.28 billion and will include monitoring before, during, and after the construction of a long term management waste facility (LTMWF).

The LTWMF will be an aboveground engineered storage mound on the site of an existing LLRW management facility to safely store and isolate the contaminated soil and material, as well as other industrial waste from the surrounding area. The existing waste will also be excavated and relocated to the engineered mound. Leachate collection system, monitoring wells, and sensors in the cover and baseliner will be used to evaluate the effectiveness of the storage mound, allowing for long term monitoring of the waste.

The
facility also contains a wastewater treatment plant that will treat surface
water and groundwater during construction of the facility, as well as the
leachate after the completion of the storage mound. The plant utilizes a two
stage process of chemical precipitation and clarification (stage 1) and reverse
osmosis (stage 2) to treat the water to meet the Canadian Nuclear Safety
Commission requirements for water discharged to Lake Ontario.

3. Marwell Tar Pit – Whitehorse, Yukon
Territory

Cost: $6.8 million

Contaminant: petroleum hydrocarbons (PHCs), heavy
metals

This
$6.8 million project funded by the governments of Canada and Yukon will
remediate the Marwell Tar Pit in Whitehorse, which contain 27 000 cubic metres
of soil and groundwater contaminated with hydrocarbons, such as
benz[a]anthracene and heavy and light extractable petroleum hydrocarbons and
naphthalene, and heavy metals such as manganese. Some of the tar has also migrated
from the site.

Contamination
began during the Second World War, when a crude oil refinery operated for less
than one year before closing and being dismantled. The sludge from the bottom
of dismantled storage tanks (the “tar”) was deposited in a tank berm, and over time
other industries and businesses added other liquid waste to the tar pit. In the
1960s the pit was capped with gravel, and in 1998 declared a “Designated
Contaminated Site.”

The
project consists of three phases: preliminary activities, remedial activities,
and post-remedial activities. The preliminary phase consisted of consolidating
and reviewing existing information and completing addition site assessment.

The
second phase of remedial activities began in July 2018 and involves
implementing a remedial action plan. Contaminated soil segregated and heated through
thermal conduction, which vaporizes the contaminants, then the vapours are
destroyed by burning. Regular testing is done to ensure air quality standards
are met. The main emissions from the site are carbon dioxide and water vapour. Remediated
soil is used to backfill the areas of excavation. This phase is expected to be
completed in 2019-2020.

The
final phase will involve the monitoring of the site to demonstrate the
remediation work has met government standards. This phase is planned to last
four years. The project began in 2011 and is expected to be completed in
2020-2021.

4. Boat Harbour – Nova Scotia

Cost: approx.$133 million

Contaminant: PHCs, PAHs, heavy metals, dioxins and
furans

The provinces largest contaminated site, Boar Harbour, is the wastewater lagoon for the local pulp mill in Abercrombie Point, as well as the discharge point for a former chemical supplier in the area. Prior to 1967, Boat Harbour was a saltwater tidal estuary covering 142 hectares, but a dam built in 1972 separated Boat Harbour from the ocean, and it is now a freshwater lake due to the receiving treated wastewater from the mill since the 1967.

The
wastewater effluent contains contaminants including dioxins and furans, PAHs, PHCs,
and heavy metals such as cadmium, mercury, and zinc. In 2015, the government of
Nova Scotia passed The Boat Harbour Act, which ordered that Boat Harbour cease
as the discharge point for the pulp mill’s treated wastewater in 2020, which
allows time to build a new wastewater treatment facility and time to plan the
remediation of Boat Harbour.

The
estimated cost of the cleanup is $133 million, which does not include the cost
of the new treatment facility. The goal is to return the harbour to its
original state as a tidal estuary. The project is currently in the planning
stages and updates can be found at https://novascotia.ca/boatharbour/.

5. Faro Mine – Faro, Yukon

Cost: projected$450 million

Contaminant: waste rock leachate and tailings

Faro Mine was once the largest open-pit lead-zinc mine in the world, and now contains about 70 million tonnes of tailings and 320 million tonnes of waste rock, which can potentially leach heavy metals and acids into the environment. The mine covers 25 square kilometres, and is located near the town of Faro in south-central Yukon, on the traditional territory of three Kasha First Nations – the Ross River Dena Council, Liard First Nation and Kaska Dena Council. Downstream of the mine are the Selkirk First Nation.

The
Government of Canada funds the project, as well as leads the maintenance, site
monitoring, consultation, and remediation planning process. The Government of
Yukon, First Nations, the Town of Faro, and other stakeholders are also responsible
for the project and are consulted regularly to provide input.

The
entire project is expected to take about 40 years, with main construction activities
to be completed by 2022, followed by about 25 years of remediation. The
remediation project includes upgrading dams to ensure tailings stay in place,
re-sloping waste rock piles, installing engineered soil covers over the
tailings and waste rock, upgrading stream diversions, upgrading contaminant
water collection and treatment systems.

6. Sylvia Grinnell River Dump – Iqaluit,
Nunavut

Cost: $5.4 million

Contaminant: PHCs, polychlorinated biphenyls
(PCBs), pesticides

Transport Canada awarded a contract of over $5.4 million in 2017 for a cleanup of a historic dump along the mouth of Sylvia Grinnell River in Iqaluit, Nunavut. The dump contains metal debris from old vehicles and appliances, fuel barrels, and other toxic waste from a U.S. air base, and is a site for modern day rogue dumping for items like car batteries. This has resulted in petroleum hydrocarbons, polychlorinated biphenyls (PCBs), pesticides, and other hazardous substances being identified in the area.

The Iqaluit airfield was founded in Frobisher Bay by the U.S. military during World War 2 as a rest point for planes flying to Europe. During the Cold War, the bay was used as part of the Distant Early Warning (DEW) Line stations across the north to detect bombers from the Soviet Union. When the DEW was replaces by the North Warning System in the 1980s, these stations were abandoned and the contaminants and toxic waste left behind. Twenty-one of these stations were remediated by the U.S. Department of National Defence at a cost of about $575 in 2014.

The Sylvia Grinnell River remediation project is part of the Federal government’s responsibility to remediate land around the airfield that was transferred to the Government of Nunavut in the 1990s.The contract was awarded in August 2017 and was completed in October. The remaining nontoxic is sealed in a new landfill and will be monitored until 2020.

7. Greenwich-Mohawk Brownfield – Brantford,
Ontario

Cost: $40.78 million

Contaminant: PHC, PAC, heavy metals, vinyl
chloride

The
City of Brantford have completed a cleanup project of 148 000 cubic metres of
contaminated soil at the Greenwich-Mohawk brownfield site. The area was historically
the location of various farming manufacturing industries that shut down,
leaving behind contaminants like PHC, PAC, heavy metals like lead, xylene, and
vinyl chloride.

Cleanup
began in 2015, and consisted coarse grain screening, skimming, air sparging,
and recycling of 120 000 litres of oil from the groundwater, using biopiles to
treat contaminated soil onsite with 73% of it being reused and the rest
requiring off site disposal.

Barriers
were also installed to prevent future contamination from an adjacent rail line
property, as well as to contain heavy-end hydrocarbons discovered during the
cleanup that could not be removed due to the release odorous vapours throughout
the neighbourhood. The 20 hectare site took two years to clean and costed only
$40.78 million of the allocated $42.8 million between the all levels of
government, as well as the Federation of Canadian Municipalities Green
Municipal Fund.

8. Rock Bay Remediation Project –
Victoria, British Columbia

Cost: $60 million

Contaminant: PAHs, hydrocarbons, metals

Located near downtown Victoria and within the traditional territories of the Esquimalt Nation and Songhees Nation, the project entailed remediating 1.73 hectares of contaminated upland soils and 2.02 hectares of contaminated harbour sediments. The site was the location of a former coal gasification facility from the 1860s to the 1950s, producing waste products like coal tar (containing PAHs), metals, and other hydrocarbons, which have impacted both the sediments and groundwater at the site.

Remediation occurred in three stages. From 2004 to 2006, the first two stages involving the remediation of 50 300 tonnes of hazardous waste soils, 74 100 tonnes of non-hazardous waste soils, and 78 500 tonnes of contaminated soils above commercial land use levels. In 2009, 250 tonnes of hazardous waste were dredged from two sediment hotspots at the head of Rock Bay. About 7 million litres of hydrocarbon and metal impacted groundwater have been treated or disposed of, and an onsite wastewater treatment plant was used to return treated wastewater to the harbour.

Construction
for the final stage occurred between 2014 to 2016 and involved:

  • installing
    shoring along the property boundaries to remove up to 8 metres deep of
    contaminated soils,
  • installing
    a temporary coffer dams
  • draining
    the bay to remove the sediments in dry conditions, and
  • temporary
    diverting two storm water outfalls around the work area.

Stage
three removed 78 000 tonnes of contaminated and 15 000 tonnes of
non-contaminated sediment that were disposed of/ destroyed at offsite
facilities.

Final post-remediation monitoring was completed in January 2017, with post-construction monitoring for 5 years required as part of the habitat restoration plan to ensure the marine habitat is functioning properly and a portion of the site will be sold to the Esquimalt Nation and Songhees Nation.

9. Bushell Public Port Facility
Remediation Project – Black Bay (Lake Athabasca), Saskatchewan

Cost: $2 million

Contaminant: Bunker C fuel oil

 Built in 1951 and operated until the mid-1980s, the Bushell Public Port Facility consist of two lots covering 3.1 hectares with both upland and water lots. The facility supplied goods and services to the local mines, and petroleum products to the local communities of Bushell and Uranium City. Historical activities like unloading, storing, and loading fuel oil, as well as a large spill in the 1980s resulted in the contaminated soil, blast rock, and bedrock in Black Bay that have also extended beyond the waterlot boundaries.

The remediation work occurred between 2005 to 2007, and involved excavation of soil and blast rock, as well as blasting and removing bedrock where oil had entered through cracks and fissures.

Initial
remediation plans were to crush and treat the contaminated material by low
temperature thermal desorption, which incinerates the materials to burn off the
oil residue. However, opportunities for sustainable reuse of the contaminated
material came in the use of the contaminated crush rock for resurfacing of the
Uranium City Airport. This costed $1.75 million less than the incineration
plan, and saved the airport project nearly 1 million litres of diesel fuel. The
crush was also used by the Saskatchewan Research Council in the reclamation of
the Cold War Legacy Uranium Mine and Mill Sites. A long term monitoring event
is planned for 2018.

10. Thunder Bay North Harbour –
Thunder Bay, Ontario

Cost: estimated at upwards to $50 million

Contaminant: Paper sludge containing mercury and other contaminants

 While all of the projects discussed so far have either been completed or are currently in progress, in Thunder Bay, the plans to clean up the 400 000 cubic metres of mercury contaminated pulp and fibre have been stalled since 2014 due to no organization or government designated to spearhead the cleanup.

While
the water lot is owned by Transport Canada, administration of the site is the
responsibility of the Thunder Bay Port Authority, and while Transport Canada
has told CBC that leading the cleanup is up to the port, the port authority was
informed by Transport Canada that the authority should only act in an advisory
role. Environmental Canada has participated in efforts to advance the planning
of the remediation work, but is also not taking the lead in the project either.
Further complications are that the industries responsible for the pollution no
longer exist.

Industrial activities over 90 years have resulted in the mercury contamination, which range in concentrations between 2 to 11 ppm on surface sediments to 21 ppm at depth. The thickness ranges from 40 to 380 centimetres and is about 22 hectares in size. Suggested solutions in 2014 include dredging the sediment and transferring it to the Mission Bay Confined Disposal Facility, capping it, or building a new containment structure. As of October 2018, a steering committee lead by Environment Canada, Transport Canada, Ontario’s environmental ministry and the Thunder Bay Port Authority, along with local government, Indigenous groups, and other stakeholders met to evaluate the remediation options, as well as work out who will lead the remediation.

TPH Risk Evaluation at Petroleum-Contaminated Sites

The United States Interstate Technology and Regulatory Council (ITRC) Total Petroleum Hydrocarbons (TPH) Risk Evaluation team has developed this guidance to assist state regulators and practitioners with evaluating risk and establishing cleanup requirements at petroleum release sites. This guidance focuses on factors that are unique to petroleum hydrocarbon releases and builds on other available documents published by the TPH Criteria Working Group (TPHCWG) (1997a1997b1997c1998a1998b1999), ITRC Risk-3 (2015), Massachusetts Department of Environmental Protection (MADEP) (2014), California State Water Board–San Francisco Bay Region (CASWB-SFBR) (2016a), and Texas Commission on Environmental Quality (TCEQ) (2017b).

Risk evaluations for petroleum release sites present complex and unique challenges to site managers, risk assessors, regulators, and other stakeholders. Mischaracterizing risks associated with petroleum contamination can lead to unnecessary cleanups, inappropriate property use limitations, or, most importantly, inadequate protection of human health and ecological receptors. Once released to the environment, petroleum contamination changes over time and space due to natural and anthropogenic weathering processes. Although traditional indicator compounds (e.g., benzene, toluene, ethylbenzene, xylene, and naphthalene [BTEXN]) may be present below levels of concern in impacted media, unidentified petroleum fractions or degradation products (metabolite compounds) could potentially still pose a risk to human health and ecological receptors. Summarizing approaches to evaluate this topic in more detail is one of the primary objectives of this document and it is hoped that this document will assist in further research regarding this subject.

A common assumption at petroleum release sites is that the carcinogenic indicator compounds (e.g., benzene, naphthalene, and, for some regulatory agencies, ethylbenzene and additives such as methyl tertiary-butyl ether [MTBE]) typically drive risk-based decision making rather than other petroleum compounds that may be present. However, very few field-based studies comparing risks posed by individual compounds found in TPH (such as benzene) to risks posed by the broader spectrum of TPH-related compounds have been published (Brewer et al. 2013). Additionally, concentrations of carcinogenic compounds might be reduced to low concentrations relative to other hydrocarbons due to natural attenuation processes. At such sites, the remaining petroleum hydrocarbons and petroleum-related degradation products (e.g., petroleum-related metabolites) can be expected to contribute to the potential human health noncarcinogenic risk at petroleum release sites.

This guidance will improve regulators’ and project managers’ understanding of the unique properties of TPH and provide the tools, techniques, and lessons learned to improve risk characterization and to make better-informed risk management decisions at petroleum-contaminated sites.

To access the guidance document, visit the ITRC website.

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.

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