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Contaminated Site Clean-up Opportunities in China

As reported by the South China Morning Post, China’s government recently approved a new plan to tackle growing pollution threats in its countryside, and will strive to clean up contaminated rural land and drinking water and improve waste management.

The new plan, approved “in principle” by the Ministry of Ecology and Environment is the summer also mandates cuts in fertilizer and pesticide use and improved recycling rates throughout the countryside.

Industrial pollution of land in China. The authorities have been reluctant to divulge details of the localised scale of the problem (Image by JungleNews)

China is in the fifth year of a “war on pollution” designed to reverse the damage done by decades of tremendous economic growth, but it has so far focused primarily on air quality along the industrialized eastern coast, especially around the capital Beijing.

China’s countryside has struggled to cope with land and water pollution caused not only by unsustainable farming practices, but also by poorly regulated, privately-owned mines and manufacturing plants, as well as rising volumes of plastic waste.

Rehabilitating contaminated land has become a matter of urgency for the Chinese government, which is under pressure to maximize food production while at the same time it is setting aside one-quarter of the country’s land as off-limits to development by 2020.

Total arable land declined for a fourth consecutive year in 2017 as a result of new construction and tougher environmental requirements, the government said in May.

The State Council published a plan in February to deal with growing volumes of untreated rubbish dumped in the countryside, promising to mobilise public and private funds to make “noticeable improvements” to the living environment of rural regions by 2020.

It vowed to restore wetlands, plant trees and eliminate “disorderly” rural construction to improve the appearance of China’s villages, and would also focus on improving garbage and sewage treatment.

In August, the Chinese government enacted the Soil Pollution Prevention and Control Law.  This is the first time China has enacted a law targeting soil pollution.  For existing soil pollution, the law holds polluters and users (as it is rare in China for individuals to own land) accountable for a series of risk management and remediation obligations, with the polluters being primarily responsible.

According to an article by IISD, the estimated cost for remediation efforts between 2016 and 2020 at $1.3 trillion (USD). The government itself estimates it might be able to cover only a small fraction of the overall cost.  During China’s the 12th Five-year Plan (2011–2015), only $4.5 billion) was allocated to soil remediation, mainly for urban areas.

Combine polluter payments with government support and a prohibitive capital gap still exists in China’s efforts to restore land and protect public health. This gap will have to be filled by private sources.

Decades Long Secret of Lead Contaminated Soil in Winnipeg

As reported by the CBC, testing performed on soil in several other Winnipeg neighbourhoods more than 10 years ago showed potentially dangerous levels of lead — but residents were never told about the results because the  government at the time withheld the information, according to documents obtained by CBC News.

Documents obtained by CBC through government sources reveal an extensive round of soil testing was conducted by the provincial government in 2007 and 2008 around Point Douglas, Wolseley, Minto and South Osborne.

Residential boulevards were targeted, as were playgrounds, schools and sports fields.

Two draft reports written 

At least two draft reports detailing the results were written in 2009 and 2011, as well as a draft news release and technical report. For reasons that remain unclear, the government never publicly released the reports.

Of the samples taken in the Point Douglas area, 17 came back positive for lead contamination above acceptable levels and a further 10 residential sites in other areas of Winnipeg also exceeded Canadian Council of Ministers of the Environment, or CCME, guidelines for lead levels.

Excerpt from the 2011 Report

A chart taken from a 2011 report that details lead levels found in residential boulevards in Point Douglas. A result of 140 ug/g — micrograms per gram, or parts per million — or higher exceeds national safety guidelines for human health protection. (Surface Soil Lead Levels in Winnipeg: 2007-2008)

The acceptable level is 140 parts per million. One result showed 2,240 ppm on Angus Street near Sutherland Avenue in Point Douglas.

According to the report, the possible causes of contamination in the city are historic use of leaded gas, a number of now-shuttered lead smelters, scrap recycling yards, the railyards and metal manufacturing operations.

At the sports field for Weston School — an elementary school located just off of Logan Avenue and 280 metres south of a now-closed smelter site — 19 soil samples came back with results that exceeded CCME guidelines.

Government officials could find no record of the Winnipeg School Division being told about the results or evidence that the sports field had been remediated.

A spokesperson for the province’s Sustainable Development department confirmed the documents were never publicly released by the previous government. He said residents and the school divisions were not informed of the results, according to people still working in the department.

He also said no soil remediation was done in response to the results of the report.

The Archibald Tot Lot, Hespeler Park, Maryland Park, Spence Tot Lot and Lord Nelson elementary school all had a least one sample showing unsafe levels of lead.

Locations of high lead contamination in the soil in Winnipeg Neigbourhoods

Children shouldn’t play in sports field: Professor

Francis Zvomuya, a professor of soil science at the University of Manitoba, wasn’t surprised by the test results but said some of the numbers were particularly alarming, including the high levels in Weston and in Point Douglas.

In the case of Weston School, the lead levels had increased since the 1980s, when the first round of tests were completed. Zvomuya said if no attempts were made to clean up the area in the past 10 years, children should not be playing there.

“The case that is particularly glaring is Weston elementary. When you look at the concentrations at the majority of sites [tested] … out of the 22 they looked at, only two sites were not contaminated,” he said.

“That is concerning when you look at the concentrations.”

He said there are a number of health issues that come with exposure to lead, including impaired neurological development and developmental delays in children, as well as learning difficulties.

Health Canada says even very small amounts of lead in the bloodstream can have harmful health effects and children are especially at risk.

Lead can affect their brain development, behaviour, blood and kidneys. Severe cases of lead poisoning are rare in Canada but can cause vomiting, diarrhea or convulsions.

Children are at risk of ingesting lead if they play in contaminated soil and put their hands in their mouth. Ongoing exposure puts people at higher risk of developing health complications.

“Every time you have a site that is frequented by kids or where kids spend a reasonable amount of time playing, then there is a concern — because then there is a risk of exposure to the contaminants,” Zvomuya said.

New testing in Point Douglas area

A senior official with the current government said that new testing of soil in the Point Douglas will be completed by the end of October.  A report on the results will be completed by December  2018 and publicly released.

Zvomuya was in charge of the soil tests that occurred last year in St. Boniface and will lead the new tests the government has ordered for the Point Douglas area.

The best way to clean up the contaminated soil is to bring in new soil to these areas, he said. He said the clean-up should be concentrated in the areas most frequented by children

“If you have a site where our kids play and where humans spend a lot of hours working or playing or doing recreational activities … then they have to be remediated,” he said.

“It may be expensive but that is the only way we can have people doing activities without facing the risk of lead poisoning.”

Developer takes Alberta to appeal board over former Edmonton wood treatment plant

As reported by Global News, Cherokee Canada is fighting five enforcement orders imposed by Alberta Environment and Parks (AEP) connected to the former Domtar Wood Treatment Facility located in Edmonton.  AEP has been conducting an investigation on properties associated with the former Wood Treatment Plant. As a result of the investigation, a number of Enforcement Orders were issued to the current owners, Cherokee Canada.

Nearby residents, concerned by off-site migration of wood treatment chemicals, have been kept up-to-date of the results of the AEP investigation and subsequent enforcement actions. Contaminants from a historical wood treatment processing plant continue to exist on property formerly occupied by the Domtar Wood Treatment Plant.  This contamination, which originated prior to 1987, consists of benzene, dioxins and furans, free hydrocarbons, naphthalene, polycylic aromatic hydrocarbons (PAH) mixtures, and pyrene.

AEP stated in a news release that it issued the Enforcement Orders to ensure the responsible parties implement appropriate remedial measures and mitigate the potential risks that have been identified.  The latest Enforcement Orders require that the source of the contamination be controlled and remedial measures be implemented in specific areas of the property.

Off-site testing at lands adjacent to Cherokee Canada development (Photo Credit: CTV Edmonton)

Results of off-site testing for contamination in early 2018 found that contamination had not migrated off-site and that there are no health concerns in the surface soil of people’s properties. The off-site testing program was conducted by an independent third-party consulting firm under the direction of AEP.

Cherokee Canada, the developer has started turning the site of the old Wood Treatment Plant in northeast Edmonton into a new residential community but the current and ongoing legal proceedings have halted the project.  “It’s been very difficult because it’s effectively frozen our activities for three years now,” said John Dill, Cherokee Canada’s managing partner.  “It’s very expensive to go through this process, ” he added.

Houses have already been built in the neighbourhood but recently, the AEP questioned the safety of the soil.  AEP said third party testing at the site found chemicals dangerous to human health. The enforcement orders require Cherokee to remediate any contamination.

“The core aspect of these orders is to basically remove potentially large amounts of soil from these sites,” said Gilbert Van Nes, general counsel for the Environmental Appeals Board. “Domtar and Cherokee disagree that this is necessary.”

Both Cherokee Canada and Domtar have completed remediation efforts but AEP, through the enforcement orders, are claiming that they didn’t go far enough.

“Our approach was to take the contaminated soil, isolate it in a separate soil berm — again, a common practice in other jurisdictions — and ensure the soil was protected from exposure to other receptors, humans, animal,” Dill said.  “The disagreement is over how we can remediate this site so it’s safe for residential standards so that we can complete our residential development and restore the site that was previously contaminated to productive use.”

Three environmental experts are heading up the independent appeal board.  The board will pass its findings on to the environment minister and Shannon Phillips will make the final decision on whether construction can resume. However, a decision is not expected until December.

A map shows the former site of the Domtar creosote plant. (Photo Credit: CBC)

 

U.S. Ninth Circuit Rules Military Contractor Liable on CERCLA Clean-up Costs

Written by: By Whitney Jones Roy and Whitney HodgesSheppard Mullin Richter & Hampton LLP

TDY Holdings, LLC brought suit for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) against the U.S. government relating to environmental contamination at TDY’s manufacturing plant. The district court granted judgment in favor of the government after a 12-day bench trial and allocated 100 percent of past and future CERCLA costs to TDY. On appeal, the Ninth Circuit held that the district court sharply deviated from the two most “on point” decisions regarding allocation of cleanup costs between military contractors and the U.S. government when it determined the cases were not comparable, clarified the applicability of those cases, and remanded the case to reconsider the appropriate allocation of cleanup costs between TDY and the U.S. government.

TDY (formerly known as Ryan Aeronautical Company) owned and operated a manufacturing plant near the San Diego airport

From 1939 through 1999, TDY (formerly known as Ryan Aeronautical Company) owned and operated a manufacturing plant near the San Diego airport. TDY’s primary customer was the U.S. government—99 percent of TDY’s work at the plant between 1942 and 1945, and 90 percent of the work thereafter was done pursuant to contracts with the U.S. military. The United States also owned certain equipment at the site from 1939 to 1979. Id. at 1006. Chromium compounds, chlorinated solvents, and polychlorinated biphenyls (PCBs) were released at the site as a result of their use during manufacturing operations. Id. In some cases, the government’s contracts required the use of chromium compounds and chlorinated solvents. Id. After passage of the Clean Water Act and other environmental laws classifying these chemicals as hazardous substances in the 1970s, TDY began environmental remediation and compliance at the site and billed the government for the “indirect costs” of that work, which the government paid. Id. at 1006–07. TDY incurred over $11 million in response costs at the site. Id. at 1007. Until the plant’s closure in 1999, the government reimbursed 90 to 100 percent of TDY’s cleanup costs at the site. Id. at 1007, 1010.

In 2004, the San Diego Unified Port District brought CERCLA claims against TDY. TDY and the Port District entered into a settlement agreement in March 2007 in which TDY agreed to cleanup releases at the site. TDY then brought suit for contribution under 42 U.S.C. § 9613(f)(1) and declaratory relief against the United States. Id. at 1007. The district court granted TDY’s motion for partial summary judgment declaring that the United States was liable as a past owner of the site under CERCLA. Id. After a 12-day bench trial on equitable allocation of costs, the district court held that the contamination caused by the hazardous substances at issue was attributable to TDY’s storage, maintenance, and repair practices, as well as spills and drips that occurred in the manufacturing process, rather than to the government’s directives to use the chemicals. Id. Accordingly, the district court allocated 100 percent of the past and future response costs for remediation of the three hazardous substances to TDY. Id. at 1008.

On appeal, TDY argued that the district court erred (1) when it allocated liability according to “fault”; (2) that the government’s role as owner rather than operator should not have been a dispositive factor in the court’s allocation, and (3) that the government should bear a greater share of response costs because it specifically required use of the chemicals at the site. Id. The court of appeals summarily rejected TDY’s first two arguments, but found that the district court did err in its analysis and application of binding authority on point: United States v. Shell Oil Co., 294 F.3d 1045 (9th Cir. 2002) and Cadillac Fairview/California, Inc. v. Dow Chem. Co., 299 F.3d 1019 (9th Cir. 2002). Id. at 1008–09. Shell Oil and Dow Chemical each produced products to support the U.S. military during World War II and incurred liability for contamination caused by hazardous chemicals that the government required to be used. In both cases, the Ninth Circuit affirmed the district courts’ allocation of 100 percent of cleanup costs to the government because “the contractors’ costs were ‘properly seen as part of the war effort for which the American public as a whole should pay.’” Id. at 1009.

The Ninth Circuit disagreed with the district court’s conclusion that Shell Oil and Cadillac Fairview were not comparable, but agreed that some deviation from their allocations were appropriate. Id. The Ninth Circuit agreed that the government exercised less control over TDY than it did over Shell Oil Co. or Dow Chemical. In support of this determination, the court noted that the government was an operator, rather than an owner, of TDY’s site, that the government-owned equipment was removed from the site 20 years before TDY ceased operations, and that TDY’s own practices at the site caused the contamination. Id. at 1010. Furthermore, the district court properly determined that “industrial operations undertaken for the purpose of national defense, standing alone, did not justify allocating all costs to the government.” Id.

However, the Ninth Circuit held that, in allocating 100 percent of cleanup costs to TDY, the district court failed to consider that the government required TDY to use two of the three chemicals at issue beginning in the 1940s, when the need to take precautions against environmental contamination from these substances was not known. Id. Furthermore, the Ninth Circuit determined that “[t]he court’s acknowledgement of the evolving understanding of environmental contamination caused by these chemicals, and TDY’s prompt adoption of practices to reduce the release of hazardous chemicals into the environment once the hazards became known, further undercuts the decision to allocate 100 percent of the costs to TDY.” Id. The district court also failed to consider the parties’ lengthy course of dealing through 1999, when the government paid between 90 and 100 percent of cleanup costs at the plant. Id. Although “a customer’s willingness to pay disposal costs . . . cannot be equated with a willingness to foot the bill for a company’s unlawful discharge of oil or other pollutants,” the Ninth Circuit nevertheless determined it should have been a relevant factor in the allocation analysis. Id.

This article was originally published on the Sheppard Mullin Real Estate, Land Use & Environment Law Blog

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About the Authors

Whitney Jones Roy is a litigation partner in firm’s Los Angeles office. Ms. Roy was recognized by Law360 as a “Female Powerbroker” and by the Daily Journal as one of the Top 100 Women Lawyers in California in 2014.  Ms. Roy has experience in all aspects of California and federal civil procedure through trial. She also defends her clients on appeal when necessary.  Ms. Roy also specializes in complex environmental litigation and related products liability litigation. Her expertise includes the Clean Air Act, CERCLA, RCRA, design defect, failure to warn, negligence, nuisance, and trespass.

Whitney Hodges is an associate in the Real Estate, Land Use and Natural Resources Practice Group in the firm’s San Diego office. She also serves on the firm’s Diversity and Inclusion Committee, Pro Bono Committee, Recruiting Committee, Energy, Infrastructure and Project Finance Team and Latin Business Team.  Ms. Hodges specializes in the representation of clients involved in real estate development. Her practice focuses on advising and representing major residential, industrial, commercial and mixed-use development projects, as well as Native American Indian tribes and renewable energy developers through all phases of the land use regulatory process and environmental compliance.

 

 

Long Lake Gold Mine remediation project hits stumbling block

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

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

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

Long Lake (Photo Credit: Markus Schwabe/CBC)

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

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

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

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

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

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

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

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

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

 

New Canadian Soil Quality Guidelines for Methanol

The Canadian Council of Ministers of the Environment (CCME) recently published an updated the Canadian Soil Quality Guidelines for the Protection of Environmental and Human Health: Methanol.

Canadian environmental quality guidelines are numerical concentrations or narrative statements recommended to provide a healthy, functioning ecosystem capable of sustaining the existing and likely future uses of the site by ecological receptors and humans.  Canadian soil quality guidelines can be used as the basis for consistent assessment and remediation of contaminated sites in Canada. The guidelines in the report were derived according to procedures described in A Protocol for the Derivation of Environmental and Human Health Soil Quality Guidelines (CCME 2006).  According to this protocol, both environmental and human health soil quality guidelines are developed and the lowest value generated from the two approaches for each of the four land uses is recommended by the Canadian Council of Ministers of the Environment (CCME) as the Canadian Soil Quality Guidelines (CCME 2006).

Sufficient data were available to develop soil quality guidelines for methanol protective of human health, in accordance with the soil protocol.  The human health soil quality guidelines for methanol are 4.6 mg/kg for coarse soil and 5.6 mg/kg for fine soil for all four land uses.  Human health soil quality guidelines were calculated for soil ingestion, inhalation of indoor air, and protection of groundwater for drinking water. The limiting pathway in the calculation of human health guidelines was drinking water.

Sufficient data were available to develop soil quality guidelines for methanol protective of environmental health, in accordance with the soil protocol.  The environmental health soil quality guidelines for methanol are: 7.7 mg/kg for coarse soil and 190 mg/kg for fine soil for all four land uses. Environmental health soil quality guidelines were calculated for ecological direct contact and protection of groundwater for aquatic life.  The limiting pathway in the calculation of environmental health guidelines was aquatic life.  Since it was possible to calculate both human health and environmental soil quality guidelines for methanol, the overall methanol soil quality guidelines are the lower of the two, which are 4.6 mg/kg for coarse soil and 5.6 mg/kg for fine soil for all four land uses.

When Is a Discharge to Groundwater Subject to the U.S. Clean Water Act? Can You Say “Significant Nexus”?

By Seth Jaffe, Foley Hoag LLP

Whether the United States Clean Water Act regulates discharges to groundwater has been a topic of significant debate.  At this point, there seems to be something of a trend in the cases towards concluding it does, but it remains true that all of the courts of appeal that have addressed the issue have concluded that it does not.  As I have noted, the problem with the “yes” answer is that pretty much all groundwater eventually discharges to surface water, making all such discharges subject to the CWA.  How can that be, given that groundwater is not considered to be “waters of the United States?”

Chief Judge Waverly Crenshaw recently addressed the issue in Tennessee Clean Water Network v. TVA.  Judge Crenshaw’s solution was creative – meaning he pretty much made up out of whole cloth.  That doesn’t necessarily mean that it’s wrong, however.

The case involves coal ash management at the TVA’s Gallatin plant.  Some of the – unlined – ponds directly abut the Cumberland River.  The plaintiff citizen groups brought claims under the CWA, alleging that TVA was discharging pollutants to the River – via groundwater – without an NPDES permit.  They requested an injunction requiring that the TVA remove the coal ash from the ponds, at a cost of $2 billion.

Gallatin power plant, operated by the Tennessee Valley Authority in mid-Tennessee on the north bank of the Cumberland River. Location of the main coal-burning facility is indicated by the icon and label.

Judge Crenshaw was clearly frustrated by an absolutist position on either side.  Clearly, he does not think that any link between groundwater and surface water, no matter how attenuated, can be enough for jurisdiction to attach.  On the other hand, he was also trying to reckon with the specific case in front of him.  As he saw it, the Gallatin ash ponds were a complete environmental mess.  They immediately abut the Cumberland River, clearly a water of the United States.  Can the outcome really be different if the ponds discharge directly to the River than if they discharge to groundwater 10 feet from the River, where that groundwater then discharges to the river?

His solution?

the Court concludes that a cause of action based on an unauthorized point source discharge may be brought under the CWA based on discharges through groundwater, if the hydrologic connection between the source of the pollutants and navigable waters is direct, immediate, and can generally be traced.

I confess I like this solution, because it is practical and will generally yield reasonable results.  It avoids either effectively regulating all groundwater under the CWA or having to conclude that the CWA can’t reach situations such as the Gallatin ash ponds.

The problem?

There’s no textual support for this solution in the CWA.  To me, this test sounds a lot like Justice Kennedy’s “significant nexus in Rapanos.  There too, his position received a lot of support at a practical level, while many commentators noticed that the CWA says nothing about a “significant nexus.”

We all know how well that’s worked out.

This article was first published in Law and the Environment, a blog from Foley Hoag LLP.

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About the Authors

Seth D. Jaffe

A partner at Foley Hoag, Seth Jaffe is recognized by Chambers USA, The Best Lawyers in America and Massachusetts SuperLawyers as a leading… MORE

Kathleen Brill

Kathleen Brill is an Associate practicing in the Administrative Department of Foley Hoag’s Boston office. Before joining Foley Hoag, Kathleen had considerable experience…MORE

 

Canada: Environmental Review Tribunal gives Ministry Broad Preventative Powers over Migrating Contamination

Article by Stanley D. Berger, Fogler, Rubinoff LLP

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

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

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

 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

About the Author

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in environmental law.  He was called to the Ontario Bar in 1981. He joined the law firm of Fogler Rubinoff on July 4 2013.  Stanley was the founder of the Canadian Nuclear Law Organization and served as its President between 2008-2015, and remains a board member.  He is also is a former President of the International Nuclear Law Association.  He has taught nuclear law for the Nuclear Energy Agency in France and is an adjunct professor for York University’s Professional Master’s Degree in Energy.  Stanley is the author of a quarterly publication entitled “The Prosecution and Defence of Environmental Offences” and edits an annual review of environmental law.

Stanley represents suppliers and operators in the nuclear industry on nuclear liability, regulatory and supply chain issues. He provides legal advice to the Nuclear Waste Management Organization. Other clients include the CANDU Owners Group and a large Ontario municipality. His environmental practice includes litigation before courts, boards and tribunals, as well as solicitor’s work on behalf of renewable energy companies, landowners and waste management entities. He represented a First Nation on regulatory matters relating to a renewable energy project. His practice also includes the protection of proprietary information on applications before Ontario’s Freedom of Information and Privacy Commission.

This article was originally published on the Fogler, Rubinoff LLP website.

Canada: Oil Spill Liability – Kawartha Lakes Continues

By Donna Shier, Partner and Certified Environmental Law Specialist, Joanna Vince, Senior Associate and Raeya Jackiw, Student-at-Law, Willms & Shier

Background

In the most recent decision in the ongoing Kawartha Lakes saga, the Superior Court of Justice found homeowner Mr. Wayne Gendron partly responsible for an oil spill that destroyed his lakeside property.  The Court also found Mr. Gendron’s fuel distributor liable for a portion of the costs.  This decision serves to warn homeowners that a distributor’s delivery of fuel does not mean that their tanks are safe. It also cautions fuel distributors that they may be liable for spills brought about by a homeowner’s negligence.

The Facts

Thompson Fuels (“Thompson”) supplied 700 liters of fuel oil to two tanks in Mr. Gendron’s basement.  Mr. Gendron had installed the fuel tanks himself without proper shut off valves, contrary to industry standards.

During a period of financial difficulty, Mr. Gendron filled these fuel tanks with less expensive stove oil.  The stove oil introduced water and microbes into the tanks, causing the tanks to corrode.  When Thomspon delivered the fuel oil one of the tanks leaked, spilling approximately 600 liters.

In the hours following the fuel delivery Mr. Gendron tried to manage the spill on his own by collecting what he believed to be all of the leaking oil in Tupperware containers.  Approximately 24 hours later, Mr. Gendron called Thompson to complain that it had not delivered his entire shipment of fuel oil – he was short about 600 liters.  Mr. Gendron never called to report the spill to the MOECC’s Spills Action Centre hotline.

The fuel oil migrated under Mr. Gendron’s house, through the City of Kawartha Lake’s drainage system, and into nearby Sturgeon Lake. The Ontario Ministry of the Environment and Climate Change (MOECC) ordered Mr. Gendron and his wife to “ameliorate the adverse effects caused by the discharge of the furnace oil” and “restore the natural environment… to the extent practicable.”  Mr. Gendron began remediation of the contamination of his property and the contamination of Sturgeon Lake.

Early remediation efforts were complicated by the frozen lake and soil. Mr. Gendron’s personal insurance was rapidly exhausted.  His insurer eventually refused to fund further off-site remediation of Sturgeon Lake.

The remediation efforts cost nearly $2 million  and required the demolition of Mr. Gendron’s home.

Sturgeon Lake, Kawatha Lakes Region, Ontario

The City’s MOECC Order

The MOECC ordered the City of Kawartha Lakes to clean up any fuel oil remaining in the City’s culverts and sewers that could re-contaminate Sturgeon Lake.  The City appealed the order first to the Environmental Review Tribunal, then to the Divisional Court, and ultimately to the Ontario Court of Appeal, losing each time. (See our previous article on the Court of Appeal’s decision here.)

Environmental Protection Act Claims

Using its powers under the Ontario Environmental Protection Act (“EPA”), s. 100.1 the City ordered compensation for its remediation costs from Mr. Gendron, Thompson and the Technical Standards and Safety Authority (“TSSA”).  Mr. Gendron, Thompson and the TSSA appealed the order to the Environmental Review Tribunal.  Thompson and the TSSA settled with the City and withdrew their appeals.  Mr. Gendron’s appeal was unsuccessful and he was required to pay more than $300,000 of the City’s costs.  Mr. Gendron then brought a claim for contribution and indemnity against Thompson under EPA, s. 100.1(6).  In this most recent case, the Court found that Mr. Gendron could not make out his EPA claim because ownership and control of the fuel oil had transferred to him when the fuel oil was delivered to him by Thompson.  Mr. Gendron’s claim for contribution under the EPA was dismissed.

About the Authors

Donna Shier, Partner & Certified Environmental Law Specialist.  With almost 40 distinguished years of experience practicing environmental law, Donna Shier is one of Canada’s leading environmental counsel to major industrial corporations. Donna is also frequently called upon by corporate, commercial and real estate lawyers to assist their clients with environmental legal issues, and provides environmental law expertise to external litigation counsel. Donna is a qualified mediator and is an accredited member of the ADR Institute of Canada. Donna is called to the bar of Ontario.

Joanna Vince, Senior Associate.  Joanna Vince has significant expertise representing a wide range of clients with environmental issues, civil claims and prosecutions, orders and appeals. Joanna was admitted to the bar of Ontario in 2011.  Joanna has a B.Sc. (Hons., High Distinction) in biology and environmental science, and a Certificate in Environmental Studies. Joanna’s knowledge of and commitment to environmental issues was recognized by the University of Toronto, which awarded her the Arthur and Sonia Labatt Fellowship and the Douglas Pimlott Scholarship. Also at the University of Toronto, Joanna assisted with preparing academic papers and books as a research assistant on wind power, carbon taxes and climate change.

Raeya Jackiw, Student-at-Law.  Prior to articling at Willms & Shier, Raeya was a summer student at the firm and conducted legal research on issues in environmental, aboriginal, energy, constitutional, administrative, contract, tort, and civil procedure law. She has a Juris Doctor, Certificate in Environmental Law from the University of Toronto, a Masters Degree in Environmental Science from the University of Guelph, and a Bachelor’s Degree in Environmental Science from Queen’s University.

This article was originally published on the Wilms & Shier website.

CERCLA Trumps As-Is Sales

By Steven L. Hoch, Attorney, Clark Hill

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

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

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

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

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

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

 

This article was first published on the Clark Hill website.

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About the author

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

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

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