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United States: When Is Property Damage From A Release “Expected Or Intended”? Only After The Owner Learns Of The Spill And Ignores It

Written by Seth JaffeFoley Hoag LLP

Any good trial lawyer will tell you that the law is about telling stories.

Once upon a time, Timothy and Stacy Creamer bought a house.  Only after they closed did they realize that some strategically placed rugs were hiding the evidence that, “up from the ground come a bubblin’ crude.”

Unlike Jed Clampett, rather than finding themselves millionaires, the Creamers found themselves with a million dollar liability – literally.

This being a law story, of course the sellers were bankrupt.  The Creamers thus pursued the sellers’ insurer.  The case ended up in the Appeals Court, which held that the Creamers could pursue their claims under the policy.

The insurer, Arbella, made three arguments in support of its summary judgment motion.  The Court rejected them all.  In order, the Court held that:

  1. The property damage was caused by an occurrence.  Arbella argued that the damage was caused by the sellers’ fraud, not by the original release of oil.  However, as the Court pointed out, the Creamers’ had claims based on Chapter 21E, the Commonwealth’s superfund law.  Since Chapter 21E is a strict liability statute, the Creamers’ damages were caused by the release, not by the sellers’ fraud.  (But see number 3, below!)
  2. The loss occurred during the policy period.  Following precedent, the Court concluded that, so long as the property damage occurred during the policy period, it did not matter that the harm to the claimant did not occur until later.
  3. At least some of the damage was not “expected or intended.”  This is the most significant part of the case.  While preserving Creamers’ claims, the Court split the baby on this one.  It held that the original release was not expected or intended, but that, once the sellers discovered the spill without doing anything about it, any further damage was “expected” by the seller.  The Court thus remanded for a determination by the Superior Court how much of the total property damage was “expected.”

The Creamers will thus get their day in court, but, depending on when the sellers learned of the contamination, their recovery could be significantly limited.  They certainly will not get enough to move to Beverly Hills.  No swimming pools or movie stars for the Creamers.

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

Seth Jaffe is recognized by Chambers USA, The Best Lawyers in America and Massachusetts Super Lawyers as a leading practitioner in environmental compliance and related litigation. He is one of the authors of the Law and the Environment Blog, www.lawandenvironment.com, which provides real-world perspectives on current developments in environmental law and regulation. Seth is a past President of the American College of Environmental Lawyers.

Seth works on a wide range of environmental law issues, representing clients in the permitting/licensing of new facilities and offering ongoing guidance on permitting and enforcement related matters under federal and state Clean Air Acts, Clean Water Acts, RCRA, and TSCA. He also advises on wetlands and waterways regulation. Seth’s clients include electric generating facilities, companies in the printing and chemical industries, and education and health care institutions.

Are New United States Regulations Coming for Accidental Releases into Air?

By Louis A. Ferreira, Willa B. Perlmutter, and Guy J. Thompson, Stoel Rives LLP

On February 4, 2019, a federal court ruled that the U.S. Chemical and Safety Hazard Board must issue regulations within one year that set forth reporting requirements for accidental releases of hazardous substances into the ambient air. This requirement has been part of the Board’s statutory mandate since its inception in 1990 pursuant to Section 112(r)(6)(C)(iii) of the Clean Air Act (“CAA”). Nevertheless, the Board has never issued any such regulations.

Four non-profit groups and one individual filed a one-count complaint against the Board, seeking declaratory relief and an injunction to compel the Board to promulgate reporting requirements as required by the CAA. Plaintiffs claimed that the Board had violated the Administrative Procedure Act by not issuing any regulations. Plaintiffs further asserted the lack of reporting requirements have impaired their respective abilities to collect information that would help prevent future releases and the harm caused from such releases.

The United States District Court for the District of Columbia agreed with the plaintiffs and ruled that the Board must issue regulations within one year. In reaching its decision, the Court rejected the Board’s defenses that the delay in promulgating regulations was reasonable given the Board’s limited resources, small staff size, and other required functions. “[I]f that is the case,” the Court said, “the solution to its resource constraints is not to ignore a congressional directive[,] [i]t is to return to Congress and ask for relief from the statutory requirement.” The case is Air Alliance Houston, et al. v. U.S. Chem. & Safety Hazard Investigation Bd., D.D.C., No. 17-cv-02608, February 4, 2019.

The Court’s decision appears to follow a similar one issued in August 2018 in which some of the same plaintiffs brought a complaint against the U.S. Environmental Protection Agency. In that case, the plaintiffs petitioned the D.C. Court of Appeals for review of the EPA’s decision to delay for 20 months the effective date of a rule designed to promote accident safety and enhance the emergency response requirements for chemical releases. The Court rejected all of EPA’s defenses justifying the delay in a strongly-worded opinion that held the agency strictly to the letter of the CAA. That case is Air Alliance Houston, et al. v. EPA, 906 F.3d 1049 (D.C. Cir. 2018).

The same directness is evident in this recent decision.

Ultimately, the practical effect of the ruling is not clear. There are already laws in place that require companies to report accidental releases to state and federal authorities. It is possible the Board will promulgate regulations that align with its current practice of deferring reporting requirements to other agencies. If the Board took that approach, there likely would not be a noticeable difference in reporting requirements from the current practice.

On the other hand, the two recent decisions discussed above suggest that a trend may be forming in which the courts are pushing back when the government steps off its clear statutory path.


This article has been republished with the permission of the authors. The original post of this article can be found on the Stoel Rivers LLP website.

About the Authors

Lou Ferreira is a senior partner with more than 27 years of complex trial experience.  His practice focuses on commercial litigation, insurance coverage and environmental, safety & health issues.  A seasoned litigator, Lou has significant experience in high-stakes litigation including successfully defending a class action filed against a utility by residents of a town in Washington asserting that the utility was liable for flooding as a result of the operations of its upstream dams.  Lou  successfully defended a port in Washington from a $20 million lawsuit brought by developers alleging breach of contract to develop a large mixed-use waterfront project on the Columbia River. 

Willa Perlmutter has more than 30 years of experience as a litigator, focusing for the last 20 on defending mine operators across all sectors of the industry in administrative enforcement proceedings brought by the Mine Safety and Health Administration (MSHA) for alleged violations of the Mine Act.  In addition, she regularly counsels clients on a broad range of issues that affect their mining operations, from personnel policies and actions to compliance with a broad range of federal statutes. Willa regularly defends companies and individuals facing investigations and formal legal proceedings for alleged safety and health violations under both the Federal Mine Safety and Health Act of 1977 and the Occupational Safety and Health Act of 1970, whether those arise out of a catastrophic event, such as an accident, or in the course of a regular inspection by MSHA or Occupational Safety and Health Administration (OSHA). She has successfully defended a number of mining companies in whistleblower cases brought under the Mine Act.

Guy Thompson is a litigator and advisor on a wide-range of insurance matters. His practice focuses on insurance coverage litigation, including natural resources/environmental insurance coverage, and a wide variety of risk management issues. Guy helps policyholders obtain the recovery they deserve from their insurers and has helped recover millions of dollars from insurance companies for his clients. Guy is skilled at getting insurance carriers to cooperate in paying claims and often secures settlements with insurers without the need for litigation. Recently, he helped recover over $1.65 million from multiple insurance carriers for a Portland company that was required to perform environmental cleanup by the Oregon Department of Environmental Quality.

U.S. Mining Sites – Legacy of Contamination Needs to be Addressed

https://www.thechronicleherald.ca/news/world/us-mining-sites-dump-50m-gallons-of-fouled-wastewater-daily-285939/

Rimini, Montana – Every day many millions of gallons of water loaded with arsenic, lead and other toxic metals flow from some of the most contaminated mining sites in the U.S. and into surrounding streams and ponds without being treated, The Associated Press has found.

That torrent is poisoning aquatic life and tainting water supplies in Montana, California, Colorado, Oklahoma and at least five other states.

The pollution is a legacy of how the mining industry was allowed to operate in the U.S. for more than a century. Companies that built mines for silver, lead, gold and other “hardrock” minerals could move on once they were no longer profitable, leaving behind tainted water that still leaks out of the mines or is cleaned up at taxpayer expense.

Using data from public records requests and independent researchers, the AP examined 43 mining sites under federal oversight, some containing dozens or even hundreds of individual mines.

The records show that at average flows, more than 50 million gallons of contaminated wastewater streams daily from the sites. In many cases, it runs untreated into nearby groundwater, rivers and ponds — a roughly 20-million-gallon daily dose of pollution that could fill more than 2,000 tanker trucks.

The remainder of the waste is captured or treated in a costly effort that will need to carry on indefinitely, for perhaps thousands of years, often with little hope for reimbursement.

The volumes vastly exceed the release from Colorado’s Gold King Mine disaster in 2015, when a U.S. Environmental Protection Agency cleanup crew inadvertently triggered the release of 3 million gallons (11.4 million liters) of mustard-colored mine sludge, fouling rivers in three states.

At many mines, the pollution has continued decades after their enlistment in the federal Superfund cleanup program for the nation’s most hazardous sites, which faces sharp cuts under President Donald Trump.

Federal officials have raised fears that at least six of the sites examined by AP could have blowouts like the one at Gold King.


Mine waste mixes with runoff at the Gold King Mine. (Provided by the U.S. Environmental Protection Agency)

Some sites feature massive piles or impoundments of mine waste known as tailings. A tailings dam collapse in Brazil last month killed at least 169 people and left 140 missing. A similar 2014 accident in British Columbia swept millions of cubic yards of contaminated mud into a nearby lake, resulting in one of Canada’s worst environmental disasters.

But even short of a calamitous accident, many mines pose the chronic problem of relentless pollution.

AP also found mining sites where untreated water harms the environment or threatens drinking water supplies in North and South Carolina, Vermont, Missouri and Oregon.

Tainted wells

In mountains outside the Montana capital of Helena, about 30 households can’t drink their tap water because groundwater was polluted by about 150 abandoned gold, lead and copper mines that operated from the 1870s until 1953.

The community of Rimini was added to the Superfund list in 1999. Contaminated soil in residents’ yards was replaced, and the EPA has provided bottled water for a decade. But polluted water still pours from the mines and into Upper Tenmile Creek.

“The fact that bottled water is provided is great,” said 30-year Rimini resident Catherine Maynard, a natural resources analyst for the U.S. Department of Agriculture. “Where it falls short is it’s not piped into our home. Water that’s piped into our home is still contaminated water. Washing dishes and bathing — that metal-laden water is still running through our pipes.”

Estimates of the number of such abandoned mine sites range from 161,000 in 12 western states to as many as 500,000 nationwide. At least 33,000 have degraded the environment, according to the Government Accountability Office, and thousands more are discovered every year.

Officials have yet to complete work including basic risk analyses on about 80 percent of abandoned mining sites on federal lands. Most are controlled by the Bureau of Land Management, which under Trump is seeking to consolidate mine cleanups with another program and cut their combined 2019 spending from $35 million to $13 million.

An abandoned mining site in Clear Creek County. (Jesse Paul, The Colorado Sun)

Perpetual pollution

Problems at some sites are intractable. Among them:

  • In eastern Oklahoma’s Tar Creek mining district, waterways are devoid of life and elevated lead levels persist in the blood of children despite a two-decade effort to clean up lead and zinc mines. More than $300 million has been committed since 1983, but only a small fraction of the impacted land has been reclaimed and contaminated water continues to flow.
  • At northern California’s Iron Mountain Mine, cleanup teams battle to contain highly acidic water that percolates through a former copper and zinc mine and drains into a Sacramento River tributary. The mine discharged six tons of toxic sludge daily before an EPA cleanup. Authorities now spend $5 million a year to remove poisonous sludge that had caused massive fish kills, and they expect to keep at it forever.
  • In Colorado’s San Juan Mountains, site of the Gold King blowout, some 400 abandoned or inactive mine sites contribute an estimated 15 million gallons (57 million liters) of acid mine drainage per day.

AP also found mining sites where untreated water harms the environment or threatens drinking water supplies in North and South Carolina, Vermont, Missouri and Oregon.

This landscape of polluted sites occurred under mining industry rules largely unchanged since the 1872 Mining Act.

State and federal laws in recent decades have held companies more accountable than in the past, but critics say huge loopholes all but ensure that some of today’s mines will foul waterways or require perpetual cleanups.

To avoid a catastrophe like Gold King, EPA officials now require advance approval for work on many mining sites. But they acknowledge they’re only dealing with a small portion of the problem.

“We have been trying to play a very careful game of prioritization,” said Dana Stalcup, deputy director of the Superfund program. “We know the Superfund program is not the answer to the hundreds of thousands of mines out there, but the mines we are working on we want to do them the best we can.”

The 43 sites examined by AP are mining locations for which officials and researchers have reliable estimates of polluted water releases. Officials said flow rates at the sites vary.

Average flows were unavailable for nine sites that only had high and low estimates of how much polluted water flowed out. For those sites, the AP used the lower estimates for its analysis.

Questions over who should pay

To date, the EPA has spent an estimated $4 billion on mining cleanups. Under Trump, the agency has identified a small number of Superfund sites for heightened attention after cleanup efforts stalled or dragged on for years. They include five mining sites examined by AP.

Former EPA assistant administrator Mathy Stanislaus said more money is needed to address mining pollution on a systematic basis, rather than jumping from one emergency response to another.

“The piecemeal approach is just not working,” said Stanislaus, who oversaw the Superfund program for almost eight years ending in 2017.

Democrats have sought unsuccessfully to create a special cleanup fund for old hardrock mine sites, with fees paid by the mining industry. Such a fund has been in place for coal mines since 1977, with more than $11 billion in fees collected and hundreds of sites reclaimed.

The mining industry has resisted doing the same for hardrock mines, and Republicans in Congress have blocked the Democratic proposals.

Montana Mining Association director Tammy Johnson acknowledged abandoned mines have left a legacy of pollution, but added that companies still in operation should not be forced to pay for those problems.

“Back in the day there really wasn’t a lot known about acid mine drainage,” she said. “I just don’t think that today’s companies bear the responsibility.”

In 2017, the EPA proposed requiring companies still operating mines to post cleanup bonds or offer other financial assurances so taxpayers don’t end up footing cleanup bills. The Trump administration halted the rule , but environmental groups are scheduled to appear in federal court next month in a lawsuit that seeks to revive it.

“When something gets on a Superfund site, that doesn’t mean it instantly and magically gets cleaned up,” said Earthjustice attorney Amanda Goodin. “Having money immediately available from a responsible party would be a game changer.”

Ontario: Trucking Company Fined $250,000 over hazmat incident

Titanium Trucking Services Inc., headquartered in Ontario, was recently convicted of one violation under the Ontario Environmental Protection Act and was fined $250,000 plus a victim fine surcharge of $62,500 and was given 24 months to pay the fine. The fine was the result of a hazmat incident in which a fluorosilicic acid spilled from a tanker truck into the natural environment, which caused adverse effects.

Fluorosilicic acid is corrosive and causes burns. It decomposes when heated, with possible emanation of toxic hydrofluoric acid vapours. It is used in fluoridating water and in aluminum production. In the aquatic environment, an accidental spillage of fluorosilic acid would suddenly reduce pH level due to the product’s acidic properties.

At the time of the offence, Titanium Trucking Services Inc., which is located in Bolton (just northwest of Toronto) had a contract with a Burlington, Ontario area chemical company to provide drivers and vehicles on a dedicated basis for chemical product transportation.

In January 2017, the Burlington area chemical company placed an order for 81,000 kg of 37-42% fluorosilicic acid, which was required for pickup in Montreal for transport to Burlington.  Fluorosilicic acid is a corrosive liquid, classified as a dangerous good. 

On the date of the planned chemical pick-up, Environment Canada had issued weather advisories relating to a major winter storm and the public was instructed to consider postponing non-essential travel.

The chemical pick-up occurred as planned on March 14, 2017, and within four hours after leaving Montreal, the truck and the driver were involved in a multi-vehicle collision while traveling westbound on Highway 401. As a result of the collision 15 totes of fluorosilicic acid ejected through the front wall of the trailer and also came to rest in the roadside ditch.

Eight of the totes of acid that ejected from the trailer were punctured and spilled approximately 8,000 litres of acid into the ditch and onto the truck cab, dousing the driver, which eventually resulted in his death later in hospital.


March 14, 2017 incident on Highway 401 near Mallorytown. Several first responders were exposed and needed to be decontaminated. (XBR Traffic)

The acid discharge caused further adverse effects. a total of 13 First responders and another sixteen members of the public had to be decontaminated, the 401 highway was closed in both directions, and the OPP officer who initially attempted to extract the truck driver from the cab on scene experienced significant health effects. In addition, adverse impacts to the roadside soil ecosystem occurred.

Concern about Hazmat Incidents at Canada’s Proposed Spaceport

In a joint venture with several US firms, Halifax-based Maritime Launch Services (MLS) is building Canada’s first spaceport near Canso, Nova Scotia. At a total cost of $304 million—a figure that includes the cost of the first rocket launch and promotional expenses—the launch pad is slated to deliver commercial satellites to low Earth orbit aboard Ukrainian-built rockets on a due south trajectory, and at a cost of $60 million per launch.

Stephen Matier, left, president of Maritime Launch Services and Maksym Degtiarov, chief designer of the launch vehicle at the Yuzhnoye Design Bureau, talk with reporters at a meeting of the proposed Spaceport project team in Dartmouth, N.S. on December 11, 2017. (THE CANADIAN PRESS/Andrew Vaughan)

The Canso Spaceport Facility will be 20 hectares in size and is aimed at attracting firms that want to put satellites into orbit for commercial purposes.  The site will include a control centre, launch area and “horizontal integration facility,” where materials will be prepared for the launch and some propellants will be stored

The company would like to launch as many as eight rockets per year starting in 2022.

There are concerns about the spaceport from government experts.  Specifically, concerns related to environmental and health & safety issues.  Recently released documents released by the province detail numerous questions about the planned Canso Spaceport Facility.  Nova Scotia’s environment ministry will not approve the project unless their concerns are addressed.

The specific concerns of the N.S. Environment Ministry is how the company will address an explosion, crash or fuel leak.  According to the recently released government document, a spill would “destroy the impacted ecosystems with no chance of recovery within the next several hundred years.”

According to the Maritime Launch Services proposal, the rockets would use nitrogen tetroxide and unsymmetrical dimenthyl hydrazine, or UDH, for the second portion of their launch into the atmosphere.

A letter from the Canadian Defence Department says the military “does not have sufficient knowledge” to assess the impacts of an accidental discharge of the UDH on the land or surface water, but “suggests an assessment should be completed.”

A professor at the University of British Columbia has raised concerns about an “exceedingly toxic” rocket propellant that will be used at the Canso, N.S., operation. Michael Byers, a political science professor at UBC, said there is a danger associated with UDH — which he said is known in Russia as “the Devil’s Breath.”

Professor Byers stated “If something goes wrong on launch, you know, if the rocket were to tip over and explode, or if there were some kind of spill during transportation or assembly, you’d still have a serious health and environmental concern.”

Other government officials comment that there isn’t enough information in the proposal to assess potential dangers.

Chuck McKenna, a manager with the resource management unit of the provincial Environment Department, says detailed plans on how dangerous goods will be stored and handled weren’t provided.

He says this should include details on the potential effects of a chemical accident, prevention methods and emergency response procedures.

Johnny McPherson, an expert on air quality in the provincial Environment Department, says in his submission that the first stage propellants of a rocket can create “black carbon (soot)” that is “harmful if inhaled because of small particle size and damaging effects.”

The government comments were made in response to the environmental assessment of the project prepared by a consultant.

Nova Scotia Environment Minister Margaret Miller said last week the environmental assessment, submitted in July, didn’t contain sufficient information for her to make a decision on whether to approve the project.

Miller has given the company one year to provide additional information and studies.

The company’s president has said he’s confident the firm will finish the study in response to the concerns raised, and it is “optimistic” it can address the issues raised.

BP Reports Drilling Mud Spill Off Nova Scotia

BP Canada Energy Group recently reported an unauthorized discharge of drilling mud from the one of its drilling operations off the coast of Nova Scotia. The company estimated approximately 136,000 litres of drilling mud were discharged.

Anita Perry, BP Canada’s regional manager for Nova Scotia

Anita Perry, BP Canada’s regional manager for Nova Scotia, said a preliminary look at the spill has led the company to believe the cause is mechanical failure, though the investigation is not complete.
Perry said this is not a common occurrence, but the organization has response plans in place to manage spills. She said that before drilling was done in the area, a survey was conducted to assess environmental risks.
“Prior to drilling we did not identify any corals or any species there that could be damaged. So we do not believe there will be any damage,” said Perry.
The company suspended drilling during the investigation of the cause of the spill.

Risks to the Environment

Stacy O’Rourke, the director of communications at the Canada-Nova Scotia Offshore Petroleum Board (CNSOPB) said the synthetic-based mud is dense and sinks rapidly to the sea floor and the synthetic-based oil in the mud has low toxicity.

Ms. O’Rourke added that the effects of these types of spills are usually limited to the area immediately surrounding the well and are associated with the physical smothering of the seabed due to coverage by the mud.

She said the spill happened earlier in the day on Friday, and both the board and coast guard were notified. As of Friday evening, O’Rourke said no one on the board was at the spill.

The incident occurred approximately 330 kilometres from Halifax on a drill rig called the West Aquarius.

West Aquarius drill rig off the coast of Nova Scotia

CBC interviewed Tony Walker, a professor from the Dalhousie University School for Resource and Environmental Studies, about the potential impacts of the release of drilling mud on the environment. The Professor said that in looking at the project’s environmental assessment report, carried out by the Canadian Environmental Assessment Agency (CEAA), the drilling mud spill may still be cause for concern.

Professor Walker said while a water-based mud is available for use in this type of drilling, the assessment outlines BP’s decision to use the synthetic, because it can better handle potential gas buildup and temperature regulation.

“Certainly, a synthetic-based mud does contain chemicals and potentially oils and diesel and that sort of thing,” he told the CBC. Walker said he reviewed data from the report based on a 3D modelled test and scaled down the impacts based on the June 22 incident.

“It could [result in] impacts of a kilometre or more from the drilling site. It could actually cover and smother [ocean floor dwelling] organisms; it could impact fish species which have larvae and eggs on the seabed.”

Professor Walker told the CBC that the CEAA report also references data from past drill sites, where little to no spilling was reported, in which surrounding marine habitats took up to five years to recover from drilling.

“The kind of consistent thread or theme I get from the report … is that if there are releases, it’ll be localized and it’ll have short term impacts,” Walker told the CBC.

“A kilometre is quite a big area, and [the report] talks about a recovery period of about five years for recolonization. I wouldn’t call five years entirely short-term.”

Nova Scotia’s energy minister says he’s concerned about spill of the drilling fluids off the province’s coast. However, he also added that he remains committed to growing the oil and gas industry.

Geoff MacLellan said he has “complete confidence” in the Canada-Nova Scotia Offshore Petroleum Board’s investigation into BP Canada’s leak of 136 cubic metres of synthetic drilling mud on Friday.

Approval to drill was granted in the Spring

BP Canada Energy Group was given approval in the spring of 2018 to drill of the coast of Nova Scotia. At the time, the Aspy D-11 exploration well was the first in BP Canada’s Scotian Basin Exploration Project. It was estimated that up to seven exploration wells could be drilled off the southeast coast of Nova Scotia over a three-year period.

At the time of the issuance of the approval, Anita Perry of BP Canada Energy stated in a phone interview with Canada’s National Observer, “We’re confident we addressed all issues and risks for a safe drilling program.”

Innovation in Detecting Oil Spills at Sea

The company ISPAS AS, headquartered in Norway, recently announced that it has developed a Ku-band polarimetric Oil Spill Detection (OSD) radar that can detect oil spills at sea and the open water under most conditions including dead calm.

The radar is specifically developed for this purpose and uses a higher frequency than typical navigational X-band radars.  The radar has electrically steered antennas with both electromagnetic polarizations and can map an oil spill continuously using the steerable antenna.

Radar image (left) of the oil spill (seen on right).

ISPAS has completed the installation of 4 new OSD radars.  The radars small size and weight makes it easy to integrate without large structural foundations.

ISPAS participated in the 2018 “Oil on water” exercise offshore of Norway recently with a small version of the polarimetric Ku-band OSD radar. The small radar performed exceptionally well. An example showing the real time display of radar measurements of oil on seawater onboard a vessel is presented in this picture. The picture to the right presents the actual view of the sea.

The OSD radar

Vancouver files claim against owners of vessel that leaked fuel in 2015

As reported by CTV News, the City of Vancouver has filed a federal court claim against the owner of a vessel that spilled fuel into English Bay in 2015, as part of the city’s continuing effort to get compensation for its response efforts.

Vancouver Mayor Gregor Robertson says three years after the MV Marathassa spilled 2,700 litres of bunker fuel into the bay, the city still hasn’t been compensated for about $550,000 it spent on response efforts.

Robertson says Vancouver has sought repayment through the federal government’s Ship-source Oil Pollution Fund, but has only been promised compensation for 27 per cent of its costs — something Robertson called “totally unacceptable.

“It’s ridiculous that it’s taken over three years now fighting for our costs to be covered by an oil spill in our harbour,” Robertson told reporters gathered at Sunset Beach in Vancouver on Sunday.

The city’s claim against the ship owners — filed last month but announced on Sunday — calls for damages, interest and court costs related to the spill.

Robertson said the city’s difficulty in getting paid back for what he described as a “relatively small oil spill” shows there aren’t enough measures in place to protect coastal communities against more major spills.

He said the costs and impacts of a potential diluted bitumen spill from the increased tanker traffic that would come with the Kinder Morgan Trans Mountain pipeline expansion has not been meaningfully addressed by the federal government.

Robertson said the Ship-source Oil Pollution Fund was set up by the federal government to act in the interest of communities like Vancouver, but is failing to do so.

“It clearly does not do that, does not deliver the results. This speaks to the greater concern we have with Kinder Morgan and oil tankers,” he said.

Transport Canada, which oversees spill response, could not immediately be reached for comment.

The claim’s statements have not been proven in court.

Crews on spill response boats work around the bulk carrier cargo ship Marathassa after a bunker fuel spill on Burrard Inlet in Vancouver, B.C., on Thursday April 9, 2015. (Darryl Dyck/THE CANADIAN PRESS)

US officials consider robots to prevent mine spills

As reported by the Associated Press, Crumbling mine tunnels awash with polluted waters perforate the Colorado mountains and scientists may one day send robots creeping through the pitch-black passages to study the mysterious currents that sometimes burst to the surface with devastating effects.

One such disaster happened at the inactive Gold King Mine in southwestern Colorado in 2015, when the United States Environmental Protection Agency (U.S. EPA) accidentally triggered the release of 3 million gallons of mustard-colored water laden with arsenic, lead and other toxins. The spill tainted rivers in three states.

a man in a hard hat sprinkling lime (white power) into a pool of muddy water next to a culvert. Here, lime is added to a settling pond to assist in the pH adjustment of the water (Credit: Eric Vance/U.S. EPA)

Now the U.S. EPA is considering using robots and other sophisticated technology to help prevent these types of “blowouts” or clean them up if they happen. But first, the agency has to find out what’s inside the mines, some of which date to Colorado’s gold rush in the 1860s.

Wastewater laden with toxic heavy metals has been spewing from hundreds of inactive mines nationwide for decades, the product of complicated and sometimes poorly understood subterranean flows.

Mining creates tainted water in steps: Blasting out tunnels and processing ore exposes long-buried, sulfur-bearing rocks to oxygen. The sulfur and oxygen mix with natural underground water flows to create sulfuric acid. The acidic water then leaches heavy metals out of the rocks.

To manage and treat the wastewater, the U.S. EPA needs a clear idea of what’s inside the mines, some of which penetrate thousands of feet into the mountains. But many old mines are poorly documented.

Investigating with robots would be cheaper, faster and safer than humans.

“You can send a robot into an area that doesn’t have good air quality. You can send a robot into an area that doesn’t have much space,” said Rebecca Thomas, project manager for the U.S. EPA’s newly created Gold King Superfund site, officially known as the Bonita Peak Mining District.

Instruments on the robots could map the mines and analyze pollutants in the water.

They would look more like golf carts than the personable robots from “Star Wars” movies. Hao Zhang, an assistant professor of computer science at the Colorado School of Mines, envisions a battery-powered robot about 5 feet long with wheels or tracks to get through collapsing, rubble-strewn tunnels.

Zhang and a team of students demonstrated a smaller robot in a mine west of Denver recently. It purred smoothly along flat tunnel floors but toppled over trying to negotiate a cluttered passage.

“The terrain is pretty rough,” Zhang said. “It’s hard for even humans to navigate in that environment.”

A commercial robot modified to explore abandoned mines — including those swamped with acidic wastewater — could cost about $90,000 and take three to four years to develop, Zhang said.

Robot in underground mine (Photo Credit: Tatlana Flower/AP File)

Significant obstacles remain, including finding a way to operate remotely while deep inside a mine, beyond the reach of radio signals. One option is dropping signal-relay devices along the way so the robot stays in touch with operators. Another is designing an autonomous robot that could find its own way.

Researchers are also developing sophisticated computerized maps showing mines in three dimensions. The maps illustrate where the shafts intersect with natural faults and provide clues about how water courses through the mountains.

“It really helps us understand where we have certainty and where we have a lot of uncertainty about what we think is happening in the subsurface,” said Ian Bowen, a U.S. EPA hydrologist. “So it’s a wonderful, wonderful tool.”

The U.S. EPA also plans to drill into mines from the surface and lower instruments into the bore holes, measuring the depth, pressure and direction of underground water currents.

Tracing the currents is a challenge because they flow through multiple mines and surface debris. Many tunnels and faults are connected, so blocking one might send water out another.

“You put your finger in the dike here, where’s the water going to come out?” Thomas said.

Once the U.S. EPA finishes investigating, it will look at technologies for cleansing the wastewater.

Options range from traditional lime neutralization — which causes the heavy metals dissolved in the water to form particles and drop out — to more unusual techniques that involve introducing microbes.

The choice has consequences for taxpayers.  If no company is found financially responsible, the EPA pays the bill for about 10 years and then turns it over to the state.  Colorado currently pays about $1 million a year to operate a treatment plant at one Superfund mine. By 2028, it will pay about $5.7 million annually to operate plants at three mines, not including anything at the Bonita Peak site.

The U.S. EPA views the Colorado project as a chance for the government and entrepreneurs to take risks and try technology that might be useful elsewhere.

But the agency — already dealing with a distrustful public and critical politicians after triggering the Gold King spill — said any technology deployed in Colorado will be tested first and the public will have a chance to comment before decisions are made.

“We’re certainly not going to be in the position of making things worse,” Thomas said. “So when I say we want to take risks, we do, but we want to take calculated, educated risks and not worsen water quality.”

U.S. EPA Assesses Sunken, Leaking Marine Vessels

The U.S. Environmental Protection Agency (U.S. EPA) continues its response to Hurricanes Maria and Irma in close coordination with federal, commonwealth, territory, and local partners. EPA remains focused on environmental impacts and potential threats to human health as well as the safety of those in the affected areas.

“Our role is to assist both Puerto Rico and the U.S. Virgin Islands to minimize environmental damage from boats leaking gasoline, fuel or other contaminants,” said EPA Regional Administrator Pete Lopez. “We are doing this in a way that respects the vessel owner’s rights while still protecting people from spills and hazardous substances that might be onboard the vessels.”

Marine Vessels Recovery Operations

EPA is supporting Puerto Rico, the U.S. Virgin Islands and the U.S. Coast Guard in marine vessel recovery work. Teams continue to locate, assess and retrieve sunken, damaged and derelict vessels around Puerto Rico and the USVI.  We are also assisting with the recycling and disposal of recovered oil and hazardous materials from the vessels.

The U.S. EPA’s support role includes recording the vessel’s location and collecting information such as the name of the vessel and identification number, condition, impact to surrounding areas and/or sensitive/protected habitats (e.g. mangroves, coral reefs) for future recovery missions and owner notifications.  A higher priority is placed on vessels found to be actively leaking fuel or hazardous materials, where containment and absorbent booms are placed to decrease contamination.

Once the damaged vessels are brought to shore, or are processed on a staging barge, EPA will be handling various hazardous materials for recycling and disposal, including petroleum products (oil, gas or diesel fuel), batteries, and e-waste, which can harm the environment if they’re not removed from the waters. EPA will also recycle or dispose of any “household hazardous wastes”, such as cleaners, paints or solvents and appliances from the vessels. It is important to properly dispose of these items to prevent contamination to the aquatic ecosystem.

Vessels are being tagged by assessment teams with a sticker requesting that owners contact the U.S. Coast Guard to either report their vessel’s removal, or to request U.S. Coast Guard assistance in its removal. There is no cost, penalty or fine associated with the removal of the vessels.

As of November 16, 2017,

  • 340 vessels were identified as being impacted in Puerto Rico
  • 589 vessels were identified as being impacted in the U.S. Virgin Islands

The effects of an spills from marine vessels will depend on a variety of factors including, the quantity and type of liquid (i.e., fuel, oil) spilled, and how it interacts with the marine environment. Prevailing weather conditions will also influence the liquid’s physical characteristics and its behaviour. Other key factors include the biological and ecological attributes of the area; the ecological significance of key species and their sensitivity to pollution as well as the time of year. It is important to remember that the clean-up techniques selected will also have a bearing on the environmental effects of a spill.