PF Résolu Canada Inc. is fined $100,000 for Environmental Offence

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PF Résolu Canada Inc., a North American company in the forest products industry, was recently fined $100,000 after pleading guilty to violating subsection 36(3) of the Canadian Fisheries Act.

The investigation, led by Environment and Climate Change Canada, revealed that PF Résolu Canada Inc. had committed a violation to the Act, namely the deposit of a deleterious substance in waters frequented by fish.  The amount of the fine will be directed to the Environmental Damages Fund.

The deposit of a deleterious substance was into Comeau Creek situated in North Shore of Baie Comeau.  PF Résolu Canada Inc.’s Baie Comeau newsprint mill is located on the creek.

PF Résolu Canada Inc., also known as Resolute Forest Products (RFP), is a global leader in the forest products industry with a diverse range of products, including market pulp, tissue, wood products, newsprint and specialty papers, which are marketed in over 70 countries.

The company owns or operates some 40 manufacturing facilities, as well as power generation assets, in the United States and Canada.

Resolute has third-party certified 100% of its managed woodlands to internationally recognized sustainable forest management standards.  Resolute has received regional, North American and global recognition for its leadership in corporate social responsibility and sustainable development, as well as for its business practices.

On the environmental management section of the company website, RFP states that in 2016, t 29 environmental incidents were recorded across the company.  The company states that it will continue to work toward a long-term goal of zero incidents. The 2017 target the company set for itself is 38 incidents or less.

In its financial statements, the company is required to record accidental releases of hazardous substances significant enough to risk damage to human and environmental health, or that have potential liability and reputational consequences. Between 2012 and 2016, Resolute recorded no such incidents. The company is also required to disclose in our published financial statements any fines of material significance for non-compliance with environmental laws and regulations, none of which were reported between 2012 and 2016.

The Baie-Comeau facility produces newsprint at a capacity of 319,000 tonnes per year.  There are 216 employees at the facility.

 

New spill rules tag transport companies with response, recovery costs in B.C.

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As reported by Dirk Meissner of the Canadian Press, the Government of British Columbia has introduced pollution prevention regulations to hold transport companies moving petroleum products across the province responsible for the costs of responding to and cleaning up spills. The price of these spills hasn’t been disclosed, but it’s probably money that your company won’t want to part with. To ensure that you don’t get wrongfully charged for spilling anything, you could consider incorporating Titan Winds trucking software into your company. The asset tracking feature of the software helps to manage your employees in their trucks, therefore you could see if they were responsible for the spill or not by tracking the direction they’re traveling in.

Environment Minister George Heyman said recently that the new regulations will take affect at the end of October and apply to pipeline, railway and truck company owners and transporters moving more than 10,000 litres of liquid petroleum products.

The rules increase responsibility, transparency and accountability for operators who transport potentially dangerous products through B.C., he said.

“I would hope that business doesn’t believe that individual members of the public through their tax dollars should be responsible for cleaning up spills they incur in the course of doing business and making a profit.” This makes sense, if truck shippers were to damage or lose a truck, or a fleet of trucks, it wouldn’t be the tax dollars that pay for the trucking companies’ new trucks, the shipping company and insurance would cover the cost.

The aim of the new rules is to prevent spill sites from being left contaminated for months and sometimes years, Heyman said, noting companies will be required to submit spill response and recovery plans ahead of moving their products.

“Most people subscribe to the polluter pay principle,” he said. “These regulations also require that spill contingency plans be put into place and that recovery plans and reporting plans be implemented in the case of a spill. That’s just reasonable.”

CN Rail said in a statement that it continues to work with the B.C. government and its industry partners on emergency response and preparation plans. The railway transports oil and numerous other products, including grain, across B.C.

“Emergency and spill response preparation and training is an important part of our business,” the statement said. “CN has in place emergency response plans and conducts spill and emergency response training with stakeholders across our network.”

The B.C. Trucking Association said in a statement that it supports the province’s new rules.

“We have been actively engaged in working with the government on the development of these regulations because the safety of our drivers, the public and the environment is our number one priority,” the statement said.

New pollution prevention regulations will hold transport companies and pipeline operators moving petroleum products across British Columbia responsible for spill response and recovery costs. A pipeline at the Westridge Marine Terminal in Burnaby, with an oil tanker in dock on Burrard Inlet.

Last spring, the previous Liberal government amended the Environmental Management Act to include some of the new regulations, but Heyman said he further tweaked the polluter pay regulations to ensure annual public reporting by the government.

He said he also shortened the deadline for operators to put their spill contingency plans in place to one year for trucking companies and six months for railways and pipelines.

The new rules do not apply to marine vessels carrying petroleum products along the B.C. coastline.

“Marine spills are regulated by the federal government but there is some jurisdiction for the province if a marine spill ends up washing onto the shoreline of B.C.’s jurisdiction or the seabed,” Heyman said.

The province is developing a strengthened marine response and recovery program that complements federal spill regulations, he added.

The new regulations come on the one-year anniversary of a fuel spill off B.C.’s central coast, where a tug sank, spilling more than 100,000 litres of diesel into waters near the Great Bear Rainforest.

Marilyn Slett, chief of the Heiltsuk First Nation, said the sinking of the tug, Nathan E. Stewart, has had devastating social and economic impacts on her community.

A valuable fishing area remains closed a year after the spill and many Heiltsuk face the prospect of a second year without revenue from the area’s valuable shellfish species, she said.

by Dirk Meissner, The Canadian Press

U.S.: FEMA Releases Refreshed National Incident Management System Doctrine

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The U.S. Federal Emergency Management Agency (FEMA) recently released the refreshed National Incident Management System (NIMS) doctrine.  NIMS provides a common, nationwide approach to enable the whole community to work together to manage all threats and hazards. NIMS applies to all incidents, regardless of cause, size, location, or complexity.

In April and May 2016, FEMA held a 30-day National Engagement Period, in which stakeholders submitted nearly 3,000 comments and provided feedback on the draft NIMS update, ensuring that it reflects the collective expertise and experience of the whole community.

FEMA will host a series of 60-minute webinars with stakeholders to discuss the updates in the refreshed NIMS and answer questions related to NIMS. All webinars are open to the whole community. For webinar dates, times, and registration information, please go here: https://www.fema.gov/latest-news-updates.

The refreshed NIMS retains key concepts and principles from the 2004 and 2008 versions, while incorporating lessons learned from exercises and real-world incidents, best practices, and changes in national policy.

Download the refreshed NIMS here: www.fema.gov/nims-doctrine-supporting-guides-tools

The refreshed NIMS:

  • Retains key concepts and principles of the 2004 and 2008 versions of NIMS;
  • Reflects and incorporates policy updates and lessons learned from exercises and real-incidents;
  • Clarifies the processes and terminology for qualifying, certifying, and credentialing incident personnel, building  a foundation for the development of a national qualification system;
  • Clarifies that NIMS is more than just the Incident Command System (ICS) and that it applies to all incident personnel, from the incident command post to the National Response Coordination Center;
  • Describes common functions and terminology for staff in Emergency Operations Centers (EOC), while remaining flexible to allow for differing missions, authorities, and resources of EOCs across the nation; and
  • Explains the relationship among ICS, EOCs, and senior leaders/policy groups.

NIMS guides all levels of government, nongovernmental organizations (NGO), and the private sector to work together to prevent, protect against, mitigate, respond to, and recover from incidents. NIMS provides stakeholders across the whole community with the shared vocabulary, systems, and processes to successfully deliver the capabilities described in the National Preparedness System. NIMS defines operational systems, including the Incident Command System (ICS), Emergency Operations Center (EOC) structures, and Multiagency Coordination Groups (MAC Groups) that guide how personnel work together during incidents. NIMS applies to all incidents, from traffic accidents to major disasters.

Please refer to the descriptions below to gain an understanding of where to locate certain information.

NIMS Doctrine Supporting Guides & Tools: The National Integration Center develops supporting guides and tools to assist jurisdictions in their implementation of the National Incident Management System (NIMS).

Training: The NIMS Training Program defines the national NIMS training program. It specifies National Integration Center and stakeholder responsibilities and activities for developing, maintaining and sustaining NIMS training.

Resource Management & Mutual Aid: National resource management efforts aid a unified approach in building and delivering the core capabilities across all five mission areas (Prevention, Protection, Mitigation, Response and Recovery).  Effective resource management is founded on the guiding principles of the NIMS.

Implementation Guidance & Reporting: Federal Departments and agencies are required to make adoption of NIMS by local, state, territorial, and tribal nation jurisdictions a condition to receive Federal Preparedness grants and awards.

NIMS Alerts: The National Integration Center announces the release of new NIMS guidance, tools, and other resources through the distribution of NIMS Alerts.

FEMA NIMS Regional Contacts: The FEMA Regional NIMS Coordinators act as subject matter experts regarding NIMS for the local, state, territorial, and tribal nation governments within their FEMA Region, as well as for the FEMA Regional Administrator and staff.

Incident Command System Resources: The Incident Command System (ICS) is a fundamental element of incident management. The use of ICS provides standardization through consistent terminology and established organizational structures.

Harnessing the regulation of Maritime Dangerous Goods

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As reported in Hellenic Shipping News, TT Club (a leading provider of insurance and related risk management services to the international transport and logistics industry ) and the International Cargo Handling Coordination Association (ICHCA) have drawn attention to the state of packing in the intermodal supply chain and the need for greater rigour by all stakeholders to improve safety.

Shipping containers at the Port Newark-Elizabeth Marine Terminal in New Jersey, USA (Photo Credit: Captain Albert E. Theberge)

At the recent meeting of the International Maritime Organization’s (IMO) Sub-Committee on the Carriage of Cargoes and Containers (CCC), ICHCA and TT Club made a submission concerning the inspection programmes for Cargo Transport Units (CTUs) implemented by national governments.

Analysing the reports submitted to IMO in previous years, TT Club established that the number of member states reporting, in comparison with those in membership of IMO, has always been less than 10% and currently stands at about 2.5%. Further, the number of inspections performed has never exceeded 80,000, and currently represents something less than 4 per 100,000 packed containers moved.

Deficiencies
The submission drew out two key concerns from the deficiencies found in this small sample. First, there is an apparently deteriorating trend for ‘Placarding and Marking’ failures, which is the key visual risk alert for all supply chain stakeholders. Wrongly placarded units can create a major hazard, as exemplified at a terminal facility in Vancouver in 2015 when a container packed with dangerous goods caught fire, as well as fundamentally undermine the handling of the numerous incidents on board ship.

Perhaps more importantly, ‘Stowage and Securing’ deficiencies, which TT Club has repeatedly reported to be causative in many cargo related incidents, average in excess of 20%.

At ICHCA’s seminar in April 2017 on dangerous goods, hosted by TT Club, reports were given of widespread disregard of dangerous goods regulations, with one shipping line revealing that many shippers use alternative terms for dangerous goods (DG) to avoid surcharges and having to comply with additional measures, including any ship or port restrictions, as well as the regulations themselves.

Calculating the actual number of dangerous goods shipments is complex, but some estimates are that declared volumes comprise up to 10% of all container movements. UNCTAD calculates in its Review of Maritime Transport 2016 that there were approximately 180 million TEU movements in 2016. Assuming 60% of 180 million TEU equates to actual CTUs, 50% of those are laden, of which 10% contain declared dangerous goods, then approximately 5.4 million units annually are packed with dangerous goods.

The state for non-DG…?
It might also be assumed that more care and attention is given to consignments of declared dangerous goods; it may be expected that deficiencies would be more prevalent where more detailed regulations are not deemed to apply. Thus, the findings reinforce experience that packing and securing remains an enormous issue in the unit load industry.

“The findings reinforce experience that packing and securing remains an enormous issue in the unit load industry”
Whilst the International Maritime Dangerous Goods (IMDG) Code is mandatory, the CTU Code is not, albeit it is referenced from the IMDG Code and International Convention for the Safety of Life at Sea (SOLAS). The evidence from recent events is that awareness of the CTU Code is very low and therefore compliance with good practice will be poor.

Cargo Integrity Campaign
It is for this reason that TT Club has teamed with Global Shippers Forum , ICHCA and World Shipping Council to promote the importance of the CTU Code. This ‘Cargo Integrity’ campaign started at European Shipping Week earlier this year, which the IMO Secretary General and Senior Deputy Director attended, and continued during the CCC sub-committee meetings and most recently at the ICHCA 65th Anniversary Conference in Las Palmas. In each instance, the key messages are aligned to the stakeholders in the audience – whether governments, shippers, terminals or carriers – identifying key responsibilities that they can discharge to improve safety in the intermodal supply chain.

“The level of national government reporting is insufficient to draw concrete conclusions by which to steer IMO’s work, improve compliance or increase safety”
In response to a number of suggestions made in the submission to CCC, the sub-committee recognised that the level of reporting is insufficient to draw concrete conclusions by which to steer its work, improve compliance or increase safety, albeit that the absence of reporting should not necessarily lead to the conclusion that inspections are not being carried out. At least one Maritime Administration, which had not reported in recent years, committed to make the CTU inspection regime more robust, as well as to submit a report to the next meeting of CCC in September 2018.

Strengthening compliance culture
CCC also noted the analysis provided by TT Club and ICHCA, inviting governments to provide information on the experience and lessons learned from the application of national CTU inspection programmes. Further, concern was expressed about the high rate of deficiencies and the lack of adherence to the provisions of the IMDG Code.

The TT Club/ICHCA submission also suggested that consideration be given to advances in scanning technologies that may permit improved and risk-based inspections to be carried out more effectively. While not specifically debated, there was general encouragement for the industry and governments to develop more specific ideas for consideration.

In the meantime, the IMO Secretariat committed to improve the ease of reporting, utilising its GISIS methodology, together with recognising that Maritime Administrations could link up the findings of industry inspections that are carried out to the same standard. It is to be hoped that inspection programmes will be ramped up in the coming months in order that more credible data can be shared, as well as engendering an improved culture of compliance globally.

“It is to be hoped that inspection programmes will be ramped up in order that more credible data can be shared, as well as engendering an improved culture of compliance globally”

We hope that you have found the above interesting. If you would like further information, or have any comments, please email us. You can take this opportunity to read up more on maritime law or forward to any colleagues who you may feel would be interested.
 

Heiltsuk First Nation to sue Kirby Corporation over 2016 diesel spill

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As reported in Coast Mountain News, this month marks the one-year anniversary of the October 13 oil spill in Bella Bella, British Columbia. With the community’s recovery efforts undermined by government and Kirby Corporation’s refusal to take responsibility for the spill and to cooperate in its aftermath, the nation says it has no option but to turn to the courts.

“The oil spill continues to be a catastrophic injury to our food sources, culture, and economy,” says Heiltsuk Tribal Council Chief Councillor, Marilyn Slett. “Thanks to Kirby Corporation and the governments of British Columbia and Canada, our community’s road to recovery keeps getting longer and longer.”

The Nathan E. Stewart articulated tug/barge was southbound from Alaska when it ran aground at Edge Reef near Athlone Island on Oct. 13, 2016. (Photo Credit: Western Canada Marine Response Corporation)

Kirby Corporation and government have kept information secret about what occurred on October 13, 2016 when the Nathan E. Stewart grounded, sank and spilled oil into Gale Pass. The Heiltsuk Tribal Council made numerous separate requests for information to the polluter (Kirby Corporation) and various government agencies, including Transport Canada, the Transportation Safety Board, and the Canadian Coast Guard. Those requests were largely denied or ignored.

The Nation claims this secrecy and lack of collaboration has continued throughout the post-spill recovery.

“Recently, we learned the B.C. Ministry of Environment and Kirby have been secretly negotiating an agreement on the post-spill environmental impact assessment since early this year,” says Chief Councillor Slett. “Since this nightmare began, the polluter and provincial and federal governments have ignored our questions and environmental concerns, our collaboration attempts, and our rights as indigenous people. We have no choice but to turn to the courts.”

The nation is preparing to take legal action, aiming to recover damages suffered by its members as well as to examine the actual state of Canada’s “world class” oil spill response system.

The case will seek compensation for loss of commercial harvesting of marine resources and infringement of Aboriginal rights relating to food, social and ceremonial importance of marine resources — factors that the current oil spill liability framework does not account for.

“When I’m not harvesting Gale Pass to feed my family, I am working there as a commercial fisherman, earning an income to support them – and I’m one of many,” says harvester and volunteer oil spill responder, Robert Johnson. “Despite our reliance on Gale Pass, the governments of British Columbia and Canada and Kirby the polluter have little interest in understanding the impacts of this oil spill on the health of my community, this environment, or our economy.”

The existing oil spill response framework excuses the polluter and government from full responsibility for oil spill impacts on Aboriginal rights otherwise protected by the Constitution.

As such, the government of British Columbia and Kirby are not required by law to do comprehensive impact assessments of the oil spill. To date, they have rejected multiple Heiltsuk requests to participate in a study of the current and long-term impacts of the oil spill on the health of the ecosystem and marine resources and the social and economic consequences associated with the loss of harvest and use of the impacted area.

Instead, Kirby Corporation and the BC Ministry of Environment are proposing a limited environmental assessment covering a minority of the area and species affected.

Heiltsuk Nation will be asking the courts to assess whether this existing regime of liability for oil spills can really be considered constitutional.

“We’re learning the hard way that indigenous people and coastal communities can’t count on polluters, Western Canada Marine Response Corporation, or the governments of B.C. and Canada in a crisis situation,” says Kelly Brown, Director of the Heiltsuk Integrated Resource Management Department. “For our sake, and the sake of our neighbours, we are consulting with a range of experts to assess damages, recovery times, and, ultimately, determine how we can prevent a similar disaster in the future.”

The Nathan E. Stewart sinking off Bella Bella, British Columbia

Analyses of the oil spill response have revealed massive safety and planning oversights by the polluter and federal and provincial government regulations. They include: a lack of spill response materials; ineffective booms and delays in employing them; a lack of safety instructions and gear for Heiltsuk first responders exposed to diesel and dangerous marine conditions; and confusion over who was in charge in the early hours of the oil spill.

“Government representatives travel the province, country, and the world preaching reconciliation and nation-to-nation relationships with first people. Meanwhile, back home, they are avoiding our calls and emails, excluding us from meetings, and ignoring our rights,” says first responder and Hereditary Chief Harvey Humchitt. “If the courts have to explain that this is not what nation-to-nation relationships and reconciliation look like, so be it.”

The Heiltsuk Tribal Council expects the results of the various impact assessments, legal analyses, and evaluations to materialize in the coming weeks.

Surviving the OSHA Audit: Common Sense Solutions

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Imagine for a moment it’s Monday morning. You’ve just arrived to work and you’re enjoying your first cup of coffee. Unexpectedly, you receive a call from the receptionist. The U.S. Occupation Safety and Health Administration (U.S. OSHA) has just arrived and they’d like to meet you to discuss a safety complaint they’ve received from an employee. Your day just got a little bit more complicated! You best start looking at your safety procedures and look into products like a trench box for sale to see if they can be used to improve the safety of your workers. We’re using a trench box as an example as they are often used to improve the safety of utility workers and avoid cave-ins. There are many ways to keep your workers safe while they are at work, for example, you can check out this product at Platforms and Ladders, providing a way for your workers to transport and store items in high places. If these aren’t implemented workers might talk to someone similar to Las Vegas Workers Compensation Lawyer so they can get the compensation they deserve if they end up in a work-related accident due to neglecting health and safety. So, what should you expect during the OSHA visit? What questions should you ask and perhaps more importantly, what should you avoid? Have you visited oshatraininglasvegas.com and made sure you have the right training? What will OSHA wants to see during their visit? Will they ask you for paperwork? Do you have that paperwork?

Within this book, respected OSHA consultant, David A. Casavant takes you behind the curtain and reveals exactly what happens during an OSHA inspection, rules for behavior during the audit and perhaps more importantly, what you can do now to comply with the often-complicated U.S. OSHA regulations. This essential guide simplifies complex regulatory law, provides commonsense strategies for compliance and should be included in every safety professional, risk manager, or attorney’s toolbox.

The author of the book, David A. Casavant is the Executive Director of the Sustainable Workplace Alliance, a 501(c)(3) not?for?profit organization dedicated to Health & Safety in the workplace. He is an authorized OSHA 500 & 501 trainer and in 2007, 2008 and 2010 his organization was awarded the prestigious Susan Harwood training grant from the U.S. OSHA. He has been a featured speaker at World WorkPlace, American Management Association, Rockhurst University, NeoCon, SkillTV, Total Facility Management Forum and the NFM&T conference. Additionally, Mr. Casavant has written hundreds of business related articles. His articles can be found in a number of trade publications including the Facility Management Journal, Buildings, PlantServices, SkillTV and Building Operating Management.

Soft cover, 313 pages
Copyright © 2017
ISBN 978-0-9987437-0-7

You can order the book through the American Society of Safety Engineers website.

Canada: BC Court Of Appeal Rules That Contaminated Property Must Be Assessed Using Highest and Best Use

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Article by Luke Dineley and Jacob Jerome Gehlen

Borden Ladner Gervais LLP

In a highly anticipated decision for the valuation of contaminated property in British Columbia, the BC Court of Appeal overturned a decision of the BC Supreme Court and set out how contaminated property should be assessed for tax purposes.

The case involved a Brownfield – a contaminated commercial property with potential for economic redevelopment. The property in question had been operated as a retail gas station, automobile dealership, and repair shop. The soil on the property was contaminated, and the contamination had spread to neighbouring properties. The owner of the property was in considerable financial distress. In addition to tax arrears, legal bills, and accounting bills, she was defending a claim from the owner of a neighbouring property. She therefore arranged to sell the property to this owner through a share purchase agreement for $42,363.24, which was sufficient to cover her debts. She also obtained a full indemnity from any legal liabilities she might have in the future regarding the contamination. The existing structure on the property was renovated and converted into income-producing multi-tenant commercial retail units.

Abbotsford, British Columbia

In 2013, the property was assessed for taxation purposes.

The assessor had valued the land and improvements at $975,000. The property owner, Victory Motors (Abbotsford) Ltd. (“Victory Motors”), appealed, and the Property Assessment Review Panel reduced that assessment to $500,000. Victory Motors appealed to the Property Assessment Appeal Board (“Board”), claiming the property had no value. The Board reinstated the original assessment. The owner appealed again, to the Supreme Court of British Columbia. That court found that the Board had erred in law, and remitted the matter to the Board for reconsideration. The Assessor appealed that decision.

The Court of Appeal allowed the Assessor’s appeal and restored the Board’s decision.

The issue before the Court was this: how does one properly assess the value of contaminated land for taxation purposes? The assessor determined that because renovation into a two-storey structure would require remediation, the best use of the property was as it currently stood: a one-storey commercial structure. The assessor’s estimate did not otherwise take into account the presence of contamination. Their approach is known as the “income approach,” whereby a property’s value is determined according to the subject property’s highest possible annual net income. The Board agreed with the assessor’s method and ultimate evaluation.

The Supreme Court, however, held that the Board had erred in law. The chambers judge found that the assessor had ignored the property’s brownfield status, which any potential buyer would have in mind as a risk. The chambers judge further held that the land should be valued not according to value for the present owner, but according to the market in accordance with the BCCA’s decision in Southam Inc. (Pacific Newspaper Group Inc,) v. British Columbia (Assessor of Area No 14 – Surrey/White Rock), 2004 BCCA 245 [Southam]. Because there was no evidence a competitive market for the property existed, the Board’s decision was therefore unreasonable.

However, after the BCSC decision was released, a five-judge division of the BCCA overturned Southam in Assessor of Area #01 – Capital v. Nav Canada, 2016 BCCA 71, leave to appeal refused [Nav Canada]. Nav Canada supports the Board’s income-based approach.

Applying Nav Canada, the Court of Appeal allowed the assessor’s appeal and restored the Board’s decision. The Court applied the “highest and best use” principle of assessment, and found that a multi-tenant retail building was the “best use” for the purposes of assessment. The Court held: “that property has value to its current owner can be a sufficient basis on which to determine its value.” In Nav Canada, the BCCA had held that even where there was no other potential purchaser, “one must regard the owner as one of the possible purchasers.” The Court in this case agreed, and held that “when, for whatever reason, there is no market for a property that has value to its owner, that owner can serve as a proxy for a competitive market.”

Going forward, property owners should be aware that even though there are no purchasers lining up to bid for a brownfield, that property may still be assessed at a high value for taxation purposes. If you are planning on becoming a property owner, then getting in surveyors to look at your property/properties will help with searching for any abnormalities and environmental issues, they will then be able to discuss a valuation. If you live in England you’ll be able to find one by searching for ‘chartered surveyors in london‘, the same can be said for wherever you live, always check to find your nearest and best one, so you know your property is in safe hands.

About BLG

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 Authors

Luke Dineley is a partner in both our Insurance and Tort Liability Group and Environmental Law Group in Borden Ladner Gervais LLP‘s Vancouver office. Luke focuses his practice on civil litigation, with an emphasis on insurance and tort law, and environmental law. In the area of environmental law, Luke’s experience includes representing and advising clients on a wide variety of contaminated site issues relating to both commercial and residential properties — including cost-recovery actions on behalf of plaintiffs and defendants. In addition, Luke has represented and advised major companies on environmental regulatory compliance, emergency spill responses, and environmental prosecutions. Luke is also an executive board member of the British Columbia Environmental Industry Association and frequently publishes and speaks in the area of environmental law.

 

Jacob Jerome Gehlen is an articling student at Borden Ladner Gervais LLP‘s Vancouver office. He has a Juris Doctor law degree from the University of Toronto and a Bachelor’s degree from McGill University.

Canada: Managing Prosecution Risk When Regulators Issue Permits or Orders

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Article by Stanley D. Berger

Fogler, Rubinoff LLP

A recent decision from the Yukon Territorial Court is a reminder of how important communication between the regulator and the regulated can be. At the same time, perhaps as an illustration of the power of fate, at least in a narrow set of circumstances, communication may make no difference at all. In R. v. Cobalt Construction Inc., released September 14, 2017 the sole shareholder/director and his road construction company were charged with failing to provide a detailed decommissioning plan in accordance with the conditions of a permit for a facility designed to accept, store and treat dirt contaminated with petroleum hydrocarbons. The defendants failed to establish a due diligence defence to the charges because of poor communication with the authorities, but were acquitted anyways because it was impossible for them to comply given the weather conditions during the time frame for compliance.

Cobalt Construction Inc. Vehicles (Credit: Brian Boyle/CBC)

The regulator’s plan required sampling results be obtained after contaminated piles of dirt were tilled as configured. The soil was to be mixed two weeks before the samples were taken for analysis. The sample results would then inform further elements of the plan including identification of an appropriate receiving facility. The defendant director testified that it would have been impossible to till the soil as required within the time frame set out by the regulator because snow on the ground would have prevented use of the excavator and the ground would have been frozen requiring a ripper to be used to break up the ground, thereby destroying the configuration of the piles. The defendants had in the initial plan set out dates for sampling beyond the time frame required by the regulator, but failed to offer any explanation as to why the sampling could not be done within the imposed time frame. Further, the defendants at no time sought an extension of time for performing the sampling. The Crown prosecutor argued that the authorities were under no obligation to notify the defendants that their initial plan was insufficient to satisfy the regulatory requirements. The Court observed that the more detailed the decommissioning plan provided, the more likely fairness would demand notification by the authorities of the deficiency and an opportunity to correct it. Conversely, the less detailed the plan, the less likely fairness would demand notification. “To decide otherwise would mean that a defendant could evade responsibility and delay consequences simply by making a cursory attempt at compliance.” The Court suggested that if the defendants had fleshed out the plan and included options for receiving facilities and restoration that would be contingent on the sampling results, this would trigger notification by the regulator that the plan was deficient. However, the initial plan provided was so clearly and objectively deficient on its face that the regulator had no obligation to notify the defendants that the plan did not comply and did not further require the authorities to give the defendants an opportunity to rectify the deficiencies prior to laying charges. The Court consequently rejected the defence of due diligence. Nevertheless, the Court acquitted the defendants, accepting the defence of impossibility, notwithstanding the absence of due diligence.

 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.

Technology to prevent rail disasters is in our hands

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Author: Chris Bachmann, Assistant professor, Department of Civil and Environmental Engineering, University of Waterloo

As the trial of the 2013 Lac-Megantic rail disaster begins, new policies and practices that aim to employ better technology could help avoid similar disasters in the future.

The Transportation Safety Board (TSB) found more than 18 distinct causes and contributing factors in the Lac-Megantic derailment investigation, which makes the likelihood of this type of accident seem nearly impossible.

An unattended 74-car freight train carrying crude oil ran away and derailed, resulting in the deadly fire and explosion in Lac-Mégantic, Quebec, in July 2013. (Photo Credit: CBC)

Yet other derailments in Canada involving dangerous goods would soon follow in 2014 in Plaster Rock, N.B. and Clair, Sask., and two incidents in 2015 in Gogama, Ont.

This suggests that we must be mindful of the connection between human interactions and technology and how each will continue to underlie many causes and contributing factors of future incidents.

As a civil engineering professor who researches transportation infrastructure, dangerous goods and risk, I see several new developments and changes to technology and policy that can help to reduce future accidents.

Safer tank car standards

The type of tank cars involved in the Lac-Megantic accident (“Class 111”) were known to be vulnerable to failure, even in low-speed accidents (e.g., Cornwall, Ont. in 1999).

After Lac-Megantic, Canada and the United States developed a more robust tank car standard, Class 117. This new standard features improved puncture resistance, structural strength and fractural resistance.

Despite these improvements, Canadian and U.S. regulations will still allow Class 111 tank cars to be used for the transport of certain dangerous goods until mid-2025.

Even so, Canada accelerated the phase-out of the older Class 111 tank cars from being used for crude oil service in Canada as of Nov. 1, 2016, under Protective Direction 38.

Enhanced braking

In addition to new tank car standards, the U.S. is requiring enhanced braking standards on trains carrying flammable goods.

Any train with a continuous block of 20 tank cars loaded with a flammable liquid, or 35 or more tank cars loaded with a flammable liquid dispersed throughout a train, must have a functioning two-way end-of-train (EOT) device — an electronic unit that can be mounted on the end of a freight train instead of a caboose — or a distributed power (DP) braking system, which spreads braking across different points throughout a train.

Furthermore, any train with 70 or more loaded tank cars containing flammable liquids travelling at speeds greater than 48 km/h must be operated with an electronically controlled pneumatic (ECP) braking system by May 1, 2023.

In short, these technologies enable more controlled braking behaviour through a more responsive and uniform application of brake pressure. Benefits would include shorter stopping distances, lower risks of derailment and lower pile-up effects in the event of a derailment.

More information sharing

Technology also allows more information sharing for better decision-making. For example, Protective Direction No. 36 in Canada requires railways to provide municipalities with dangerous goods reports, including information on the number of unit trains, percentage of railway cars transporting dangerous goods, information on their nature and volume and number of trains.

This information is intended to inform emergency planning and responses.

The U.S. is also requiring more accurate classification of unrefined petroleum-based products to ensure proper classification, packaging and record-keeping through a documented sampling and testing process. This information is to be made available to the Department of Transportation upon request.

Human factors

The technology to prevent rail disasters is in our hands — just as it was in 2013. While these and future technologies are likely to reduce the risks of transporting dangerous goods across Canada and the United States, the interactions between humans and other elements of the system — the “human factors” — will remain predominant.

As we now know in the Lac-Megantic accident, the train carrying 7.7 million litres of crude oil sped toward the small Quebec town at 104 km/h before derailing, killing 47 people in the resulting fire and explosions on July 6, 2013.

Hours before derailing, the train was parked and left running on the main track in Nantes, Que., awaiting departure. But shortly after the engineer parked the train, a locomotive engine caught fire and was turned off by the Nantes fire department.

Without power from the running locomotive engine, air slowly leaked from the air brake system. An insufficient number of handbrakes were applied and the train eventually began rolling downhill on its final journey toward Lac-Megantic.

Some of the causes and contributing factors in the Lac-Megantic rail disaster were not technical failures so much as they were failures of humans to properly interact with technology: To properly maintain a locomotive engine, to have knowledge of interactions between locomotive engines and air brake systems and to properly set and test the effectiveness of handbrakes.

Although technical standards were less stringent in 2013, technology did not fail us. In many of the causes and contributing factors of Lac-Megantic, it is evident that we failed to understand and interact with our technology.

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This article was originally published on The Conversation. Disclosure information is available on the original site. To read the original article:

https://theconversation.com/technology-to-prevent-rail-disasters-is-https://theconvers

About the Author

Chris Bachmann is an Assistant professor, Department of Civil and Environmental Engineering, University of Waterloo.  His research interests include the interaction between transportation and economics, trade, energy, transportation network resiliency/criticality/robustness/vulnerability, risk, dangerous goods movement, transport economics, transport project and policy evaluation.

Performance Assessment of Pump and Treat Systems

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Researchers at the U.S. Department of Energy’s Pacific Northwest National Library recently released a paper on the Performance Assessment of Pump-and-Treat Systems.

The pump-and-treat (P&T) remediation technology is comprised of three main aspects:  groundwater extraction for hydraulic control and contaminant removal, above-ground treatment, and groundwater monitoring to assess performance.

Pump-and-treat (P&T) is a widely applied remedy for groundwater remediation at many types of sites for multiple types of contaminants. Decisions regarding major changes in the remediation approach are an important element of environmental remediation management for a site using P&T. Performance assessment during P&T remedy implementation may be needed because of diminishing returns, the complex nature of the site and contamination, or other factors.

While existing guidance documents for the performance assessment of pump-and-treat systems provide information on design, operation, and optimization for P&T systems, these documents do not provide specific technical guidance to support remedy decisions regarding when to transition to a new remedy or to initiate closure of the P&T remedy.

In the paper, the researchers describe a structured approach for P&T performance assessment that was developed  using analysis of three example P&T systems. These examples highlight key aspects of the performance assessment decision logic and represent assessment outcomes associated with optimizing the P&T system, transitioning from P&T to natural attenuation, and supplementing P&T with another technology to hasten transition to natural attenuation.

Decision elements for the P&T performance assessment include:

  • Contaminant concentrations and trends
  • Contaminant mass discharge from source areas or at selected plume locations
  • The attenuation capacity of the aquifer
  • Estimated future plume behavior and time to reach remedial action objectives for the site
  • P&T system design, operational, and cost information

Categories of decision outcomes for the P&T assessment include:

  • Initiate P&T remedy closure
  • Continue with existing or optimized P&T
  • Transition to Monitored Natural Attenuation
  • Supplement P&T with other treatment technologies
  • Transition to a new remedy approach