Researchers Perfect Nanotechnology Tool for Studies of Nuclear Waste Storage

Researchers at the University of Guelph (U of G) recently published an article in Nature Scientific Reports in which they describe the first every use of antimatter to investigate processes connected to potential long-term storage of nuclear waste.  The team studied radiation chemistry and electronic structure of materials at scales smaller than nanometres.

The U of G team worked with collaborators at the French Alternative Energies and Atomic Energy Commission and utilized the TRIUMF particle accelerator in Vancouver.  Based on these first-ever measurements at the accelerator, the team able to to show that their system is a proven tool that will enable radiation studies of material to be used to store nuclear waste.

“This system can now be applied along with other measurements to determine and help to potentially design the best material for containers and barriers in nuclear waste management”, said the U of G professor Khashayar Ghandi, the lead author of the research paper.

Currently, used nuclear fuel bundles – still highly radioactive — are held in vaults in temporary storage.  Long-term, experts aim to use deep geological repositories to permanently entomb the material. Buried in rock formations hundreds of metres underground, the fuel containers would be held in engineered and natural barriers such as clays to shield people and the environment from radiation. It takes almost 100,000 years for radioactivity from nuclear waste to return to the level of natural uranium in the ground.

The researchers also discovered the intriguing properties of clays that may make them useful in other industries. Clays may serve as catalysts to change chemicals from one form to another – a benefit for petrochemical companies making various products from oil. Other industries might use clays to capture global-warming gases such as carbon dioxide and use those gases to make new products.

The research may ultimately help in designing safer underground vaults for permanent storage of radioactive waste.  Other applications of the nanotechnology tool include new ways of generating and storing hydrogen, and technologies for capturing and reusing greenhouse gases.

Supreme Court of Canada finds two forest-product companies must pay for remedial work

Written by Peter Brady and Claire Seaborn, McCarthy Tétrault

On December 6, 2019, the Supreme Court of Canada (“SCC”) found in R v Resolute FP Canada Inc., 2019 SCC 60 (“Resolute”) that two forest-product companies, Resolute and Weyerhaeuser, are on the hook to pay for remedial work at a waste site in Northwestern Ontario.

Resolute and Weyerhaeuser are successors of the companies that abandoned the waste site decades ago. They sought to rely on an indemnity agreement from 1985 between the Government of Ontario and their predecessor companies to argue that they were not responsible for the site’s monitoring and maintenance.

The decision was split 4-3. The majority of judges found that the indemnity agreement did not protect the companies from the province’s remediation order. As a result, Resolute and Weyerhaeuser, and not the provincial government, were found to be responsible for the costs of compliance.

History of industrial activity, contamination and adverse health effects at the site

The history of this case dates back to the 1960s when a pulp and paper mill operated in Dryden, Ontario. The mill bleached paper using a process that involved mercury, which was dumped into the nearby English and Wabigoon rivers. The mercury waste flowed downstream, which resulted in harm to health of some local residents (including members of the Grassy Narrows and Islington First Nations) the closure of a commercial fishery and damage to the region’s tourism industry.[1]

In the mid-1970s, a company called Great Lakes Forest Products was interested in buying the properties where the pulp and paper mill were located from its owner, Reed Ltd. In an effort to ensure the mill remained operational and provided local jobs, the Government of Ontario entered into an indemnity agreement with Great Lakes Forest Products in 1979. Under the indemnity agreement, Great Lakes Forest Products agreed to spend $200 million to expand and upgrade the mill, and the Government of Ontario agreed to cover the costs of past pollution above $15 million.[2]

Meanwhile, the Grassy Narrows and Islington First Nations commenced litigation regarding the mercury contamination in 1977 that ended with a settlement in 1985. When the settlement was reached, the Government of Ontario granted a new 1985 indemnity agreement to Reed Ltd., Great Lakes Forest Products Limited and their successors and assigns for the mercury contamination.[3]

Ontario Ministry of the Environment issues a remediation order in 2011

Twenty-six years later, on August 25, 2011, Ontario’s Ministry of the Environment issued a remediation order for environmental monitoring and maintenance at the waste site where the mill had operated in Dryden, Ontario (“Remediation Order”).[4]

The Remediation Order was issued as a “Director’s Order” under what is now s. 18 of Ontario’s Environmental Protection Act, and imposed three main obligations:

  1. to repair certain site erosion, perform specific groundwater and surface water testing, and file annual reports containing specified information;
  2. deliver to the Ministry of the Environment the sum of $273,063 as financial assurance in respect of the waste disposal site; and
  3. to “take all reasonable measures to ensure that any discharge of a contaminant to the natural environment is prevented and any adverse effect that may result from such a discharge is dealt with according to all legal requirements.”[5]

The property’s ownership had changed several times in that period. The Remediation Order was issued to two former owners of the property: Bowater (which later became Resolute) and Weyerhaeuser.

Weyerhaeuser and Resolute successful in courts below

In May 2013, Weyerhaeuser sought a declaration from the Superior Court of Justice that the 1985 indemnity agreement required the Government of Ontario to compensate for all of the costs of complying with the Remediation Order.[6] Resolute intervened. Ontario submitted that it was not responsible for compliance costs.

All three parties moved for summary judgment. The motions judge held that the 1985 indemnity agreement applied to the Remediation Order and granted summary judgement in favour of Weyerhaeuser and Resolute.[7] Ontario appealed.

The Ontario Court of Appeal agreed that the 1985 indemnity agreement applied to the Remediation Order; however, it applied that decision only to Weyerhaeuser and found that Resolute had assigned its benefit under the agreement.[8]

SCC decision: the 1985 indemnity agreement does not cover the Remediation Order

By a narrow margin of 4-3, SCC overturned the courts below and found that the 1985 indemnity agreement did not apply to Remediation Order, thereby leaving Resolute and Weyerhaeuser on the hook to pay for remediation costs.

The majority’s key findings include:

  • The 1985 agreement only provided an indemnity for claims brought by “third parties.” The provincial government was a party to the 1985 agreement, and therefore cannot be considered a third party.
  • The 1985 agreement was intended to cover only “pollution claims” (a term defined in the agreement). The Remediation Order is not a “pollution claim” since it requires monitoring and maintenance to prevent more pollution, and is not intended to stop ongoing pollution.[9]
  • The 1985 agreement must be considered in the context of prior indemnities and the settlement with Grassy Narrows and Islington First Nations. This context indicates that the 1985 indemnity agreement should apply more narrowly and was not intended to provide protection against the costs of regulatory compliance.[10]

While the “polluter-pays principle” is not referenced explicitly in the decision, the SCC has interpreted the 1985 indemnity agreement in such a way as to hold successor companies liable for past environmental contamination, as opposed to requiring the provincial government to foot the bill.

Parallels to the recent decisions in Orphan Wells and HBBC

The Resolute decision comes less than a year after the SCC released its decision in Orphan Well Association v Grant Thornton Limited, 2019 SCC 5 (“Orphan Wells”), another case in which a successor entity was liable for historic environmental cleanup costs.

In Orphan Wells, the SCC held a bankrupt energy company’s estate liable for abandonment and reclamation obligations for certain old oil and gas wells. These environmental responsibilities were found to take priority over obligations to pay back creditors in the case of insolvency or bankruptcy. Like in Resolute, the SCC in Orphan Wells overturned the appellate court below and reached a decision ensuring that taxpayers were not left paying for environmental remediation.

Please refer to the article, “Redwater – SCC Delivers the Final Word”, for an in-depth summary and analysis of the Orphan Wells decision.

The issue of ongoing regulatory liability for contamination for “non polluters” and/or successor companies was also front and center in the Hamilton Beach Brands Canada, Inc.  v Ontario (Ministry of the Environment and Climate Change), 2018 ONSC 5010 (“HBBC”).

In HBBC the Ontario Ministry of Environment issued an Order to three parties to take steps to delineate and monitor (with the potential for future remediation) ground water contamination that had migrated from an industrial property to surrounding commercial, residential and municipal lands. The contamination had occurred decades early through actions of a prior lessee of the property. The Orderees were a corporate successor of a prior owner of the property, the current owner and the current Lessee of the property.

The Ontario Environmental Review Tribunal (“ERT”) dismissed the appeal of the Order, rejecting the argument that the Order under s. 18 of the Ontario’s Environmental Protection Act could not apply to off site contamination that was not caused by the Orderees.[11] The Ontario Divisional Court, on Review, upheld the ERT decision holding that there is no geographical constraint limiting orders to the source property of the contamination.[12] Leave to appeal to the Ontario Court of Appeal was sought and refused.[13]

What comes next

The Resolute decision has not quite ended the series of legal disputes that have plagued this Dryden, Ontario site for decades, but has provided clarity on how the 1985 indemnity agreement ought to be interpreted.

In a statement, Resolute indicated that it would continue its monitoring of the site and posting of financial assurance while an appeal of the Remediation Order proceeds to the ERT.

We can help

Our team at McCarthy Tétrault has experience navigating the legal and regulatory uncertainties that arise in environmental matters. If you would like more information on these developments and their potential impact on your business, we can help. Please contact Peter Brady or Claire Seaborn with any questions or for assistance.

[1] R v Resolute FP Canada Inc., 2019 SCC 60 at para 4.

[2] R v Resolute FP Canada Inc., 2019 SCC 60 at para 9.

[3] R v Resolute FP Canada Inc., 2019 SCC 60 at para 13.

[4] R v Resolute FP Canada Inc., 2019 SCC 60 at para 20.

[5] R v Resolute FP Canada Inc., 2019 SCC 60 at para 20.

[6] R v Resolute FP Canada Inc., 2019 SCC 60 at para 22.

[7] Weyerhaeuser Company Limited v Ontario (Attorney General), 2016 ONSC 4652.

[8] Weyerhaeuser Company Limited v. Ontario (Attorney General), 2017 ONCA 1007. Note that in dissent, Justice Laskin had found that the 1985 indemnity agreement only applied to claims brought by third parties, and not regulatory claims by governments.

[9] R v Resolute FP Canada Inc., 2019 SCC 60 at para 14-28.

[10] R v Resolute FP Canada Inc., 2019 SCC 60 at para 30.

[11] Hamilton Beach Brands Canada Inc. v. Ontario (Environment and Climate Change), ERT Case No. 17-025.

[12] Hamilton Beach Brands Canada, Inc. v Ontario (Ministry of the Environment and Climate Change), 2018 ONSC 5010.

[13] The Ontario Court of Appeal refused leave on December 12, 2018: http://www.ontariocourts.ca/coa/en/leave/2018.htm#refused.

This article has been republished with the permission of the authors.  It was first published on the McCarthy Tétrault ‘s website.


About the Authors

Peter Brady  is a partner in McCarthy Tétrault ‘s Litigation and Mining Groups and co-head of the firm’s National Environmental, Regulatory & Aboriginal Group. He regularly advises and represents clients in all legal aspects of regulatory litigation, with particular emphasis in the areas of environmental law, occupational health & safety law, mining law, and extractive industry projects. Peter also has significant experience in anti-corruption compliance, investigations, and due diligence for transactions involving Canada, Indonesia, China, the USA, and Africa.

Claire Seaborn’s litigation practice focuses on commercial disputes, public law and regulatory matters. She draws from her experience in the public and private sectors in Canada, the United States and the United Kingdom. Claire’s involvement in high-profile and high-stakes files has sharpened her ability to advocate for her clients and provide sound legal advice.

Canada: $150,000 Fine for Oil Leak from Fuel Truck

Representatives of Hay River Mobile Home Park Ltd., located in Northwest Territories, recently plead guilty in response to a charge of violating subsection 36(3) of the Canada Fisheries Act. The company was fined $150,000, which will be directed to the Government of Canada’s Environmental Damages Fund.

Under the subsection 36(3) of the Fisheries Act, no person shall deposit or permit the deposit of a deleterious substance of any type in water frequented by fish or in any place under any conditions where the deleterious substance or any other deleterious substance that results from the deposit of the deleterious substance may enter any such water.

The events that led to the fine occurred in October 2016.  Environment and Climate Change Canada enforcement officers responded to a report from the Northwest Territories 24-Hour Spill Report Line that a fuel sheen had been observed on the Hay River. An investigation determined that a fuel truck parked on Hay River Mobile Home Park Ltd. property had released a diesel/water mixture, over a 20-hour period, onto land adjacent to the Hay River. An undetermined amount of the mixture then entered the Hay River, which is home to a variety of fish species, including walleye, whitefish, and northern pike.

The spill of fuel oil from the truck was the result of a malfunction.  The truck remained idle through years of freezing and thawing, until a filter used to separate the truck’s water from fuel cracked. The vehicle’s remaining fuel subsequently drained out and flowed on to the banks of the Hay River.  An expert brought testified in court that a projected that between 3.3 liters and 79.1 liters of fuel seeped into the river.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.

 

Ontario to promulgate Excess Soil Regulations

After much speculation and delay, the Province of Ontario finally announced that the On-site and Excess Soil Regulation will take effect on July 1, 2020.  In a speech at the Excess Soil Symposium in Ajax, Ontario, the Environmental Minister, Jeff Yurek announced that the government is moving ahead with making changes to and finalizing the regulations under the Environmental Protection Act.

“As Ontario’s population continues to grow, we need to ensure our valuable resources and prime land don’t go to waste,” said Minister Yurek. “These changes will remove barriers for communities, developers and property owners to clean up and redevelop vacant, contaminated lands and put them back into productive use. This will benefit the local economy and create jobs, and keep good, reusable soil out of our landfills.”

Under the new regulations, Ontario is clarifying rules on the management and transport of excess soil to help optimize the resources we have and reduce costs in development, which will benefit communities. Clear rules and new tools to work with municipalities and other law enforcement agencies will also strengthen enforcement of illegal dumping of excess soil. These regulatory changes will provide greater assurance that soil of the right quality is being reused locally, reduce greenhouse gas impacts from truck transportation, and prevent reusable soil from ending up in landfills.

Ontario’s government is moving forward with its commitment to make it safer and easier to use local excess soil and put vacant, prime lands back into good use

“The Ontario Home Builders’ Association is supportive of clarifying rules regarding the reuse and management of excess soils generated from construction sites,” said Joe Voccaro, CEO, Ontario Home Builders’ Association. “This will create business certainty, while ensuring the tracking and quality of soil being deposited and increasing opportunities for reuse on other sites. Furthermore, exempting historic road salting that was preventing developers from obtaining an RSC is a very positive amendment supporting new housing supply.”

Ontario is also reducing barriers to clean up brownfields, which are properties where past industrial or commercial activities may have left contamination, so underused land in prime locations can be cleaned up and put back to productive use, benefitting the neighbourhood and businesses. This will also provide developers with more certainty and opportunity to redevelop brownfield properties, while still maintaining human health and environmental protection.

Quick Facts

  • An estimated 25 million cubic metres of excess construction soil is generated each year.
  • The management of excess soil, including trucking and disposal fees, can account for a significant part of the costs in large development projects, accounting for an estimated 14 per cent of overall construction costs.
  • Soils travel long distances to either a landfill or reuse site. On average, a load of excess soil travels 65 km or more.
  • Greater local reuse of excess soils can save between five to 10 per cent of overall project costs.

 

U.S. DOT Proposing Changes to Hazardous Materials Regulations

The U.S. Department of Transportation (DOT) is proposing a change to the Hazardous Materials Regulations to allow the transportation of liquefied natural gas (LNG) on railcars. The overture builds on an executive order by President Donald Trump issued earlier this year.

Currently, LNG can only be transported by rail using a portable tank with prior approval from the Federal Railroad Administration (FRA), although the Hazardous Materials Regulations allow DOT 113 specification tank cars to be used for hauling other flammable liquids. Under a notice of proposed rule- making, DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) now seeks comment on changes that would allow LNG to be transported in these cars as well.

Citing LNG’s expanding role as a critical domestic and international energy resource, PHMSA proposes to permit the transport of LNG by rail tank car to meet the demand for greater flexibility in the modes of transportation available to transport LNG. The proposed rule would facilitate harmonization across the North American rail network. In Canada, LNG is already authorized for transport in DOT-113 equivalent specification rail tank cars (TC-113C120W).

“Safety is the number one priority of PHMSA and we understand the importance and will make it a top priority to evaluate all public comments and concerns raised throughout the rule-making process,” said PHMSA administrator Skip Elliott. “This major rule will establish a safe, reliable, and durable mode of transportation for LNG while substantially increasing economic benefits and our nation’s energy competitiveness in the global market.”

“FRA shares regulatory oversight responsibility for the safe transportation of hazardous materials by rail,” said Ronald Batory, Federal Railroad Administration administrator. “This rule-making is consistent with our systemic approach to accident prevention, mitigation, and emergency response preparedness.”

Packaging requirements

In the NPRM, PHMSA proposes the following packaging controls:

  • Authorized transport of LNG by rail in DOT-113C120W tank cars. DOT-113 tank cars are vacuum-insulated and consist of an inner stainless steel tank enclosed with an outer carbon steel jacket shell specifically designed for the transportation of refrigerated liquefied gases.
  • Amend the Pressure Control Valve Setting or Relief Valve Setting Table in 49 Code of Federal Regulations § 173.319(d)(2) by adding a column for methane, thus identifying the pressure relief valve requirements for DOT-113s transporting methane.

Operational controls

PHMSA is not proposing new operational controls for transport of LNG by rail tank car. However, PHMSA notes the operational controls (e.g., speed restrictions) set forth in the Association of American Railroads (AAR) Circular OT-55 would apply to the bulk transport of LNG by rail in a train composed of 20 car loads or intermodal portable tank loads in which LNG is present along with any combination of other hazardous materials. OT-55 is a detailed protocol establishing railroad operating practices for the transport of hazardous materials that has been voluntarily adopted by the industry.

Safety case for LNG-by-rail

DOT-113 specification tank cars, including DOT-113C120W tank cars, include a stainless steel inner vessel and a thick steel outer vessel (or jacket); there is an insulated vacuum space between the two vessels to minimize the rate of heat transfer from the atmosphere to the refrigerated liquid during transport; and the cars include pressure relief devices, vents, and valves to prevent or minimize overpressure releases.

Additional requests for information

In addition to commenting on the specific packaging requirements listed above, the NPRM asks the public to comment on the following topics that are within the scope of the NPRM:

  • Whether the authorized transport of LNG by rail has the potential to reduce regulatory burdens, enhance domestic energy production, and impact safety.
  • Whether there is a reasonable basis for limiting the length of a train transporting LNG tank cars and what length is appropriate.
  • Whether there is a reasonable basis for limiting the train configuration, such as by limiting the number of LNG tank cars in a train consist or by restricting where LNG tank cars may be placed within the train.
  • Whether PHMSA should consider any additional operational controls and whether such controls are justified by data on the safety or economic impacts.

Comments on the LNG-by-rail NPRM are due on or before December 23, 2019.

 

 

Asbestos Quebec to change its name

The town of Asbestos, Quebec is known mainly for its asbestos mine, the largest employer for the town of approximately 7,000.  The mine, until recently, was the largest asbestos mine in the world.  The Town is located about 180 km east of Montreal, in the Estrie region of southeastern Quebec

The Town Council recently issued a news release in which it conceded that the word “Asbestos” did not have a good connotation and that it was favourable to a name change.  As such, the Town is accepting suggestions from citizens as to the new name.

The Jeffrey mine, in Asbestos, first opened in the late 1880’s.  The open pit mine is  ver two kilometres in diametre, 350 metres in depth, and six square kilometres in total area, making it the largest open pit asbestos mine in the Western hemisphere.  The mine closed in 2011.

 

In the fall of 2018, the Canadian government announced that it would be making it illegal to import, manufacture, sell, trade or use products made with the asbestos mineral.

Asbestos is a heat-resistant silicate fiber that is frequently present in building materials. Contrary to common understanding, it is still used in building materials today and can be present in any building of any age.

It becomes a problem when asbestos-containing materials are disturbed and the fibers enter the air. The fibers lodge themselves in the lungs of anyone who breathes them in and can cause mesothelioma, lung cancer, and other acute and long-term health problems, up to and including death.

Jeffrey Mine, Asbestos, Quebec (Photo Credit: Yvon Viens)

 

What is the difference between external & internal radiation exposure?

Written by Steven Pike, Argon Electronics

Radiological incidents where there is the potential for the release of ionising radiation can occur in a wide variety of scenarios – be it a fire in an industrial facility, a transportation accident that involves radioactive materials or the deliberate use of a radiological dispersal device (RDD).

Any accident or incident that involves a radiological hazard can place significant operational demands on first response teams as well as placing those personnel at risk of exposure to potentially dangerous levels of ionising radiation.

Radiation exposure refers to any situation in which the body is in the presence of radiation.

In order to keep radiation doses at a level that is low as reasonably achievable (ALARA) it is vital that first responders both minimise the time that they spend in affected areas and that they maximise the distance between themselves and the radiation source.

When we consider the concept of radiation exposure it is important to bear in mind not just the type of radiation that is being emitted, but also the route by which that radiation enters the body.

A commonly held image of radiation is that it emanates from a source device and strikes the outside of the body – in what’s known as external exposure.

However the radioactive material from radiation also has the ability to deposit its energy in our internal organs through the process of ingestion, injection, absorption or inhalation – what is termed internal exposure.

What is external radiation exposure?

External radiation exposure occurs when part or all the body is exposed to a penetrating radiation field from an external source. In some cases this radiation will be absorbed by the body, while in others it may pass straight through.

Any source outside of the body that emits ionising radiation can pose an external radiation exposure hazard – be it in the form of a beta source, neutron source or gamma source.

How extensive this hazard is depends on the amount of exposure received, the duration of the exposure, the energy of the emitted radiation and the total amount of radioactive material that is present.

All ionising radiation sources produce an external radiation field, however some radiation fields are so so small that they pose no radiation risk at all – for example in the case of low and moderate energy beta radiation emitters such as Tritium (H-3), Nickel-63 (Ni-63) or Phosphorus 33 (P-33).

Other sources of ionising radiation – such as the gamma sources Caesium-137 (Cs-137) and Cobalt-60 (Co-60) – are able to produce much more powerful external radiation fields, so care must be taken to shield the source and monitor exposure.

What is internal radiation exposure?

Internal radiation exposure occurs when a radioactive material is released into the environment in the form of a solid, liquid or gas.

It is then able to enter the body through the route of ingestion through the digestive tract, inhalation into the respiratory airways, percutaneous absorption through the skin or penetration via contamination from a wound.

Radioactive materials that are incorporated into the body will emit radiation as they decay. In addition, that individual will continue to be exposed to radiation until such time as those radioactive materials have been excreted in the form of either urine or faeces.

Specific radioactive materials have a tendency to target specific organs depending on their unique chemical properties.

The radioactive isotope strontium, for example, shares similar properties with calcium, which means it tends to accumulate in calcium-rich areas of the body such as bones.

Radioactive caesium shares properties that are similar to potassium, which means it tends to distribute throughout the body.

Radio-iodine, meanwhile, tends to concentrate in the thyroid gland in the same manner as non-radioactive iodine (and the effects of which were evidenced after the Chernobyl nuclear accident where there was a marked increase in the number of thyroid cancer cases among children.)

Any exposure to ionising radiation in the context of a radiological emergency – and even if it is only for short periods of time – can increase the chance of both short-term and long-term health impacts for first responders.

In any situation where there is deemed to be a radiation hazard it will be crucial to ensure that emergency personnel are sufficiently trained in managing the risks, that they are adequately equipped and that they are appropriately protected.


About the Author

Steven Pike is the Founder and Managing Director of Argon Electronics, a leader in the development and manufacture of Chemical, Biological, Radiological and Nuclear (CBRN) and hazardous material (HazMat) detector simulators. He is interested in liaising with CBRN professionals and detector manufacturers to develop training simulators as well as CBRN trainers and exercise planners to enhance their capability and improve the quality of CBRN and Hazmat training.

Urgent Canadian Action is needed on PFAS — the Forever Chemicals

Written by Bev Thorpe and Fe de Leon for the Canadian Environmental Law Association

The class of chemicals called PFAS (Per- and Polyfluoroalkyl Substances) are often referred to as ‘the forever chemicals’ because they are highly persistent in the environment and will take hundreds if not thousands of years to disappear from the soil and groundwater where they accumulate.  The Netflix film, The Devil We Know, and the newly released film, Dark Waters, have brought these chemicals to popular awareness.  As we now know, two substances in this chemical class – PFOS and PFOS – are the focus of multi-million dollar lawsuits due to the cover up of data demonstrating health impacts such as increased cholesterol, kidney cancer, testicular cancer, low birth rates, thyroid disease, and weakened immunity.  Over 99% of all Canadians tested by Health Canada’s biomonitoring surveys, have PFOA and PFOS in their blood and other organs including communities in the far north.  Producers of PFOS and PFOA voluntarily stopped production in 2002 resulting in a slight decrease of these two PFAS in sampled populations, but other PFAS are now turning up in Canadians. Yet the Canadian regulatory response to this crisis is lacking urgency and transparent communication with impacted communities.

PFAS is widely present because  for over sixty years these chemicals have been used as stain, oil and water repellant chemicals in  clothing, carpets, grease-proof paper, ski wax, cookware and cosmetics and also widely used in firefighting foam and other industrial applications.  Their widespread use raises the question why it took so long to highlight the risk to human health and wildlife and why regulatory response has been so slow.  This is partly because scientists lacked the analytical capability to measure these chemicals in the environment until recently.  At the same time, PFAS, as with thousands of chemicals were historically allowed on the market with no toxicological screening requirements.  Even today, most new  PFAS, which industry is now switching to as replacements for PFOA and PFOS, lack full toxicological data yet they remain unregulated and on the market.

In Canada most uses for PFOS were prohibited in 2016 aside from exemptions for specific uses.  In 2012, the federal government concluded that PFOA was an ecological concern. But Health Canada maintains that PFOS and PFOA are not a concern for human health at current levels of exposure.  Most recently in June 2019 Transport Canada allowed airports to use PFAS-free firefighting foam, which shows a more precautionary approach as it targets the whole class of PFAS, but this is only a start.  There are over 5,000 PFAS in use and they are just as persistent in the environment as PFOS and PFOA, with many known to be highly mobile in rivers, lakes and groundwater.  None of these are restricted in Canada.

For Canadian adults, our main exposure to PFAS is via household dust, ingestion of food and air – in fact studies of air in Vancouver homes found levels of PFAS were twenty times higher than air outside the homes due to PFAS inside the homes.  Children, infants and toddlers are most at risk from PFAS exposure due to hand-to-mouth contact with PFAS treated products.  In addition, Canadian research has demonstrated PFAS in the leachate and air of landfill sites, due to the amount of PFAS in the clothing, carpets and consumer goods that have been discarded into landfills over the years and which are now leaching these chemicals into the environment.  PFAS are found in the air and effluent from wastewater treatment sites as well as in the sewage sludge which can be spread on land.

If this situation seems worrying, it is.  We lack full transparency of where contamination sites are in Canada and full accountability for who is responsible for the cleanup. Remediation is expensive and technically challenging which may partly explain such inaction.  The region downstream of Hamilton airport has still not been cleaned up eight years after high levels of PFAS contamination were discovered.  The extent of contamination in Canada is difficult to know, unlike the disclosure afforded to US citizens by many US state regulatory bodies.  The use of PFAS in firefighting foam at military bases, airports and refineries is increasingly acknowledged to be a common source of  water contamination but public information is absent on site specific monitoring data or even if groundwater wells are being monitored.  In December 2018 Health Canada released Canadian Drinking Water Guidelines for PFOS and PFOA which are substantially weaker than US based guidelines and to date British Columbia is the only Canadian province to establish provincial drinking water regulations.

We urgently need to see federal and provincial governments take action to phase out the entire class of PFAS in consumer and industrial use; strengthen Canadian drinking water standards to be more protective of children’s health and radically increase public right to know about the presence of PFAS in consumer products, local drinking water, and discharges into our communities. Tackling these forever chemicals requires an informed and coordinated public response which has sadly been lacking to date.

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


About the Authors

Bev Thorpe is an environmental consultant and principle author of CELA’s reports on PFAS.  Bev works with advocacy networks, companies and governments to advance an economy without the harm of hazardous chemicals.  She is a long time member of the Coming Clean network in the USA and she works with European and Asian networks.

Fe de Leon is a researcher with the Canadian Environmental Law Association (CELA) and has worked extensively on toxic substances particularly in the Great Lakes Basin, on the federal chemicals management plan and on international efforts to address persistent toxic substances through the Stockholm Convention on Persistent Organic Pollutants, the Great Lakes Quality Agreement, and a global treaty to address mercury.

Mind the GAP: Excluded Pollution Conditions in Environmental Insurance Policies

Written by Carl Spensieri, Vice President, Environment, Berkley Canada

BACKGROUND

Your Company excavates and transports contaminated soils on a redevelopment project. Being an experienced contractor, you implement several best management practices to reduce the amount of dust and odour you generate while doing this work. Further, you even implement a truck inspection and washing process to reduce soil tracking on nearby streets by way of truck traffic. In short, you are a good Contractor!

Unfortunately, your work still generates some dust and odours and neighbouring property owners complain to the municipality and the environmental regulator when they find dust on their cars and lawns.

MIND THE GAP

Despite your best management practices, the Owner of the redevelopment project receives a statement of claim from the nearby property owners. In addition, the Owner is issued a fine by the environmental regulator for allowing contaminants (dust) and odour to escape into the environment. The Owner, in turn, issues a demand letter requesting that you pay for defence costs and the environmental fine.

Thankfully, you buy a Contractor Pollution Liability (CPL) policy.  Can you identify the GAP?  The majority of CPL policies sold in Canada do not cover this exposure!

THE DETAILS

In general, CPL policies define POLLUTION CONDITION to mean:

the discharge, release or escape of any solid, liquid, gaseous or thermal irritant or contaminant, …, into or on land, any structure on land, the atmosphere or any watercourse or body of water, including groundwater.

Do you think dust and odour fall within this definition? While the above noted definition is very broad, the majority of CPL Policies sold in Canada introduce the following restriction:

 …provided such discharge, release or escape is unexpected and unintended …

Given all the actions taken the by the Contractor to manage the dust and odour risk, it is not possible to suggest the dust and odours generated while excavating and transporting are unexpected and unintended. This results in no cover being afforded for this claim.

THE SOLUTION

The solution is simple. Ensure your CPL policy does not include this restriction. When buying CPL insurance in Canada it is important to understand not all policies are created equal. Failing to recognize this GAP could cost you and your clients!


About the Author

Carl is a licensed professional engineer in the Province of Ontario with 20 years of experience in environmental liability assessment, management and insurance. He is a business leader focused on driving profitable growth through innovative specialty insurance solutions.  He is considered a positive business disruptor that seeks to deliver the best outcomes for his clients. Berkley Canada is a specialty insurance carrier.

 

Penalty Creep: What is going on with Environmental Fines Across Canada?

Written by Aaron AtchesonBryan SmitsDanielle ParryJulia Zanetti, Miller Thomson

In July of this year, a fine of $2.7 million was levied against Kirby Offshore Marine Operating LLC following its guilty plea for violations of the Fisheries Act involving a spill of diesel fuel and lubricants near Edge Reef in British Columbia.[1] Approximately 107,552 litres of diesel fuel and 2,240 litres of lubricants were released into the waters, both of which substances are considered to be detrimental to fish and migratory birds under the Fisheries Act. The nearly $3 million fine represents the largest fine that has ever been imposed following one single spill incident of a deleterious substance into water frequented by fish.[2]

The news of this massive fine raises a broader question: are the fines now being handed out for environmental offenses rising faster than inflation? And if so, to what end? Our review of penalty levels in Canada looks at the legislative changes in the minimum and maximum environmental fines, and whether these changes in the law are actually having any real effects on the quantum of fines environmental offenders are receiving. The recent Kirby headline of its $2.7 million fine suggests they are. And finally, is there any indication that these larger fines are changing behaviour?

Up, up, up: The Recent Pattern in Environmental Fine Laws

Ushering in the legislative shift at the federal level was the new Environmental Enforcement Act (EEA) enacted by the Conservative government in 2009. This legislation introduced a new fine regime that establishes mandatory minimum fines for individuals and corporations, as well as higher maximum fines for a new category of “designated offences”. The maximum fine for an individual convicted of a designated offence, upon indictment, became $1 million, with a mandatory minimum fine of $15,000. For corporations, the jump was even larger: a corporation can be subject to a fine of $6 million and a mandatory minimum fine of $500,000 for these offences.[3] Further, upon second and subsequent offences for a “substantially similar” offence falling under the EEA, all fines are automatically doubled.[4]

This pattern of handing out much higher fines for corporations than those for individual offenders is a recent phenomenon not confined to the federal regime. Under Ontario’s Environmental Protection Act (EPA), there are similarly substantial differences between fines charged to corporations and those charged to individuals. For instance, individuals charged with an offence under the EPA are subject to a maximum fine of $50,000 upon first conviction and $100,000 upon subsequent conviction,[5] whereas a corporation charged with the same offence would be subject to a maximum fine of $250,000 upon first conviction and $500,000 upon subsequent conviction.[6] Under Alberta’s Environmental Protection and Enhancement Act, corporations are subject to fines 10 times those for individuals for the same offences: with a maximum of $100,000 for individuals and $1 million for corporations.[7]

Under Ontario’s EPA, the large majority of increases to maximum fines were enacted in 2005 under a provincial Liberal government. The maximum fine levels were almost doubled in 2005, and are now very significant amounts.[8] Even more dramatic has been the introduction of mandatory minimum fines for certain enumerated offences listed under subsection 187(3) of the Act.[9] For these specific offences, prior to 2005, individuals convicted would be subject, upon first conviction, to a maximum fine of $50,000 and upon subsequent conviction, a maximum fine of $100,000.[10] Following the 2005 changes, an individual is subject to not only a maximum fine of $4 million but also a mandatory minimum fine of $5,000.[11] This combination of maximum and minimum continues for second and subsequent convictions, resulting in an individual subsequently convicted of one of these offences facing a maximum fine of $6 million, and a mandatory minimum fine of $20,000.[12]

The provincial trend of increasing the maximum fines associated with environmental offences is not confined to Ontario and Alberta. The equivalent provincial legislation in Quebec, the Environment Quality Act[13], underwent a fivefold increase in its minimum and maximum fines in 2011.[14]

The introduction of these mandatory minimums is noteworthy, as it essentially removes judicial discretion in ordering a lower fine in appropriate circumstances; this contributes to the overall move towards higher fines. These substantial fines on the books signify a larger trend in the increasingly punitive way environmental offences are being enforced and penalized.

Application – Are these changes translating into higher average fines?

The recent pattern towards increased legislated maximum fines in and of itself is largely unsurprising, given the appeal of appearing “tough on environmental offences” in today’s political arena. But has this tough legislative stance actually had any bearing on the average fine being doled out to environmental offenders?

The short answer is that across Canada, in the past 2-3 years specifically, the data shows that regulators have been handing out stricter fines mirroring their tougher legislation, both in the frequency of fines being given for convictions and in the quantum of those fines on average.

While historically in Canada, environmental fines were used sparingly as enforcement tools to ensure environmental compliance compared to other jurisdictions, this approach underwent a dramatic shift in 2014.[15] As mentioned above, one significant aspect of this has been the introduction of mandatory minimums. This results in larger average fines, as judges no longer have the ability to order fines below applicable levels.

Further, the value of “large” fines (meaning, over $75,000) issued across Canada between 1991 and 2009 totalled an average of $1.4 million per year.[16] This has shot up to $3.9 million on average in 2015 to an average of $32.2 million in 2017.[17] While the total quantum of large fines and penalties has decreased to $15.7 million in 2018, the apparent “drop” in aggregate fines is based on one large fine having been levied in 2017 (see footnote)[18]. Excepting out this one fine, the trend has continued, as evidenced by an increase in the number of large fines and penalties issued, which has increased from 28 to 34 in 2018.[19] Compared against 2014, the total amount of fines issued in 2017 has increased by nearly $10 million.[20] Virtually all Canadian jurisdictions increased the amount of large fines issued in 2017 compared to 2016.[21]

Noteworthy Trends and Particularities

Although there has been a relatively consistent increase across Canada, there are a few regional particularities to take note of, including a regional divide from east to west regarding the focus of enforcement efforts. Western provinces have shown a commitment to cracking down specifically on water-related offences, while central and eastern Canada appear to target their large fines primarily on air matters.

The three provinces which have been the most consistent users of fines to enforce compliance with environmental laws are Ontario, British Columbia, and Alberta.[22] In particular, Ontario has always been one of the most active jurisdictions in terms of enforcement of environmental laws by way of fines; of the total $26 million worth of environmental fines issued by both provincial and federal governments from 1991 until 2010, a whopping $14 million was collected in Ontario alone.[23] Ontario continues to lead the pack when it comes to the current trend of heftier fines in recent years, as it has undergone a 63% increase each year in average fine amount and its total fine amount has increased by almost $10 million in 2017 compared with 2014.[24]

Although all jurisdictions have contributed to this pattern of increasing fines, the most significant increases to happen in recent years have been in Saskatchewan, Quebec, and Alberta.[25] Quebec has had a dramatic increase in large fines, issuing over $9 million in fines in 2017, accounting for 29% of the total fines issued in Canada that year.[26] This spike in environmental fines by Quebec has been an extremely recent phenomenon, as Quebec issued zero “large” fines in 2015.[27] As well, a newcomer to the top 5 list of fine issuers in Canada is Saskatchewan, which levied $2.6 million in fines for environmental offences in 2017.[28]

There is also a regional divide between west and central/east Canada in their fine-issuing patterns whereby western provinces including B.C., Alberta, and Saskatchewan appear to be focusing their enforcement measures on water-related environmental offences,[29] provinces in central/eastern Canada, including the big fine issuers of Ontario and Quebec, appear to be utilizing environmental fines more to target air-related offences.[30] However, there appears to be a decrease in 2018 in the number of air-related fines compared to past years, while the “other” category is on the rise from 4% in 2017 to 33% in 2018. As well, water offences have become more of a nationally recognized enforcement priority across the country, now accounting for almost half of all large fines issued in Canada in 2018.[31]

Effects on Behaviour?

So, while it has been established that there is an intention to increase environmental fines through changes in legislation, and that such increases have actually happened, are these efforts changing behaviour? The answer appears to be yes, to a degree. Even though there is some discussion about the effectiveness of increased regulatory penalties on the levels of pollution, and the likelihood of materially contaminating events occurring,[32] there is a general consensus that a stringent deterrence regime incorporating significant fines is at least an element of an effective environmental harm reduction strategy.[33]

It will be interesting to observe developments unfold as regulators continue to implement and enforce these new, stricter environmental fine regimes on the books. Currently, the bottom line seems to be that environmental offenders, whether corporate or individual, wherever located across Canada, can expect to be met with heavier-handed treatment of the law. And, so long as the regulatory authorities provide direction on how to comply and to reduce risk, and have a record of enforcing the laws in place, it is likely to contribute to reducing contaminating activities in jurisdictions across Canada.


[1] “Use and Environmental Management of Natural Resources in Canada”, Dragun Corporation Environmental Advisors”, https://www.dragun.ca/environmental-management-of-raw-and-refined-natural-resources/.

[2] Ibid.

[3] Government of Canada, Fine Regime Under the Environmental Enforcement Act (14 June 2017), online: https://www.canada.ca/en/environment-climate-change/services/environmental-enforcement/acts-regulations/about-act/fine-regime.html.

[4] Ibid.

[5] Environmental Protection Act, R.S.O. 1990, c. E.19 at s. 187(1) [EPA].

[6] Ibid at s.187(2).

[7]Environmental Protection and Enhancement Act, R.S.A. 2000, c. E.12 at s.228(1) [EPEA].

[8] For instance, whereas prior to 2005 the maximum fine for an individual upon first conviction was $20,000 and upon subsequent conviction was $50,000, now, upon first conviction, an individual is subject to a maximum fine of $50,000 and upon subsequent conviction, a maximum fine of $100,000. (Ibid at s. 187(1).)

[9] Includes offences related to liquid industrial or hazardous waste; discharge of contaminants; and failing to comply with a term or condition of an environmental compliance approval, or other license or permit under this Act in relation to contaminant discharges (EPA, supra note 5 at s.187(3)).

[10] Ibid at s. 187(5).

[11] Ibid.

[12] Ibid.

[13] Environment Quality Act, CQLR c Q-2 [Environment Quality Act].

[14] Before this shift, individuals convicted of certain offences including the release of containments were subject to a mandatory minimum fine of $2,000 and maximum of $20,000; this is contrasted with the current version of the Act which features mandatory minimum fine of $10,000 and a maximum of $1 million for individuals convicted of the same offences. (Ibid at s. 115.32)

[15] Ibid at p. 2.

[16] Ibid.

[17] Ibid at pp. 2-3.

[18] Note: The 2018 Berkley Canada Report shows that the quantum of Canada’s large environmental fines and penalties has been creeping up from 2014 until 2017 with what appears to be a sudden drop in 2018. However, it is important to note that this apparent decrease in 2018 is due in large part to a landmark case in 2017 wherein Volkswagen was fined $15 million as part of its settlement deal with the Competition Bureau of Canada, the most costly environmental fine ever given in Canada, for conducting misleading environmental marketing of certain diesel vehicles. Although this fine is noteworthy, it can alternatively be characterized as a Competition Act matter as opposed to a true environmental matter. Setting aside the Volkswagen fine, there was only a difference in total quantum of large fines handed out in 2017 compared to 2018 of $1.5 million. Additionally, the total number of large fines levied increased from 27 in 2017 to 34 in 2018. As a whole, the established pattern of Canada undergoing an overall increase in large environmental fines has continued into 2018.

[19] Berkley Canada White Paper, “Environmental Fines and Penalties Report, 2018 Update Report”, Berkley Canada White Paper (March 2019), at p. 4 [Berkley White Paper, 2018].

[20] Berkley Canada White Paper, “Environmental Fines and Penalties Report, 2017 Update” Berkley Canada White Paper (March 2018), at p. 6 [Berkley Canada White Paper, 2017].

[21] Ibid at p. 5.

[22] Ibid at p. 4.

[23] Nimonik, “Environmental Fines in Canada, 1990-2009” at p. 2 [Nimonik: Environmental Fines].

[24] Berkley Canada White Paper, 2017 supra note 19 at p. 5.

[25] Ibid at p. 5.

[26] Ibid at p. 4.

[27] Ibid at p.5

[28] Ibid at p 5.

[29] Some of the most noteworthy cases in recent years including offences and fines of $2.2 million for offences arising from logging operations and the improper construction of road and stream crossings in B.C., (“Canada: Logging Companies Fined $2.2 Million Under the Fisheries Act”, at: http://www.mondaq.com/canada/x/576972/Environmental+Law/Logging+companies+fined+22+million+under+the+Fisheries+Act.) $172,000 for a pipeline leak in Alberta (“Alberta Energy Regulator fines Murphy Oil $172,500 for 2015 Pipeline Spill”, at: https://calgaryherald.com/business/energy/alberta-energy-regulator-fines-murphy-oil-172500-for-pipeline-spill) $3.5 million for a wastewater leak from a dam failure in Alberta (“Coal Mine Fined $4.5 Million for 2013 spill that contaminated Athabasca River”, at: https://www.cbc.ca/news/canada/edmonton/obed-mountain-mine-fine-athabasca-spill-1.4154792.), and $1.4 million for the discharge of effluent into water frequented by fish in violation of the Fisheries Act in B.C. (“B.C. Coal Mine Company Teck Fined $1.4 Million for Polluting B.C. River, at: https://thenarwhal.ca/b-c-coal-mine-company-teck-fined-1-4-million-polluting-b-c-river/.).

[30] For example, handing out fines for offences such as fines of $175,000 for releasing incinerator ash into the environment in Ontario (“Toronto Company fined $175,000 for Environmental Protection Act Violations” at: https://news.ontario.ca/ene/en/2017/02/toronto-company-fined-175000-for-environmental-protection-act-violations.html.) $265,000 for selling of aerosol products containing ozone-depleting substances in Ontario (“Fastenal Canada fined $265K for selling aerosols with banned HCFCs” at: https://www.cbc.ca/news/canada/kitchener-waterloo/kitchener-fastenal-fined-environment-hydrochlorofluorocarbons-1.4289116.), and $765,000 for the release of PCBs into the environment and the failure to notify in Quebec (“The Hudson Bay Company located in Montreal fined $765,000 for a large release of polychlorinated biphenyls into the environment”, at: https://www.newswire.ca/news-releases/the-hudson-bay-company-located-in-montreal-fined-765-000-for-a-large-release-of-polychlorinated-biphenyls-into-the-environment-606054136.html.).

[31] Berkley Canada White Paper, 2018 supra note 18 at p. 5.

This miscellaneous ”other” category of fines which shot up in 2018 includes a $2.75 million fine arising from the death of migratory birds and a $1.25 million penalty arising from the importing of fuel in violation of the Renewable Fuel Regulation.

[32] Neil Gunningham, Enforcing Environmental Regulation, Journal of Environmental Law, Volume 23, Issue 2, July 2011, Pages 169–201, https://doi.org/10.1093/jel/eqr006 [Gunningham, Enforcing Environmental Regulation].

[33] Gunningham, Enforcing Environmental Regulation, supra note 31 at p. 186.

Bryan C. Williamson, Do Environmental Regulations Really Work?, The Regulatory Review, November 2016, https://www.theregreview.org/2016/11/24/williamson-do-environmental-regulations-really-work/.

Will Amos, Federal government’s enforcement of environmental laws is weak, Ecojustice Blog, December 2011, https://www.ecojustice.ca/federal-governments-enforcement-of-environmental-laws-is-weak-report/.

Joseph Castrilli, Canada’s main environmental law isn’t working, Canadian Environmental Law Association, August 2016, https://www.cela.ca/blog/2016-08-22/canadas-main-environmental-law-isnt-working.

This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.

This article has been republished under general permission of Miller Thomson.  It was first published on the Miller Thomson website.