Soil and Groundwater Remediation Technologies: A Practical Guide

This book offers various soil and water treatment technologies due to increasing global soil and water pollution. In many countries, the management of contaminated land has matured, and it is developing in many others. Topics covered include chemical and ecological risk assessment of contaminated sites; phytomanagement of contaminants; arsenic removal; selection and technology diffusion; technologies and socio-environmental management; post-remediation long-term management; soil and groundwater laws and regulations; and trace element regulation limits in soil. Future prospects of soil and groundwater remediation are critically discussed in this book. Hence, readers will learn to understand the future prospects of soil and groundwater contaminants and remediation measures.

Key Features:

  • Discusses conventional and novel aspects of soil and groundwater remediation technologies
  • Includes new monitoring/sensing technologies for soil and groundwater pollution
  • Features a case study of remediation of contaminated sites in the old, industrial, Ruhr area in Germany
  • Highlights soil washing, soil flushing, and stabilization/solidification
  • Presents information on emerging contaminants that exhibit new challenges

This book is designed for undergraduate and graduate courses and can be used as a handbook for researchers, policy makers, and local governmental institutes. Soil and Groundwater Remediation Technologies: A Practical Guide is written by a team of leading global experts in the field.

About the Book’s Authors

Yong Sik Ok, PhD, is a Full Professor at and Global Research Director of Korea University in Seoul, Korea. He currently serves as Director of the Sustainable Waste Management Program for the Association of Pacific Rim Universities (APRU).

Jörg Rinklebe, PhD, is Professor for Soil and Groundwater Management at the University of Wuppertal, Germany. Recently, Professor Rinklebe was elected as Vice President of the International Society of Trace Element Biogeochemistry (ISTEB).

Deyi Hou, PhD, is an Associate Professor at the School of Environment of Tsinghua University.

Daniel C.W. Tsang, PhD, is an Associate Professor in the Department of Civil and Environmental Engineering at the Hong Kong Polytechnic University and Honorary Associate Professor at the University of Queensland.

Filip M.G. Tack, PhD, is Professor in Biogeochemistry of Trace Elements at the Department of Green Chemistry and Technology at Ghent University. He is Head of the Laboratory of Analytical Chemistry and Applied Ecochemistry of Ghent University.

Chemical Spill by Quebec Mining Company results in $350,000 Fine

Breakwater Resources Limited, which operates the Langlois Mine, recently pleaded guilty in the Val‑d’Or, Quebec courthouse to one count of violating the Fisheries Act. The company was fined $350,000.

The incident that lead to the eventual fine occurred on February 28th, 2018.  A 500-litre spill of flocculent from the Langlois mining site in Lebel‑sur‑Quévillon resulted in a discharge of acutely lethal effluent into the Wedding River. The discharge of acutely lethal effluent into water frequented by fish is a violation of subsection 36(3) of the Fisheries Act.

The Langlois mine is located is located in the James Bay Territories, in northwest Québec, approximately 50 km north east of the town of Lebel-SurQuévillon and 213 km north of Val-d’Or.  The mine produces zinc and copper concentrates with lesser values of silver and gold by-products.

In October 2019, the mine’s owner announced it putting the mine down on “care and maintenance”, effectively shutting down production. The company said that rock conditions at the mine have deteriorated to the point that continued mining is not economical.

The $350,000 fine will be directed to the Government of Canada’s Environmental Damages Fund.  The company’s name will be added to the Environmental Offenders Registry.

Repurposing: Another Tool to address Alberta’s Backlog of inactive and abandoned oil and gas sites?

Written by David McGillivary, Lorne Rollheiser, and Natasha Tames, Gowling WLG

The current path to land use reclamation of legacy oil and gas sites in Alberta is often a long one, imposing specific requirements on regulatees during the suspension, abandonment, remediation and reclamation stages of the process.   Companies often hold wells in abandonment status to avoid or delay clean-up costs and many such companies are struggling financially.  Despite having undergone reform, this regime has resulted in approximately 97,000 inactive wells, 71,000 abandoned wells, and 2950 orphan wells.

However, there are potential land uses that should be considered in respect of assessing (or reassessing) the status of these wells and associated infrastructure within the reclamation process.  These new and emerging land uses may represent alternative solutions with a number of environmental and economic benefits.  Some potential land uses that may result from repurposing include:

  1. Geothermal power generation:

Thousands of the inactive and orphan wells in Alberta have been identified as having appropriate proximity to existing infrastructure and having heat properties that could be used in electricity generation, industrial heat, or as direct heat sources.  Progress in this industry continues to be made and momentum appears to be increasing with Alberta’s 7 October 2020 announcement of its intention to “clear hurdles to the development of clean geothermal energy”[1].

  1. Exploration and extraction of other substances (such as hydrogen, helium or lithium) using legacy oil and gas infrastructure:

Another alternative that may transform old wells from liabilities to productive assets is the combination of existing technologies in oil extraction that have been altered and applied to extract hydrogen in a near zero-emissions process.  As an example, Proton Technologies continues to develop its process for hydrogen production[2], a two-step process of heating the reservoir to create free hydrogen and extracting pure hydrogen gas.  Proton continues to test and refine its technologies and has described its patented combination of heating reservoirs with Oxinjection wells and harvesting the hydrogen with Hygeneration wells. Both types of wells adapt existing equipment to a new purpose.

Subject to the growth of the hydrogen economy, these technologies have the possibility of being quickly implemented utilizing existing infrastructure, minimizing land use burdens.

  1. Carbon Capture and Storage (“CCS”):

Inactive or abandoned wells and associated infrastructure may also be repurposed to assist with carbon emission reductions through the application of CCS technology. The use of wellsites (with the appropriate technical alterations) for CCS is appealing as another tool to assist in confronting climate change. However, repurposing wellsites for CCS presents certain risks and repurposing activities are likely to be carefully scrutinized on a case-by-case basis to minimize risks and to ensure the integrity of a potential storage reservoir.

The increased use of CCS in Alberta also gives rise to potential spinoff commercial opportunities for the use and marketing of carbon dioxide as a commodity.  Carbon dioxide has some potential for use and marketability in support of climate change goals including through the displacing of products with higher life cycle emissions or in connection with products that have a permanent carbon retention component. [3]

  1. Production of biogas/upgrading into renewable natural gas for distribution through existing pipeline networks or for power generation:

The production of biogas, which may then be modified to produce renewable natural gas (“RNG”), represents a further opportunity for the repurposing of inactive or abandoned oil and gas sites and associated infrastructure.  Biogas primarily consists of methane (~60%) and carbon dioxide (~29%) and arises from the breakdown of organic matter generated from agriculture, forestry, landfill, or wastewater operations in an oxygen starved environment. This process is often done through use of an anaerobic digestor or by thermochemical means such as gasification. Biogas has a number of practical and commercial uses, including as a fuel source for farming operations and as a feedstock for power generation.  Upgrading biogas to RNG (i.e. increasing the methane content to 95-99%) results in a renewable equivalent to conventional natural gas.  RNG produced from biogas can be comingled with conventional natural gas, shipped, and stored using existing conventional natural gas infrastructure, often requiring few to no alterations.

Conclusion

The above options for land repurposing each give rise to potential environmental and economic benefits. From an environmental perspective, each is consistent with public policy objectives for the reduction of GHGs, advancing energy transition and decarbonization, and reducing the need to utilize undisturbed or valuable agricultural land for future development while awaiting regulatory closure on legacy oil and gas sites with uncertain timelines. Economically, repurposing turns a long-standing liability into an asset, supports economic diversification, and creates opportunity for collaboration and growth across a number of different industries and sectors.

However, each of the land uses discussed for site repurposing also entails certain risks from the application of new or emerging technologies to existing, aging infrastructure. Furthermore, the use of sites that are not fully reclaimed brings the prospect of unknown or lingering environmental issues.  Broad acceptance and investment in repurposing as an alternative to standard reclamation processes likely requires further dialogue among industry (across multiple sectors), government, and thought leaders to determine how repurposing initiatives may proceed as an additional option for handling Alberta`s backlog of inactive and abandoned wellsites and associated infrastructure to environmental and economic advantage for the province and the country. Some issues that warrant additional consideration include:

  • With reforms to Alberta`s liability management framework underway, is there a willingness on the part of government and regulators to accept repurposing as an alternative to full fledged reclamation? If so, what requirements apply for a site to be considered eligible for repurposing? How is liability in such cases to be managed and allocated?
  • What, if any, legislative modernizations or reforms are warranted to facilitate repurposing of sites for the land uses discussed above? Considerations may include streamlining of regulatory requirements and oversight, site access issues, and development of royalty and rental regimes.
  • What, if any, financial incentives or funding opportunities are needed to make repurposing projects economical?

NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

This article was republished with the permission of Gowling WLG.  It was originally posted on the JWN Energy website.

About the Authors

David McGillivary is an associate in Gowling WLG’s Advocacy Group. He focuses his practice on multiple facets of administrative law, with an emphasis on energy and environmental regulation, as well as Indigenous law.
Lorne Rollheiser is a partner at Gowling WLG and the head of the firm’s Oil and Gas Industry Group in Calgary, Alberta.
Natasha Tames is an associate in the Advocacy Department in Gowling WLG’s Calgary office. She practises in the areas of commercial litigation, insurance and professional liability.

Ontario: Proposal to Provide Additional Flexibility for Excess Soil Reuse

As a result of the COVID-19, the Ontario Ministry of Environment, Conservation and Parks (MECP) is proposing to extend the grandfathering for infrastructure projects and provide additional flexibility for excess soil reuse.  Under the proposal, amendments to the Excess Soil Regulation (O. Reg. 406/19) and other regulations are to be made so that technical assessments are not repeated, delayed projects can proceed, and soil can be managed more flexibly.

Proposal details

In December 2019, Ontario made a new On-Site and Excess Soil Management Regulation (O. Reg. 406/19), supported by risk-based standards that will make it safer and easier for industry to reuse more excess soil locally.

In response to the COVID-19 pandemic and to provide further clarity and flexibility to support appropriate beneficial reuse of excess soil, the MECP is now proposing amendments to O. Reg. 406/19 and O. Reg. 153/04 under the Environmental Protection Act. The proposed changes include:

  • extending the date applicable to the grandfathering provisions by which construction projects must be entered into by one year, from January 1, 2021 to January 1, 2022, to accommodate projects that are close to starting construction but delayed due to COVID-19
  • clarifying the scope of grandfathering provisions to include geotechnical studies completed by January 1, 2022, to ensure these studies do not have to be repeated
  • replacing waste-related Environmental Compliance Approvals with standard rules for operations processing excess soil for resale as a garden product, and operations managing clean soils for residential development projects
  • providing added flexibility to soil management rules such as those for soil storage and reuse of soil impacted by salt
  • enabling Environmental Compliance Approvals to specify alternative soil management requirements to provide project-specific flexibility
  • updating O. Reg. 406/19 and the Protocol for Analytical Methods Used in the Assessment of Properties under Part XV.1 of the EPA (Analytical Procedure) with the modified Synthetic Precipitation Leaching Procedure (mSPLP)
  • clarifying that the excess soil registry to be used for filing notices will be delivered by the Resource Productivity and Recovery Authority and expand the registry’s purposes to also include integration with other third-party systems supporting reuse of excess soil, such as tracking systems, soil matching systems and other non-regulatory programs, considering cost, security and other relevant matters.

If the proposed changes are adopted, they would:

  • reduce construction costs associated with managing and transporting excess soil
  • limit the amount of soil being sent to landfill
  • lower greenhouse gas emissions from the sector
  • continue to ensure strong protection of human health and the environment

These proposed amendments support delivery of actions in Ontario’s “Made-In-Ontario” Environment Plan including:

  • recognizing excess soil as a resource
  • developing clear rules to support beneficial reuses of excess soil and to help address issues of illegal dumping

Deadline for Public Comment

The deadline for comments on the proposal is November 19th, 2020.

Analysis of the Emergency Spill Response Market to 2026

According to a recent Emergency Spill Response Market research report prepared by Data Bridge Market Research, the global emergency spill response market is set to witness a substantial CAGR of 6.6% in the forecast period of 2019 to 2026. The report contains data of the base year 2018 and historic year 2017. This rise in the market can be attributed due to increasing environmental regulations across the world as well as increase in the global trade.

The Emergency Spill Response Market report comprises of detailed market segmentation, systematic analysis of major market players, trends in consumer and supply chain dynamics, and insights about new geographical markets.

Few of the major competitors currently working in global emergency spill response market are Adler & Allen, Clean Harbors Inc., Desmi A/S, Elastec, Marine Well Containment Company, Oil Spill Response Limited, Polyeco Group, US Ecology Inc., Veolia, Vikoma International Ltd, NRC Group, Briggs Marine & Environmental Services, AM Environmental, Lamor Corporation Ab., Blue Ocean Tackle, SkimOil, Fender & Spill Response Service LLC, American Green Ventures (US) Inc., Expandi Systems, Darcy Spillcare Manufacturer, Tomlinson Group, First Call Environmental and others.

Market Definition: Global Emergency Spill Response Market

Emergency spill response is the occurrence and release of the hazardous chemicals or waste that needs intercession of spill cleanup expert to contain and to eliminate the spilled material securely. Every spill should be estimate to detect whether it has crossed that threshold further which any cleanup is required by trained professional. The potential for chemical spills exists anywhere as these materials are used as well as transported through which the chemical spill may harm the employees, customers and general public.

Market Drivers:

  • Stringent environmental regulations across world to reduce the environmental pollution from spill will drive this market
  • With increase in the global trades around the world is driving the market growth
  • Growing awareness due to the effects of the spills on environment will drive the market
  • Increasing demand for mechanical recovery methods for spill recovery will propel the growth of the market

Market Restraints:

  • Decline in the large spills across the world will hinder the growth of the market
  • Strict compliance and regulations by the government for the companies is hampering the market growth

Ontario: Discussion paper on modernizing hazardous waste reporting

The Ontario Ministry of the Environment, Conservation and Parks (MECP) recently announced that it received 76 comments on its “Modernizing Hazardous Waste Reporting in Ontario” discussion paper.

The MECP made changes to the Resource Recovery and Circular Economy Act (RRCEA), and the Environmental Protection Act (EPA) in Fall 2019, which allow the RPRA to provide digital reporting services, fee setting and collection for a wider range of waste and resource recovery programs.

The MECP issued a written letter of direction instructing the RPRA to prepare to deliver a digital reporting service for the Hazardous Waste program. The new hazardous waste digital reporting service would align with the open for business red tape reduction strategy by making it easier for the regulated community to track and report on waste.

Comments contributed to the proposed regulatory amendments and new proposed regulation and the MECP will continue to consider these comments as they take steps to update the Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste and transition to the new digital reporting service.

Proposed Regulatory Changes

1. Amend Regulation 347 under the EPA to transition the delivery of hazardous waste digital reporting services to the RPRA

A. Transition delivery and operation of the hazardous waste digital reporting service

The MECP is proposing to amend Regulation 347 under the EPA to require the regulated community (including waste generators, carriers and receivers) to report waste management information to the RPRA instead of to the MECP, as they currently do. This would enable the RPRA to deliver and operate the hazardous waste digital reporting service, including collecting reports and fees from the regulated community.

B. Change registration and reporting requirements to support electronic service delivery

The amendments would also include changes to registration and reporting requirements to support a fully electronic reporting service. The new digital reporting service is intended to replace www.hwin.ca and paper document submissions.

Annual registration

The MECP is proposing to remove the annual registration renewal requirement (currently between January 1st to February 15th) and only collect information from generators at the time the business has a waste management activity to report (i.e. onsite storage/disposal/processing, or offsite movement of subject waste).

This would mean that businesses would complete an initial waste management activity report when they are reporting their first activity (using the new registry for the first time).

To ensure ongoing accuracy with facility, contact and payment information, the RPRA would require that businesses review and update their initially reported information when they are ready to report their first waste management activity after 365 days from the last time they reviewed and confirmed this information.

Reporting requirements

The MECP is proposing to amend Regulation 347 to provide more clarity about what waste management activities need to be reported to the RPRA and when they need to be reported. Reportable activities include both onsite and offsite management of subject waste and would remain the same. Reporting requirements for the Hazardous Waste program would be consolidated into one section.

The following activities would continue to be reportable waste management activities under the Hazardous Waste program:

  • Offsite management:
    • prior to completing the first off-site shipment of a subject waste
  • Onsite management:
    • within 90 days of generating and storing a subject waste where such waste is to be temporarily stored for more than 90 days and less than two years
    • prior to processing a subject waste onsite with the applicable Environmental Compliance Approval
    • prior to disposing of a subject waste onsite with the applicable approvals
    • prior to storing a subject waste for longer than two years with a valid Environmental Compliance Approval

Businesses that generate subject waste would be required to report their activities on, or prior to, the date that the activity takes place or within 90 days of generating or temporarily storing the subject waste if no other waste management activity has taken place. No generator of subject waste would be permitted to store subject waste for a period of greater than 90 days without reporting an activity to the RPRA. No generator would be permitted to manage such waste without reporting the activity to the RPRA.

In the near term, the ministry’s approach is to ensure that the proposed amendments would support the continued use of paper manifesting as an alternative to electronic reporting through the RPRA’s Registry, in a manner similar to that currently provided for under Regulation 347. Such reporting would continue to be provided directly to the ministry (director).

Report Completion

The MECP is proposing to amend Regulation 347 to clarify that reporting information would not be accepted in the new hazardous waste digital reporting service unless:

  • The entire waste management activity report is completed in a manner consistent with the requirements of the Regulation.
  • Any applicable fee payable by the generator is paid by or on behalf of the business.

This is intended to ensure that all members of the regulated community provide accurate information, on a timely basis and that they are paying for the subject waste that they generate in a timely manner.

Delegating Authority

The MECP is proposing that the new hazardous waste digital reporting service would allow delegates to register, report, and pay fees on behalf of generators. The generator would remain responsible for the subject waste that they generate and the information that is reported on their behalf. The RPRA would be responsible for ensuring confidential business information remains protected. The MECP is proposing to amend Regulation 347 to include a definition for ‘Delegate’ that would clarify this role.

The ability to delegate authority would provide flexibility for businesses (waste generators) to comply with the new hazardous waste digital reporting service, and ensure that the most accessible, knowledgeable and capable individuals are able to act on behalf of a business, should it be needed.

Paper-based reporting

The rules for paper-based reporting would remain the same in Regulation 347 because there is still a possibility that paper documents could be used in certain circumstances. In situations where paper manifests are used, businesses would continue to be required to ensure their manifest travels with the waste and applicable filing requirements are met with the ministry.

C. General housekeeping amendments to provide more clarity

The MECP is proposing to amend Regulation 347 to make various minor changes to provide more clarity and ensure consistency with other regulations.

Align with Federal regulatory phrases

Aligning with Federal regulatory phrases under the Transportation of Dangerous Goods Act(TDGA) would make it easier for businesses to learn and comply with both federal and provincial rules.

  • Align with the Federal phrasing in the TDGA by replacing “packaged” to “means of containment”.
  • The word “issued” should be removed when referencing TDGA manifests – because TDGA no longer “issues” manifests.
Definitions

Changes are needed to some existing definitions to provide more clarity for the regulated community.

  • The ‘field operation’ definition would be amended to clarify that specific medical clinics (blood donation/vaccinations and flu clinics) are included in the definition. This would reduce burden as these sites will not need to register and manifest at every site.
  • The ‘empty pesticide container’ definition would be updated to match the definition in Pesticides Act to help clarify and align with existing requirements.
  • The ‘reactive waste’ definition would be updated to correct a grammatical error and make it clear that the definition of reactive waste contains an independent list of criteria and not a multi-checklist of requirements. For example, if the waste meets any one criterion in the list, then it meets the reactive waste definition.
  • Both the ‘ignitable waste’ and ‘reactive waste’ definitions would be updated to align with the actual federal titles.

Some new definitions (i.e. RPRA, Registrar, Registry) would be needed so that the RPRA can deliver and operate the new hazardous waste digital reporting service. These definitions would have the same meaning as in the RRCEA. Other defined terms may also be required or desirable.

2. Create a new regulation under the RRCEA to carry over fee exemptions for certain activities related to hazardous waste – the RPRA would be required to consider the exemptions when setting program cost recovery fees.

The MECP is proposing a new regulation under the RRCEA that would carry over fee exemptions for certain activities related to hazardous waste from Regulation 347. The RPRA would be required to consider these exemptions, which would be based on the current exemptions when setting fees to recover the full cost of the Hazardous Waste program.

All fee setting references in Regulation 347 would be revoked when the new hazardous waste digital reporting service is implemented because the RPRA would have the responsibility to set and collect fees. The RPRA would be required to consult with stakeholders prior to establishing or amending fees for 45 days and post these fees on their website.

Read about and comment on the related proposed new regulation under the RRCEA.

Maintain government oversight for the hazardous waste program

Government would continue to play an important and on-going role in protecting the health and safety of the people of Ontario, and the environment. With respect to the Hazardous Waste program, the ministry would maintain compliance and enforcement, and program and policy oversight activities.

The RPRA would be responsible for operating the hazardous waste digital reporting service to ensure reports are complete and related fees are collected. The RPRA would also notify the ministry of any suspected non-compliant activities. All incidents of non-compliance with program requirements would continue to be followed-up on by the ministry.

The ministry would continue to ensure all generators, carriers, and receivers are complying with requirements under the EPA and Regulation 347 to safely store, transport, process, and manage subject waste in Ontario. The ministry would continue to do this by conducting compliance inspections and following up on reported incidents of improper management of waste. The ministry would also continue to enforce program requirements through investigations and prosecutions.

Benefits of the new digital reporting service

A new digital reporting service for the Hazardous Waste program, would make reporting simpler, faster and more cost-effective. This change would also help us to meet our goals to:

  • Go digital – Implementing a modern digital reporting service that replaces the existing paper-based manifest program would improve our existing service and knowledge base, making it easier to report activities related to subject waste (i.e. hazardous waste and liquid industrial waste as defined in Regulation 347).
  • Hold polluters accountable – Implementing a modern digital reporting service would allow for more effective and timely compliance monitoring and enforcement actions.

Improved electronic data tracking and reporting would provide the regulated community and the ministry with an important set of tools that reduce administrative burden, saving time and money. For example, the service would:

  • Reduce unnecessary manual data entry.
  • Reduce the amount of time and money businesses spend preparing and mailing paperwork to the ministry, correcting administrative errors on paper, or searching for missing paperwork.
  • Provide the ministry with more accurate and timely information to inform decision making and policy development.
  • Allow the ministry to focus on risk-based compliance and enforcement to ensure subject waste is appropriately managed.

This new hazardous waste digital reporting service would align with Ontario’s Digital Service mandate by eliminating outdated approaches to processes, such as reporting using the existing online system (i.e. Hazardous Waste Information Network – HWIN) and using the more burdensome paper-based submission processes (e.g. paper manifests) that prevent the delivery of people-centered services.

The new hazardous waste digital reporting service would align with the Made-in-Ontario Environment Plan by modernizing the way that the regulated community tracks and reports on subject waste (i.e. hazardous waste and liquid industrial waste as defined in Regulation 347 of the EPA). A better digital reporting service will enable more efficient and timely compliance monitoring and enforcement actions, which would provide assurance for Ontarians that polluters are held accountable, and subject waste is being appropriately and safely managed.

 

Town in Newfoundland & Labrador fined $50,000 for illegal discharges into river

The Town of Baie Verte recently pleaded guilty to two offences under the Canadian Fisheries Act in the Provincial Court of Newfoundland and Labrador in Grand Falls-Windsor, and was ordered to pay a total fine of $50,000.

The offences relate to the discharge of water containing elevated levels of chlorine from the town’s potable-water system into the Baie Verte River. The first offence relates to the release of a deleterious substance into water frequented by fish; the second, to a failure to comply with a Fisheries Act direction that ordered the town to take action to remedy the situation or prevent future occurrences.

In August 2017, following a report that chlorinated water was being discharged from the town’s potable-water system into the Baie Verte River, Environment and Climate Change Canada enforcement officers conducted an onsite inspection and took field measurements, which confirmed that the chlorinated water was deposited into the river. On September 5, 2017, officers collected water samples for laboratory analysis. The analysis confirmed that the chlorinated water was a deleterious substance, as defined by the Fisheries Act. Consequently, enforcement officers initiated a formal investigation.

In September 2017, officers issued a Fisheries Act direction, which required the Town of Baie Verte to take all reasonable measures to prevent the deposit or to counteract, mitigate, or remedy any adverse effects that result from the deposit of the deleterious substance into the Baie Verte River. The town was also required to provide a written report documenting the measures taken to comply with the direction.

Fisheries Act direction is a compliance tool that may be issued by Environment and Climate Change Canada’s Enforcement Branch, when there is a deposit of a deleterious substance into water frequented by fish or when there is a serious and imminent danger of such an incident and immediate action is necessary. For example, a direction may be issued to compel a person who has the charge, management, or control of either a deleterious substance or an activity resulting in a deposit or the danger of a deposit to take remedial or preventative action.

Between November 8, 2017, and May 23, 2018, enforcement officers conducted field measurements and collected additional water samples for analysis. Each time, the chlorine concentration detected in the samples was in the range of 120 to 6000 times higher than the recommended limits under the guidelines established by the Canadian Council of Ministers of the Environment.

The Town of Baie Verte failed to comply with the direction and was consequently charged with committing an offence under paragraph 40(3)(g) of the Fisheries Act. In addition, the town was charged for contravening subsection 36(3) by depositing a deleterious substance into the Baie Verte River.

As a result of this conviction, the Town of Baie Verte will be added to the Environmental Offenders Registry.

Although chlorine is frequently used in wastewater treatment and drinking-water systems, high concentrations of chlorine and chlorine residuals can be deleterious to fish. The Canadian Council of Ministers of the Environment’s Water Quality Guidelines for the Protection of Aquatic Life establishes 0.5 µg/L as the recommended limit for chlorine.

U.S. EPA and State of Nebraska reach settlement over alleged environmental violations at hazardous waste incinerator

The United States Environmental Protection Agency (U.S. EPA) and the State of Nebraska recently announced a settlement with the owners of the Kimball, Nebraska hazardous waste incinerator over  alleged violations of the Resource Conservation and Recovery Act (RCRA), Clean Air Act, and Emergency Planning and Community Right-to-Know Act.

The alleged violations included failure to manage and contain hazardous wastes; failure to comply with air emission limits; failure to comply with chemical accident prevention safety requirements; and failure to timely report use of certain toxic chemicals. Under the terms of the settlement, the owner agreed to pay a $790,000 civil penalty and will improve facility practices to protect facility workers and the surrounding community from potentially harmful releases of pollutants.

The Kimball hazardous waste incinerator serves the entire United States as a storage and treatment facility for a variety of industrial waste utilizing a 45,000 ton-per-year fluidized bed incinerator. The state-of-the-art thermal oxidation unit (TOU) is capable of maximum destruction efficiencies of hazardous waste and is able to handle an extremely wide variety of feeds. Delisted ash from the TOU will be placed in an on-site monofill built to RCRA Subtitle C standards.

According to the U.S. Environmental Protection Agency (EPA) and the Nebraska Department of Environment and Energy (NDEE), the Kimball facility has been subject to previous enforcement actions, including penalty assessments, in 1997, 2004 and 2010.

According to EPA and NDEE, improper management of wastes incinerated at the facility led to unsafe conditions that could result in employee injury and/or releases of harmful air pollution outside the facility. For example, the agencies allege that the owner failed to address multiple fire incidents resulting from the company’s mixing of incompatible wastes.

Terms of the settlement include upgraded plans to classify, manage and contain the wastes incinerated at the facility; an updated fire prevention and response program; and the performance of an environmental audit at the facility to identify and address any continuing noncompliance.

Dragonflies Reveal Mercury Pollution Levels Across U.S. National Parks

A citizen science program that began over a decade ago has confirmed the use of dragonflies to measure mercury pollution, according to a study in Environmental Science & Technology.

The national research effort, which grew from a regional project to collect dragonfly larvae, found that the young form of the insect predator can be used as a “biosentinel” to indicate the amount of mercury that is present in fish, amphibians and birds.

The finding will make it easier to conduct mercury research and could lead to a national registry of pollution data on the toxic metal.

“Researchers needed a proxy for fish since that is what people and animals eat,” said Celia Chen, director of Dartmouth’s Toxic Metals Superfund Research Program and a co-author of the study. “Fish can be hard to work with for a national-level research program, so it’s helpful to be able to focus our research on dragonfly larvae.”

Dragonflies occupy diverse freshwater habitats across six continents and have tissues that take up mercury in its toxic form. As predators, dragonflies operate in the food web in a manner that is similar to fish, birds and amphibians that also accumulate mercury in their body tissues.

The study includes data from thousands of larval dragonfly specimens collected from nearly 500 locations across 100 sites within the U.S. National Park System. The survey was collected from 2009 through 2018 as part of the national Dragonfly Mercury Project.

“The support of citizen scientists around the country created the opportunity for this study to have such significance. This is a terrific example of how public outreach around science can bring results that help the entire country,” said Chen.

Methylmercury, the organic form of the toxic metal mercury, poses risks to humans and wildlife through the consumption of fish. Mercury pollution comes from power plants, mining and other industrial sites. It is transported in the atmosphere and then deposited in the natural environment, where wildlife can be exposed to it.

Fish and aquatic birds are commonly used to monitor mercury levels but are difficult to work with in a large-scale project because of their size, migratory patterns, and the diversity of species. Dragonfly larvae are easy to collect and make the citizen science research project possible.

“It is extremely rewarding to assist teachers and their students to engage in data-driven, real-world research impacting their communities,” said Kate Buckman, a research scientist who serves as Dartmouth’s coordinator for the citizen science program. “I see a lot of enthusiasm from students eager to take part in ‘real’ science.”

Young citizen scientists look for dragonfly larvae to submit for mercury analysis at Mississippi National River and Recreation Area in Minnesota.
NPS Photo

As part of the decade-long study, researchers came up with the first-ever survey of mercury pollution in the U.S. National Park System. The research found that about two-thirds of the aquatic sites studied within the national parks are polluted with moderate-to-extreme levels of mercury.

The finding of mercury within park sites is not an indicator that the source of pollution is in the parks themselves. Mercury is distributed widely within the atmosphere and is deposited in the protected areas as it is in other water bodies across the country.

Given that the parks studied stretch across the entire U.S., including Alaska and Hawaii, the findings reflect levels of mercury throughout the country.

“To date, we have not conducted such a broad scale survey on mercury in the U.S. The beauty of the dragonfly data set is that it is national, covers a huge area with different systems, and has the potential to create a national baseline of mercury pollution information,” said Chen.

The study also found that faster moving bodies of water, such as rivers and streams, featured more mercury pollution than slower moving systems including lakes, ponds, and wetlands.

According to the paper: “Collectively, this continental-scale study demonstrates the utility of dragonfly larvae for estimating the potential mercury risk to fish and wildlife in aquatic ecosystems and provides a framework for engaging citizen science as a component of landscape [mercury] monitoring programs.”

In the citizen science project, students and park visitors conduct field studies and collect the dragonfly specimens. National Park rangers help guide the citizen scientists through the protected sites.

The original project was launched by Dr. Sarah Nelson at the University of Maine and the Schoodic Institute in 2007. Dartmouth’s Toxic Metals Superfund Research Program developed a regional effort in New Hampshire and Vermont in 2010. The project was expanded nationally by the National Park Service and the U.S. Geological Survey.

The citizen science project in the Upper Valley region of New England typically runs in the fall with participation from high school students in New Hampshire and Vermont.

Researchers from the USGS, National Park Service, University of Maine, Appalachian Mountain Club and Dartmouth participated in this study. Collin Eagles-Smith from the USGS served as the paper’s lead author. Sarah Nelson who launched the original project is now director of research at the Appalachian Mountain Club.

For more information on the Dartmouth Superfund Dragonfly research project: https://sites.dartmouth.edu/toxmetal/research-projects/aquatic-methylmercury/dragonfly-mercury-monitoring/

For more information on the National Park Service Dragonfly Mercury Project:
https://www.nps.gov/articles/dragonfly-mercury-project.htm

Source: Dartmouth College

U.S.: Aligning Affordable Housing and Brownfields Projects for Success

Written by Nicholas Targ, Partner and Co-chair of Holland & Knight’s National Environmental Team and Chelsea Maclean, Partner, Holland & Knight

Affordable housing and infill developers can benefit from recently enacted housing laws and Brownfields law and policies. These new laws along with national-caliber land use and environmental help can deliver affordable housing and infill projects faster and can substantially simplify the California Environmental Quality Act (CEQA) and development process.

New Housing Laws Benefit Affordable Housing and Other Infill Developers

The following three examples demonstrate the power of the new housing laws:

  • SB 375 Sustainable Communities Environmental Assessment (SCEA): A litigation-tested CEQA streamlining tool, SCEA helped an affordable housing developer client meet tight funding deadlines for a large affordable housing project and reduce litigation risk. The SCEA document is similar in scope to a typical Initial Study/Mitigated Negative Declaration, but includes the more protective “substantial evidence standard” of review of an Environmental Impact Report.
  • SB 35 Ministerial Processing Combined with AB 1764 Unlimited Density Bonus: The powerful SB 35 statute, which provides for ministerial/CEQA exempt approval, was layered with AB 1763, which provides for unlimited density under the State Density Bonus Law, for a client’s 125-unit infill project. After reviewing the use of the new housing laws with the city attorney’s office and Planning Department, the affordable housing provider gained approval for its housing project.
  • AB 1804 County Infill Exemption: This 2018 CEQA exemption for infill projects in unincorporated counties provided an affordable housing provider client with an accelerated entitlement pathway for its mixed-use affordable housing/community serving medical clinic project.

Attention to Brownfields Issues, and Alignment of Environmental and Housing/CEQA Laws is the Winning Combination

The new housing and CEQA streamlining laws frequently include special requirements for a project to be built on environmentally impacted land (e.g., SB 35, CEQA Class 32 Categorical Exemption for Urban Infill Housing). Moreover, given the recent ratcheting-down of vapor intrusion environmental screening levels, careful attention to Brownfields issues can mean the difference between success, delay and/or cost overruns.

The use of key Brownfields tools such as insurance, streamlined regulatory processes and avoidance of legal and environmental “land mines” (e.g., Cortese List, late discovered contamination) can make all of the difference. Successful infill projects – especially affordable housing projects, which carry higher regulatory and public scrutiny – are those that evaluate Brownfields issues early in the decision-making process.

Recent successful use of Brownfields tools to advance affordable and infill housing and associated projects include:

  • Preliminary Endangerment Assessment (PEA) Decision Document: The PEA assessment process allowed the state environmental agency to conclude at an early stage in the development process that no further action was required at a client’s affordable housing site, and to establish a workable and environmentally protective set of construction requirements.
  • California Land Reuse and Revitalization Act (CLRRA): Reauthorized in 2016, CLRRA was used to streamline the regulatory cleanup path for a client’s project and to provide qualified environmental immunities. Integrating the cleanup plan into the CEQA document, as a mitigation measure, litigation risk was reduced and regulatory certainty increased.
  • Comfort Letter: A state environmental agency’s “comfort letter” established that a release of the emerging chemical of concern – per- and polyfluoroalkyl substances or PFAS – was not sourced from a client’s affordable housing site based on environmental assessment. The letter further stated that the health of residents and construction crews would be protected, provided appropriate steps were followed. The comfort letter was critical to securing a broadly protective environmental insurance policy and allowing the affordable housing developer’s project to move forward.

Conclusion

It is recommended that housing developers consider careful alignment of the new housing laws, CEQA/National Environmental Policy Act (NEPA) compliance processes and Brownfields issues. Misalignment, especially for affordable housing projects, can result in avoidable problems ranging from those related to financing and making key milestones to conveyance/take down terms and selection of regulatory pathway for entitlement and environmental compliance.

Working with both nonprofit affordable housing providers and market developers, who produce workforce housing and infill projects, Holland & Knight’s West Coast Land Use and Environmental Group has helped guide the regulatory pathway for numerous affordable and mixed-income projects over the years across California. Holland & Knight has built a housing litigation practice with a strong record of success, and has particular strength in assisting municipalities in the appropriate use of these new housing laws to accelerate project implementation. Combining deep land use and environmental knowledge, and a highly developed housing/CEQA litigation practice, Holland & Knight lawyers have decades of experience helping nonprofit and other affordable housing and infill developers achieve success from initial diligence to opening day.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.


For additional information or assistance, contact the authors or a member of Holland & Knight’s West Coast Land Use and Environmental Group.

About the West Coast Land Use and Environmental Group: Holland & Knight’s Chambers-ranked West Coast Land Use and Environmental Group includes more than 25 attorneys and professionals in San Francisco, Los Angeles and Washington, D.C., who are dedicated to producing results for their clients. Our environmental, land use, real estate, finance and litigation attorneys and policy professionals work as one team, ensuring that the person with the right experience is addressing the issue. Our attorneys are consistently nationally ranked in publications such as U.S. News – Best Lawyers “Best Law Firms” guide and Chambers. In addition to deep private sector experience, many of our attorneys have agency and legislative backgrounds, including working at the White House, U.S. Department of Justice, U.S. Environmental Protection Agency, U.S. Department of the Interior, Congress, and state and local government.