Challenges to Environmental Investigations and Cleanups During the COVID-19 Crisis

Written by John McGahren, Stephanie R. Feingold, Ariel Kapoano, and Jenna Ferraro, Morgan, Lewis & Bockius LLP

Business closures and remote work requirements, work stoppages, travel restrictions, state and federal government slowdowns, and supply-chain disruptions are impacting parties’ abilities to satisfy obligations pursuant to environmental settlements, including administrative consent orders or judicial consent decrees with the US Environmental Protection Agency (EPA), and administrative orders with various state environmental agencies as well as compliance obligations under federal environmental laws such as the Clean Air Act, Clean Water Act, and Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).

State Guidance

Although the CDC has released guidelines recommending work from home and social distancing, there are currently no federal mandates or executive orders requiring business shutdowns or mandatory quarantine. Instead, many states, counties, and municipalities are releasing executive orders as well as nonbinding policies ranging from shelter-in-place to closing nonessential businesses and limiting gatherings of people.

These state and local mandates uniformly exempt “essential businesses” from such directives. The “essential business” exemption includes services and sectors that promote public safety, health, and welfare, although exactly what constitutes an “essential business” can vary. For example:

New York: Executive Order 202.6 exempts “essential businesses” to include healthcare operations (including research and laboratory services); essential infrastructure (including utilities); telecommunication; airports and transportation infrastructure; essential manufacturing (including food processing and pharmaceuticals); essential retail (including grocery stores and pharmacies); essential services (including trash collection, mail, and shipping services; news media; banks and related financial institutions); providers of basic necessities to economically disadvantaged populations; construction; vendors of essential services to maintain the safety, sanitation and essential operations of residences or other essential businesses; and vendors that provide essential services or products (including logistics and technology support, child care, and services needed to ensure the continuing operation of government agencies and provide for the health, safety, and welfare of the public).

New Jersey: Executive Order No. 104 exempts “essential businesses,” defined to include “grocery/food stores, pharmacies, medical supply stores, gas stations, healthcare facilities and ancillary stores within healthcare facilities.” All gatherings within the state are limited to 50 persons or fewer, except for “normal operations at airports, bus and train stations, medical facilities, office environments, factories, assemblages for the purpose of industrial or manufacturing work, construction sites, mass transit, or the purchase of groceries or consumer goods.”

It is less clear, however, whether environmental cleanups and investigations would constitute “essential businesses” subject to these exemptions. Furthermore, some states have expanded their initial executive orders, and others may follow suit. For example, while Pennsylvania initially recommended the closure of nonessential businesses, on March 19 Governor Tom Wolf signed an executive order forcing the closure of all but “life-sustaining” businesses. The state will begin enforcement actions against noncompliant businesses on March 21 under the terms of this order. Construction activities, for example, are no longer permitted to operate in Pennsylvania.  Additionally, on March 19, Governor Gavin Newsom of California signed an executive order requiring all residents to stay home, except as needed to maintain continuity of operations of the 16 “federal critical infrastructure sectors” including critical manufacturing, chemical, emergency services, energy, healthcare and public health, financial services, food and agriculture, and water and wastewater. And on March 20, just one day after having directed 75% of all nonessential employees to stay home, New York Governor Andrew Cuomo announced that he would be putting out an executive order mandating that 100% of employees in “nonessential” businesses in the state stay home.

Many state environmental agencies have not yet released guidance on the impacts of COVID-19. Moreover, even if environmental cleanups are permitted to proceed, maintaining the recommended “social distancing” in site investigation or remediation activities presents a challenge. Further challenges to ongoing site investigations and cleanups may also arise due to workforce absenteeism due to illness or caring for an ill family member.

EPA Guidance

EPA has not yet released guidance on the impact to agency operations due to COVID-19. Moreover, each site is differently situated, so there may be no one-size-fits-all solution. Parties currently remediating sites pursuant to settlements with EPA should carefully scrutinize their respective agreements and orders, including the force majeure clauses, to determine whether current circumstances may constitute such an event, and how and when to notify the agency. Most such provisions require notification within days, or even hours, of the discovery of the force majeure event, prompting yet more uncertainty as to whether there has been a trigger based on the novel pandemic response gripping the nation.

For example, EPA’s Model Consent Decree Language and Model Administrative Consent Order Language both define force majeure events as any event arising from “causes beyond the control” of respondents that “delays or prevents the performance of any obligation” under the order despite respondents’ “best efforts to fulfill the obligation.”

Each ongoing cleanup faces unique challenges depending on locality and nature of the cleanup. Responsible parties should consider outreach to EPA requesting the following actions:

  • Recognize the rapidly changing circumstances at the local, state, and federal level caused by COVID-19
  • Temporarily suspend notice deadlines for force majeure events caused by the COVID-19 crisis, as well as waive penalties for failure to timely notice or meet a deadline where the implications of COVID-19 have made it impracticable or impossible
  • Work with responsible parties on an individualized basis to determine whether ongoing work can continue and the extent to which deadlines should be extended, and follow a dispute process in the event of disagreement
  • Acknowledge that there may not be a one-size-fits-all approach for sites that are at different stages of remedial progress and subject to varying state restrictions

Until state and federal environmental authorities take affirmative action, responsible parties should consider proactive outreach to their EPA and state agency contacts for their specific cleanup sites for further guidance in this unprecedented situation, and stay tuned for further announcements on the status of environmental cleanups in the midst of the COVID-19 pandemic.

Copyright 2020.  Morgan, Lewis & Bockius LLP.  All Rights Reserved. 

 This article is provided as a general informational service and it should not be construed as imparting legal advice on any specific matter.


About the Authors

John McGahren is the Princeton litigation practice leader and deputy chair of the firm’s global environmental practice. John counsels clients on litigation, enforcement, and transactional matters. He prosecutes and defends citizen suits, Superfund and RCRA disputes, Clean Water and Air Act litigation, state law actions, and natural resource damage claims.

Stephanie R. Feingold represents clients in litigation and dispute resolution and provides environmental and regulatory counseling. Her work spans investigations, cost recovery and contribution actions, and enforcement actions brought by and against environmental agencies and government authorities, as well as private party actions.

Ariel Kapoano represents clients in complex environmental, toxic tort, contract, and consumer fraud litigation matters. She has experience in all aspects of litigation including factual investigation, discovery management, motions practice, and trial.

Jenna C. Ferraro is a part of the firm’s litigation team, which counsels clients and provides legal services in a wide range of areas, including general civil and commercial litigation, environmental law and toxic torts. Jenna’s experience includes many aspects of litigation, including discovery matters and motion practice.

The Five Things you need to know about Incident Management and Reporting

Intelex, a company specializing in the development of EHS and quality software, recently published an insight report entitled “The Five Things you Need to Know about Incident Management and Reporting“.  The report provides information on the legal obligations to report serious injuries and fatalities, best practices for incident reporting and management, and how incident reporting and management can be linked to operational excellence.

In the introduction of the report, the cause of the Titanic disaster is discussed.  It report states that the average person would cite an iceberg as the cause of the ship’s sinking.  In contrast, a risk or safety manager would respond that the tragedy was caused by a series of events – management failures, poor-quality construction, employee errors/lack of training, poor planning, and either the failure to track incidents or the inability to analyze incident data in a meaningful way – that ended with the sinking of the ship.

EHS incidents can be painful for injured employees, the environment, and an organization’s bottom line, but incident management and reporting doesn’t have to be a pain point if done correctly.

Looking Ahead: Bold Predictions for the Next Decade

Written by Bill Leedham, P. Geo., CESA

As it is the start of the new decade, I’ve dust off my crystal ball and make a few bold predictions for the decade(s) to come.

Sustainability and the ‘Green’ Economy

We have already seen emerging technologies and new industries geared towards sustainability. In a world where finite resources are dwindling, and with increasing pressure for renewable sources of energy, it’s easy to foresee further consumer demands for a more “green” economy. Hopefully this results in more than just advertising buzzwords, but rather a planned and sincere approach to waste reduction, sustainable resource management, and true ‘cradle-to-grave’ responsibility from manufacturer to end consumer for all products.

 New Problems and New Opportunities

The last decade saw an increasing awareness of emerging contaminants such as micro-plastics, PFOS and PFOA. Similar to past generations experiences with their own ‘new’ contaminants such as asbestos and UFFI; I am sure we will encounter as-yet undiscovered sources of contamination. Whether such pollutants will be associated with cobalt mining for lithium battery production, cannabis waste from commercial growers or by-products from cellular agriculture; it’s how we deal with these new pollutants that may set us apart from past pollution legacies – or not. Developing technical solutions to these new problems will also create unique opportunities for the environmental consulting, remediation and waste management industries.

Lingering Legacies

While we will no doubt experience new environmental contamination issues in the future, we must not forget about the existing pollution problems and the legacies they create. As our population grows, we will continue to create more waste and run out of conventional landfill space – which will require an increase in recycling, re-use, waste reduction and diversion, and alternative methods of waste disposal. Plastic pollution in our waterways is a massive problem that must be solved before there are more plastics than fish in the oceans. Reclamation of abandoned ‘orphan’ oil wells, out-of-service mines, and eventual cleanup of depleted oils sands production facilities and shale-oil fracking sites should be planned for and financed today, so they don’t bankrupt our children and grandchildren.

Environmental Activism and Increasing Political Divides

The rise of environmental activists like Greta Thunberg seems to go hand in hand with the increasing divides between the political right and left, and the growing gap between the very wealthy and the very poor. Unfortunately, I think these gaps may widen further unless we can find a reasonable compromise that all sides can accept. In my opinion such balance would represent real sustainability, but I’m not sure that is achievable in this age of hyper-sensitivity and social media-driven ‘fake’ news from all sides. Regardless of your political persuasion or economic strata; I think we all can (and should) agree that common goals like pollution prevention, waste reduction, clean air, safe water, habitat protection, species biodiversity, are all worthy and necessary endeavours. The sooner we stop arguing and start listening to each other, the sooner we can solve some of these problems and promote and maintain a healthy environment and a truly sustainable economy.


About the Author

Bill is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (www.aesac.ca); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at [email protected]

What Exactly Is Canada Doing About The Protection Of Our Environment?

Written by Paula Lombardi, Siskinds LLP

The Federal Government is required under the Federal Sustainable Development Act, S.C. 2008, c.33 (“Act1) to provide Canadians with a strategy as directed by the precautionary principle.

The precautionary principle is defined in section 2 of the FSDA, for implementing any thing, action or process to develop, improve and protect our environment of threats of “serious” or “irreversible damage”, regardless of lack of full scientific data, or cost-effective measures to prevent “environmental degradation”.

The FSDA was passed in June of 2008, and as statutorily required, the federal government implemented the first written objectives to Canadians in a report known as the “Federal Sustainable Development Strategy” (FSDS) for the years 2010 to 2013. The Act requires that the FSDS be updated every three (3) years by the Minister of the Environment based on the precautionary principle. The federal government’s fourth and most recent update is entitled “Achieving a Sustainable Future. A Federal Sustainable Development Strategy for Canada 2019 to 2022″ and was released on June 19, 20192 (the “2019-2022 FSDS”). Every Canadian including Indigenous organizations, non-governmental organizations, academics, businesses (large or small) are invited before the end of each reporting period to make comments on the draft report prior to its release. While the 2019-2022 FSDS report is complete, comments on the new report or ideas on implementation of its goals can be made on the federal government’s Commitments Board or by sending an email to [email protected].

As we enter a new decade, the re-elected liberal federal government will be working with Canadians to attain the thirteen (13) sustainable development goals by 2022. These goals include: lowering emissions; developing more green operations; preserving healthy coasts and oceans; growing clean technology; improving infrastructure; improving lakes and rivers; maintaining lands and forests; ensuring healthy wildlife; providing clean drinking water; creating sustainable food; connecting Canadians with nature; and, encouraging sustainable communities to live clean.

The question is whether these development changes really affect each Canadian? The answer is yes.

These development goals can only be achieved and sustained through action by individuals, the business sector and provincial governments. For example, in December of 2017, The Minister of the Environment and Climate Change Canada (“ECCC”) the Honourable Catherine McKeena stated: “Sustained action on Great Lakes restoration is key to the health and economic prosperity of citizens in this important region.”3 The ECCC gave close to $45 million in new funding to the Great Lakes Protection Initiative to take action on identified priorities (i.e. 2017 State of the Great Lakes Report). These priorities included reducing toxic and nuisance algae and harmful pollutants to restore water quality, and improving and protecting its ecosystem.

The creation of the Canada-Ontario Lake Erie Action Plan4 set out 120 actions to help reduce phosphorus entering Lake Erie. The City of Hamilton has contributed $14 million5 to the Randle Reef Sediment Project. Although this immense multi-year initiative remains on budget with the goal to be completed by 2022, it could only remain possible by the FSDA and application of the precautionary principle.

The 2019-2022 FSDS report is a free public document that all Canadians can easily access by downloading from the federal government website or visiting http://www.fsds-sfdd.ca/downloads/FSDS_2019-2022.pdf.

Footnotes

1 https://laws-lois.justice.gc.ca/eng/acts/f-8.6/page-1.html#h-240603

2 http://www.fsds-sfdd.ca/index.html#/en/intro/annexes#tabs

3 https://www.canada.ca/en/environment-climate-change/corporate/transparency/priorities-management/departmental-results-report/2017-2018/results.html#toc3

4 https://www.canada.ca/en/environment-climate-change/services/great-lakes-protection/action-plan-reduce-phosphorus-lake-erie.html#toc4

5 https://www.hamilton.ca/city-initiatives/our-harbour/budgets-and-fast-facts

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


About the Author

Paula Lombardi is a partner of Siskinds LLP, and practices in the areas of environmental, municipal, regulatory and administrative law. Prior to joining Siskinds, Paula worked as an associate at a Bay Street law firm where her practice focused on occupational health and safety, environmental and regulatory matters.  Paula recently spent two years as in-house counsel for a major privately owned US corporation, whose owner is on the Forbes 500 list, and was responsible for all Canadian legal and business issues relating to the import and export of goods, transportation of hazardous materials, remediation of contaminated sites, construction of large infrastructure projects, regulatory compliance, NAFTA matters, and preparation of environmental assessments in the US and Canada.

 

Soil Contamination: Changing Perspectives on Road Salt

Written By Kyla Hoyles, P. Geo, QP, Premier Environmental Services Inc.

Road salt in Canada, especially where I’m from in Southern Ontario, is a daily part of our lives in the winter months. It keeps us safe and is applied to paved surfaces on most days when frozen precipitation is expected. From an environmental perspective, road salt leaches into our soils and can affect plant growth, and eventually to the groundwater where the sodium and chloride can be tasted in our drinking water. For that reason, it has been considered a soil and groundwater contaminant, and subject to site condition standards when completing environmental site assessment work.

In Ontario, this has been a tricky situation for many years, and I have had many clients ask me why their property value or development plans are being affected by the application of road salt to parking lots, walkways and road ways for safety purposes. I have sympathized because road salt use has been socially acceptable and relatively unregulated for so long, that treating this as a contaminant is counter- intuitive. But as a consultant and qualified professional (QP), there has been little I could do, particularly in situations where regulatory approvals such as a Record of Site Condition (RSC) were needed.

But there is good news on this front! On December 4, 2019, the Ontario Ministry of Environment, Conservation and Parks (MECP) amended O. Reg. 153/04 governing RSCs. Among a number of changes provided by this amendment, was the ability for QPs to consider elevated concentrations of road salt related parameters in soil and groundwater to not be exceedances if it is determined that the road salt was applied solely for the purpose of vehicular or pedestrian traffic safety under conditions of snow or ice. This does not pertain to bulk storage of road salt, or snow dumps.

This will simplify the RSC process for many properties, and hopefully allow many developments to proceed that were stalled due to unforeseen remedial or risk assessment costs. This regulatory amendment contained several other common- sense changes, and has been well received by many of us in the environmental consulting profession.


About the Author

Kyla is a professional geoscientist licensed in Ontario, Alberta and Manitoba. She has extensive consulting experience specializing in Phase I and Phase II Environmental Site Assessments, soil and groundwater remediation, risk assessment / risk management, and Designated Substance / Hazardous Materials Surveys and abatement. She has conducted, supervised, and trained staff on all stages of the environmental site assessment process, assessing hundreds of properties. In the process, Kyla has assisted a wide variety of clients by assessing risk related to property purchase and divestment, financing and re-development. Kyla is a Qualified Person for filing Records of Site Condition (RSC) as specified in O. Reg. 153/04 as amended.

Veolia Steps up Hazardous Waste Business In North America

Veolia, through its subsidiary Veolia North America, recently announced that it has signed an agreement to take over Alcoa USA Corporation’s Hazardous Waste Treatment Site located in Gum Springs, Arkansas (USA). With this operation, Veolia continues the global expansion of its hazardous waste treatment and recycling activity, with a step further in North America, and adds a flagship site to its existing portfolio.

The facility, located on a 1,350 acre site, currently employs 70 people. The Gum Springs facility has traditionally treated spent pot liner, a hazardous waste byproduct of the aluminum production process, for the North American smelter industry. As part of its global growth strategy in difficult-to-treat pollutants, Veolia will be looking at expanding the type of waste, as well as volume, handled at the site, as it is already permitted for the treatment and final disposal of nearly all categories of liquid and solid hazardous waste. While remaining a key service provider to Alcoa through a multi-year dedicated agreement, the facility will also be expanding its services to customers throughout North America.

Veolia treats and recycles around 6 million tons of hazardous waste – over 100.000 industrial, commercial or household clients, and employs 8,000 who operate a comprehensive network of more than 140 facilities on five continents.

In Europe, Veolia operates the two biggest hazardous waste treatment sites of the continent. In North America, Veolia’s hazardous waste operations notably support a number of industries The company notably operates four major incineration facilities on two sites in Texas and Illinois.

This transaction is valued at USD 250 million and closing is expected in the first quarter of 2020.

Source: Veolia

Poison and Preemption: U.S. Supreme Court Considers Common Law Claims and CERCLA Remedies

Written by Gary Shockey, Baker Donaldson

The Anaconda Smelter served southwestern Montana’s mining industry for almost one hundred years before its closure in 1980. Today, the 585-foot “Big Stack” remains as one of the largest free-standing masonry structures in the world and the centerpiece of the Anaconda Smoke Stack State Park. The smelter also has a darker legacy, comprising part of a federal Superfund site of approximately 300 square miles, including soils and groundwater contaminated with arsenic, copper, lead, and other metals from historic mining and smelting operations. Despite more than a quarter century of investigation and cleanup, much of the site remains in remediation overseen by EPA. In a case currently pending before the U.S. Supreme Court, site owner Atlantic Richfield Company (ARCO) has challenged the jurisdiction of Montana state courts to order additional “remediation damages” in a suit by private landowners within the Anaconda Site.

The case now pending before the Court began as one for nuisance, trespass, and strict liability by numerous landowners in and around Opportunity, Montana. Those landowners sought damages for various injuries to their property allegedly caused by the smelter contamination, including “restoration damages.” Under Montana law, those damages would compensate the landowners for restoring their property to its pre-contamination state, with the costs placed into a trust upon which they could draw to carry out the restoration work themselves. According to the landowners’ experts, that restoration should be based on a lower cleanup level for arsenic in soils – resulting in removal and re-disposal of substantially more “dirty dirt” – and a lengthy, underground permeable barrier wall for treatment of groundwater. Both of these proposed actions were considered and rejected by EPA when it selected the CERCLA remedy for the site years earlier. ARCO moved for summary judgment on the restoration damages claim, arguing that the state court lacked jurisdiction to order remedies that went beyond those approved by EPA, at least while the EPA-approved remediation continued. The state court disagreed and ARCO sought a writ of supervisory control from the Montana Supreme Court.

In its 2017 decision, Atlantic Richfield Co. v. Montana Second Judicial District Court, 408 P.3d 515 (Mont. 2017), the Montana Supreme Court rejected ARCO’s preemption arguments. The court found that the potential restoration damages did not constitute a challenge to EPA’s remedy, which would be prohibited by the timing of review provisions of CERCLA § 113(h). The court reasoned that nothing in the landowners’ preferred remedy interfered with ongoing or planned work by EPA and thus fell within CERCLA’s state law savings clauses, CERCLA §§ 114(a), 302(d). In that court’s view, “The Property Owners are simply asking to be allowed to present their own plan to restore their own private property to a jury of twelve Montanans who will then assess the merits of that plan.” Id. at 521. Notwithstanding the contrary views of the U.S. Department of Justice and one dissenting justice, the Montana court did not see that potential judgment by 12 Montanans as a challenge to EPA’s selected remedy. The Montana court also rejected an argument that the landowners were themselves potentially responsible parties (PRPs), whose “inconsistent response action” would require prior EPA approval under CERCLA § 122(e)(6). Rather, the court found that CERCLA’s six-year statute of limitations would bar any efforts to brand them PRPs. Finally, the court concluded that the restoration damages remedy was not otherwise preempted by CERCLA under the doctrine of federal conflict preemption.

The United States Supreme Court granted certiorari in June 2019 to review the Montana court’s decision. Joined by a plethora of amici on both sides, Petitioner ARCO and Respondent landowners presented their arguments to the Court, along with those of the Solicitor General. In oral arguments held on December 3, 2019, the Court’s liberal justices seemed concerned that ARCO’s preemption theories were hard to reconcile with CERCLA’s state law savings clauses. The parties disagreed about whether CERCLA remedies were “a floor” or both “a floor and a ceiling.” All of the justices seemed concerned over the “restoration damages” procedures requiring that a judgment be deposited into a trust account and doled out to landowners for restoration work in the future. The Solicitor General attempted to address the Court’s concerns by arguing that the Respondents remained free to pursue damages and tort remedies that did not question EPA’s selected remedy, while states could set more stringent cleanup levels in accordance with the ARAR process of CERCLA § 121. Several commentators noted after the oral argument that the Court seemed to be searching for a narrow rationale to overturn a troublesome decision without eliminating the states’ role in cleanups and vindicating the rights of their citizens at common law. The Court’s decision is expected before the end of the term in June 2020.

This article has been republished with the permission of the author.  It was first published on the Baker Donaldson website.


About the Author

Gary has been certified as a Civil Trial Specialist by the National Board of Trial Advocacy. His experience includes environmental, personal injury, class action, antitrust, health care and construction cases. In addition, he has represented businesses and individuals in white collar criminal investigations and prosecutions and conducted numerous internal investigations.

His extensive pro bono practice has included representation of inmates on Tennessee’s death row, veterans, battered women, children and immigrants. He has served in various leadership positions in the Tennessee Bar Association, including on its Board of Governors and as chair of its Litigation and Environmental Law Sections, and as a character and fitness investigator for the Tennessee Board of Law Examiners and a District Hearing Committee officer for the Board of Professional Responsibility. A frequent speaker and author, Gary has published more than 35 articles on evidence, civil and criminal procedure, legal history and related topics.

Illegal dumping results in $190k remediation in Grande Prairie, Alberta

In May of last year, there was an incident in which hydrocarbon was illegally disposed into a curbside drain that contaminated a popular fishing pond in the County of Grande Prairie, Alberta.  The pond was closed for two months during the clean-up and remediation.  The final bill for the clean-up and remediation was recently tallied at $184,125.

Investigators from Alberta Environment Parks and Recreation (AEP) estimated that approximately five cubic metres (1,320 U.S. gallons) were released into the pond.  Although a determination was made that the release of hydrocarbons was intentional, fines have not been laid and AEP has closed the file.

After the initial response to contain the oil waste and prevent further contamination, the County’s environmental consultants conducted extensive remediation work along the shoreline, including removal of approximately two-thirds of the cattails surrounding the pond.

“The County along with Alberta Environment have been monitoring the wildlife in the area since the incident occurred and there is no known impact to the health of animal or aquatic life,” said Christine Rawlins, parks and recreation manager. “Out of an abundance of caution, however, we will continue to operate the pond on a catch and release basis only.”

In response to the incident, the County has reviewed its own internal processes for environmental emergency response and have made updates to the health and safety management system. Action steps include updating the Standard Operating Procedure, coordinating response through the Incident Command System, and ensuring an up-to-date list of qualified environmental contractors who can respond to similar events. The key is prompt detection and notification that leads to a quick response when these types of events occur.

“We are grateful to the member of the public who reported the sheen in the pond, which alerted us to the fact that there was an illegal dumping of hydrocarbon into a nearby drain,” said Daniel Lemieux, Director of Community Services for the County of Grande Prairie. “Vigilance is an important part of our early detection and mitigation strategy, so we ask that the public contact the Alberta Environment’s 24-hour Emergency Response Line at 1-800-222-6514 or Alberta Environmental and Dangerous Goods Emergencies at 1-800-272-9600 immediately if they see anything unusual, including someone dumping materials into the drains. This incident was costly to the County, the community, and the environment and was entirely preventable.”

 

 

In the Sale of Property, Responsibility for Removal and Remediation of Underground Storage Tanks needs to be clear

Written by Stan Berger, Fogler Rubinoff LLP

On January 9, 2020, the British Columbia Supreme Court in Walton v. Warren 2020 BCSC 19 found in favour of the Purchaser when an undiscovered underground storage tank required removal and site remediation following closing. This ruling was given despite the Purchaser having signed off on an inspection report prior to closing. The purchase and sale agreement provided that the Seller had to ensure that any underground storage tank (UST) located on the property be removed and the surrounding soil remediated. The Seller was responsible for all costs. The Seller had to provide written confirmation before the Completion Date from the tank removal contractor and relevant provincial and local authorities that the remediation complied with provincial or local government laws. The Purchaser had to obtain and approve an inspection report 6 weeks before the completion date. The report recommended that a specialist company survey and sweep the property to determine the presence of buried oil tanks. The Purchaser’s realtor arranged for a scan of the property free of charge. This was followed by a scanning company’s report stating there was no evidence of any UST. The contract closed on schedule and almost 3 years later the basement of the property flooded. During a necessary drain replacement a UST was discovered requiring its removal and remediation at a cost of $42,000. The Purchaser sued the sellers.

The Judge found that the existence of the UST was unknown to the Seller at the time of the sale. The Seller argued that their obligation with respect to responsibility for any underground storage tank ended upon the closing. The Purchaser completed the purchase being satisfied with the condition of the property. The judge disagreed finding in the Purchaser’s favour.

“[62] There is no language in the Addendum which could be interpreted as limiting the defendants’ obligations only to those USTs that were discovered prior to the Completion Date or to those USTs of which they were aware. [63] The Addendum does not include any conditional language. For example, it does not say that the defendants are to remove and remediate “any oil tank that is discovered prior to the Completion Date” or “any oil tank that they are aware of prior to the Completion Date”.

Moreover the survival clause in the agreement contained no exceptions.

The lesson here is that courts are disinclined to infer any limit on the responsibility of a party when the language in the contract isn’t clear.

This publication is intended for general information purposes only and should not be relied upon as legal advice.


About the Author

Mr. Berger has practiced regulatory law for 37 years. He represents nuclear operators and suppliers, waste management operators, renewable energy operators, receivers-in-bankruptcy, municipalities and First Nations. He was an Assistant Crown Attorney in Toronto for 8 years, Senior counsel and Deputy Director for Legal Services/Prosecutions at the Ministry of the Environment for 9 years and Assistant General Counsel at Ontario Power Generation Inc for 14 years.
He is the author of a quarterly loose-leaf service published by Thomson Reuters entitled the Prosecution and Defence of Environmental Offences and the editor of an annual review of environmental law.
Mr. Berger was the President of the International Nuclear Law Association (2008-2009) and the founder, and President of the Canadian Nuclear Law Organization.

Are your Waste Transport Drivers Properly Trained under Ontario’s EPA?

Companies that hold an Environmental Compliance Approval (Waste Management System) for the transport of municipal waste, liquid industrial waste, or hazardous waste or are registered under the Environmental Activity Sector Register (EASR) for waste transport are required to have their drivers undergo specific environmental training.

Ontario’s General – Waste Regulation (Ontario Regulation 347) under the Ontario Environmental Protection Act ensures that wastes are effectively managed from the point of their generation to where they are ultimately processed or disposed of.  To provide this necessary control, the regulation includes definitions for different waste types and detailed requirements for a range of waste management activities.

The Ontario Ministry of the Environment, Conservation, and Parks (MOECP) Guideline for Training Requirements for Drivers of Waste Transportation Vehicles (Guideline C-12, PIBS 7914e01) provides information on environmental driver training related to the transport municipal waste, liquid industrial waste or hazardous waste.

The Guidelines outline the major areas that drivers of vehicles used for the transportation of municipal waste, liquid industrial waste or hazardous waste need to be trained on which includes:

  • The operation of the vehicle and waste management equipment,
  • Relevant waste management legislation, regulations and guidelines,
  • Major environmental concerns for the waste to be handled,
  • Occupational health and safety concerns for the waste to be handled, and
  • Emergency management procedures.

For more information on driver training requirements, contact John Nicholson, the editor of Hazmat Management Magazine.