United States: EPA Soliciting Comments On BUILD Act

Article by Phillip E. Hoover and Vickie C. RusekSmith Gambrell & Russell LLP

The Environmental Protection Agency is seeking to streamline the cleanup and reuse of National Priorities List sites with an emphasis on private party participation and private investment. NPL site designation was once a popular way for affected communities to secure federal funding for remediation, but the program has long suffered from lack of funding. Now, the Trump administration seeks to streamline the delisting of NPL sites in the same manner as the redevelopment of brownfields. One example of this initiative is the Brownfields Utilization, Investment and Local Development (BUILD) Act, which was enacted on March 23, 2018, and reauthorizes EPA’s Brownfields program at current funding levels through 2023. EPA is currently developing policy guidance to implement the BUILD Act, and is soliciting comment on three of the Act’s provisions: (1) the authority to increase the per-site cleanup grant amounts to $500,000; (2) the new multi-purpose grant authority; and (3) the new small community assistance grant authority. Click here for more information about these provisions and submitting comments to EPA.

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.

This article was first published on the Smith, Gambrell & Russell LLP website.

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About the Authors

Phillip E. Hoover is a Partner in the Environmental and Sustainability Practice Areas of Smith, Gambrell & Russell, LLP.  Mr. Hoover’s practice includes providing counsel on numerous environmental regulatory matters, as well as the redevelopment of environmentally impacted properties. These include state and federal superfund sites, corporate mergers and acquisitions of such properties. His environmental experience includes representation of Potentially Responsible Parties at superfund sites. He has negotiated RCRA permits and corrective action plans on behalf of clients in various states.

Vickie Chung Rusek is an Associate in the Environmental Practice of Smith, Gambrell & Russell, LLP. Ms. Rusek represents clients in all aspects of environmental compliance, enforcement, permitting, and litigation, including Superfund cleanups, Resource Conservation Recovery Act compliance, Clean Air Act and Clean Water Act permitting and compliance, and environmental tort litigation.

Nova Scotia Announces Plan to Assess Contaminated Site in Halifax

The Nova Scotia government recently announced that it is taking the first steps to determine what’s needed to remediate a former construction and demolition site in Harrietsfield, Halifax Regional Municipality.

Homemade signs line the road to Harrietsfield, N.S., on May 14, 2018.

Signs of the water contamination issue in Harrietsfield, Nova Scotia. (Alexa MacLean/Global News)

Nova Scotia Lands Inc. will commission a site assessment this summer to determine the extent of contamination, how long it will take to remediate and how much it will cost.  It will also determine the condition of the existing infrastructure and evaluate what potential impacts the remediation might have. The cost of the assessment is about $250,000.

“This site has been a problem for the community for far too long. We’re taking an important and necessary action to address it,” said Environment Minister Iain Rankin.

Two ministerial orders were issued in 2016, ordering the companies to assess the contamination that was impacting residents’ wells and submit a plan to remediate it. Those orders have not been followed.

Mr. Rankin has invoked his authority under the Environment Act to ensure those orders are carried out.

Under the act, the minister also has the authority to hold the former operators of the site responsible for the costs of remediation.

“We will pursue all available options,” said Mr. Rankin.

In 2016, the province had water treatment facilities installed at eight area homes where there was evidence that well water was being impacted by contamination at this facility.

A court case is ongoing against two companies that operated the former RDM Recycling site between 2002 and 2013. The site assessment will not impact the court case. The last court date was in late June.

RDM Recycling Plant, Harrietsfield, Nova Scotia (Photo Credit: CBC)

The Commodification of Phase I ESA’s and the Need for Innovation

Introduction

Individuals who read environmental site assessments (“ESAs”) in the early 1990’s as part of their job will likely remember the unevenness of recommendations and conclusions and the wide range in the quality of reporting.  During that time, as an in-house environmental engineer at a major law firm, I likely read more ESA reports from more environmental consulting firms than I care to remember.  To this day I still read my fair share of ESA reports from various consultants as part of my job.

Standardization

In the 1990’s there was a growing demand from users of ESA reports for some form of standardization.  Back then, and to this day, a potential buyer of a property and the associated lender used an ESA report to aide in determining the monetary risk associated with any environmental liabilities linked to a property.  The wide variety of styles, coverage, disclaimers, recommendations, and conclusions in ESA reports back in the early 1990’s made that task very hard.

More than one consultant in the 1990’s would try to absolve themselves of liability by merely stating the findings of the investigation and avoiding any recommendation or conclusions.  Others would include disclaimers that would essentially hold them blameless for all errors and or omissions.

The first standardized ESA reports that came across my desk conformed with the United States ASTM E1527 standard published in 1993.  The first Canadian ESA standard (Z768) was issued in 1994 by the Standard Council of Canada.

In Canada, the latest version of the CSA Z768 standard is what is used as starting point for conducting Phase I ESA’s.  A vast majority of ESA reports that I read begin quoting the CSA standard but with the added qualifying statement that the report is in “substantial conformance” with the standard.

Commodity

Currently, many of the major lenders in Canada have lists of approved consultants for ESA’s.  Any borrower can choose freely from the list and arrange for an ESA on a property.  Other organizations have similar lists.

The CSA Z768 standard combined with the lists of qualified consultants typically supplied by lending institutions has created, in my opinion, a commodification of Phase I ESA’s.  An unsophisticated and occasional user of environmental services would most likely choose a consultant to conduct a Phase I ESA based on price.

Sophisticated buyers of environmental services have their own favourite consultants.  To earn the trust of a regular user of ESA services, a consultant needs to be able provide a clear explanation of environmental liabilities and a strong justification for the need further investigation (i.e., Phase II ESA).  The exemplary consultant has the ability to uncover the less than obvious environmental liabilities.  All trusted consultants provide timely report in a cost-effective manner.

The advantage of the sophisticated buyers of ESA services is the experience gained from reading reports from dozens of different firms and knowledge of the revelations and oversights of each.  Even amongst sophisticated buyers, there is a level of commodification that exists as they would likely have anywhere from 4 to 5 firms (any maybe more) that they trust to do good work.

Differentiation

When being sold environmental services from consultants, I typically ask a consultant what differentiates them from their competitors with respect tot the conduct of a Phase I ESA.  In essence, I want them to articulate to me how their ESA work is superior to the competition.  The typical list of replies can be found in the table below.  Based on the majority of responses I receive, it is my conclusion that the consultants themselves are unknowingly conceding that they are selling a commodity service.  The differentiators they describe can apply to almost any firm that provides the service.

Table 1: Common Reasons Cited by Environmental Consultants for Choosing Them

“Cost effective”

“better”
“Fast turn-around time” “more effective”
“Use only experienced assessors” “more thorough”
“Experienced reviewers and supervising Staff”

“quality controls”

Innovation

So how can a consulting firm give clients what they want – more certainty on risk associated with a property – and differentiate the ESA service they provide?

I have found one consultant that I now work with has risen above the commodity Phase I ESA.  This consulting firm, through innovation, has gone beyond the bare minimum of a Phase I ESA that would conform to the CSA Standard and utilized technology to enhance the Phase I ESA.

A standard Phase I ESA requires only observation as part of the site visit portion of the ESA.  The use of intrusive testing is saved for a Phase II.  However, with the utilization of field instrumentation that is non-intrusive, an enhanced Phase I can provide much more information that a standard Phase I ESA.

The environmental consulting firm, Altech Consulting Group, uses magnetic surveys as a standard part of the its Phase I ESAs.  A magnetometer measures the magnetic potential underground through non-obtrusive means.  It can identify the presence of underground steel tanks or drums, and other ferrous buried objects (i.e. pipes).

Enhanced Phase I ESA – Seeing underground with the magnetic survey

By including a magnetic survey as a standard part of a Phase I ESA, Altech has more information from which to base its conclusions and recommendations.  It can utilize the information found from the magnetic survey along with historical data and interviews with persons knowledgeable of the property to have a stronger argument for the need for a Phase II ESA or not.

Chad Stewart, the head of the environmental investigation group at Altech stated “one of the biggest sources of environmental liability at the majority of sites is leaks from underground storage tanks or pipelines.  By including a magnetic survey as part of our Phase I ESA, we are in a much better position to state if further intrusive investigation is required.  Our approach saves the client time and money.”

As I said earlier, I have seen my share of ESA reports from numerous consultants.  Their a some that are very quick to recommend a Phase II ESA based on the limited information that only hints that a UST may have been present.  A vast majority of the subsequent Phase II findings reveal that there is no contamination.

Any means of bringing non-intrusive testing and measurement techniques into use for a standard Phase I ESA is a good thing in my opinion.  The more information that can be obtained during the Phase I ESA, the better the decision making on the need for a Phase II.

By not having to perform an unnecessary Phase II ESA, a client could save tens of thousands of dollars.  By performing a Phase II ESA based on information obtained from a magnetic survey that is a standard part of a Phase I ESA, a client could potentially save hundreds of thousands of dollars.

Tracking brownfield redevelopment outcomes using Ontario’s RSCs

By David Nguyen, staff writer, Hazmat Management Magazine

GeoEnviroPro’s latest webinar event featured Dr. Christopher De Sousa, a professor and director of the School of Urban and Regional Planning at Ryerson University.  He spoke about his research using record of site conditions (RSCs) to track brownfield developments in Ontario.

Christopher De Sousa.BA, MScPL, PhD (Associate Professor, Ryerson University)

A RSC is typically filed on the Environmental Site Registry with the Ontario Ministry of the Environment and Climate Change (MOECC) after property has undergone a Phase I, and often a Phase II Environmental Site Assessment (ESA) and the property is undergoing a zoning change to a more sensitive land use (i.e., industrial to residential).  A record of site condition summarizes the environmental condition of a property, based on the completion of ESAs.

De Sousa’s research focussed on the effects of the RCS legislation since its introduction in 2004, focussing on the scale and value of projects using RSCs from 2004 to 2015 (noting the revisions to the RSC legislation in 2011).  Property Assessments and Tax information was used to determine the nature of the developments that have occurred on brownfields.  Private sector stakeholders were interviewed to determine the factors that influence private sectors to develop on brownfields.

The research showed that from 2004 – 2015, 31% of RSCs were filed for Toronto properties.  However, the cities with the greatest total area redeveloped (based on RSC filings) were Brampton and Vaughn, with Toronto having the third largest total area redeveloped. With the exception of Ottawa, projects requiring RSCs occurred primarily in the greater Toronto and Hamilton area.

Of the RSCs filed from 2004 – 2015, 24% consisted of only Phase I environmental site assessments (ESA), 69% consisted of a generic Phase I and II ESAs, and 7% used a Phase I and II ESA combined with a site specific risk assessment.

With land use changes, the most common previous land use was commercial (36.8%) followed by industrial (22.3%) and the most common intended land use was residential (67.5%) followed by commercial (14.9%).

Toronto’s development focussed on residential projects located near major transit and roadways (85.6% of which being condos).  Smaller municipalities like Waterloo and Kingston also primarily developed residential properties (31% and 58%, respectively).  De Sousa notes that provincial growth plans and community improvement plans can help municipalities be more proactive in housing and economic development goals.

From a private sector perspective, the main motivations for brownfield developments are based on real estate factors (profit, market, locations), with barriers being costs, liabilities, and time (in project reviews and approvals).

Facilitation strategies that governments can utilize involve financial and regulatory changes, particularly in more effective and efficient processes and tools in high priority areas, with perhaps more government intervening regulations in secondary/ weaker markets to encourage development of brownfields vs. greenfields.

Toronto’s Port Lands feature numerous brownfields sites, image by Marcus Mitanis

Largest Clean-up Grant in Canadian History

As reported by Laura Osman of the CBC, Councillors on Ottawa’s finance committee unanimously approved a $60-million grant to clean up contaminants to make way for a massive new development on Chaudière and Albert islands.

Windmill Development Group applied for the grant for its mixed-use Zibi project.

Windmill will clear the contaminated soil on the site, which has historically been used as an industrial site, and demolish a number of buildings.

An artist’s rendering of the Zibi development, which could receive a substantial grant from the city for soil and building cleanup. (City of Ottawa)

“These are contaminated lands on a derelict site in the city’s urban core,” said Lee Ann Snedden, director of Ottawa’s planning services.

“This truly is a poster child for a brownfield grant.

The city’s brownfields redevelopment program awards funds to developers for cleaning up contaminated sites and deteriorating buildings, which helps encourage developers to build in the core rather than the suburbs.

The grant would pay for half of the total projected cost of the cleanup.

Windmill has promised to create a $1.2 billion environmentally friendly community with condos, shops, offices, waterfront parks and pathways on the 15-hectare site, which spans both the Quebec and Ontario sides of the Ottawa River.

The city will only pay for the actual costs of cleanup after the invoices have been verified, Mayor Jim Watson said.

The developer promised to only do the work if they find contamination is present.

“It would be fantastic news for us as the proponent if there’s less contaminants there,” said Jeff Westeinde with Windmill Development Group.

The developer hopes to have the Ottawa part of the development completed in seven or eight years.

Snedden pointed out the city will not  pay to clean up the nearby LeBreton land to allow development because the land is controlled by the federal government.

But the National Capital Commission technically owned about 20 per cent of the Zibi development lands as well said Coun. Catherine McKenney, who argued the federal government should contribute to the cleanup costs.

The NCC owned the lands and had a perpetual lease with Domtar, which operated a paper-mill on the site for nearly 100 years.

“So why are we paying the cost?” asked Peter Stockdale with the Fairlea Community Association.

Some councillors received letters from constituents concerned about the large amount of money going toward a money-making venture.

Capital ward Coun. David Chernushenko acknowledged the grant was “staggeringly” large, but said someone must be responsible for cleaning up contaminated sites.

“I don’t see this as some sort of corporate welfare,” he said.

The grant will still need to be approved by city council.

Chaudière and Victoria islands seen from the air above the Quebec side.

Despite Efforts to Roll-Back Other Program Requirements, U.S. EPA Administrator Scott Pruitt Continues to Prioritize Superfund Cleanups

by Van P. Hilderbrand, Jr. and Marian C. Hwang

 

 

U.S. Environmental Protection Agency (“EPA”) Administrator Scott Pruitt has made it clear that one of his top priorities during his tenure is to expedite cleanups at contaminated sites across the country. To achieve this goal while facing potential budget cuts, he has made several significant decisions over the last year to overhaul and restructure the Superfund cleanup program from within.

First, as we discussed in our earlier post, A New Budget, a New EPA Administrator, and New Uncertainty for Superfund Cleanups, Administrator Pruitt issued a memorandum on May 9, 2017 centralizing decision-making on major Superfund remedies to EPA headquarters. Specifically, final decisions on remedies exceeding $50 million are to be made by Administrator Pruitt or the Deputy Administrator, not by Regional Administrators. According to the memorandum, this change is designed to improve the remedy selection process by promoting increased oversight and accountability and by “enhancing consistency in remedy selection across states and the regions.”

Next, Administrator Pruitt specially convened an EPA Superfund Task Force on May 22, 2017. In our post, EPA’s Task Force Recommendations to Revamp and Expedite Superfund Cleanups and Process – A Welcome Change, we discussed the Task Force Report, issued on July 22, 2017, which identified 5 goals, 13 strategies, and 42 recommendations to (1) expedite Superfund cleanups; (2) re-invigorate responsible party cleanup and reuse; (3) encourage private investment; (4) promote redevelopment and community revitalization; and (5) engage partners and stakeholders. We have seen many of these recommendations realized, including the development and issuance of a priority list of Superfund sites targeted for immediate attention by Administrator Pruitt.

Recent EPA Realignment in Approval Process Sees the Administrator’s Role Expanding

Composite image map showing TRI facilities in blue and Superfund NPL sites in red

In a recent shift to expand the influence of the Administrator’s Office, Administrator Pruitt issued a second memorandum on April 26, 2018 clarifying that EPA’s Office of Land & Emergency Management and regional offices should “coordinate and consult with the Administrator’s Office early on when developing” other significant actions (in addition to remedies) related to costly Superfund cleanups. Such actions would include Amendments to Records of Decision (“ROD”) or Explanations of Significant Differences (“ESD”) that are projected to either increase the estimated cost of a remedy to greater than $50 million or are projected to increase the estimated cost of a remedy that is already greater than $50 million by any amount.

The memorandum also specifically notes that consultations should occur when developing Non-Time-Critical Removal Actions (“NTCRA”) estimated to exceed $50 million. As in the earlier 2017 memorandum, Administrator Pruitt says the additional coordination and cooperation will result in “more accountability and consistency throughout the EPA’s regions.” What this means for potentially responsible parties (“PRPs”) at large Superfund sites is that Administrator Pruitt will play an increasingly important role in the decision-making process.

Neither memorandum addressed any change in the role of the National Remedy Review Board (“NRRB”) and the interplay between the NRRB and the increasing oversight and decision-making role of Administrator Pruitt. The NRRB is an internal EPA peer review group that reviews and comments on remedial actions and NTCRAs costing more than $25 million. Questions remain whether the NRRB only reviews actions costing between $25 and $50 million, as not to impede Administrator Pruitt’s review, or do both NRRB and Administrator Pruitt review actions costing in excess of $50 million?

Uncertainty in the Superfund Program

This step comes amid increased turmoil and uncertainty in the Administrator’s Office and the Superfund program. Administrator Pruitt’s top advisor on the Superfund program and chairman of the Superfund Task Force, Albert “Kell” Kelly, resigned unexpectedly in early May, leaving questions regarding who will run the approximately $1 billion program. Further, Administrator Pruitt himself is facing numerous investigations into his own actions and ethical violations; causing many to wonder just how much longer he will be in his current job and whether he will see any of these policy changes implemented.

It is easy to see, therefore, why every decision from the Administrator’s Office comes under significant scrutiny. Many opponents believe these moves are simply ways to reduce costs and time in the cleanup process, and they question whether “expedited” cleanups actually mean less rigorous cleanups. In his first year or so, there are examples where Administrator Pruitt has approved strengthened measures and cleanup requirements at some sites, despite pushback from industry and companies involved in the cleanup, but there are also examples of site decisions that cast doubt on his ability to be independent and impartial. In any case, as long as Administrator Pruitt is in his current role, it is clear that the Superfund program will see continued change and that he will use the authority of that role to expedite cleanups.

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS. Please contact the author if you would like to receive written advice in a format which complies with IRS rules and may be relied upon to avoid penalties.

This story is was first published on the Miles Stockbridge website.

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About the authors

member of Miles & Stockbridge Products Liability & Mass Torts Practice Group, Van P. Hilderbrand, Jr. focuses his practice on environmental litigation, regulatory compliance issues, and advising on the environmental aspects of business and real estate transactions. His work also includes consulting on renewable energy project development and project finance transactions, conducting due diligence and assisting with permitting issues. He represents clients in a wide range of industries, including energy, manufacturing, consumer products, pharmaceuticals, chemicals, transportation, technology and real estate.

Marian Hwang has been an environmental attorney with the Miles & Stockbridge since 1987 and chairs its Environmental Practice. The breadth of her experiences representing multinational and national clients enables her to develop practical solutions to complex issues, whether involving complicated real estate/corporate acquisitions or divestitures or commercial financing matters to complex multi-defendant toxic tort claims, litigation, and multi-facility compliance matters. Marian works extensively with and appears before Federal and State regulators, and courts, has been certified as a LEED Green Associate by the U.S. Green Building Council, and has served as outside national environmental counsel to the firm’s major clients.

 

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MOECC Releases Notice of Updated Excess Soil Management Proposal

By David Nguyen – Staff Writer

The Ontario Ministry of Environment and Climate Change (MOECC) recently posted notice on the Environmental Bill of Rights Environmental Registry of the regulatory changes to the management of excess soil (Excess Soil Management Regulatory Proposal, ERO# 013-2774). Excess soil is soil that has been dug up, such as during excavation activities, and cannot be reused at its original site and must be moved off site.  There is much controversy in the Province of Ontario and other provinces concerning the management of excess soil as there are claims and growing evidence that some companies mix clean soil with contaminated soil, some companies dispose of contaminated soil as clean soil, and other questionable practices.

The MOECC proposal clarifies where soils can be reused based on the soil characterization and aims to reduce greenhouse gasses from the transportation of soil by encouraging local reuse. The proposal also clarifies that the project leader is responsible for the management and relocation of the excess soil generated during a project to ensure proper characterization and relocation. Minor amendments to O.Reg. 153/04 and to O. Reg. 347 are also proposed.

The current proposal incorporates responses and comments from the previous proposal as well as from engagement with stakeholders and Indigenous communities. Changes from the previous proposal include:

  • A revised approach to waste designation
  • Reduced regulatory complexity and some details moved to guidance
  • A two to three years transition time for key regulations
  • Several O. Reg. 153/04 amendments to come into effect sooner
  • More flexibility for reuse through new reuse standards and a Beneficial Reuse Assessment Tool to develop site specific standards

This proposal is part of the MOECC’s response to the commitments outlined in Ontario’s Excess Soil Management Policy Framework. Other actions of the framework include developing priority education, outreach and training initiatives to support implementation.

The specific regulations and proposals provided for comments are summarized below:

  • A new proposed On-Site and Excess Soil Management Regulation
    • Excess soil would be designated as waste when it leaves the project area unless it is reused in accordance with the rules set out in this regulation.
    • If designated waste, the regulation would clarify when an ECA is not required.
    • Hauling of excess soil would generally not need an ECA, but is still subject to certain rules, such as maintaining records.
    • Project leaders may use temporary soil storage sites without an ECA as long as certain conditions are met.
    • Unless exempted, a project leader is responsible for preparing an Excess Soil Management Plan (ESMP), which involves determining contaminant concentrations on the soil, finding appropriate receiving sites, develop a tracking system and record keeping requirements.
    • Key information from the ESMP would be registered on a public registry. A qualified person (QP) would need to prepare or supervise the ESMP.
    • The regulation would be phased in over two to three years.
  • Amendments to O. Reg. 153/04
    • Align the requirements for soil being taken to Record of Site Condition (RSC) or phase two properties with the new rules for excess soil proposed in the On-Site and Excess Soil Management Regulation.
    • Resolve delineation challenges experienced at properties going through the Risk Assessment process.
    • Remove Record of Site Condition triggers for low risk projects.
    • Provide flexibility for meeting contamination standards where exceedances are cause by substances used for ice and snow safety, discharges of treated drinking water, and presence of fill that matches local background levels.
  • Amendments to O. Reg. 347
    • Clarify that excess soil is no longer part of the definition of “inert fill.”
    • Clarify operational requirements to support exemptions from ECA requirements for excess soil related activities.
  • Proposal of Rules for On-site and Excess Soil Management
    • A proposed document to be adopted by reference in the On-Site and Excess Soil Management Regulation
    • Specifies ESMP contents, including an assessment of past uses, sampling and analysis plan, excess soil characterization, requirements for excess soil tracking systems, a destination assessment and identification, and declarations required of the project leader and qualified person, and applicable soil quality standards and related rules.
  • The proposed “Beneficial Reuse Assessment Tool” (BRAT)
    • An alternative rules that aim to promote greater reuse of excess soil and the protection of human health and the environment
    • Allows a QP to generate site specific standards using a spreadsheet model

Comments can be made on the proposal up to June 15, 2018 on the Environmental Registry of Ontario proposal site or by mail.

Court Rejects Environmental Consultant’s Third Party Claim Against Prior Owner/Occupants

by Stan Berger, Fogler Rubinoff

On March 22, 2018 the Ontario Superior Court of Justice in MVL Leasing Ltd. v CCI Group Inc. 2018 ONSC 1800 granted Rule 21 motions striking third party claims brought by an environmental consultant who was being sued by a purchaser of property for professional negligence and breach of contract. This means they likely want to continue speaking with their legal representatives when the cause is negligence or carelessness, as this could turn complicated in the courtroom. The lawsuit alleged that the plaintiff was led into closing the sale by the consultant’s Phase 1 and Phase 2 Environmental Site Assessments. The property turned out to be contaminated. The consultant in turn alleged that the contamination was caused by one or more businesses operated by the third parties. The consultant requested contribution indemnity from the third parties on 6 different grounds: nuisance, loss or damage caused by a spill pursuant to s.99 of Ontario’s Environmental Protection Act, the occupier’s duty under the Occupiers’ Liability Act to ensure the safety of persons entering upon the property, negligence, liability under the Negligence Act and unjust enrichment. The consultant argued that if found liable in the main action, it would have incurred pecuniary losses as a direct result of the spill, those damages being the plaintiff’s remediation costs and or the decrease in the property’s value.

Court’s Reasons for Rejecting the Third party Claims

The nuisance claim was rejected on the basis that the consultant did not own, occupy or possess the property, or any adjacent or nearby property impacted by the alleged contamination. The s.99 EPA claim was only available where the damages were directly caused by the spill and that was not the case. The occupier liability claim was rejected because the consultant suffered no damages as a result of entering the property in question. With respect to the negligence claim, the Court refused to impose a new duty of care upon the third parties. There was no proximity in the relationship between the consultant and the third parties. The potential economic harm to the consultant was not a reasonably foreseeable consequence of the alleged acts or omissions of the previous third party owners/occupiers. The Negligence Act claim was rejected on the basis that the consultant and the third parties did not meet the test under the Act of being concurrent tortfeasors for contribution and indemnity to be available. The plaintiff’s actual or potential causes of action against the consultant and the third parties were entirely different in nature. The damages allegedly caused by the third parties were different and discrete from those caused by the consultant. Finally, the unjust enrichment claim was rejected as the consultant had not pleaded any direct conferral of a benefit upon the third parties and the consultant had not suffered a corresponding detriment. If the consultant had incurred a detriment in the future by the plaintiff succeeding with its action, that detriment only related to the breach of contract and/or negligence of the consultant and the third parties were not parties to that relationship.

What can we take away from this Decision?

In order to sustain a third party claim against historic owners or occupiers of contaminated property, environmental consultants who are sued by a purchaser of contaminated property, will have to show that that the historic owners/occupiers were somehow responsible for or at least connected to the contractual breach or negligence which the purchaser alleges against the consultant.

This article was previously published by Fogler, Rubinoff LLP and can be found on the firm’s website.

About the Author

Stanley Berger is certified by the Law Society of Upper Canada as a specialist in Environmental Law. He was called to the Ontario Bar in 1981. He joined the law firm of Fogler Rubinoff in 2013.

 

U.S. EPA’s Enforcement of the Lead-Based Paint Renovation, Repair and Painting Rule

By Dianne R Phillips, Holland & Knight

On March 28, 2018, the Office of the Inspector General (OIG) of the U.S. Environmental Protection Agency (EPA) issued a Project Notification indicating its plans to begin preliminary research to evaluate the EPA’s implementation and enforcement of the Lead-Based Paint Renovation, Repair and Painting Rule (RRP Rule). The RRP Rule, which is part of the federal Toxic Substances Control Act, is intended to ensure that owners and occupants of pre-1978 “target housing” and “child-occupied facilities” receive information on lead-based paint hazards before renovations begin, that individuals performing such renovations are properly trained and certified, and that renovators and workers follow specific lead-safe work practices during renovations to reduce the potential for exposure to lead. Although use of lead-based paint in dwellings was prohibited after 1978, EPA estimates it is still present in approximately 30 million homes across the United States. The RRP Rule is intended to protect children and others vulnerable to lead exposure due to the health effects associated with lead poisoning.

Enforcement of the RRP Rule, along with the other lead-based paint rules, has been a priority of EPA. For fiscal year ending 2017, according to EPA’s Oct. 27, 2017 press release from October 2016 through September 2017, EPA finalized 121 civil settlements for alleged violations of one or more of the three lead-based paint rules–the RRP Rule; the Lead Disclosure Rule; and the Lead-based Paint Activities Rule for abatements–and filed three complaints for ongoing actions. EPA and the U.S. Department of Justice also prosecuted one criminal case involving violations of lead paint laws and finalized two Clean Air Act settlements that included lead paint abatement projects in local communities. The OIG Project Notification indicates that the “objective for this project is to determine whether EPA has an effective strategy to implement and enforce the lead-based paint RRP.” Only time will tell what is meant by that.

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About the Author

Dianne R. Phillips is an attorney in Holland & Knight’s Boston office who concentrates her practice in litigation, regulatory, energy and environmental law. As former assistant general counsel for Suez LNG North America LLC (now known as Engie North America) and its wholly owned subsidiary, Distrigas of Massachusetts LLC, Ms. Phillips was involved in all aspects of regulatory compliance for the nation’s oldest, continuously operating liquefied natural gas (LNG) import terminal located in Everett, Mass., including safety and security. Her LNG experience includes advising clients with respect to specialized regulatory compliance under 49 C.F.R. Part 193 and NFPA 59A.