Decision Provides a Cautionary Tale About Contracting for Environmental Services

Written by By Jim Ray, Robinson + Cole LLP

An important lesson on contracting with environmental consultants recently came out of a federal district court in California in Golden Gate Way, LLC v. Enercon Services, Inc., 20-cv-03077-EMC (N.D. Cal. Nov. 18, 2021).

Golden Gate Way (GGW) hired environmental consultant Enercon to perform a Phase II Environmental Site Assessment in connection with a refinancing of a loan on GGW’s property which had previously been used for a dry-cleaning business. The contract contained a common provision limiting Enercon’s liability to the fee paid to Enercon for work under the contract (which turned out to be about $15,000). At GGW’s request, Enercon agreed to add a provision to the contract making GGW an additional insured under certain Enercon insurance policies.

After Enercon completed the Phase II work, GGW alleged that Enercon exacerbated contamination on the subject property and sought to recover under Enercon’s insurance policies as well as filing suit against Enercon for damages. Unfortunately for GGW, the Enercon insurance policies contained pollution exclusion provisions (excluding coverage for losses in connection with the potential spread of contamination at Enercon job sites). Thus, the GGW insurance claims were denied.

Enercon moved for partial summary judgment in GGW’s lawsuit based on the contract’s limitation of liability provision. The district court granted the motion, holding that the terms of the agreement (including the limitation of liability provision and agreement to add GGW as an additional insured) (1) were the result of an arms-length transaction between sophisticated parties, (2) did not violate public policy, and (3) were not the result of fraud or other malfeasance.

GGW’s experience serves as a reminder when contracting for environmental investigation and remediation services, it is important to pay close attention to contractual provisions such as limitation of liability clauses and, when relying on insurance, to pay close attention to policy terms and exclusions.

Republished with permission of the author.  The original post can be found here.

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About the Author

Jim Ray has more than 25 years of experience as an environmental and product liability litigator and counselor, and he has served as court-appointed common counsel or liaison counsel in multiple environmental matters. These experiences, combined with a strong technical and business background, enable him to work effectively with engineers, scientists, other experts, and legal counsel to help clients minimize risk and solve compliance, enforcement, site remediation, and cost allocation challenges.

 

ONEIA Board Nominations deadline for applications is December 2nd

ONEIA is now accepting applications from those who occupy senior positions at member companies and are interested in serving on our board for the 2022-2025 term.  Our current board of 15 members is made up of industry leaders who also serve on ONEIA committees, attend our events and support a strong voice for our industry and its concerns.

If you would like to make a contribution to your industry and to ONEIA, we would be pleased to add your name to the roster being considered by the nominations committee.

Please forward your CV, and a letter expressing interest which outlines how you could support the work of ONEIA, to Janelle Yanishewski, Operations Manager, at info@oneia.ca, prior to December 2, 2021. For a sample of what this letter may look like, please contact [email protected] and we can send you a template.

For more information, please contact Denise Lacchin, Chair of the Nominations Committee at [email protected]

Sustainable Brownfield Development Building a Sustainable Future on Sites of our Polluting Past

Christopher De Sousa, a Professor of Urban and Regional Planning at Ryerson University, recently published a new book entitled Sustainable Brownfield Development Building a Sustainable Future on Sites of our Polluting Past.

While industrial and chemical innovations have contributed extensively to human advancement, the darker part of their legacy has been the hundreds of thousands of polluted sites left behind. Governments at all levels have rallied to support the remediation and reuse of these land resources and put many of the nation’s brownfields back into productive use. This book presents two dozen brownfield projects in the United States that have incorporated sustainability, highlighting project features, best management practices, and lessons from the field regarding the underlying policies and practices that enabled these projects to be completed or, in some cases, stalled, altered or abandoned.

The case studies represent an array of brownfield projects that aimed to go beyond conventional practice and include a range and variety of end uses (e.g., corner gas stations, industrial, office, residential, brightfields, green space, mixed-use, and transit-oriented developments). The cases investigate site histories, planning and development and examine sustainability characteristics to understand how projects overcame the barriers to brownfield reuse and the implementation of sustainability features and derive a series of lessons learned, including innovative policies, programs, and/or funding mechanisms that helped make these projects work.

Sustainable Brownfield Development will be of interest to developers, planners, consultants and community representatives interested in environmental policy, urban planning, community development, ecological restoration, economic development, and parks planning by providing direction and inspiration for those eager to erase the blight of the past and build a more sustainable future.

Table of Contents

1. Brownfields Background 2. Sustainability and Brownfields 3. Industrial and Commercial Redevelopment 4. Office Redevelopment 5. Residential Redevelopment 6. Green and Community Space Redevelopment 7. Corner Gas Station Brownfields 8. Main Streets, Neighborhoods, and Towns 9. Mixed-Use Complete Communities 10. Brightfields 11. Project Characteristics and Lessons Learned

Biography

Christopher De Sousa is a Professor of Urban and Regional Planning at Ryerson University and was previously at the University of Wisconsin-Milwaukee. His research focuses on brownfields redevelopment in the United States and Canada. De Sousa is past President of the Canadian Brownfields Network, a Steering Committee Member of the US Agency for Toxic Substances and Disease Registry Brownfields/Land Reuse Health Initiative, and on the Management Committee of Ryerson’s Center for Urban Research and Land Development.

Heightening the realism of CBRNe training with PlumeSIM

Written by Steven Pike, Argon Electronics

Providing military and civilian responders with access to realistic hands-on training is crucial in ensuring that they are able to confidently handle the challenges of a diverse range of CBRNe incidents.

A common issue for CBRNe instructors however, is how to deliver a training experience that offers the desired combination of authenticity, consistency and effectiveness.

When it comes to chemical or radiological hazards in particular, many trainers can find themselves having to sacrifice realism in favour of safety, or being constrained by logistical, administrative and regulatory considerations which can limit the scope of their exercises.

New innovations in simulator-based technology are now transforming the CBRNe training environment.

Argon Electronics’ wide-area instrumented training system PlumeSIM enables instructors to create flexible scenarios covering a diverse range of radiological releases, chemical warfare agents and hazardous materials.

In contrast to more traditional methods of CBRNe training, which can often rely on a large degree of ‘make-believe’, PlumeSIM provides trainers with the ability to create exercises that replicate real life.

Crucially too, there is the freedom for instructors to determine the parameters of the exercise ahead of time and then, once the training is underway, to focus their attention on observing the movements and actions of their trainees.

Exploring PlumeSIM

PlumeSIM offers the versatility of being used at every stage of the radiological exercise process, from pre-planning to field exercise mode to After Action Review (AAR).

Planning mode

When using PlumeSIM in planning mode, exercises can be set up on any PC or laptop without the need for any system hardware.

Common file format map images can be quickly uploaded and homemade sketches of the training area can also be easily added.

The system’s simple menu configuration enables the source type, quantity, location, nature of the release and desired environmental conditions to be set and adjusted as required.

There is the option to define a plume or hotspot based on a specific substance, CWA, radionuclide or compound.

Specific release characteristics such as direction, duration, deposition and persistence can also be readily implemented.

Table-top mode

In table-top mode, trainees can familiarise with their live-field scenario by using standard gamepad controllers to navigate icons of themselves around an on-screen display of their training area.

At the point that the virtual plume scenario is activated, any contact with a simulated agent will trigger the activation of the trainee’s simulation instrument, with all actions able to be monitored from the control base via a short range radio communications link.

Throughout the training session all trainee movement is recorded and can then be played back at the conclusion of the exercise as part of the after action review (AAR) process.

Field exercise mode

When using the PlumeSIM system in field exercise mode, trainees are equipped with GPS enabled player units that can be monitored from the control base with the use of a long range radio communications link.

Once the virtual plume has been activated, any contact with the simulated source will be indicated on the display of the simulator instrument.

In environments where the conditions may impede the ability to obtain or maintain continuous long range communication, the scenario can also be pre-loaded onto the player unit and activated when required.

After Action Review (AAR)

Capturing trainee error is a vital element of radiological training, but it is an aspect that can be easily overlooked if the instructor’s attention is focused on administering the exercise rather than on observing the student.

With PlumeSIM, trainers are able to record every aspect of their trainees’ movements and play it back at the conclusion of the exercise as part of the AAR process.

Enhanced Live Training provision

In an exciting development for the provision of Live Training, Argon has partnered with Swedish military defence solutions provider Saab AB to integrate PlumeSIM into SaaB’s Gamer interface.

While the initial applications of the enhanced PlumeSIM training system have focused on the detection of CWAs, radiological simulation is also able to be readily supported and can be used in combination with Argon’s wide range of simulated portable survey meters and personal dosimeters.

If you would like to learn more about how PlumeSIM can enhance your existing programmes of CBRNe instruction please download a copy of the PlumeSIM Product Sheet.

 


About the Author

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

 

Midas Gold Reaches Agreement to Begin Environmental Restoration at Abandoned Mine Site in Idaho

Midas Gold Corp., presently headquartered in British Columbia, recently announced, following three years of extensive discussions, that U.S. federal agencies have authorized and directed the Company to perform agree-upon clean up actions to address contaminated legacy conditions within Idaho’s abandoned Stibnite mining district that are negatively impacting water quality.

While Midas Gold did not cause the legacy environmental problems at Stibnite, the recently signed agreement points to the need for timely environmental action. The Agreement between the company the the U.S. government allows the Company to voluntarily address environmental conditions at the abandoned mine site without inheriting the liability of the conditions left behind by past operators.

Should the Stibnite Gold Project move forward with proposed mining and restoration activities, the Agreement will also allow for comprehensive site cleanup by directing the Company to address legacy features including millions of tons of legacy mine tailings that fall outside of the Project footprint and would otherwise not be addressed.

With the Agreement in place, Midas Gold is now moving forward with plans to relocate its corporate headquarters from British Columbia, Canada to Boise, Idaho and intends to redomicile the Company to the United States.

Agreement Reached to Address Legacy Water Quality

Through an Administrative Settlement Agreement and Order on Consent (“ASAOC” or the “Agreement”) signed on January 15, 2021 by the Environmental Protection Agency (“EPA”) and U.S. Forest Service, with concurrence by the U.S. Department of Justice, Midas Gold has been instructed to clean up certain contaminated conditions within the Stibnite mining district in Idaho. The sources of contamination to be addressed by the Agreement are decades old and largely stem from tungsten and antimony mining during World War II and the Korean War, long before Midas Gold started planning for redevelopment of the site.

The cleanup Agreement was entered into under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”) and is the result of almost three years of discussion with the Environmental Protection Agency (EPA). The U.S. EPA also lead discussions with U.S. Department of Justice, U.S. Forest ServiceState of Idaho, and two Idaho tribes.  Before finalizing the agreement, the EPA also conducted government-to-government consultation with the Shoshone-Bannock Tribes and Nez Perce Tribe.

“For decades, ground and surface water at Stibnite have suffered from elevated levels of arsenic and antimony,” said Laurel Sayer, CEO of Midas Gold Corp. and Midas Gold Idaho. “Yet, because the problems stem from historic mining activity, there are no responsible parties left to address the issues at hand. While we did not cause the problems impacting water quality today, we have always been clear on our intentions to be a part of the solution. We know redevelopment of the Stibnite Mining District for mining activity must include restoration of legacy features. So, when we saw the need to address sources of water contamination more quickly at Stibnite, we knew we had to offer our help.”

Stibnite provided the U.S. with key minerals to support the war effort during World War II and the Korean War. This picture shows a miner working at site in 1943.

Importantly, the Agreement does not change the permitting process or anticipated permitting schedule for the Stibnite Gold Project through the National Environmental Policy Act (“NEPA”), nor does it alter any potential CERCLA liability or CERLCA defenses for Midas Gold or federal entities should the Stibnite Gold Project be fully permitted and move into operations. The Agreement only allows for specified EPA directed cleanup actions to occur.

“Today’s agreement develops a clear pathway for comprehensive cleanup activity at a long abandoned mine site and marks an important opportunity for meaningful water quality improvement at Stibnite,” said John C. Cruden, outside counsel for Midas Gold and former Assistant Attorney General for the Environment and Natural Resources Division in the Department of Justice in President Obama’s Administration.

The Agreement comes with a determination by federal regulators that due to historical activity, site conditions presently constitute an “actual or threatened release of hazardous substances” and that time critical removal actions are necessary to protect human health and welfare and the environment. In order to provide investment and cleanup the legacy environmental hazards and waste left behind at Stibnite, Midas Gold reached an agreement with federal agencies under CERCLA to define the cleanup work the Company will conduct and to clarify how to protect the Company from inheriting the environmental liability of past actors who abandoned the site. This situation is not unique to Midas Gold but one that has stalled cleanup work at abandoned mine sites across the country. This Agreement may well provide an example for cleaning up abandoned mining sites elsewhere in the nation.

“Water quality in the Stibnite Mining District has been a known problem for decades. As the closest community to the site, I can tell you that cleanup is long overdue,” said Willie Sullivan, Yellow Pine Resident and board member of the Yellow Pine Water Users Association. “This agreement between the EPA and Midas Gold is the first meaningful step toward real improvements in water quality conditions for the East Fork South Fork Salmon River and downstream communities like Yellow Pine. We have seen Midas Gold’s commitment to doing business the right way and their willingness to help with clean up now tells me they are the right partner for this effort.”

Clean-up Phases

The ASAOC consists of three primary phases. The first phase of the Agreement is designed to significantly improve water quality over the next four years. It includes several CERCLA “time critical removal actions” consisting of water diversion projects designed to move water so it may avoid contaminated areas of the site, and removal of over at least 325,000 tons of historical mine waste from problematic locations that are currently affecting water quality. In addition, Midas Gold has agreed to conduct a full biological assessment, Clean Water Act evaluation, and a cultural resource survey.  To ensure all that important work will be done, Midas Gold is providing US$7.5 million in financial assurance for Phase 1 projects.

Phases 2 and 3 of the ASAOC would move forward if the Stibnite Gold Project receives permission to proceed with mining under the National Environmental Policy Act (“NEPA”) and would provide the opportunity for comprehensive and site-wide cleanup of legacy features and waste by including permission to address legacy areas that are not included in the restoration activities proposed by the Stibnite Gold Project.

To read more on this Agreement additional information may be found here:  www.MidasGoldIdaho.com/news/asaoc/

SOURCE: Midas Gold

 

U.S. Based Vivakor Seeks IPO For Soil Remediation Growth Efforts

U.S.-based Vivakor, a firm that provides soil remediation services for hydrocarbon contaminated soils, recently filed a Registration Statement with the U.S. Securities and Exchange Commission to raise $15 million (USD) for an initial public offering (IPO).  The public money raised will be used by the company to equip itself with the necessary capital equipment to perform its soil remediation services as well as further develop its ‘hydrocarbon upgrading’ capabilities.

The company is currently a private listing company for over-the-counter securities trading as VIVK.  It has a market capitalization of approximately $167 million (USD).

 

Company & Technology

South Salt Lake City, Utah-based Vivakor was founded to develop soil remediation capabilities primarily for the extraction of hydrocarbons from properties that have been contaminated with crude oil or other hydrocarbon-based substances.

The firm is currently focused on clean-up opportunities for hydrocarbon contaminated soil in Kuwait and in naturally occurring oil sands areas in Utah.

Also, more recently, the company inked a deal to purchase wastewater removal equipment, allowing it to provide remediation services to project areas that combine dry and wet areas.

Vivakor also is pursuing the ability to ‘upgrade the hydrocarbons recovered’ from the remediation process, although this technology has not been proven in commercial operations.

Vivakor has received at least $53 million from investors.

Market & Competition

According to a 2016 market research report by Grand View Research, the global pre-oil spill management market was an estimated $100 billion in 2015 and the oil spill management market is expected to reach an estimated $178 billion by 2025.

This represents a forecast CAGR of 3.2% from 2016 to 2025.

The main drivers for this expected growth are an increasing concern regarding the environmental impacts from oil spills in water and soil as well as continued technology development for remediation processes.

Also, North America represented the largest oil spill management market in 2015 and is expected to increase its share due to increased deep sea exploration & production activities.

Major competitive or other industry participants include:

  • National Oilwell Varco (NOV)
  • Fender & Spill Response Services
  • Ecolab (ECL)
  • SkimOil

IPO Details

Vivakor intends to raise $14.7 million in gross proceeds from an IPO of its common stock, although the final figure may differ.  No existing shareholders have indicated an interest to purchase shares of the IPO.

Management says it will use the net proceeds from the IPO as follows:

  • for the purchase of two RPC units, together with related equipment and enhancements;
  • towards the continued development of our hydrocarbon upgrading technologies; and
  • for working capital and other general corporate purposes, including potential repayment of outstanding bridge notes.

Canada ranks #1 in investment for cleantech innovation and #16 in cleantech commercialization

A recent survey conducted by Eco Canada of cleantech employers in Canada to assess market and industry trends.  Specifically, ECO Canada surveyed cleantech employers to uncover in-demand occupations, skills, trends, and opportunities facing the sector and its workforce.  The survey was conduct prior to the COVID-19 pandemic.

At a global level, clean innovation is a trillion-dollar industry. Investments, activities and jobs in clean technology are expected to grow further, likely exceeding $2.5 trillion by 2022. While Canada has potential to become a market leader, ensuring an adequate supply of skilled workers is vital to supporting the sector’s growth.

ECO Canada surveyed 81 cleantech employers to gather relevant data such as in-demand occupations, skills, trends, and opportunities facing the sector and its workforce. Their responses provided the following key insights:

  • Employers that hire cleantech workers come from a variety of industries such as Natural Resources, Utilities, Construction, Manufacturing, among others.
  • Increased demand, corporate environmental commitment, and overall growth are driving cleantech revenue amongst businesses surveyed.
  • More than half of respondents plan to hire cleantech positions in the next 12 months, but they are experiencing shortages in a variety of occupations, and skills.
  • Some employers are implementing strategies to address labour shortages, however broader workforce solutions are needed to ensure an adequate supply of skilled workers are available in the months and years to come.

What is Cleantech?

In the survey, Eco Canada defined Cleantech as any technological process, product, or service that:
1) provides superior performance or lower costs than the current norm or standards,
2) minimizes negative environmental impacts, and
3) makes more efficient and responsible use of natural resources.

In other words, it is any technology that uses less material or energy, generates less waste, and causes less negative environmental impacts than the industry standard.

Download the report to get more insights into the cleantech sector.

About Eco Canada

ECO Canada is the steward for the Canadian environmental workforce across all industries. The organization is involved in job creation and wage funding, environmental training and labour market research. For over 25 years, the not-for-profit organization has forged academic partnerships, tools, and research not only to train and certify environmental job seekers, but also to help address labour and skill shortages.

 

Global Oil Spill Management Market Research Outlook

QY Research recently published a market report entitled Global Oil Spill Management Market Outlook.  The market study offers detailed research and analysis of key aspects of the global Oil Spill Management market.

According to the report, the global oil spill management market size is projected to reach US$ 91050 million by 2026, from US$ 88600 million in 2020, at a CAGR of 2.6%% during 2021-2026.

The market analysts authoring this report have provided in-depth information on leading growth drivers, restraints, challenges, trends, and opportunities to offer a complete analysis of the global Oil Spill Management market. Market participants can use the analysis on market dynamics to plan effective growth strategies and prepare for future challenges beforehand.  Each trend of the global Oil Spill Management market is carefully analyzed and researched about by the market analysts.

Key Players Mentioned in the Global Oil Spill Management Market Research Report: Osprey Spill Control, LLC, Ecolab, Inc., Oil Pollution Environmental Control Ltd., Oil Spill Response Limited, ACME Environmental, Expandi Systems AB, NOFI Tromso AS, CURA Emergency Services, Lamor Corporation, NRC International Holdings, Elastec, NorLense AS, Desmi AS, Chemtex, Darcy Spillcare Manufacture, Canadyne Technologies, Inc., Blue Ocean Tackle, Inc., Vikoma International Ltd., American Pollution Control Corp., Markleen AS, Terra Contracting Services LLC, Paulo eco

Global Oil Spill Management Market Segmentation by Product: Pre-Keyword, Double-Hull, Blowout Preventer, Pipeline Leak Detection, Other

Global Oil Spill Management Market Segmentation by Application: , Onshore, Offshore

AGAT partners with SiREM to provide the Waterloo Membrane Sampler™ for passive soil vapour sampling

AGAT Laboratories in partnership with SiREM, recently announced that the Waterloo Membrane Sampler™ (WMS) is now available for passive soil vapour sampling exclusively at AGAT.

The Waterloo Membrane Sampler™ (WMS) is a cost-effective, simple-to-use passive sampler for soil vapour. The WMS provides quantitative concentration measurements with similar accuracy and precision to conventional active soil vapour samples collected using Summa canisters or TD Tubes.

The WMS is a permeation-type passive sampler. When it is exposed, the VOCs permeate through the membrane covering the top of the sampler vial, driven by a concentration gradient. The sorbent inside the sampler then traps the vapours and then the mass of each compound is determined by GC/MS at AGAT Laboratories.

Frequently Asked Questions

How does the WMS work?
Passive samplers can be classified into two general types based on how the VOC uptake is controlled: (1) those that rely on diffusion through a stagnant air region (passive diffusion samplers) and; (2) those that rely on permeation through a nonporous membrane (passive permeation samplers). In the latter, VOCs permeate through the uptake-rate limiting membrane before they are collected by the sorbent. The Waterloo Membrane Sampler™ is a permeation-type passive sampler. When it is exposed to air, VOCs in the air permeate through the membrane covering the top of the sampler vial, driven by a concentration gradient. The sorbent inside the sampler then traps the vapours.
Is the WMS impacted by environmental changes?
Unlike other media, the WMS has minimal effect from moisture, wind velocity, or barometric pressure. The hydrophobic nature of the membrane excludes water and also prevents turbulent uptake so the sampler can be deployed in high velocity environments such as soil gas extraction systems.
How long does the WMS have to be deployed?
 The WMS can be deployed for a minimum of a few days to up to 30 days. You can calculate deployment times by using the online Sample Duration Calculator to determine what WMS will work best for your site.
Why are there different types of WMS samplers?
Each WMS is designed to work in different types of soil as follows:
  • The WMS-LUTM is a low-uptake WMS used for vapour concentrations in soil gas. The lower uptake rates mitigate the effect of the sampler starvation that may occur when collecting soil gas, and will allow for quantitative soil gas sampling in drier subsurface conditions.
  • The WMS-TMTM is designed for VOC vapour concentrations in soil gas with low permeability or very wet soils.
What is the hold time for the WMS?
Once a sample has been taken, the hold time is 14 days.  Samplers should be kept cool (ice packs but NO ICE is recommend, for these types of samples should not get wet) and shipped back to the lab. Target temperature is 10°C.

 Is the use of the WMS accepted by the Regulator?
It depends on the jurisdiction.  In Ontario, Under “Regulation 153 Vapour Intrusion Guidelines,” the WMS is accepted as alternative sampling media for the collection of soil and sub-slab vapour. There is no prescribed sampling method that is recommended or preferred over another. It is the responsibility of the QP to determine what sampling media would be best for their site.

Transport Canada Emergency Response Guidebook — 2020

The Emergency Response Guidebook 2020 edition will be available late spring 2020. For free paper copies’ pre-order, please send an email to: [email protected]

Who is eligible to get free paper copies?

Canadian First Responders from public emergency services such as:

  • municipal fire departments
  • police departments
  • ambulance services
  • RCMP
  • First Nation emergency services, can get free paper copies according to operational needs

These First Responders can get free paper copies according to operational needs, which include:

  • one paper copy of the Guidebook per emergency vehicle or per emergency kit bag (such as for volunteer firefighters who use their personal vehicle)
  • replacement copies as required for broken or damaged copies
  • copies used in class for in-house training purposes, on the condition they are to be retained for reuse in future classes
  • Canadian dispatch centers that pass on technical information about dangerous goods to First Responders can get a small number of free paper copies for use in the dispatch center
  • in remote areas where there are no First Responders available, other Canadian municipal, provincial, territorial or federal authorities acting as public emergency services may get free paper copies according to emergency response operational needs, if they are likely to be the first to arrive on scene of a dangerous goods incident
  • transportation of dangerous goods inspectors, remedial measures specialists and provincial inspectors who respond to dangerous goods accidents can get one free copy each for use during their duties