Interim Recommendations for Addressing Groundwater Contamination with PFOA and PFOS

The United States Environmental Protection Agency (U.S. EPA) recently released interim recommendations for screening levels and preliminary remediation goals to inform the development of final cleanup levels for PFOA and/or PFOS groundwater contamination at sites being evaluated and addressed under federal cleanup programs, including CERCLA and RCRA.

The recommendations are consistent with existing EPA guidance and standard practices, in addition to applicable statutes and regulations. The recommendations may be useful for state, tribal, or other regulatory authorities.

In a news release, U.S. EPA Administrator Andrew Wheeler stated, “The interim recommendations will provide clear and consistent guidance for federal cleanup programs and will help protect drinking water resources in communities across the country. This is a critical tool for our state, tribal, and local partners to use to protect public health and address these chemicals.”

U.S. Federal agencies and states have asked the U.S. EPA to provide guidance on this issue. After reviewing public comments on the agency’s April 2019 draft guidance, the U.S. EPA is finalizing these interim recommendations based on the available data and scientific information on PFAS toxicity. The U.S. EPA acknowledges that the scientific information on these compounds continues to evolve. As part of the PFAS Action Plan, the U.S. EPA is continuing to develop and assess toxicity information, test methods, laboratory methods, analytical methods, exposure models, and treatment methods, among other research efforts to improve the knowledge about this class of chemicals. As new information becomes available on other PFAS chemicals, the agency will consider additional recommendations as the agency advances its knowledge of these other substances.

CCME Publishes Ecological Risk Assessment Guidance Document

The Canadian Council of Ministers of the Environment (CCME) recently posted the latest version of its Ecological Risk Assessment Guidance Document.  The document provides general guidance for site managers and risk assessors to conduct ecological risk assessment for soils, sediments, surface water and groundwater in the context of managing contaminated sites. It expands the Federal Contaminated Sites Action Plan Ecological Risk Assessment Guidance to apply to all jurisdictions and align with CCME’s Framework for Ecological Risk Assessment: General Guidance (1996).

Why conduct an ERA?

Once a site is classified as contaminated, and has contaminant concentrations above existing ecologically based guidelines or levels of potential ecological concern, the site may be remediated to generic standards or an ERA may be used to determine whether and to what extent remediation or other risk management efforts are warranted to mitigate current or future ecological risks. An ERA provides a more detailed basis for determining whether remediation or other risk management measures are warranted (e.g., are there ecological risks?) and to what extent (e.g., which parts of a site should be remediated?).

Using ERA at Contaminated Sites

There are numerous potential drivers for the use of ERA at contaminated sites, such as regulatory triggers (e.g., contamination of an off-site property), due diligence or divestiture. The required ERA process may be driven in part or entirely by provincial or territorial regulations and policy.

About the CCME

The Canadian Council of Ministers of the Environment (CCME) is the primary minister-led intergovernmental forum for collective action on environmental issues of national and international concern.  CCME is composed of the environment ministers from the federal, provincial and territorial governments. The role of President of CCME rotates among the 14 ministers of environment on an annual basis. These 14 ministers normally meet at least once a year to discuss national environmental priorities and determine work to be carried out under the auspices of CCME. The Council seeks to achieve positive environmental results, focusing on issues that are Canada-wide in scope and that require collective attention by a number of governments. Since environment is constitutionally an area of shared jurisdiction, it makes sense to work together to promote effective results.

Thermally enhanced bioremediation for DNAPLs

In the fall of 2019, a group of researchers from CDM Smith, the U.S. Army Core of Engineers, TRS Group, and the U.S. EPA presented a paper on the implementation and performance of thermally-enhanced bioremdiation for targeted dense non-aqueous phase liquid (NDAPL) source treatment at the Northwest Remediation Conference in Tacoma, Washington.
In the paper, they describe a multi-component remedy, including in situ thermal remediation (ISTR) and enhanced anaerobic biodegradation (EAB), was implemented at a Superfund site in Tacoma, Washington. The goal of ISTR and EAB was to reduce mass discharge from the source areas by 90%.
EAB was implemented over a large area of the site containing a thin silt unit with residual chlorinated solvent mass and two localized areas above containing DNAPL (predominantly 1,1,2,2-PCA and TCE). Following implementation, dissolved-phase concentrations increased in the DNAPL areas due to enhanced dissolution. Reductive dechlorination products increased, but at a slower rate than desired.
Thermal enhancement by electrical resistance heating (ERH) was designed to increase the rate of dissolution of the DNAPL and to increase the biodegradation kinetics. The ERH treatment zone was created using an array of electrodes around each DNAPL area, with temperature monitoring in the center of each array.
The ERH system was maintained at a target temperature between 45-50°C throughout most of the 12-month operation. Monitoring data indicated that the smaller DNAPL source was substantially depleted during the first six months of operation, while the larger DNAPL source exhibited declining concentrations after 12 months of operation.
Monitoring indicated only minimal biodegradation occurred at the DNAPL-impacted locations. Rapid reductive dechlorination occurred in areas immediately surrounding the electrode array, where temperatures were slightly lower and more favorable for enhanced biological degradation. Since the implementation of ERH, PCA and TCE concentrations in the DNAPL source wells have declined between 80 and 99%.

U.S. Federal Toxmap Website Closes

TOXMAP® is no longer.  Launched an run by the United States National Library of Medicine (NLM) fifteen years ago, the website closed down in December.

ToxMap was a Geographic Information System (GIS) that usedmaps of the United States and Canada to help users visually explore data primarily from the U.S. EPA’s Toxics Release Inventory (TRI) and Superfund Program, as well as some non-EPA datasets. It combined pollution data  from the U.S. EPA and at least a dozen other U.S. government sources.

ToxMap helped users create nationwide, regional, or local area maps showing where TRI chemicals are released on-site into the air, water, and ground. It also provided facility and release details, color-codes release amounts for a single year or year range, and aggregates release data over multiple years. Maps also showed locations of Superfund National Priorities List (NPL) sites, listing all chemical contaminants present at these sites. Two versions of TOXMAP wereavailable: the classic version of TOXMAP released in 2004, and a newer version of TOXMAP based on Adobe® Flash/Flex technology. The newer version provided an improved map appearance and interactive capabilities and additional datasets such as U.S. EPA coal plant emissions data and U.S. commercial nuclear power plants.

ToxMap began in 2004 as a way of culling data that the U.S. EPA collected on toxic releases and conveying it to the public in more accessible and relevant way. Thanks largely to the 1986 Emergency Planning and Community Right-to-Know Act (EPCRA), the agency had been collecting huge amounts of data on chemicals of concern being released from individual facilities—the Toxic Release Inventory. But until the early 2000s, this vast store of “public” information demanded considerable time and expertise to find and tap, much less to interpret.

The development of ToxMap was part of a broader government push towards data transparency. ToxMap made it much easier to find out about the chemicals a plant in a neighborhood was releasing into the local water or air, or about where the nearest hazardous wastes sites were located.

 

Green Remediation: Spreadsheets for Environmental Footprint Analysis

The United States Environmental Protection Agency (U.S. EPA) recently updated a set of analytical workbooks known as “SEFA” (Spreadsheets for Environmental Footprint Analysis) to help decision-makers analyze the environmental footprint of a site cleanup project, determine which cleanup activities drive the footprint, and adjust project parameters to reduce the footprint. Information to be input by the user may be gathered from project planning documents, field records and other existing resources. Automated calculations within SEFA generate outputs that quantify 21 metrics corresponding to core elements of a greener cleanup.

 

Environmental Footprint Summary

Core Element Green Remediation Metric Unit of Measure
Materials & Waste M&W-1 Refined materials used on site tons
M&W-2 Percent of refined materials from recycled or waste material percent
M&W-3 Unrefined materials used on site tons
M&W-4 Percent of unrefined materials from recycled or waste material percent
M&W-5 Onsite hazardous waste generated tons
M&W-6 Onsite non-hazardous waste generated tons
M&W-7 Percent of total potential onsite waste that is recycled or reused percent
Water Onsite water use (by source)
W-1 – Source, use, fate combination #1 millions of gallons
W-2 – Source, use, fate combination #2 millions of gallons
W-3 – Source, use, fate combination #3 millions of gallons
W-4 – Source, use, fate combination #4 millions of gallons
Energy E-1 Total energy use MMBtu
E-2 Total energy voluntarily derived from renewable resources
E-2A – Onsite generation or use and biodiesel use MMBtu
E-2B – Voluntary purchase of renewable electricity MWh
E-2C – Voluntary purchase of RECs MWh
Air A-1 Onsite NOx, SOx, and PM10 emissions lbs
A-2 Onsite HAP emissions lbs
A-3 Total NOx, SOx, and PM10 emissions lbs
A-4 Total HAP emissions lbs
A-5 Total GHG emissions tons CO2e
Land & Ecosystems

Qualitative description

SEFA was first released in 2012 and updated in 2014. In 2019, SEFA was updated to incorporate new default footprint conversion factors for additional materials, diesel or gasoline engines of various sizes, and laboratory analyses. The 2019 update (Version 3.0) also provides additional areas for entering user-defined footprint conversion factors.

Instructions for SEFA Users

  • SEFA comprises three internally linked workbooks (files) in a standard spreadsheet (Excel) format; the files should be saved in a single directory to assure accurate/complete data exchange.
  • Optimal functioning of the workbooks relies on use of Microsoft Office 2013 or higher.
  • An “Introduction” worksheet (tab) in the “Main” workbook provides an overview of SEFA, including its data structure.
  • Technical support in using SEFA is not available outside the Agency; other parties interested in using or adapting the workbooks may wish to obtain technical assistance from qualified environmental or engineering professionals.

Supporting Methodology

EPA’s “Methodology for Understanding and Reducing a Project’s Environmental Footprint” report provides a seven-step process for quantifying the 21 metrics associated with a site cleanup. The report also addresses the value of footprint analysis; discusses the level of effort and cost involved in footprint analysis; details interpretative considerations; provides illustrative approaches to reducing a cleanup project’s environmental footprint; and contains related planning checklists and reference tables.

Newest Guidance on Implementing Advanced Site Characterization Tools

The United States Interstate Technology and Regulatory Council (ITRC) recently published their newest guidance document, Implementing Advanced Site Characterization Tools.  Advanced site characterization tools (ASCTs) are capable of rapid implementation and data generation and can be used to provide data for a more precise and accurate conceptual site model. Although these tools have been available for several years, they often are not used because users perceive them to be expensive and unavailable, or do not understand how ASCTs work and how to interpret the acquired data.

Over the past two years, a team of environmental experts worked together to create this comprehensive guidance to assist stakeholders with the selection and application of ASCTs, as well as the interpretation of data gathered by ASCTs to evaluate the best cleanup options for a project. The guidance divides ASCTs into four categories: Direct Sensing, Borehole Geophysical, Surface Geophysical, and Remote Sensing.

To support the selection and use of ASCTs, this free guidance includes:

  • An ASCT Selection Tool that provides an interactive dataset to identify appropriate tools for collecting geologic, hydrologic, and chemical data,
  • Summary Tables that provide additional information to evaluate the applicability of each tool,
  • Case Studies that provide examples of the use of tools at a site,
  • Checklists that provide information to be considered when planning to use a tool, describe typical content of a report, and identify appropriate quality control checks, and
  • Training Videos that provide an overview of the ASCT document and examples of the application of select tools.

Access the document by visiting https://asct-1.itrcweb.org/


About the U.S. ITRC

The Interstate Technology and Regulatory Council (ITRC) is a state-led coalition working to reduce barriers to the use of innovative environmental technologies and approaches so that compliance costs are reduced and cleanup efficacy is maximized. ITRC produces documents and training that broaden and deepen technical knowledge and expedite quality regulatory decision making while protecting human health and the environment. With private and public sector members from all 50 states and the District of Columbia, ITRC truly provides a national perspective.

Researchers develop sponge for recovering oil from wastewater

Researchers at the University at Imperial College London and the University of Toronto have developed a cost-effective sponge that can soak up oil relatively fast (less than 10 minutes). The research article, found in the Journal Nature, describes an innovative surface-engineered sponge (SEnS) that synergistically combines surface chemistry, charge and roughness.  The sponge is adept at adsorbing crude oil microdroplets.

The team of chemical engineers led by Pavani Cherukupally sought to find a solution by turning to polyurethane foam, a common material used in everyday household items like mattresses. Although polyurethane foam has good oil absorption properties, it only works well under certain conditions of acidity, which can strengthen or weaken the affinity between oil droplets and the sponge.

“It’s all about strategically selecting the characteristics of the pores and their surfaces. Commercial sponges already have tiny pores to capture tiny droplets. Polyurethane sponges are made from petrochemicals, so they have already had chemical groups which make them good at capturing droplets,” said Cherukupally.  “The problem was that we had fewer chemical groups than what was needed to capture all the droplets.”

The researchers developed a coating that alters the foam’s texture, chemistry, and charge, thus making it more suitable for a broad range of situations. When viewed under a microscope, the coating contains hair-like particles of nanocrystalline silicon that act like fishing rods for the oil droplets.

“The critical surface energy concept comes from the world of biofouling research—trying to prevent microorganisms and creatures like barnacles from attaching to surfaces like ship hulls,” Dr. Cherukupally said in a statement.  “Normally, you want to keep critical surface energy in a certain range to prevent attachment, but in our case, we manipulated it to get droplets to cling on tight.”

The sponge can remove microdroplets of crude oil in less than 10 minutes.  An earlier version of the sponge the the research team developed was able to remove over 95% of the oil in the tested samples, but it took three hours to achieve to same level of removal.

When tested under four different scenarios of acidity, the coated foam soaked up between 95% and 99% of the oil in approximately 10 minutes.  One of the great aspects of the sponge is that it can be reused after being washed with a solvent to remove the oil.  The oil can be recycled.

University of Saskatchewan Professor provides insight on oil spill remediation

A December 9th train derailment near the near Guernsey, Saskatchewan resulted in a spill of an estimated 1.5 million litres of crude oil.  According to Canadian Pacific Railway, it will take a number of weeks to clean up the spill.  The  Canadian Transportation Safety Board stated that 33 oil tank cars and one hopper car derailed.  Guernsey is approximately 115 kilometres southeast of Saskatoon.

In an interview with Global News, soil science professor Steven Siciliano noted details about how fast oil was spilling out of tank cars could make a difference.  “If it’s slowly seeping, what happens is you can kind of imagine a sort of pancakes, so then it doesn’t go as deep. Whereas if it’s rapidly spilling, it can actually get deeper into the soil. And the deeper in the soil it gets, the harder and harder it can get to remediate,” said the professor in the interview.  He added the Prairies have glacial till soil, which means it is made up of large clay layers which make it hard for water and air to go through them and making clearing oil very difficult.

Prof. Steve Siciliano, U of  Saskatchewan

Professor Siciliano is the NSERC/FCL Industrial Research Chair in In Situ Remediation and Risk Assessment Director, CREATE Human and Ecological Risk Assessment Program at the University of Saskatchewan.  Current and recent research projects undertaken by Professor Siciliano include modelling and assessing the transfer of pollutants from soil to children, development of new soil toxicity test methods and approaches for Antarctic and the Arctic, and assessment of cardiovascular effects of metals and polycyclic aromatic hydrocarbons.

Siciliano added many regions don’t have soil that freezes, which means techniques used in other areas won’t be as successful at the derailment site. He said many technologies have been developed in places like Oklahoma, California and southern Ontario, but the soil in Western Canada is much different from those places.

In a 2017 article in the Conversation, Professor Siciliano provided insight into various methods for managing oil spills including in-situ remediation.  In the article he provides estimates for “dig-and-dump” versus in-situ remediation.  He estimated dig-and-dump costing $150 per cubic yard of soil or more ($300 per cubic yard) in remote areas whereas the pricetag for in situ remediation can be as little as $20 to $80 per cubic yard.

 

 

 

Fukushima: Lessons learned from soil decontamination after nuclear accident

Following the accident at the Fukushima nuclear power plant in March 2011, the Japanese authorities carried out major decontamination works in the affected area, which covered more than 9,000 square kilometres ( 3,470 square miles). On Dec. 12, 2019, with most of this work having been completed, researchers provided an overview of the decontamination strategies used and their effectiveness in the Scientific Journal Soil.

Of primary concern after the Fukushima nuclear incident was the release of radioactive cesium in the environment because this radioisotope was emitted in large quantities during the accident,  it has a half-life of 30 years, and it constitutes the highest risk to the local population in the medium and long term.

This analysis in the journal provides new scientific lessons on decontamination strategies and techniques implemented in the municipalities affected by the radioactive fallout from the Fukushima accident. This synthesis indicates that removing the surface layer of the soil to a thickness of 5 cm, the main method used by the Japanese authorities to clean up cultivated land, has reduced cesium concentrations by about 80% in treated areas.

The removal of the uppermost part of the topsoil, which has proved effective in treating cultivated land, has cost the Japanese state about $35 billion (Cdn.).  This technique generates a significant amount of waste, which is difficult to treat, to transport and to store for several decades in the vicinity of the power plant, a step that is necessary before it is shipped to final disposal sites located outside Fukushima district by 2050. By early 2019, Fukushima’s decontamination efforts had generated about 20 million cubic metres of waste.

Decontamination activities have mainly targeted agricultural landscapes and residential areas. The review points out that the forests have not been cleaned up -because of the difficulty and very high costs that these operations would represent – as they cover 75% of the surface area located within the radioactive fallout zone.

 

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

Written by Peter Brady and Claire Seaborn, McCarthy Tétrault

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

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

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

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

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

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

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

Ontario Ministry of the Environment issues a remediation order in 2011

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

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

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

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

Weyerhaeuser and Resolute successful in courts below

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

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

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

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

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

The majority’s key findings include:

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

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

Parallels to the recent decisions in Orphan Wells and HBBC

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

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

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

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

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

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

What comes next

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

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

We can help

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


About the Authors

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

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