Forecast for U.S. Federal and International Chemical Regulatory Policy 2020

Bergeson & Campbell, P.C. (B&C®) and its consulting affiliate, The Acta Group (Acta®), recently released their Forecast for U.S. Federal and International Chemical Regulatory Policy 2020. In this detailed and comprehensive document, the legal, scientific, and regulatory professionals of B&C and Acta distill key trends in U.S. and global chemical law and policy, and provide our best informed judgment as to the shape of key developments we are likely to see in the New Year.

The forecast was prepared by the global team of professionals from the two firms. The core business of the firms are the law, science, regulation, and policy of chemicals of all varieties — industrial, agricultural, intermediate, specialty, and biocidal, whether manufactured at the bulk or nano scale, or using conventional or innovative technologies, including biotechnology, synthetic biology, or biobased.

The team that put together the forecast was comprised of scientists (seven Ph.D.s), including toxicologists, chemists, exposure experts, and geneticists; regulatory and policy experts; and lawyers is deeply versed in chemical law, science, and policy and our unique business platform seamlessly leverages and ensures the integration of law and science to achieve success at every level, and in all parts of the globe.

The table of contents for the forecast can be found below.

TABLE OF CONTENTS

I. UNITED STATES: CHEMICAL FORECAST

  1. INTRODUCTION
  2. TSCA
  3. FIFRA
  4. U.S. NANOTECHNOLOGY
  5. BIOTECHNOLOGY
  6. BRAG
  7. HAZARDOUS MATERIALS TRANSPORTATION
  8. TRADE
  9. PROP 65
  10. INGREDIENT DISCLOSURE
  11. FDA FOOD AND COSMETICS REGULATION
  12. OSHA, WHMIS, AND GHS

II. KEY GLOBAL CHEMICAL MANAGEMENT PREDICTIONS

  1. OECD
  2. SAICM
  3. EU
  4. UK/BREXIT
  5. BIOCIDES
  6. ASIA
  7. MIDDLE EAST
  8. UN GHS

APPENDIX A: B&C SPEECHES AND WRITINGS

APPENDIX B: B&C WEBINARS AND PODCASTS AVAILABLE ON DEMAND

APPENDIX C: GLOSSARY

 

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.

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.

Ontario to promulgate Excess Soil Regulations

After much speculation and delay, the Province of Ontario finally announced that the On-site and Excess Soil Regulation will take effect on July 1, 2020.  In a speech at the Excess Soil Symposium in Ajax, Ontario, the Environmental Minister, Jeff Yurek announced that the government is moving ahead with making changes to and finalizing the regulations under the Environmental Protection Act.

“As Ontario’s population continues to grow, we need to ensure our valuable resources and prime land don’t go to waste,” said Minister Yurek. “These changes will remove barriers for communities, developers and property owners to clean up and redevelop vacant, contaminated lands and put them back into productive use. This will benefit the local economy and create jobs, and keep good, reusable soil out of our landfills.”

Under the new regulations, Ontario is clarifying rules on the management and transport of excess soil to help optimize the resources we have and reduce costs in development, which will benefit communities. Clear rules and new tools to work with municipalities and other law enforcement agencies will also strengthen enforcement of illegal dumping of excess soil. These regulatory changes will provide greater assurance that soil of the right quality is being reused locally, reduce greenhouse gas impacts from truck transportation, and prevent reusable soil from ending up in landfills.

Ontario’s government is moving forward with its commitment to make it safer and easier to use local excess soil and put vacant, prime lands back into good use

“The Ontario Home Builders’ Association is supportive of clarifying rules regarding the reuse and management of excess soils generated from construction sites,” said Joe Voccaro, CEO, Ontario Home Builders’ Association. “This will create business certainty, while ensuring the tracking and quality of soil being deposited and increasing opportunities for reuse on other sites. Furthermore, exempting historic road salting that was preventing developers from obtaining an RSC is a very positive amendment supporting new housing supply.”

Ontario is also reducing barriers to clean up brownfields, which are properties where past industrial or commercial activities may have left contamination, so underused land in prime locations can be cleaned up and put back to productive use, benefitting the neighbourhood and businesses. This will also provide developers with more certainty and opportunity to redevelop brownfield properties, while still maintaining human health and environmental protection.

Quick Facts

  • An estimated 25 million cubic metres of excess construction soil is generated each year.
  • The management of excess soil, including trucking and disposal fees, can account for a significant part of the costs in large development projects, accounting for an estimated 14 per cent of overall construction costs.
  • Soils travel long distances to either a landfill or reuse site. On average, a load of excess soil travels 65 km or more.
  • Greater local reuse of excess soils can save between five to 10 per cent of overall project costs.

 

Urgent Canadian Action is needed on PFAS — the Forever Chemicals

Written by Bev Thorpe and Fe de Leon for the Canadian Environmental Law Association

The class of chemicals called PFAS (Per- and Polyfluoroalkyl Substances) are often referred to as ‘the forever chemicals’ because they are highly persistent in the environment and will take hundreds if not thousands of years to disappear from the soil and groundwater where they accumulate.  The Netflix film, The Devil We Know, and the newly released film, Dark Waters, have brought these chemicals to popular awareness.  As we now know, two substances in this chemical class – PFOS and PFOS – are the focus of multi-million dollar lawsuits due to the cover up of data demonstrating health impacts such as increased cholesterol, kidney cancer, testicular cancer, low birth rates, thyroid disease, and weakened immunity.  Over 99% of all Canadians tested by Health Canada’s biomonitoring surveys, have PFOA and PFOS in their blood and other organs including communities in the far north.  Producers of PFOS and PFOA voluntarily stopped production in 2002 resulting in a slight decrease of these two PFAS in sampled populations, but other PFAS are now turning up in Canadians. Yet the Canadian regulatory response to this crisis is lacking urgency and transparent communication with impacted communities.

PFAS is widely present because  for over sixty years these chemicals have been used as stain, oil and water repellant chemicals in  clothing, carpets, grease-proof paper, ski wax, cookware and cosmetics and also widely used in firefighting foam and other industrial applications.  Their widespread use raises the question why it took so long to highlight the risk to human health and wildlife and why regulatory response has been so slow.  This is partly because scientists lacked the analytical capability to measure these chemicals in the environment until recently.  At the same time, PFAS, as with thousands of chemicals were historically allowed on the market with no toxicological screening requirements.  Even today, most new  PFAS, which industry is now switching to as replacements for PFOA and PFOS, lack full toxicological data yet they remain unregulated and on the market.

In Canada most uses for PFOS were prohibited in 2016 aside from exemptions for specific uses.  In 2012, the federal government concluded that PFOA was an ecological concern. But Health Canada maintains that PFOS and PFOA are not a concern for human health at current levels of exposure.  Most recently in June 2019 Transport Canada allowed airports to use PFAS-free firefighting foam, which shows a more precautionary approach as it targets the whole class of PFAS, but this is only a start.  There are over 5,000 PFAS in use and they are just as persistent in the environment as PFOS and PFOA, with many known to be highly mobile in rivers, lakes and groundwater.  None of these are restricted in Canada.

For Canadian adults, our main exposure to PFAS is via household dust, ingestion of food and air – in fact studies of air in Vancouver homes found levels of PFAS were twenty times higher than air outside the homes due to PFAS inside the homes.  Children, infants and toddlers are most at risk from PFAS exposure due to hand-to-mouth contact with PFAS treated products.  In addition, Canadian research has demonstrated PFAS in the leachate and air of landfill sites, due to the amount of PFAS in the clothing, carpets and consumer goods that have been discarded into landfills over the years and which are now leaching these chemicals into the environment.  PFAS are found in the air and effluent from wastewater treatment sites as well as in the sewage sludge which can be spread on land.

If this situation seems worrying, it is.  We lack full transparency of where contamination sites are in Canada and full accountability for who is responsible for the cleanup. Remediation is expensive and technically challenging which may partly explain such inaction.  The region downstream of Hamilton airport has still not been cleaned up eight years after high levels of PFAS contamination were discovered.  The extent of contamination in Canada is difficult to know, unlike the disclosure afforded to US citizens by many US state regulatory bodies.  The use of PFAS in firefighting foam at military bases, airports and refineries is increasingly acknowledged to be a common source of  water contamination but public information is absent on site specific monitoring data or even if groundwater wells are being monitored.  In December 2018 Health Canada released Canadian Drinking Water Guidelines for PFOS and PFOA which are substantially weaker than US based guidelines and to date British Columbia is the only Canadian province to establish provincial drinking water regulations.

We urgently need to see federal and provincial governments take action to phase out the entire class of PFAS in consumer and industrial use; strengthen Canadian drinking water standards to be more protective of children’s health and radically increase public right to know about the presence of PFAS in consumer products, local drinking water, and discharges into our communities. Tackling these forever chemicals requires an informed and coordinated public response which has sadly been lacking to date.

This article has been republished with the permission of the authors.  It was first published on the CELA website.


About the Authors

Bev Thorpe is an environmental consultant and principle author of CELA’s reports on PFAS.  Bev works with advocacy networks, companies and governments to advance an economy without the harm of hazardous chemicals.  She is a long time member of the Coming Clean network in the USA and she works with European and Asian networks.

Fe de Leon is a researcher with the Canadian Environmental Law Association (CELA) and has worked extensively on toxic substances particularly in the Great Lakes Basin, on the federal chemicals management plan and on international efforts to address persistent toxic substances through the Stockholm Convention on Persistent Organic Pollutants, the Great Lakes Quality Agreement, and a global treaty to address mercury.

Environmental Liability Policies: The Extent Of Coverage

Written by Robert Emblem, Partner and Gabrielle Dumas-Aubin, Senior Associate, Clyde & Co

The authors wish to thank Raphaëlle Dussault for her contribution to the article

Soil contamination can expose landowners and businesses to significant liability. But Clyde & Co recently secured a Quebec ruling that demonstrates they should not assume that environmental liability insurance policies offer blanket protections against environmental risks. Indeed, there are significant differences between the types of coverage that they can offer.

In its judgment, in Paquet & Fils Ltée the Quebec Superior Court ruled on the applicability of an environmental cleanup and liability insurance policy for storage tanks. The defendants, a pool of insurers, issued the policy to the plaintiff, Paquet & Fils Ltée, a distributor of petroleum products, for its gas station located in Saint-Damien-de-Buckland, Quebec.

This lawsuit came about following the plaintiff’s discovery of contaminated soils at its gas station. The plaintiff had not conducted environmental testing when it acquired the site, nor when it dismantled the gas station.

It presented a claim to the Encon Group Inc. (which was acting as an insurance manager for the defendants) under the policy for the cost of decontamination. Encon denied coverage on the grounds that the plaintiff did not prove that the source of contamination originated from a storage tank leak during the period of insurance, as required under the policy.

The plaintiff sued the defendants contesting the denial of coverage, claiming that by taking such a position, the defendants never assumed any risk under the policy. It also argued that the defendants have been acting in bad faith when they initially issued the policy and following the receipt of its notice of claim. In particular, the plaintiff asserted that before issuing the policy, the defendants should have investigated the risk further instead of relying on the plaintiff’s statements. The plaintiff also argued that the defendants failed to advise it of the importance of identifying the source and age of the contamination. Finally, had it not been for the defendants’ late denial, the plaintiff claimed, it could have resumed its commercial activities at the site without having to decontaminate it.

Clyde & Co lawyers responded for the defendants that they were justified in denying coverage since the plaintiff failed to demonstrate, on a balance of probabilities, the existence of a “release,” within the meaning of the policy, during the period of insurance.

Initial comments

The court began by reviewing general interpretation principles for insurance policies. It explained that it was up to the insured first to establish that the claimed damage or loss falls within the initial grant of coverage. Following that, the insurer could prove that an exclusion applied. The court also noted that when the policy is unambiguous, it should give effect to clear language, reading the contract as a whole.

The court added that the insured could meet its onus by any means, including a presumption of fact, provided that it is serious, precise and concordant. That said, it notes that a presumption of fact cannot be deduced from a pure hypothesis, vague suspicions or mere conjecture. The court concluded that no presumption of fact was of assistance to the plaintiff in this case.

Policy triggers

The court explained that for coverage to be triggered under the policy, the plaintiff must prove, among other things, (1) the source of the contamination (i.e. a “release” originating from a “storage tank system”) and (2) the age of the contamination (i.e. started on or after the “retroactive date” specified in the policy).

It emphasized that the policy only covers a “release” originating from a “storage tank system” as opposed to one that occurs in the context of the plaintiff’s operations. Reviewing expert opinions and testimony, it indicated that it could not reasonably infer that a “release” had occurred. Even the plaintiff’s expert could not exclude that the plaintiff’s operations might have been the source of the contamination.

The court noted that no one had noticed or recorded a leak or any irregularity, which might suggest that a leak originated from a storage tank during the coverage period (on or after the “retroactive date”). In particular, it stressed that none of the experts could determine when precisely the contamination happened or how recently.

The court concluded that, in the absence of serious, precise and concordant facts proving that a release started during the period of coverage, the plaintiff could not demand that the defendants pay for the decontamination.

Illusory coverage and the insurers’ failure to investigate

The court also rejected the argument that the defendants never actually covered any risk. If, during the policy period, the plaintiff had observed a leak originating from its “storage tank system,” had conducted a proper investigation as required by the policy, and notified the defendants, there is no reason why coverage would have been denied.

The court also found that the defendants had no obligation to collect additional information to assess the risk at the time of the application for insurance. It made a distinction between the present matter and the case where the defendants would seek to cancel the policy for misrepresentation or non-disclosure of the material facts that affected their acceptance of the risk or setting the premium.

As for the allegations of bad faith, the court noted that the claims adjuster advised the plaintiff early on that, in the absence of an investigation establishing a “release,” coverage could be denied. The claims adjuster had also asked for additional information related to the source and age of the contamination. What’s more, the court concluded that the plaintiff did not demonstrate the seriousness of its alleged intention to resume its commercial activities. As a result, the defendants did not act in bad faith.

Takeaway

Ultimately, it is the insured’s responsibility to conduct environmental testing, in particular when acquiring a property, applying for an insurance policy or before dismantling facilities. These tests could be crucial to determine whether and to what extent coverage is available under an environmental liability policy. The plaintiff has not appealed the judgment.

This article has been republished with the permission of the authors.  It it was originally published on the Clyde & Co website.


About the Authors

Robert Emblem, Partner

Having worked on secondment with a leading Lloyd’s syndicate in the mid-1990s, Bob has also developed a large insurance coverage and defense practice. He represents insurers, reinsurers and insureds in the areas of commercial general liability, professional liability, media/technology liability, directors’ and officers’ liability, fidelity, contingency and property insurance. In addition to providing coverage and regulatory advice to insurers and reinsurers, he regularly performs policy wording reviews and claims audits.

Bob is a member of both the Ontario and Quebec bars, has wide-ranging experience in both the Common Law and civil law systems, and is fluently bilingual in English and French. Bob regularly appears before all levels of the Quebec courts as well as arbitration and mediation panels throughout North America.

Bob is one of the leading experts in Canada in the area of course of construction insurance and co-authored Commercial General Liability Insurance published by Butterworths. He speaks regularly at conferences and delivers papers for the Barreau du Québec, the Canadian Institute, the Canadian Bar Association, Insight, Canadian Defence Lawyers, the Insurance Bureau of Canada and other organizations.

Gabrielle Dumas-Aubin, Senior Associate

Gabrielle joined Clyde & Co in 2016, where she provides advices on managing and monitoring claims and insurance coverage for Canadian and foreign insurers. Gabrielle analyzes complex claims and draws up legal opinions on professional liability and general liability risks.

She graduated from the University of Ottawa with the honorary mention summa cum laude. During her studies, Gabrielle received numerous scholarships and was a research assistant for various professors. She completed her studies with a master’s degree in law at Oxford University in 2014.  Gabrielle is a member of the Young Bar Association of Montreal and of the Bar of Quebec in 2013.

Hazardous Waste & Environmental Response Conference – November 25th & 26th

The Hazardous Waste & Environmental Response Conference is scheduled for November 25th & 26th at the Mississauga Convention Centre in Mississauga, Ontario.  The event is co-hosted by the Ontario Waste Management Association and Hazmat Management Magazine.

This 2-day conference provides an essential and timely forum to discuss the management of hazardous waste and special materials, soils and site remediation, hazmat transportation, spill response and cutting-edge technologies and practices. Valuable information will be provided by leading industry, legal, financial and government speakers to individuals and organizations that are engaged in the wide range of services and activities involving hazardous and special materials.

Attendees can expect an informative and inspiring learning and networking experience throughout this unique 2-day event. Session themes provide an essential and timely forum to discuss the management of hazardous waste and special materials, soils and site remediation, hazmat transportation, spill response and cutting-edge technologies and practices.

As the only event of its kind in Canada, delegates will receive valuable information from leading industry, legal, financial and government speakers who are actively engaged in a wide range of services and activities involving hazardous waste and special materials.

Company owners, business managers, plant managers, environmental professionals, consultants, lawyers, government officials and municipalities – all will benefit from the opportunity to learn, share experiences and network with peers.

CONFERENCE SCHEDULE

MONDAY, NOVEMBER 25 – GENERAL SESSIONS

8:00 am – Registration

8:45 am – Opening and Welcome Address

9:00 am – 9:40 am

OPENING KEYNOTE – Lessons Learned from Hazmat Incidents

Jean Claude Morin, Directeur General, GFL Environmental Inc.

Dave Hill, National Director Emergency Response, GFL Environmental Inc.

Jean Claude and Dave will discuss lessons learned from hazmat incidents in Canada, including, train derailments, truck turn-overs, and hazardous materials storage depot explosions. This presentation will also provide an overview of some of the more serious incidents in Canada and discuss the valuable lessons learned regarding best practices in hazmat response.

9:40 am – 10:10 am

Legal Reporting Requirements

Paul Manning, LL.B., LL.M, Certified Specialist in Environmental Law and Principal, Manning Environmental Law

Paul will provide an overview of the Canadian federal and Ontario legislation as it relates to the reporting requirements in the event of a hazmat incident and/or spill. Included in the discussion will be an examination of the case law related to hazmat incidents and failure to report.

10:10 am – 10:45 am – Refreshment Break             

10:45 am – 11:15 am

Hazmat and Spill Response Actions and the Utilization of Countermeasures

Kyle Gravelle, National Technical Advisor, QM Environmental

Kyle will be speaking on hazmat and spill response actions and countermeasures to prevent contamination. Included in the presentation will be real-world examples of incidents in Canada and advice on preparations and hazmat management.

11:15 am – 12:00 pm

PANEL DISCUSSION: Utilization of New Technologies for HazMat Emergency Response

Moderator:  Rob Cook, CEO, OWMA

James Castle, CEO & Founder, Terranova Aerospace

Bob Goodfellow, Manager, Strategic Accounts & Emergency Response, Drain-All Ltd.

Ross Barrett, Business Development/Project Manager, Tomlinson Environmental Services Ltd.

The hazmat and environmental response sector is quickly evolving. During this discussion, panelists will share their experiences on new technologies and methodologies for the management of hazmat and environmental incidents and provide advice on what companies should do to be better prepared for hazmat incidents.

12:00 pm – 1:30 pm – Luncheon Speaker

From Hacking to Hurricanes and Beyond – The New Era of Crisis Communications

Suzanne bernier, CEM, CBCP, MBCI, CMCP, President, SB Crisis Consulting, Founder & Author of Disaster Heroes

During any crisis, communicating effectively to all key stakeholders is key. This session, delivered by a former journalist and now award-winning global crisis communications consultant, will look at the evolution of crisis management and crisis communications over the past 15 years. Specific case studies and lessons learned from events like the recent terror and mass attacks across North America, as well the 2017 hurricane season will be shared, including Texas, Florida and Puerto Rico communications challenges and successes. The session will also review traditional tips and tools required to ensure your organization can communicate effectively during any crisis, while avoiding any reputational damage or additional fall-out that could arise.

1:35 pm – 2:15 pm

Fire Risk in Hazmat and Hazardous Waste Facilities – The Impact and Organizational Costs 

Ryan Fogelman, Vice President of Strategic Partnerships, Fire Rover

Fire safety is an important responsibility for everyone in the hazardous materials & waste sector. The consequences of poor fire safety practices and not understanding the risk are especially serious in properties where processes or quantities of stored hazmat and waste materials would pose a serious ignition hazard.

In an effort to prevent fires and minimize the damage from fires when they occur, owners, managers and operators of hazmat and related facilities will learn about fire safety and how to develop plans to reduce the risk of fire hazards.

Learn about:

  • Data and statistics on waste facility fire incidents
  • Materials and processes that create a fire risk
  • Planning and procedures to reduce fire risk
  • Tools and practices to detect, supress and mitigate fire damage.

2:15 pm – 2:45 pm

Implementation of Land Disposal Restrictions (LDR) in Ontario – Treatment Requirements & Associated Costs

Erica Carabott, Senior Environmental Compliance Manager, Clean Harbours Inc.

The field of hazardous waste management in Ontario is complex and places an onus on all parties involved, including, generators, carriers, transfer and disposal facility operators. Initiatives such as pre-notification, mixing restrictions, land disposal restrictions, recycling restrictions and the requirements of the Hazardous Waste Information Network (HWIN) all add to the cumbersome task. The Landfill Disposal Restrictions (LDR) place responsibilities on generators and service providers alike. This presentation aims to navigate the implementation of LDR in Ontario, with specific emphasis on the Clean Harbors Sarnia facility to accommodate LDR treatment and the significant costs associated with it.

2:45 pm – 3:15 pm – Refreshment Break

3:15 pm – 4:00 pm

New Requirements on the Shipment of Hazardous Goods – Provincial, Federal and International   

Eva Clipsham, A/Safety Policy Advisor for Transport Canada

Steven Carrasco, Director, Program Management Branch, Ontario Ministry of the Environment, Conservation and Parks (MOECP)

Current federal and provincial frameworks for regulating the movement of hazardous waste and materials are currently undergoing change. Manifesting systems are being upgraded and refocused as electronic systems that will provide efficiencies to both generators and transporters. Learn about the current federal and provincial systems and the changes that are anticipated to be implemented in the near future.

4:00 pm – 5:00 pm – All attendees are invited to attend the Tradeshow Reception!

TUESDAY, NOVEMBER 26

8:30 am – Registration

8:45 am – Opening & Welcome Address

9:00 am – 9:45 am

Management of contaminated sites & increasing complexity and cost

Carl Spensieri, M.Sc., P.Eng., Vice President Environment, Berkley Canada (a Berkley Company)

This presentation will explore the various elements contributing to the increasing complexity and cost of managing contaminated sites. Carl will examine emerging risks and speak to potential strategies we can use to mitigate them. This presentation will also highlight opportunities for conference participants to offer new services that help owners of contaminated sites best respond to existing and emerging challenges.

9:45 am – 10:10 am – Refreshment Break

TRACK 1: HAZARDOUS WASTE GENERATION, TRANSPORTATION, TREATMENT AND DISPOSAL

10:15 am – 10:55 am

A National Perspective on the Hazardous Waste

Michael Parker, Vice President, Environmental Compliance, Clean Harbours Inc.

Hear about the challenges and opportunities facing the hazardous waste, hazmat and emergency response sector from an industry leader with a national view. The industry is evolving and the business fundamentals are ever changing. Government administrative and technical burdens are increasing and the volume of hazardous waste is declining – what will the future hold?

11:00 am – 11:40 am

PANEL DISCUSSION: Hazardous Waste & Special Materials – Transportation & Transit Challenges

Jim Halloran, Regional Manager, Heritage – Crystal Clean Inc.

Doug DeCoppel, EH&S Manager, International Permitting and Regulatory Affairs, GFL Environmental Inc.

Frank Wagner, Vice President Compliance, Safety-Kleen Canada Inc.

This panel will discuss key transportation issues and compliance challenges faced by hazardous waste generators and service providers, including significant changes to the documentation, labelling, packaging, emergency planning, and reporting requirements for hazardous waste and special materials shipments resulting from updated regulations and proposed initiatives. The panel will also review key considerations when selecting service providers to manage hazardous waste and special materials.

Topics included in this discussion: E-manifests (provincial and federal – lack of e-data transfer capabilities), HWIN fees (300% increase in fees but no increase in service), Transboundary Permits (lack of e-data transfer capabilities), container integrity and generator awareness.

11:45 am – 12:25 pm

Factors Influencing Treatment and Disposal Options for Hazardous Waste in Ontario

Ed Vago, Director of Operations, Covanta Environmental Solutions

Dan Boehm, Director of Business Development, Veolia ES Canada Industrial Services Inc.

Learn about the many recycling, treatment and disposal options for hazardous waste and hazardous materials in Ontario. Hear about the regulatory and operational factors to consider when deciding on the best management approach.

TRACK 2: SITE REMEDIATION

10:15 am – 10:55 am

Soils – Dig and Dump vs. On-Site Remediation: Factors to Consider & Case Studies

Devin Rosnak, Senior Client Manager & Technical Sales Manager, Ground Force Environmental

D. Grant Walsom, Partner, XCG Consulting Limited, Environmental Engineers & Scientists

Mark Tigchelaar, P. Eng., President and Founder of GeoSolv Inc.

Developers of brownfield site are faced with decisions around how to manage excavated soils. Impacted soils and soils with hazardous characteristics as tested at the site of generation can be managed through on-site remediation, or can be removed from the site to a variety of remediation and/or disposal options. Learn about the key options and factors that contribute to determining the optimum approach to managing soils.

11:00 am – 11:40 am

The Legal Framework for the Management of Contaminated Sites and Materials      

John Tidball, Partner, Specialist in Environmental Law, Miller Thomson LLP

The management of contaminated sites and related materials, including soils, are constrained by both regulatory and legal framework. Hear from a legal expert with unparalleled experience about the regulatory and legal issues that all developers/excavators transporters and service providers should be aware of as the legal liabilities in this area can be significant.

11:45 am – 12:25 pm

Anaerobic Bioremediation & Bioaugmentation – from the Lab to the Field

Dr. Elizabeth Edwards (Professor), Dr.Luz Puentes Jacome, Dr. Olivia Molenda, Dr. Courtney Toth, Dr. Ivy Yang (all Post doctoral fellows in the lab), Chemical Engineering & Applied Chemistry, University of Toronto

Together with her Post-Doctoral team, Dr. Edwards will present an overview of anaerobic bioremediation and bioaugmentation with some examples from their research and its application to the field.

12:30 pm – 2:00 pm

CLOSING KEYNOTE & LUNCHEON SPEAKER

Andrea Khanjin, MPP Barrie-Innisfil, Parliamentary Assistant, Ministry of the Environment, Conservation and Parks (MOECP)


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Ontario aerosol manufacturer fined for violating Environmental Emergency Regulations

Written by Paul ManningManning Environmental Law

As of August 24, 2019, the Environmental Emergency Regulations, 2019 replaced the existing Environmental Emergency Regulations, which require industry to take steps to prevent, prepare for, respond to, and recover from the accidental release of harmful chemicals.

The Regulations require that any person who owns, has the charge of, manages, or controls a regulated substance at or above certain quantities to notify Environment and Climate Change Canada. For higher-risk facilities, an environmental emergency plan must be prepared, brought into effect, and exercised.

On November 12, 2019, K-G Spray-Pak Inc. of Concord, Ontario pleaded guilty in the Ontario Court of Justice to two offences under the Canadian Environmental Protection Act, 1999, including one count of violating the Environmental Emergency Regulations and one count of failing to comply with an environmental protection compliance order. The company was ordered to pay a fine of $170,000.

In February 2017, Environment and Climate Change Canada’s enforcement officers launched an investigation, which revealed that K-G Spray-Pak Inc., a manufacturer, marketer, and distributor of aerosol products, had failed to comply with an environmental protection compliance order issued in July 2016.

Environmental protection compliance orders are issued by Environment and Climate Change Canada’s enforcement officers to put an immediate stop to a violation of the Canadian Environmental Protection Act, 1999, to prevent a violation from occurring, or to require action be taken to address a violation.

The company was subsequently charged when it failed to implement and test environmental emergency plans within the prescribed time limit specified in the compliance order.

https://www.canada.ca/en/environment-climate-change/news/2019/11/ontario-aerosol-manufacturer-fined-for-violating-the-canadian-environmental-protection-act1999.html

This article has been republished with the permission of the author. It was first published here .

This article is provided only as a general guide and is not legal advice. If you do have any issue that requires legal advice please contact Manning Environmental Law.


About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Ontario. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal.
Paul advises clients on a wide range of environmental law issues and represents them as counsel before tribunals and the courts. His practice focuses on environmental, energy, planning and Aboriginal law.

 

 

What Will Be driving Growth of Waste Management & Remediation Services Market Near Future

Garner Insights, a market intelligence and consulting firm, recently published a research report on the global waste management and remediation services market. The report 99-page report covers a market Overview, future economic impact, competition by manufacturers, along with supply (production), & consumption analysis.

The report states that waste management companies are using technologies such as Internet of Things (IoT) for better management of waste and recycling. IoT provides solutions such as route optimization and operational analytics to reducing costs.

The leading waste management companies covered in the report include Waste Management, Republic Services, Clean Harbors, Stericycle, and Progessive Waste Solutions.

The product segment analysis is broken down in the report as Waste Collection, Waste Treatment And Disposal, Remediation, Material Recovery.

The report covers the United States, EU, Japan, China, India, Southeast Asia markets and provides information on each geographic market including sales, revenue, and market share and growth rate.

Canadian Consulting Firm acquired by UK Giant

Novus Environmental, a 25-person specialized consulting firm with offices in Guelph ON and Calgary AB, was recently acquired by SLR, an UK-headquartered global environmental and advisory firm.

Novus will bring additional capability to SLR’s North American business in air quality, noise and vibration, and wind and climate. The Novus team will join SLR’s Canada business, which will now be 280 strong with 18 offices.

SLR began as SECOR Ltd. in 1994. Starting as a UK business, the company now operates as a global company with more than 1,100 people delivering client solutions across five regions. SLR offers a wide range of advisory and environmental consulting services.

This is SLR’s third acquisition in four months, reflecting the confidence of the company and its new investor Charterhouse Capital Partners in the market, according to Neil Penhall, SLR’s chief executive.