HazMat Management Spring 2009 by Annex Business Media

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HazMat

Solutions for the Business of the Environment

SPRING 2009 www.hazmatmag.com

Spill Cleanup EU Chemical Registration Transboundary Shipments

Disaster Planning Recommendations of the Senate Committee on National Security and Defence

Tennessee Valley Authority Toxic Sludge Spill – page 34

An EcoLog Group Publication / CPMP no. 40069240

BROWNFIELDS MARKETPLACE – pages 17-32

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contents

vol 21 no 2 spring 2009

on the cover DISASTER PLANNING

Canada’s Senate surveyed emergency responders across the country to see if we’re prepared for “the big one” when it hits. The findings are disturbing. by Guy Crittenden

features 16

CHEMICAL SAFETY

New EU chemical registration rules. by Sven Hombach

SPILL CLEANUP

The giant Tennessee Valley Authority spill. by Dec Doran

departments HAZMAT TRANSPORTATION

Remote asset management for shipping. by Homaira Akbari

HAZMAT UPDATE Land disposal restrictions. by John Hosty

BROWNFIELDS

Editorial

Up Front and Masthead

Environment Business

Event Report

HazMat Products

News

Ad Index

Legal Perspective

MARKETPLACE

(PAGES 17-32) EDITORIAL Brownfield issues. by Dianne Saxe

REMEDIATION TECHNOLOGY NextGen techniques. by Paul Brander

LIABILITY Municipal liability for contaminated roadways. by Marc McAree

BIOREMEDIATION Bioremediation as a sustainable solution. by Kevin Sharfe

STAKEHOLDER MANAGEMENT: Calgary brownfield agreements.

by Scott Eagleson

next edition (summer 2009) Editorial Focus: Environmental Products & Services Supplement: Brownfields Marketplace Bonus Distribtion: World Conference on Disaster Management, Toronto • Clean Technologies • PPE • Confined Space Entry • Analytical Testing • Industrial Wastewater Advertising closes, May 23, 2009. Advertising Artwork required, May 29, 2009. Contact Brad O'Brien at 1-888-702-1111 ext. 1. SPRING 2009 HazMat Management 3

editorial

Responding to Obama

by Guy Crittenden

“It’s difficult to imagine the new administration ignoring policy ideas and priorities that already support from such a broad base of experts.”

ith US President Barak Obama in office, an overdue and dramatic shift will begin in US energy and environmental policy. In his inaugural address, Obama stated, “We will harness the sun and the winds and the soil to fuel our cars and run our factories…. With old friends and former foes, we will work tirelessly to lessen the nuclear threat, and roll back the specter of a warming planet…” To start turning the lofty words into reality, Obama has nominated Nobel laureate Steven Chu for Secretary of Energy, Ken Salazar for Interior, and Lisa Jackson for head of the EPA. Carol Browner, who directed the EPA under the Clinton administration, is in charge of climate-change policy in the White House, and deputy Los Angeles mayor Nancy Sutley a will run the White House Council on Environmental Quality. With such directors, the years ahead will be very different from those under George W. Bush. Canada’s federal government, rather than simply react, could benefit from proactive study of what the new administration is (or will be) up to. U.S. President Barak Obama In some cases, chances will arise to cooperate on joint environmental ventures. In others, Canada will have to fight for its interests. (Consider the protectionist Buy American provisions in the new American infrastructure initiative.) In any case, Canada will face many new policy choices, and soon. One way to get inside the head of the new administration is to listen to the voices to which Obama and crew pay heed. A good example is the National Council for Science and the Environment (NCSE) — an NGO based in Washington, DC dedicated to improving the scientific basis for environmental decision-making. The council has 160 affiliated universities and colleges and conducts an annual National Conference on Science, Policy and the Environment that brings together representatives from all levels of government, leaders in research and education, NGOs and business to develop strategies for critical environmental challenges. On December 18, 2008, the NCSE published a report that presents the collective recommendations of more than 5,000 scientists, engineers, students, and decision-makers who participated from 2000-2008 in the annual conference. (Visit www.ncseonline.org). The report is written as a guide for the Obama administration as it faces a daunting array of challenges, but also constitutes a handy roadmap for Canadian policymakers. The introduction states, “Environmental protection and resource management that is not based on science is unlikely to provide positive outcomes for people and the planet.” The challenges listed include climate change, ensuring a safe food supply, transforming the energy supply (and reducing demand), managing ecosystems to minimize irreversible losses of biodiversity, and protecting human health. The report’s recommendations are conveniently grouped by topic and cross-referenced by agency and by the conference at which the recommendations were made. It’s difficult to imagine the new administration ignoring policy ideas and priorities that already enjoy broad support among experts. Among many other recommendations, the report notes that (as with Canada) current investment in environmental and energy research and education is inadequate. The ability to prevent and solve environmental, economic and other societal challenges is limited by the current investment in research and education. Multi-disciplinary and interdisciplinary approaches are essential; all too often the human dimension of issues are ignored, along with funding for approaches that explore human dimensions and coupled human and natural systems. We can only hope that Obama and crew agree that, “current programs must be enhanced by vigorous competitively-awarded merit-based research, integrated with training of the next generation of scientists, managers and citizens.” Clearinghouses and other mechanisms could link scientific information with the needs of decision-makers, although the report notes that a number of significant actions can be made by President Obama and his advisors with powers that already reside with the Office of the Presidency and with the agencies. The report’s recommendations are too numerous to catalogue here, but quoting just a few gives a sense of what’s on offer. Regarding animal agriculture and climate change, the report states: “Research priority: comparing methane and other greenhouse gas (GHG) emissions (in a life cycle analysis) from pastured animals as compared with confined grain-fed animals, and determining the GHG emissions from production of meat, egg, and dairy products.” “The National Academy of Sciences should conduct a study, leading to a national science-based dialogue to discuss how meat consumption, processing, packaging, and waste impact GHGs.” In regard to carbon economics, the report recommends more economic and policy research on government oversight, regulation, and management of allowance markets (e.g., price ceilings and price floors) and “more research into the acceleration of the commercialization of carbon capture and sequestration technologies.” The report encourages further economic and policy research “into how nations could make ‘border adjustments’ to account for imports from countries that do not control GHG emissions.” That last item could have significant repercussions for every trading partner of the United States, not least Canada. Policymakers should read the document and get on the inside track with the new administration, or risk being left behind (or run over!). HMM Guy Crittenden is editor of this magazine. Contact Guy at gcrittenden@hazmatmag.com @ARTICLECATEGORY:807;

4 www.hazmatmag.com SPRING 2009

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up-front

management

Vol. 21, no. 2

solutions for the business of the Environment

Guy Crittenden Editor gcrittenden@hazmatmag.com

Brad O’Brien PublishEr 416-510-6798 bobrien@hazmatmag.com Jamie Ross account managEr 416-510-5221 jross@hazmatmag.com Sheila Wilson art dirEctor Kimberly Collins Production managEr 416-510-6779 kcollins@bizinfogroup.ca Selina Rahaman circulation managEr Carol Bell-LeNoury gEnEral managEr, Ecolog grouP Bruce Creighton PrEsidEnt

AwArd-winning mAgAzine HazMat Management, usPs 016-506 is published four times a year by Ecolog group, a division of business information group inc., a leading canadian business-to-business information services company. HazMat Management magazine provides strategic information and perspectives to north american industry and government on pollution prevention and waste management issues. readers include corporate executives, compliance and safety officers, industrial plant managers and operators, municipal, government environment officials, working scientists, and consulting engineers. Ecolog group products include Solid Waste & Recycling magazine, the Eris risk information service, and a number of newsletters affiliated with Ecolog.com Head Office: Internet: Email:

12 concorde Place, suite 800 toronto on m3c 4J2 call: (416) 442-5600 Fax: (416) 510-5133 www.hazmatmag.com bobrien@hazmatmag.com

information contained in this publication has been compiled from sources believed to be reliable, thus HazMat Management cannot be responsible for the absolute correctness or sufficiency of articles or editorial contained herein. although the information contained in this magazine is believed to be correct, no responsibility is assumed therefore, nor for the opinions expressed by individual authors. articles in this magazine are intended to convey information rather than give legal or other professional advice. reprint and list rental services are arranged through the Publisher at (416) 5106780. this magazine is printed on rEcYclEd PaPEr made with 10% post consumer and 50% post commercial waste. Periodical Postage Paid niagara Falls, nY, u.s. P.s. #016-506 U.S. Office of publication: 2424 niagara Falls blvd., niagara Falls, nY 14304-0357 U.S. Postmaster: send address corrections to: hazmat management, P.o. box 1118, niagara Falls, nY 14304 Canadian Publications Mail Product Sales Agreement No. 40069240 return undeliverable canadian addresses to circulation department — hazmat management magazine 12 concorde Place, suite 800 toronto on m3c4J2 From time to time we make our subscription list available to select companies and organizations whose product or service may interest you. if you do not wish your contact information to be made available, please contact us via one of the following methods: Phone: 1-800-668-2374 Fax: 416-510-5133 Email: jhunter@bizinfogroup.ca mail to: Privacy officer business information group 12 concorde Place, suite 800 toronto on m3c 4J2 We acknowledge the financial support of the government of canada through the Publications assistance Program towards our mailing costs. © 2009 all rights reserved. no part of this publication may be reproduced without prior consent. PAP Registration No. 11032 ISSN-1713-9511 Member

Canadian Business

ReadeR’s comments foR website news “Pesticide ban cRiticized” which aRgued that ontaRio’s Pesticide ban is oveRzealous and endangeRs jobs in the lawn caRe industRy, etc. (See www.solidwastemag.com)

hat the heck kind of person would even go on record saying something like that? We know it is making people sick, we know it is tracked into our homes, we know it causes liver disease, neurological disorders, reproductive issues and all sorts of disease but because 20,000 people are employed in the field lets put the millions of consumers at risk for money and a green lawn. I personally suffer serve brain disorders due to many products and pesticide is a major one. Our children are born with pesticides in their blood along with many other chemicals. We need to eliminate toxins not keep them in use because of jobs and what about those people who are applicators? Their health means little as well because without them working how will the large corps that produce this poison profit? It is one big nightmare of monetary madness. We need to wake up people and start to realize

he answer’s quite simple... the chemical companies need to design an organic product that doesn’t harm peoples health and the environment. That the current “stuff” harms your health has been scientifically proven incidentally in the US. Hundreds of people and especially children have become sick when lawn chemicals are sprayed adjacent to their properties. Testing by many MDs proved that it was a reaction to the chemicals in the lawn pesticides that made them sick. So it’s documented. That’s scientific enough for anyone who has the sense to reason it out. We live in apple country and one by one the orchard owners are switching to organically grown crops. So if the chemical companies want to they can use their smarts and design something non-toxic to our world for this application as well. Identified adverse health effects of pesticides include: — Increased risk of malignancy, lymphoma, leukemia, and various cancers (Cantor et al 1992, Hoar et al 1986,

Press

6 www.hazmatmag.com sPring 2009

that we are surrounded by money hungry companies that will disguise and even out right deny any health concerns if it will affect their bottom line. Maybe they should focus on some healthier alternatives... wait a minute, there is no profit in that. What are they going to sell when we are all dead? Google environmental toxins, toxic carpets, Scotchguard, toxic mattresses, pesticides, multiple chemical sensitivity — The problem for these companies is that they have enjoyed an era of consumer ignorance due to a lack of access to information, but now with the internet they have no where to hide. Consumers are starting to see the light and have access to court depositions, company memos, lawsuits and tons of cover up. Clean up your act buddy. From Steve inventorcentre@hotmail.com

Davis et al 1993, Beardsley 1987, Wiklund et al 1986, Hardell & Eriksson 1988, Hayes et al 1991) — Genetic damage leading to birth defects (Sherman 1995) -- Interfering with reproductive processes and decreased fertility (Colborn et al 1995, Lerda & Rizze 1990) — Toxic damage to various tissues — impaired liver function (Kaloyanova & El Batawi 1991, Singh & Awathsi 1985) — Neurological problems; cognitive impairment, neuropathy and paralysis (Kaplan et al 1993, Stephens et al 1995) — Disturbed neurological development (Colborn et al 1995) — Allergies leading to such problems as asthma (Rea 1996, Bessot et al 1994, Wood 1993) [now at epidemic proportions among North American children] — Increased sensitivity to chemicals, fibromyalgia and chronic fatigue syndrome (Rea 1996, Fox et al 1996). Thank you. From Richar Elzby r.jelzby@sympatico.ca

up-front

his is absolutely ridiculous, utter and total nonsense. With the decline of pollinators all over the world, we have to stop using pesticides. Put your employees to work pulling weeds with their bare hands if you have to, or start using an eco-friendly product, or come up with a brand new way of displacing insects. People are going to have to start getting used to seeing a few weeds in their lawns or a few insects on their decks. Use your heads: our old ways of doing things (quick and cheap) are a thing of the past. From Lona nineteenandeightyone@hotmail.com

Editor’s Note: The magazine remains neutral on this subject. We felt it important to print these letters and want readers to know we would have printed arguments for the opposite view, but none came in. — ed.

Clean Tech Canada

It is with great sadness that we mourn the passing of our esteemed colleague and dear friend, Barry N. Spiegel on February 9, 2009.

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Barry was called to the bar of Ontario in 1978. He was a member of Willms & Shier Environmental Lawyers LLP for 20 years, most recently acting as the firm’s Director of Marketing & Professional Development. Through his thorough knowledge of the law and talent for writing, Barry played an integral part in building the success and excellent reputation of our firm. We were privileged to have Barry as our colleague and friend.

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SPONSORED BY:

CLEAN TECH COVER.indd 1

2/26/09 12:09:08 PM

Watch our next edition for this supplement on the clean technology industry in Canada. We’ll be looking at some leading-edge technologies moving from the development and demonstration stage to full-scale commercialization. These are companies that can solve environmental challenges in Canada and also international markets. Contact: Brad O’Brien Publisher 416-510-6798 bobrien@bizinfogoup.ca or Jamie Ross 416-510-5221

Barry N. Spiegel 1951 - 2009

Barry was also an avid outdoorsman, photographer and volunteer to numerous worthy causes. He was respected by all who knew him and he will be greatly missed. We extend our deepest sympathies to Barry’s family. His passing is a great loss to all of us.

4 King St. West, Suite 900 Toronto, Ontario M5H 1B6

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cover-story

Findings of the Standing Senate Committee on National Security and Defence

Emergency Prepare

ast year, during the second session of the 39th Parliament, 2008, the Standing Senate Committee on National Security and Defence released its report Emergency Preparedness in Canada: How the fine arts of bafflegab and procrastination hobble the people who will be trying to save you when things get really bad… The subtitle speaks to the level of concern the senators felt they needed to convey about the situation in this country, that they believe to be extremely dire. The report draws conclusions that echo themes covered in other editions of this magazine, notably “Contracting Out Emergency Response: Challenges to preparing for hazardous materials releases” by contributing editor John Hosty in the Spring 2008 edition. Other articles have pointed to the deficit in investment in broadly coordinated and integrated emergency preparedness, with many loose ends left dangling since the closure of the Major Industrial Accidents Council of Canada in 1999. Interestingly, when Emergency Preparedness in Canada was released, most media reports were negative and even sarcastic. The media seemed skeptical about the report’s conclusions, and there was no shortage of elected officials willing to be quoted as saying it was mostly hype, as though the senators had overreached in some kind of attempt to be relevant. It’s likely that most reporters never read the 225-page first volume, let alone the three volumes that contain the research and survey results. This is a pity, as the report was actually the result

8 www.hazmatmag.com SPRING 2009

of a fairly rigourous process of information gathering. Ironically, the Senate committee members themselves seemed to anticipate media and public skepticism. They poke fun at themselves in the very first heading in the report: “Alarmist Committee Attempts to Terrify Canadians! Again!” and in the first paragraph that reads: “Hey, we’re not trying to terrify anybody. That having been said, stuff happens. Emergencies happen. Not often enough to put Canadians on a war footing, ready to run to the closest bomb shelter at a moment’s notice. But often enough that intelligent people with ample resources should use some of those resources to prepare themselves, to defend themselves against tragedy.” The committee considered possible large-scale emergencies from earthquakes and power failures to explosions

“Only12 other communities we surveyed currently have some Urban Search and Rescue capability – either light, medium or heavy.”

by Guy Crittenden

edness in Canada â&#x20AC;&#x153;A quagmire of lethargy seems to be the hallmark of emergency preparedness in this country.â&#x20AC;? Photo shows aftermath of fire dousing in freezing weather.

cover-story

and infectious disease outbreaks, from gas leaks to terrorist attacks and from cyber or nuclear breakdowns to forest fires and floods. While committee members went on the record saying “the sky is not falling” they concluded that Canadian governments are not moving quickly enough to minimize damage from such events. It’s difficult to believe this is the state of affairs in (to use a cliché) a post 9/11 world.

assistance during emergencies; about their ability to deal with emergen• usefulness of emergency caches scattered cies, their perception of how well senior about the country; levels of government are performing in • funding municipalities for emergency preparation for emergencies, plus the gaps equipment and training; they believe should be filled. • collaboration among different levels of As the report states, “Our report focusgovernment; es on what governments have done in • archiving lessons learned and best practices; recent years to ready us for the next big • emergency public communications; one. Sadly, for the most part, this is not a • policing during emergencies; and heroic story.” • the security of borders and critical infraAs noted, Emergency Preparedness in structure. Canada is comprised of four volumes, the RepoRt scope and details The committee was assisted by testimony first of which contains the committee’s The committee examined Canada’s muni- from more than 110 witnesses from 2001- findings, observations and recommencipal, provincial and federal governments’ 2008 who testified in Ottawa and other dations. The other volumes contain the efforts to improve Canada’s disaster prep- locations, as well as two emergency pre- responses to an emergency preparedness aration and disaster response capacity, in a paredness surveys — the first conducted questionnaire received from 92 of the 100 variety of areas, including: in 2003 and the second in 2007. The final municipalities surveyed by the committee. • continuity of essential government servi- report draws primarily on the most recent All four volumes are available online at ces during emergencies; survey, responded to by 92 municipal www.sen-sec.ca HazMAT of Magazine for ER Article Reprint 7w x coordinators. 4.875h Color Advt 2009:Half Page Horizontal Advt.qxd 1/30/2009 • capacity the Canadian Forces to offer emergency The survey asked Although the committee concludes that

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there must be some government people “who have been trying exceedingly hard at doing their job,” unfortunately their efforts are getting lost in the “quagmire of lethargy that seems to be the hallmark of emergency preparedness in this country.” The committee members recognize that it isn’t easy making progress on any file that crosses jurisdictional lines; nonetheless, (they write) “we are talking about the possibility of widespread physical and economic disaster to Canadians here, and somebody has to cut the Gordian Knot.” For every one of the problems listed, the committee found serious deficiencies, including the failure by governments to follow through on previous commitments or to address problems identified years ago (e.g., 2004). In addition to the general mess (see report for details) a key concern is funding.

tharris_half_pg.pdf 1

Funding

In Canada, emergency preparedness is jointly funded by federal, provincial, territorial and municipal governments. Funding initiatives such as the Joint Emergency Preparedness Program (JEPP) are central to the development of municipal programs to prevent and respond to all physical threats faced by communities, be they floods, earthquakes, chemical spills, terrorist attacks, or pandemics. Municipalities, at least the larger ones, know that the onus is on them — and probably them alone — to deal with emergencies in the early stages. This situation is captured in the phrase “YOYO 24” that means “You’re on your own for the first 24 hours.” The committee concluded that not only is YOYO 24 accurate, but that municipal authorities might have to deal with the first five to seven days of any major event, at which

time additional assistance will be available. With municipalities on the hook, the committee concluded that politicians and bureaucrats at senior levels aren’t listening to first responders about what the municipalities feel they need most to cope with emergencies. There are complaints that the systems in place (to provide assistance to municipalities) are cumbersome and underfunded. While senior levels of government tell municipalities they must have emergency preparedness programs in place, they don’t seem prepared to provide the funds. This is alarming, given that roughly half (48 percent) of survey respondents said their municipality had already declared a state of emergency as a result of a natural or human-induced threat to the community. One out of three said their emergencies had been designated as provincial emergencies.

2/16/07 9:24:30 AM 2009 SPRING

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Almost all the respondents stated that their municipality has an Emergency Management Organization (EMO) in place and a dedicated emergency operations centre (64 percent) or a designated structure that can be used as an operations centre (36 percent). Fully 95 percent of respondents said their communities conduct risk assessments, and 71 percent conduct these as part of a federally standardized process (even though the committee determined there’s no uniform national standard for emergency planning or risk assessments). While 61 percent cited “terrorism as a concern” for their community, only 36 percent have a counter-terrorism response plan. This may be because smaller communities don’t see terrorism as a particular risk. It may also be because some municipalities seem to think that terrorism Ad 5/15/08 3:10 PM local Page is aEnviro job for federal police, even though

police would likely be involved in responding to any incident. Of those that put a time frame on how often they conduct such assessments, 45 percent said every year, 12 percent said every three to five years and eight percent said five years or longer (suggesting perhaps that it has been done once in recent years). Municipalities are encouraged by senior levels of government to do risk assessment. The problem is with the next step. “If the community is going to come up with new insights into what it needs to respond to potential emergencies,” notes the report, “surely the governments that pushed for the assessments should be standing by ready to respond to the results,” adding, “Councilors who ignore visible everyday issues like inadequate public transit, 1deteriorating roads, overflowing sewers

and tardy snow clearing do so at their own peril.. Most municipalities are simply unlikely to siphon off their own budgets for major overhauls to emergency preparedness — even if a reassessment has shown that they should.” Five out of every six Canadian municipalities (83 percent) that responded to the committee’s survey say they have applied for funding under the federal governments JEPP program. Only 22 percent expressed themselves satisfied with what the program has provided them. States the report: “You know that both federal and provincial governments have some work to do when only about onefifth of municipalities across the country are fully satisfied with the way emergency preparedness is funded by both the federal government and their province.” Again, the main complaints are rigid funding sys-

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INSURING PROGRESS®

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“While 84 percent of municipalities can point to critical infrastructure within their boundaries, only 58 percent of communities have a plan in place to protect this infrastructure.” tems and inadequate funds. Some typical comments included the following: “Where the federal government has contributed, it has been in the form of oneoff capital funds with no contingency for operating, maintenance, or life cycling… There is also a concern over lack of consultation at the municipal level over JEPP funding. The opportunity is frequently missed to focus funding programs such as JEPP on the sustainable development of regional resources to address critical emerging needs.” (Bruce Burrell, Fire Chief and Head of Disaster Service, Calgary, Alberta) “Allocate a reasonable amount of money — $5 million nationwide is pitiful. Raise the federal contribution percentage (75 per cent). Change the philosophy to building resilient and responsive programs. Do not tie it to specific elements (i.e., not just communications or response vehicles, but include analysis and studies, salaries, anything that improves the level of emergency management to that expected post 9/11, post Katrina). Align the administration to the municipal budget process.” (Richard Kinchlea, Emergency Measures Coordinator, Hamilton, Ontario) “Municipalities are required to submit

balanced budgets and oftentimes emergency management funding is cut in order to allow the municipality to provide existing day-to-day services. Therefore there should be more emergency managementspecific funding opportunities made available to municipalities by the provincial government to allow municipalities to attain a higher standard of preparedness.” (Barry Manuel, Emergency Measures Organization Coordinator, Halifax, Nova Scotia) “Emergency management is one program amongst many that must compete for a share of the limited funds available on which the city operates. Increasing legislated requirements with respect to what municipalities must do in regards to emergency management without increasing the provision of funding assistance means that something possibly won’t be done at the time and to the standard expected.” (Bruce L. Griffin, Community Emergency Planner, Barrie, Ontario) The committee concluded that there’s often a huge gap between what kind of investment in emergency preparedness makes sense to municipalities and what makes sense to the senior governments that fund them.

NON-FUNDING ISSUES

While funding remains a key concern, other outstanding matters include the following. Help from neighbouring communities: “The more Canadian communities can come together to assist one another during emergencies,” the report states, “the better for all concerned, particularly since help will often be needed in minutes rather than days.” The committee was happy to see that many neighbouring communities across Canada have put their heads together on emergency preparation. Fully 80 percent of surveyed municipalities said they have had agreements in place with surrounding communities to provide assistance in the event of an emergency. A complementary 79 percent felt that “such agreements are necessary.” Self-sustainability: How long can municipalities sustain themselves before provincial or federal help arrives during a major disaster? The estimates that the committee received varied: 10 percent said 24 hours; 14 percent said 48 hours; 37 percent said 72 hours; 15 percent said 96 hours; and 23 percent said, “It depends on the disaster.” Computers particularly vulnerable: One might guess that nothing makes a SPRING 2009 HazMat Management 13

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municipality fret more than the prospect of a CBRNE disaster (involving intentional or accidental misuse of chemicals, biological organisms, radiation, nuclear devices, or explosives). States the report: “One would be wrong.” Respondents were divided over whether their municipality had the capacity to manage a CBRNE incident: 47 percent said yes; 50 percent said no. They were far less divided as to whether their municipal computer systems could manage a cyber attack: only 27 percent said yes and 60 percent said no. Stockpiled supplies: Many Canadian communities do not appear to be depending on the federal government’s emergency stockpiles to get them through a disaster. Only 23 percent of municipalities said that they regard the NESS caches as their emergency stockpiles. While 60 percent

said they knew of the NESS program, only 31 percent said they have access to a cache and believe its contents would be useful. Community awareness: A critical aspect of emergency management is communication with the public, both before a disaster (to help optimize preparation) and during and following a disaster (to help optimize survival and recovery). Before an emergency, proactive communication can save lives. Do members of the public know if there are designated shelters that can be used during a tornado? Does the average person in a municipality know what protection and basic supplies they will need to keep their family safe in the event of a flood? The majority of respondents said their municipalities have ways of getting through to the public as to what citizens should do in case of an emergency. Roughly three quarters have used one

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means or another to educate their citizens on what to do in case of a disaster (but 22 percent have not). During or after an emergency, reactive communications are obviously key to surviving a disaster, but Canadian communities fall short in this area. While 76 percent of respondents said they had some ability to interrupt television and radio broadcasts, most acknowledged that they must first receive the consent of the broadcasters. Only 23 percent of municipalities say they have the ability to unilaterally interrupt local television or radio broadcasts. As officials from the municipality of Chatham-Kent, Ontario wrote: “We work with the constraints of the private contractors. If they choose to interrupt the broadcasts they will. If not it will wait until the usual news reports.”

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PO Box 8001 • Charlottesville, VA 22906 Ph 434-975-2872 • 800-220-2466 • Fax 434-975-2972 www.transenvsys.com 14 www.hazmatmag.com SPRING 2009

cover-story

First responders — (a) equipment and (b) training: In the midst of a disaster, any community wants its first responders to be well equipped and well trained. The senate committee’s questionnaire produced mixed results on these issues. (a) For instance, 62 percent of municipalities have interoperable first responder communications (fire, police, paramedics, etc.); only 36 percent are based on federal standards. Only 17 percent responded that their local systems are interoperable with provincial, federal (or American) authorities. In two-thirds of cases (66 percent) they were not. (b) Canada’s main centre for emergency management training is the Canadian Emergency Management College (CEMC) in Ottawa, run by Public Safety Canada. Originally established in 1954 to provide programs in wartime civil defence planning, the college provides training for emergency management officials from all levels of government. Only 58 percent of respondents said that first responders from their municipality had received training at the CEMC, and only 18 per percent of surveyed municipalities said the training offered to municipal officials at the CEMC is sufficient. Role of the Canadian Forces: The role of the military is vital to responding to emergencies. The committee found that awareness of the Canadian Forces’ role in emergency management and response is improving, with plenty of room to improve further. Fully 85 percent of municipalities expect the army to provide assistance to their community in the event of a disaster, and 75 percent of respondents said they were aware of the existence of Canadian Forces Canada Command, the entity in charge of all domestic Forces operations. On the other hand, only 46 percent had actually liaised with Canada Command. 61 percent of respondents said there is a Canadian Forces Reserve Unit located in their community, but only 45 percent knew what role the Reserves could be expected to play in an emergency. Only 32 percent had involved the Reserves in emergency planning. Urban search and rescue: Urban

Search and Rescue (USAR) capacity comes in handy during emergencies. But 82 per cent of respondents said their municipality does not have an USAR team based in their community. At the time the survey was taken, Ottawa, Thunder Bay and Victoriaville were developing an USAR capability. Only 12 other communities we surveyed currently have some Urban Search and Rescue capability — either light, medium or heavy. Of the 12 USAR teams, eight of them do have agreements in place calling on their team to provide regional support to neighbouring municipalities. In terms of USAR funding, municipalities are looking in all directions: 20 percent believed that the provincial government should provide funding for USAR; 26 percent believed that it should be the federal government; 36 per cent say USAR should receive three-way funding from provincial, federal and local coffers. Critical infrastructure protection: If

infrastructure is of critical national importance, the Canadian government should be involved in protecting it. This is an area in which the federal government has not been sufficiently proactive, as confirmed by the survey results. While 84 percent of municipalities can point to critical infrastructure within their boundaries, only 58 percent of communities have a plan in place to protect this infrastructure. Moreover, there appears to be considerable confusion as to whose responsibility it is to protect it. Most respondents didn’t even want to take a guess; 10 percent thought they were responsible; 20 per cent guessed they weren’t; and the rest threw up their hands HMM and did not respond. NOTE: This magazine will report on future findings from the Standing Senate Committee on National Security and Defence and actions generated. Guy Crittenden is editor of this magazine. Contact Guy at gcrittenden@hazmatmag.com @ARTICLECATEGORY:813; 815;

SPRING 2009 HazMat Management 15

chemical-safety

REACHing for Europe

How to comply with the new EU chemical registration requirements by Sven Thorsten Hombach

n June 1, 2007, the Registration, Evaluation and Authorization of Chemicals (REACH) regulation came into force in the European Union. REACH is a comprehensive regulation governing the import, manufacture and distribution of chemicals in any European Union member state. It stipulates that no substance may be manufactured or marketed in the European Union unless it’s been registered with the European Central Agency in accordance with the regulation. As such, any Canadian or U.S. company that intends to offer chemical products or items containing such products in an EU member state has to comply with REACH, regardless of whether it does business in Europe directly, through a subsidiary, or through an independent distribution network. Ultimately, REACH empowers the European Chemicals Agency to work together with member states and prioritize registered substances for evaluation and subsequent regulation or restriction in the European Union.

WHAT IS COVERED AND EXEMPTED

“No substance may be manufactured or marketed in the EU unless it’s registered with the European Central Agency.”

REACH applies to substances, preparations (i.e., combinations of substances ) and articles (i.e., manufactured objects containing substances) designated in the regulation. Virtually any chemical substance or combination thereof falls within the ambit of REACH unless specifically excluded. Despite its broad application, REACH creates significant exemptions from regulation in a number of categories. The different exemption categories are enumerated in Article 5 and generally are as follows: • Substances used in medicinal products for human and veterinary use; • Substances used in food, food additives, or in animal feedstock; • Substances used in cosmetic products; • Substances for which “sufficient information is known … that they are considered to cause minimum risk because of their intrinsic properties” — substances in this category are individually listed in Annex IV and include various plant fats, sugars, fatty acids, elemental substances like carbon and nitrogen, as well as water; • Substances for which registration is “deemed inappropriate or unnecessary” because the exemption does not prejudice the objectives of REACH — substances in this category are individually listed in Annex V and include unintended process intermediates or byproducts, certain naturally occurring substances such as minerals, ores, natural gas, crude oil, coal and coke, as well as certain elemental substances for which risks

16 www.hazmatmag.com SPRING 2009

are “already well-known”, such as oxygen, hydrogen, nitrogen and noble gases; • Non-isolated intermediates (i.e., substances occurring in a process to generate another substance); • Polymers, which are exempted based on the recognition that there is currently no cost-effective way to assess the effects of every existing polymer — REACH does empower the European Commission to propose new legislation for choosing polymers for registration based on “sound technical and valid scientific criteria,” but since a number of polymers that have come under fire for potential adverse health effects are in widespread use in every conceivable application, any such proposals will most likely involve drawn-out stakeholder consultation; • Waste, which is specifically exempted from the definition of “substances, preparations or articles” in order to be regulated under existing EU regulations.

WHAT COMPLY? Any individual manufacturer, importer or distributor exceeding a threshold quantity has to register the substance with the European Chemical Agency and supply a technical dossier together with the registration. The dossier has to include identification of the manufacturer and the substance, information as to classification and labelling of the substance and guidance on safe use. It also must contain study summaries of safety studies following the methodology set out in the regulation and “robust study” summaries for certain categories (these are summaries that are detailed enough to assess the study without consulting the full report). The dossier must offer an indication as to what information has been reviewed by a qualified assessor, proposals for testing the health and safety effects of the substance in accordance with the regulation, and exposure information for substances imported in quantities between one and 10 tonnes per year. Interestingly, the dossier should also contain a request as to what information provided should not be made available on the internet and justification why publication would harm commercial interests. In addition, for any substance manufactured, imported or distributed in a quantity of more than 10 tonnes per year, a chemical safety assessment has to be conducted that studies effects on human health, physicochemical hazards, environmental health, and PBT (persistence, bioaccumulation, toxicity). If such a study determines that a substance should be classified as dangerous, PBT or vPvB (very persistent and very bioaccumulative), exposure scenarios have to be assessed as well.

... continues on page 33

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NEXTGEN CLEANUP TECHNOLOGY Chemical Oxidation for Soil and Groundwater

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editorial

FUN WITH NUMBERS Uncertain, changing standards frustrate cleanups

hat potential brownfield developers need most is especially for health parameters. Will municipalities issue certainty. But it is rarely what they get. building permits for properties that only meet the old numThe current economic crisis and credit crunch bers? Will lenders lend on them? Will buyers buy them? are obviously huge obstacles to brownfield development. Governments should take more responsibility for managing Hopefully, those wiser than I will deal with these worldwide these predictable consequences. challenges. But the economic crisis makes it doubly importA second enduring problem is that risk assessment ant to get other aspects of brownfield policy right. remains agonizingly slow, expensive, and unpredictable. One problem for would-be developers is that governOne site will sail through while the next, with the same ment standards keep changing. In British Columbia, for contaminants, encounters endless obstacles. Government example, the Contaminated Sites Regulation was amended decisions vary unpredictably, for opaque reasons. One reviewer refuses to accept soluagain as of January 1, 2009. These tions demanded by her colleague or Stage 6 amendments will expand approved by her predecessor. The environmental quality standards, National Brownfield Association, including new matrices for barium, the Building Industry and Land chloride ion and sodium ion, and Development Association and others new provisions for wildlands and have been clamouring, in vain, for vapours. a better alternative. A public review The Ontario Ministry of the process by senior staff, with reasons, Environment is proposing an enmight help. tirely new set of cleanup standards, less than five years after the current A third problem is the lack of clarity over off-site plumes. Is it enough set came into force. Many numto satisfy the regulators? Must an bers would go up, others would go adjacent commercial property be down. Some will go too low for reliCover image: Deconstruction #26, “Spider”, cleaned up to commercial standards, able quantification. If commercial Mississauga, ON, 2007. Artist: Joseph laboratories can’t tell whether soil, or to residential standards or even to Hartman, image courtesy Stephen Bulger groundwater, and sediment meet “pristine”? Are affected neighbours Gallery, www.bulgergallery.com the new numbers, how can such free to sue for civil damages, if an numbers be applied? RA approves exceedences of generic criteria? This argument Admittedly, the environment ministry has explained the has been particularly fierce since Tridan v. Shell, where a science behind its new numbers. But is this science properly gas station’s neighbour, a car dealership, was awarded the applied or do the new numbers result from unreasonable cost of cleaning up its property to “pristine.” multiplication of ultra-conservative assumptions? Whatever In fact, civil liability, generally, remains confused. Why, the cause, the net effect is that half of the sites now regisfor example, have professional engineers never been found tered as meeting current generic standards (i.e., as being negligent for their environmental errors and omissions, “clean”) won’t be “clean” under the new standards. despite the huge costs that they frequently impose on their The transition from old numbers to new ones is always clients? Why did the Newfoundland Court of Appeal award difficult. It moves the goalposts for any site undergoing a Cousins compensation when he carelessly bought a conlong-term cleanup. Would it be taminated site? Was his case stronger or weaker because fair to make them start over? he also bought (as is) the gas station next door that caused New numbers complicate existthe contamination? What happened to caveat emptor? And ing remediation agreements why was his compensation based upon his expenses, which and can turn lawsuits upside greatly exceeded the value of the land? down. Worse, new numbers The National Round Table on Environment and Economy inevitably cast doubt upon the made a powerful case for the economic, social and ensafety of any property “cleaned vironmental importance of revitalizing contaminated sites. up” under the old numbers, Everyone gives this lip service, but clear, consistent, and predictable rules could do a lot more to make it happen. “One problem for

by Dianne Saxe 18 www.hazmatmag.com SPRING 2009

would-be developers is that government standards keep changing.”

Dianne Saxe, Ph.D. in Law, is one of Canada’s leading environmental lawyers with her own practice in Toronto. Contact Dianne at dsaxe@envirolaw.com @ARTICLECATEGORY:803;

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Paul Mariutti

Services: 300 mm and 150 Real Estate Sales Representative mm water (Gage Ave N) 450 combined sanitary/storm paul.mariutti@dtzbarnicke.com Taxes: $2,997.50 approx. (2006) Price: $225,000 per acre Comments: Vacant land High traffic location Ideal for commercial/ industrial redevelopment

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139 Windermere Road, Hamilton 41.77 acres Zoning: K-Heavy Industrial

Sydney Hamber, SIOR

Services: 150 mm water 450 mm storm

Paul Mariutti

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Taxes: $169,996.15

Real Estate Sales Representative paul.mariutti@dtzbarnicke.com

105 - 3027 Harvester Road Burlington, Ontario, L7N 3G7

Price: $225,000 per acre

DTZ Barnicke Limited

Tel: 905 637 1215 Toll Free: 1 800 737 1215

Comments: High profile location with QEW exposure

DTZ Barnicke Limited

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Although the information contained within is from sources believed to be reliable, no warranty or representation is made as to its accuracy being subject to errors, omissions, conditions, prior lease, withdrawal or other changes without notice and same should not be relied upon without independent verification, DTZ Barnicke Limited, Real Estate Brokerage 2008.

Owner(s) Location

Uniboard Canada Inc. 1107 Lakeshore Road South Temiskaming Shores, Ontario. 55 (+/acreage) with 1953’ of waterfront. Site Area Exclude Landfill site, pending potential severance. Building Area 130,000 sq ft Clay loam mix generally sloping toward Topography Lake Temiskaming. Hydro, Telephone, Fire & Police Services $48,882.62 Taxes “RH” Rural and Hazard Land Zoning Pierrre-Andre Gignac Director Uniboard Canada Inc Email: pierre-andre.gignac@uniboard.com 450-781-2276

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EXCEPTIONAL BROWNFIELD DEVELOPMENT OPPORTUNITY APPROXIMATELY 3.4 ACRES, CALGARY, ALBERTA Two separately owned and titled lots of approximately 1.7 acres each packaged for immediate sale at the northeast corner of the lit intersection at 70th street and 17th Avenue, South East Calgary. These two sites offer approximately 500 feet of frontage on a high traffic highway connecting Calgary with Chestermere Lake to the East and will be the closest commercial node West off the newly constructed Ring Road proposed to circle Calgary in the near future. For further details contact Murray Bauer, Broker, Strategic Realty Services Inc, at (403)807-9292 or email strategic.realty@shaw.ca

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EFFECTIVENESS OF CHEMICAL OXIDIZATION FOR SOIL AND GROUNDWATER REMEDIATION

NEXTGEN TECHNOLOGY

by Paul Brander ot being a chemist, I can’t point to chemical formulations that create compounds used in successful remediation technologies. Instead, I’m an experienced remediation contractor, and tend to be the biggest sceptic of “snake oil” solutions. However, I have become convinced of the effectiveness of chemical oxidation. The stuff works — something I need to see with my own eyes. Most readers of this magazine would probably ask the same questions as me: Is the technology safe? Is it approved by the environmental authorities? And does it work? Waste diversion programs underscore the value of preserving landfill space. Yet contaminated soil is routinely sent to landfill. “NextGen” technologies” can give contaminated soil a second life as a backfill substitute for remediation projects, avoiding landfill disposal. NextGen tech will not work in every situation; the trick is to determine the situations that are suitable candidates. The questions clients ask (to which the answer must be “yes”) when requesting prequalified technology are: • Can you supply a Certificate of Approval from the environment ministry?

“The project was completed for less than $1 million and saved the building as well as avoided disposal and backfill costs.” Paul Brander 20 www.hazmatmag.com SPRING 2009

• Can you conduct a bench-scale test to prove that the technology is effective on my soil and groundwater? • Can you supply client references? • Is the technology cheaper than conventional dig-anddump?

Oakville case study We were called to remediate a large parcel of land in south Oakville; the native soil condition is a very tight clay (between ten to the minus 8 and 10 to the minus 9). This 15,000 tonne project was to start late December 2007 and was scheduled for completion before spring of 2008. The average temperature during this period was –10 degrees C and the area was wide open, creating a severe wind chill. The source of contamination was primarily from an old body shop that later became an industrial painting operation for steel structural pieces. The contamination was VOCs with additional hydrocarbons in the soil at concentrations well above the CCME guidelines for Table 3. The next challenge was a creek/ditch that ran through a concrete culvert in a zone within 100 metres of the contaminated zone; the area is a environmentally sensitive site that calls for soil quality meeting Table 1 or background levels. Table 1 is the most difficult level to achieve, and the clay factor adds more challenge. The client also wanted to save money by using NextGen tech. We had many team discussions that involved the client, his environmental consultant, his geo-technical consultant, local authorities, the environment ministry, Oxy Teknologies (the chemical provider) and my company. The obvious concerns were the technology’s effectiveness and health and safety — the latter being a real concern when hydrogen peroxide is used in an unstabilized form (which made the OXYTEK-L a better choice as it’s stabilized). Technicians wore appropriate protective clothing and the remediation zone had to be free of untrained personnel during the appli-

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cation of the product. Bench-scale testing and soil/groundwater modeling suggested that use of the oxy technology could achieve Table 1 results at the site. The first day set a record cold temperature — the first of many that followed. The process involved the use of OXYTEK-L: this is a stabilized mixture of hydrogen peroxide and other proprietary substances to enhance the “Modified Fenton’s Chemistry” technique to remediate both soil and groundwater. The next problem was how to get the chemical compound to the contaminants of concern. In the end, two methods were used. The first was a modified form of in situ remediation that involved spraying the soil/groundwater with the compound and using an excavator to mix the soil, water and compound into a homogenous material. This proved to be very effective for contamination up to three metres deep. The second method was an ex situ remediation (due to the depth of the excavation). Excavation determined that some underground storage tanks remained, two of which were completely rusted and to contain the solvents thatPage had contaminated CBN assumed new version 9/3/08 9:22 AM 1 the surrounding shale/bedrock and groundwater.

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The soil was removed from the excavation and stockpiled for treatment with the compound using a spray nozzle and appropriate health and safety precautions. The mix ratio in both remediation processes was predetermined so that a sufficient dose was administered to meet Table 1 criteria and also to allow for any organic loading in the soil (determined during bench-scale testing). However, field modification of the formula was made by the on-site Oxy Teknologies rep for such things as the surprise tank episode. Despite additional tonnages requiring treatment and trying to keep the mixing water from freezing in 5,000 gallon tanks, the project was completed on time and the Table 1 result was achieved. The client also saved more than $500,000 on the project compared to traditional dig and dump. Over 15,000 tonnes of soil was diverted from landfill and recycled on site.

Burlington case study Another project involved a building in Burlington previously used to package chemicals. The contamination was under the building and a previous cleanup attempt using

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Risk Assessment UÊ Õ > Ê i> Ì Ê> `ÊiV } V> ÊÀ Ã Ê>ÃÃiÃÃ i ÌÃ UÊ/ Ý V }ÞÊ> `Ê >â>À`Ê>ÃÃiÃÃ i ÌÊ vÊV i V> Ã UÊ Û> Õ>Ì Ê vÊÀ Ã ÃÊÀi >Ìi`ÊÌ ÊV Ì> >Ìi`ÊÃ ÌiÃ UÊ*À L>L ÃÌ V]Ê Õ Ì i` >]ÊiÝ« ÃÕÀiÊ> `ÊÀ Ã Ê >ÃÃiÃÃ i ÌÊ `i } UÊ iÛi « i ÌÊ vÊ*À «iÀÌÞÊ-«iV wVÊ-Ì> `>À`Ã UÊ*iiÀÊÀiÛ iÜÊ vÊV Ì> >Ìi`ÊÃ ÌiÊÀ Ã Ê>ÃÃiÃÃ i ÌÃ UÊ*ÕL VÊV ÃÕ Ì>Ì Ê> `ÊÀ Ã ÊV Õ V>Ì

Regulatory Affairs UÊ Ý«iÀÌÃÊ Ê" Ì>À Ê,i}Õ >Ì Ê£xÎÉä{ÊÜ Ì Ê> Ê iÃÌ>L Ã i`ÊÃÕVViÃÃÊÀ>ÌiÊÜ Ì Ê ÃÌÀÞÊ-ÕL ÃÃ Ã UÊ ÀiÊÌ > Ê£äÊÃV i Ì ÃÌÃÊÜ Ì ÊÌ iÊµÕ> wV>Ì Ã]Ê iÝ«iÀ i ViÊ> `ÊiÝ«iÀÌ ÃiÊÌ ÊµÕ> vÞÊ>ÃÊ>Ê+*, UÊ-Ì> ` }ÊV ÌÀ>VÌÃÊÜ Ì Ê " ]Ê Û À i ÌÊ > >`>]Ê> `Ê i> Ì Ê > >`>ÊÌ Ê«À Û `iÊiÝ«iÀÌÊ>`Û ViÊ ÊÌ Ý V }ÞÊ > `ÊÀ Ã Ê>ÃÃiÃÃ i Ì° ÀÊ ÀiÊ v À >Ì ]ÊV Ì>VÌ Dr. Glenn FergusonÊ

(905) 364-7800 Ext.206

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Serious water conditions to be treated using OXYTEK-L as an oxidant.

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potassium permanganate (effective on some VOCs but not on hydrocarbons) had failed. The previous attempt didn’t consider the very tight soil remediation; investigation during removal of the injection wells showed a radius of influence of less than one foot (0.3 metres). The property owner wanted the building intact as the structure building was part of a real estate deal. Another challenge was keeping the tenants in business by allowing access during remediation. The contamination was present in a zone three to six metres below grade under most of the building and the top metre under a smaller portion of the building. Discussions with the client (the former owner of the building), the present owner, the client’s environmental representative, OXY Teknologies, Frac-Rite, two drilling contractors and my company determined that the cleanup processes would vary due to the complexity of the project. The deep area that was a very tight clay matrix was determined to be a candidate for “soil fracturing” (oil patch technology to extract oil from the ground) that would give the OXYTEK-L a horizontal pathway in the soil. All soil had predetermined vertical pathways (the avenues via which the

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â&#x20AC;&#x153;In the end, two methods were used. This proved to be very effective for contamination up to three metres deep.â&#x20AC;?

Mixing of contaminated soil with OXYTEK-L.

Record low temperatures cause steam to rise from the freshly overturned soil.

contaminants got into the ground in the first place). The horizontal fractures intersect the vertical fractures and form a network. The fracturing was done through the same wells strategically placed in the building that confirmed the entire area of contamination. The drilling of wells inside the building proved to be a challenge but use of the correct drilling rigs addressed the problem. It took two drilling contractors performing various tasks to complete the project and also save the client money. Once the drilling was complete and the sand-filled fractures were placed, the chemical oxidant was pumped in using pumps designed to flood the fractured zone with the correct dose. However, it was determined during pumping that the zone was a lot shallower than originally reported. Contamination went all the way to the surface and there were contaminants not addressed in initial reports. The problem with fracturing is that it can only be done three metres or more below the surface (to keep the frac-

tures in a horizontal direction and achieving a five metre or greater radius of influence). The new information triggered a design change in the remediation. The concrete had to be saw-cut and a smaller excavator with a longer reach stick had to be used to mix and treat the soil in situ (for the top portion of the excavation). This process involved some disruption in the building but it was still quicker and cheaper than demolishing the structure. If the structure had to be demolished and rebuilt, the new building codes determined that only a much smaller building could be constructed. It was also determined that the contamination extended outside the building in an area that involved utilities and that would require new alternate parking spaces for the tenants almost immediately. In this area dig and dump was used to accommodate the tenant. This small dig and dump portion proved to be a serious burden on the budget. The smaller area of the building that was supposed to be one metre below grade turned out to be six metres below grade. However, the cost was mitigated by use of the long stick excavator and stepping down into the excavation. The remediation was achieved in situ using chemical oxidation. In the end, this project exceeded the original budget due to poor delineation supplied to the client by a previous firm, but the additional cost was mitigated by the use of NextGen technology. The project was completed for less than $1 million and saved the building as well as avoided disposal and backfill costs.

Paul Brander is President of Brander Environmental Strategies & Technologies Inc. in Hamilton, Ontario. Contact Paul at paul. brander@brander-environmental.com @ARTICLECATEGORY:803;

SPRING 2009 HazMat Management 23

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MUNICIPAL LIABILITY FOR ROADWAY CONTAMINATION

THE LONG AND WINDING ROAD A

lmost every municipality has contamination under roadways from common sources like gas stations, dry cleaners and local industries. All too often, municipalities aren’t aware of soil or groundwater contamination until someone digs, complains or sues. Municipalities face potential environmental liability for contamination as road owners and from their statutory obligations to maintain and repair roads. They may need to respond to occupational health and safety issues, environmental issues, potential tort claims and possible regulatory actions. Many off-site property owners and users do not take responsibility for the contamination that they’ve caused — particularly because roads are all too often considered to be without commercial land value. However, there are numerous consequences of contamination for municipalities that can be far more serious than the impact on the value of the road.

Consequences of contamination First, workers conducting maintenance and repairs in sewers or other subsurface utilities or reconstructing roads have been exposed to health and safety dangers from toxic or explosive vapours. There may be human health risks to workers at the contamination source property or at com-

Marc McAree 24 www.hazmatmag.com SPRING 2009

“Municipalities should consider bringing claims against adjacent and abutting property owners and users that pollute their roads.”

mercial or residential properties where contamination has flowed through and beyond the road allowance. Second, roads may be the conduit for contaminants to move to adjoining properties. Health risks can occur when explosive or toxic gases move within confined spaces such as sewers and basements. In recent years, health risks from vapour intrusion of petroleum or solvent fumes through cracks in sewers or basement floors and foundation walls has emerged as a rising concern. Diminution of property value resulting from vapour intrusion of solvents into residential homes is driving the application for class action certification in the Cambridge, Ontario case of Watson v. Northstar Aerospace. Municipalities may be liable for contamination caused by others that moves from an adjacent property onto or under a municipal road and continues under the road and onto another innocent third party’s property. At some point, a municipality may be obliged to investigate indoor air quality and explosive levels of vapours on abutting, down-gradient properties. It may have a duty to warn third parties of moving contamination. When the municipality becomes aware that contamination is flowing through its roadway, it may have an obligation to take steps to prevent further contaminant migration beyond the road, even though it is not the polluter. As yet, there is no clear case law to guide municipalities. However, they are targets for potential litigation when road contamination occurs. Moreover, several cases before the courts may recommend an increased duty on public authorities to warn of and abate environmental health risks. In Berendsen v. Ontario [2008] O.J. No. 179 (Ont. S.C.) (currently under appeal), Ontario’s Ministry of Transportation was found liable for contamination of water on a dairy farm by its road construction contractors. In the Nova Scotia tar pond case, MacQueen v. Ispat Sidbec Inc., [2007] N.S.J. No. 144, (Jason Murray / iStockphoto.com) (N.S.C.A.) (leave to appeal to SCC denied), a potential class action is being brought against the governments of Nova Scotia and Canada for breach of fiduciary duty for assuring local residents that continuing to live in a contaminated area was safe, where the governments may have known it might not be safe and where the governments may have

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had some responsibility for the pollution. A third source of exposure for municipalities involves the contamination of a municipal road when utilities are replaced and roads reconstructed. Municipalities must excavate road beds and soils to replace and upgrade subsurface utilities. While undertaking these works, they must ensure worker safety and proper management and disposal of contaminated soil and groundwater. Uncontaminated groundwater can normally be directed to a nearby sewer. If contaminated, it may need to be pumped out and treated before discharge. Contaminated soil needs to be tested to assess disposal options and may have to be disposed of at a hazardous waste site at extra expense. Significant incremental costs may be incurred by municipalities in dealing with this contamination.

Limiting the risk Since 2004, Ontarioâ&#x20AC;&#x2122;s Limitations Act, 2002, has made it

Project2 3/2/09important 11:17 AM Page 1 increasingly for municipalities to act promptly on

information reported to them about contamination. Since

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the limitation for actions is now only two years from discovery, if information takes too long to reach decision-makers, claims can be statute barred. This means that complaints and claims by third parties as well as any discovery of contamination by municipal staff, contractors and consultants need to be properly recorded and communicated. Municipalities should adopt a systematic approach to manage the receipt of environmental information and reports from adjacent property owners about contamination. They should delegate a staff member or department with responsibility to collect and assess information about contamination that comes to the attention of the municipality. This information should be reviewed regularly and periodically with legal counsel, who should assess limitation periods for bringing suits against polluters. Municipalities also need to assess whether contamination exists and presents any concerns before undertaking a road works program that might involve a contaminated area. Failure to do so means that the municipality risks identifying environmental concerns during excavation that will bring the work to a halt, complicate and increase the time

SPRING 2009 HazMat Management 25

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A third source of exposure for municipalities involves the Paracel/AB/HMM 9/9/08 12:34 PM Page 1 contamination of a municipal road when utilities are replaced and roads reconstructed. Municipalities must excavate road beds and soils to replace and upgrade subsurface utilities.

OTTAWA

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“At some point, a municipality may be obliged and cost to complete the work, which may inadvertently put workers at risk. Municipalities should consider bringing claims against adjacent and abutting property owners and users that pollute their roads. This can start by placing the neighbouring property owner on notice of the presence of contamination in the road and seeking a negotiated resolution. Where possible, municipalities should require the polluting property owner to stop the ongoing migration of the contamination onto the road and to clean up contamination on the source property, on the road and on any property to which the contamination has moved.

Indemnities Municipalities should require indemnities from polluters as an appropriate solution in certain circumstances. An indemnity may provide for recovery of incremental costs of road reconstruction related to contamination, third-party claim costs and costs to respond to action that regulators may take such as issuing investigation and clean-up orders.

to investigate indoor air quality and explosive levels of vapours on abutting, down-gradient properties.” This article first appeared in The Lawyers Weekly “Focus on Municipal Law” section, September 26, 2008.

Marc McAree is a certified environmental law specialist and partner at Willms & Shier Environmental Lawyers LLP in Toronto, Ontario. Contact Marc at mmcaree@ willmsshier.com @ARTICLECATEGORY:807;

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SPRING 2009 HazMat Management 27

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MAKING BIOREMEDIATION A SUSTAINABLE SOLUTION

MICROBES by Kevin Sharfe

“T

he microbe will have the last word,” wrote Louis Pasteur. Perhaps, but the microbe must last in order to have the “last word.” Scientists can deliberate endlessly over which technologies are most effective at enhancing bioremediation. In brownfield remediation, bioremediation is a process where microbes (i.e., bacteria) are used to break down and cleanup contaminants (e.g., hydrocarbons). From mechanical to aqueous solutions, each functions to enable a common objective: the promotion of a microbe-supporting environment. That environment, as archaic and understood as it may be, is often accompanied with a list of limitations; successful technologies can overcome these limitations and enhance the process. There are four stages of growth in a microbe’s life cycle. As these growth phases progress over time, microbes encounter various conditions that may threaten their ability to grow and reproduce. It’s important to recognize the relationship between the microbes’ biotic (life) and abiotic (non-life) environment. Media and strata in the ground can restrict flow (i.e., how the microbes are mobilized); microbes may have trouble contacting their food because of microbial crowding and competition (i.e., limited bioavailability) and microbes trying to attract the hydrocarbons compete with opposing electro-magnetic forces that also attract hydrocarbons. These biotic and abiotic dynamics can be compared with a human experience. Some social gatherings are an organizational nightmare. Take a mid-summer corporate lunch buffet. Upon arrival and after climbing broken escalators and running into people you didn’t want to see, the venue is standing room only and it’s not ventilated. The buffet table is too short. The lineup is too long and the turkey has not been carved. As a human, you wait impatiently, storm out with frustration and send a nasty email. A microbe does not have that same luxury. When an energy source is inaccessible and spaces are limited, microbes will either spore up or die. “Breathing” is an additional consideration for some microbes. Aerobes require oxygen as an electron acceptor to perform the fastest form of cellular respiration and reproduction. This essential element may be scarce, if available at all,

Kevin Sharfe 28 www.hazmatmag.com SPRING 2009

“Oxygen should be available in order to sustain rapid bioremediation.”

throughout impacts found deep in situ. Calculated intervention is often required to enhance and sustain deep in situ bio-remedies, mechanically assisted bioremediation or biopile treatments, among others. Bioremediation hinges upon sustained microbe growth and reproduction, and the microbes eating their food -contaminant metabolization. It’s paramount that enhancement technologies attenuate environmental conditions that threaten a microbe’s life cycle. Aqueous solutions that are injected deep in situ or applied to expedite biopiles and above-ground treatments can provide critical support systems. The aqueous technology corralling microbes should act as a wetting agent to improve hydrocarbon accessibility. Contact emulsification should compromise conflicting molecular kinetics that bind and sequester hydrocarbons in media such as soil, sand and rocks, etc. The particle-sized stable hydrocarbon colloids will function to expand living/ feeding spaces and prepare the energy like a carved turkey in a well organized buffet (i.e., enhance bioavailability). A persistent miscible flow should penetrate media with greater ease while repelling hydrocarbon coalescence. Oxygen should be available in order to sustain rapid bioremediation. Aqueous cytokinetic technology or a cell-tocell communicating solution can trigger aggressive microbe cell development to enhance bioremediation. The reaction catalyzed by this microbe-supporting solution can maintain and sustain an aerobic condition, deep in situ without chemical release or mechanical aeration. Hydrocarbon EM and BioActivate are two aqueous technologies from Clean Earth Solutions Ltd. that mitigate biotic and abiotic considerations and bolster sustainable microbial development. They are being used to bioremediate hydrocarbon impacts in soil and groundwater. For example, petroleum hydrocarbon impacted groundwater found nine to 10.5 meters below ground surface has delivered the following data which demonstrated stimulated and sustained microbial activity: Dissolved oxygen (DO) was measured to monitor the aerobic condition. DO pre-injection values increased from <3 mg/L to approximately 11 mg/L through week 1 through 9 post injection. Heterotrophic plate count (HPC) used to measure bacteria growth in the impacted groundwater increased from 2500 CFU/ml to 93,000,000 CFU/ml in week 7 following treatment. What does it all mean? Given the right technology, microbes will “last” and bioremediation can be a sustainable solution.

Kevin Sharfe is President of Clean Earth Solutions Ltd. in Concord, Ontario. Contact Kevin at ksharfe@cleanearthltd.com @ARTICLECATEGORY:803;

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UNLOCKING THE MYSTERY OF MOTIVE WHILE RESTORING AN OLD INDUSTRIAL SITE IN CALGARY

OLD SITE, NEW PERSPECTIVE by Scott Eagleson, M.Sc.

ooking beyond corporate stance, beyond a specific position on an issue, and understanding the motives guiding the other party’s actions takes courage and time, but builds a strong foundation for a lasting agreement. Brownfield agreements tend to be like the sites they cover — every one is unique, but what each one must have is a shared vision of the future. That future, that shared vision, can be held even when approached from different sides of an issue. This is the lesson that made itself evident as the City of Calgary and Imperial Oil Limited reached an agreement for long-term land use and risk management of the former Imperial Oil Calgary Refinery site in 2007. Imperial’s Calgary Refinery lived a life like many petroleum sites. State-of-the-art when it opened in 1923, it refined crude oil and condensate from southern Alberta, receiving its feed via rail car prior to pipelines being installed. Upgrades helped it keep pace with demand for 50 years, but it slowly fell into redundancy with the introduction of newer, larger facilities on the outskirts of Edmonton. As the refinery was being decommissioned in the late 1970s (the industry standard was to clear surface infrastructure only), Calgary was in the midst of another economic surge and the city was busily obtaining land for the right-of-way of a major transportation project: the Deerfoot Trail, the urban extension of the Queen Elizabeth

HMMsept08gm1307

Scott Eagleson

“An organization can no longer afford to negotiate on Kilmer.qxd 9/12/08 4:27 PM Page position alone.”

II Highway (Highway 2). The city’s quiet purchase of the main refinery site in 1977 for the new highway relegated most of the former refinery site to urban natural area, with enough space to accommodate short-lived lease opportunities. Any environmental issues that popped up were handled in a one-off fashion by a busy municipal engineering division. Like many brownfield sites, it’s not the site that changes, it’s the context. In the 30 years since the site’s closure, Calgary has grown to envelope the old refinery; highways cross it, railways and new roads border it. Calgarians cycle along it to work while others walk their dogs on it daily. It was a long path, many years before the city and Imperial Oil voluntarily came to the table. The new agreement is founded on three major documents: the Risk Management Agreement between the city and Imperial Oil; a ground lease with links to the agreement; and a Memorandum of Understanding between the city, Imperial Oil, and Alberta Environment (the provincial regulator). Consider the RMA an outline of the Risk Management Program, and an instrument for cost sharing and liability allocation, with mechanisms for dispute resolution and other “what ifs.” The ground lease is a 99 year lease to enable Calgary to include property owned by Imperial Oil in the land use plan. The MOU is a critical document because it both acknowledges the regulators endorsement of the agreement and removes the uncertainty of future criteria adjustments. In this instance, there were three parties who stood in three different positions, which on the surface could appear disparate and polarized. Trying to change any of these positions is a futile exercise because positions are locked to corporate and agency mandates or organizational culture, and therefore cannot change easily or quickly. But if the time is taken to truly understand what created these positions, what I refer to as motive, then common ground is often found lying beneath. Perhaps a regulator is only

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seeking to assign ownership of pollution and protection of environmental receptors; or the former site operator wants liability control and financial predictability; or the municipality needs liability protection and income generation. For the former Calgary refinery, understanding these motives lead to the collaborative creation of a mutually-shared vision, one that would satisfy each organization regardless of which position they occupied. This shared vision will materialize as a great new open space recreation facility, Clean surrounded by a river bank corridor holding recreational pathways and protecting riparian habitat while joining two natural area parks. Respective positions were never compromised, and the true objectives of each organization were

still met. The agreement is a win for the city and Imperial Oil as well as local regulatory agencies, and provides a benefit for the community and all Calgarians. Can every organization’s position be completely satisfied all of the time? Probably not. But an organization can no longer afford to negotiate on position alone. It takes a deeper understanding of what truly brings the other stakeholders to the table to open doors to constructive, collaborative1 agreements. Earth 9/17/08 1:53 PM Page 1

Scott Eagleson, M.Sc., is Environmental Specialist with the City of Calgary, Alberta. Contact Scott at scott.eagleson@calgary.ca @ARTICLECATEGORY:803;

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INNOVATIVE REMEDIATION:

IS DIG-AND-DUMP DEAD?

n early February, the Ontario Centre for Environmental Technology Advancement (OCETA) and the Ontario Federal Contaminated Sites Action Plan (FCSAP) Interdepartmental Regional Working Group host a workshop of innovative remediation solutions. (See next page for photos.) OCETA’s role in the environmental remediation sector can be best described as on one of a catalyst or enabler, including a promoter of innovative remediation solutions. Since 1994, the not-for-profit organization has had the mandate to assist early stage companies in commercializing new environmental technologies. The workshop was well-attended by property owners, consultants, vendors and government officials interested in discussing the challenges to cleaning up contaminated sites. One aspect of the workshop was to make attendees aware of the increasing number of made-in-Canada solutions to site remediation.

Federal Program The workshop included an update on the Federal Contaminated Sites Inventory and the new an internetbased tool to assist in the selection of technologies for the cleanup of contaminated sites, the Guidance and Orientation for the Selection of Technologies (GOST). As an aid in determining the right technology for a specific site, GOST provides a list of tests that should be performed when conducting a detailed site characterization. By answering a series of questions based the site characterization study, GOST provides a recommendation on relevant treatment technologies. The site contains detailed descriptions of 60 treatment technologies broken down type: biological treatment (17), chemical technologies (12), physical technologies (15), thermal destruction (12), and non-aqueous phase liquid (NAPL) recovery (4). The GOST site can be accessed at http://gost.irb-bri.cnrc-nrc.gc.ca/home.aspx The OCETA workshop included 10 technology vendors who provided an overview of specific treatment technologies that can be applied to specific sites. The technologies are an alternative to the conventional “dig-and-dump” strategy where contaminated soil and sediment was dug up and transferred to landfill. The challenge for any innovative treatment technology is that it must compete with the price and convenience of “dig-

John Nicholson

“One of the best suggestions was a standardized performance management system for site remediation.”

and-dump.” For example, in the Greater Toronto Area, the dig-and-dump cost per tonne of contaminated soil from a gas station is approximately $40 to $50. The additional challenge for in-situ cleanup technologies is discomfort from risk-adverse property owners over the fact that low level contaminant concentrations will remain in the soil or sediment following treatment. The assurance from a consultant that the level of contamination is below the regulated limited — and risk management models show there will be minimal, if any, health and environmental impacts — is little comfort to a property owner worried about changes in the regulatory limits. Despite the obvious preference for dig-and-dump, innovative remediation companies are growing. There are many examples where dig-and-dump is not feasible or economical. Of the 10 technology vendors that presented at the workshop, some have been around for over 20 years and have hundreds of case studies proving their technology works. Breakout sessions at the workshop were held to brainstorm solutions to promote the use of innovative remediation technologies. One recommendation was for government to promote and facilitate the use of demonstration programs to test and validate innovative technologies. A less practical recommendation was for the government to promote innovative technologies through regulatory drivers. Considering the government’s primary role with respect to contaminated sites is to establish cleanup standards to ensure protection of human health and the environment, the regulatory promotion of innovative technology over conventional methods could prove difficult. There were several good suggestions on what the remediation industry could do to promote itself. One of the best suggestions was the establishment of a standardized performance management system for remediation at sites. Such a system would increase the comfort level of property owners as to the viability of innovative technologies.

Clean technology report During the workshop OCETA announced the release of a report, in collaboration with Sustainable Development Technology Canada (SDTC) and the Ontario government, on Ontario’s Clean Technology Industry slated for late February. The report, entitled The 2009 OCETA SDTC CleanTech Growth & Go-to-Market Report, analyzes Ontario’s clean technology industry. Included in the report are recommendations to government and clean technology companies on strategies to grow the industry. In future columns I’ll address some of the more promising technologies discussed at the workshop and profile successful case studies.

John Nicholson, M. Sc., P. Eng. is based in Toronto, Ontario. Contact John at john.nicholson@ebccanada.com @ARTICLECATEGORY:803;

SPRING 2009 HazMat Management 31

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REMEDIATION TECHNOLOGIES SYMPOSIUM

n February 2-3, 2009, the Ontario Centre for Environmental Technology Advancement (OCETA), in collaboration with Ontario FCSAP Interdepartmental Group, held the Innovative Remediation Technologies Symposium at the University of Toronto Residence in Toronto, Ontario. The event was held over a day and a half and featured seminars, networking lunches and a mini trade show. There were presentations from many industry lead@Head:Remediation Technologies Symposium ers, as well as associations that have a leading role in the @First Paragraph:On 2-3,related 2009, the Ontario development of new February technologies to site remediaCentre Environmental Technology Advancement tion likefor Sustainable Development Technology Canada. The (OCETA), collaboration with Ontario FCSAP presentersinhelped to identify and address issues, barriers Interdepartmental Group, held the Innovative Remediation Technologies Symposium at the University of Toronto Innovative Residence in Toronto, Ontario. The event was held over a Remediation day and a half and featured seminars, networking lunches Technologies and a mini trade show. There were presentations from Symposium at many industry leaders, as well as associations that have the University a leading role in the development of new technologies of Toronto related to site Residence in remediation like Sustainable Development Toronto, Ontario

Kevin Sharfe, President of Clean Earth Solutions Ltd. in Concord, Ontario.

Sandra Dworatzek, Laboratory Manager of Sirem in Guelph, Ontario.

32 www.hazmatmag.com SPRING 2009

Technology Canada. The presenters helped to identify and address issues, barriers and challenges faced by custodians of contaminated sites in Ontario. There were case studies on the use of innovative technologies at Federal contaminated sites. The symposium closed with breakout sessions on opportunities and impediments to the use of innovative remediation technologies and approaches at contaminated sites in Ontario. This event was sponsored andthe challenges faced by custodians of contaminated sites in by Federation of Canadian Municipalities, Clean Earth Ontario. There were caseAt studies on the use of innovative Solutions and Adventus. over 140 attendees this event technologies at Federal contaminated The sympowas a great success! Keep your eyes onsites. hazmatmag.com sium closed breakout sessionsworkshop. on opportunities and event listingswith for the next OCETA impedimentswww.oceta.on.ca to the use of innovative remediation techVisit and www.sdtc. nologies and approaches at contaminated sites in Ontario. ca This event was sponsored by the Federation of Canadian Municipalities, Clean Earth Solutions and Adventus. At over [PHOTO CAPTIONS] 1140 attendees this event was a great success! Keep your eyes on hazmatmag.com eventPresident listings for next OCETA @Photo caption:Kevin Sharfe, of the Clean Earth workshop.Ltd. in Concord, Ontario. Solutions Visit www.oceta.on.ca and www.sdtc.ca 2 @Photo caption:Business development representativeâ&#x20AC;&#x2122;s Business of Agat Laboratories in Mississauga, Ontario (left to development right) Shelley Hull, Stephanie Briggs and Natalie Bilkic. representativeâ&#x20AC;&#x2122;s of Agat

3 Laboratories in @Photo caption:Sandra Dworatzek, Laboratory Mississauga, Manager of Ontario (left Sirem in Guelph, Ontario. to right) Shelley Hull, Stephanie Briggs and Natalie Bilkic.

Anthony Mazzoni (left), VP Business Development and Jeffrey Marmarelli Business Development Manager of TIGG Corporation in Oakdale, Pennsylvania.

John Van Egmond, Principal of AeonEgmond Ltd in Mississauga, Ontario.

chemical-safety ... continued from page 16

Important phase-In Dates The regulation is being phased in over a period of 11 years. Depending on annual quantities, different deadlines apply to the full registration of “phase-in substances” (substances listed on the European Inventory of Existing Chemical Substances (EINECS) or that have been manufactured and/or marketed in a current member state within a period 15 years before REACH was passed). No such transition period is provided for non phase-in substances. Deadlines for phase-in substances are as follows: November 30, 2008 End of the pre-registration phase. To avail themselves of the three phase-in dates below, existing manufacturers and importers of phase-in substances had to pre-register the basic information. New entrants to the market are still eligible for the phase-in period despite the expiry of the pre-registration deadline. November 30, 2010 Deadline for full registration of any substance imported, manufactured or distributed in a quantity of 1,000 tonnes per year or more, any substance that is very toxic to aquatic organisms and imported in a quantity of 100 tonnes per year or more, and any substance that is carcinogenic, mutagenic or toxic to reproduction and imported in a quantity of one tonne per year or more. May 31, 2013 Deadline for the registration of any substance imported, manufactured or distributed in a quantity of 100 tonnes per year or more. May 31, 2018 Deadline for the registration of any substance imported, manufactured or distributed in a quantity of one tonne per year or more.

REACH also requires manufacturers, importers and distributors to create detailed safety data sheets for Sven Thorsten Hombach is an environmental lawyer with registered substances. These safety data sheets must be Fraser Milner Casgrain LLP in Toronto. Contact Sven at communicated down the supply chain. If the information sven.hombach@fmc-law.com is not provided to distributors, they will not be allowed to sell the materials. HMM @ARTICLECATEGORY:807;

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SPILL RESPONSE 34 www.hazmatmag.com SPRING 2009

The Tennessee Valley Authority Spill A Canadian contractor responds to the largest spill in U.S. history By Dec Doran

ust after midnight on December 22, 2008 an earthen dike gave way on the north side of the Tennessee Valley Authority’s (TVA) Kingston Fossil Plant in Kingston, Tennessee. Within seconds, more than a billion gallons of toxic-laden sludge — a by-product of coal combustion — escaped from an 80-acre retention pond and spilled into the nearby Emory River. After picking up speed, the toxic sludge roared through the Swan Pond area of Kingston, overwhelming everything in its path. Local residents described the spill as sounding like a huge tornado. Three homes were completely destroyed, 42 were damaged and 300 to 400 acres of land were covered with the heavy sludge. Fortunately, no one was injured; but the largest spill in U.S. history had occurred. The volume of the spill was 100 times larger than the Exxon Valdez spill of 11 million gallons in Alaska in 1989 (the cleanup of which this author also attended). The force of the spill washed out a road, ruptured a major gas line and destroyed power lines. It also killed a huge number of fish that washed up on the shores of several rivers. The water supply of people living downstream from the TVA plant was compromised.

Aerial vie w of the Tenness Kingston ee Valle , TN. Th y Authori e east w failed an ty’s coal all of a d 1.1 billi 40 acre burning on gallon which re retention plant in s of toxic sulted in p o n d (see re s lu the large dge spille d box) st spill in d into the U.S. histo environm ry. ent,

CLEANUP AND CONTROVERSY The stabilization and cleanup operations included dispatching wide-track amphibious excavators to the site to remove the mountains of toxic sludge in the Emory River and on private properties. The excavators loaded the toxic sludge onto dump trucks where it was returned to the TVA plant. Barges equipped with cranes were used to build a rock weir downstream from TVA’s breached retention pond to limit the spreading of the submerged sludge. Containment booms were placed at strategic locations along the Emory River for a distance of approximately eight miles downstream of the spill. The booms were used to contain the residues floating on the surface of the water. These residues, known as — “cenospheres” — are inert hollow balls of sand-like material not considered environmentall harmful. The sludge that spilled from the TVA plant contained heavy metals and other toxins such as arsenic, beryllium, cadmium, chromium and lead, which, depending on the levels and the extent of exposure, can cause ailments ran-

Several homes in this rural area were buried in the toxic sludge.

ging from nausea to partial paralysis. Long-term exposure to arsenic has been linked to several types of cancer. Recent water samples obtained by the Appalachian State University from the Emory River indicate arsenic levels 35 to 300 times higher than state drinking water criteria. Elevated levels of other heavy metals were also present in the water samples. However, samples obtained from the Emory River by the TVA indicate levels of arsenic and other heavy metals within the drinking water criteria. These and other conflicting reports have created a great deal of uncertainty and confusion in the minds of local residents. According to one resident who was directly impacted by the spill, people are having difficulty deciding who is telling the truth. Clearly, time will tell. The difficulties for local residents getting (what they believe) is reliable and honest information on the effectSPRING 2009 HazMat Management 35

a ge from s of slud n o ti c e s s large r remove excavato l area. s u io ib h act amp sidentia A wide tr es in this rural re m o h l ra seve

d bay behin Thousands of trees were destroyed by the force of the moving sludge. Dec Doran conducts a shoreline impact and damage assessment on Swamp Pond Circle.

Large wide track amphibious excavators were used to contain the leadng edge of the sludge in the Emory River. Note the proximity of the excavator to the open waters in the river.

iveness of the spill cleanup operations and potential long term effects has caught the attention of many lawyers and consultants, including well-known environmental activist, Erin Brockovich. With a team of lawyers, doctors and researchers by her side, Brockovich spoke about the spill to an audience of about 400 in the Roane State Community College gymnasium. Brockovich said she came to Roane County after receiving hundreds of emails from people asking her to visit. “I’m here on behalf of a community concerned with a tragedy,” she told the crowd. During the meeting, Brockovich presented a nineminute video made by a resident of Swamp Pond Road showing that person’s lakeside home before and after the spill. The audience sat in total silence as the video played, several wiping tears from their eyes. “We were really moved by it,” Brockovich said. From my experience working on over 2,000 spills over the past 30 years, the minutes of silence told the 36 www.hazmatmag.com SPRING 2009

real story of how the spill has devastated this community. What made the situation worse was that this spill could have been prevented. According to TVA, a $25-million plan to replace the faulty retention pond was rejected in 2006. The cost of that $25 million is going to seem like a pittance compared to the eventual cost of cleaning up the spill and restoring the natural environment. The big questions now are: how long it is going to take to clean up the spill, how much will it cost, and who will pay? According to my informal calculations, if TVA fills one dump truck every five minutes and works 24 hours a day, 7 days a week, it will take about two years to clean up the majority of the spill. Recovering contaminated sediments from the bottom of the rivers will be more complicated and will likely take many more years to complete. The cleanup has cost more than $1 million each day and it is expected to continue to cost that much for the foreseeable future. According to TVA, the cleanup and restoration costs will eventually be passed to

TVA President & CEO Tom Kilgore answers questions from concerned property owners during a public meeting in Harrisman, Tennessee.

e recover th tain and n o c to s c truck s and va use boom n Kingston. s w re c wntow recovery ent and line in do Containm s’ from the shore ere Erin Brockovich and Dec Doran “cenosph

industrial operator who may cancel or delay necessary work on a retention pond with toxic contents. HMM

Dec Doran is the Spill and Firefighting Coordinator for Oil Spill Control Services in Richmond Hill, Ontario. Contact Dec at oilspill@sympatico.ca @ARTICLECATEGORY:815;

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all TVA customers. (TVA will not be asking Washington for financial assistance.) This spill is the biggest spill in U.S. history and it may be one of the biggest environmental disasters ever, in its size and scope. It’s is a sad legacy with which the people of Kingston and TVA will have to live for a long time. And it’s a cautionary tale for mining companies and any

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hazmat-transportation

Remote Asset Management Benefits for the HazMat chemical industry by Homaira Akbari

he chemical industry is a vast global business characterized by the preponderance of high value and high security products. In 2006, chemical manufacturers and transporters shipped over 783 million tons of products; in the US, shipments of hazardous materials (HazMat) account for the majority of chemical loads. Given the high number and high volatility of these shipments, security has become a key priority for the industry. In addition, as global supply chains have grown in complexity and the value of chemical loads has risen, chemical supply chain management has become closely linked to cargo and national security, integration with multiple supply chain providers, and business adaptability and flexibility. A shift in manufacturing processes has led to both greater cross-border traffic, especially between Canada, Mexico, the US, and Asia, and greater national and cargo security concerns that require better coordination between parties to meet federal and industry standards. As the business has grown more complex, many companies have turned to third-party logistics firms (3PLs) to handle logistics operations from basic delivery coordination all the way to warehousing. Due to the intricate nature of the chemical transportation business, where the vast majority of shipments are intermodal (i.e., move via a combination of road, rail, and sea), there are still significant gaps in cargo visibility and business optimization. A remote asset management solution can fill these gaps, while adding greater security and financial savings in the both the short and long-term.

BENEFITS FOR HAZMAT CHEMICAL COMPANIES

“Only satellite solutions can provide true ubiquitous global coverage.”

Security advancements: Due to the valuable and hazardous nature of many loads, chemical companies cite security as a top business priority. Since 2003, the number of overall HazMat incidents has increased with the majority of HazMat transportation injuries occurring while unloading goods. In 2007, total number of incidents reached 19,234, a 27 per cent increase compared to 2003. Using a remote asset management solution that not only alerts users to changes in chemical environmental conditions during transit, but also allows for advance warning to those handling the goods, companies can dramatically reduce the number of annual HazMat incidents. With basic asset tracking products, chemical companies or their outsourced transporters can usually locate a load but are unable to determine if the load has shifted in state or safety since it was loaded. An advanced remote asset management solution can monitor cargo security

38 www.hazmatmag.com SPRING 2009

and environmental conditions such as chemical temperature, pressure, humidity, departure and arrival time, and location authentication, anywhere in the world. Thus, if a load traveling across the country by rail in an ISO tank container started to rise in pressure, the chemical company, and any other authorized users such as the railroad transporting the load, would immediately receive an alert with the load’s location and pressure status through an online service such as that offered by SkyBitz. The user could then take prompt action, such as remotely adjusting the pressure or, in extreme cases, coordinating with the railroad to stop the shipment, thereby taking proactive measures before the cargo became a danger to personnel, supply chain continuity, or the environment. Companies like Dow Chemicals, for example, have already begun to take full advantage of remote asset management solutions by implementing tracking and advanced cargo monitoring, including cargo door, humidity, and temperature status, across shipments worldwide. Supply chain visibility and efficiency: Remote asset management solutions allow chemical companies or their respective 3PLs to easily coordinate delivery between parties in the supply chain and quickly identify potential delays or disruptions. Under the current paradigm, asset visibility depends largely on the type of transport used. For example, Eastman Chemical has noted that while Eastman has prioritized supply chain integration, the company is still “dependent on the railroads to provide up-to-date fleet location information to enable effective utilization of … internal technology capabilities.” In contrast, the SkyBitz Inc. Global Locating System (GLS) solution provides location and status information independently from mode of transport by transmitting the data from a unit located on the tanker trailer, barge, container, or railcar. This intelligence in turn increases supply chain flexibility by providing companies with the necessary information to react quickly and accurately to changes in the velocity of freight movements and potential goods delays, and minimize the risk of insufficient (or excess) supply. A recent Stanford University study found companies that invested in supply chain asset management solution had a 30 per cent reduction in the time it took to identify, respond to, and resolve problems within the supply chain. Furthermore, due to the global nature of today’s supply chains, as well as heightened national security concerns, compliance with border and customs controls and regulations has become critical to performance. The Advance Manifest Rule/Advance Cargo Information,

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for example, requires submission of detailed cargo data prior to a load’s arrival in the US. Failure to provide this information can result in denial of entry. Once in the US, the Safe Port Act of 2006 requires the Department of Homeland Security (DHS) to scan inbound containers for radiation. Although the DHS is still conducting research to establish standards on container security, it hopes to eventually be able to scan all containers prior to US entry. Remote asset management solutions significantly aid with compliance by allowing customers to provide the requisite advance information to customs and border controls. In addition, implementing supply chain security measures has been proven to reduce cargo inspections and cargo delays due to customs clearance by up to 49 per cent. It’s important to note that the benefits cited above cannot be achieved without business analytics that enable operational and business optimization across all levels. From a business optimization perspective, remote asset management provides valuable data that allow compan-

40 www.hazmatmag.com SPRING 2009

ies to make better informed real-time decisions, from the plant manager to fleet dispatcher, up to C-level executives. The data must be integrated with existing operational systems in order to maximize optimization and efficiency and allow coordination across parties. This integration typically has two components: information technology (IT) systems integration to perform analytics and display the relevant operational data and business information efficiently, and operational internal processes and procedure modifications and optimization based on this data and information in order to attain the full business case and return on investment. Financial benefits: Remote asset management solutions of the kind offered by SkyBitz Inc. provide not only financial savings but also additional revenue generation capabilities. In terms of savings, remote asset management technology mitigates a company’s security liabilities, increases supply chain efficiency, reduces cargo damage, reduces capital expenditures by decreasing the need for new equipment, and decreases staffing and IT

hazmat-transportation

costs associated with collecting and integrating safety, security, customs, and supply chain data across the chemical transportation ecosystem. From a security perspective, companies that invest in supply chain and remote asset management solutions have seen reductions of up to 75 per cent in theft. Remote asset management solutions afford savings in load recovery and lost revenue. Increased equipment utilization allows significant capital expenditure savings in companies looking to expand. A company that implements remote asset tracking across its fleet of tank railcars and containers will increase efficiency, and thus the number of loads per week, of each of its equipped tanks. This equates to adding additional capacity to a fleet without needing to purchase or lease additional equipment. Therefore, a company that used 1,000 tanker trailers to carry loads can continue to expand its business while maintaining the same fleet size. Due to the complex nature of their supply chains, chemical companies also prize flexible solutions that allow

for standardization, and thus synergistic cost efficiencies, across different product and transportation types. Of the three primary technologies used in remote asset management — Radio-Frequency IDentification (RFID), cellular and satellite — only satellite solutions can provide true ubiquitous global coverage. RFID and cellular solutions are ill-fitted to the chemical industry, as they tend to be large systems that require expensive and complex installations. SkyBitz uses satellite communications infrastructure with global coverage capabilities, allowing companies to use one remote resource management solution worldwide. Thus, a company sending a shipment of pharmaceuticals from China to Canada could monitor its cargo throughout the entire journey, regardless of whether it is traveling by sea, land, or air. HMM

Homaira Akbari is President and CEO for SkyBitz Inc. in Sterling, Virginia. Contact Homaira at amitchell@skybitz.com @ARTICLECATEGORY:809;

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Decon gel for radiological incidents CBI Polymers, a division of Cellular Bioengineering Inc. (CBI), has announced the launch of its DeconGel™ 1101 product. DeconGel™ is an effective radiological decontamination solution available to industries worldwide ranging from nuclear power utilities, decommissioning and decontamination sites, hospital facilities, and research laboratories. The worldwide market is estimated to be $200 million per year. The material effectively decontaminates a broad range of surfaces and contaminants. Its binding properties allow it to trap and encapsulate a wide spectrum of radioisotopes on different substrates in a simple, no-preparation process allowing easy and safe disposal without the use of water or cleaning agents. DeconGel™ has been in beta testing for the past year, and has secured more than 30 customers around the world. Current customers include Ontario Power Generation, Washington Savannah River Company, Sandia National Laboratory, Lawrence Livermore National Laboratory, Colorado State University, and Tripler Army Medical Center. Visit www.decongel.com

Hazardous waste incineration report The usage of hazardous waste as fuel to provide energy needed to make aggregates, cement, and recycle sulfuric acid was about the same in 2007 as it was in 2006 according to The Envirobiz Group Inc. In the what is its 18th annual EI Digest report on the hazardous waste usage, the waste market consulting firm noted that the amount of fuel usage in recent years has remain relatively flat

despite apparent improvement in industrial production reported in Federal Reserve statistics (during the period of 2003 through 2007). This report is in essence the accumulative research of the firm from the period of 2000 through 2007 (along with some assorted BIF and Incinerator market research dating back to 1990). The report has some especially useful data on what happened in our last recession as well as how hazardous waste fuel usage trends have compared to a key economic index for industrial production since 1990. In addition, there is some very important market perspective provided about the impact of potential final and temporary closures on the balance of demand for hazardous waste fuels and available supply. The consulting firm notes that it is likely that a couple of the commercial boilers and industrial furnaces (BIFs) will permanently cease their hazardous waste fuels usage within the next year. This translates to more fuel availability for the remaining BIFs and a reduction in the number of competitors. Elaborating on this point, report’s principal analyst, Mr. Cary Perket, noted: “The combination of events, due in part to a downturn in demand in cement, has the potential to create a 2009 market situation where demand and supply is nearly in balance, despite the recession. This situation would be a significant improvement over 2007 where there was a significant over-capacity.” Visit www.envirobiz.com/EI-hazardous-waste-digest.html @ARTICLECATEGORY:809;

42 www.hazmatmag.com SPRING 2009

hazmat-products

The LDR Program Preparing for the new Land Disposal Restrictions

he Land Disposal Restrictions program (LDR) will be fully implemented by the end of 2009. This program was enacted in March 31, 2006, with the introduction of Regulation 461, which amended Ontario’s Hazardous Waste Management Regulation 347. Essentially the program is designed to ensure that the Ontario government meets its commitment to prohibit the land disposal of untreated toxic sludge. By adopting pre-treatment requirements the standards used in Ontario will now be closely aligned to those that have been used in the United States for many years. In addition to the land disposal prohibitions there are two others; prohibition of waste dilution and formal restrictions on extended storage. In order to comply with the requirements of this program, generators of hazardous wastes will have to assess their waste streams and identify any components that are subject to LDR requirements. When these are found the generator is required to notify its waste services provider by submitting additional information on its Generator Registration Report, Form 2B. This is normally accomplished by up dating on-line utilizing the Ontario Ministry of the Environment’s Hazardous Waste Information Network (HWIN) facility. If a generator adopts pre-treatment programs for their waste management they are also required to submit a Waste Analysis Plan to the environment ministry. Generators should note that it is illegal to HMMsept08gm1310 Oshawa.qxd 9/17/08 1:42 PM dilute wastes in order to circumvent the LDR thresholds

and extended storage beyond 90 days requires approval from the ministry. Furthermore, storage beyond two years will now require application for a Certificate of Approval. The LDR program takes two key approaches to controlling where wastes may be land disposed. Waste that are Listed Wastes (i.e., those that are listed in Schedules 1, 2A, 2B and 3) are always deemed hazardous and must be disposed of in a hazardous waste landfill, even though they have been treated to meet the standard. Waste that are Characteristic Wastes (i.e., not listed but deemed hazardous by nature of their essential characteristics of ignitability, corrosivity, reactivity or leachate toxicity) may be disposed in a non-hazardous waste landfill after treatment and removal of any underlying hazards in the waste stream. To assist impacted generators in application of the LDR program the environment ministry has published an LDR Handbook and has made appropriate amendments to the Registration Guidance Manual for Generators of Liquid Industrial and Hazardous Waste. HMM John Hosty is president of the Warsash Group in Burlington, Page 1 Ontario. Contact John Prarie.qxd at jhosty2@cogeco.ca Grand 8/28/08 5:17 PM @ARTICLECATEGORY:819;

by John Hosty

“The program ensures Ontario meets its commitment to prohibit the land disposal of untreated toxic sludge.” Page 1

General Motors Centre The General Motors Centre in downtown Oshawa won the Canadian Urban Institute’s 2007 Brownie Award for “Best Overall Project”. This premier sports and entertainment facility demonstrates the City’s commitment to brownfields redevelopment, environmental conservation and downtown revitalization. City of Oshawa Development Services Department, Planning Services, 50 Centre Street South, Oshawa, Ontario L1H 3Z7 Phone: 905.436.3853 Toll Free: 1.800.667.4292 Fax: 905.436.5699 Email: planning@oshawa.ca www.oshawa.ca

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news

SunriSe ProPane PlaintiffS win SkirmiSh

from Canada to submit confirmation of destruction, within 30 days after the foreign Proposed plaintiffs in the Sunrise Propane receiver disposes of the waste. No specific class action have won a skirmish, forcing format is prescribed. Like many others, RPR provincial regulators to immediately turn Environmental believed that Environment over photographs, videos and parts of wit- Canada was content to accept Copy 3 of ness statements concerning the explosion the completed manifest as adequate proof site. Regulators had refused to provide these of destruction, especially where the receiver documents, arguing that they are still in the promptly disposed of the waste. course of their own investigations, and that For reasons best known to Environment disclosure of their documents may impede Canada, they did not communicate their their ability to prosecute those responsible. dissatisfaction with this interpretation to Master Dash of the Ontario Superior the waste industry. Environment Canada Court ruled that that the plaintiffs’ had a could, and should, have written to each of legitimate, immediate need to understand the (highly regulated) professional waste the condition of the site, after the explo- brokers, requesting separate confirmations sion but before the provincial investigation of destruction. At a minimum, they could and cleanup. Since the regulators had taken have clearly communicated this through exclusive possession of the site, and there- industry associations or newsletters. fore had the only evidence of its condition Instead, RPR’s first indication of any at the relevant time, they were obliged to problem was the arrival of 17 officers in flack turn over a minimum set of documents jackets with a search warrant. Investigators forthwith, at the cost of the plaintiffs. See ransacked their offices (twice), seized hunDurling v. Sunrise Propane. dreds of documents, copied computer disks, — Dianne Saxe terrified employees, left files in a shambles, laid three different sets of charges, and abSolute diScharge caused years of upheaval. And what the under cePa matter ultimately came down to was legitiAn Ontario company received an abso- mate confusion about the interpretation of lute discharge for unwittingly breaching s.36. After all the drama, and much wasted Section 36 of the Export and Import of expense (public and private), the company Hazardous Waste and Hazardous Recyclable made a $5,000 donation to a local charity, Materials Regulations, under the Canadian conducted a training course, and received Environmental Protection Act 1999. This sec- an absolute9/12/08 discharge with fine.Page 1 Bizcard ad HMMsept08gm1264 Cunningham.qxd 3:57noPM tion requires those exporting hazardous waste — Dianne Saxe

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canada-wide ePr action Plan

In 2006, Statistics Canada data showed Canadians generated almost 1,100 kg of municipal solid waste per person, up 8 per cent from 2004. This represents about 35 million tonnes, of which just over 27 million tonnes was sent for disposal in landfills and incinerators and another 7.7 million tonnes was diverted as recyclables or organics. Canada’s waste diversion performance lags behind other G8 and OECD countries when it comes to waste diversion and disposal. A waste management approach that has developed in response to these issues is the concept of the producers of products being responsible for their endof-life management: Extended Producer Responsibility (EPR). Through a Canadawide Action Plan (CAP) for EPR, the Canadian Council of Ministers of the Environment (CCME) is seeking to provide guidance on the development and implementation of EPR programs, to strengthen the use of EPR as an environmental riskmanagement tool and to contribute to the harmonization and consistency of programs across the country. The CCME has published “Towards a Canada-wide Strategy for Sustainable Packaging — Draft for Consultation” available for download under posted documents at the magazine website www.hazmatmag.com

ontario mhSw Program introduced

Stewardship Ontario, the industry organization responsible for the Blue Box program and the Municipal Hazardous or Special Waste (MHSW) program, is making it easier for Ontarians to recycle old batteries, paint, solvents and other “household hazardous waste” with a new initiative under the MHSW program called Do What You Can. The MHSW program aims to more than double the amount of hazardous or special waste diverted from landfill over the next five years. Materials targeted under the program include paint, solvents, nonrechargeable batteries, antifreeze, propane cylinders and other items commonly found in Ontario homes but which need special care when there are leftovers and used containers. Visit www.dowhatyoucan.ca

44 www.hazmatmag.com SPRING 2009 CASSELS BROCK/MC7575/HMM.indd 1

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advertiser index

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ADVERTISER................................................................................................. PG.#

ACE.Insurance....................................................................................................12

Kilmer.Brownfield.Equity.Fund.......................................................................29

AIM.Environmental.Group...............................................................................30

MMM.Group......................................................................................................30

AGAT.Laboratories.Limited.............................................................................29

Municipality..of.Temagami..............................................................................30

AMEC..................................................................................................................45

PCB.Disposal......................................................................................................37

CanBuild..............................................................................................................38

Pinchin.Environmental.Ltd...............................................................................22

Cassels.Brock.LLP..............................................................................................44

Proeco...................................................................................................................5

Cdn.Brownfieldâ&#x20AC;&#x2122;s.Network...............................................................................47

Quantum.Murray...............................................................................................48

Cement.Assoc.of.Canada.................................................................................25

Sanexen..............................................................................................................35

Centre.for.Advanced.Visualization..................................................................29

Seneca.College..................................................................................................35

City.of.Grande.Prairie.......................................................................................43

Strategic.Reality.................................................................................................19

City.of.Oshawa.Dev.Services...........................................................................43

Sustainable.Development.Technology.Canada............................................45

Clean.Earth.Solutions.Ltd................................................................................29

Team-1.Environmental.Services.Inc.................................................................2

Clean.Harbours..................................................................................................10

Terrace.BC........................................................................................................ .19

Cunningham.Gillespie.LLP...............................................................................44

TIGG....................................................................................................................14

Davis.&.Company.LLP......................................................................................30

T..Harris.Environmental....................................................................................11

DTZ.Barnicke......................................................................................................19

Trans.Environmental.........................................................................................14

Federation.of.Canadian.Municipalities...........................................................27

Uniboard.............................................................................................................19

Greenspoon.Specialty.Contracting.................................................................26

Willms.&.Shier.LLP...........................................................................................34

Intrinsik................................................................................................................21

XCG.Consultants...............................................................................................22

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Zurich.Insurance................................................................................................47

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legal-perspective

Compliance

Canada’s Hazardous Waste Import-Export Regulations by Dianne Saxe, D.Jur.

“Waste handlers cannot rely on the movement document; what matters is the regulation.”

he Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal is a global agreement on proper management of hazardous wastes. Similar rules are set out in a Canada-US agreement, and in OECD Decision C(2001)107/Final, an evolving agreement on hazardous recyclable materials. Canada implements these agreements through the Export/Import of Hazardous Waste and Hazardous Recyclable Materials Regulations (EIHWHRM) under the Canadian Environmental Protection Act, 2002. On top of the safety controls under the Transportation of Dangerous Goods Regulations such as proper packaging, safety marks, etc., these regulations add an elaborate system of prior notification, insurance and liability. All waste handlers must be aware of the importance of complying with these regulations, despite the systemic problems which can make compliance difficult. The basic elements are straightforward. Before hazardous waste or hazardous recyclable material is exported from Canada to a Basel country (or to the US), Canada must request the permission of the importing country. The exporter applies, giving full details of how the waste or material will be handled. If the importing country agrees, Environment Canada gives the exporter a permit for up to a year’s worth of shipments. Each shipment must be accompanied by a movement document (a federal waste manifest) plus a copy of the permit. The movement document tracks the shipment material from generator to receiver. Every section of the movement document must be completed carefully and completely. Copies of the movement document are sent to Environment Canada at both ends of the shipment, to show that the wastes were sent and received, where they were authorized to go. A third copy (of Copy 1) is dropped off at customs when crossing the border. The same process applies in reverse for hazardous wastes/ recyclable materials imported into Canada. So, why so many problems? Some occur because of the mismatch between the regulations and their forms. For example, s.36 requires exporters to submit a signed “confirmation” when exported waste has been disposed of. The disposal must take place within a year, and the confirmation is then due in 30 days. No form is prescribed for the confirmation, and the movement document has no instructions about it. Some therefore believe that the completed movement document is sufficient evidence of destruction, for receivers who destroy waste upon

46 www.hazmatmag.com SPRING 2009

receipt. Environment Canada will accept completed manifests as confirmation under s.36, if the receiver adds a rubber stamp confirming destruction of the waste. For wastes that are destroyed later, receivers must provide a separate “Certificate of Destruction”, or something similar, to be sent to Environment Canada. Other problems occur because of the mismatch between the Canadian regulation and the laws of other jurisdictions. For example, who gets, and who sends, copy three of each manifest? Ontario Reg. 347 requires the carrier to get the original Copy 3 back from the receiver, and send it to the provincial environment ministry. The federal regulation requires the receiver to send a copy of Copy 3 to Environment Canada. It may also require the receiver to send a copy of the same Copy 3 to environment ministry. Similarly, the EIHWHRM requires that completed movement documents be sent to Environment Canada within three working days after the material is delivered to the receiver. Unfortunately, US law gives US receivers 30 days to return the same documents. It’s therefore difficult for Canadian exporters to get the completed documents back from US receivers within three days. The instructions on the back of the movement document aren’t much help with these problems. Other problems include disputes over why used items are exported. The regulation only applies to items exported for disposal or recycling (i.e., material recovery). Second-hand goods for resale, refurbishment or remanufacturing are not governed by the regulation. Finally, whether or not a person submits documents, Environment Canada may not acknowledge having received them. It’s not enough to do everything right: you must be able to prove it. Every person in business must take these issues seriously. Environment Canada has been criticized for failing to enforce hazardous waste law, and has now swung to the other extreme. Waste handlers cannot rely on the movement document; what matters is the regulation. Nor can they rely on getting a warning. The first indication of a problem is often a massive, disruptive and wasteful search warrant, followed by dozens of charges. Above all, professional waste handlers need detailed records so they can prove their compliance with each detail of the regulation. HMM

Dianne Saxe, Ph.D. in Law, is one of Canada’s leading environmental lawyers with her own practice in Toronto. Contact Dianne at dsaxe@envirolaw.com @ARTICLECATEGORY:807;

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