management
HazMat
SPRING 2013 www.hazmatmag.com
Remediation • Clean Technology
Sustainable Remediation CleanTech Investment Health & Safety Insolvency & Cleanup
HAZMAT SHIPPING How to Comply with the Competent Authority Rules — page 8
An EcoLog Group Publication / CPMP no. 40069240
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KG Services Spotlight 2013 ad_KG Services Spotlight 2013 ad 03/12/12 7:52 AM Page 1
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CONTENTS : VOL 25 NO. 1 SPRING 2013
on the cover
8
HAZMAT: COMPETENT AUTHORITY
Understanding the UN, US and related HazMat "Competent Authority" rules for classifying hazardous materials for transportation. by Thaddeus Speed
features 14 REMEDIATION: SUSTAINABLE CLEANUP Use of renewable energy for soil and brownfield cleanup. by Johan van Leeuwen
20 CLEANTECH: INVESTMENT Companies and sectors to watch in 2013. by John Nicholson
departments Editorial
4
Up Front
6
Cleantech Editorial
19
Health & Safety
23
Spotlight
26
Event Report
27
Products
28
Ad Index
29
Legal Perspective
30
next edition: summer 2013 MHMP project managers ◆ Health & safety across Canada ◆ Fluorescent lamp recycling ◆ Radon Space closing: May 23, 2013 Artwork required: May 30, 2013 Call 1-888-702-1111 .
Investment, page 20
Sustainable cleanup, page 14 SPRING 2013 HazMat Management 3
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HAZMAT : EDITORIAL
Giving a Frack New impacts from shareholder-sponsored proposals
F
or some time I’ve thought (and written in this space) that one of the emerging “next big things” in environmental protection is shareholder activism, that is, activists working to change the system from within, rather than from the outside throwing stones. A new study is interesting in this regard. Key Characteristics of Prominent Shareholder-sponsored Proposals
Historical support for social/environmental proposals by threshold and overall
2005
2006
2007
2008
2009
>30% support
3%
9%
16%
15%
18%
27%
31%
>20% support
11%
26%
31%
30%
38%
44%
52%
>10% support
31%
39%
48%
40%
48%
52%
59%
Total average support
10%
13%
15%
14%
17%
18%
21%
by Guy Crittenden
“Whoa betide the corporation that runs afoul of a well-heeled teachers’ pension fund”
2010 2011
on Environmental and Social Topics, 2005-2011 was released on February 20 by the Investor Responsibility Research Centre (IRRC) institute. The IRRC institute used Ernst & Young LLP as the primary research entity for the study, the full version of which is available at http://irrcinstitute.org/projects.php?project=62 The analysis indicates that environmental and social shareholder (E+S) proposals are gaining increased voting support from investors in public companies. From 2005 to 2011 average support for such proposals more than doubled, from about 10 to more than 20 per cent. As the news release says, “At the same time, the proportion of shareholder-sponsored resolutions resolutions on E+S matters grew by a third, from about 30 to 40 per cent” for all proposals going to a vote. (The chart shows the proportion of higher scoring proposals.) Only a few years ago most investors viewed E+S issues as abstract concerns, de-linked from the financial bottom line. But as more and more activist shareholder proposals move forward, and as challenges to projects like the Keystone XL pipeline grab headlines (and force changes in the projects), individual and institutional investors are paying attention. With financial performance linked to E+S, boards and corporate managers will increasingly incorporate E+S considerations into their operations and planning. John Lukomnik, Executive Director of the IRRC institute, cites “political spending, climate change, board diversity and energy extraction” as topics that command large numbers of proposals and higher votes. Three characteristics are involved with the most prominent shareholder proposals. The first is “targeting”; this means the proposals that get the highest support are those that raise concerns over board performance. (If you sit on a board, pay attention!)
Governance matters more than ever. The second is timing. Proposals gain prominence when they’re connected to major events in the news, or if they’re related to ongoing trends (be they regulatory or defined by “leading companies” in a given industry space). Third is sponsorship. This can include institutions or public pension funds with financial goals that also explicitly want to make a social impact. (These stand in contrast with proposals submitted by special interest groups or individuals, which garner less attention.) Whoa betide the corporation that runs afoul of a well-heeled teachers’ pension fund and its commitment to social justice and protecting the planet! It could miss out on billions of investment dollars. The IRRC institute notes proposals receive higher vote totals when they call for disclosure, as opposed to a particular action or change in company policy. While people may argue over specific actions, it seems everyone wants facts known and shared. (In contrast, proposals received the least support when it appears a change in government policy could provide the better solution.) A good example of pension funds seeking disclosure was the announcement on February 5, 2013 from City Comptroller John C. Liu and the New York City Pension Funds that they had filed a share owner proposal calling on Exxon Mobil Corporation (NYSE: XOM) to “release quantitative data on its efforts to safeguard the public and the environment from its hydraulic fracturing (‘fracking’) operations.” Anyone involved in fracking or other controversial projects should brace themselves for such requests. The IRRC institute study shows that during 2005-2011, while average support went as low as three per cent for certain proposal topics (tobacco risks), the highest (31 per cent) was for “energy extraction techniques/waste.” The highest supported proposal topics also experienced high compounded annual growth rates of support, suggesting support builds among investors as they become familiar with specific issues. Readers of this magazine will be interested to know that these proposal topics include “practices at financial institutions, recycling and energy efficiency, corporate political spending/lobbying, EEO/ diversity, energy extraction, renewable/sustainable energy and food and consumer safety.” So, make sure your company isn’t only focused on activists manning the barricades. The greatest challen13-02-15 8:45 AM ges are going to come from within, and if you believe in environmental protection and social responsibility, that’s not such a bad thing. HMM Guy Crittenden is editor of this magazine. Contact Guy at gcrittenden@hazmatmag.com
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Returning…
with an all new date and exciting new format!
sitesandspills.com New Date!
February 19-20, 2014 International Centre Toronto, Canada www.sitesandspills.com Expo Produced by:
Join us in 2014 for an enhanced conference program giving you the latest information on HazMat Management and Site Remediation. The newly improved tradeshow space is geared to boost supplier - customer interaction in a fresh new way.
Reserve Your Space Now!
Interested in Speaking?
Don’t miss out on this opportunity to showcase your company and promote your products and services to a highly targeted and quality audience.
We invite abstracts on presentations concerning practical strategies and technology for HazMat Management and Remediation of Contaminated Sites.
To reserve your exhibit space, contact: Lee Baker, Sales Manager lbaker@sitesandspills.com
Submit abstracts to: Stephanie Chiang, Event Manager schiang@sitesandspills.com
Mark Your Calendar for these Upcoming 2013 Events
Environmental Liability Seminar April 9, 2013
Waste to Product & Energy Conference May 29, 2013
Environmental Fracking Workshop: Pros and Cons for Site Remediation September 26, 2013
Allstream Centre, Exhibition Place Toronto, Canada
BMO Institute for Learning Toronto, Canada
Sign up to learn how to protect yourself from civil lawsuits, high fines and even personal criminal charges.
Allstream Centre, Exhibition Place Toronto, Canada
Hear from experts in environmental law, banking, insurance and government, as they discuss regulatory orders, civil liability and criminal implications.
Don’t miss out on this workshop which explores the exciting new markets of waste as a resource. Turn waste into energy, fuel and products including plastics, furniture and feedstock and explore local case studies highlighting biosolids and bioenergy facilities.
Visit www.ecologevents.com to register.
Visit www.solidwastemag.com to register.
Visit www.hazmatmag.com to register.
Learn about the latest innovations in environmental fracking used to enhance and accelerate site remediation, including simultaneous recovery of subsurface contaminants and in situ treatment..
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HazMat
SPRING 2013
HAZMAT: UP FRONT
management
Vol. 25, 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 Dave Douglas ACCOUNT MANAGER 1-866-238-1020 ddouglas@bizinfogroup.ca Kimberly Collins PRODUCTION MANAGER 416-510-6779 kcollins@bizinfogroup.ca Anita Madden CIRCULATION MANAGER Carol Bell-LeNoury GENERAL MANAGER, ENVIRONMENT GROUP Bruce Creighton PRESIDENT
Hazardous Materials Management
AWARD-WINNING MAGAZINE HazMat Management, USPS 016-506 is published four times a year by EcoLog Group, a division of BIG Magazines LP, a div. of Glacier BIG Holdings Company Ltd., a leading Canadian business-tobusiness 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:
80 Valleybrook Drive Toronto, ON M3B 2S9, 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) 510-6780. Subscription rates: Canada: $52.95 (add applicable taxes) per year, $85.95 (add applicable taxes) for 2 years, single copy $10.00. USA: 1 Year $55.95; 2 Years $91.95. Foreign: 1 Year $85.95; 2 Years $134.95. 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 80 Valleybrook Dr. Toronto ON M3B 2S9
Letters from our website Letter Exchange re: Cover Story on Site-Specific Risk Assessment (Winter 2012-2013) DR NASRAT HIJAZI (NAZ001@AOL.COM) WRITES (JANUARY 24, 2013): Very informative and timely article. My overriding observation is that the regulatory agencies are trying to standardize the environment field as other government agencies standardized the educational system, health care system, etc. into cookie cutter approach. It is painfully obvious that the standardized fields have all failed. Is there a lesson that the environmental regulatory agencies can learn? More importantly, is there a lesson for the environmental professionals? As a veteran of the field, the “business” of the environment is “lognormally distributed” and it peaked in the mid-1980s after when we had our equivalent of the “dot.com” bust in 1990-1991. Competing for the “tail of the business” will become more vicious in the future.
DR. GEORGE DUNCAN (GDUNCAN@AAENVIRONMENTAL.CA) REPLIES (JANUARY 31, 2013): Finally, someone has the courage to call it like it is — an over-regulated mess based on politics and “envirophobia” which ignores the obvious alternatives! But there’s a very large elephant in the room that is also being ignored. The whole site assessment and cleanup business is based on very unreliable data. Excellent analysis of a few grams of soil at the fully accredited and quality controlled lab does not tell us anything about the tens or hundreds of tons of soil surrounding the sample; but, for some unknown reason, the lab certificate is taken as representative of the average contaminant levels up to the next sampling point 5 to 15 meters away! Thus, the lab result from that “square inch” of contaminated soil can be very misleading indeed. That’s bad enough, but even the lab sample itself can have horrendous variabilities when measuring tracelevel contaminants near allowable limits and + or - 100% variation in the c
DR NASRAT HIJAZI (NAZ001@AOL.COM) REPLIES (FEBRUARY 14, 2013): Good points Dr Duncan. Here is a mind blowing fact: O. Reg. 153/04 legally defines a soil sample as representing two meter radius. But the guidance documents require that the area between an exceedance sample and a non-exceedance sample is to be considered contaminated for excavation and disposal estimates, or collect more samples. Obviously the law is applicable but where is anything that we would call a “peer review” of the environment ministry by competent professionals who are not necessarily “Qualified Professionals” per O. Reg. 153/04 definition?
We acknowledge the financial support of the Government of Canada through the Canada Periodical Fund (CPF) for our publishing activities.
The Forest Stewardship Council® logo signifies that this magazine is printed on paper from responsibly managed forests. “To earn FSC® certification and the right to use the FSC label, an organization must first adapt its management and operations to conform to all applicable FSC requirements.”
©2013 All rights reserved. No part of this publication may be reproduced without prior consent. Print edition: ISSN-1713-9511 Online edition: ISSN 1923-3469
For more information, visit www.fsc.org
Member
Canadian Business
Press
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Mark Your Calendar! NEW DATE AND FORMAT FOR SITES & SPILLS EXPO
T
he event team for the Sites & Spills Expo is pleased to announce that the next event will take place February 18-20, 2014 at the International Centre in Toronto, Ontario. Mark your calendar and be sure to attend! “We learned from conference delegates and exhibitors that they’d prefer the next event be held in the quieter February time period, away from the crowded spring and fall conference season,” says Carol Bell-Lenoury, Environment Group General Manager. “It’s also a time when less active field work is being done in the remediation industry.” In addition to moving the event from the fall to a winter time slot, the event will benefit from a slight change of venue. “We’ll still be at the International Centre,” says Event Manager Stephanie Chiang, “but we’ve decided to locate the event entirely in the conference centre and not in the exhibition hall. “This means conference delegates and trade show exhibitors will mix in a more intimate setting, and have greater contact throughout the event.”
Sales Manager Lee Baker is enthusiastic about the venue modification and some proposed changes to the program. “Based on feedback, we’re focusing the conference program on remediation of contaminated sites or brownfields, and cleanup of HazMat spills,” Baker says. We’re also streamlining the session format to allow more breaks between sessions so that exhibitors and their customers have more time to mingle and do business.” Baker adds that containing the event in the conference centre allows for table-top exhibits. “We’ll have room for regular trade show exhibit booths and some large pieces of equipment, but table-tops will allow more companies to efficiently participate in this event,” she says. The organizers have issued a Call for Abstracts and are asking presenters to focus on business strategies and technology for cleanup of sites and spills. Detailed information for speakers and exhibitors is available at the event website sitesandspills.com and via email to leebaker@sitesandspills.com See ad on page 5 for further detail.
CORRECTION: The Nanaimo Bioenergy Centre
I
n the last edition of this magazine our description of The Nanaimo Bioenergy Centre and ownership was not quite accurate or sufficient. The gas utilization facility at the Regional District of Nanaimo is owned and operated by Cedar Road Bioenergy Inc. through a public-private partnership with the RDN. The facility has received financial and development support from the BC Bioenergy Network for Phase 1 and 2. Other funding partners include British Columbia’s Innovative Clean Energy Fund (ICE), Community Futures of Nanaimo, Natural Resources Canada, CIBC and Suncurrent Industries Inc. One of the objectives of the facility is to play a leadership role in providing information and opportunities for further demonstration. To facilitate these aims, the facility is now called The Nanaimo Bioenergy Centre — a collaborative development and demonstration platform supported through the partnership of
the RDN, BCBN, and Cedar Road Bioenergy. It brings together private and public stakeholders to demonstrate innovation in measurable leading commercial outcomes in GHG reduction and waste-energy conversion for small-medium sized landfills. SPRING 2013 HazMat Management 7
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HAZMAT: COVER STORY
CLASSIFYING HAZARDOUS MATERIALS FOR TRANSPORTATION
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HAZMAT : COVER STORY
Understanding the “Competent Authority” rules
H
azardous materials (HazMat) cover a wide range of materials and a variety of HazMat classification schemes and systems have been developed to safeguard various segments of industry. In each system, classification of a hazardous material allows for placement of that material into one of several broad categories, which may include subcategories. This identification of a hazardous material with its proper classification is essential for safe handling, transport, emergency response, product storage, etc. Interested parties are made quickly and easily aware of the material’s fundamental hazards through proper classification, marking and labeling. The United Nations (UN) and others have participated in the development of a common classification system for use in transportation consisting of nine classes (and a varying number of divisions within those classes). (See chart)
per package, types of approved packaging, and other very useful information. Regulated chemical hazards can range from a mild corrosive, or less, to full explosion hazards. It is, therefore, vital to identify and apply suitable process and handling procedures and practices for materials that may possess these characteristics. Unrecognized hazards can result in catastrophic events affecting shippers, carriers, the public and those who use or handle these substances. Munitions, pyrotechnics and other explosive products are expected to have inherent explosive hazards. (However, this can also be true of many other chemicals used for completely unrelated purposes.) Energetic hazardous materials fall under a number of different classes depending on how energetic and how stable they are. These energetic classes or divisions include: flammable liquids, flammable solids, self-heating substances, unstable reactive substances and explosives. Some materials usually require that specific
U.S. DOT/United Nations, Hazardous Materials Classifications (Summary) Forbidden
Class 4, Solids: Flammable, Spontaneously Combustible, Dangerous when Wet
Class 8, Corrosive material
Class 1, Explosives
Class 5, Oxidizers, Organic peroxides
Class 9, Misc. Hazards
Class 2, Compressed Gases
Class 6, Substances: Poisonous, Infectious
(USA only) ORM-D, Other regulated material
Class 3, Flammable and Combustible Liquids
Class 7, Radioactive material
Unregulated materials
Properly identifying the hazards and correct classification are required before materials are placed in transport. In addition, the shipper must determine that the proper packaging or container is used (49 CFR 173.22). The manufacturer, importer or anyone that repackages hazardous materials, has the burden of knowing that the materials they offer for transport are properly classed, packaged and labeled. At times, a chemical composition is developed for one application but carries hazards that are unexpected or undesired. Materials as common as cosmetics, inks, adhesives, or pharmaceuticals may be energetic or even explosive. To determine the hazard classification, 49 CFR 172.101, Hazardous Materials Table is usually a good place to start. Many specific chemicals and generic substances or articles can be found listed in the table. The columns and codes in the table indicate the allowed modes of transportation, restrictions, if any, on quantity
“Materials with 300 Joules/gram energy content or more should be considered as potentially energetic.” by Thaddeus Speed SPRING 2013 HazMat Management 9
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HAZMAT: COVER STORY
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HAZMAT : COVER STORY
tests or protocols be followed to properly classify these materials. The outcome of the testing will often be used to determine such things as packing group or maximum quantity per container. High-energy materials are chemical compounds, including explosives, propellants and pyrotechnics that exhibit exothermic heats of decomposition (positive heats of formation). Energetic materials also include mixtures of materials that can react to produce high-energy releases. The consequences of high-energy release can be explosive generation of gases, high pressure resulting from rapid heating of decomposition or reaction gases, hazardous projectiles (including those due to fragmentation), growth to detonation due to high pressure growth, or packaging rupture from high pressure and/or high temperature. Examples of high-energy materials and events include: • Chemical compounds that contain triple bonds (acetylenic
compounds) or double bonds (unsaturated compounds) and some nitrogen-containing compounds (such as “azo” chemicals); • Mixtures of fuels and oxidizers; • Molten metals in contact with water (rapid phase transitions); and • Reactive metals (such as Sodium) and water (generating hydrogen gas and heat). When considering the transport of energetic and high-energy materials, the manufacturer or initial shipper may, in some cases, submit the results of the required testing directly to the DOT (in the US). In the case of explosives, the testing must be performed by or under the direction of one of the approved DOT examiners as specified in 49 CFR 173.56. In both cases, DOT approval is required prior to any actual shipments. The test protocols for most explosive and more energetic materials are found in Recommendations on the Transport of Dangerous Goods,
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HAZMAT: COVER STORY
Manual of Tests and Criteria, 5th revised edition, United Nations. At times, a manufacturer or importer may produce a highenergy or explosive product without intending to produce a highenergy product or explosive. Even so, no explosives can legally move over the nation’s highways, railways, waterways or airways without DOT approval. A DOT approval is often referred to as a Competent Authority Approval or letter. If a shipper knows (or has reason to suspect) that their material is an explosive or has explosive properties, it’s critical that the proper testing and approval (if needed) be performed and received. Materials with 300 Joules/gram energy content or more should be considered as potentially energetic. The required path to approval varies, depending on the classification sought, the material (substances or articles) and test results.
WHAT IS COMPETENT AUTHORITY APPROVAL (CAA)?
In the UN system of classifying hazardous materials, a “Competent Authority” is the designated final word on UN Classification for international shipping within each country. In the US, the “Competent Authority” is the Associate Administrator for Hazardous Materials Safety, a senior position within PHMSA (US DOT Pipeline and Hazardous Materials Safety Administration). The regulating applicable document is the most current version of 49 CFR parts 100-185, also known as the Hazardous Materials Regulations (HMR).
A competent authority approval is a written consent (document) required for transporting hazardous materials to, from or within the United States. Similar approvals are required by many other countries. PHMSA issues several types of approvals, in response to applications from many different sectors of the hazardous materials industry. Approvals authorize a range of activities, including the packaging and shipping of explosives and certain other hazardous materials (and certifying approved laboratories and individuals). The agency only grants approvals for activities allowed (if approved) under specific conditions identified in the HMR. Applicants seeking to engage in an activity that is not permitted by the HMR must apply to PHMSA for a special permit. In general, a special permit applicant must demonstrate how and why the proposed exception or alternative methods comply with the intent of the HMR. Competent authority approval must be obtained for transportation of the following: explosives; propellants; pyrotechnics, including fireworks; explosive precursors (certain oxidizers, for bulk transport); chemical oxygen generators; desensitized explosives; blasting agents; some self-reactive materials; and, some organic peroxides. In order to apply for an approval for transporting an explosive (and the associated EX number) one must first have the explosive examined in accordance to 49 CFR 173.56. To facilitate this
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HAZMAT : COVER STORY
ship or transport are properly classed, packaged and labeled. By doing so, we protect our jobs, our communities and the transportation network. HMM Thaddeus Speed is Technical Director with Safety Consulting Engineers, a DEKRA company, in Schaumburg, Illinois. Contact Thaddeus at tspeed@sceinc.com
process and to assure consistency and competency, the US DOT has approved several laboratories in the USA to examine these energetic materials and provide a recommendation to the DOT as to the proper shipping name and UN/DOT classification of the material. The DOT will then review the lab report and will normally issue an EX number (explosives approval number) for that material. A list of the approved labs and contact information may be found on the DOT’s Website: http://www.phmsa.dot.gov/hazmat/regs/sp-a/ approvals/explo-test-labs These laboratories are approved to recommend a class/ division, proper shipping name, compatibility group and packaging instructions to the DOT. These recommendations are based on the testing and analysis required by the regulations and performed during the examination.
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APPROVAL PROCESS
No explosives move in commerce without appropriate Competent Authority approval. The US DOT currently states that applicants should expect action on explosives approval requests in approximately 120 days after the required test and recommendation report, support documentation and application have been submitted. For this reason it’s important to plan ahead and have your examination completed as early in your product development plan as practical. Even more importantly, however, is the potential for harm and liability should an energetic or explosive material be improperly shipped. The approval process includes verification that the substance or article is safe to transport as packaged. Special restrictions may apply (e.g., limited quantity on a passenger aircraft) to further protect the public and the transportation network. Properly identifying, classifying and when required, receiving Competent Authority Approval prior to the shipment of hazardous materials is a vital concern for anyone that ships hazardous materials. Without a hazardous materials identification system, insurance rates would be based on perceived rather than actual hazards; shippers and carriers would have greater liability in case of an accident and everyone from first responders to the stockroom clerk would know less about the hazards from these materials. It’s incumbent on those that manufacture, import, repackage, or otherwise offer for transport hazardous materials to understand the UN/DOT HazMat system and verify that the hazardous materials they
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GroundTec
REMEDIATION
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”Zero emission” in situ soil remediation
G by Johan van Leeuwen
“Intermittent air injection actually has positive effects on the bio-stimulation process.”
reen remediation. We can do it! About two years ago I got a brochure in the mail for a solar heating system; “green showering for everyone at home,” it said. I realised you can produce a significant amount of energy this way, but (so far) this technology hasn’t been used for remediation of contaminated sites. I started to think about green technologies like windmills and solar cells. Would it be possible to integrate these at long-term in situ remediation sites. An idea was born that led to a green remediation initiative at the Dutch railways foundation for remediation (SBNS).
THE PROJECT AND REMEDIATION The project site is located in a village called Bilthoven, in the centre of the Netherlands. The site, which is near a railway station, has soil polluted with mineral oil. The
contamination is present from a half meter to approximately nine meters below surface level. (Contamination in the vadose zone, from the surface to two meters below ground, was excavated in 2011.) The pollution deeper than two meters is present in what’s called the “saturated zone.” The approach to this zone was different: instead of excavation, it was decided that nature would be used to the greatest extent possible, to achieve a more sustainable solution. A brainstorming session was organized with the consultancy Tauw and contractors from HMVT; the session produced 13 leading ideas which where then assessed for feasibility. So, how do we make use of nature in remediation? Bacteria present in soil can break down pollution like mineral oil, if circumstances are right. If there’s enough oxygen and nutrients, the bacteria convert the oil into carbon dioxide and water.
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REMEDIATION
Soil heating elements ready for installation.
At this site, the natural circumstances weren’t ideal, so the project managers knew they’d have to assist the bacteria in doing their job. An in situ system warms the soil and delivers oxygen via compressed air, and liquid nutrients are pumped in. At first the consultants proposed air stripping (with large amounts of air forced into the soil). But this idea was replaced with bio-venting and soil warming (with bio stimulation in mind). Bio-venting uses much less energy compared to air stripping; however, warming the soil consumes even more energy. What to do? A green approach was needed to solve this.
GREEN ENERGY SOLUTIONS The consultants and contractor designed a system to provide all the energy required for the site remediation utilising a solar heating system, solar cells and a windmill. (This is a Dutch project after all!) The solar heating system warms the soil to stimulate bacteria growth. The windmill acts as a direct air compressor (an innovation). Solar panels where installed to generate electricity needed for the small pumps and electrical components of the installation. To extract gases from the soil, a chimney was placed next to the windmill (so a ventilator wasn’t needed anymore).
Conventional soil remediation concepts use a lot of energy, usually provided via fossil fuel consumption or electricity from the grid. In contrast, the Bilthoven site works on the principal of using energy when it’s available. When the wind blows, compressed air is produced and injected; if there’s no wind, injection is suspended temporarily. On a cloudy day the soil gets warmed less by the solar heating system; on sunny days there’s more warming. When the soil is warmed from 10 to 20 centigrade the bacteria activity doubles, solubility increases, and volatilisation goes up as well. This means the pollution mobilises from the soil to the water phase, and becomes available for the microorganisms. At another railway site a conventional remediation with soil heating was applied; the warming went up to 35 centigrade, but costs rose steeply as well, which is why this approach is rarely used. At the Bilthoven project site, the solar heating system reduced costs by more then 80 per cent. However, the remediation took five years instead of one.
OVERCOMING TECHNICAL CHALLENGES To efficiently warm the soil, floor heating tubes were used (commonly used in Dutch homes). The tubes were, for instance, wrapped around a PVC well or
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REMEDIATION
“In October 2012 the project won a sustainable land-use prize at the UIC Railway Congress.” similar. Then the pipe with tubing was drilled into the soil (like an ordinary well) — this functions as a simple heat exchanger. When using a well wrapped with tubing, the heat exchanger can also be used as a nutrientinjection well. (A 15 centigrade increase in temperature
was achieved in the soil at a distance of 1.5 to two meters from the heat exchangers.) To produce compressed air, a windmill was installed at the site. Research was conducted on minimum, maximum and average wind speed during the year at the
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REMEDIATION
specific location, to determine how much wind could be converted into compressed air (with a windmill 15 meters high). The windmill dynamo was replaced with an air compressor driven directly at the axle. The research showed there would be no compressed air available 22 per cent of the time. About a third of the time an average amount of compressed air would be produced, and 45 per cent of the time the system would produce its maximum of compressed air (for optimal oxygen saturation in the soil). At other sites the project managers learned that intermittent air injection actually has positive effects on the bio-stimulation process, meaning there would be enough compressed air for an optimal remediation process. It’s worth noting that even in Holland erecting a windmill in an urban area isn’t easy, and can face public opposition. It took some time to obtain a license for the windmill at the Bilthoven site from the community council. (Projects in some jurisdictions may have to Env Cat bleed ad-may2010.qxd
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consider producing electricity with solar cells or using a conventional air compressor.) The green remediation project at the Bilthoven site was a very inspiring one, proving the viability of some new concepts. In October 2012 it won a sustainable land-use prize at the UIC Railway Congress. The jury stated the concept should be applied on sites elsewhere. Green projects like this one can match the costs of conventional approaches, though one has to take into account that the windmill and solar cells are not fully depreciated in the five-year duration of this project, but over a period of 15 to 20 years. This will work fine for some projects, though perhaps not all. HMM
Johan van Leeuwen is a Project Manager for Stichting Bodemsanering NS (the non-profit Soil Remediation Foundation of Dutch Railways) in Utrecht, the Netherlands. Contact Johan at johanvanleeuwen@yahoo.com
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The Italian Ministry for the Environment, Land and Sea, Department for Environmental Research and Development, promotes the protection of the environment through the realization of projects aimed at developing new technologies with high environmental efficiency and through activities around the world in cooperation with numerous international organizations.
Canada’s Voice for Brownfields Redevelopment MINISTRY FOR THE ENVIRONMENT LAND AND SEA - ITALY
Together, the Italian Ministry for the Environment, Land and Sea and the Italian Trade Commission aim to promote the use of Italian technologies and the involvement of Italian companies in the NAFTA region by encouraging scientific and commercial collaboration, and the exchange of best practices and knowhow.
Vision The Italian Trade Commission is the official trade development and promotional agency of the Italian Government. Its mission is to support the internationalization of Italian firms and their consolidation in foreign markets. Headquartered in Rome, the ITC maintains a network of over 115 branch offices in more than 86 countries, including the United States, Canada and Mexico.
For further information:
toronto@ice.it or (fax) 416-598-1610 www.italiancleantechnology.com
That brownfield property reuse be the preferred approach. For membership information, please contact: Canadian Brownfields Network 2175 Sheppard Avenue East, Suite 310 Toronto, ON www.canadianbrownfieldsnetwork.ca Tel: 416.491.2886 | Fax 416.491.1670 E-mail: info@canadianbrownfieldsnetwork.ca
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CLEANTECH: OPINION
Shifting policies and short-term political horizons are thwarting capital investment in green energy projects with long payback time periods. This photo shows windmills on the Niagara Escarpment near Eugenia, Ontario. Photo by Guy Crittenden
Political Realities What confounds a Pembina report’s aspirations
I by Aaron Atcheson
“These challenges appear to be based heavily in current Canadian political realities..”
n its January 2013 report on clean energy, Competing in Clean Energy: Capitalizing on Canadian Innovation in a $3 Trillion Economy, the Pembina Institute identified two major challenges to developing clean energy businesses in Canada: the lack of stable, long-term government policy; and, the difficulty in accessing capital. The report claims these two challenges have resulted in reduced efficacy for R&D in the renewable energy area in the country, as measured by clean energy patents granted in the US and various rankings of industrialized countries in the cleantech sector. The report provides suggestions for federal government programs to bridge the highlighted gaps for business, including the development of a natural energy strategy and sending price signals through ending fossil fuel subsidies and/ or carbon pricing. While useful in explaining to citizens why Canada is not yet a shining example of how to compete in the relatively new clean energy sector, notwithstanding significant expenditures in some areas, these challenges appear to be based heavily in current Canadian political realities. Canada’s political parties agree to a significant degree on a huge number of issues: support of democracy and human rights, respect for cultural differences, law and order, etc. One area where the parties (federal and provincial) do not agree is energy policy and how to
address climate change. Based on the average turn-over of Canadian governments, ensuring a stable, long-term policy environment requires a convergence of opinion on these topics, which has not yet occurred. This does not make the authors’ point less valid, but presents a more significant problem than can be resolved through the creation or expansion of a particular support program. Similarly, the lack of capital available to participants in this sector is related to those organization of the entities that hold much of the wealth of Canadians. As a result, large institutional investors and pension funds based in Canada punch above their weight in certain sectors, but are poor at funding early stage ventures. If we want this to change, or for government to try to fill the resulting gap, we will need to find consensus on at least certain of the relevant issues, in order to promote legislative change or funding of certain initiatives. In a time when some are heralding the “death of cleantech” and others rebrand their investments as “energy-tech,” we should keep in mind the political realities of the moment, and consider how we might best work to take advantage of, and expand upon, existing areas of agreement. HMM
Aaron Atcheson is a Partner and Chair of Miller Thomson LLP’s CleanTech Group in London, Ontario. Contact Aaron at aatcheson@millerthomson.com SPRING 2013 HazMat Management 19
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CLEANTECH: INVESTMENT
Worker laying out lines for the seismic measurements.
Cleantech Outlook for 2013 by John Nicholson
“The global cleantech market was valued at $1 trillion in 2011, with the prospect of it tripling to $3 trillion by 2020.”
Some interesting companies and possibilities
T
o some, cleantech refers only to renewable energy. Others have an expanded view that includes industries that develop and use technology to deliver products or services with fewer environmental impacts (and that use fewer resources) than conventional technologies. According to Analytica Advisors’ 2013 Canadian Clean Technology Industry Report, the global cleantech market was valued at $1 trillion in 2011, with the prospect of it tripling to $3 trillion by 2020. In Canada, the cleantech sector was valued at $9 billion in 2011, with 700 companies in the cleantech space employing over 52,600 people. Analytica research
showed that over 82 per cent of the Canadian companies in the cleantech space export their goods and services.
WHAT’S HOT In his 2013 State of Union address, US President Barrack Obama signalled a renewed interest in market-based solutions to climate change. Prior to his address, there was speculation that approval of the XL pipeline (from the Alberta oil sands to Texas refineries) will be linked to a carbon tax — a solution that would be seen as neither selling out to the green lobby nor the oil industry. Canadian carbon capture and storage (CCS) com-
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CLEANTECH: INVESTMENT
Cross section of the different geological layers under the injection and observation wells (to the left are Aquitards that block the upward movement of liquids, on the right are formation that are more permeable layers like saline formations, etc.).
panies such as CarbonCure, based in Nova Scotia, the developers of the Aquistore Project in Saskatchewan, and InvenTyS Thermal Technologies Inc. from British Columbia, all stand to gain from any move by government to implement market-based solutions to climate change. CarbonCure has developed a proprietary technology that injects carbon dioxide collected from emission sources (i.e., cement kilns) and injects it into cement, thus sequestering it. The carbon-absorbed concrete has better performance characteristics, as the carbon dioxide is converted to limestone. CarbonCure is currently working with several manufacturers across North America to bring low-carbon concrete products to market. The green building boom and the push for LEED-certified structures will only benefit
the company. A North American GHG trading scheme would only accelerate the adoption of CarbonCure’s technology as builders would likely make money selling the GHG credits generated through the use of CarbonCure concrete. The Aquistore Project in Saskatchewan consists of sequestering 2,000 tonnes of GHG emissions per day deep underground. It represents the first time that emissions from a coal-fired generating plant will be sequestered safely. Trading of the GHG credits earned through sequestering, if and when such a scheme is implemented, could be used to pay for the $100 million project. One of the challenges of CCS is actually capturing and separating the carbon dioxide from other gases in the emissions from fossil fuel sources (i.e., coal-fired generating SPRING 2013 HazMat Management 21
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CLEANTECH: INVESTMENT
Drill rig when the injection well was being drilled (since completed). Boundary Dam is in the background.
plants). InvenTyS Thermal Technologies Inc. has developed a patented process for the separation of CO2 from flue gas called VeloxoTherm®. The VeloxoTherm process works by trapping CO2 onto a proprietary structured absorbent while other flue gases pass through. Once saturated with CO2, the absorbent is regenerated using low quality steam. InvenTyS claims that the VeloxoTherm process is capable of separating CO2 from flue gases at a third of the cost of the leading separation technology. Installation of the system can be readily integrated into any existing combustion and chemical process with no downtime.
selves to be keen assisting cleantech companies in other ways. For example, the City of Vancouver, in collaboration with the Vancouver Economic Commission, is looking to establish a technology incubation and acceleration center to be called the “Vancouver Technology Centre.” Such centres typically provide access to programs and workshops, coaching, and partnering. They are seen as a great way of helping startup companies succeed (without the sometimes controversial grants handed out to “winners”). Another way government can assist is through domestic procurement policies that recognize the benefits of cleantech solutions. There is much to be done in this regard as all three levels of government in Canada have ENSURING SUCCESS How do Canadian companies ensure they continue to be shown themselves to be extremely cautious when it comes major contributors to the global cleantech growth? A simple to purchasing new and innovative “green” solutions. HMM answer would be more government money. One source of government money is Sustainable Development Technology John Nicholson, M.Sc., P.Eng., is a consultant Canada (SDTC). It has proven to be a major government based in Toronto, Ontario. Contact John at funding source for promising cleantech companies. john.nicholson@ebccanada.com Besides just money, governments have shown them-
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HAZMAT : HEALTH AND SAFETY
Human Factors Influencing Workplace Safety
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afety is expensive, but an accident is even more costly. All organizations, all business owners, all managers, supervisors and workers in all workplaces need to understand the effect of work performed on the human body and how we influence the demands of the work we do through human interaction. Both these things relate to the correlation between the worker and the demands of the work they do, known as ergonomics and human factors. Human factors refer to environmental, human and individual characteristics, organizational and job factors that influence the behaviour at work in a way which can affect health and safety. Three interrelated aspects must be considered in assessing human factors in correlation to safety incidents: the job, the individual and the organization. The job assessment looks at the nature of the tasks, the workload, the working environment, the design, display and controls, and the role procedures play on the job. The individual assessment looks at the workers competencies, skills, personality, attitude, and risk perception. Identify what individual characteristics can be changed and what are fixed. Additionally, the organizations work patterns, culture, resources, communications, and leadership, policies, and programs are some of the organizational influences on behaviour and need to be looked at in the review of the job design. In summary, human factors identify what people are being asked to do (the task and characteristics), who is doing it (the individual and their competencies), and where they’re working (the organization and its attributes). A good safety management system includes human factor assessments in a similar way to any other risk management program, categorizing human failure with the different causes and influencing factors, as well as prevention strategies to reduce the failures. Three types of human failure (unsafe acts) often lead to major workplace accidents: • Errors (slips/lapses) or unintentional actions like forgetting to complete a certain step in a transaction or process.
• Mistakes (also errors) but of judgment or decisionmaking where we do the wrong thing but believe it to be right. • Violations or intentional errors such as taking shortcuts or non-compliance with procedures. Managing human failure is essential to preventing occupational accidents both minor and major, as well as ill health, and maintaining the reputation and potential loss of revenues for the organization. Major incidents frequently involve the human error of operators or maintenance personnel, with the underlying reasons for the accident stemming from the responsibility of those more senior in the organization’s inadequacies in competency assurance systems, poorly designed equipment, or lack of resources or training that influence the behaviours of everyone in the organization (leading to human error). We cannot just address safety through the foggy lens that behavioural safety programs are an alternative to ensuring that adequate engineering and safety management systems are in place; they need to work hand-in-hand together and be adequately managed. (But not until technical and systems issues have been addressed and it can be assumed that accidents are due to cultural and behavioural factors.) Although great strides and advances have been made in safety over the past decade, major accidents are still occurring due to failures in safety program design, implementation and management. The success of an organization is achieved through high productivity and quality while ensuring the health and safety of its workers, combined with best work practices and systems to achieve these goals. The best work systems include skilled workforces, well-designed jobs that are aligned with individual abilities, and improved health and safety (which ensures a better managed and more effective organization). HMM
by Lynne Bard
“Major accidents are still occurring due to failures in safety pro gram design, implementation and manage ment.”
Lynne Bard is President and Senior Consultant of Beyond Rewards Inc. based in Guelph, Ontario. Contact Lynne at info@beyondrewards.ca SPRING 2013 HazMat Management 23
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HAZMAT: SPOTLIGHT
CARI On! A look at the Canadian Association of Recycling Industries
T
he landscape of trade associations in the waste and recycling sector in Canada can be a bit bewildering for newbies. (And surveys show the industry is comprised of a surprising number of young people who have been in the business for only a few years.) There are multiple associations for recycling in various provinces, such as the individual Recycling Councils for B.C., Alberta, Ontario and so on. Ontario also has the Municipal Waste Association (MWA) based in Guelph, that mostly represents municipalities, and the Ontario Waste Management Association (OWMA) in Brampton that mostly represents private waste service companies, plus the Ontario Chapter of the Solid Waste Association of North America. SWANA has chapters in different parts of the country. For reasons related to regulation and enforcement, these associations tend to be organized provincially, with few establishing themselves as true national organizations. One exception is the Canada Compost Council (CCC), representing organics management issues and stakeholders across the country. The other truly national association is the Canadian Association of Recycling Industries (CARI), which represents over 260 companies in the recycling sector. CARI distinguishes itself from the other associations by focusing on scrap metal Leonard Shaw — a lucrative trade with its own economic drivers that has always stood apart from the other waste-related recycling entities. (In fact, CARI’s Executive Director Len Shaw refuses to refer to recycled scrap as “waste,” preferring it be thought of as an industrial byproduct that becomes the feedstock for new products.) Scrap recycling is a huge business. Currently about 45 per cent of the world’s 1.3 billion tonnes annual production of steel comes from scrap. Almost as much of the world’s copper production is from recycled material (as is about a third of all aluminum). Canadian recyclers process between 16 and 18 million tonnes of scarp metal each year. It’s estimated that Canadian metal recyclers employ around 40,000 people directly and another 120,000 indirectly. According to CARI’s website, the organization was founded in 1941 “in response to an urgent call from the Canadian government
Delegates and exhibitors at the successful 2012 convention.
for high quality scrap metal to support the War effort.” Since then, CARI has matured into an effective organization that represents everything from small family scrap yards to massive industrial plants. While members recycle all kinds of commodities, the vast majority deal primarily or exclusively in metals. CARI works to improve the economic position of its members, engage with government on policy matters that affect the industry, and overall promote the interests of the recycling business. CARI is also very deft at creating business and social networking opportunities for its members. Among other things, it produces an annual conference, a golf tournament and a “consumer’s night.” (See below) CARI is governed by a 12 member Board that proportionally represents all geographic regions of the country. The organization works effectively in English and French, as is attested by the text on its website and its newsletters. CARI produces two of these: The Pulse and The Prompt educating and assisting members with issues that range from better insurance rates to theft prevention (a big topic in scrap recycling) to new regulatory compliance.
MARK YOUR CALENDARS! CARI’S 72ND ANNUAL CONVENTION June 20-22, 2013 Marriott Harbourfront Hotel Halifax, Nova Scotia www.destinationhalifax.com/CARI_ACIR CARI’S NATIONAL GOLF TOURNAMENT August 22, 2013 Glen Abbey Golf Course Oakville, Ontario http://glenabbey.clublink.ca CARI’S 16TH ANNUAL CONSUMERS’ NIGHT October 28, 2013 Hyatt Regency Hotel Toronto, Ontario For information on CARI events, contact Donna Turner at 905-4269313. You can learn more about the Association of Recycling Industries (CARI) by visiting cari-acir.org HMM
Written by Guy Crittenden, editor of this magazine. Contact Guy at gcrittenden@hazmatmag.com
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HAZMAT : EVENT REPORT
Main Photo (left): Site drilling in the Liberty Village district, an area of rapid urban revitalization in Toronto, Ontario. Photo by Guy Crittenden
(above at left:) Henri Groeneveld, City of Rotterdam. (above at right:) N.J. Co Molenaar, Ministry of Infrastructure and Environment.
No Soil At This Bank, Just Opportunity by David Nesseth
O
ne of the most telling aspects of a recent Dutch soil bank seminar in Toronto, Ontario was the difficulty many attendees had understanding what exactly a “soil bank” is. It’s certainly not unreasonable to visualize a soil bank as a place containing thousands of tonnes of fenced-off mounds of dirt with bulldozers in the wings. But, as the Consulate General of The Netherlands presented to many perplexed industry attendees on February 19, 2013, that’s simply not the case. The 11 locations across that country are banks in the institutional sense — essentially brokerages that form a soil network. Like tellers in a bank, the staff manage the buying, selling and matchmaking processes that repurpose excess and contaminated soils for new locations in need. The teller hands are dirty-free. Rotterdam in particular has a 70 per cent excess soil situation. That means it’s the job of the soil bank to literally create new demand locations where the old soil can be reused, explained Henri Groeneveld, the City of Rotterdam’s project manager of soil reuse. The soil bank could create parks or gardens, for example, if it doesn’t have a larger-scale construction project (a soil suitor) where the appropriate soil can be reused. Soil banks work on this principle of excess and demand, Groeneveld said. Since the early nineties, he’s been part of a team that’s been developing a city soil map that identifies soil quality classes and prevents the mixture of soil qualities at a new location. The map also helps keep tabs on determining area projects that need soil, or simply have too much. “We categorize quality to optimize reuse,” said Groeneveld, a major player on the Rotterdam Central Station renovation project’s soil remediation team.
Groeneveld said Rotterdam has been the “frontrunner for national soil policy.” “When the legislation is ready, the market is quick to react,” he said. Rotterdam’s soil bank administrates the handling of about one million tonnes of soil each year. Proper matchmaking at the soil bank level, Groeneveld estimates, saved more than 12.5 million Euros in 2011 alone. According to another speaker at the soil seminar, Co Molenaar, successful soil reuse is about “finding the proper balance between land management and remediation.” Molenaar, who represents the Dutch Ministry of Infrastructure and Environment, added that “there should be room for local tailor-made solutions,” which reflects the Netherlands’ position that municipalities should create their own soil reuse policies, with assistance from the ministry. Many Canadian attendees at the soil seminar have been waiting for a soil reuse system to become a priority for the country. The Residential and Civil Construction Alliance of Ontario, for example, has lobbied hard for that province to view excess soil as opportunity, not waste. A 2012 study by the alliance shows costs could balloon to $1.7 billion per year to manage excess construction soils in Ontario. HMM For an article about green remediation approaches in the Netherlands, see the feature on page 14. David Nesseth is Environment Reporter for the EcoLog Group that publishes this magazine as well as the news service ecolog.com Contact Dave at dnesseth@ecolog.com SPRING 2013 HazMat Management 27
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HAZMAT: PRODUCTS
FLASHLIGHT FOR RADIOACTIVE MATERIALS
On January 22, 2013, Radlamp — a company based in Davis, California — announced an innovative new product that should be of interest to HazMat professionals. The Radlamp 300 combines a flashlight with a Geiger counter to enable first responders to quickly identify radioactive threats. The product looks and operates like a small flashlight until it is pointed at an abnormal source of nuclear radiation. The radiation is detected by a sensitive Geiger tube, causing the flashlight beam to change color from white to red. The simple, intuitive operation of the flashlight gives first
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May 29, 2013 BMO Institute for Learning, Toronto, Canada Don’t miss out on this workshop which explores the exciting new markets of waste as a resource. Turn waste into energy, fuel and products including plastics, furniture and feedstock and explore local case studies highlighting biosolids and bioenergy facilities.
Contact Brad O’Brien at 416-510-6798 or bobrien@solidwastemag.com HMMsept08gm1307 Kilmer.qxd 9/12/08 4:27 PM Visit www.solidwastemag.com to register.
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Kilmer Brownfield Equity Fund L.P. Canada’s leading fund dedicated to the redevelopment of brownfields
Putting Private Equity to Work The Kilmer Brownfield Equity Fund is dedicated to creating value for stakeholders through the clean-up and revitalization of brownfield properties in Canada. If you have a property for sale, please contact Pamela Kraft, Development Manager at 416-814-3437 pkraft@kilmergroup.com www.kilmergroup.com/brownfield
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advertiser index
SPRING 2013
ADVERTISER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PG #
ADVERTISER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PG #
Canadian Brownfields Network. . . . . . . . . . . . 18
KG Services. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 28
CERCA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24-25
Kilmer Brownfield Equity Fund, LP. . . . . . . . . . 28
Drain-All Ltd.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Newalta. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Environmental Abatement Council of
MMM Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Ontario. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Ozonator. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ERIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Pactech . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Groundtech Solutions . . . . . . . . . . . . . . . . . . . . . 15
Sites & Spills . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Indicium Compliance Solutions. . . . . . . . . . . . . 10
Waste to Product & Energy Conference. . . . 28
Intrinsik. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
XCG Environmental Engineers &
Italian Clean Technology. . . . . . . . . . . . . . . . . . . 18
Scientists. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SPRING 2013 HazMat Management 29
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HAZMAT: LEGAL PERSPECTIVE
Insolvency: Part Two Potential perverse consequences from the Abitibi Bowater decision
L
by Dianne Saxe & Meredith James
“Nothing in the ‘will the province pay?’ test answers the central question.”
ast issue we told you a bit about the Supreme Court of Canada’s decision in Abitibi Bowater v. Newfoundland, in which insolvency law trumped environmental orders. This issue, we want to tell you more about the rule the court laid down, and why it is likely to have perverse consequences. In short, the Supreme Court ruled that environmental orders can jump the insolvency queue, and take priority over other creditors, but only when the province is not likely to pay for the work itself. As mentioned last time, the facts were extreme. When Abitibi Bowater announced its intention to close its last paper mill, Newfoundland expropriated virtually all of its assets in the province, without compensation. Abitibi Bowater sought protection under the federal companies’ creditors’ arrangement. The CCAA judge issued a claims bar order, to collect all financial claims against the company, and began the complex process of allocating the remaining assets among the many claimants. Meanwhile, Abitibi filed a NAFTA claim against Canada for the expropriation. Newfoundland’s Toronto lawyers commissioned studies to show that the expropriated assets were contaminated, thus creating a cleanup cost claim to offset the NAFTA claim. (Not all of the contamination had been caused by Abitibi.) Newfoundland then ordered Abitibi, by unrealistic dates, to remediate all the contamination. The trial judge ruled that the orders were a cash grab, and were not intended to ensure Abitibi’s compliance with applicable environmental laws in ongoing operations. On one property, the province did some emergency work and put other work out to tender. However, the trial judge found no evidence that the province would implement the rest of the orders, should Abitibi fail to do so. The question that came to the Supreme Court was whether Newfoundland should be able to use these cleanup orders to jump ahead of other creditors as against Abitibi’s other assets: those not affected by or adjacent to the contamination and not already expropriated by the province. Unfortunately, in our view, the Supreme Court did not give a useful answer to this question. According to all three judgements (the majority and two dissents), the pivotal factor is the likelihood that the province will pay for the cleanup itself, if the insolvent entity does not do so. Justice Deschamps ruled that it had to be “likely”; the chief justice said that it had to be a virtual certainty. Justice LeBel agreed with Justice Deschamps on the legal test, but held that the province might not itself spend the money that it was attempting to extract from Abitibi. In this, he was almost certainly correct. The Supreme Court’s focus on whether the province will pay for the cleanup, is, in our view, unhelpful. First,
Insolvent newsprint giant AbitibiBowater’s 160 hectares of land in Kenora, Ontario once housed a paper mill.
it will rarely apply: the court seemed to be unaware that provincial governments almost never cleanup abandoned private contamination. Rather than spend their own money, the provinces often ignore contaminated sites (especially the thousands that have escheated to the Crown) or impose liability on increasingly innocent parties, like the City of Kawartha Lakes. Second, the rule is perverse, because it discourages the provinces from intervening, at public expense, in those extreme cases where we most need them to intervene. Equally, it encourages the secured creditors to refuse to make funds available, in the hope that the provincial taxpayer will pick up the bill. Third, this rule pays no attention to parliament’s actual language, especially its decision to provide provinces with a super priority over the contaminated site and adjacent lands, to secure these very expenses. Fourth, the Abitibi example will make the test puzzlingly hard to apply. We agree with Justice LeBel: we can’t understand why, under the test articulated by Justice Deschamps, Newfoundland couldn’t enforce most of its orders against the post- restructuring Abitibi. It is a sad irony that Justice Deschamps held these orders to be provable claims, on the ground that Newfoundland will pay for the work itself, when the evidence was largely to the contrary, and Newfoundland has not actually done so. Fifth, nothing in the “will the province pay?” test answers the central question: why, and to what extent, should this particular environmental action take priority over the legitimate financial rights and expectations of the other creditors, on top of the super priority created by parliament? Nor does it recognize that not all environmental requirements are the same. HMM
Dianne Saxe, Ph.D. in Law, is a leading Canadian environmental lawyer with her own practice in Toronto, Ontario. Contact Dianne at dsaxe@envirolaw.com Meredith James, B.Sc., J.D., is Associate in the same office. Contact Meredith at meredith@envirolaw.com
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