What to do when a new government revokes your environmental approval

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by Stanley Berger, Fogler Rubinoff LLP

Background

In Eagleridge International Ltd. v. Newfoundland and Labrador (Environment and Conservation) 2018 NLSC 180, following a change of government, the new Minister of Environment and Conservation withdrew approval for the construction of a gravel road intended to facilitate mineral exploration on lands for which mining licences were held and ordered that the project be subject to a full environmental assessment (EA). The licence holder, and project proponent, Eagleridge had already delivered an Environmental Preview Report as required by the previous government, and during the period awaiting approval had incurred approximately $400,000 in expenses including the cost of meeting the conditions for approval. The conditions included an Environmental Effects and Monitoring Plan and a Rare Lichen survey. A group of interested citizens appealed the previous government’s decision to release the project from a full EA. That appeal was filed with the Minister outside the limitation period, the Minister did not issue a decision on the appeal within the prescribed period and there was no express statutory authority to place the appeal “on hold” during this time. Over a year after the appeal had been filed, the Appellants wrote the new Minister requesting a decision on the Appeal. During that time frame, Eaglebridge continued to expend money on the project. The new government advised Eagleridge that the appeal would be revived. Eagleridge filed written submissions respecting the revived appeal process, but the decision to release the project from a full EA was nevertheless overturned by the new government without addressing the objections raised by Eagleridge. The rationale provided by the Minister focussed on the effects of the project on the biophysical and socio-economic environments of the project area, significant public concerns and the recommendations of the Environmental Assessment Committee which had issued the guidelines for the original Environmental Preview Report.

The area of the mineral access road in Newfoundland, as originally proposed by Eagleridge International in the registration for environmental assessment with the province in September 2013

Decision

The reconsideration of the appeal as a device to reverse the previous Minister’s decision to release the project from a full EA was a breach of natural justice as Eagleridge was denied any opportunity to state its case and the decision to revive the appeal was without reasons or rationale. The reconsideration of the appeal was without statutory authority and was quashed. Had the judgment stopped there it would have been a matter-of-fact administrative law opinion. However, the Newfoundland Supreme Court went further and assumed that the power existed in the Provincial Government to still call for a full EA. Notwithstanding that assumed power, the Court held that Eagleridge had recourse to the administrative law doctrine of public law estoppel. It cited the Supreme Court of Canada description of the doctrine in
Immeubles Jacques Robitaille inc. c. Québec (Ville), 2014 SCC 34 (S.C.C.):

The reconsideration of the appeal as a device to reverse the previous Minister’s decision to release the project from a full EA was a breach of natural justice as Eagleridge was denied any opportunity to state its case and the decision to revive the appeal was without reasons or rationale. The reconsideration of the appeal was without statutory authority and was quashed. Had the judgment stopped there it would have been a matter-of-fact administrative law opinion. However, the Newfoundland Supreme Court went further and assumed that the power existed in the Provincial Government to still call for a full EA. Notwithstanding that assumed power, the Court held that Eagleridge had recourse to the administrative law doctrine of public law estoppel. It cited the Supreme Court of Canada description of the doctrine in
Immeubles Jacques Robitaille inc. c. Québec (Ville), 2014 SCC 34 (S.C.C.):

“19. In the public law context, promissory estoppel requires proof of a clear and unambiguous promise made to a citizen by a public authority in order to induce the citizen to perform certain acts. In addition, the citizen must have relied on the promise and acted on it by changing his or her conduct (), 2001 SCC 41, [2001] 2 S.C.R. 281 (S.C.Centre hospitalier Mont-Sinaï c. Québec (Ministre de la Santé & des Services sociauxC.), at paras. 45-46 (“Mount Sinai“), quoting Maracle v. Travelers Indemnity Co. of Canada, [1991] 2 S.C.R. 50 (S.C.C.); J.-P. Villaggi, L’Administration publique québècoise et le processus décisionnel: Des pouvoirs au contrôle administratif et judiciaire (2005), at p. 329).

  1. However, the doctrine of estoppel must yield in the public law context to an overriding public interest and may not be invoked to prevent the application of an express legislative provision (Mount Sinai, at para. 47; St. Ann’s Island Shooting & Fishing Club Ltd. v. R., [1950] S.C.R. 211 (S.C.C.), at p. 220).”

The government argued that the overall public interest in the environment weighed against the application of promissory estoppel. Government officials initially recommended to Cabinet that the project was not in the public interest because the development would take place in proximity to a protected wilderness area and a wildlife park and could have significant implications for a nearby salmon river. The Court rejected this argument on the basis that Cabinet had considered the recommendation and decided to nevertheless release the project from a full EA.

“It goes without saying that environmental considerations are important in assessing the public interest. But defining the public interest is the role of elected officials not the Court.” (par. 115)

What was the Remedy?

Eagleridge was entitled to proceed in accordance with the release from the full EA granted by the Minister before the change in government.

“If the government determines by a lawful means that the release should be reversed, or at least altered, then Eagleridge, under the doctrine of public interest estoppel, is entitled to claim its reasonable costs associated with its actions in pursuance of the release.” (at par.117)

This article was first published in the Fogler Rubinoff LLP website.

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About the Author

Mr. Berger has practiced regulatory law for 37 years. He represents nuclear operators and suppliers , waste management operators, renewable energy operators, receivers -in -bankruptcy, municipalities and First Nations. He has been certified as a specialist in environmental law by the Law Society of Ontario since 2006.

He was an Assistant Crown Attorney in Toronto for 8 years , Senior counsel and Deputy Director for Legal Services /Prosecutions at the Ministry of the Environment for 9 years and Assistant General Counsel at Ontario Power Generation Inc for 14 years.

He is the author of a quarterly loose-leaf service published by Thomson Reuters entitled the Prosecution and Defence of Environmental Offences and the editor of an annual review of environmental law.

-Mr. Berger was the President of the International Nuclear Law Association (2008-2009) and the founder, and President of the Canadian Nuclear Law Organization .

How to Implement a Zero Waste Event for 100,000

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 by Barry Friesen, General Manager of Cleanfarms Inc. and an Etobicoke, Ontario Rotarian

Imagine hosting a dinner party for 100,000 people.  Where do you seat them? Where do they park? Where do you find enough food to feed them?  And the overflow of packaging and compostables in your green and blue bins would fill a house.

Volunteer staff sorting waste at the recycling station

That’s what the Etobicoke Rotary has done for 18 years with its Toronto Ribfest held in Centennial Park, Toronto to celebrate Canada Day and raise money for charity. Typically, 100,000 people over four days enjoy ribs, music, friendship and fellowship, all the while raising money for important causes.

Toronto Ribfest

A small army of volunteers from Etobicoke Rotary spends a year planning and then executing the event.

The volunteers plan for: parking, entry, food, on-site activities, health and safety, emergency routes and of course, managing the waste generated at the event.

My assignment, carried out during my ‘spare’ time, is to manage City permits, fencing, toilets, grey water collection, grease collection, electrical systems and, closest to my heart, waste-resource management. To add to this complicated task, several years ago we went ‘Zero Waste’.

I’ve been a waste management professional for most of my engineering career and currently run Cleanfarms, an industry-led company that operates across the country. While we manage a different waste stream, picking up agricultural wastes from over 1,200 collection locations, I do know that designing the right system is key to success.  It needs to be convenient and efficient for users or they simply won’t participate.

So, while the Toronto Ribfest is more modest in comparison, it’s definitely challenging- as Blue Box program operators will know, but we started small and are continuing to expand an ‘on-site’ public space diversion programs for this event. Our original waste diversion program consisted of gathering beer cans for the deposit-refund – not a tremendous diversion rate, but it was a start!

Of course, the rule of thumb for any waste project is to understand what is being generated. For Ribfest, there are two kinds of waste – in front of the counter and behind the counter.  Each is managed differently but both can be separated into three streams – organics, recycling and waste.  Here’s how we do it.

Front of the Counter Waste

Clamshell containers, napkins, small cups for sauces, drink containers and, of course, food waste comprise front of counter waste. To achieve diversion goals, volunteers hand sort waste into various streams.  And to ensure ease in sorting, our vendor contracts specify wooden cutlery, paper napkins (no non-recyclable wet-naps), paper straws, paper cups for sauces and compostable fibre clamshell containers to limit non-recyclable and non-compostable waste.

The Ribfest ‘zero waste kit’ with compostable, recyclable, reusable components

We took these seven steps to reduce front counter waste:

  1. Situated 10 strategically-located recycling tents where volunteers separated waste into four streams – recycling, deposit beer cans, composting and waste.
  2. Used clear plastic bags for garbage and recycling to facilitate sorting.
  3. Separated beer cans for deposit-refunds and the remaining non-deposit drink containers for recycling.
  4. Mandated a compostable paper straw this year because plastic straws proved too hard to separate from remaining waste.
  5. Eliminated ‘wet-naps’ and set up sanitizer stands at recycling stations and hot wash stations at four washroom areas for patrons to clean their hands.
  6. Eliminated most garbage cans. As exceptions, we put garbage cans at washroom stations for paper towel waste and at park exits to capture beer cans; these wastes were sorted later into proper streams.
  7. Placed organics in paper leaf and yard waste bags donated by Canadian Tire.

We placed five dumpsters provided by Miller Waste just outside the festival boundary. Accessible only by staff, they were labelled for old corrugated cardboard (OCC), recycling, garbage and two for organics.

Miller Waste emptied the dumpsters daily into dedicated rear packer trucks.

Organics and waste went to Walker Environmental to manage. The City of Toronto was the destination for recycling and OCC. Beer cans were returned to the Beer Store.

Behind the Counter Waste

Behind the counter waste is made up of corrugated cardboard, large cans, plastic pails, stretch wrap, bottles, organics and varying amounts of garbage, most of which is recyclable or compostable.  We provided vendors with clear plastic bags and organic yard waste bags.  The vendor’s job was to separate the waste – easy to do.  Our job was to pick it up and take it to the proper dumpster.

Lessons learned on our journey to zero waste.

There are many lessons we learned on our journey and many more we will still encounter.  Of all of them, I would point out a few.  First, it took us almost five years to get to our ‘sweet spot’ where things just seem to work. Rome wasn’t built in a day, and likewise, our waste diversion plan has been tweaked over a few events.

Another thing we learned is that there are side benefits to good programming.  Litter, for instance, has been down substantively since we started.  When patrons of the event see the service they receive, they appreciate it and go out of their way to help in other ways like reducing litter in the rest of the park.

Another key to success is ensuring we have a master sorter. We found one and each year sorting improved to a point where there is no need for retraining each year.

Rotary Etobicoke’s Toronto Ribfest – By the Numbers

Ribbers (BBQing and serving ribs)

12
Other food vendors 13
Recycling Stations 10
Garbage cans throughout the park 6
Man-hours in the recycling/sorting tents 1,200
Man-hours moving waste from tents to dumpsters 840
Total amount of solid waste (tonnes) 23.46
Total amount of organic (tonnes) 12.42 (53%)
Total amount of recycling (tonnes) 5.36 (23%)
Total amount of landfilled waste (tonnes) 5.68 (24%)
Total waste diversion 76%*

*During the first three days the actual diversion was 87%, but considerable other waste created at the end of the event brought the diversion number down.)

Where to Next?

In 2018, we achieved 76% waste diversion.  That’s a far cry from the few beer cans we recycled in the past.  The City of Toronto has a goal of 70% waste diversion and we’ve beaten that. But should we stop now?  I know we can do better. I’ve seen what goes into our waste bin and know there is still a lot more we can do. In fact, knowing that we achieved 87% diversion our first three days is testament to what can be done, not just at the Toronto Ribfest but maybe also at other events around the province.

For more information, email Barry Friesen.

Innovations on Recycling of Glass

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by  Charnele Andrews, Sheridan College and John Nicholson, M.Sc., P.Eng

 

Glass is made by supercooling a hot liquid mixture of sand and soda ash until it is rigid.  With supercooling the material does not crystalize, but keeps the same structure as the liquid.  This also allows for the material to be formed into various structures.  Glass waste generated from municipalities is typically from glass products such as bottles/containers and glassware.

Glass is 100% recyclable and can be recycled endlessly without loss in quality or purity.  The challenge with recycling glass is two-fold.  The cost of making glass from sand and soda ash is relatively cheap and the cost of recycling glass is relatively expensive, especially when different colored glass needs to be separated.

Another challenge with glass recycling is contamination.  Glass containers for food and beverages are 100% recyclable, but not with other types of glass.  Other kinds of glass, like windows, ovenware, Pyrex, crystal, etc. are manufactured through a different process.  If these materials are introduced into the glass container manufacturing process, they can cause production problems and defective containers.  As such, recycling glass into cullet is generally what glass recyclers focus on.

A recent survey conducted by the U.S. Northeast Recycling Council (NERC) demonstrates the challenge of glass recycling.  Of the waste glass collected, 54% of it was sent to secondary processors for cleaning in 2017.  The second most common destination of the waste glass was landfill as alternative daily cover (23.5%), followed by landfilling (14.7%0 and uses in aggregate applications (7.8%).

Within the more recent years, there has been more effort in the recovery of postconsumer glass waste.  Recycling facilities aid in the sorting and processing of municipal recyclables like glass. Glass can either be recycled in recycling bins, in some retail locations or at community waste glass drop – off locations.

Typically waste glass in recycling facilities is sorted by colour and crushed to a size less than 50 mm.  Coloured glass, referred to as cullet can be used to manufacture new glass containers.  This however is not used very frequently due to the contamination issues mentioned earlier.

Recycled waste glass when crushed to sizes similar to that of natural sand has properties of an aggregate material.  This aggregate glass material can be used in pipe bedding and the sub surfaces of roads and parking areas.

Recycled glass used to make balls

NexCycle, an Ontario-based company has been recycling glass for 15 years. The company collects both post-consumer and post- industrial scarp waste.  Optical sorting technology is used to sort the glass by colour and purity.  The glass is then processed into cullet, which can be sold to glass manufacturing industries as raw material. NexCycle claims to be the largest supplier of cullet to the glass container/bottle industry in Canada.  The company also sells cullet to fiberglass manufacturers, the glass bead industry.  Ground glass produced by Nexcyle is sold to the abrasive industry.

The Regional Municipality of Niagara in Ontario is looking into creating a new market for recycled glass.  With funding assistance from the Community Improvement Fund, the Municipality will undertake a project that will look into the use of processed recycled glassware in the formation of bio-soil. The processed glassware would be a replacement for the 85% sand component of the bio-soil.  Glass is a resource in which its granular size can be controlled and easily reproduced.  Bio-soil already is used in many places around the Niagara region, including parking lot islands, parks and storm water planters.

 

The Future of On-Site Organic Waste Management

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by John Nicholson, M.Sc., P.Eng

Editor

Introduction

A successful business has management and staff that constantly look for ways to make money and ways to save money.  When it comes to managing organic waste generated by a business, ways of saving money may, in the near future, flip into ways of making money.

In most jurisdictions, organic waste is separated from other wastes for further treatment.  To date, there are some organizations that have opted to treat their organic waste on-site.  There are pros and cons to this option.  The pros include the ability to control costs through the management of one’s own waste, the potential benefit of energy generation, and the utilization of the compost or anaerobic digestate. The cons include dealing with odour issues, space restrictions, and the need for specialized staff to operate the treatment system.

Many organizations that opt to manage organic waste on-site choose aerobic composting due to its low maintenance and capital costs.  However, these organization may be losing out on a possible revenue stream if they do not consider anaerobic digestion.

Algoma Orchards

Located near the Town of Newcastle, Ontario Algoma Orchards is a family-run company that specializes in growing apples and producing apple cider and other juices.  They have been in business since 1964.

Kirk Kemp is the president of Algoma Orchards in Clarington, (Photo Credit: Ryan Pfeiffer / Metroland)

Algoma Orchards has a fully integrated production facility that packages annually over 36 million kilograms of apples for wholesale, presses nearly 9 million litres of juice, and produces a variety of prepared products such as baked goods and gourmet foods.  The facility has 125 full-time employees and up to 180 seasonal workers.

Algoma generates several thousand tonnes of organic waste per year.  Today the company has a cost associated with the disposal of the organic waste (pomace, unsuitable for use) generated at their facility.  Consistent with the operating vision and sustainable thinking in the business, Algoma partnered with CCI BioEnergy Inc. (CCI) to consider new organics management options with an objective to maximize the value of their wasted organics.

Anaerobic Treatment

Fortunately for Algoma Orchards, a potential solution for converting their organics into higher value uses was just down the road.  CCI, a Canadian-based company specializing in the design, build and operation of anaerobic digestion (AD) systems has its head office a short 5 minute drive down the road.

CCI  is most known in Canada and the USA for designing, building and operating the two AD facilities that have processed more than 650,000 tonnes of the City of Toronto’s residential curbside collected, source separated organics (also known as the Green Bin Program) since the fall of 2002.  The solution needed for Algoma Orchards would be on a much smaller scale.

Algoma Orchards and CCI are currently working together on a trial of a new micro AD system first used in the UK  and brought to North America by CCI.

What attracted Algoma Orchards to the technology was its simplicity of design and ease of operation.  The system was originally architected and built by a UK based company, Qube Renewables,  to meet the waste and sewage treatment needs of British troops at remote sites and forward operating bases.  The design criteria demanded by the British military was that the system needed to be robust, transportable, rugged, and easy to operate.

How the System Works

The system installed at Algoma Orchards has the core features of a typical AD system with unique features that make it robust and easy to operate. Using re=purposed shipping containers, the system has a flexible architecture to integrate the needed systems to build a client solution, including biogas utilization systems. Small-scale combined heat & power (CHP) is available beginning in the 3.5kW capacity and upgrading systems for renewable natural gas that convert as little as 10 cubic metres of biogas per hour.

CCI Biogas Installation of BioCube System at Algoma Orchards

Algoma is already seeing the benefits of the on-site AD approach, as have the other generators of the different feedstock types being tested at the Algoma site. For Algoma, and any user, the business case includes the current management practice savings, the internal energy use off-sets, saleable carbon footprint reduction credits, the digestate value as a soil amendment/fertilizer, satisfying their customer expectations to reduce their carbon footprint, the accelerated depreciation available for renewable energy projects, and the value accrued against their corporate sustainability objectives.

The AD system is also a logical extension of their unique, on-site aerobic waste water treatment system supplied by the Altech Group based in Toronto.  The wastewater system consists of a membrane bioreactor that captures and reclaims all the water used in the facility – a key given the rural located plant has no access to municipal water or sewage services.   Although the trial is yet to be completed, the payback on the system is estimated to be less than five years.

As for the traditional drawbacks to implementing an AD system, Algoma has yet to experience major process upsets or odour issues, which also are likely not an issue due to the consistency and mix of the feedstock supply.

The Future

For Algoma Orchards the future has arrived.  The company has on-site treatment solutions for its organic waste and wastewater that together deliver significant cost benefits and environmental attributes that are critical to their operating vision and success. To many, organic waste and wastewater is seen as an environmental problem.  At Algoma, it looks like the company has turned these liabilities into opportunities.

BioQube System in Operation in the UK

Learning Lessons from Past Fires at Waste Management Facilities

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The latest waste management facility fire in Canada occurred on September 12th in Langely, British Columbia.  When emergency vehicles arrived on scene, they found the fire making its way through a pile of wood waste 60 metres high and 240 metres long. The wood waste consisted of lumber, logs, roots, stumps and pallets intended to be turned into hog fuel and bark mulch. It took over 36 hours for the fire department to put out the fire at the wood waste recycling facility.  The cause of the fire is being investigated.

Fire burns through a large pile of wood waste at a recycling facility in Langley, B.C. (Cory Correia/CBC)

At about the same time as the fire crews were battling the blaze at the Langley, B.C. waste management facility, an emergency response team of about 70 firefighters were fighting a massive fire at an Annapolis Valley, Nova Scotia construction & demolition landfill.  It took over 12 hours to put out the fire at the Annapolis Valley facility.  A reward of $10,000 is being offered to any person who can provide information on how the fire started.

Earlier this summer, there was a fire at a GFL solid waste transfer station in Edmonton, Alberta.  The Edmonton Fire department arrived on scene at 3 am on July 29th and managed to get the fire under control by 6:30 am.  Fortunately, no one was injured.  The exact cause of the fire is still under investigation.  One hindrance to putting out the fire was the lack of fire hydrants in the vicinity of the facility.

Six-alarm fire at the GFL Recycling Facility in the Toronto Portlands, east of the downtown core (Photo Credit: PASCAL MARCHAND)

GFL also had a fire at one of its Toronto facilities in May 2017.  The massive fire required required a six-alarm response (17 pumpers, 6 aerials, 2 squads, 6 district chiefs, 1 platoon, 1 division commander, 1 command vehicle, 2 air supply trucks, 1 hazardous materials truck). The GFL recycling facility located on Cherry Street in the Port lands burned for days and resulted in $20 million in damage.   Originally, it was speculated that embers from fire works being set off in the area were the cause of the fire but it was subsequently ruled out.

Statistics

According to research performed by Ryan Fogelman of Michigan-based Fire Rover there were 268 fires reported in the news about recycling facilities in North America from July 2016 to July 2017.  Mr. Fogelman estimates this as a minimum during the reporting investigated period as it does not take into account any fires at facilities that were not reported in the news.  His latest research , dated April 2018, revealed a 48% Increase in waste & recycling facility fires in the first eight months of 2018 compared to 2017.

Why are things not getting better?

With each fire at a recycling and/or waste management facility, one would think that useful information would be obtained that could be subsequently applied to other facilities to prevent the same occurrence.  Unfortunately, the statistics appear to be telling a different story.

There could be a multitude of reasons for the increase in fires in 2018 over the previous year and the generally high number of fire at recycling and waste management facilities.  Mr. Fogelman of Fire Rover has speculated that it could a combination of factors including an onslaught of lithium-ion batteries found in waste streams, the increased material stock at facilities due to China’s recycling restrictions, and warmer/drier than usual weather from previous years.

A report prepared by the French Ministry of the Environment, Energy, and the Sea in 2016 concluded that fires at waste management facilities predominately fit into one of the following categories:

  • Fire caused by self combustion;
  • Fire caused by the presence of ignitable waste;
  • An accident subsequent to an unexpected chemical reaction during hazardous waste storage or handling;
  • Ignition subsequently to poor supervision of hot spot work locations;
  • Arson and/or vandalism;
  • Machinery fire caused by an electrical or mechanical problem;
  • A leak or overflow of a liquid storage tank containing ignitable and/or flammable material; and
  • Other causes (i.e., fire from neighbouring site).

The French report acknowledges that it is impossibe to describe all the accident configurations potentially
encountered within the various types of waste management facilities, it concludes that the several recurrent patterns stated above are worth mentioning.

Solutions

There is no one magic panacea for solving the riddle of fires at recycling and waste management facilities.  If there was, one would hope that it was being implemented.  What various codes, reports, and guidelines inevidently recommend are a serious of actions and equipment.

In some cases, fires may not be prevented (i.e., the presence of ignitable waste), but there are actions that can take place at a transfer/processing facility that can increase the risk of a fire.  Such actions (or inaction) can include poor storage practices, poor management systems, along with inadequate fire prevention and emergency response measures.

In the case of the 2016 French report on fires at waste management facilities are as follows:

  • Training of the various responders (technicians, watchmen, etc.) in chemical risks, wearing
    individual protective gear;
  • Improvement of the acceptance procedure (e.g. comparison drawn between the product
    safety sheet and the waste acceptance certificate);
  • Optimal supervision by means of waste handling (transfer/dispensation) procedures;
  • Enhanced controls of container cleanliness (absence of residue) / efficiency of cleaning
    operations prior to material transfer;
  • Physical isolation of incompatible products (use of separate premises, with cabinets as
    needed);
  • Improvement of monitoring / sorting upon acceptance in order to route the waste to the
    appropriate warehouse cells;
  • Modification of operating procedures: no warehousing of products that exhibit higher risk
    during periods of closure (weekends), complete ban on the warehousing of certain high-risk
    waste (e.g. batteries still fitted with their cables);
  • Expanded verifications before periods of closure and enhanced surveillance during such
    periods;
  • Depending on the typology of the waste involved, modification of the transfer technique in
    order to limit risks (e.g. transfer of used acids from bulk containers using stationary pumps
    rather than a transfer process that relies on compressed air);
  • More efficient controls prior to initiating the transfer operation;
  • Coordination pursued with waste producers on identifying substances in a way that avoids
    confusion: labelling, differentiation between types of containers / couplings with respect to
    the products;
  • Communication addressed to the supplier and shipper, training in the risks of incompatibilities
    both between products and between products and materials at the various stages throughout
    the supply chain; and
  • Revision of the risk analysis (safety report) to incorporate accident patterns (inclusion of the
    risk of placing incompatible products in contact with one another).

In some cases, the the environmental regulator can play a role in preventing fires at recycling/waste management sites through increased inspection and increased regulatory fees required of operators with poorly performing sites.  In some cases, a repeat offender may be denied the ability to obtain an operating permit.

For operators of recycling/waste management facilities, the cost of a fire far outweighs the time, effort, and cost to prevent them.  Fires result in a disruption to business, increased insurance premiums, clean-up costs, potential fines, and damage to business reputation.  As an industry, a renewed commitment to fire prevention at recycling/waste management facilities would be a benefit to all.

 

 

 

 

 

 

 

 

Chinese Waste Import Restrictions/Impacts

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by Walter Wright, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

The Solid Waste Association of North America (“SWANA”) issued what it describes as an “update” on the topic of:  China Waste Import Restrictions and Impacts on State and Local Recycling Programs (“Update”).

SWANA describes itself as “an organization of more than 10,000 public and private sector professionals committed to advancing from solid waste management to resource management through their shared emphasis on education, advocacy and research.”

China had previously put in place a ban of the import of certain scrap materials. The ban took effect in January 2018 and applied to 24 categories of scrap and recyclables. In March 2018 a 0.5% contamination standard was implemented.

The issue is critical because demand is obviously a driver of recycling growth. China has had significant importance in terms of scrap and recyclable demand because of its status as the largest importer of such materials in the world.

Waste Paper at Hong Kong dock (Photo Credit: Reuters)

The SWANA Update is intended to provide an overview of the effect that the Chinese restrictions are having on the export of recyclables from the United States and Canada. This analysis includes what it describes as the increased movement of material to southeast Asian countries and additional potential restrictions.

SWANA notes that the Chinese restrictions have caused a dramatic decline in the amount of scrap and recyclables exported from the United States to China. Its Update includes a graph illustrating the impact on both mixed paper and scrap plastics.

The SWANA Update states that other countries, primarily in Asia, have increased their import of these materials from the United States and other countries. In recent months several of these countries (citing Vietnam and Indonesia) are stated to have announced measures to reduce the flow of recyclables into their ports. Graphs are included to illustrate the change in the amount of scrap paper and plastics to Indonesia, Malaysia, Thailand, and Vietnam.

The Update also identifies what it characterizes as SWANA’s aggressive steps to respond to the Chinese restrictions. They are stated to include:

  • Establishment of a Recycling Task Force consisting of industry and municipal leaders from the United States and Canada to guide SWANA’s response
  • Identifying best practices for reducing contamination of curbside recyclables
  • Creating demand for recycled content
  • Requesting that Congress include support for recycling in the Infrastructure bill
  • Working with other recycling stakeholders to amplify messages/concerns
  • Providing education on the impact of the Chinese waste import restrictions at online and in-person events

A copy of the Update can be downloaded here.

 

This article was first published on Mitchell Williams Law website.

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About the Author:

Walter G. Wright, Jr. is a member of the Business Practice Group.  His practice has focused for almost thirty years on environmental, energy (petroleum marketing), and water law.  Mr. Wright’s expertise includes counseling clients on issues involving environmental permits, compliance strategies, enforcement defense, property redevelopment issues, environmental impact statements, and procurement/management of water rights.

Mr. Wright routinely advises developers, lenders, petroleum marketers, and others about effective strategies for structuring real estate and corporate transactions to address environmental financial risks.  He also serves as General Counsel and provides legislative representation to the Arkansas Oil Marketers Association, Arkansas Recyclers Association (scrap facilities) and Arkansas Manufactured Housing Association.  A unique part of his practice has been drafting and negotiation of a variety of specialized agreements involving the sale or consignment of motor fuels along with the ancillary agreements associated with the upstream segment of the petroleum industry.

Ontario Announces Cleantech Strategy & Support for Cleantech Companies

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Article by Richard CorleySophie Langlois and Catherine Lyons

Goodmans LLP

Recently, the Ontario Minister of Research, Innovation and Science, Reza Moridi, launched Ontario’s Cleantech Strategy (the “Cleantech Strategy“) which aims to catalyze the growth of Ontario’s clean technology sector to support sales into a global market which is expected to grow to $2.5 trillion by 2022. The Cleantech Strategy is aligned with Ontario’s five-year Climate Change Action Plan (CCAP) to fight climate change, reduce greenhouse gas (GHG) pollution, and drive the transition to a low-carbon economy.  It is also aligned with Ontario’s Business Growth Initiative (BGI), which is, among other things, assisting innovative companies to scale up.

Purpose of the Cleantech Strategy

The Cleantech Strategy bolsters Ontario’s commitment to support the development of new, globally competitive low-carbon technologies that will contribute to fighting climate change and to meeting Ontario’s GHG pollution reduction targets of 15% below 1990 levels by 2020, 37% by 2030 and 80% by 2050. As Minister Moridi explained:

By helping our cleantech companies get ready to scale – and helping them to connect to early customers here in Ontario – Ontario is supporting innovation and reducing emissions and environmental impact across industries. Over the longer term, we expect to see more scaled-up Ontario cleantech companies recognized as North American leaders.

Ontario has the largest share of cleantech companies in Canada and the Cleantech Strategy further supports the province’s leadership in GHG pollution reduction through the development and scaling of cleantech solutions.

Principal Elements of the Cleantech Strategy

Based on Ontario’s strengths in cleantech and global demand, the Cleantech Strategy prioritizes the following four cleantech sub-sectors: energy generation and storage, energy infrastructure, bio-products and bio-chemicals, and water and wastewater.

The Cleantech Strategy has four interrelated pillars through which the province intends to meet its objective of helping cleantech companies scale up and meet global demand:

  1. Venture and scale readiness – strengthening opportunities for in-house research and development, strengthening entrepreneur knowledge of key global markets, reducing regulatory uncertainty to facilitate access to capital, and attracting and developing a strong pool of sales, marketing and management talent
  2. Access to capital – increasing access to scaling capital, providing guidance on available provincial and federal cleantech funding, and simplifying access to such capital
  3. Regulatory modernization – streamlining the regulatory environment where possible to reduce barriers for cleantech market entry, supporting performance-based standards and approvals processes, and supporting the development of harmonized industry standards
  4. Adoption and procurement – increasing demonstration and pilot opportunities to de-risk and validate new technologies, and addressing prescriptive and risk-averse procurement practices

Initiatives funded through Ontario’s carbon market as part of the Cleantech Strategy include the Global Market Acceleration Fund (GMAF) and the Green Focus on Innovation and Technology (GreenFIT).

The Global Market Acceleration Fund

The GMAF will help companies lower the risk associated with expanding production of a proven clean technology.  The fund will also assist companies with the cost of scaling up inventory, distribution and sales to domestic and global markets.  The GMAF can provide between $2 million and$5 million of funding to Ontario-based companies with promising GHG reduction technologies and scale-up and export potential.  To receive funding, these companies must be able to demonstrate funding commitments for at least 50% of the eligible project costs. A total of $27 million has been allotted to the GMAF.

Green Focus on Innovation and Technology

Through the GreenFIT program, Ontario will commit $10 million towards demonstration projects of new technologies and services. Early adoption of these new technologies and services will benefit both the adopting public sector institutions with support for their emissions reductions and participating companies with opportunities for validation and credibility for their products.

The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.

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About the Authors

Richard Corley is a partner at Goodmans LLP and leads the firm’s Cleantech Practice Group.

Sophie Langlois is an associate at Goodmans LLP.  She practices in the area of corporate and securities law and mergers and acquisitions.

Catherine Lyons is a partner at Goodmans LLP.  She dedicates her practice to representing both private and public sector clients at the intersection of municipal and environmental law.

 

This article was first published on the Goodmans LLP website.

Are You an Early Adopter? The growth of novel contaminant delineation technology

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by Kevin French, Vertex Environmental

In the 1920s researchers became interested in the sociology of exactly how rapidly advancing technologies were dispersed and then adopted by farmers.

By the 1960s a theory known as diffusion of innovation detailed the process of how, why, and at what rate any new technology is spread to a community.

A key group in a community are known as Early Adopters. These folks, representing an estimated 13.5% of the population, are the first to embrace new advances and allow a technology to gain an early foothold. Early Adopters may also enjoy a competitive advantage in the marketplace.

In this article, on an animated map you can see how a novel contaminant delineation technology has spread across Canada since 2011. Were you one of the Early Adopters back in 2011?

Vertex started with High Resolution Site Characterization (HRSC) during a pilot-scale trial back in 2011. The technology is now used country-wide and has even been adopted into the CCME Guidelines for delineationpractices.

The Diffusion of High Resolution Technology in Canada.

The Toronto waterfront was the site of our first use of HRSC technology in Canada back in April of 2011. Early Adopter clients understood that real-time field readings could eliminate multiple mobilizations with a drilling crew. The iterative process of a delineation program suddenly had, well, fewer iterations.

Take a look at the map below showing the growth and spread of HRSC across Canada:

The number of new clients adopting HRSC technology across Canada has also generally followed the same lifecycle curve as shown above. Here is the number of meters profiled per year for a 6 year period:


The number of clients and number of annual meters profiled has increased each year since 2011, with over 11 km profiled during 2016 alone! It is interesting that innovation adoption lifecycle still holds true after 50 years – even with incredible advances in new technology that couldn’t even have been predicted back then!

As with anything new, explaining the advantages and benefits requires answering a lot of good questions. Here are a few of the most common that we encounter:

  1. Can HRSC Replace Laboratory Analysis?

Yes and No. A major advantage is the collection of on-the-fly information. Massive amounts of HRSC data is collected, quickly and cost-effectively. When combined with traditional Phase II Environmental Site Assessment (ESA) methods, they greatly enhance the understanding of presence, concentration and distribution of contamination in the subsurface. The rapidly collected data in turn reduce the number of field mobilizations for drilling and sampling and the number of samples required for laboratory analysis. Laboratory analysis is required to validate field contaminant concentrations detected by the HRSC instrumentation. In some cases it is even possible to produce a correlation between HRSC readings and laboratory analytical data, greatly simplifying the approach to accurate delineation of contamination in the field.

  1. Is this Technology Accepted Practice in Canada?

Often this question is phrased along the lines of “where have you used this?” The real meaning of the question: “is this an accepted technology”?  HRSC technology was first developed in the United States and was actively deployed in the U.S for at least a decade before we brought it to Canada full time. However, common practice in the U.S. does not necessarily translate into accepted practice in Canada. And certainly not right away.

By the end of our first year in 2011, we had successfully deployed the HRSC tools at fifteen sites. As we approach the end of 2017, we have now used the technology at over 170 sites! Many of these are situated in Southern Ontario and Quebec. But our clients have also applied the technology extensively at sites from Goose Bay, Labrador to Cold Lake, Alberta to northern British Columbia, to Whitehorse, Yukon. Site types vary from corner gas stations, industrial manufacturing facilities, upstream oil and gas facilities, highway maintenance yards to Canadian Forces Bases. Along with this variety of sites the geologies that Vertex has had to profile have varied widely across Canada. Everything from tight silt tills to glacial sand and gravel deposits. Each geology presents its own unique challenges and Vertex has been able to tackle them all learning more and more, and expanding HRSC capabilities along the way. Being able to capture these data sets for clients across Canada has been quite a journey and we can’t wait to see where it leads us in the future!

  1. How Much Does it Cost?

The cost of this type of investigation is quite affordable when comparing the amount of data collected with the HRSC instruments vs the data collected with traditional investigation techniques (drilling and sampling). We have mobilized and completed cost-effective HRSC programs on both the east and west coasts and in the arctic of Canada. The HRSC technology is very affordable when your site investigation or delineation program would otherwise require multiple mobilizations and iterations of testing or when a high level of detail is required to understand subsurface site conditions. For detailed costing and estimating please feel free to contact us and we will be happy to help out and design a HRSC program that fits your site needs and budget.

  1. What is Coming Next?

The world of HRSC is constantly moving forward with new technology and tooling being invented and tested. Recently, Vertex deployed a dual Laser Induced Fluorescence (LIF) probe to complete an interesting site investigation, the first of its kind in Canada. The dual LIF probe housing both a TarGOST and UVOST unit was deployed in Ontario to further investigate a large development site in Toronto. This dual LIF probe was able to simultaneously detect petroleum hydrocarbon Light Non-Aqueous Phase Liquid (LNAPL) and Dense Non-Aqueous Phase Liquid (DNAPL) products! The data was then used to refine in-situ pilot-scale remediation activities in order to better account for subsurface contamination conditions at the site.

Stay tuned to see what comes next in the world of HRSC!

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About the Author

Kevin French, B.A.Sc., P.Eng., has 25 years of experience in environmental assessment and remediation. Kevin holds a Bachelor’s Degree from the University of Waterloo where he studied Civil and Environmental Engineering. Since that time, Kevin has been involved in the design and implementation of remediation programs relating to chlorinated solvents (including DNAPL), petroleum hydrocarbons (including LNAPL), PAHs/coal tar, heavy metals, etc., at hundreds of sites across Canada.

This article was first published in Vertex Environmental Inc. Newsletter.

U.S. EPA Guidance Documents Are Not Enforceable Rules Says DOJ

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by Van P. Hilderbrand, Jr. and Russell V. Randle at Miles & Stockbridge P.C.

Companies regulated by the U.S. Environmental Protection Agency (U.S. EPA) have long complained that U.S. EPA too often uses guidance documents improperly, both to expand regulatory requirements beyond what the law permits and to avoid judicial review of such expansions. Moreover, regulated parties often argue that the U.S. EPA rigidly enforces such guidance as binding federal rules, but ignores such guidance when it likes. Without expressly referencing the U.S. EPA, the Department of Justice (DOJ) has now taken action that will make it harder for such alleged misuse to occur, whether by the U.S. EPA or by other agencies whose rules the DOJ enforces in federal civil cases through civil penalties and injunctive relief.

Guidance documents serve an essential role in environmental regulation, given the great complexity of the ecosystems to be protected and the intricacies of the industries regulated. The U.S. EPA often publishes policy and guidance documents to clarify enforcement authority, to encourage compliance, and to offer the official interpretation or view on specific issues. Over time, these policies and guidance documents have become a key tool in the DOJ’s enforcement toolbox. DOJ attorneys have used non-compliance with these policies and documents as evidence that the underlying regulation or statute has been violated.

Regulated parties have long objected to this practice because, unlike the underlying regulations, these guidance documents seldom are subject to the notice-and-comment procedures of the Administrative Procedure Act (APA) or judicial review before an enforcement case is brought, when a challenge to the EPA interpretation is a very high stakes gamble.

On January 25, 2018, the DOJ offered the regulated community some relief from this practice. Ironically, it did so in a Policy Memorandum – a guidance document – entitled, “Limiting Use of Agency Guidance Documents in Affirmative Civil Enforcement Cases.” This policy memo prohibits DOJ attorneys from relying on agency guidance documents as the sole basis for their civil enforcement actions. In other words, DOJ attorneys can no longer bring enforcement actions that require compliance with agency policy and guidance in lieu of clearly articulated requirements in properly promulgated and binding federal rules. The Policy Memorandum’s impact across various regulated industries such as healthcare, finance, and tax will differ and remains uncertain; however, we see a particularly significant effect on DOJ’s ability to enforce environmental regulations and statutes administered by the U.S. EPA.

What does the Policy Memorandum say?

The Policy Memorandum memorializes what the regulated community has argued for many years – that “[g]uidance documents cannot create binding requirements that do not already exist by statute or regulation” – and provides a list of how DOJ attorneys may and may not use agency guidance in future and pending affirmative civil enforcement actions. According to the Policy Memorandum, DOJ may not:

  • Use its enforcement authority to effectively convert agency guidance documents into binding rules;
  • Use noncompliance with guidance documents as a basis for proving violations of applicable law in civil enforcement cases; and
  • Treat a party’s noncompliance with an agency guidance document as presumptively or conclusively establishing that the party violated the applicable statute or regulation.

The Policy Memorandum does not impose an absolute bar against using agency guidance; instead, DOJ attorneys may “continue to use agency guidance documents for proper purposes in such cases.” For example, guidance documents are often used as evidence that a regulated party had “requisite knowledge of the mandate.” This use is expressly still allowed. So is the use of guidance documents that simply explain or paraphrase the legal requirements in the four corners of the existing statutes or regulations, as long as the guidance doesn’t create new requirements.

What does the Policy Memorandum mean for the regulated community?

In practice, the new policy may reduce the use of civil enforcement actions to advance new EPA policy interpretations, interpretations which typically push the boundaries of the U.S. EPA’s legal authority. This effect may be particularly noticeable in connection with claimed violations under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), the Clean Water Act, and the Clean Air Act.

Enforcement under these statutes relies heavily on thousands of pages of the U.S. EPA guidance documents. The interpretations of these guidance documents are often a moving target because very few have been subject to comment by the regulated community and the public or judicial review, as DOJ routinely argues that they are not “really” binding or justiciable.

The Superfund program, in particular, relies upon guidance documents to flesh out its requirements for removal and remedial work, rather than relying upon rules established under APA procedures. The government will have a more difficult time arguing that violations of EPA guidance constitutes a violation of CERCLA requirements; in practice, such guidance often imposes very detailed and sometimes onerous requirements not mentioned in the statute or any implementing regulation.

Similarly, the U.S. EPA and the U.S. Corps of Engineers are no longer relying upon the controversial 2015 rule defining “waters of the United States,” but instead rely upon guidance documents. The DOJ Policy Memorandum may have significant and unanticipated effects in that context, since the court decisions are divided as to what constitutes waters of the United States and what may constitute a jurisdictional wetland subject to permit requirements for dredge and fill work under Section 404 of the Clean Water Act.

It will also make it more difficult for DOJ to enforce settlement documents, consent decrees, and unilateral administrative orders since they are typically based on compliance with requirements discussed in dozens of EPA policies and guidance documents.

Although the DOJ Policy Memorandum does not address the U.S. EPA’s use of its own guidance documents in settlement discussions, in administrative enforcement proceedings, and when issuing notices of violations, DOJ’s announced unwillingness to rely upon the U.S. EPA guidance documents in subsequent civil enforcement actions should restrain such use, and force the U.S. EPA enforcement personnel to focus on clearer potential violations than in the past. That said, nothing in the Policy Memorandum prohibits a regulated party from citing agency guidance documents in its defense.

The Policy Memorandum is part of this Administration’s deregulatory agenda.

DOJ enforcement capability was already constrained by a November 16, 2017 “Prohibition of Improper Guidance Documents” which prevented DOJ from relying on its own published guidance documents. This policy memorandum issued by Attorney General Sessions prohibited DOJ attorneys from:

  • Issuing guidance documents that effectively create rights or obligations binding on the public without undergoing the notice-and-comment rulemaking process;
  • Creating binding standards by which DOJ will determine compliance with existing statutory or regulatory requirements; and
  • Using its guidance documents to coerce regulated parties into taking any action or refraining from taking any action beyond what is required by the terms of the applicable statute or lawful regulation.

It is no secret that the current Administration has set out a broader regulatory reform agenda focused on regulatory rollbacks to reduce unnecessary regulatory burdens. The recent February 2018 Policy Memorandum is an extension of the limitations imposed by the November 16, 2017 memorandum, and follows on the heels of other regulatory reform measures such as the establishment of various reform task forces and Executive Order (EO) 13771, “Reducing Regulation and Controlling Regulatory Costs,” which requires that any new incremental costs associated with a new regulation be offset by eliminating two existing regulations. Either by EO or by DOJ mandate, the current Administration continues to charge ahead with a deregulatory agenda that establishes less-restrictive rules for the regulated community.

Conclusion

As a result of this new policy, successful enforcement by the U.S. EPA and its enforcement counsel at DOJ will have to focus on clearer and it is hoped, more substantive violations of the U.S. EPA rules, and rely far less on requirements sought to be imposed by agency guidance documents. The impacts may be most pronounced in the Superfund and wetlands contexts, but will be a factor in almost every environmental regulatory program, given the complexity of these programs, and the undeniable need for agency guidance about practical implementation

Opinions and conclusions in this post are solely those of the author unless otherwise indicated. The information contained in this blog is general in nature and is not offered and cannot be considered as legal advice for any particular situation. The author has provided the links referenced above for information purposes only and by doing so, does not adopt or incorporate the contents. Any federal tax advice provided in this communication is not intended or written by the author to be used, and cannot be used by the recipient, for the purpose of avoiding penalties which may be imposed on the recipient by the IRS.

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About the Authors

Van P. Hilderbrand, Jr. is a member of Miles & Stockbridge  Products Liability & Mass Torts Practice Group.  He focuses his practice on environmental litigation, regulatory compliance issues, and advising on the environmental aspects of business and real estate transactions. His work also includes consulting on renewable energy project development and project finance transactions, conducting due diligence and assisting with permitting issues. He represents clients in a wide range of industries, including energy, manufacturing, consumer products, pharmaceuticals, chemicals, transportation, technology and real estate.

Formerly an associate with Sullivan & Worcester LLP in Washington, D.C., he previously practiced environmental law at Parker Poe Adams & Bernstein LLP in Charlotte, North Carolina.

Russell V. Randle is a seasoned environmental and export control practitioner with decades of experience managing litigation, regulatory compliance and transactional due diligence for his clients.

He has extensive experience with Superfund and contaminated properties, including many on the National Priorities List. Russ also has handled numerous matters arising under the Clean Air Act, Clean Water Act and Oil Pollution Act, as well as antimicrobial issues under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA).

In his export controls and sanctions practice, Russ covers the full spectrum of compliance, enforcement actions and audit issues related to defense trade, financial transfers and non-governmental organizations working in areas affected by U.S. sanctions.

 

This article was first published on the Miles & Stockbridge P.C. website.

Proposed U.S. Infrastructure Plan Supports Reuse of Brownfields and Superfund Sites

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The Trump Administration released its ambitious $1.5 trillion infrastructure plan on Feb. 12, 2018 – a plan that includes many provisions focused upon encouraging the reuse of contaminated brownfields and Superfund sites.  On the same day, the Administration released its proposed budget for Fiscal Year (FY) 2019, which called for a 23 percent cut from FY 2018 levels in the U.S. Environmental Protection Agency’s (U.S. EPA) budget.  The U.S. EPA also released its final Strategic Plan for 2018-2022, emphasizing a focus upon the agency’s core mission, cooperative federalism and the rule of law.  What does all of this mean for the redevelopment of contaminated sites in the United States?

Infrastructure Plan

 Financial Incentives

The infrastructure program would establish an Incentives Program that could be very beneficial for state and local reuse of contaminated sites.  Up to $100 billion would be set aside for the Incentives Program, which would fund a wide range of projects, including brownfields and Superfund sites, stormwater facilities, wastewater facilities, flood control, water supply, drinking water supply and transportation facilities.  The funds would be divided among the U.S. Department of Transportation (U.S. DOT), the U.S. Army Corps of Engineers and the U.S. EPA.  The infrastructure plan suggests criteria by which applications would be evaluated, with substantial weight (70 percent) being given to obtaining commitments for non-federal revenue for sustainable, long-term funding for infrastructure investments and for operations, maintenance and rehabilitation. In order to motivate performance, the grant recipient would need to enter into an infrastructures incentives agreement with the lead federal agency and to agree to achieve progress milestones. If the milestones are incomplete after two years, the agreement will be voided unless there is good cause to extend the agreement for another year. No individual state could receive more than 10 percent of the total amount available under the Incentives Program.

Additional funds would be set aside for a Rural Infrastructure Program, including funds for brownfields and land revitalization as well as stormwater and wastewater facilities, drinking water, flood risk management and water supply.  States would be required to develop a comprehensive rural infrastructure investment plan (RIIP). Some funds would also be provided for tribal infrastructure and the infrastructure needs of U.S. territories.

Superfund, Brownfield, and RCRA Sites in the U.S. (U.S. EPA, 2013)

Yet another category of funds would be set aside for the Transformative Projects Program – projects that are likely to be commercially viable but have unique technical and risk characteristics that might deter private sector investment.  Projects that could be covered by this program could fall within commercial space, transportation, clean water, drinking water, energy or broadband.  A total of $20 billion would initially be set aside for this program, with the U.S. Department of Commerce chairing the program.  Funds could be used for demonstration, project planning, capital construction, or all three.  If a project receives financial assistance for capital construction, it would be expected to enter into a value share agreement with the federal government and would be required to publish performance information upon achieving milestones and finishing the project.

The federal government would also dedicate $20 billion from existing federal credit programs, and broaden the use of Private Activity Bonds, to assist complex infrastructure projects. These sources of funding would include: the Transportation Infrastructure Finance and Innovation Act (TIFIA); Railroad Rehabilitation and Improvement Financing (RRIF); Water Infrastructure Finance and Innovation Act (WIFIA); Rural Utility Service (RUS) lending; and Private Activity Bonds (PABs).

The Administration would amend TIFIA to make loans and credit assistance available for other types of projects – such as passenger terminals, runways and related facilities at non-federal waterways and ports as well as airport projects – until FY 2028.  Similarly, the Administration is proposing to amend RRIF to cover the credit risk premium for short-line freight and passenger rail project sponsors, thereby incentivizing more project sponsors to apply for RRIF credit assistance.  It would also like to amend WIFIA (33 U.S.C. 3905) to include flood mitigation, navigation and water supply, and to eliminate the requirement that borrowers be community water supply systems.  The Administration would like to make WIFIA funds available for remediation of water quality contamination by non-liable parties.  It would remove the current spending limit of $3.2 billion, which was put in place when WIFIA was a pilot program, and would amend the restriction upon using WIFIA funds to reimburse costs incurred prior to loan closing.

Liability Relief

The Administration proposes establishing a Superfund Revolving Loan Fund and Grant Program and authorizing sites that are on the National Priorities List (NPL) to be eligible for brownfields grants.  It would amend the Small Business Liability Relief and Brownfields Revitalization Act in order to do so. This would allow non-liable parties to tap into a low-interest source of funds to perform removals, remedial design, remedial action and long-term stewardship.  The program would be targeted toward portions of NPL sites that were not related to the response action; to portions that could be parceled out from the response action site; to areas where the response action was complete but the site had not yet been delisted; or to areas where the response action was complete but the facility was still subject to a consent order or decree.

The Administration would also propose additional liability protections to states and municipalities acquiring contaminated properties in their capacity as sovereign governments by clarifying and expanding the current liability protections in the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) Section 101(20)(D).  These governmental entities would be eligible for grants and would be protected from liability, so long as they meet the obligations imposed upon bona fide prospective purchasers (BFPPs), including exercising appropriate care with regard to releases, so long as they did not contribute to the contamination.

The Administration would also give EPA express authority to enter into administrative settlement agreements with BFPPs or other third parties who wish to clean up and reuse contaminated Superfund sites.  This could include partial and early remedial actions.

The Administration’s infrastructure proposal would encourage greater flexibility in funding and execution requirements, as infrastructure needs should be integrated into cleanup design and implementation. Better integration would allow third-party financing and promote site reuse.

Expedited Permitting

The Administration proposed a “one agency, one decision” environmental review structure, in which a single federal lead agency would complete the environmental review within 21 months and issue either a Finding of No Significant Impact (FONSI) or Record of Decision (ROD).  The lead agency would then have another three months to issue any necessary permits, including state permits issued under federal law pursuant to a delegation of authority.  The agency would not be required to evaluate alternatives outside the scope of the agency’s authority or the applicant’s capability.

The Council on Environmental Quality (CEQ) would be directed to revise its regulations to streamline the National Environmental Policy Act (NEPA) process to increase the efficiency, predictability and transparency of environmental reviews.  The Administration would eliminate what it considers to be duplicative reviews by EPA under Section 309 of the Clean Air Act.  It would also encourage each federal agency to increase its use of categorical exclusions (CEs) and would allow any federal agency to use a CE established by another federal agency without undergoing the CE substantiation and approval process.

The Administration would also recommend amending the law to allow federal agencies to accept funds from non-federal entities to support review of permit applications and other environmental documents to expedite project delivery and defray costs.

The Administration would also make changes under the Clean Water Act to eliminate redundancy and duplication. For example, it would allow federal agencies to select nationwide permits without the need for additional Army Corps review. It would authorize the Secretary of the Army to make jurisdictional determinations under the Clean Water Act and would eliminate EPA’s ability to veto a Section 404 permit under Section 404(c). It would allow the same document to be used for actions under Sections 404 and 408 of the Clean Water Act.  The Administration would lengthen the term of a National Pollutant Discharge Elimination System (NPDES) permit from five years to 15 years and provide for automatic renewals.

Similar changes would be made under the Clean Air Act. For example, the Administration would amend the Clean Air Act so that state departments of transportation (state DOTs) and metropolitan planning organizations (MPOs) would need only to demonstrate conformity to the latest National Ambient Air Quality Standards (NAAQS), rather than to old and new standards for the same pollutant. Similarly, MPOs would be allowed to demonstrate conformity in a newly designated non-attainment area within one year after EPA has determined that the emissions budget is adequate for conformity purposes.

The Administration proposes eliminating overlapping Section 4(f) review by the U.S. Department of the Interior, U.S. Department of Agriculture and U.S. Department of Housing and Urban Development before the DOT can be authorized to use parklands or historic sites unless there is no prudent or feasible alternative. This process can add an extra 60 days to the project development review process, even when those agencies have little direct involvement in the project. Another layer of review is required under Section 106 of the National Historic Protection Act (NHPA) for historic properties that is not aided by the Fixing America’s Surface Transportation (FAST) Act. The Administration recommends that an action taken under a Section 106 agreement should not be considered a “use” under Section 4(f), therefore eliminating some duplication and delay.

The Administration would expand the NEPA assignment program to allow DOT to assign, and states to assume, a broader range of NEPA responsibilities, including project-level transportation level conformity determinations as well as determinations regarding flood plain protections and noise policies to make the NEPA assignment program more efficient.

Also proposed by the Administration is a pilot program with up to 10 pilot sites that would be expected to meet performance standards and enhanced mitigation, in lieu of complying with NEPA and relevant permits or other authorizations.

The Administration also proposed judicial reforms, including limiting injunctive relief to exceptional circumstances and revising the statute of limitations to 150 days (rather than a statute of limitations of up to six years).

Proposed Budget

The Administration also released its “Efficient, Effective, Accountable: An American Budget” on Feb. 12, 2018, in which it proposed a 23 percent cut in EPA’s budget compared to FY 2018.  The White House added $724 million to EPA’s budget in a supplemental request, including $327 million for the Superfund program and $397 million for State and Tribal Assistance Grants for Clean Water and Drinking Water State Revolving Funds (SRFs).  At the same time, the Administration proposed cuts of 16 percent in grants to states (to $2.9 billion) and proposed cuts of 35 percent in funding to state and local agencies for air quality management (to $152 million).  The Administration requested $151 million for enforcement at Superfund sites and $20 million for the WIFIA program.

U.S. EPA’s Final Strategic Plan

The FY 2018-2022 EPA Strategic Plan, also released on Feb. 12, 2018, continued to emphasize three main goals: the agency’s Core Mission, Cooperative Federalism, and the Rule of Law and Process.  Among its two-year priority goals, The U.S. EPA intends to make an additional 102 Superfund sites and 1,368 brownfields sites ready for anticipated use (RAU) by Sept. 30, 2019. The U.S. EPA intends to use a “Lean” management system designed to deliver measurable results that align with the Strategic Plan.

Objective 1.3 is particularly relevant to the issues discussed above with regard to redevelopment of brownfields and Superfund sites. Objective 1.3 is to revitalize land and prevent contamination by providing better leadership and management to properly clean up contaminated sites to revitalize and return the land back to communities.  The strategic plan identifies both strategic measures and strategies for achieving these goals. First, it announces the number of sites the agency intends to have RAU by Sept. 30, 2022:

  • 255 additional Superfund sites
  • 3,420 additional brownfield sites
  • 536 additional Resource Conservation and Recovery Act (RCRA) corrective action facilities
  • 56,000 additional leaking underground storage tank (LUST) sites meeting risk-based corrective action standards

The U.S. EPA then announced the strategies by which it intends to achieve these goals, including the use of new technologies and innovative approaches; prioritizing sites that have been on the NPL for five years or more without significant progress; and reprioritizing resources to focus on remedial actions, construction completions, ready for reuse determinations and NPL site deletions.  The U.S. EPA will award competitive grants for the assessment, cleanup and reuse of brownfields sites, and will focus on sites subject to RCRA corrective action and LUST sites.  The U.S. EPA will review more than 12,500 risk management plans (RMPs) to help prevent releases and train RMP inspectors, and it intends to update its RCRA hazardous waste regulations to protect the health of the 20 million people living within 1 mile of a hazardous waste management facility. It will also issue polychlorinated biphenyls (PCB) cleanup, storage and disposal approvals, since this work cannot be delegated to states or tribes.  The U.S. EPA acknowledged that many of the sites that remain on the NPL are large, more complex and may contain multiple areas of contamination, and may contain emerging contaminants such as per- and polyfluoroalkyl substances (PFAS).  The U.S. EPA promised to engage stakeholders at all levels in making cleanup and land revitalization decisions.

As part of Objective 3.1, compliance with the law, the U.S. EPA stated that it would continue to follow an “enforcement first” approach under CERCLA to maximize the participation of responsible parties to perform and pay for cleanups. It indicated it would focus its resources on the highest priority sites that present an immediate risk to human health and the environment, and return these sites to beneficial use as expeditiously as possible.  It will also use advanced monitoring technologies to ensure compliance and work with the Environmental Council of the States (ECOS) and state associations to modernize ways to improve compliance.

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About the Authors

Amy L. Edwards is the co-chair of the firm’s National Environmental Team, as well as its Military Housing and Installations Redevelopment Team. She is a partner in the firm’s Public Policy & Regulation Group, which has been ranked among the top law and lobbying firms in Washington, D.C., by numerous publications. Ms. Edwards has been recognized as a leading environmental lawyer for several years by Chambers USASuper Lawyers and Best Lawyers. After holding several other leadership positions, she will become the Chair of the American Bar Association’s Section of Environment, Energy and Resources (SEER), the pre-eminent national organization representing lawyers in these fields, in 2018-2019.

Nicholas Targ is a San Francisco attorney with more than 20 years of experience assisting clients in the public and private sectors efficiently achieve their land use, environmental and policy goals. He co-chairs Holland & Knight’s national environmental team. Mr. Targ’s practice focuses on complex redevelopment projects, environmental compliance and government advocacy. His representative work includes strategic legal advice on brownfields redevelopment, Superfund compliance, and state and federal grant and policy advocacy. Mr. Targ has successfully advocated for infill funding and policy initiatives on behalf of public, private and nonprofit coalition clients.

This article was first published on the Holland & Knight LLP website.