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HazMat

SUMMER 2013

Remediation • Clean Technology

EXPLOSION! An In-Depth Look at the Tragic Incident in West, Texas — page 8

Certificate of Recognition Mobile HazMat apps Molecular diagnostics Executive liability An EcoLog Group Publication / CPMP no. 40069240

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CONTENTS : VOL 25 NO. 3 SUMMER 2013

on the cover

8

THE WEST, TEXAS EXPLOSION Our full report on the fertilizer plant incident in West, Texas that claimed 14 lives, including 10 first responders, injured hundreds and caused $100 million in property damage. by Guy Crittenden

features departments

16 HAZMAT: OH&S TRAINING

Certificate of Recognition (CoR) training at the organizational level. by Guy Crittenden

20 CLEANTECH: MOBILE APPS

Mobile apps for environmental health and safety. by John Nicholson

22 REMEDIATION: EMDs

Editorial 

4

Up Front 

6

Cleantech Editorial

19

Spotlight 

26

Ad Index 

29

Legal Perspective 

30

Environmental molecular diagnostics for site remediation. by Aaron Peacock

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West, Texas The preventable disaster

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by Guy Crittenden

“Community Right-toKnow requests can run afoul of the DHS agenda to restrict information.”

n April 17, 2013 a fertilizer plant exploded in the small city of West, Texas, killing 14 people (including 10 fire fighters and EMS personnel) and injuring hundreds. Property damage is estimated at $100 million. (For a detailed account, read our cover story “In Harm’s Way” on page 8.) After the incident, it emerged that the plant — Adair Grain — had a history of break ins and equipment tamper­ ing, especially with the taps of huge vats of combustible anhydrous ammonia. The plant also stored hundreds of tons of potentially explosive ammonium nitrate that few people seemed to know about. After the incident, it emerged that government over­ sight and report filing by the plant had been erratic and ineffectual. Since its establishment in 1962, the plant owners interacted with a confusing medley of agencies. These included US EPA and the Texas Commission of Environmental Quality (CEQ) who, on the rare occa­ sions they showed interest, were concerned mostly about ammonia emissions regulated under the Clean Air Act. The Occupational Health & Safety Agency (OSHA) had fined the company just $30 for safety violations back in the 1980s, and never followed up. The Pipeline and Hazardous Materials Safety Ad­­mini­ stration (PHMSA) inspected the site two years ago and fined Adair Grain over $10,000 for a variety of HazMattype violations. However, according to a Reuters investi­ gation, a copy of a Tier II report filed in February 2012 with the Texas Department of State Health Services and the West Volunteer Fire Department did not list ammo­ nium nitrate. An attorney for McLennan County said the county has no record of the Tier II report being submitted to the local emergency planning committee. Glaringly, the plant failed to comply with a legal re­quirement to report its storage of ammonium nitrate to the Department of Homeland Security (DHS) — the authority charged with preventing such materials ending up in the hands of terrorists. (This is the same compound Timothy McVeigh used to blow up the Murrah federal building in Oklahoma City.) The next time you’re asked to take off your shoes for airport security, think about the thousands of tons of explosive materials that sit unfenced and unguarded in small fertilizer plants across the country. Even if DHS had been informed, its unclear the infor­ mation would have filtered down to the local level. Like many volunteer fire departments across the nation, the first responders were undertrained and under-equipped. Indeed, West, Texas has no fire marshall and no fire code. Incredibly, because of its small size, West is legally prevented from establishing one.

In the aftermath, a committee of the US Senate said it would look into what happened at West and make recom­ mendations to prevent such tragedies. The senators might wish to simply reacquaint themselves with testimony Community Right-to-Know activist Paul Orum gave before the Senate’s own Environment and Public Works Committee back on November 14, 2001. At that time he described precisely the danger plants like Adair Grain pose in thousands of communities across the nation, and listed the steps to mitigate risk. (It’s worth noting that Community Right-to-Know requests can run afoul of the DHS agenda to restrict information.) The incident at West, Texas underscores how first re­sponders and the public have been failed by lawmakers at the federal, state and county level. We must certainly demand that government pass better laws and fund greater oversight and enforcement. However, I suggest that, in the meantime, firefighters and EMS staff take matters into their own hands, as much as possible. It’s an old adage in the emergency response community that all disasters are local. A careful look at a Google map of West, Texas reveals it’s a small town (with only about 2,700 residents) comprised of modest homes, churches, hospitals, and shops, etc. Many people work in nearby Waco or Dallas-Fort Worth. Simply put, West is not an industrial town; Adair Grain stands out as the only operation of its kind there. If I were a potential first responder in such a place, I’d pay a visit to facilities like Adair Grain, ask for a tour, and ask a lot of questions. I’d ask what potentially flammable or explosive materials are used, and ask for a copy of their Tier II report (and not wait for it to arrive from another agency). Essentially I’d say, “If you want our people to show up when your plant catches fire, these are the things we need to know.” And I’d post that information where it’s easy for first responders to find. The facilities might or might not cooperate, but at least I’d try: lives depend on it. If the incident at West, Texas teaches us anything, it’s that first responders need to be proactive locally, until government finally gets its act together. Whenever the hell that happens. HMM Guy Crittenden is editor of this magazine. Contact Guy at gcrittenden@hazmatmag.com

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HAZMAT : EDITORIAL


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HazMat

SUMMER 2013

management

Vol. 25, No. 3

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 Sheila Wilson ART DIRECTOR Anita Madden CIRCULATION MANAGER Carol 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 80 Valleybrook Drive, Toronto, ON M3B 2S9 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

HAZMAT: UP FRONT

Brownfields Conference

More than 100 industry professionals attended the event at Toronto’s Metropolitan Hotel on June 18, 2013.

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otes from our recent brownfields conference. From the best modern remediation tools, to ensuring that a contaminated site is remediated sustainably, HazMat Management magazine’s “What’s Next” conference debuted in fine form. Co-presented by the Canadian Brownfields Network (CBN), the one-day conference drew a crowd of more than 100 industry professionals to Toronto’s Metropolitan Hotel on June 18, 2013. More than a dozen experts, including lawyers, ministry representatives, engineers and chemists, presented on emerging issues in the brownfields business. With the help of the Ontario Ministry of the Environment, delegates explored the current regulatory landscape through insight into the differences between Tier 2 and Tier 3 risk assessments. Tom Williams from XCG engineers and scientists spoke about the value of regulation 153/04, which addresses site condition. “It makes things more predictable and transparent. It’s a great tool,” said Williams, but added that each municipality tends to use the tool differently, which creates complications. Site condition was a focal point of the day, as speakers reminded delegates about the importance of that initial step. “Assessing the site correctly is the way to go,” said Paul Ruehl of LaFarge North America. “Then you can make an intelligent decision about how to fix the thing.” Ruehl also extolled the value of using cement-based solidification and stabilization for remediation. “In this day and age, you’re smarter than dig and dump,” he said. (Ruehl’s team won the 2012 Brownie award from the Canadian Urban Institute for the Sydney Tar Ponds remediation in Nova Scotia.) Steve Desrocher of Golder Associates weighed in with a presentation on the questionable value of mass removal for remediation. He showed data that made an argument against the value of the process. Even with up to 99 per cent removal rates, standards can often not be met. “If you’re not going to get it all, is mass removal enough?” asked Desrocher. This form of remediation can often require a lot of work and money for an environmental result that is only slightly better than having done nothing at all. Desrocher said high-resolution tools are the way to go in this day and age — from LIF/ UV to MIP, CPT, HPT, XRF and beyond. “What’s Next” was co-hosted by Carol LeNoury of Business Information Group and Dave Harper from CBN. Based on the success of this event, readers should watch this space (or our website) for announcements about another brownfields event in 2014. Written by staff reporter Dave Nesseth.

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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Waste 2 Product & Energy Cleantech Conference

(left) OTS’ Andrew Horsman spoke about stewardship and products made from scrap tires.

(inset) Delegates at the conference enjoyed the comfortable modern facilities of the BMO Learning Centre.

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n Wednesday, May 29 more than 70 delegates attended the successful one-day conference on issues related to converting waste into products or energy using clean technology. The event — presented by Solid Waste & Recycling magazine — was held at the excellent facilities of the BMO Institute for Learning at 3550 Pharmacy Avenue in Toronto, Ontario. The conference was designed to allow delegates a chance to explore the interesting new markets of waste as a resource — a concept that’s coming to fruition as more Canadian jurisdictions implement extended producer responsibility programs for materials that were once simply landfilled, and as policymakers look for green energy solutions from discrete waste streams or residual wastes. Delegates were presented with information on environmental impacts, case studies, investment opportunities, and the latest technologies. Where many people think of energy from waste as being all about incineration, Enerkem’s Commercial Development Manager Sonia Nour spoke about making transportation fuels from waste. Covanta Energy’s Joey Neuhoff told the audience all about Ontario’s new full-scale waste-to-energy plant in Durham Region. Later in the afternoon the Region of Durham’s Gioseph Anello reviewed the planning and approvals process the project proponents had to follow to make their project a reality. Neuhoff was followed by Algonquin Power’s Peter Bulionis who spoke about his company’s plant that has operated for 20 years in Peel Region and is now seeking new customers from across the province. Jason Naccarato, VP-Development with the Sault Ste. Marie Innovation Centre, reviewed the role waste-to-energy is playing in making that Northern Ontario community a leader in the alternative energy field.

The waste-to-energy presentations were balanced out by businesses that make products from recycled materials. In his talk “Roll Up a Winner,” Richard White, president of Aspera Recycling, told delegates about how his company produces carpets from waste materials. Similarly, Recover Canada’s Simon Zysman spoke about mattress recycling in his presentation, “Sleeping Beauty.” Converting plastic to wax was covered by GreenMantra’s founder and CEO Pushkar Kumar; Kumar was followed by Ontario Tire Stewardship’s Andrew Horsman who reviewed opportunities and innovation for that material stream. Environmental Business Consultants’ John Nicholson tied it all together with his talk on eco-industrial parks that create green jobs and sustainability. During lunch, the macro-perspective on regulation and government initiatives was presented by the Ontario Ministry of the Environment’s John Armiento, who is supervisor of the Waste Diversion Unit. The program ended with Michael Scott, CEO of Waste Diversion Ontario (WDO) addressing the subject of why we should care about diverting waste in the first place. The event organizers wish to thank their official sponsors: Algonquin Power, Ontario Electronic Stewardship, the Consulate of the Netherlands, Ontario Tire Stewardship, and Recover Canada Limited. Based on the success of the event, Solid Waste & Recycling magazine will likely produce a similar conference in 2014. Stay tuned! Learn about other upcoming environmental events produced or sponsored by this magazine by visiting events.hazmatmag.com To learn about speaking and sponsorship opportunities, contact Lee Baker at 416-510-5221 or lbaker@bizinfogroup.ca SUMMER 2013 HazMat Management    7

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HAZMAT: COVER STORY

IN HARM’S WAY

On April 17, 2013 a fertilizer plant exploded in the city of West, Texas, killing 14 people and injuring hundreds. Here’s how this preventable HazMat incident happened.

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here was nothing unusual about the morning of April 17, 2013 when the sun rose on the city of West, Texas. The sky was clear as the sun spilled down Main Street, illuminating the red and cream sign of the Family Dollar store, and the suburban houses across from the water tower further south, where Main Street becomes Old Dallas Road. The pick-up trucks weren’t lineup up outside Wolf’s Sports Bar on Oak Street yet, or the other frontier-style buildings that harkened back to West’s 19th Century roots, but the sound of porch screen doors closing mingled with car engines starting as the small city came to life. Shortly before 9:00 am groups of students gathered in the yard outside West Intermediate School on Reagan Street in the north

end of town and began to filter inside, as did the older kids at West High School to the west of nearby Jerry Mashek Drive. A few blocks to the north, the 137 elderly patients at the West Rest Haven nursing home were engaged in the predictable routine of their day. Few of the teachers, students, rest home residents, or the hundreds of people living in the single-family homes on streets with cosy names like Meadow Drive would have given any thought to the fertilizer plant in their midst, Adair Grain, which stood almost equidistant between the two schools, and so close to the retirement home that a kid with a BB gun could probably hit its walls from the railway track on the east side of the plant property. As trucks arrived to transport fertilizer to surrounding farms, no one dreamed the plant, that very evening, would catch fire

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“In one horrific moment, 14 souls perished.” by Guy Crittenden SUMMER 2013 HazMat Management    9

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HAZMAT: COVER STORY

This photo, taken in the initial seconds of the explosion, shows how close the plant is to busy, populated areas.

and explode in one of the deadliest industrial accidents in recent American history, turning parts of the city’s north end into a disaster area that looked much like Moore, Oklahoma after the tornado hit that town a month later. April 17, 2013 would go down in infamy as the date when 15 people died in West in an utterly preventable accident, along with hundreds injured, and $100 million in property damage. A few weeks later the townspeople would be shocked to learn from investigators that reporting and safety controls had been lax at the plant, which for years had fallen between the regulatory cracks of different local and federal agencies and different underfunded, understaffed programs. Most of the dead would be local volunteer firefighters, unprepared and untrained to respond to a fire involving the kinds of chemicals stored at Adair Grain. Simply put, a bomb was waiting to go off in West, Texas, and no one knew until it was too late.

TUMBLEWEED & TIME BOMBS

West is a city of about 2,700 people in McLennan County in the north-central area of Texas, around 70 miles south of Dallas-Forth Worth and 20 miles north of Waco. The city — in reality more like a town — is named after Thomas M. West, its first postmaster, who moved to the area in 1859. The railway brought prosperity to the town after its founding in 1882, and businesses opened to serve a growing population of mostly Czech immigrants. Czech is still spoken by some older residents and the city is home of the official “Kolache of the Texas Legislature” (a popular stuffed pastry.) The city catered to the surrounding expanse of farms that still cultivate wheat, maize, corn and cotton. It’s a typical tumbleweed town resting on a quilt of far-flung fields under big western skies. A depot was constructed in 1962 to sell feed, grain and tools to farmers, along with custom-blended fertilizers. West Fertilizer

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Company was built on open land up against the city limit, but really on McLennan County lands. The growing town eventually encroached. Ownership changed hands in 2004 when the plant was bought by an elderly couple, Donald and Wanda Adair. The benign new name — Adair Grain, Inc. — belied the nature of the hazardous compounds stored there. To neighbors, it was simply an old fertilizer plant beside the railway tracks. The townsfolk can be forgiven for their naivety; the plant was subjected to only haphazard inspection. The last time the Occupational Safety & Health Administration (OSHA) inspected it was back in 1985, fining the owners just $30 for improper storage of anhydrous ammonia (though a thousand dollar fine was available). OSHA issued no fines for violations it discovered of respiratory protection standards. Environmental inspectors fined the company $2,300 in 2006 when they discovered the company lacked necessary permits for two storage tanks of anhydrous ammonia, following a complaint about an ammonia smell. The permits were eventually issued but no follow-up was conducted over promised safety measures against tampering, the issue for environmental inspectors being emissions regulated under the Clean Air Act, not storage of ammonium nitrate. The Pipeline and Hazardous Materials Safety Administration (PHMSA) inspected the site two years ago and fined Adair Grain over $10,000 for missing placards, transporting anhydrous

Thankfully the explosion occurred in the evening when students were home; otherwise the death toll would have been high at the two schools built dangerously close to the plant.

ammonia in non-specification tanks, and for “not having a security plan in violation of Hazardous Materials Regulations.” The company was also fined in 2011 by the Texas Commission on Environmental Quality (CEQ) for not having correct licensing. This was not a secure plant. The news agency Reuters discovered (after the April 17 incident) that Adair Grains had a long history of tampering and thefts. In the past 12 years police responded to at least 11 burglary reports and five separate ammonia leaks at the plant. Thieves routinely siphoned off anhydrous ammonia from the unsecured, unguarded tanks to make the street drug crystal methamphetamine. In a pattern that sounds like the AMC TV series Breaking Bad, staff reported that volumes went missing every two or three nights. The plant had no perimeter fence, no

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Triage was initially set up at a nearby sports field, then moved.

security guards or burglar alarms, and no surveillance system until 2009. (Apparently thefts declined in 2006 as dealers found a different chemical to synthesize their drugs available at garden centers and major retailers.) The last record of tampering was in October 2012 when a 9-1-1 caller complained of an odour “so strong it can burn your eyes.” Fifty-year-old worker Cody Dragoo later reported shutting off a valve that had been tampered with. (Dragoo was among those killed in the blast when responding to the incident.)

Where reporting and oversight really failed was with the Department of Homeland Security (DHS) that, from fear of terrorists, strictly regulates the storage of chemicals such as ammonium nitrate that can be used in bomb making. In 2012 Adair Grains filed a report with US EPA that, along with tons of flammable anhydrous ammonia, it stored 270 tons of ammonium nitrate. This was a hundred times the weight of the same compound Timothy McVeigh used to bomb the Murrah building in Oklahoma City. Nevertheless, company officials stated in an

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Damage to nearby homes and businesses from the blast is estimated at $100 million. Of 157 damaged homes inspected, only three were deemed fit for habitation.

emergency planning report that the plant posed no risk of fire or explosion hazard. Federal law requires that anyone in possession of more than one ton of ammonium nitrate (or 400 pounds if it’s combined with combustible material) inform Homeland Security. The company never reported its stockpile to the DHS, and it appears that filings with US EPA weren’t shared between the agencies. According to a Reuters investigation, a copy of a Tier II report filed in February 2012 with the Texas Department of State Health Services and the West Volunteer Fire Department did not list ammonium nitrate. An attorney for McLennan County said the county has no record of the Tier II report being submitted to the local emergency planning committee. Whatever the status was of all this paperwork, the upshot was that local firefighters and other emergency responders never trained adequately for an incident involving the quantities of flammable and potentially explosive materials stored at Adair Grain, about which they were unaware. These were volunteers in a county that doesn’t have a fire code, or a county fire marshal.

BLOW UP

The sky was clear on the evening of Wednesday, April 17 as kids returned home from West High School or Intermediate School after their classes and after-school sports ended. Some sat down for dinner with their families at home; others may have dropped by Jack & Diane’s B-B-Que shop on Main Street for a burger. By 7:00 pm Central Time the elderly residents of West Rest Haven would have eaten dinner and settled in for an evening of cards, Scrabble or TV. Sometime shortly after then, however, a fire started at the Adair Grains facility. Investigators remain unsure how the blaze started, ruling out weather or chemicals stored in a rail car as

causes. Perhaps it was a failure in one of the plant’s two electrical systems, or an overheated battery in the golf cart (a model that had been recalled) that staff used to get around. In any event, the first 9-1-1 call was made at 7:29 pm. Within three minutes volunteers from the local fire department arrived on the scene. They began spraying water on the fire from a tanker truck and laying hoses to the nearest fire hydrant. This turned out to be 2,000 feet from the plant, farther than their longest hose. They focused the water on the anhydrous ammonia tanks, fearing the tanks might overheat and send a toxic cloud over nearby residents. It’s clear that no one should have gone near the facility or the fire. In similar incidents elsewhere (such as a 2009 fertilizer plant fire in Bryan, Texas), the area is normally evacuated and the fire left to burn out, because of the danger of an explosion. While the firemen battled the blaze, sirens went off, but residents say they’ve never been told what to do when this happens (and the sirens sound for a variety of reasons). West lacks a “reverse 9-1-1” system that could have autodialed residents and alerted them to evacuate. The evacuation was a door-to-door affair that lasted two hours. At 7:50 pm, as firefighters attempted to douse the flames — just 20 minutes after the fire was first reported — an explosion occurred. In one horrific moment, 14 souls perished. Among the dead were ten firefighters and EMS personnel. These included four paramedics from nearby towns (where they were also firefighters) who happened to be in West writing a final exam for, of all things, an emergency technician class. They’d joined in fighting the blaze. (Fourteen others from the course were spared as they went to help evacuate residents.) Two casualties among the first responders were an off-duty SUMMER 2013 HazMat Management    13

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The blast created a crater 93-feet wide and 10 feet deep, and registered as a 2.1 magnitude earthquake.

Dallas fireman (who lived in West) and a local welder who went to the plant to help out. (The three civilian fatalities were a man rounding up horses in a nearby field and two residents of an apartment building, whose roof was blown off.) The explosion was strong enough to register as a 2.1 magnitude earthquake with the United States Geological Survey and blow a crater 93-feet wide and 10-feet deep, as though a missile had fallen from the sky. The blast was heard as far north as Arlington and windows were blown out in Abbott, a town seven miles to the northeast. Experts say the only thing that prevented greater damage was the eight-foot railway berm that runs north-south along the west edge of the Adair Grains property. This directed the main force of the blast upward and away from the neighborhood to the west. Nevertheless, damage was extensive. A nearby 50-unit twostory apartment was gutted and 50 homes were destroyed as was West Intermediate School; West High School was severely damaged. (The loss of life would have been huge had the accident occurred during school hours.) More than 200 people were

injured, some severely, and the residents at the damaged nursing home had to be evacuated. (One later died.)

AFTERMATH

It remained unclear for some time how many first responders had perished. Injured people were triaged first at West High School’s football field and later at a community centre and other locations further away from the still-burning facility. One piece of good luck was that the prevailing wind blew potentially toxic smoke away from populated areas. Also, a nearby rail car holding about 100 tons of additional ammonium nitrate failed to ignite. Days later, some residents tried to return to their damaged homes but were turned away because of fires from leaking gas tanks and other dangers. Federal agents from the Bureau of Alcohol, Tobacco & Firearms (ATF) and the Texas State Fire Marshal’s Office took control of the operation. (Memories must have lingered from the 1993 disaster at Waco only 20 miles away, when the ATF destroyed the compound held by David Koresh

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and his Branch Davidian followers. The incident at West occurred just two days before the 20th anniversary of that event.) A dispute erupted between different agencies overseeing the investigation. The Chemical Safety Board complained that the ATF and the Fire Marshal’s Office impeded their investigators for almost three weeks, blocking access to the site and key witnesses. The board complained that the ATF removed chemical evidence from the site and charged that the ATF massively altered the site with bulldozers, cranes and other excavation equipment in its quest to find a single ignition source for the original fire. (The ATF disputed those claims.) In the end, investigators zeroed in on a stock of ammonium nitrate fertilizer stored in a bin inside a seed-and-fertilizer building at the plant as a possible source of the fire. Meanwhile, a criminal investigation was started into the affairs of Bryce Reed — a former member of the West EMS squad — who was found to possess a pipe bomb. (Officials were quick to say that this fact didn’t mean Reed had started the fire.) Learning the cause of the incident — if this ever happens — will be cold comfort to residents, relatives of the dead, and

the injured who have learned the plant only had $1 million in liability insurance, held through United States Fire Insurance of Morristown, New Jersey. Texas law apparently permits fertilizer plants like Adair Grain to operate without any liability insurance at all even when they stockpile explosive chemicals. Meanwhile, the Insurance Council of Texas estimates damage from the blast to homes and businesses at $100 million. (Of 157 homes inspected near the plant, only three were deemed fit for habitation.) It’s not clear yet whether the explosion at West, Texas will lead to the kind of safety and compliance provisions that experts say are needed to prevent future tragedies of this kind. While one hopes so, the changes won’t bring back the volunteer firefighters and EMS staff who lost their lives that fateful evening in West, Texas due to a failure of government oversight and inadequate awareness and training, nor will they dry the tears of their sons, wives and daughters. HMM Guy Crittenden is editor of this magazine. Contact Guy at   gcrittenden@hazmatmag.com For editorial comment on the West, Texas incident, turn to page 4. SUMMER 2013 HazMat Management    15

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HAZMAT: TRAINING

COR Competence The Certificate of Recognition for health & safety

T by Guy Crittenden

“Once the internal audit is completed, it’s forwarded back to IHSA for vetting.”

oday, an increasing number of top tier companies are moving towards obtaining the Certificate of Recognition (COR™) for their organization’s health & safety training and programs. COR has become a requirement for both private and public contract projects in a growing number of cases, so it’s important for environmental, health and safety professionals to be aware of it. The COR program originally started in the construction industry, but has since evolved into diverse markets as the word spreads regarding its benefits and impact on a company’s health & safety program. For example, one environmental service provider that’s investing in its health & safety by working towards achieving COR is AIM Environmental Group (aimgroup.ca), based in Stoney Creek, Ontario and Calgary, Alberta. The company is pursuing the certification through the Infrastructure Health and Safety Association in Ontario (IHSA) and the Alberta Construction Safety Association (ACSA) in Calgary. The company is close to completing all the COR requirements. AIM’s Human Resources Manager, Olga Cenic, is responsible for AIM’s health and safety program. “I’m very excited about our current pursuit of

COR,” says Cenic. “In both Ontario and Alberta it will enable us to move forward and ensure that we have the best health and safety practices and procedures in place at AIM.” She notes how the industry is evolving. “COR is becoming more sought after by our clients and we want to ensure we’re a leader in health and safety in our industry. We’re building strong relationships with both the IHSA in Ontario as well as the ACSA in Alberta, which have both been instrumental in assisting us move forward.”

COR DETAILS

In Ontario, the requirements for a company to pursue COR are to: (a) have a WSIB account in good standing, and (b) one senior manager and one full-time employee complete the training courses offered by the IHSA. The courses include (but aren’t limited to) COR Essentials, Basic Auditing Principals, and COR Internal Auditor. The training is conducted to help the employer understand and realize the importance of the program and the benefits of a comprehensive and concise health and safety program (and for the full-time employee to become the designated Internal COR Auditor). The company’s COR trained auditor then under-

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HAZMAT: TRAINING

takes an internal audit of the company’s health & safety policies and practices through interviewing field and office staff and looking at supporting health and safety documentation. He or she also asks key questions to gain their understanding and comprehension of the procedures. Once the internal audit is completed, it’s forwarded back to IHSA for vetting (in the case of AIM in Ontario). Once the internal results are accepted, the IHSA schedules a time with the internal auditor to review the job sites and interview staff, and

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look at health and safety policies processes and procedures, as well as training records. Steps to Achieving COR in Ontario … •S  tep 1 — Complete and submit the COR application. •S  tep 2 — Complete the mandatory training courses as outlined by the IHSA. •S  tep 3 — Complete and submit (along with all supporting health & safety documentation for verification) a self-audit of the workplace, completed by the trained internal auditor. •S  tep 4 — Arrange for and successfully complete a third-party COR audit. Areas common to all of the provinces that participate in COR include: policy statement; hazard analysis, safe work practices; safe job procedures; company rules; personal protective equipment (PPE); preventive maintenance; training & communication; workplace inspections; investigations & reporting; emergency preparedness; statistics & records; and, legislation. In addition there are six supplemental elements specific to Ontario: occupational health; first aid; health & safety representative/joint health and safety committee; workplace violence & harassment; return to work; management review. In Ontario there are a total of 19 elements in the COR Audit Tool. Once an employer achieves COR, it’s valid for three years from the date of certification. This certification is based on the employer performing internal maintenance audits in the second and third years as well as remaining compliant with the terms and conditions of the COR program. In addition, a Letter of Good Standing verifies that all of the training elements and auditing standards are maintained each year. Year 1: A third-party auditor validates that the workplace meets the COR standard. Years 2 & 3: The workplace completes and submits a COR self-audit to validate that it continues to meet the standard. Year 4: A third-party auditor vets and validates that the workplace meets the COR standard.

EXAMPLE

A good example of AIM’s incorporation of COR standards in the workplace can be seen in a recent ongoing project at a wastewater treatment plant in the Greater Toronto Area. The company was contracted to remove and dispose hazardous material originating from the bio-sludge de-generation treatment process. AIM was to encounter situations that would encompass confined-space entry and operating on supplied-air systems to cope with the dangerous work environment. In addition, the handling and transfer of hazardous wastes takes both top notch safety training and planning for the proper execution for works of this nature. Having COR certification will also assure AIM clients about health and safety in other areas of its expertise such as soil and groundwater remediation, and demolition, decommissioning and abatement. HMM Guy Crittenden is editor of this magazine. Contact Guy at   gcrittenden@hazmatmag.com

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CLEANTECH: OPINION

Make Hay While the Sun Shines

S

by Aaron Atcheson

“These challenges appear to be based heavily in current Canadian political realities.”

everal editions back I wrote about the various we can assume that Premier Clark will keep close to the elections that were on the horizon across Canada program set out in the party’s “Strong Economy, Secure and the uncertainty that would remain until the Tomorrow” plan. dust has settled on those public contests. I may have Meanwhile, in Quebec, where the Parti Quebecois been a bit optimistic. holds power, the government of Premier Marois has With a new Liberal premier in Ontario and a re- followed the lead of the previous Charest government elected Liberal premier in British Columbia — both when it comes to renewable energy. Quebec announced women leading governments that had previously been it will purchase another 800 MegaWatts of wind energy, passionate about independent renewable energy pro- including components of competitive requests for projects and clean technology development generally — an posals and First Nations projects. In Alberta, under the observer might assume the prospects for CleanTech in re-elected Premier Redford government, renewable these two large provinces would be excellent. energy is experiencing a renaissance, with new project However, in Ontario, Premier Wynne is desperately announcements and other projects commencing conseeking favour with those rural voters who abandoned struction. With the province’s carbon levy being used to the party under former Premier McGuinty. While the support innovative projects and technologies (through administration appears to understand it’s not in its best its green technology fund), Alberta has a welcoming interests to end the Ontario Feed-in Tariff program environment for CleanTech under a (somewhat) concompletely, it’s considering changes, including increased servative government. In both provinces, not necessarmunicipal control over project locations, that could ily a clear expectation under their respective governing considerably constrain development. And in BC, with parties. the province’s previously proposed Feed-in Tariff proIs there a lesson for the industry? Make hay while the gram on indefinite hold (and unmentioned throughout sun shines; the shifting political winds can quickly turn the recent election campaign) it’s questionable whether into a tornado. HMM Premier Clark’s mandate includes sufficient support for the renewable energy sector to take their existing stand- Aaron Atcheson is a Partner and Chair of Miller ing offer to the next level. Given the Liberal govern- Thomson LLP’s CleanTech Group in London, Ontario. HMMsept08gm1307 Kilmer.qxd 9/12/08 4:27 PM Page 1 ment’s history introducing, then unwinding, the HST, Contact Aaron at aatcheson@millerthomson.com

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CLEANTECH: APPS

Apps for HazMat Management Some interesting apps for your business

A

n app is basically a software program you can download and access directly using your mobile phone or tablet computer. With the explosion of apps in recent years it was only a matter a time before there’d be appropriate ones for environmental professionals. Not all apps work on all mobile devises. It’s unfortunate for Blackberry users that most apps are designed to run on iPhones or Android devices. The website EHSfreeware.com, run by Donley Technology, has a comprehensive list of mobile apps for environmental, health and safety (EH&S) personnel. Company President Elizabeth Donley believes mobile apps can open up new possibilities in the ways EH&S professionals work, stating, “In addition to being able to enter data while on the move, the primary advantage that mobile apps offer is that you can automatically add photos and location information to the data you gather.” Below is a summary of some of the more useful apps accessible through EHSfreeware.com. Some of them are free or amazingly affordable.

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CHEMICAL SAFETY DATA SHEETS

This app is great for workplace safety audits, pre-start checks and inspections. It can be customized for any industry and workplace with thousands of templates that have been shared by users. More than three million safety inspections have been conducted since the launch of this app in February 2012. Available for Apple and Android devices, the latest version seamlessly formats photos into the final report.

Available to iPhone users, this application displays International Chemical Safety Cards (ICSC) produced by the United Nations Environment Pro­ gram­me, the International Labour Of­fice, and the World Health Organi­ zation. It is useful for those managing, hauling, and disposing of hazardous waste.

ENVIRONMENTAL MONITOR

by John Nicholson

“Some of them are either free or amazingly affordable.”

The $4.99 cost for this iPhone app is a small price to pay in the event of an accident involving hazardous materials. Much handier than a book, the app serves as a quick reference and educational tool for employees involved in handling, storage, or incident response of HazMat. No internet connection is required to access the app, which is great in an emergency when cellular service may not be working.

MY GREEN APPS

This free Android app measures sound intensity (dB scale). It provides a quick and easy screening of the noise level in workplaces and at sensitive receptors. The 58 reviewers of the app gave it an aggregate score of 4.5 out of 5. HMM

Developed by the US Environmental Protection Agency (EPA), this website provides access to 230 apps related to John Nicholson, M.Sc., P.Eng., is a consultant   the environment. Besides being a great location to find based in Toronto, Ontario. Contact John at   apps, it also allows users to suggest ideas for apps. john.nicholson@ebccanada.com 20    www.hazmatmag.com SUMMER 2013

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CLEANTECH: HAZMAT

Suspicious Powder Biodetection for first responders

Seattle Fire Department LT Jon Kimball (left) and former Vancouver Fire Captain Greg Weber discuss what criteria they want included in the biodetection technologies report.

F

irst responders know that white powder scenarios — or suspected biological threats — require quick and decisive action. Having the right field-deployable equipment available to determine what the suspicious substance is can be complicated, challenging and expensive. Recently, the US Department of Homeland Security’s Science and Technology Directorate and the Department of Energy’s Pacific Northwest National Laboratory (PNNL) issued an in­formative report that summarizes an extensive list of commercially available, hand-portable biodetection technologies. The report, Biodetection Technologies for First Responders, helps end-users such as firefighters, police officers and HazMat workers make informed decisions about procuring the right technology for their particular need and circumstance. “The report serves as a product buying guide for end-users as well as procurement specialists,” says Cindy Bruckner-Lea, PNNL project manager. “It provides specifics and details on dozens of commercially available technologies. This free report will be an important and useful resource for first response teams everywhere.” The release of the report is one part of a larger effort at PNNL to create partnerships with first responders that provide value to all parties. Early on in the process, PNNL conducted dozens of interviews and surveys, and held a workshop at Seattle’s Joint Training Facility to better understand first responder biodetection and information needs, gaps and priorities. The exchanges helped researchers have a better grasp of the context by which first responders perform their duties. This leads to better results and the ability to get the best solution faster and more efficiently. PNNL is also conducting biodetection assay and instrument performance tests for both anthrax and ricin bio-threats and is investigating the impact of commonly encountered “hoax” white powders. PNNL plans to facilitate performance and ergonomic testing of the most promising technology by first responders.

Former Vancouver Fire CAPT Greg Weber, Vancouver Fire’s Travis Kent, and Navy Region Northwest’s Joe Spaulding (from left) receive a demonstration from PNNL’s Tim Straub of one of the hand-portable biodetection systems reviewed in the “Biodetection Technologies for First Responders” report.

PNNL is also working with other agencies to help refine detection system performance requirements, standardized test plans and conditions, create guidelines for use and limitations of biodetection technology, and establish training and proficiency testing procedures. According to law enforcement statistics, HazMat teams across the country respond to hundreds of white powder calls each year in large cities where quick decision-making is critical. “Rapid biodetection is extremely important to the first re­sponder community,” says Seattle Fire Department, Assistant Chief, A.D. Vickery. “In white powder response incidents where the health and safety of individuals may be in jeopardy, accurate and reliable results are needed promptly.” The information listed in the report is primarily provided by the vendor. However, when possible the report has been supplemented with additional information obtained from peer-reviewed publications, reports and websites that evaluate the performance of the technologies. Other findings and results will be published as the information becomes available. PNNL has significant expertise in studying the biodetection process and in evaluating biodetection assays. It also has established an ongoing relationship with first responders in the Pacific Northwest. In coming months, PNNL will conduct third-party testing of biodetection assay systems and instruments. Researchers will publish a report outlining performance testing in working with anthrax, ricin and commonly encountered white powders. PNNL employs 4,500 staff, has an annual budget of nearly $1 billion, and has been managed for the US Department of Energy by Ohio-based Battelle since the laboratory’s inception in 1965. The report is available to first responders for free by visiting http://www. pnnl.gov/nationalsecurity/technical/chemical_biological/ Biodetection_Technologies_for_First_Responders.pdf SUMMER 2013 HazMat Management   21

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REMEDIATION

Nature’s Remedy Environmental biotechnology for remediation projects

B

by Aaron Peacock

“qPCR helped remediation professionals verify that MTBE degradation was taking place.”

iotechnology is often defined as leveraging microbial communities to serve society. Deploying microbes to “eat up” or remove contaminants from the environment, or to capture valuable products from renewable resources — such as biomass energy, nutrients, metals and water — are excellent examples of how these nearly invisible allies can help the environment. Life sciences research continues to produce increasingly powerful tools to collect, analyze and understand biological systems. The government is taking notice. The recently released “National Bioeconomy Blueprint” from the Obama administration outlines “a comprehensive approach to harnessing innovations in biological research to address national challenges in health, food, energy and the environment.” The surge in the US bio-economy, according to the report, is due primarily to the development of sev-

eral foundational technologies, such as DNA sequencing. DNA sequencing, in turn, is leading to important new innovations and technologies that can further enhance the power of biotechnology.

MICROBIAL ALLIES: QPCR Quantitative polymerase chain reaction (qPCR) is one tool derived from DNA sequencing. This popular environmental diagnostic technique allows direct detection and quantification of microbial genes from soil, sediment, surface and or groundwater. To better understand the potential benefits of qPCR, it’s important to step back and recognize that genes provide the “blueprint” for the production of cellular machinery that can destroy and/or immobilize contaminants. Many contaminants undergo biological transformations, which may either destroy the contaminant, or make it less toxic. Typical remediation approaches often

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REMEDIATION

include aggressive treatment of source areas, followed by less aggressive biological approaches, such as biostimulation or monitored natural attenuation (MNA). Methods like qPCR can be quite useful particularly at later stages of site cleanup, when Mother Nature plays more of a role. qPCR can inform scientists whether cellular machinery (e.g., specific microbial contaminant degraders) are present and active. The presence and quantities of various microbes in a given environment can indicate specific metabolic activities, providing direct evidence of contaminant degrading activity. This can then help guide teams about how best to remediate contaminated sites, and when to let nature take over. On the other hand, qPCR can also show scientists when helpful microbes are not present or thriving. This may indicate the need for additional bioremediation options to help jump-start the microbial community. With the qPCR method, scientists can analyze lit-

erally thousands of genes for many different contaminants and subsurface processes. At present, the most popular commercial environmental qPCR assay is for Dehalococcoides, which are microbes that can completely dechlorinate Tetrachloroethylene (PCE) to ethene. Although qPCR is very useful, the ubiquitous nature of some genes in the environment can hamper resolutions and ultimate site decisions. In such cases, a qPCR variant called reverse transcriptase (RT-qPCR) is a better option. RT-qPCR targets the “transcriptome” or specific microbial activity. Between qPCR and RT-qPCR techniques, scientists are getting a clear understanding of microbial degradation processes, and teams now have access to highly targeted and quantitative feedback never before available. An example of qPCR use can be seen when looking at a site contaminated with methyl tertiary butyl ether (MTBE), a fuel additive in gasoline and a po­tential human carcino-

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REMEDIATION

gen that moves rapidly once released into groundwater from underground storage tanks. Interestingly, nature provides a microbe named Methylibium Petroleiphilum, or just PM-1, which mineralizes MTBE. Recent qPCR tests for this microbe at a site in Southern California reflect molecular biology in action. Here, qPCR helped remediation professionals verify that MTBE degradation was indeed taking place. This genetic analysis saved millions of gallons of groundwater that otherwise would have had gone down the drain.

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coalition that strives to reduce barriers to innovative environmental technologies, provides resources that explain several biotechnology methods, including qPCR and their applications. The ITRC’s recent technical guidance document is considered the current gold standard for the application of these technologies. Although knowledge and use of these techniques is still small among remediation professionals, interest is growing. New commercial laboratories that focus on these technologies are coming to market, and some larger environmental labs are now offering these services. However, more education is needed. Industry and public organizations can do more to raise awareness and increase adoption, so that methods like qPCR are considered among the arsenal of tools when tackling complex remediation challenges. Ramping up adoption of these powerful environmental warriors will help empower scientists for the benefit of generations to come. HMM

For most environmental testing, the US EPA provides approved methods and testing procedures. Currently, no EPA specific methods for qPCR exist. The lack of EPA defined methods places these techniques at a disadvantage compared to more customary approaches. Regulators not familiar with these techniques are often reluctant to accept the data without supporting corollary information from reputable sources. To help address these barriers, the Interstate Tech­ Aaron Peacock, Ph.D., is a scientist with Haley & Aldrich. nology & Regulatory Council (ITRC), a public-private Contact Aaron at apeacock@haleyaldrich.com

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REMEDIATION: SPOTLIGHT

Under the Microscope A look at ALS labs

A

by Guy Crittenden

“The company initially provided analytical services for the oil shale and mineral exploration industries.”

Wet-chemistry analyst at ALS Environmental’s Houston, Texas laboratory.

LS (alsglobal.com) gets its name from where it commenced operations as a privately owned company in Brisbane as “Australian Laboratory Services” (ALS) in 1974. The company initially provided analytical services for the oil shale and mineral exploration industries, and grew steadily in the first decade of operations. In 1981, the company was acquired by ALS Limited (formerly Campbell Brothers Limited), a Queenslandbased company first registered in 1863 and listed on the Australian Stock Exchange in 1952 (ASX:ALQ). ALS Limited has since enjoyed a strong record of consistent revenue growth and profitability, placing the company at the forefront of the industry, aligning its services with the needs of some of the world’s largest companies. With more than 13,000 staff, ALS currently operates from over 350 locations in 55 countries around the globe, processing 20 million plus samples per year. The company’s services are managed through four main divisions and thirteen business groups: minerals (geochemistry, metallurgy, mine site and inspection); life sciences

(environmental, food & pharmaceutical, animal health, electronics, and consumer products); energy (coal, oil & gas); and, industrial (asset care and tribology).

DIFFERENTIATORS Aside from having the one the of the largest lab networks, ALS prides itself on technical expertise. Employees are often called upon to assist with new method development and analytical advancement. For instance, last year Mark Hugdahl, ALS’ Environmental North America’s Canadian Technical Director recently received a province-wide award on behalf of himself and ALS for his work to improve the validity of regulations for contaminated sites salt standards in British Columbia. His findings should reduce the needless spending of hundreds of millions of dollars in coming years. ALS is home to some of the largest and most technically advanced laboratories in the world, the newest lab instrumentation, and thousands of degreed analytical experts. ALS Environmental North America offers analytical support for all matrices, including: soil, water

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region, and provide environmental emergency support. ALS also conducts technical seminars for current and prospective clients. HMM

Guy Crittenden is editor of this magazine.   Contact Guy at gcrittenden@hazmatmag.com

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Canadian Brownfields Network . . . . . . . . . . . . . . . 12

KG Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Chemigreen. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Kilmer Brownfield Equity Fund, L.P.. . . . . . . . . . . . 19

Clean Energy Fuels . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Dupont. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 EACO/Environmental Abatement Council

Lakeland Protective Wear. . . . . . . . . . . . . . . . . . . . 11 Miller Thomson LLP. . . . . . . . . . . . . . . . . . . . . . . . . . 28 MMM Group. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

of Ontario. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Environmental Fracking Technology . . . . . . . . . . . 24 ERIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 GroundTech Solutions . . . . . . . . . . . . . . . . . . . . . . . 23

Ozonator Industries. . . . . . . . . . . . . . . . . . . . . . . . . . 32 PacTec Inc.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Proactive Environmental Rentals Inc.. . . . . . . . . . 22

Intrinsik Environmental Sciences, Inc. . . . . . . . . . 22

Sites & Spills Expo. . . . . . . . . . . . . . . . . . . . . . . . 17, 29

Italian Trade Commission. . . . . . . . . . . . . . . . . . . . . 28

XCG Environmental Engineers & Scientists. . . . . 23

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SUMMER 2013 HazMat Management   29

29 ad idx hmm summer 2013 29.indd 29

13-06-25 11:40 AM


REMEDIATION: LEGAL PERSPECTIVE

Are You Liable for Contamination You Didn’t Cause?

“D

by Dianne Saxe & Meredith James

“How much harm will the risk of such liability do to corporate governance?”

irectors’ liability is one of the primary instruments used by policymakers to promote good corporate governance. However, … [t]he imposition of ever-increasing personal liability on directors may eventually affect the management and business efficiency of Canadian corporations. If that is the case, amendments to the CBCA that place limits on the personal liability of directors may become necessary.” So concludes a research paper published by the Parlia­ ment of Canada on Directors’ Liability Under the Canada Business Corporations Act. It’s easy, and appealing to regula­ tors, to expand the personal liabilities of corporate officers and directors. Without personal liability, incorporation can encourage and reward socially harmful behaviour. But excessive personal liability can also do great harm: “Any expansion of statutory liabilities [of corporate directors] must balance competing interests. The addition of personal liabilities may make corporate management more responsive to regulations designed to protect the environment, for example.  However additional liabilities may also make Canadian companies less competitive by increasing their compliance costs, and if directors face increasingly onerous personal risks, qualified directors may choose not to serve on corporate boards, and the quality of corporate management may decline… Are we there yet? Getting close… Many Canadian environmental laws hold directors personally liable for pollution that occurs “on their watch”, (presumably to the profit of D&O insurance companies.) The most common statutory provision is some version of s. 232 of the Alberta Environmental Protection and Enhancement Act: 232 Where a corporation commits an offence under this Act, any officer, director or agent of the corporation who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is guilty of the offence and is liable to the punishment provided for the offence, whether or not the corporation has been prosecuted for or convicted of the offence. These common-sense provisions have been in effect for decades, and avoid the moral hazard without unfair­ ness. They seem to be as manageable as other common directors’ liabilities, such as for income tax deductions, employee payrolls, etc. Directors can be held liable if they participate in corporate environmental offences, but can protect themselves through due diligence. Thus, Canadian directors have been often charged and convicted of environmental offences that they caused. For example, in Alpha Manufacturing Inc. v. British Columbia, the principal of a corporate landfill operator was rightly convicted of introducing waste into the environment, by depositing waste into a sensitive bog without a permit.

There have also been a series of cases imposing per­ sonal cleanup liability on directors, through administra­ tive orders, for contamination that they caused or negli­ gently failed to prevent. Mining engineer and promoter Patrick Sheridan was famously held responsible for mine drainage water from his abandoned Coppercorp mine, and for failing to clean up accumulated PCB wastes at his Maybrun mine. These fault-based cases are not the problem. What may really discourage qualified directors from serv­ ing on corporate and charitable boards, with serious impacts for Canadian businesses and civil society, is the prospect of infinite, permanent, personal liability for innocent officers and directors. For example, Ontario’s Ministry of Infrastructure proposes to impose unlimited cleanup costs for for­ feited property of dissolved corporations, on any former director or officer during its last two years, regardless of fault, no matter when the contamination occurred. No limitation period was proposed; i.e., this liability would be permanent. Such costs can be substantial. At Giant Mine, Northwest Territories, the federal government was left with 237,000 tonnes of toxic arsenic trioxide when the mine was forfeited. They budgeted $480 million of taxpayers’ money for the cleanup, which may now cost nearly $1 billion. The temptation to find someone else to pay is obvious. When the actual polluters are gone, some govern­ ments are turning on innocent directors, those who could not have prevented the contamination, and who did what they could to clean it up. A stark example is the Northstar Aerospace (Baker) case now before the courts and the Environmental Review Tribunal. Baker joined the parent company board years after contamination occurred at the subsidiary’s Cambridge site, and only once an approved cleanup was well underway. After the corporate insolvency, he received a $15 million personal order to clean up the rest of the contamination. Is this fair? Or smart? How much harm will the risk of such liability do to corporate governance? And to Canada’s appeal to international investors? Where is the balance of competing interests that the parliamentary study calls for? 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

30    www.hazmatmag.com SUMMER 2013

30 legal hmm summer 2013 30.indd 30

13-06-25 9:19 AM


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