environmental site assessments in ontario post kawartha lakes

The Dragun Corporation Presents:Environmental Site Assessments and Property Transactions Post The Kawartha Lakes Decision

Presenters – Christopher Parė, P.Geo and Jeffrey A. Bolin, M.S.

Toronto, ON | Windsor, ON | Farmington Hills, MI

Cambridge, OntarioSeptember 26, 2013

(c) Copyright 2013 Dragun Corporation www.dragun.com

Environmental Site Assessments and Property Transactions Post The Kawartha Lakes Decision

The Kawartha Lakes decision (The Corporation of the City of Kawartha Lakes v. Director, Ministry of the Environment, 2012 ONSC 2708 [CanLII])

NOTE: This is a discussion on the technical, not legal, issues surrounding

this case.



What happened?• Residential heating oil tank • Overfilled• Floor drain which led to a stormwater drain



The Response• Resident hired a remediation contractor…but the money was quickly exhausted.



The MOE’s “options” to remediate remaining contamination

a. MOE paysb. The homeowner paysc. Someone else pays



They chose “c”: The City of Kawartha Lakes was ordered to cleanup someone else's contamination



Are there larger implications?

“…innocent parties are responsible for cleaning pollution on their properties, no matter who caused it.” – Ontario Attorney commenting on consequences of the Kawartha Lakes Decision



Five Case Studies

• Transactional related projects through the Kawartha Lakes “lens”

http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=bm9Y8cYj_0AO_M&tbnid=fFlAraak9d5ujM:&ved=0CAUQjRw&url=http://ignite.me/articles/culture/beauty-or-the-beast-your-self-image-and-how-to-change-it/attachment/3/&ei=r8NBUqepGO364AP9zYHICg&bvm=bv.52434380,d.dmg&psig=AFQjCNEuVina8B7Ilgv6Ka82b-SL9VWSjQ&ust=1380127960869282



Case Study #1

Start of a Solution - Peer Review(which is how each of the projects began)

Our Peer Review team takes a “30,000-foot view” of a project (project issues and your objectives) and through individual disciplines as appropriate, critiques each component (groundwater flow, contaminant fate and transport, regulatory obligations, etc).

http://www.dragun.com/ca/services/peer/index.htm



Case Study #1Phase one misses the mark

• MOE ordered cleanup at a petroleum site• Puzzling data? • Site conditions “understood”?



Case Study #1

A “simple” remediation with “Swiss Cheese” monitoring wells

The investigation was without direction and the data confused the efforts



Case Study #1

Our model based on the consultant’s groundwater BTEX, 2007-2008 – a telling tale

Approx.groundwater

flow



Case Study #1

Basics of phase one missed. They looked at the wrong address and missed a UST that was impacting the site



Case Study #1We developed multiple lines of evidence…to prove two distinct plumes and two different responsible parties



Case Study #1Bad news is, prior to our involvement, our client had spent money to remediate someone else’s problem

Good news is we were able to get a NFA from the MOE



Case Study #1Post Kawartha Lakes Application

Understand Site Conditions and Surrounding Site Conditions

Question: What if the adjacent property was bankrupt, would our client now be responsible

for remediation?



Case Study #2Vapour Intrusion – a tale of two sites

…but first, a primer on VI which is critical for anyone buying commercial/industrial real estate



Image/video source: www.cluin.org

What is Vapour Intrusion (VI)?

The migration of volatile chemicals from the subsurface into overlying buildings (USEPA 2002)



• Traditional regulator’s approach– Use J&E Model (1991)– Back calculate screening soil

and groundwater concentrations

– Lots of assumptions– Required data typically not

available– End up using Model’s default

values Image source: MDEQ (2012)



Step-wise VI assessment approach

1. Assessment of soil and groundwater concentrations

2. Measurement of sub-slab vapour or soil vapour concentrations

3. Measurement of indoor air concentrations



Indoor-air measurements typically less reliable than sub-slab vapour measurements• Sampling equipment • Sampling procedures• Effects from climatic conditions, HVAC systems, and chemical use in area

VI Assessment: Indoor Air –the right away.


Case Study #2Site A Site B

Gasoline Gasoline

30 metres 30 metres (off site)

Geology – Clay rich soils Geology – Clay rich soils

Separate phase Historical Release

Surrounding properties concern Is there a connection?

VI is a problem VI is not a problem

Environmental Site Assessments and Property Transactions Post The Kawartha Lakes

Decision




Understand Site Conditions and Surrounding Site Conditions…and Breathe…Easier

Question: If VI is from nearby site and they cannot afford to remediate, will you (viable party)

be forced to remediate?



Case Study #3Transactions Become More Complicated

HAA

Ace Tool

Brazeway



Case Study #3

Time constraint for property transaction on old large manufacturing plant. We started 4.5 years into 5 year period where seller pays

A $9 million groundwater pump-and-treat was the necessary solution to finalize the transaction



TCE in adjacent subdivision groundwaterCase Study #3



Case Study #3

Perched Zone

Upper Aquitard

Local Aquifer

Lower Aquitard



Understand Site Conditions and Surrounding Site Conditions… and Consider What If

Question: If adjacent property with contamination wasn’t financially healthy, would

you still proceed with the transaction?



Case Study #4Putting Risk into Context?



Case Study #4Refinance for several manufacturing plants in Canada and US

Required to assess all sitesVery concerned about existing contamination



Case Study #4But…

The entire property is on fillNo exposure issues

No movement



Case Study #4No phase two necessary




Will Lender Policies Change?

Question: Will there now be new insurance requirements based on offsite risks, offsite environmental policies, and future ordered

cleanups?



Case Study #5The Perfect Site?



Case Study #5An investor buys the commercial property site unseen

No phase one on the…nice “corner lot” for commercial development



Case Study #5During site development of the commercial site – there were

problems More than just USTsMajor petroleum line


http://www.google.com/url?sa=i&rct=j&q=&esrc=s&frm=1&source=images&cd=&cad=rja&docid=QeAv4UzstQuW5M&tbnid=MqAI8k5skOHl3M:&ved=0CAUQjRw&url=http://www.deq.state.or.us/about/history/brownfields.htm&ei=I8JBUrqzOZCi4AOgjoCYAw&bvm=bv.52434380,d.dmg&psig=AFQjCNHlSDbz4nynz_Hzzxm1nW_WL8OJ8w&ust=1380127567197953



Your Neighbour Can Open Pandora’s Box

Question: If someone begins a development near your site, walks away because of contamination

moving offsite – will you be responsible to remediate?



Five Leading Best PracticesNumber One

Red-eyed consultants are desirable. Make sure your environmental assessment is done by someone who is

nosy, detailed oriented, and preferably lies in bed at night pondering the details of the investigation.



Five Leading Best PracticesNumber Two

“Because it’s there” is not a sufficient reason to act. Understand where potential contaminates are, if they

pose an exposure risk, if they pose an off-site risk, and/or if they pose an investment risk.



Five Leading Best PracticesNumber Three

Question ridiculous conclusions. You are the client, and regardless of the “qualifications” of the consultant, when conclusions don’t make sense to you, they need

to be validated.



Five Leading Best PracticesNumber Four

The only constant is change. The regulations, the ability to analyze, remediation technologies, policies, and even consumer’s expectations change… which is why the fifth indispensible practice is so important.



Five Leading Best PracticesNumber Five

Where there is no counsel, people and companies fail: but with trusted counselors there is safety. (Proverb

paraphrased). Surround yourself with the right people, get feedback early, and trust the advice of your team

(especially when they tell you things you don’t want to hear).




Thank YouNot certain how this might affect your property transactions and environmental site assessments? For more information, contact

Christopher Parė ([email protected]) or Jeffrey Bolin ([email protected]) at 519-979-7300

mailto:[email protected]




BiographiesJeffrey A. Bolin, M.S., CHMM Jeff’s advice on any environmental matter will carefully weigh the scientific-regulatory issues in proper context with their business concerns. His clients trust that he will provide a rational and measured approach on merger & acquisitions, divestitures, and assessment of current and future environmental liability. From complex RCRA Closures to securing improbable remediation action plans, clients count on Jeff to deliver. His clients have sought his expertise and advice on sites across the United States, Canada, South America, and Europe. Christopher Parė, B.Sc., P. Geo. Chris’ dedication and focus on finding solutions has paid dividends for his clients. By way of example, one project where Chris was the senior advisor, his client battled a misguided regulator all the way to one of the highest courts in the nation. With Chris’ thorough assessment and understanding of the groundwater, which included co-mingled contaminated groundwater plumes, his client won a significant seven figure settlement against the government. Chris’ aptitude for thorough site investigations have consistently led to significant wins for his clients.

http://www.dragun.com/us/project/Henkel%20Morenci%20Project%20Profile%20November%202011%20Final.pdf

http://www.dragun.com/us/project/TRW%20Project%20Profile%20December%202011%20Final.pdf

http://www.dragun.com/ca/project/gasoline/index.htm


Windsor436 Elmstead Road, RR1Windsor, Ontario N8N 2L9Tel: (519) 979-7300

Toronto112 George StreetToronto, Ontario M5A 2M5Telephone: (416) 800-2140

Farmington Hills30445 Northwestern Hwy., Suite 260Farmington Hills, MI 48334Tel: (248) 932-0228

Contacts:Christopher Parė, P.Geo ([email protected])Jeffrey A. Bolin, M.S. ([email protected])

www.dragun.com

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