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Contaminated site in New Harbour, Newfoundland and Labrador

Petition: No. 218

Issue(s): Compliance and enforcement, human health/environmental health, toxic substances, transport, and waste management

Petitioner(s): Allan Williams

Date Received: 1 October 2007

Status: Completed

Summary: This petition is about an alleged failure to adequately treat polychloinated biphenyls (PCB) contaminants from transformers buried in a landfill site on the New Harbour Barrens in Newfoundland. The petitioner claims that, as a consequence, the health of the local environment is being endangered. He asks the federal government to ensure that the site is properly cleaned up and managed, that offenders are held accountable, and that the health of the area residents is protected.

Federal Departments Responsible for Reply: Environment Canada, Health Canada, Transport Canada

Petition

Allan Williams
P.O. Box 146
New Harbour, NL
A0B 2P0
709-582-3349

Sept. 28, 2007

Office of the Auditor General of Canada and
The Commissioner of the Environment and Sustainable Development

Attention Petitions

Petition regarding the Government of Newfoundland and Labrador and its failure to adequately treat PBC contaminants from transformers buried on the landfill site on the New Harbour Barrens, thus endangering the health of the local environment. (i.e. aquatic life, plant life, animal life including humans).

On April 27, 1994 SCC Environmental of St. John's, Newfoundland and Tri Waste Reduction Inc. of Calgary, Alberta were awarded the contract to perform site remediation work at a salvage yard located at Makinsons, Newfoundland.

During excavation on Aug. 9, 1994, exactly 186 transformer casings were recovered (page 32 of the Makinsons report). The casings were swab tested and found to contain high levels of PCBs. The casings were triple washed using a high pressure hose and varsol. Ten per cent were then retested and showed the washing had no effect. They were then rewashed using the CCME method of double dipping and were land filled at the New Harbour Barrens waste disposal site.

Page 64 of the Makinsons report clearly states: "Efforts to clean transformer casings were ineffective and the CCME method of double rinsing proved inadequate to clean the casings." Based on the regulations allowing 10 parts per billion per square meter, not one of the casings met that standard - they exceeded those guidelines from hundreds to thousands of times over.

Question 1: It is a breach of federal laws. What is the federal government going to do to correct these problems?

When the above-mentioned situation was brought to the attention of the provincial department of the Environment it was flatly denied. [Name and position withheld] stated that nothing from Makinsons ever went to the New Harbour Barrens landfill. This statement was made to The Compass, a locally produced weekly newspaper.

When a copy of the Makinsons report was accessed and brought to his attention, [name withheld] apologized with a statement in The Compass saying that he was sorry for previous statements and that transformer casings had indeed been brought to the New Harbour Barrens landfill site but they had been cleaned of all PCBs. The Makinsons report clearly disputes this statement.

A public meeting was called at that time and a committee was elected to deal with this situation. Pressure was put on our provincial department of the Environment to do some objective and transparent testing. Consequently an excavator was hired to dig a trench through the area where the transformer casings were buried.

What was uncovered was a shock. A CBC television crew had previously been alerted and was at the site during the excavation. A record of the transformer casings removed from this trench (5 ft. wide by 100 ft. long 10 to 12 ft. deep) shows the actual number of casings removed did not match the numbers given in the Makinsons report. There were double or triple that number.

This caused some alarm. The provincial department of the Environment then (through the media), called on people who had any evidence of who may have put transformers on the site illegally to contact the department of Environment. This was a deliberate act to shift the blame for what they had done, to others.

By this time our government had no credibility with the people. The people then began to speak out and tell what they saw and did. They said they saw a large volume of transformers and other electrical equipment on the landfill site 10 to 12 years before the 1994 cleanup at Makinsons.

Mr. Howard Thorne (Hobbs Construction) stated periodically that he had been contracted to bury contaminated waste. He estimates that the area where the transformer casings are land filled to measure at least 15,000 square feet and 10 to 12 feet deep.

Through information accessed through Freedom of Information, letters, bills and invoices clearly show that it was our provincial department of the Environment that had this waste transported from Makinsons to the New Harbour Barrens landfill site.

Bills show that 228 tandem truckloads were dumped there and each truck has the capacity to move 30 tons of material.

This waste was dumped on the ground where residents could easily access the casings. Consequently people removed copper for resale, others poured oil into open pits where it was burned while others took oil from the casings to use as chain oil in their chain saws.

Many took the casings into their communities where they were used as cement forms, distribution boxes for septic systems and some of the casings were fashioned into makeshift stoves to heat sheds.

At the time, people were not aware of the deadly risks associated with handling PCBs. (Local physician Dr. Paul Bonisteel has acknowledged the area has a higher than average incidence of brain tumors.)

Question 2: Will the federal government ask or order the federal department of Health to conduct an investigation into Dr. Bonisteel's concerns? If not, why not? If yes, when?

In Makinsons, people who were engaged in transporting this material wore protective clothing; at the New Harbour Barrens site however, no consultation took place. The casings were transported there and simply stockpiled awaiting burial.

Mr. Howard Thorne was never informed of the dangers that he was being exposed to.

Question 3: The federal government partially funded the Makinsons cleanup of 1994. What duty does the federal government have to ensure the cleanup was properly done and all laws adhered to?

Public meetings were held in Makinsons where people were informed of impending dangers due to PCBs, why was this process not followed in the New Harbour area?

Question 4: When the cleanup was done at Makinsons in 1994, why did the federal government not ensure everyone from New Harbour was consulted? Did we not have a right to know? If no, why not?

Question 5: If yes, was there a violation of our rights? If not, why not?

It is common knowledge that this waste was transported at night. The question is why? The answer is simple. On April 19, 1985 special directions were tabled in the House of Commons regarding the transportation of dangerous goods. This protective direction outlined the conditions under which PCBs could be transported. It became effective immediately and was to remain in effect for one year.

Since then the rules have become more stringent (Transportation of Dangerous Goods Act). The provisions state that PCBs or any article containing PCBs must be properly enclosed in a rigid leak proof container and be well secured to the transport vehicle. Where an article cannot be enclosed such as a large transformer, the PCBs must be drained and the contents placed in special containers. In addition, the transformer itself, because of possible residual matter, must be equipped with a catchment device protected from the weather and properly secured.

Question 6: What will the federal government do to punish the offenders and protect the residents of New Harbour?

Question 7: Will the federal government act to ensure the site is properly cleaned up and managed? Why, or why not?

In the Canada Gazette 2006 on page 39 there is a presumption clause that states: "Electrical equipment that was manufactured prior to 1980 that used PCBs as coolants is presumed to contain over 50 parts per million unless the owner has records related to their analysis. This refers to transformers, hydraulic equipment, heat diffusion pumps, capacitors, etc."

In 1977, Canada initiated regulations that prohibited the dispersal of PCBs, solid or liquid, that had a concentration of over 50 parts per million. The owners of PCBs were required to inventory and label all equipment that used PCBs. An analysis of all equipment was required to demonstrate that the concentration was less than 50 parts per million.

A letter from [name and position withheld] July 14, 2004 states: "We are unable to find a report on the cleanups (1985)."

In accordance with the inventory requirement above, it is quite clear that regulations regarding PCBs were violated!

Question 8: Will the federal government act and hold the department of the Environment of Newfoundland and Labrador responsible for breaking federal regulations? If not, why not?

Question 9: Will the federal government also seek to find out why no report of the 1985 action can be found? If not, why not?

Question 10: Considering the federal government partially funded the cleanup, will the federal government inquire why the provincial government would foot the bill to clean up PCBs from a private business for the pittance of less than $50,000, which included all costs that included trucking to the New Harbour Barrens, landfill from Makinsons and the bulldozing of those 228 loads? If not, why not?

A statement in our local paper, The Compass, June 26, 2007 by Dr. Paul Bonisteel expresses clearly what the people want: "First and foremost, it is the government's responsibility to do the right thing: say they broke the rules, that they did wrong, that they did not act to protect the environment and the safety of the general public and remove all the transformers and contaminated ground now!"

Our own provincial government has failed us in a disgusting and despicable manner.

Question 11: Can we count on our federal government to act to protect the environment and the safety of the general public? If the answer is no, then we ask why? If the answer is yes, then we respectfully ask when?

All testing done to date has been only superficial. A drill rig needs to bore down through the bedrock to determine the extent of possible contamination of the groundwater and also to determine how far PCBs have migrated off the site.

Question 12: Will our federal government conduct such a testing regime? If not, why not? If yes, when?

We deserve to know.

[Original signed by Allan Williams]

Allan Williams
P.O. Box 146
New Harbour, NL
A0B 2P0
709-582-3349

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Minister's Response: Environment Canada

30 January 2008

Mr. Allan Williams
P.O. Box 146
New Harbour
Trinity Bay, Newfoundand and Labrador
A0B 2P0

Dear Mr. Williams:

I am pleased to provide Environment Canada's response to your Environmental Petition No. 218, to the Interim Commissioner of the Environment and Sustainable Development, concerning materials disposed of in the New Harbour landfill site, as a result of remedial efforts at the Makinsons salvage yard. Your petition was received in the Department on October 5, 2007.

Environment Canada's role in the Makinsons remediation project was to provide scientific, technical and financial support to the Province of Newfoundland and Labrador as per the terms and conditions set out under the former National Contaminated Sites Remediation Program. Under this cost-shared agreement, the federal government provided advice to the provincial government in the assessment and remediation activities at the Makinsons salvage yard in 1994.

Enclosed you will find Environment Canada's response to those questions in your petition that specifically relate to my department's role in the remediation activities at the Makinsons site. I understand that the Minister of Health, the Honourable Tony Clement, and the Minister of Transport, the Honourable Lawrence Cannon, will be responding separately to petition questions that relate to their respective mandates and regulatory responsibilities.

I appreciate the opportunity to respond to your petition, and trust that you will find this information helpful.

Sincerely,

[Original signed by John Baird, Minister of the Environment]

John Baird, P.C., M.P.

Enclosure

c.c.:

The Honourable Tony Clement, P.C., M.P.
The Honourable Lawrence Cannon, P.C., M.P.
Mr. Ronald C. Thompson, Interim Commissioner of the
Environment and Sustainable Development


ENVIRONMENT CANADA RESPONSE TO ENVIRONMENTAL PETITION NO. 218, CONCERNING THE TREATMENT OF PCB CONTAMINANTS FROM TRANSFORMERS BURIED AT THE NEW HARBOUR LANDFILL SITE IN NEWFOUNDLAND

Question 1: It is a breach of federal laws. What is the federal government going to do to correct these problems?

Response: The standard referred to in the preamble to this question is the 10 ug/100 cm2 for PCB concentration on surfaces as outlined in the Canadian Council of Ministers of the Environment's (CCME) 1995 PCB Transformer Decontamination Standards and Protocols. These guidelines address the issue of PCB equipment decontamination before its disposal.

The 1989 CCME Guidelines on the Management of Wastes Containing Polychlorinated Biphenyls (PCBs) also address the issue of PCB equipment disposal. As with most waste material, the recommended option is recycling, if possible, with disposal as a second choice. The Guidelines recognize that certain disposal issues can be addressed on a case-by-case basis, in accordance with provincial regulations and/or site-specific requirements, taking into consideration the intended method of disposal and the degree of contamination of the PCB equipment.

It is our understanding that the cleaning methods used by the contractor to decontaminate the surfaces of the transformers, during the 1994 remediation project, were the recommended procedures endorsed by the CCME. The swab testing method assumes that the transformers have been recently taken out of service and are in good condition, and that those transformers recovered from the Makinsons salvage yard were rusted and weathered. However, the swab test method and criteria were thought to be the most appropriate approach for testing these transformers. According to the Final Report Makinsons Remediation Project (SCC Environmental & Triwaste Reduction Services, 1996), all 198 transformer casings were first triple washed with Varsol, using a pressure washer. As the surface criteria were not met, all the casings were then re-washed. After the re-washing process, approximately half of the casings met the criteria (i.e., tested less than 10 ug/100 cm2) and half were still above the criteria. A management decision was made to proceed with disposal of the casings in the landfill.

Environmental criteria, such as the 10 ug/100cm2 criteria from the 1995 CCME guidelines, are benchmarks to guide decision making. Exceeding the criteria does not necessarily result in environmental harm. Although best management practices were followed for the cleaning of the material, surface criteria were exceeded in some cases. Based on the procedures adopted and the evidence available, the risk of further release of PCBs from the surface of the transformer casings into the landfill, following the 1994 remediation at Makinsons under the National Contaminated Sites Remediation Program (NCRSP), would be considered to be low.

It is important to note that neither of these guidance documents can be regarded as "federal laws."

In conclusion, and based on the facts as we understand them, no federal legislation dealing with the storage or release of PCBs has been breached.

Question 3: The federal government partially funded the Makinsons cleanup of 1994. What duty does the federal government have to ensure the cleanup was properly done and all laws adhered to?

Response: In 1989, the CCME acknowledged the need for a consistent national approach to the prioritization and remediation of high-risk contaminated sites in Canada. In response to this need, the CCME established the NCSRP, which was supported and administered through federal-provincial/territorial bilateral agreements. This five-year program was in place from 1990 to 1996. One key component of the program involved "orphan sites." Under this component, federal and provincial governments cost shared, on a 50-50 basis, the assessment and remediation of those sites under provincial jurisdiction that were deemed to be "high-risk orphans sites," sites for which the owner could not be found or the owner was financially unable to fund a cleanup. In the present case, the federal and provincial government initiated and funded the remediation, because the owner of the Makinsons site was unable to do so.

The Makinsons salvage yard site was nominated by the Province of Newfoundland and Labrador as an orphan site and, because it fit the definition of an orphan site, it qualified for funding under the terms and conditions of the NCSRP program. Environment Canada administered the technical and funding component of the program. In addition to the technical aspects of the program, the province also managed all the contract aspects of the assessment/remediation projects.

In 1994, the NCSRP remediation project in Makinsons involved the recovery and removal of surface metal debris and treatment of the contaminated soil with a mobile low-temperature thermal desorption unit. A number of transformer carcasses were recovered as part of the surface debris removal. These carcasses were cleaned (pressure-washed and solvent-rinsed) and subsequently disposed of in the nearby New Harbour landfill.

Based on the facts, as we understand them, the cleanup was properly carried out. Environment Canada is not aware of any breach of federal or provincial legislation in regard to the cleanup.

Question 4: When the cleanup was done at Makinsons in 1994, why did the federal government not ensure everyone from New Harbour was consulted? Did we not have a right to know? If no, why not?

Response: In 1994, the provincial government held public meetings in Makinsons to inform people of the issues associated with the soil treatment project that was part of the 1994 NCSRP project, and to answer any other questions associated with the cleanup. These meetings were held immediately prior to the commencement of the NCSRP remediation project. As there was no soil treatment done in New Harbour, and as the waste material destined for the New Harbour landfill resulting from the 1994 NCSRP project was pre-cleaned prior to placement in the landfill, no further public meetings were arranged.

Question 5: If yes, was there a violation of our rights? If not, why not?

Response: With regard to the consultation process conducted by the Government of Newfoundland and Labrador, at this time, we are not aware of any violation of any legal rights.

Question 7: Will the federal government act to ensure the site is properly cleaned up and managed? Why, or why not?

Response: It is assumed that the "site" you are referring to is the New Harbour landfill site.

The responsibility for the licensing of waste disposal sites rests with the Province of Newfoundland and Labrador. It is Environment Canada's understanding that officials from the provincial Department of Environment and Conservation have worked closely with a local interest group to identify potential issues and to formulate the necessary plans to deal with any problems identified. The local group includes representatives from local service districts and communities.

Although the cleanup and management of the landfill site is not a federal responsibility, Environment Canada officials have been in communication with their provincial counterparts and have been monitoring their efforts. It appears that the provincial actions have been moving forward to address potential environmental concerns at the site.

Question 8: Will the federal government act and hold the department of the Environment of Newfoundland and Labrador responsible for breaking federal regulations? If not, why not?

Response: The preamble to this question makes reference to regulations that deal with the release and storage of PCBs.

The main inference in your question appears to be that the province is responsible, under some version of the federal Storage of PCB Material Regulations, for providing documentation on PCB materials that may have been stored in Makinsons in 1985. Neither the Makinsons scrapyard site nor the New Harbour landfill site meet the definition of a PCB storage site, as defined in the current federal Storage of PCB Material Regulations, and they did not meet this definition in 1994, at the time of the NCSRP cleanup. Furthermore, our understanding of the facts does not support the allegation that the province violated the Chlorobiphenyls Regulations.

For your information, Environment Canada is currently revising its regulatory controls on PCBs in use and in storage, as well as its release into the environment. In November 2006, the Department published proposed new PCB Regulations in the Canada Gazette, Part l, which are now being finalized. These are the regulations that you referenced in the first part of your preamble to this question. As these regulations are still not finalized, they cannot be applied to any past or present situation. These proposed regulations consolidate the Chlorobiphenyls Regulations and the Storage of PCB Material Regulations that you may also have alluded to in the preamble to your petition.

Question 9: Will the federal government also seek to find out why no report of the 1985 action can be found? If not, why not?

Response: The letter that you refer to was from the Deputy Minister, Department of Environment and Conservation, Government of Newfoundland and Labrador, to a local resident. In response to a question from the resident, regarding past cleanups at the Makinsons scrapyard that were carried out in 1985, the Deputy Minister stated that these cleanups were limited to the removal of scrap material from the site.

Environment Canada will not be investigating to determine why there was no report on the 1985 cleanups. It would be unusual to have any sort of significant report associated with a cleanup of this type. You seem to infer that the Makinsons scrapyard was a PCB storage site in 1985, and, for that reason, there should be records in the form of a report associated with the cleanup. Based on the facts, as we understand them, the Makinsons site did not meet the definition of a PCB storage site as defined in the current PCB Storage Regulations.

Question 10: Considering the federal government partially funded the cleanup, will the federal government inquire why the provincial government would foot the bill to clean up PCBs from a private business for the pittance of less than $50,000, which included all costs that included trucking to the New Harbour Barrens, landfill from Makinsons and the bulldozing of those 228 loads? If not, why not?

Response: If you are referring to the removal of scrap material from the Makinsons scrapyard that occurred prior to the NCSRP project in 1994, it is Environment Canada's understanding that the province has the authority to direct and fund cleanups on sites under its jurisdiction, as it sees fit, in accordance with its legislation. The federal government was a partner in the NCSRP cleanup of 1994, but did not participate in any other activities on the Makinsons site. Although the contractor was required to adhere to federal and provincial regulatory requirements, the provincial government was responsible for overseeing those cleanup efforts prior to the 1994 NCSRP remediation project. As to the rationale for the amount of funds provided, you may wish to direct your question to provincial officials.

Question 11: Can we count on our federal government to act to protect the environment and the safety of the general public? If the answer is no, then we ask why? If the answer is yes, then we respectfully ask when?

Response: The current and proposed federal regulatory regime on PCBs focuses on reducing total releases into the environment of PCBs at source, during their use and storage.

Beginning in the 1980s, federal and provincial authorities have developed guidelines on environmentally sound management of PCB wastes. Since then, new technologies and processes have become available that allow for more efficient waste decontamination and PCB destruction.

The proposed federal PCB regulatory regime will continue to improve the protection of Canada's environment and the health of Canadians from the risks posed by the use, storage and releases of PCBs, and will accelerate their elimination.

Question 12: Will our federal government conduct such a testing regime? If not, why not? If yes, when?

Response: It is assumed that the testing you are referring to is the testing associated with the environmental investigation carried out at the New Harbour landfill site.

As stated in our response to question 7, the provincial government is responsible for the licensing of landfills within its jurisdiction. It is Environment Canada's understanding that professional consultants have been chosen by a local community group and are being paid by the province to conduct environmental investigations and to make recommendations for the New Harbour landfill site.

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Minister's Response: Health Canada

8 January 2008

Mr. Allan Williams
P.O. Box 146
New Harbour, Newfoundland and Labrador
A0B 2P0

Dear Mr. Williams:

This is in response to your environmental petition no. 218 of October 5, 2007, addressed to Mr. Ronald Thompson, the Interim Commissioner of the Environment and Sustainable Development (CESD).

In your petition, you raise questions about the treatment of polychlorinated biphenyl (PCB) contaminants from transformers buried in the landfill site on the New Harbour Barrens, and ask whether an investigation is to be conducted by the federal Department of Health with respect to health concerns.

I am pleased to provide you with the enclosed Health Canada response to your petition. I understand that the Ministers of the Environment and Transport will be responding separately to questions which come under the purview of their respective departments.

I appreciate your interest in this important matter, and I hope that you will find this information useful.

Yours sincerely,

[Original signed by Tony Clement, Minister of Health and the Minister for the Federal Economic Development Initiative for Northern Ontario]

Tony Clement

Enclosure

c.c. The Honourable John Baird, P.C., M.P.
The Honourable Lawrence Cannon, P.C., M.P.
Mr. Ronald C. Thompson, Interim CESD


Health Canada Response to
Environmental Petition No. 218:
PCB Contaminants Buried on Landfill Sites in New Harbour, Newfoundland

Question 2: Will the federal government ask or order the federal department of Health to conduct an investigation into Dr. Bonisteel’s concerns?
If not, why not? If yes, when?

Health Canada (HC) Response:

Jurisdiction for both the environment and human health is shared between the Government of Canada and the provinces and territories. Generally, the latter address issues originating at the local and regional level, whereas the Government of Canada is concerned with those that are national in scope. As a result, Health Canada does not normally carry out work on local environmental health issues. At the request of a province, however, Health Canada will, subject to availability of resources and expertise, work with the province on a local human health issue, such as levels of chemical contaminants in local residents.

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Minister's Response: Transport Canada

1 February 2008

Mr. Allan Williams
P.O. Box 146
New Harbour, NL
A0B 2P0

Dear Mr. Williams:

I am writing in response to your October 2007 petition (#218) to the Commissioner of the Environment and Sustainable Development concerning Polychlorinated biphenyl's (PCB) contaminants from buried transformers at the New Harbor Barrens, Newfoundland, landfill site.

There is one item in your petition relative to the transportation of goods that falls within Transport Canada's mandate.

The Transportation of Dangerous Goods (TDG) Act, 1992, promotes public safety during the transportation of dangerous goods. The provinces and territories enforce transportation of dangerous goods requirements on the highway. Transport Canada conducts enforcement for rail, marine and aviation. The department leads in the development of dangerous goods regulations in the transportation sector. The Transportation of Dangerous Goods Regulations (regulations) adopted by all provinces and territories, establish the regulatory requirements for the handling, as well as for the offering for transport, and for the transport of dangerous goods by all modes within Canada.

Transport Canada's TDG program is based on the premise that dangerous goods must be properly classified and transported in a proper means of containment. Proper containment, along with proper safety markings and shipping documents, are crucial elements in the safe transportation of dangerous goods. Regulations relating to the transportation of PCB"(s), which first came into force on June 1, 1985, are built around this principal.

A person in Canada who is handling, offering for transport, transporting or importing PCBs must follow the TDG Act and its regulations. Should a person fail to comply, than enforcement action can be taken. As the TDG Act is criminal law, the enforcement action could lead to an offence punishable on summary conviction and liable to a fine not exceeding fifty thousand dollars for a first offence, and not exceeding one hundred thousand dollars for each subsequent offence. Or the enforcement action could lead to an indictable offence and liable to imprisonment for a term not exceeding two years.

As this case stems from 1994, Transport Canada is not able to determine if the transportation of PCBs was conducted following the appropriate regulations. In addition, the Act defines that proceedings by way of summary conviction may be instituted at any time within, but not later than, two years after the day on which the subject-matter of the proceedings arose. Your concern then seems to fall outside of our regulatory review.

Thank you again for writing.

Yours truly,

[Original signed by Lawrence Cannon, Minister of Transport, Infrastructure and Communities]

The Honourable Lawrence Cannon, P.C., M.P.

c.c.:

The Honourable John Baird, Minister of the Environment
The Honourable Tony Clement, Minister of Health