Ontario Plans To Amend Excess Soil and Brownfields Regulation

Written by Paul Manning, Manning Environmental Law

Ontario is proposing changes to the excess soil management and brownfields redevelopment regime.

The changes are designed to “make it safer and easier for more excess soil to be reused locally…while continuing to ensure strong environmental protection” and to “clarify rules and remove unnecessary barriers to redevelopment and revitalization of historically contaminated lands…while protecting human health and the environment.

Opponents will see this as a deregulation which will primarily benefit business interests at the cost of environmental protection, notwithstanding these assurances.

Excess Soil

The changes will include the development of a new excess soil regulation supported by amendments to existing regulations including O. Reg. 347 and O. Reg. 153/04 made under the Environmental Protection Act supports key changes to excess soil management.

Proposed changes include:

  • clarifying that excess soil is not a waste if appropriately and directly reused;
  • development of flexible, risk-based reuse excess soil standards and soil characterization rules to provide greater clarity of environmental protection;
  • removal of waste-related approvals for low risk soil management activities;
  • improving safe and appropriate reuse of excess soil by requiring testing, tracking and registration of soil movements for larger and riskier generating and receiving sites;
  • flexibility for soil reuse through a Beneficial Reuse Assessment Tool to develop site specific standards;
  • landfill restrictions on deposit of clean soil (unless needed for cover).

Record of Site Condition

Under O. Reg. 153/04, a Record of Site Condition must be filed on the Ministry’s public registry if there is a change in property use from an industrial, commercial or community use to a more sensitive use, such as residential, institutional, agricultural, or parkland.

The Ministry is proposing amendments to O. Reg. 153/04 including reduced requirements to fully delineate contaminants (i.e. additional sampling) for properties going through the Risk Assessment process when contamination is already well understood.

The amendments would also provide flexibility on meeting standards where exceedances are caused by the use of a substance for safety under conditions of snow and ice, discharges of treated drinking water, and the presence of fill that matches local background levels.

Other proposed amendments would remove the requirement for a Record of Site Condition for specific low risk redevelopment situations, including converting:

  • Low-rise commercial buildings to mixed-use residential with commercial on main floor;
  • Temporary roads in construction areas to residential;
  • Indoor places of worship to residential; and
  • Industrial or commercial to indoor agriculture in or on the same building.

The proposal is posted for comment on the Environment Registry until May 31, 2019. To read the full proposal, click here.

This article has been republished with the permission of the author. It was first published here .

This article is provided only as a general guide and is not legal advice. If you do have any issue that requires legal advice please contact Manning Environmental Law.


About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Ontario. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal.
Paul advises clients on a wide range of environmental law issues and represents them as counsel before tribunals and the courts. His practice focuses on environmental, energy, planning and Aboriginal law.

Ontario Government Budget & the Environment

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

The Ontario government recently issued its budget for the 2019 fiscal year.  The budget was considered in some circles as not favouring the environment. One environmental activist organization went as far as calling it ““the most anti-environmental budget in Ontario” since Mike Harris was in power in the 1990’s.

For starters, the government cut $300 million from the budget for the Ontario Ministry of Environment, Conservation, and Parks. The cuts
from that Ministry’s budget come from the end of programs funded by the cap-and-trade system, as well as the cancellation of the Drive Clean program for passenger vehicles.

If one looks closely enough at the budget, there was some good news to professionals that work in the environmental sector, including the following:

  • A province-wide climate vulnerability assessment.  The Government will assess the best science and information to better understand where the province is vulnerable and understand which regions and economic sectors are more likely to be impacted.  Such an assessment is typical in the insurance industry and major companies.  The findings from the assessment will feed into the Province’s Climate Plan announced in November 2018.
  • Clean technology incentives.  The Government has taken steps to encourage private investments in clean technologies. Through the Ontario Job Creation Investment Incentive, the Province is paralleling the Federal Government in allowing businesses to immediately write off investments made in specified clean technology capital equipment. This incentive will make investments in clean energy generation and energy conservation equipment more attractive.
  • Industrial emissions performance standards.  The Government is currently developing emissions performance standards for industries to achieve further greenhouse gas reductions.  When the new standards are promulgated in a regulation, each industrial facility will be required to demonstrate compliance annually.

The budget included these and other sections that are encouraging indications the the Ontario government understands that value of the environmental and cleantech industries.

Get Rid of Outdated Hazmat Compliance Materials

Written by Hazmat University

Spring is in the air! And along with that comes the pleasant and incessant urge to clean closets, declutter the house, and scrub the whole thing down!  Something that we may overlook, however, is that Spring is also a perfect time to do a Hazardous Materials refresh – and it doesn’t involve washing walls!  

Spring Clean and Keep Current Hazmat Compliance Materials

Spring is also an ideal time to do a Hazardous Materials refresh. Many people avoid this kind of clean-up because they don’t know what they should keep and for how long. But hazmat compliance is dependent on maintaining current knowledge and current practices. Now really is an excellent time to make sure that your hazardous materials are current, relevant, and not overly burdensome for the people that need them to properly do their jobs.

Out With The Old, Hold On to the Current

Do you have a tendency to hold on to outdated materials, forms, or labels? If you are, stop immediately. Hazmat compliance materials are detail-oriented to begin with, so the simpler, clearer and less cluttered, the better. You’ll be happy you did it. Outdated materials present the danger of actually being used by someone and causing an issue. Good riddance, old subsidiary risk labels!

Which Important Documents Should You Keep?

As regulations for shipping dangerous goods increase in complexity, there’s no reason to keep information laying around that could increase your risk for non-compliance, including stopped shipments, supply chain delays, fines and more.

The industry makes sweeping changes all the time, making it all the more important to only have up-to-date regulations on hand. If your printed copies of 49 CFR, IATA DGR, or the IMDG Code are outdated, it may be time to move on to online resources. An example of an online resource is Title 49 CFR   “e-CFR” which is available online, and the Government Publishing Office maintains it so that it is always up-to-date.

Compliance is dependent on maintaining current knowledge and current practices, and this is a perfect time to ensure that your hazardous materials

  • regulations;
  • policies;
  • practices;
  • employee training;
  • training content;
  • training records;
  • packaging closure instructions;
  • internal audits;
  • emergency response provider product information;
  • and more

are current, relevant, and not overly burdensome for the people that rely on them to properly do their job. Hazardous materials transportation compliance is detail-saturated to begin with, so the simpler you can make it, the better – and you’ll be happy that you did.

Making sure you discard old training and compliance documents is crucial, especially if you have new or inexperienced hazmat employees. Remembering all the regulations for various shipping transportation processes can be difficult. That’s part of the reason why it’s crucial to stay up-to-date on regulations.

It’s also critical that hazmat employees have access to transportation regulations at all times in case they need to refer to them. Remembering the most essential aspects of hazmat compliance becomes second nature for most employees, but that happens over time.

Stay Up-to-Date with Hazmat University

Everyone involved in the transportation of hazardous materials in commerce is required by law to be aware and comply with the appropriate regulations. Hazmat University offers several training programs for shipping and handling hazmat by air, ground, and sea. Courses include initial training for novices, recurrent training for those with more experience.

Now we can take a breath of that fresh spring air, and just maybe we have inspired you to clean out those closets too! Happy Spring from the Bureau of Dangerous Goods!

Environmental Liability Risk Faced by Directors of Dissolved Companies – Getting around the Gehring Defence

Written by Una Rodaja, Harper Grey LLP

Once upon a time, you were a director of a company that owned a parcel of land in the Greater Vancouver area.  A dry-cleaner and an auto-repair shop operated on the property, but you were not too concerned about environmental liability.  This was the 80s after all and the rent was good!  Your tenants caused some environmental contamination, which you addressed when your company sold the site in 1990.  You dissolved your company a year later and forgot all about it.

The property is now owned by a developer who is seeking to build a residential tower on the property.  To do so, the developer is required to investigate and remediate contamination that remained on the property after your company sold it.  Standards have changed and the limited remediation your company did years ago no longer meets the applicable standards.  Your old tenants (both sole proprietorships) are long gone and the developer is seeking to hold you personally liable for the costs of remediation.  You did not personally operate on or own the property, so are you really at risk?  A recent BC Supreme Court case says you are.  Here we explain how and why.

Directors of existing corporations are “responsible persons”

Under BC’s Environmental Management Act[1], a director or officer of a company that owns or operates on, or has historically owned or operated on, a contaminated site is a “person responsible for remediation” of that site simply by virtue of their position with the company.[2]  Such directors and officers can be liable to pay reasonable costs of remediation incurred by anyone in respect of the site owned or operated on by their company, if they authorized, permitted or acquiesced to the activity that gave rise to the cost of remediation.[3]

Directors of dissolved corporations are not “responsible persons”

Although the language establishing the categories of “responsible persons” under BC law is very broad, it is not without limit.  For example, it does not include “persons” who have ceased to exist, such as dissolved corporations.  This was made clear by the BC Supreme Court in a seminal decision called Gehring[4].  The case has undoubtedly motivated many corporate dissolutions by directors and officers seeking to shield themselves from personal liability for contaminated sites owned or operated on by the companies they served.

Dissolved companies can be restored – then what?

However, in the recent decision of the BC Supreme Court in Foster v. Tundra Turbos Inc.[5], a director of a long-dissolved corporation that owned and operated on contaminated land faced exposure in an action to recover environmental remediation costs by virtue of an application to restore the company to the corporate registry.  The company in question, Tundra Turbos Inc., was incorporated in 1978, and was dissolved in 2000.  Prior to its dissolution, it had a single director, one Mr. Clarke. The Plaintiff sought to hold Mr. Clarke liable for the costs of remediation incurred in respect of the property, some 17 years after Tundra had dissolved.  The question before the court was whether it was appropriate to restore Tundra and reconstitute Mr. Clarke’s directorship to make it possible for Tundra and Mr. Clarke to be liable for the costs incurred by the Plaintiff in remediating the property owned by Tundra in the late 1980s and early 1990s.  Tundra and Mr. Clarke presented several arguments against the restoration, including that Mr. Clarke would lose the Gehring defence, a substantive right, and that Tundra’s records pertaining to its operations at the property were destroyed, given the length of time involved.  The court rejected these arguments and ordered the restoration.

In the court’s view, there was nothing inherently unfair in the fact that companies and directors may be exposed to liability under BC’s environmental legislation many years after their association with a contaminated property ended.  Further, the right of a company and its directors to avoid liabilities for which they would have been exposed but for the dissolution is not the kind of right protected by legislation.  In fact, a legitimate purpose of restoring a company is to facilitate the imposition of such liabilities.  While destruction of the dissolved company’s records may, in certain circumstances, result in the court rejecting an application to restore, in Tundra’s case there was no prejudice arising from the loss of records because it was clear, on the facts, that had Tundra not been dissolved, it would have been responsible for the costs of remediation.  If anything, the lost records caused more prejudice to the Plaintiff than Tundra’s director, Mr. Clarke, who had personal knowledge of Tundra’s activities on the site.

In addition, the fact that Mr. Clarke could potentially face personal liability even without Tundra being restored (on the basis that he personally had the right to control, was in control of or responsible for any operation on the site in question) did not have a bearing on the restoration application.  The court recognized that it was easier to hold Mr. Clarke liable if he was responsible solely by virtue of his status as director, which could only be done if the company was restored.

Implications of the Tundra Decision

The Tundra case is an important example of creative counsel work to get around the Gehringdefence.  However, notwithstanding the outcome in that case, there are arguments to be made in future cases to avoid the restoration and, ultimately, responsible persons status for the director in question.  Existence of a limitation defence and loss of evidence that would assist in the defence of the director in question, or unreasonable delay of the Plaintiff in bringing the restoration application, may well result in the application being denied.

For lawyers advancing cost recovery claims, the Tundra case is a good reminder of the need to look at dissolved corporations and their directors and officers, and the need to apply for restoration, in a timely fashion.  For those defending these claims, and restoration applications, finding prejudice, beyond the mere loss of the Gehring defence, will be key.

[1] S.B.C. 2003, c. 53 (“EMA”)

[2] EMA, ss. 39(1), 45

[3] EMA, ss. 47(5); Contaminated Sites Regulation, s. 35(4)

[4] Gehring v. Chevron Canada Ltd., 2006 BCSC 1639, para. 55

[5] Foster v. Tundra Turbos Inc., 2018 BCSC 563

About the Author

Una Rodaja is a partner in Harper Grey’s Commercial Litigation and Environmental Regulation & Disputes practice groups. Una frequently lectures on various aspects of contaminated sites law for the Pacific Business and Law Institute, BC Environmental Industry Association, the Environmental Managers Association, and the BC Continuing Legal Education Society.  She is the co-author of BC Environmental Management Legislation and Commentaryand the recipient of the 2017 Lexpert® Leading Lawyers Under 40 award. Una is recognized by the 2018 Canadian Legal Lexpert® Directory as a Leading Lawyer to Watch in the area of corporate commercial litigation and by Benchmark Canada® as a Future Litigation Star. She has also been recognized by Best Lawyers® in Canada 2019 as a “Leading Lawyer in the area of Environmental Law.

Expanding Redwater Beyond Oil And Gas: Can Other Regulators Enforce Orders In An Insolvency?

Written by Alan Harvie, Norton Rose Fulbright Canada LLP

The Supreme Court of Canada recently released its decision in Orphan Well Association v Grant Thornton Limited, (Redwater). The majority ruled that a bankrupt oil company’s estate remained liable for well closure and environmental obligations in priority to the company’s creditors, including its secured creditors.

Although Redwater dealt with the Alberta Energy Regulator’s (AER) powers to order a bankrupt oil company to close oil and gas wells, the decision can likely be used by regulators in other industries to ensure compliance with environmental and other laws.

Provable claims

The concept of a provable claim is central to Canadian insolvency law. Once insolvency proceedings start, a regulator trying to enforce a compliance order that is considered a provable claim against the insolvent company is typically stayed by the court (i.e. stopped) from enforcing it. Conversely, a non-provable claim is not stayed and can be enforced.

In Redwater, the company entered receivership proceedings and the AER ordered the company to abandon and permanently close various wells by pumping cement down the well bore, cutting and capping the top of the well and removing surface equipment so as to leave the well in a safe state in perpetuity. The receiver argued the abandonment orders were stayed and sought to sell a package of Redwater’s assets to a third party and use the proceeds to pay the secured creditor.

The matter ended up in the Supreme Court, which considered the historical test of what constituted a provable claim by a regulator in an insolvency set previously by it in Newfoundland and Labrador v AbitibiBowater Inc., namely that there must be a debt, liability or obligation to a creditor, that it be incurred before the bankruptcy and that it must be possible to attach a monetary value to the debt, liability or obligation.

The Supreme Court in Redwater noted that although a regulator can be a creditor with a provable claim, a regulator exercising an enforcement power is not always one. The court noted the AER’s abandonment orders did not require the company to pay the AER, but instead to do something, namely to permanently close the wells. It was not sufficiently certain that the AER would itself perform the well abandonments if the company failed to do so and then advance a claim for reimbursement of the costs. Indeed, the AER was not in the business of abandoning wells and had no statutory duty to do so.

The Supreme Court distinguished AbitibiBowater by noting in that case the provincial government had expropriated a number of AbitibiBowater’s properties without compensation. The company entered creditor protection and responded to the expropriation by filing a NAFTA claim for compensation. The province then issued environmental clean-up orders that the government hoped to use to set off against the NAFTA claim.

The court clearly saw the province as seeking a direct financial benefit from the clean-up orders. It pointed out the orders’ timelines were not realistic, showing the province did not intend the orders to be complied with. The company also could not access some of the properties to undertake the work due to the expropriation. The court felt the ultimate purpose of the clean-up orders was not to have the properties remediated, but to create a set-off in response to the NAFTA compensation claim. Hence, the company owed a debt to the province to which monetary value could be attached.

In Redwater, the court found the regulator was acting in a bona fide regulatory capacity and did not stand to benefit financially from the abandonment orders. Unlike in AbitibiBowater, the AER had no ulterior motives in issuing the orders. It was acting in the public interest and for the public good. It was not enforcing a debt but was instead enforcing a general law of the province.

The court found that bankruptcy was not a license to ignore the rules, and the bankruptcy trustee was bound by and must comply with valid provincial laws. Hence, the abandonment orders were not provable claims in the bankruptcy and were not stayed. The court ordered the proceeds of sale of Redwater’s assets in the bankruptcy proceeding be used to pay for the well abandonment costs to the preference of the company’s secured and other creditors.

Other regulators are likely paying attention

Regulators in other industries trying to enforce environmental protection legislation against insolvent companies are undoubtedly paying attention and considering if they can enforce their legislation in preference to an insolvent company’s creditors. It appears many have the power to do so.

For instance, Alberta Environment and Parks (AEP) has the authority to issue environmental clean-up orders in response to a spill under Alberta’s Environmental Protection and Enhancement Act. Such orders can require the company to investigate, take any action specified, minimize and remedy the effects of a spill and restore the environment. Although AEP can in certain instances claim costs incurred in enforcing the legislation, there is no requirement for it to do so.

Similarly, in British Columbia the director under the Environmental Management Act can issue a pollution abatement order in response to a spill event to any of the person who controlled the substance that caused the spill, the person who owns or occupies the land on which the substance was located prior to the spill, or a person who caused or authorized the pollution. The director may also issue a remediation order against one or more responsible persons for a site to undertake remediation.

Likewise, under Ontario’s Environmental Protection Act a director with the Ministry of the Environment, Conservation and Parks may order a person who discharges a contaminant into the environment to repair injury or damage to land, water, property, animal life, plant life or human health. The order can include requiring the person to construct and install devices, equipment and facilities, and to develop and implement plans to remediate contamination. Although the ministry may require a polluter to pay the ministry’s costs and expenses in responding to a spill, the ministry does not have to do so.

When faced with an environmental problem caused by an insolvent company, it is reasonable to expect provincial and federal environmental regulators to try to use their enforcement powers such that they fall under Redwater rather than AbitibiBowater by crafting their enforcement orders so as not to create a provable claim.

It is also reasonable to assume regulators concerned with issues besides environmental ones in the Alberta oil and gas industry are taking a close look at Redwater. Regulators of mining, forestry, transportation, agriculture, fishing and numerous other regulated industries and activities in Canada come to mind.

Secured creditors across Canada should take note

Time will tell if Redwater will be applied more broadly than to environmental obligations of an insolvent oil company. We assume regulators will try to use Redwater when faced with an insolvent company with regulatory obligations.

Secured creditors in many other instances and industries in Canada should consider what the potential shift in traditional priorities to a bankrupt’s estate might mean to repayment of their secured loans. Borrowers should consider the implications of lenders less willing to provide financing. It is also likely that lenders will want a comprehensive understanding of a borrower’s regulatory obligations and will expand their lending due diligence to understand a borrower’s assets retirement obligation and require stricter covenants in loan agreements.

The ultimate outcome of a borrower in a regulated industry becoming insolvent will be governed by the facts of each case and the particular enforcement strategies regulators use to prevent enforcement orders being provable claims and having their orders stayed upon an insolvency. It is clear, however, that Redwater will have future implications to lenders, other creditors and borrowers in many industries.


About the Author

Alan Harvie has practised energy and environmental/regulatory law since 1989 and regularly deals with commercial, operational, environmental and regulatory issues, especially for the upstream oil and gas, energy, waste disposal and chemical industries. He is a member of our energy and environmental departments. 

Mr. Harvie also has significant legal experience acting for the oil and gas industry in commercial transactions and regulatory matters, including enforcement proceedings, common carrier and processor applications, forced poolings, downspacings and holdings, rateable take, and contested facility, well and pipeline applications. He has also dealt extensively with commercial, environmental and regulatory issues concerning thermal and renewable power plants, electrical transmission and distribution lines, tourism and recreation projects, forestry, mining, agriculture, commercial real estate, industrial facilities, sewage plants, hazardous waste landfills and treatment facilities, transportation of dangerous goods and water storage reservoirs. 

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world’s preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

What is the Cost of An Asbestos Test?

Written by Robert B. Greene, PE, PG, CIH, LEED AP, GLE Associates Inc.

The presence of asbestos can be hazardous to workers and building occupants during renovations and even in the course of daily business, and the only way to know if it is a problem is to test for it.

What Is Asbestos and Why Is It a Problem?

Asbestos is a heat-resistant silicate fiber that is frequently present in building materials. Contrary to common understanding, it is still used in building materials today and can be present in any building of any age.

It becomes a problem when asbestos-containing materials are disturbed and the fibers enter the air. The fibers lodge themselves in the lungs of anyone who breathes them in and can cause mesothelioma, lung cancer, and other acute and long-term health problems, up to and including death.

How and When Should You Test for Asbestos?

An asbestos test (also called an asbestos survey) should be conducted prior to any renovation or demolition activities in any building of any age. In fact, an asbestos survey is required by law prior to these activities for any building materials which may be disturbed.

You should also be concerned about the ongoing presence of asbestos in older buildings, where asbestos-containing materials may have deteriorated over time. This can cause them to release asbestos fibers into the air, creating a hazard for building occupants. An asbestos survey is a relatively inexpensive way to ensure your buildings are safe for tenants and employees.

How Does an Asbestos Test Work?

A qualified asbestos company will bring in an experienced team to collect samples of potential asbestos-containing building materials. The samples will be sent to a lab for testing, and a report will be generated based on the results.

How Much Does an Asbestos Test Cost?

An asbestos survey is a relatively inexpensive precaution and may be mandated by law prior to even small renovation projects. The cost to conduct asbestos testing will vary widely based on a number of factors, including:

  • The type of facility. The more complex the building, the more time it will take to collect an adequate number of samples from all the relevant types of materials. It will also cost more to have more samples tested in the lab. For example, an asbestos survey of a hospital would be much more expensive than the same size open warehouse.
  • Type of survey. For example, a survey for a renovation of a small portion of the building, affecting a limited number of building materials, will generally cost substantially less than a building demolition survey which will affect all of the building’s components and materials.
  • Square footage. A larger facility will likewise require more time and a larger number of samples, all else being equal.
  • Facility use. If the facility is currently in use, the cost of testing will increase to account for accommodations and protections necessary for the safety and comfort of your occupants. In some cases, such as hospitals, extra care will be required to minimize disruption and ensure safety, which can further increase the cost.
  • Accessibility. If asbestos surveyors have to crawl into tight spaces, remove walls or ceiling materials, climb to high spaces, or use ladders and scaffolding to reach potential asbestos-containing materials, those factors will increase the cost of testing.

It’s hard to know exactly what your cost for an asbestos survey will be without a qualified quotation.


About the Author

Robert B. Greene, PE, PG, CIH, LEED AP has served in the engineering, environmental consulting, construction and remediation arenas for more than 36 years, including president of GLE since 1989. He has managed numerous consulting and contracting projects for public and private sector clients throughout the United States with construction and environmental remediation costs exceeding $100 million.

In 1987, the governor appointed Mr. Greene to the Florida Asbestos Committee, which was responsible for developing state asbestos regulations. He has also served as an expert witness for litigation for environmental and construction related issues.

United States: U.S. EPA Takes Action Under TSCA Identifying Chemicals For Agency Scrutiny

Written by by Lawrence E. Culleen, Arnold & Porter

Prioritization of Chemicals

In its continuing quest to meet regulatory deadlines imposed by the 2016 amendments to the Toxic Substances Control Act (TSCA), the United States Environmental Protection Agency (U.S. EPA) has published a list of 40 chemicals that must be “prioritized” by the end of 2019. The announcement marks the beginning of the Agency’s process for designating the 40 listed chemicals identified as either “high” or “low” priority substances for further the U.S. EPA scrutiny. At the conclusion of the prioritization process, at least 20 of the substances likely will be designated as high priority.

A high priority designation immediately commences the U.S. EPA’s formal “risk evaluation” procedures under the amended statute. The risk evaluation process can lead to “pause preemption” under the terms of the 2016 amendments and new state laws and regulations restricting the manufacture, processing, distribution, and use of a chemical substance undergoing a risk evaluation could not be established until the evaluation process is completed. The U.S. EPA commenced its first 10 risk evaluations as required under the amended law at the close of 2016. The Agency is required to have an additional 20 risk evaluations of high priority substances ongoing by December 22, 2019. If the U.S. EPA’s risk evaluation process concludes that a substance presents an “unreasonable risk” to health or the environment under its “conditions of use,” the Agency must commence a rulemaking to prohibit or limit the use of the substance under Section 6 of TSCA.

The Agency’s announcement of the list of chemicals to undergo prioritization provides the makers and users of the listed substances an important, time limited opportunity to submit relevant information such as the uses, hazards, and exposure for these chemicals. The U.S. EPA has opened a docket for each of the 40 chemicals and the opportunity to submit information for the U.S. EPA’s consideration will close in 90 days (on June 19, 2019). The U.S. EPA will then move to propose the designation of these chemical substances as either high priority or low priority. The statute requires the U.S. EPA to complete the prioritization process, by finalizing its high priority and low priority designations, within the next nine to 12 months.

The list of 20 substances to be reviewed as high priority candidates consists entirely of substances previously identified by U.S. EPA in 2014 as “Work Plan” chemicals. Thus, the list contains few chemicals that should be considered complete “surprises.” However, the inclusion of formaldehyde may raise concerns in certain quarters given the scrutiny that has been given to the U.S. EPA’s previous struggles with assessing the potential effects of formaldehyde. The Agency has attempted to address these concerns by stating “Moving forward evaluating formaldehyde under the TSCA program does not mean that the formaldehyde work done under IRIS will be lost. In fact, the work done for IRIS will inform the TSCA process. By using our TSCA authority EPA will be able to take regulatory steps; IRIS does not have this authority.” Also included in the listing are several chlorinated solvents, phthalates, flame retardants, a fragrance additive, and a polymer pre-curser:

  • p-Dichlorobenzene
  • 1,2-Dichloroethane
  • trans-1,2- Dichloroethylene
  • o-Dichlorobenzene
  • 1,1,2-Trichloroethane
  • 1,2-Dichloropropane
  • 1,1-Dichloroethane
  • Dibutyl phthalate (DBP) (1,2-Benzene- dicarboxylic acid, 1,2- dibutyl ester)
  • Butyl benzyl phthalate (BBP) – 1,2-Benzene- dicarboxylic acid, 1- butyl 2(phenylmethyl) ester
  • Di-ethylhexyl phthalate (DEHP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis(2-ethylhexyl) ester)
  • Di-isobutyl phthalate (DIBP) – (1,2-Benzene- dicarboxylic acid, 1,2- bis-(2methylpropyl) ester)
  • Dicyclohexyl phthalate
  • 4,4′-(1-Methylethylidene)bis[2, 6-dibromophenol] (TBBPA)
  • Tris(2-chloroethyl) phosphate (TCEP)
  • Phosphoric acid, triphenyl ester (TPP)
  • Ethylene dibromide
  • 1,3-Butadiene
  • 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8-hexamethylcyclopenta [g]-2-benzopyran (HHCB)
  • Formaldehyde
  • Phthalic anhydride

The U.S. EPA has signaled that it has received a manufacturer request for a EPA to undertake a risk evaluation of two additional phthalates which, if administrative requirements for such request have been met, the Agency would announce publicly in the very near term.

The 20 low priority candidate chemicals were selected from the U.S. EPA’s “Safer Chemicals Ingredients List”—a list of substances previously evaluated and considered to meet the U.S. EPA’s “Safer Choice” criteria for use in certain common product categories, such as cleaning products.

Other Recent and Impending U.S. EPA Actions Under TSCA

Given the numerous deadlines that are looming under the amendments to TSCA, it is critical that chemical manufacturers and processors of chemicals and formulations remain aware of the recent and upcoming actions under TSCA that can significantly impact their businesses. The following provides a short list of important actions of which to be aware.

Active/Inactive TSCA Inventory Designations. EPA released an updated version of the TSCA Inventory in February 2019. The Inventory is available for download here. This version of the Inventory includes chemical substances reported by manufacturers and processors by their respective reporting deadlines in 2018. The updated TSCA Inventory (confidential and non-confidential versions) includes 40,655 “active” chemical substances and 45,573 “inactive” chemical substances. Once the current 90-day “transition period” has concluded, it will be unlawful to manufacture, import or process in the US any substance that is listed as “inactive” without first providing notice to the U.S. EPA. Thus, prior to the expiration of the “transition period” on May 20, 2019, manufacturers and processors of chemical substances that are not listed as active on the February 2019 TSCA Inventory must take steps to activate the substance by filing a Notice of Activity (NOA Form B) for any chemical substance that they currently are manufacturing or processing, or anticipate manufacturing or processing within 90 days of submission.

Final TSCA Section 6(a) for Methylene Chloride in Paint and Coating Removers. EPA has released its long-awaited TSCA Section 6(a) rule restricting the use of methylene chloride in paint and coating removers. The final rule prohibits the manufacture, processing, and distribution of methylene chloride in paint removers for consumer use. The rule prohibits the sale of methylene chloride-containing paint and coating removers at retail establishments with any consumer sales (including e-commerce sales). The U.S. EPA declined to finalize its determination that the commercial use of methylene chloride-containing paint and coating removers presents an unreasonable risk. Therefore, distributors to commercial users, industrial users, and other businesses will continue to be permitted to distribute methylene chloride-containing paint and coating removers. However, given recent efforts by store-front retailers to “deselect” such products for consumer sales, it remains unclear how distributions to commercial users can or will occur.

The U.S. EPA simultaneously released an advanced notice of proposed rulemaking related to a potential certification program for commercial uses of methylene chloride-containing paint and coating removers. The U.S. EPA has similar programs in place for certain pesticides and refrigerants, and the United Kingdom currently has in place a program to certify commercial users of methylene chloride-containing paint and coating removers. The U.S. EPA is seeking comment on whether a certification program is the appropriate tool to address any potential risks that could be posed by the commercial use of methylene chloride-containing paint and coating removers.

Upcoming Draft Risk Evaluations. The U.S. EPA is expected to publish within days or weeks the highly anticipated draft Risk Evaluations for the remaining 9 of the 10 initial substances to undergo TSCA Risk Evaluations under the amended law and which have been under review since December 2016. The Agency will accept comments on the drafts for a limited period.

Proposed Rules for 5 PBT substances. The U.S. EPA is required to issue no later than June 2019 proposed TSCA Section 6 regulations for 5 persistent, bioaccumulative and toxic (PBT) substances that were identified during 2016 as priorities for regulatory action. The Agency must propose expedited rules intended to reduce exposures to the extent practicable.


*Camille Heyboer also contributed to this Advisory.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

About the Author

Lawrence Culleen represents clients on administrative, regulatory, and enforcement matters involving federal agencies such as the U.S. Environmental Protection Agency (EPA), the US Department of Agriculture, the US Food and Drug Administration, and the Consumer Product Safety Commission. Mr. Culleen has broad experience advising clients on US and international regulatory programs that govern commercial and consumer use chemicals, pesticides and antimicrobials, as well as the products of biotechnology and nanoscale materials. Prior to joining the firm, Mr. Culleen held significant positions at EPA serving as a manager in various risk-management programs which oversee pesticides, chemical substances, and biotechnology products.

United States: When Is Property Damage From A Release “Expected Or Intended”? Only After The Owner Learns Of The Spill And Ignores It

Written by Seth JaffeFoley Hoag LLP

Any good trial lawyer will tell you that the law is about telling stories.

Once upon a time, Timothy and Stacy Creamer bought a house.  Only after they closed did they realize that some strategically placed rugs were hiding the evidence that, “up from the ground come a bubblin’ crude.”

Unlike Jed Clampett, rather than finding themselves millionaires, the Creamers found themselves with a million dollar liability – literally.

This being a law story, of course the sellers were bankrupt.  The Creamers thus pursued the sellers’ insurer.  The case ended up in the Appeals Court, which held that the Creamers could pursue their claims under the policy.

The insurer, Arbella, made three arguments in support of its summary judgment motion.  The Court rejected them all.  In order, the Court held that:

  1. The property damage was caused by an occurrence.  Arbella argued that the damage was caused by the sellers’ fraud, not by the original release of oil.  However, as the Court pointed out, the Creamers’ had claims based on Chapter 21E, the Commonwealth’s superfund law.  Since Chapter 21E is a strict liability statute, the Creamers’ damages were caused by the release, not by the sellers’ fraud.  (But see number 3, below!)
  2. The loss occurred during the policy period.  Following precedent, the Court concluded that, so long as the property damage occurred during the policy period, it did not matter that the harm to the claimant did not occur until later.
  3. At least some of the damage was not “expected or intended.”  This is the most significant part of the case.  While preserving Creamers’ claims, the Court split the baby on this one.  It held that the original release was not expected or intended, but that, once the sellers discovered the spill without doing anything about it, any further damage was “expected” by the seller.  The Court thus remanded for a determination by the Superior Court how much of the total property damage was “expected.”

The Creamers will thus get their day in court, but, depending on when the sellers learned of the contamination, their recovery could be significantly limited.  They certainly will not get enough to move to Beverly Hills.  No swimming pools or movie stars for the Creamers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

About the Author

Seth Jaffe is recognized by Chambers USA, The Best Lawyers in America and Massachusetts Super Lawyers as a leading practitioner in environmental compliance and related litigation. He is one of the authors of the Law and the Environment Blog, www.lawandenvironment.com, which provides real-world perspectives on current developments in environmental law and regulation. Seth is a past President of the American College of Environmental Lawyers.

Seth works on a wide range of environmental law issues, representing clients in the permitting/licensing of new facilities and offering ongoing guidance on permitting and enforcement related matters under federal and state Clean Air Acts, Clean Water Acts, RCRA, and TSCA. He also advises on wetlands and waterways regulation. Seth’s clients include electric generating facilities, companies in the printing and chemical industries, and education and health care institutions.

Time To Clean Up: Alberta’s Revamped Remediation Regulation

Written by Sean D. Parker and Stuart W. Chambers, McLennan Ross LLP

In 2018 the Government of Alberta overhauled the Remediation Certificate Regulation, made under the Alberta Environmental Protection and Enhancement Act (“EPEA”). Effective January 1, 2019, the newly titled “Remediation Regulation came into force.

The new Alberta regime for contaminated sites under the Remediation Regulation has two main parts:

1. Deadlines for completing remediation and submitting reports; and

2. Obtaining remediation certificates.

Deadlines for Remediating Contamination and Submitting Reports

One of the fundamental changes to the regulatory regime for contaminated sites is the imposition of a timeline for completing remediation, or submitting a remedial action plan that includes a deadline for clean-up. The obligations for remediation under the revamped regulation are grounded in the general clean-up provisions of EPEA section 112, which impose the duty to remediate a release that “may cause, is causing or has caused an adverse effect”. The Remediation Regulation at section 2.2 adds detail to that general obligation, by requiring a person responsible for a contaminated site to remediate this site “as soon as possible”. Alternatively, if remediation cannot be completed within two years, the person responsible shall “as soon as possible” submit a remedial action plan to the director of Alberta Environment and Parks (“AEP”) for approval. The remedial action plan shall include specified information such as the remedial methods to be used and the deadline for completion. In essence, this provision of the Remediation Regulation requires immediate clean-up, but if that is not feasible within the two-year period (i.e. two remediation seasons), then the obligation becomes a requirement to submit a remedial action plan for AEP’s approval.

The structure of this new regime is intended to provide the person responsible for a contaminated site the opportunity to clean-up the site within a two-year period and then submit all reports, such as a Phase II Environmental Site Assessment and remediation closure report, to AEP once the clean-up work is complete. That is seen to be a more streamlined process where AEP’s involvement is generally limited until the final review.

Alternatively, if the site “cannot be remediated to the satisfaction of the director within a two-year period” (section 2.2 (2)), then the person responsible must follow a different path that involves more oversight by AEP through the process. The first requirement is that the person responsible must submit a Phase II Environmental Site Assessment “as soon as possible” (section 2.2 (1)). The other requirement is that the person responsible must “immediately” submit a remedial action plan that specifies the completion time for the remediation (section 2.2 (2)). Essentially, if the remediation cannot be completed within two field seasons, AEP becomes involved earlier on in the process and has greater oversight over steps such as delineation work and planning of the remediation.

Although there is logic in this general approach – that AEP has more involvement on more complex sites – there is some uncertainty as to how this regime will actually be implemented. For example, it is not clear how the requirement to submit Phase II Environmental Site Assessment “as soon as possible” under section 2.2 (1) will be applied. Likewise, it is not clear how it will be determined that a site “cannot” be remediated within a two-year period, as provided for under section 2.2(2). Further, the remedial obligations are subject to discretion of the AEP director as to how those obligations will be enforced, for example, what information will be required, and timelines for completing a variety of steps. It is understandable and appropriate for a director to have discretion in contaminated site matters, as each site is different and will present its own unique circumstances. However, these obligations are very new and there are no precedents for their application, resulting in a lack of guidance which in turn generates uncertainty for those who may be responsible for a contaminated property. 

Another significant provision with respect to the remedial obligations is the grandfathering clause found in section 2.2(7). Essentially, the Remediation Regulation will only apply to sites reported to AEP on or after January 1, 2019. Sites that were previously reported, will not be subject to the new regime as it is presumed that they would already be engaged in a previous process for dealing with the site. However, as with other aspects of this new regime, the grandfathering clause is also subject to the discretion of the director. In other words, the new requirements for clean-up within two years, or submission of other reports and plans for completing the remediation work, may nevertheless be required by the director for a previously reported site. Again, while it may be appropriate for the director to impose those requirements for certain sites, it is unclear at this time on what basis the director will or should exercise discretion in this regard. 

Remediation Certificates and Tier 2 Compliance Letter

The second main part of the refurbished Remediation Regulation relates to the revamping of the regime for issuing remediation certificates, and a newly created Tier 2 compliance letter. Under the new regime, there are two types of remediation certificates available: (1) a “site-based” remediation certificate, and (2) a “limited” remediation certificate (section 4). The general concept of a remediation certificate is that it closes regulatory liability for the party that has obtained it. This means a party that obtains a remediation certificate will not be subject to future regulatory requirements from AEP in relation to the substances or areas covered under the remediation certificate. However, additional contamination discovered at a later date that is not covered under the remediation certificate will not enjoy this same protection and could be subject to further regulatory action. 

The site-based remediation certificate provides the highest degree of regulatory protection. This type of certificate applies to the entire area that has been impacted by the activity. Specific requirements for obtaining a remediation certificate are set out in section 4 of the Remediation Regulation. Essentially, a site-based remediation certificate can only be issued where all of the contamination has been identified and cleaned up on the site and on other affected surrounding lands. There is an exception where a site-based remediation certificate could be issued for the specified parcel of land and where contamination remains off-site, provided that the remaining off-site impacts are subject to a risk management plan that has been approved by the director. It is important to recognize that the off-site areas under a risk management plan would not be captured under the remediation certificate, and therefore would not enjoy the regulatory closure that those certificates provide pursuant to section 117 of the Environmental Protection and Enhancement Act

The other type of remediation certificate is called a “limited” remediation certificate. These certificates do not apply to the entire area impacted by the activity, as with a site-based remediation certificate, but rather apply to the limited area that has been remediated to the satisfaction of the AEP director. These limited remediation certificates appear to be more suitable for a discrete type of event such as a known release on a known part of the site. To obtain a limited remediation certificate, the area of impact would need to be assessed and fully remediated to the satisfaction of the director. The certificate would apply only to that limited area, and the contaminants of concern that were identified and remediated. This is a less rigorous process than for the site-based remediation certificate and therefore provides a more restricted degree of regulatory protection. Site-based remediation certificates provide regulatory closure for an entire parcel of land, however, they require full assessment of any impacts on that site and then complete remediation. A limited remediation certificate, on the other hand, would not require a full assessment of the entire site, but rather only of the specific area for which the certificate is sought, and likewise would only provide regulatory closure for that specific area that has been assessed and remediated. 

The third type of document provide for under the new Remediation Regulation is called a Tier 2 compliance letter. This document is intended to provide some level of assurance or comfort to parties that were not able to obtain either a site-based or limited remediation certificate. In order to obtain any form of remediation certificate, some remediation must have actually been completed. If no remediation is conducted, a remediation certificate cannot be issued. The Tier 2 compliance letter was developed to account for situations where the remediation guidelines can be adjusted based on site specific conditions under Alberta’s Tier 2 process, with the effect that human health and the environment are still protected, but no remediation would actually be required. 

While the Tier 2 compliance letter may appear to be a solution where a remediation certificate is not available, its practical value appears to be limited as it does not provide regulatory closure like a remediation certificate would. The Tier 2 compliance letter is solely a creation of the Remediation Regulation, and is not grounded in section 117 of the enabling statute, EPEA, which provides certain statutory guarantees. The effect of this distinction is that an area or site for which a remediation certificate has been issued is not subject to further regulatory action by AEP, for example, requiring further remediation if the guidelines change. Conversely, an area that is the subject of a Tier 2 compliance letter does enjoy the same protections and further regulatory action could be required at a later date, for example, further remediation if the guidelines do change. It is uncertain what the practical benefit of a Tier 2 compliance letter is given the apparently limited degree of protection that it affords.

Conclusions and Further Thoughts

The Remediation Regulation that came into force on January 1, 2019 sets out a revised regulatory regime that will be applied to contaminated sites in Alberta going forward. The new regime imposes additional requirements for assessment and reporting to AEP, as well as new timelines for doing so. However, given the significant discretion afforded to directors at AEP and the lack of precedents for how decisions will be made under this new regime, there is significant uncertainty as to how the Remediation Regulation will be applied, and how the directors’ discretion will be exercised over a variety of matters. Further, it appears that some of these new requirements will involve an enhanced degree of interaction with AEP in terms of reviewing site assessments, remedial action plans, risk assessments, risk management plans and other documents. It is unclear how AEP will handle this potential increased workload so as to ensure the new regime operates in an efficient and effective manner, rather than creating backlogs and other unintended consequences. 

The new site-based remediation certificate provides more comprehensive regulatory closure as compared to the limited remediation certificate. However, the higher degree of protection for the site-based certificate comes with greater assessment and remedial obligations. Depending on the unique circumstances of each site and intended purpose for obtaining a remediation certificate, consideration should be given as to what degree of regulatory closure is reasonably required balanced against the amount of work and cost associated with each type. Further, consideration should be given to the amount of time that may be required for processing of a remediation certificate application. Often, remediation certificates are sought to limit liability and facilitate some type of commercial transaction, such as the sale of land. However, the current timeline for obtaining a remediation certificate could be in excess of three years, which could wipe out any practical benefit depending on the commercial conditions of the transaction. In order to have an effective remediation certificate regime, the process will need to be reasonably responsive and operate on timelines that correspond to commercial realities. 

While the concept of a Tier 2 compliance letter appears to be sound and may be appropriate in certain circumstances, its practical utility is questionable given that the regulator could still come back at a future date and require a further action. To obtain the protections afforded by a remediation certificate, a proponent may consider conducting at least some remediation in order to be eligible for remediation certificate. However, the degree of remediation required in order to qualify for the remediation certificate program is an another currently open question. 

Overall, the Remediation Regulation sets out a new regime for managing contaminated sites in Alberta, building upon the existing remedial obligations embodied in section 112 of the Environmental Protection and Enhancement Act. Given the newness of this regime and the significant discretion afforded to AEP decision-makers, there is uncertainty as to how the regulation will actually be implemented.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.


About the Authors

Sean D. Parker is the Co-Chair of the Energy, Environmental & Regulatory Practice Group at McLennan Ross and is regularly engaged to provide legal advice on a variety of environmental management and engineering projects, and commercial transactions. Sean acts for a wide variety of clients including: landowners, large industry players, municipalities, government departments and administrative tribunals.

In his commercial litigation practice, Sean handles a variety of matters including contaminated site litigation, landlord-tenant disputes, property damage claims and others.

The time Sean spent in the environmental consulting field becoming a lawyer provides him with a valuable technical foundation to support his practice in environmental, regulatory and natural resource law.

Stuart Chambers is a partner at McLennan Ross practicing in the areas of energy, environmental & regulatory and commercial litigation, focusing on environmental and occupational health and safety regulatory law, and class actions.

Stuart has extensive experience advising oilsands and other industrial operators in relation to environmental and health and safety law issues, in particular in preparation for and responding to regulatory investigations and prosecutions.

Stuart has a wide range of experience in commercial litigation matters, including contractual disputes, recovery of funds and class actions.

While Stuart has extensive experience in complex multiparty litigation, he is equally comfortable in finding efficient solutions for smaller disputes. He utilizes alternative dispute resolution methods including mediation and arbitration to resolve issues and has significant experience acting as both plaintiff and defendant counsel in class actions in Alberta and in British Columbia.

Stuart advises organizations on contract interpretation, drafting and policy issues and has advised government and administrative tribunals on policy and adjudicative matters.

British Columbia intends to improve waste soil relocation regulations

by Max Collett, Norton Rose Fulbright

The Ministry of Environment and Climate Change Strategy in British Columbia intends to bring forward legislation to better regulate excess soil relocation, including waste soils, and reduce deposit of soils in landfills.

The Ministry of Environment and Climate Change Strategy has for years been aware that certain participants in the soil and waste transport and relocation industry have not been complying with the current regulations, which are reliant on source site and recipient site owners entering into a Contaminated Soil Relocation Agreement (CSRA) with the ministry.

In January 2019 the ministry issued a final policy recommendation with a series of proposed substantive amendments to the soil relocation regulations and legislation. The following are notable features of the new regulations:

  • Distinguish between soils and waste soils, and regulate the relocation of waste soils. Waste soil is to refer to soil that possesses a substance concentration greater than the lowest applicable industrial land use standard
  • Remove the requirement for a CSRA (a positive development as execution of these agreements was time consuming)
  • Introduce notification and certification requirements:
    • require that the applicant deliver advance notification to local governments as well as “indigenous groups” in the area of both source and receiving sites. (To date, the ministry has not given any indication how an applicant will be able to identify the applicable indigenous groups, which is not always obvious in areas of overlapping claims and interests)
    • require that the applicant complete chemical characterization and vapour assessments for certain waste soils and obtain certification by approved professionals. Certifications will be subject to random audits. (The introduction of approved professionals and audit verification should be a positive development and enable applicants to better control the soil relocation process and associated project scheduling. This process will be similar to that undertaken for independent remediation of contaminated sites)
  • Amend the Environmental Management Act to provide for administrative monetary penalties if soil relocation requirements are not met
  • Potentially add new requirements for landfills and high-volume receiving sites.

The ministry intends to seek government approval for these amendments in 2019. We will provide a further update once it is confirmed whether the province approves the recommendations and tables specific legislative and regulatory amendments for approval.


This article was published with permission of the author. It was first posted on the Norton Rose Fulbright website.

About the Author

Max Collett provides quality, timely and practical advice to public and private sector clients on all legal matters pertaining to complex commercial real estate development and environmental law. He assists developers, First Nations economic development companies, governmental agencies and health authorities, amongst others, to structure the ownership of projects, and acquire, finance, construct, operate and sell institutional, industrial, commercial and residential developments. He has extensive experience with legal matters pertaining to the management or redevelopment of contaminated, brownfield sites. Mr. Collett is counsel on a diverse range of projects, from complex mixed-use strata developments, complex commercial developments, health care facilities to joint venture developments on First Nations lands. He regularly assists on institutional projects undertaken pursuant to public-private partnerships. Mr. Collett also advises commercial and industrial clients on all aspects of regulatory compliance with environmental laws.