Who is Charge of Harbour Clean-ups in Ontario?

As reported by the CBC, Environment and Climate Change Canada (ECCC) does not consider itself as the lead for the clean-up of Hamilton Harbour or Thunder Bay harbour.  ECCC says, while it is leading an ongoing harbour cleanup in Hamilton, it’s not a role the federal agency usually assumes.

That comes as proponents of cleaning up historical pollution in the harbour in Thunder Bay, Ont., try and sort out who is responsible for spearheading similar efforts in the northwestern Ontario city.

“If your question is, does it need a champion? It absolutely does,” Hamilton Mayor Fred Eisenberger said of the importance that an organization with jurisdiction over a polluted site push for a cleanup. “It needs one organization to keep pushing it along.”

“If it continues to be work that is just secondary work for someone off the corner of their desk, then it’s going to be a long, hard, arduous process.”

Efforts to clean up historical industrial pollution at the Randle Reef site in Hamilton’s harbour date back at least 15 years, said Eisenberger, who also used to be the chair of the board for the Hamilton Port Authority.  For years, he said, the port effectively served the lead agency role, coordinating local stakeholders and senior levels of government to move the project forward.

Environment Canada took the reins well into the project’s lifespan, according to Eisenberger and a spokesperson with the federal agency, and only after the involvement of the Hamilton port — who owns the harbour bed at Randle Reef.

In Thunder Bay, determining who should be that advocate has been difficult; the water lots where 400,000 cubic metres of mercury-contaminated pulp fibre sit in the harbour’s north end are owned by Transport Canada but administered by the Thunder Bay Port Authority.

Transport Canada has told CBC News spearheading a cleanup is up to the port, while port officials say they’ve been told by Transport Canada to advise on — not lead — remediation efforts.  The port has pointed to Environment Canada as the most appropriate lead agency, citing its role in Hamilton.

Approximate Area of Contaminated Sediment in Thunder Bay Harbour

‘No standard model’

Just because Environment Canada takes a leadership role in one project doesn’t necessarily mean it will in all cases, a spokesperson with the agency said.

“There really is no standard model for remediating contaminated sites other than that governments try to apply, where possible, the polluter-pay principle,” Jon Gee, Environment Canada’s manager of the Great Lakes area of concern wrote in an email to CBC News.

In Thunder Bay, the industrial companies largely responsible for the legacy pollution no longer exist.

Environment Canada’s lead role in Hamilton was the result of “a long negotiation between the Government of Canada and the other organizations,” Gee wrote. “It is not a role that the Department usually undertakes.”

The jurisdictional confusion in Thunder Bay has caught the attention of at least one legislator in the area.  Officials with the office of Thunder Bay-Superior North MP Patty Hajdu said she has met with members of the Thunder Bay Remedial Action Plan’s public advisory committee and that she will also discuss the matter with the federal ministers of transport and the environment.

Construction of the Randle Reef cleanup project in Hamilton Harbour

Gee said Environment Canada “remains committed” to working with government and other stakeholders on the project.

In Hamilton’s case, funding for the $139 million Randle Reef project is being split among the federal and provincial governments, as well as Hamilton, Burlington, the Hamilton Port Authority and Stelco, a steel company based in Hamilton. It’s expected to be complete in 2022.

In Thunder Bay, a number of remediation options were presented in 2014 to the public, with feedback going into a report.  Environment Canada has said no preferred option was identified because there is no lead agency on the project. Cost estimates at the time ranged anywhere from $30 million to $90 million.

Status of Hamilton Harbour Clean-up

As reported in the Hamilton Spectator, Hamilton Harbour still has an undetermined number of years to go before it can meet water quality and ecological standards acceptable to the International Joint Commission.  The Canada/U.S. bilateral agency that oversees cross-border water issues said in a statement this week that — after three decades — it is growing restless about the slow pace of Great Lakes water improvements on both sides of the border.

“The IJC identifies specific gaps in achieving the human health objectives … for drinkable, swimmable and fishable waters, and recommends that the governments set an accelerated and fixed period of time for effectively achieving zero discharge of inadequately treated or untreated sewage into the Great Lakes,” the agency says.

More than 30 years ago, the commission deemed 43 “areas of concern” on the Great Lakes — including Hamilton Harbour — and only seven sites have so far been delisted, three of which are in Canada.

Two big projects currently underway in Hamilton harbour are expected to lead to major improvements in its water quality. The first is the ongoing work encapsulating the highly toxic coal tar blob at Randle Reef. The Randle Reef Contaminated Sediment Remediation Project is scheduled for completion in 2022 at a total cost of $138.9 million spread out over three phases.

The other ongoing big-ticket item is Woodward Avenue Wastewater Treatment Plant, which is in the second year of a five-year, $340-million upgrade that will raise treatment to a modern tertiary level. This is expected to dramatically reduce discharges into the bay with most notably a reduction of 65,000 kilograms of phosphorus per year.

Status of Thunder Bay Harbour Clean-up

As reported in TB News Watch, the recommendations in a clean-up report of mercury in Thunder Bay, Ontario harbour have yet to be acted upon.  It has been more than three years since a consultant’s report identified options for the management of 400,000 cubic metres (14 million cubic feet) of mercury-contaminated sediment.

Thunder Bay is located at the northwest corner of Lake Superior and has a population of approximately 110,000.

The source of the mercury in the sediment was industrial activity along Thunder Bay’s north harbour for over 90 years including pulp and paper mill operations.  The sediment is contaminated with mercury in concentrations that range from 2 to 11 ppm at the surface of the sediment to 21 ppm at depth and ranging in thickness from 40 to 380 centimeters and covering an area of about 22 hectares (54 acres).

The preferred solution in the consultant’s report was to dredge the sediment and transfer it to the Mission Bay Confined Disposal Facility (CDF) at the harbour’s south end.  That came with an estimated cost of $40 million to $50 million, and was considered the best choice based on factors such as environmental effectiveness and cost.  The consultants also looked at other options, including building a new containment structure on the shoreline adjacent to the former Superior Fine Papers mill.

U.S. EPA Sees New Challenges Ahead for Superfund

by  Loren R. Dunn and Eric L. Klein, Beveridge & Diamond PC

The U.S. EPA released a four-year “strategic plan” in mid-February that continues to emphasize the Superfund program as one of Administrator Scott Pruitt’s top priorities.  While it has been clear since last summer’s Superfund Task Force report that the agency’s new leadership wants to accelerate Superfund site cleanups, the agency’s new strategic plan reveals for the first time that the U.S. EPA also sees emerging challenges ahead for Superfund.

“A number of factors may delay cleanup timelines,” the agency wrote in its strategy document.  These factors include the “discovery of new pathways and emerging contaminants” such as vapor intrusion and per- and polyfluoroalkyl substances (PFAS), and new science such as “new toxicity information or a new analytical method.”

Photo Credit: Michael Paulsen / Houston Chronicle

According to the strategic plan, the emergence of this kind of new information can reopen previously settled remedy determinations – and the Superfund sites that still remain on the National Priorities List (NPL) already tend to be the harder cases, with more difficult patterns of contamination and more complex remedies.  The U.S. EPA flagged in particular its waste management and chemical facility risk programs, where “rapidly changing technology, emerging new waste streams, and aging infrastructure present challenges[.]”

It remains to be seen whether the agency’s cautions in the Superfund section of its strategy document represent a meaningful shift in the agency’s frequently-stated intention to reinvigorate the Superfund program.  Early in his tenure, Mr. Pruitt charged his Superfund Task Force with generating a series of recommendations centered around Mr. Pruitt’s goals for Superfund: faster cleanups, the encouragement of cleanup and remediation investments by PRPs and private investors, and a process centered on stakeholder engagement and community revitalization.  In December 2017, in response to one of the Task Force’s recommendations, the agency released a list of 21 high-priority NPL sites that Mr. Pruitt targeted for “immediate and intense attention,” according to an U.S. EPA press release.  The cautionary notes in this week’s strategic plan are a subtle shift in tone for the U.S. EPA.

At the same time, the document also sets forth a plan for improving the consistency and certainty of EPA’s enforcement activities in the regulated community.  It remains to be seen how U.S. EPA intends to achieve consistency while being responsive to state and tribal interests.

These goals, of course, will depend on the details of implementation, which are not set forth in the strategic plan.  And such details will depend on the agency’s budget, which remains in flux for 2019 and beyond.  For example, U.S. EPA’s proposed budget for fiscal year 2019 sought a roughly $327 million cut in the Superfund program, but the funds were added back into the budget proposal as part of last-minute budget agreement reached in Congress last week, securing the program’s funding in the short-term.   Last year, the administration proposed a 30% cut in the agency’s funding  but Congress balked and eventually approved a budget that cut roughly 1%.

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About the Authors

Loren R. Dunn represents regional and national companies at locations throughout the country in environmental regulation and litigation issues.  Loren’s environmental projects have involved hazardous waste and large multi-party toxics cleanup sites, including marine and fresh water sediment sites, landfills, and natural resource damages claims. He has also conducted extensive work obtaining permits for key facility operations. He has particularly deep knowledge of the following industries: manufactured gas facilities, regulated utilities, smelters and metals refineries, pesticide sites, and large area contamination sites.

Eric L. Klein is an environmental civil litigator and regulatory counselor in the Washington, D.C. office of Beveridge & Diamond, P.C.  He has handled cases in state and federal courts throughout the United States, litigating a variety of complex civil and commercial matters before juries, trial and appellate courts, arbitrators and administrative tribunals.  Mr. Klein frequently litigates both statutory and common law claims, and specializes in challenging and defending technical experts in the litigation of complex environmental torts.

This article was first published on the Beveridge & Diamond PC website.

U.S. EPA Releases Annual Enforcement Statistics

The U.S. Environmental Protection Agency (U.S. EPA) recently released its annual environmental enforcement report.  In its report, which covers prosecutions for the 2016-2017 fiscal year (ending September 30th 2017), the U.S. EPA states that nearly $5 billion (U.S.) had been levied out in criminal fines and civil penalties.  It also stated that enforcement actions have also led to the commitment by companies to clean-up contaminated sites across the U.S.

In contrast, Canada does not issue an annual enforcement report.  However, the total sum of announced penalties by the Canadian federal government totaled approximately $15 million in 2017.

The bulk of the monetary fines levied in the U.S. was from the settlement with Volkswagen.  The company agreed to pay $1.45 billion (U.S.) in civil penalties because of its use of illegal software to foil emissions testing.

The U.S. EPA was alerted by an environmental activist group, The International Council on Clean Transportation in 2013 that on-road emission tests of Volkswagen vehicles were dramatically different than off-road test in garages.  The finding led U.S. EPA officials to discover that Volkswagen had installed software in vehicles to shut off the emissions control system during driving and only turned it on during off-road testing.

A worker tests a red 2016 Volkswagen AG Golf TDI emissions certification vehicle on Sept. 22, 2015. (Photo Credit: Patrick T. Fallon/Bloomberg News)

The $1.45 billion fine levied against Volkswagen still dwarfs the $6 billion penalty paid by BP for the 2010 oil spill from Horizon One oil rig in the Gulf of Mexico.

In contrast, the largest fine ever meted out in Canada was $3.5 million (Cdn.) to Prairie Mines & Royalty ULC in 2017 wastewater spill at a mine.

Included in the report, was the note of the legal commitment made by companies clean-up sites they had contaminated.  The estimated cost of that clean-ups is $1.2 billion (U.S.).

With respect to jail time for environmental criminals, the U.S. EPA prosecuted individuals and U.S. courts meted out a total of 150 years in jail for persons found guilty of environmental offences.  In contrast, the total jail time Canadian courts meted out for environmental offenders was less than one year.

Critics of the U.S. EPA note that the high level of enforcement actions may not continue.  Critics point to an analysis by the New York Times in late 2017 that concluded that the U.S. EPA under its latest head, Scott Pruitt, has initiated about one-third fewer civil enforcement cases than the number under the previous U.S. EPA director.

Avoiding Common Phase Two ESA Errors – Part 2

By: Bill Leedham, P.Geo, QP, CESA.

Last month I discussed some common mistakes I have encountered in reviewing Phase Two Environmental Site Assessment reports, specifically in the initial planning stage, now it’s time to turn our attention to recognizing and reducing errors during the Phase Two ESA field work.

Sometimes, deficiencies that occur in the planning stages of a Phase Two ESA transfer into errors in field procedures.  This can be caused by poor communication between the project manager and field staff (i.e. the PM neglects to inform field personnel of specific project requirements, and/or field staff forget to include important sampling media or potential contaminants of concern).  Full, two-way communication is vital to successful completion of any Phase Two ESA. It’s not enough for senior staff to just assume that less experienced team members understand all the complexities of the sampling plan; nor is it acceptable for a project manager to fail to provide adequate guidance and answers to questions from the field.  I have always thought it was important for junior staff to ‘know what they don’t know’ and encouraged them to ask questions at any time.  When project managers are ‘too busy’ to answer questions and simply tell their staff to ‘figure it out themselves’ everyone loses.

Photo Credit: All Phase Environmental

Despite good intentions and full communication, deficiencies can still occur.  Some are the result of inexperience compounded by poor judgement; some are due to budget limitations or staffing shortfalls; and some are caused through poor sampling protocols.  Some of the more common field sampling errors can include: failure to sample all relevant media at a Site (e.g. no sediment or surface water sampling is undertaken despite the presence of a potentially impacted water body); failure to consider all potential contaminants of concern (e.g. sampling only for petroleum hydrocarbons at a fuel storage site and not volatile parameters like BTEX); failure to sample in locations where contaminants are most likely to occur or be detected (e.g. sampling only surficial or near surface soils, and not at the invert of a buried fuel tank or oil interceptor, or failure to sample groundwater in a potable groundwater situation); and lack of field or lab filtering of groundwater samples for metals analysis (failure to remove sediment prior to sample preservation can skew the results for metals analysis).

Inadequate sampling and decontamination procedures can also bias lab results, leading to inaccurate or faulty conclusions.  When samples are disturbed (such as grab samples of soil collected directly from a drill augur that has travelled through an impacted zone) or collected improperly (e.g. compositing soil samples for analysis of volatile components); the test results can be biased and may not be representative of actual site conditions.  Similarly, failure to properly clean drilling and sampling equipment can result in apparent impacts that are actually the result of cross contamination between sampling points. Consider using dedicated or disposable sampling equipment to reduce this potential. A suitable quality control program should also be implemented, including sufficient duplicate samples, trip blanks, etc. for QA/QC purposes, and inclusion of equipment rinsate blanks to confirm adequate decontamination.

These are only a few of the more common field sampling errors I have come across. In an upcoming article I will discuss other practical methods to reduce errors in Phase Two data interpretation and reporting.

About the Author

Bill Leedham is the Head Instructor and Course Developer for the Associated Environmental Site Assessors of Canada (AESAC); and the founder and President of Down 2 Earth Environmental Services Inc. You can contact Bill at info@down2earthenvironmental.ca

 

This article first appeared in AESAC newsletter.

TRC enters Canadian Oil & Gas Market and expands existing Infrastructure Practice

TRC Companies Inc. (a U.S. based engineering, environmental consulting and construction-management services) recently announced that it will expand its footprint in Canada in 2018 to take advantage of a rebounding oil and gas market and the country’s increased infrastructure spending.

“The time is right for us to grow our business in Canada and bring more of our unique services and solutions to clients there,” said CEO Chris Vincze.  “We already have a strong infrastructure practice in Canada, and we plan to build upon our existing relationships with a number of Canadian clients for whom we’ve done work in the United States.”

Photo Credit: Transcanada

TRC has hired Michael Koski to spearhead its expansion in Canada.  He will serve as senior vice president of Canadian operations.

“Mike brings a unique blend of engineering, construction, environmental and regulatory skills to the table and will quickly help us scale up operations,” said Ed Wiegele, president of TRC’s oil and gas sector. “Plus he has extensive experience in the Canadian oil and gas market and excellent command of Canada’s regulatory environment.”

Koski, who grew up in Thunder Bay, Ontario, has spent three decades working in the oil and gas sector and has considerable experience with project management, engineering and environmental issues. He is an expert in pipeline routing and has provided expert testimony on the subject, served on technical panels and presented at industry conferences. He has also authored several manuals on the topic for government and industry.

“I look forward to expanding TRC’s services into Canada across all business sectors,” said Koski.  “Companies in Canada are clamoring for the integrated approach, advanced technologies and laser-like focus on client needs that TRC’s is known throughout the industry for.”

TRC already has strong relationships with a number of large Canadian firms, including TransCanada, Enbridge, Kinder Morgan and Canadian National Railway. It has also done a number of infrastructure projects across the country, including locomotive fueling facilities, power distribution system upgrades, capital improvement planning projects and wastewater treatment plants.

About TRC

TRC is a global engineering, environmental consulting and construction management firm that provides integrated services to the energy, environmental, infrastructure and pipeline services markets. TRC serves a broad range of commercial, industrial and government clients, implementing complex projects from initial concept to delivery and operation.

Canadian Government Introduces Amendments to Fisheries Act: Initial Thoughts

Article by  Selina Lee-AndersenStephanie Axmann,and Paul R. Cassidy

McCarthy Tétrault LLP

On February 6, 2018, the federal government announced amendments to the Fisheries Act (the “Act”) aimed at restoring what it describes as ‘lost protections” and “incorporating modern safeguards” to protect fish and fish habitat. The Act, regarded as one of Canada’s principal environmental laws as it is the primary federal statute governing fisheries resources in Canada, includes important provisions for conserving and protecting fish and fish habitat that affect a variety of industries.

The proposed amendments result from a process launched by the government in October 2016, when the Minister of Fisheries and Oceans asked the House of Commons Standing Committee on Fisheries and Oceans (the “Committee”) to review changes to the Act made in 2012 by the previous government of then Prime Minister Stephen Harper. The Report of the Fisheries and Oceans Committee on the Fisheries Act review, entitled “Review of Changes Made in 2012 to the Fisheries Act: Enhancing The Protection of Fish And Fish Habitat and the Management Of Canadian Fisheries” (the “Fisheries Report”) was released on February 24, 2017 and made 32 recommendations to the government. In June 2017, the government released its Environmental and Regulatory Reviews Discussion Paper, which outlined potential reforms and proposed, among other things, that “lost protections” be restored in the Act.

A Quick Summary

Under the proposed amendments, the scope of the Act will be increased to cover all fish, rather than commercial, Indigenous and recreational fisheries (as currently set out in the Act). Unsurprisingly, the government proposes to reintroduce the pre-2012 prohibition on the “harmful alteration, disruption or destruction of fish habitat“, also known as HADD. This means that the concept of “serious harm to fish” under the current Act will be removed. By reintroducing the HADD language, the federal government is also reintroducing old uncertainty in the case law about what precisely constitutes a HADD; whether this will be addressed in guidance from Fisheries and Oceans Canada (DFO) remains to be seen.

Salmon Spawning (Photo Credit: D. Herasimtschuk)

The proposed amendments also include a new requirement to consider cumulative effects, along with increased regulatory powers to amend, suspend, or cancel authorizations. In support of reconciliation efforts, the proposed amendments also provide opportunities to increase the role of Indigenous groups in decision-making under the Act and in managing fisheries and fish habitat.

It does not appear that the pollution provisions in section 36 (prohibiting the deposit of deleterious substances) of the Act will be changed, even though they have long created a scientifically questionable prohibition on the deposit of any substances deemed to be deleterious without regard to their quantity or the actual receiving environment.

A Closer Look

A more detailed look at the proposed amendments is set out below and will be expanded upon in future blogs. From a policy perspective, the proposed amendments are designed to achieve the following objectives:

  • restore lost protections by returning to comprehensive protection against harming all fish and fish habitat;
  • strengthen the role of Indigenous peoples in project reviews, monitoring and policy development;
  • recognize that decisions can be guided by principles of sustainability, precaution and ecosystem management;
  • promote restoration of degraded habitat and rebuilding of depleted fish stocks;
  • allow for the better management of large and small projects impacting fish and fish habitat through a new permitting framework and codes of practice;
  • create full transparency for projects with a public registry;
  • create new fisheries management tools to enhance the protection of fish and ecosystems;
  • strengthen the long-term protection of marine refuges for biodiversity;
  • help ensure that the economic benefits of fishing remain with the licence holders and their community by providing clear ability to enshrine current inshore fisheries policies into regulations; and
  • clarify and modernize enforcement powers to address emerging fisheries issues and to align with current provisions in other legislation.

Within the context of resource development, the following proposed amendments will likely have the greatest impacts on the design, construction and operation of projects going forward:

  • Protecting Fish and Fish Habitat: The federal government is proposing the restoration of protections for fish and fish habitat that were lost with changes in 2012. In particular, it is proposing that all fish and fish habitats be protected, and that the previous prohibition against “harmful alteration, disruption or destruction of fish habitat” be restored. In addition, the federal government is proposing to restore a prohibition against causing “the death of fish by means other than fishing” and to introduce a new requirement to make information on project decisions public through an online registry.
  • Better Management of Projects: The federal government is proposing the development of regulations that clearly define which projects would always require ministerial permits before a project can begin. In particular, it is proposing that projects that would always require ministerial permits be called designated projects, which would be identified based on their potential impact on fish and fish habitat. These are expected to be larger-scale projects. Currently, projects requiring authorization under the Fisheries Actare determined on a project-by-project basis. DFO surmises that the concept of a designated project would provide greater certainty for proponents around process and timelines. DFO’s current practice of issuing letters of advice and ministerial authorizations will continue for projects that are not listed as designated projects. In addition, the federal government is proposing the establishment of new authorities to support the development of codes of practice, which will serve as formal guidance documents for small, routine projects such that, if followed, permits or authorizations are not needed. The actual value of such codes of practice has been the subject of uneven experience in other environmental legislation. However, the codes of practice should, it is anticipated, provide advice to project proponents on how to avoid impacts on fish and fish habitat, and ensure compliance with the Act.
  • Restoring Habitat and Rebuilding Fish Stocks: In order to create more stable and resilient aquatic ecosystems and support the sustainability of fish stocks, the federal government is proposing that DFO be required to consider whether proposed development projects give priority to the restoration of degraded fish habitats. In addition, the federal government is proposing to introduce a requirement to create and publish habitat restoration plans on a public registry after designating an area as ecologically significant where habitat restoration is needed. The Minister will also be given the ability to create regulations related to the restoration of fish habitat and the rebuilding of fish stocks.
  • Reconciliation with Indigenous Peoples: The federal government has stated that proposed changes to the Fisheries Act will help to advance reconciliation with Indigenous peoples by, among other things: (i) requiring consideration of traditional knowledge for habitat decisions and adverse effects on the rights of Indigenous peoples when making decisions under the Act; (ii) enabling agreements with Indigenous governing bodies to carry out the purposes of the Act; and (iii) introducing a modernized fish habitat protection program that would enhance partnering opportunities with Indigenous communities regarding the conservation and protection of fish and fish habitat. It should be noted that DFO’s efforts to help advance reconciliation is taking place within the broader federal government review of laws and policies related to Indigenous peoples, which was initiated in February 2017.

DFO has prepared a comparison of the proposed changes, which is summarized below:

Before Proposed Amendments After Proposed Amendments
Not all fish and fish habitat protected; only those related to a commercial, recreational or Aboriginal fishery protected.

 

Protection of all fish and fish habitat.

 

 

No explicit reference to consideration of the rights of Indigenous peoples, and their unique knowledge, to inform decision making.

 

 

Provided Indigenous traditional knowledge must inform habitat decisions.

Requirement to consider adverse effects of decisions on the rights of Indigenous peoples.

 

Ability to enter into certain agreements restricted to provinces and territories only.

 

Added ability to enter into agreements with Indigenous governing bodies as well as provinces and territories.

 

No provisions regarding the independence of inshore licence holders.

 

 

 

 

Provisions allowing for recognition of social, economic and cultural factors, as well as the preservation or promotion of the independence of licence holders in commercial inshore fisheries.

Enabling regulations to support independent inshore licence holders.

 

No tools to quickly implement in-season fisheries restrictions to address unforeseen conservation and management issues. Ability to put in place targeted short-term measures to quickly and effectively respond to unforeseen threats to the management of fisheries and to the conservation of fish.

 

Uncertainty as to when authorizations are required for development projects. Clarity on which types of projects require authorizations through permitting and codes of practice.

 

Lack of transparency regarding authorization decisions for projects; no requirement to publicly release information on these decisions.

 

Requirement to publicly release information on project decisions through an online registry.

 

 

No tools to address long-term marine conservation. Ability to create long-term area-based restrictions on fishing activities to protect marine biodiversity.

 

No specific provisions to address whales in captivity. A prohibition on fishing cetaceans with intent to take them into captivity unless authorized by the Minister in circumstances where the animal is injured, in distress or in need of care.

 

No legal requirements related to rebuilding fish stocks.

 

 

 

 

Minister must consider whether stock rebuilding measures are in place when making a fisheries management decision that would impact a depleted stock.

Enabling regulations respecting the rebuilding of fish stocks.

Antiquated provision for the management offences under the Fisheries Act, often leading to costly and long court processes.

 

Ability to address Fisheries Act offences outside of court using alternative measures agreements, which reduces costs and repeat offences.

 

No provisions to restore degraded habitat as part of development project reviews.

 

Provisions to consider restoration priorities as part of development project reviews.

 

Insufficient capacity to enforce provisions under the Act.

 

Enhanced enforcement and monitoring capacity on the water and for projects.

 

We will continue to monitor and provide commentary as the proposed amendment legislation makes its way through Parliament. DFO has indicated that regulations and policies are now being developed in consultation with Indigenous groups, provinces and stakeholders to support the implementation of the amendments. Like a lot of environmental legislation, the true impact of the new Fisheries Act will only be meaningfully gauged once its regulations are published.

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To view original article, please click here.

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.

Photo Credit: Nature Canada

BC Seeks Feedback on Second Phase of the Spill Response Regime

WRITTEN BY:

Bennett Jones LLP

David Bursey, Radha Curpen, and Sharon Singh

[co-author: Charlotte Teal, Articling Student]

Phase-2 to BC’s Spill Response Regime

The British Columbia government is moving forward with the second phase of spill regulations, announcing further stakeholder engagement on important elements, such as spill response in sensitive areas and geographic response plans. The government will also establish an independent scientific advisory panel to recommend whether, and how, heavy oils (such as bitumen) can be safely transported and cleaned up. While the advisory panel is proceeding, the government is proposing regulatory restrictions on the increase of diluted bitumen (dilbit) transportation.

The second phase engagement process follows the first phase of regulatory overhaul introduced in October 2017, when the Province established higher standards for spill preparedness, response and recovery.

Photo Credit: Jonathan Hayward/Canadian Press

Feedback and Engagement

The Province is planning an intentions paper for the end of February 2018 that will outline the government’s proposed regulations and will be available for public comment.

In particular, the Province will seek feedback on:

  1. response times, to ensure timely responses to spills;
  2. geographic response plans, to ensure that resources are available to support an immediate response that account for the unique characteristics of sensitive areas;
  3. compensation for loss of public and cultural use of land, resources or public amenities in the case of spills;
  4. maximizing application of regulations to marine spills; and
  5. restrictions on the increase of dilbit transportation until the behaviour of spilled bitumen can be better understood and there is certainty regarding the ability to adequately mitigate spills.

What this means for industry

This second phase was planned follow up to the October 2017 regulations. Many of the proposed regulatory changes have been part of ongoing stakeholder discussions for the past few years. However, the prospect of permanent restrictions or a ban on the increased transportation of dilbit off the coast of B.C. and the prospect of further regulatory recommendations from the independent scientific advisory panel creates uncertainty for Canada’s oil sector.

The government’s emphasis on environmental concerns related to bitumen and its recent initiatives to restrict oil exports to allow time for more study of marine impacts will further fuel the national discourse on how to export Canada’s oil to international markets from the Pacific Coast.

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This article was first published on the Bennett Jones LLP website.

About the Authors

Tracing Contaminated Soil in Quebec

As reported in LaPresse, the Quebec Environment Minister, Isabelle Melancon, recently announced that the Quebec government will soon begin a pilot project to improve the “traceability” of contaminated soil from construction sites.

An earlier story in LaPresse stated the provincial authorities lost track of 3,000 tonnes of contaminated soil from a the Baril School in Hochelaga-Maisonneuve.  Management of the soil had been taken over by the company of a former Hell’s Angels partner, OFA Environment Management.

Remediation work at the Baril Elementary School in Hochelaga-Maisonneuve, Montreal

Soils were to be shipped to a Quebec-based company, accredited by the Quebec Ministry of the Environment. Instead, they were moved to another company with the same name, but located near East Hawkesbury, Ontario.  The firm apparently operated from a place that does not have an address.

There is no prohibition on shipping contaminated soil to Ontario, where the rules governing their treatment are less stringent than in Quebec. But in the case of the Hochelaga-Maisonneuve school, the contract specified that the floors were to be arranged in accordance with the Quebec law, according to the company in charge of supervising the construction site.

“We can not pretend that nothing is happening,” said Melançon at the end of a meeting of the Council of Ministers.

Last fall, La Presse revealed that “highly contaminated” soils had been dumped illegally on the banks of the Achigan River in Sainte-Sophie, in the Laurentians.

“[You have to] know where it’s going, what happened,” said the minister.  “We have to follow the soil better because, as we can see, this is the second horror story I am confronted with. ”

Quebec is currently in talks with potential suppliers to set up a “traceability” program. The pilot project should be launched shortly.

Mining company in B.C. fined $200,000 for Failure to Sample Effluent

Barkerville Gold Mines Ltd. (TSXV: BGM) was recently ordered to pay $200,000 after pleading guilty, in Provincial Court of British Columbia, to violations under the Canadian Fisheries Act related to the Metal Mining Effluent Regulations.

The fine was the result of routine inspections conducted by Environment and Climate Change Canada enforcement officers at the Cariboo gold mine in Central British Columbia.  During inspections, it was revealed that the company failed to complete sampling, notify authorities of having deposited effluent into fish-bearing water without authorization, and submit reports on time.  The effluent was deposited into Lowhee Creek, part of the Willow River system—an important fish-bearing watershed.  The Metal Mining Effluent Regulations authorize deposits of effluent provided that conditions stipulated in the regulations are respected.

About Barkerville Gold Mines Ltd. is focused on developing its extensive land package located in the historical Cariboo Mining District of central British Columbia. Barkerville’s mineral tenures cover 1,950 square kilometres along a strike length of 67 kilometres which includes several past producing hard rock mines of the historic Barkerville Gold Mining Camp near the town of Wells, British Columbia.

Drillers at Barkerville Gold Mines’ Cow Mountain gold project in the Cariboo mining district

U.S. EPA Approves Use of Updated ASTM Phase I Standard for Specific Properties

ASTM International recently updated its Phase I environmental site assessment standard for assessing large rural and forestland properties.  This Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process for Forestland or Rural Property, E 2247-16 (2016 rural property standard), replaces a 2008 version, numbered E2247-08. Purchasers of real property who intend to use the rural property standard for a closing on or after March 14, 2018, must use the 2016 standard.

Proposed purchasers seeking to establish the innocent purchaser, bona fide prospective purchaser or contiguous property owner defenses under the Comprehensive Environmental Response, Compensation and Liability Act must comply with the United States Environmental Protection Agency’s (U.S. EPA’s) All Appropriate Inquiries (AAI) standard at 40 C.F.R. pt. 312 prior to the purchase of the property.  While purchasers may follow the AAI criteria set forth in the regulations, most purchasers follow either the E1527-13 Phase I standard (defined below) or the 2008 rural property standard when performing pre-purchase Phase I environmental site assessments, as both standards are specifically identified in the regulation as satisfying AAI.

Effective March 14, 2018, the 2016 rural property standard replaces the 2008 standard for use in meeting AAI under EPA’s regulation. (Purchasers of real property who intend to use the rural property standard for a closing before March 14, 2018, however, may still use the 2008 standard.)  This change is of particular importance to solar and wind projects proposed for large tracts of rural and farmland property, as it allows for less rigorous onsite assessment than the site visit requirements used for assessing commercial and industrial properties, Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process, E 1527-13 standard.

Since Phase I environmental site assessments originated in 1986, the review of large rural and forestland properties has been difficult and time-consuming due to the site reconnaissance requirements alone.  The 2008 rural property standard alleviated some of the difficulties in the site reconnaissance requirements for assessing large rural tracts of property, as more particularly described in an earlier summary.

The 2016 rural property standard adds updated terminology that is used in the companion E1527-13 standard, but more importantly, changes some language that limited the more widespread use of the 2008 version.  First and foremost, the 2016 rural property standard eliminates the somewhat arbitrary 120-acres-or-more size requirement for use of the standard and simply requires the property to be “forestland” or “rural property.”  The standard includes a much broader definition of rural property, allows some alternative sourcing for agency records, and designates a specific time limit of 20 calendar days for receipt of materials requested by the consultant for review in completing Phase I.  The 20 calendar days requirement offers the benefit of an outside time limit, but also ensures that a Phase I environmental site assessment will take at least 20 days to complete if requested documentation is not received earlier. The 2016 rural property standard also relaxes some of the site visit criteria.