New Year, New Environmental Rules: Alberta’s Revised Remediation Rules Take Effect in 2019

by Dufferin Harper and Lindsey Mosher, Blake, Cassels & Graydon LLP

On January 1, 2019, significant amendments to Alberta’s Remediation Certificate Regulation came into force. These include:

  • Renaming the regulation the Remediation Regulation
  • Creating a site-based remediation certificate
  • Creating a new reporting requirement for impacts
  • Defaulting to the application of Tier 1 rather than Tier 2 Guidelines
  • Issuing a Tier 2 compliance letter
  • Establishing a new mandatory remedial measures timeline

As discussed in more detail below, many of the amendments address long-standing concerns within the existing remediation certification process. However, in several instances they also introduce new areas of regulatory uncertainty.

SITE-BASED REMEDIATION CERTIFICATE

One of the primary concerns with the existing regime is that it is too limited in scope. Although it provides for remediation certificates to be issued for specific areas of land impacted by a contaminant release, it does not enable a property owner to obtain regulatory signoff for a complete site as opposed to only an area of a site.

In response to that concern, the Remediation Regulation introduces a new type of remediation certificate applicable to a complete site, which is referred to as a “site-based remediation certificate”. A site-based remediation certificate confirms that all contaminants and areas of potential concern both on and off site have been addressed and necessarily involves the submission of more extensive documentation than what is required for a limited remediation certificate.  To assist in the application process, the Alberta government is expected to develop and release a new application form and guide for a site-based remediation certificate application prior to January 2019.

NEW REPORTING REQUIREMENT

A person responsible for a release currently has a statutory obligation to report the release. In addition to this existing obligation, the Remediation Regulation imposes an additional obligation to report any new information about the “impact” of a released substance. Neither of the terms “new information”, nor “impact”, are defined in the Remediation Regulation, and it remains to be seen what additional guidance, if any, will be provided to clarify the scope of the additional obligation. Until that occurs, or until the courts clarify the scope of the obligation, uncertainty will likely prevail.

APPLICATION OF TIER 1 VERSUS TIER 2 GUIDELINES

Under the current Remediation Certificate Regulation, a person applying for a remediation certificate may elect to apply either generic Tier 1 Soil and Groundwater Remediation Guidelines (Tier 1 Guidelines) or site -specific Tier 2 Soil and Groundwater Remediation Guidelines (Tier 2 Guidelines).

The Remediation Regulation removes this discretionary election. Instead, the Tier 1 Guidelines will always be the default remediation standard. Regulatory approval will be required to remediate to Tier 2 Guidelines.

TIER 2 COMPLIANCE LETTER

Another major concern (and criticism) of the existing regime involves the situation where contaminant levels exceed Tier 1 Guidelines but not Tier 2 Guidelines. In such a situation, if the Tier 2 Guidelines are applied, the affected area will not require remediation. Notwithstanding the levels exceed Tier 1 Guidelines and would otherwise require remediation but for the application of the Tier 2 Guidelines, the regulator’s position is that, since there has been no “remediation”, it is unable to issue a “remediation certificate”.  The Remediation Regulation addresses this situation, albeit indirectly.  Rather than amending the scenarios under which a remediation certificate can be issued to account for the above situation, the Remediation Regulation introduces a hybrid type of approval, described as a “Tier 2 compliance letter”. Such a letter will be issued by the regulator when it is satisfied the area or the site meets Tier 2 Guidelines and therefore does not need to be remediated. The difficulty with such a hybrid approach is that it is unclear what type of legal protection a “Tier 2 compliance letter” provides. For example, a remediation certificate currently provides protection against a subsequent environmental protection order being issued for the same contaminant and area. A Tier 2 compliance letter provides no similar protection.  Furthermore, no reference to a Tier 2 compliance letter is set out in Environmental Protection and Enhancement Act and its legal significance is therefore unknown.

NEW REMEDIAL MEASURES TIMELINE

The Remediation Regulation introduces a mandatory timeline for remedial measures for all releases reported after January 1, 2019. If remediation cannot be completed to the satisfaction of the regulator within the following two years, a remedial action plan acceptable to the regulator must be submitted in accordance with the requirements of the Remediation Regulation.

The timeline is not mandatory for the complete remediation of a release. Rather, it is a timeline for the submission of a remedial action plan that will describe what further remedial activities will occur in the future. As such, it appears to be nothing more than an administrative requirement as opposed to an actual remedial efficiency requirement.

NEXT STEPS

The Remediation Regulation came into force as of January 1, 2019, and all releases now must comply with its provisions. Releases reported before January 1, 2019 continue to be regulated in accordance with the old regime under the Remediation Certificate Regulation.

This article was first published on the Blakes Business Class website. It is republished with the permission of the authors and Blakes. Copyright of this article remains with Blakes.


About the Authors

Dufferin (Duff) Harper practices in the areas of environmental law, commercial litigation and regulatory law. He routinely acts for clients on environmental due diligence and liability issues, especially as they pertain to brownfield redevelopment and transportation of dangerous goods. On the corporate side, he specializes in crafting complicated environmental agreements that allocate environmental risks and address remediation requirements. He also advises clients on greenhouse gas matters including the purchase and sale of greenhouse gas emissions credits, offset credits and other environmental attributes.

Duff has acted as lead counsel in several litigation cases involving contaminated sites, both on behalf of contaminated property owners and parties who were allegedly responsible for the contamination. On the regulatory front, he has appeared before numerous levels of courts and assessment tribunals, including tribunals constituted pursuant to the Canadian Environmental Assessment Act (CEAA) ), the National Energy Board (NEB) and numerous provincial regulators.

Duff also provides strategic regulatory compliance and environmental impact assessment advice to industrial clients, such as conventional oil and gas companies, mining companies, companies operating in the oil sands, and liquefied natural gas proponents.

Lindsey Mosher’s practice focuses on energy regulation, as well as environmental and administrative law. She has experience in a broad range of regulatory matters, including regulatory compliance issues, regulatory approvals and hearings, and corporate matters.

Prior to joining Blakes, Lindsey obtained industry experience working in the legal department of a large Canadian oil and gas company, Alberta’s utilities regulator and a large Canadian telecommunications company.

Lindsey has appeared before Alberta’s utilities regulator, the Provincial Court of Alberta and the Court of Appeal of Alberta.

Canada: Environmental Issues In Expropriation

Article by Chidinma Thompson, Borden Ladner Gervais LLP

A. Indirect Expropriation through Environmental Regulation

Claims for indirect expropriation may arise through environmental regulatory regimes. Where legislative schemes operate to interfere with existing property rights, such interference may constitute de facto, or indirect, expropriation. One example of a legislative regime that has been the subject of indirect expropriation claims is the federal Species at Risk Act1 (the “SARA”). Under the SARA, the Governor in Council is empowered to make emergency orders to provide for the protection of certain wildlife species.2 The emergency protection order may extend not only to Crown land, but also private property.3 The SARA provides for a limited compensation scheme. The Minister may provide for reasonable compensation for losses suffered “as a result of any extraordinary impact of the application of” the emergency protection order.4 The Governor in Council may make regulations with respect to the procedures to be followed and the methods to be used to determine the compensation.5

The sage grouse order exemplifies how a SARA emergency protection order may give rise to an expropriation claim. The sage grouse order was the first emergency protection order to be issued under section 80 of the SARA. It was issued to protect the greater sage grouse population in Alberta and Saskatchewan, and came into force on February 18, 2014. The sage grouse is an endangered species under the SARA and Alberta’s Wildlife Act.6 Under the Wildlife Act it is an offence to “willfully molest, disturb, ore destroy a house, nest or den” of sage grouse. The sage grouse order restricted activities on 1,672 km2 of provincial and federal Crown lands in southeastern Alberta and southwestern Saskatchewan.

A Sage Grouse (Photo Credit: Miles Tindal / Calgary Herald)

In The City of Medicine Hat et al v Canada (AG) et al,7 LGX Oil and Gas and the City of Medicine Hat, which had interests in the Manyberries oil production site that was affected by the sage grouse order, brought a judicial review and constitutional challenge of the sage grouse order at the Federal Court of Canada. The applicants successfully resisted a summary dismissal motion brought by the Crown and subsequently commenced an action at the Alberta Court of Queen’s Bench for $123.6 million in compensation (including accelerated reclamation costs) for de facto expropriation of existing oil and gas mineral rights, leases and rights-of-way. This case is ongoing. At this point, the Governor in Council has not made regulations with respect to compensation. The Crown pleads that the emergency protection order is regulatory and, in the alternative, that compensation under the SARA is discretionary. In the further alternative, the Governor in Council had chosen not to make regulations, and the emergency order did not have an “extraordinary impact” on the plaintiffs.

Another case was Groupe Maison Candiac Inc v Canada (AG).8 This case concerns the second emergency protection order made under the SARA, which protects the western chorus frog. The western chorus frog is listed on the SARA’s list of endangered species as a threatened species in the provinces of Ontario and Quebec. The emergency protection order prohibits excavation, deforestation and construction within a two km2 area in the municipalities of La Prairie, Candiac and St-Philippe, Quebec to protect the frog and its habitat. This order was the first time a SARA emergency protection order restricted development on private land.

As a result of the western frog order, Groupe Maison Candiac Inc. (“Groupe Maison”) was forced to reduce its residential development by 171 units after construction was already underway and Groupe Maison had obtained the requisite municipal and provincial approvals. Groupe Maison brought a judicial review of the emergency protection order by way of a constitutional challenge and an expropriation claim. The Federal Court dismissed the application, finding that: (1) section 4(c)(ii) of the SARA is within the federal government’s jurisdiction over criminal law; and protected by the doctrine of ancillary powers, including jurisdiction over peace, order and good governance; (2) the western chorus frog order did not amount to expropriation that required compensation; and (3) the Parliament had already provided a mechanism for compensation under the SARA that applies in “extraordinary circumstances.”

In 2017, the Minister of Environment and Climate Change received three petitions to recommend to the Governor in Council for an emergency order to protect the southern mountain woodland caribou population. The Minister conducted an Imminent Threat Assessment and, on May 4, 2018, determined that the southern mountain caribou faced imminent threats requiring intervention for recovery. An emergency protection order may be forthcoming for Alberta and British Columbia. The SARA public registry and the Canada Gazette will provide updates on this matter.

B. Polluter Pays in Expropriation of Contaminated Lands

Alberta’s Environmental Protection and Enhancement Act9 (the “EPEA”) is another environmental protection legislation that affects expropriation claims. As one of its purposes, the EPEA adopts the “polluter pays” principle to address contamination. The EPEA includes three regulatory mechanisms with respect to contamination: (1) Part 5 Division 1 concerns the release of substances generally; (2) Part 5 Division 2 concerns contaminated sites designation; and (3) Part 6 deals with conservation and reclamation. Further, the EPEA expressly acknowledges an affected person’s recourse to court through private civil claims.10 Some of the key concepts related to the three regulatory mechanisms are considered below.

Part 5 Division 1 of the EPEA deals with the release of substances into the environment. Under section 112, the person responsible for the substance has the duty to take remedial measures with respect to any release of same.11 Environmental protection orders may also be issued to the person responsible for the substance where the release is causing, has caused or may cause an adverse effect.12

The statutory definition of “person responsible” includes: (1) owner and previous owner of substance; (2) every person who has or has had charge, management or control of the substance; (3) successor, assignee, executor, administrator, receiver, receiver‑manager or trustee of (1) to (2); and (4) principal or agent of (1) to (3).13 The “person responsible’ excludes, unless they release new or additional substances: (1) a municipality in respect of land shown on its tax arrears list, or land acquired by it by dedication or gift of an environmental reserve, municipal reserve, school reserve, road, utility lot or right of way; (2) a person who investigates or tests the land for the purpose of determining the environmental condition of that parcel; and (3) the Minister responsible for the Unclaimed Personal Property and Vested Property Act, with respect to a parcel of land to which that Act applies. Thus, it appears that the notion of “person responsible” is based on one’s relationship to the substance/release only, and not based on the cause of the release.

Part 5 Division 2 of the EPEA provides for the designation of contaminated sites. Under section 129 of the EPEA, the Director may designate a site as a contaminated site and issue an environmental protection order to a person responsible for the contaminated site. The Director must consider several factors before issuing an environmental protection order for a contaminated site, including: (1) due diligence of the owner or previous owner; (2) whether the presence of the substance at the site was caused solely by the act or omission of another person, other than an employee, agent or person with whom the owner or previous owner has or had a contractual relationship; and (3) the price the owner paid for the site and the relationship between that price and the fair market value of the site had the substance not been present.14

The “person responsible for the contaminated site” means: (1) a person responsible for the substance that is in, on or under the contaminated site; (2) any other person who the Director considers caused or contributed to the release of the substance into the environment; (3) the owner of the contaminated site; (4) any previous owner of the contaminated site who was the owner at any time when the substance was in, on or under the contaminated site; (5) a successor, assignee, executor, administrator, receiver, receiver‑manager or trustee of a person referred to in any of subclauses (2) to (4); and (6) a person who acts as the principal or agent of a person referred to in any of subclauses (2) to (5). As was the case with Division 1, the definition of “person responsible for the contaminated site” again excludes municipalities and investigators. In this case, the test is based on the relationship to the substance/release and the property.

In practice, Division 2 is rarely used. Designation will only occur as a last resort when there are no other appropriate tools. There have only been five instances of designation of a contaminated site since 1993 and no environmental protection order appears to have been issued under Division 2. Division 2 offers options otherwise unavailable, including the allocation of responsibility to present and past site owners who may have contractually assumed liability for the pollution, remedial actions plans and agreements with the Director, and the apportionment of costs of remedial work among responsible parties. The Minister may also pay compensation to any person who suffers loss or damage as a direct result of the application of Part 5 Division 2.15

Environmental contamination may affect the valuation of expropriated property. Under the Expropriation Act,16compensation for expropriation is based on the market value of the expropriated land, which is in turn “the amount realized if sold in the open market by a willing seller to a willing buyer”,17 and provable damages. The determination of market value accounts for everything that is present in the site, except for the legislated exclusions found in section 45 of the Expropriation Act.

Contamination introduces issues in valuing expropriated property, given the uncertainty in liability exposure, scope, duration, risk and stigma. Below are some case law on the interaction between the expropriation of contaminated lands and the “polluter pays” principle.

In Toronto (City) v Bernardo,18 the respondent Bernardo was the registered owner of a property and permitted the corporate respondent’s scrap metal business on property rent-free by oral licence to occupy. The City of Toronto served and published notice to expropriate property. The City conducted environmental testing on property which showed contamination, and was advised that clean-up costs for property could be in range of $250,000 to $750,000. The appraised value of the property was $242,500 before taking into consideration site remediation or clean-up costs. Given the estimated cost of remediation which exceeded value of land, the City’s offer of compensation to the respondents was $1. The respondents did not request compensation hearing but refused to surrender possession. The City brought motion for order to take possession. The Ontario Supreme Court granted the City’s motion as the respondents had the opportunity to contest the City’s offer of compensation in proceedings before the Ontario Municipal Board and chose not to take any action to assert claims for compensation.

In Thompson v Alberta (Minister of Environment),19 the claimant had purchased land for the sum of $1 million. At the time of purchase, the land was not part of any property acquired by the Crown for a proposed transportation corridor. The Crown reviewed roadway plan within months of claimant’s purchase and determined that land was a necessary part of the corridor. The Crown expropriated land for $1,025,000. The claimant brought action for increased compensation. The action was allowed in part. The claimant was granted $1,120,000. The Crown’s valuation discounted the value of the property because of the unknown cost of filling or remediating a wetland (which is 50% of the property) for future residential development, which posed an economic challenge for a prospective purchaser. The Court found that the cost of remediation calculated by the Crown was based on premature assumption that land was to be developed in isolation with no possible cost sharing by adjacent developers. The Court, however, recognized that a discount must be applied for market value because of this possibility of remediation.

In Ville de Saint-Jean-sur-Richelieu c Cour du Québec,20 the subject property included a grocery store, snack-bar and a retail marina fuel distribution outlet for vessels navigating on Chambly canal, and a gas station for road vehicles. The issue before the Court was whether the costs of decontamination should be deducted from the compensation awarded for expropriation, based on the duty to remediate. It was argued that evidence demonstrated that there was a spill onto the neighbouring property, therefore the question as to cessation of activities no longer applied, and the mandatory provisions of the EQA regarding decontamination was triggered. The Tribunal Administratif du Québec (the “TAQ”) ruled that the total remediation cost of $450,000 be paid by the owner of the property, 9092-9340 Québec Inc. (“9092”) and should be deducted from its expropriation indemnity award. The value of the expropriated property, after deduction of the decontamination costs, was established as being $31,000.


Lock 9, the southern terminus of the Chambly Canal, is located in the town of St.-Jean-Sur-Richelieu.

The Court of Quebec allowed the appeal, holding that the finding of the TAQ was unreasonable and profoundly unfair. Were it not for the expropriation, 9092 could have ceased its activity at its own time, negotiated with a willing purchaser and, based upon the projects of the purchaser, negotiated the decontamination works remaining according to the circumstances. The City deprived 9092 of its right to complete the decontamination work at the time that it deemed the most suitable to its interests and subject to conditions that would have been more favourable. By forcing 9092 to assume the costs of decontamination estimated by the City engineer, the TAQ deprived the owner of the quasi-totality of the value of the expropriated property. The City brought a judicial review application which was subsequently dismissed. The Court found that the systemic analysis undertaken by the Court of Quebec highlights the significant defects and the fragility of the TAQ ruling to assign full liability to 9092 for the estimated costs of decontamination of the property.

Case law suggests that the law is not blind to the causation of the contamination when evaluating the market value of an expropriated property that has been contaminated. Liability for the remediation of contaminated land in Alberta clearly rests with “person responsible for the substance” and, in the rare case of designated contaminated sites, “person responsible for the contaminated site.” Liability for contamination does not run with the land in Alberta.

This leads to the question of what is the intent of the law in respect of a faultless landowner for the environmental depreciation of land in the expropriation context. The principles of statutory interpretation apply to deem the legislature as knowing all the law and the necessary statutory language to give effect to its intention. The EPEA and the Expropriation Act are meant to be interpreted harmoniously as a scheme in cases of expropriation involving contamination. The Expropriation Act is a remedial statute. Accordingly, it must be given a broad and liberal interpretation consistent with its purpose.

Currently, the right of a faultless landowner to recover from a “person responsible” remediation costs in civil claims (whether under the common law or the EPEA) is a chose in action. This chose in action does not appear to be considered in the calculation of market value in expropriation. In the new era of third-party litigation funding, a chose in action for remediation costs is a valuable element that may offset some or all of the discounts associated with contaminated land, even in an open market.

Footnotes

1 Species at Risk Act, SC 2002, c 29 [SARA].

2 SARA, s 80(1).

3 SARA, s 80(4)(c)(ii).

4 SARA, s 64(1).

5 SARA, s 64(2).

6 Wildlife Act, RSA 2000, c W-10.

7 The City of Medicine Hat et al v Canada (AG) et al, Federal Court of Canada File No. T-12-14. See also Federal Court of Canada, Proceeding Queries, Recorded Entries for T-12-14, online: click here.

8 Groupe Maison Candiac Inc v Canada (AG), 2018 FC 643.

9 Environmental Protection and Enhancement Act, RSA 2000, c E-12 [EPEA].

10 EPEA, ss 217, 219, 227-228.

11 EPEA, s 112.

12 EPEA, ss 113-114.

13 EPEA, s 1(tt).

14 EPEA, s 129(2).

15 EPEA, s 131.

16 Expropriation Act, RSA 2000, c E-13.

17 Expropriation Act, ss 41-42.

18 Toronto (City) v Bernardo, 2004 CanLII 5760 (ONSC).

19 Thompson v Alberta (Minister of Environment), 2006 ABQB 510.

20 Ville de Saint-Jean-sur-Richelieu c Cour du Québec, 2017 QCCS 4832.


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.

This article was first published on the BLG website. It is re-published with the permission of the author.

About the Author

Chidinma Thompson is a partner in Commercial Litigation Group at Borden Ladner Gervais LLP‘s Calgary office. She practices commercial litigation and arbitration, project approvals, environmental defence and compliance advisory. Her practice covers a broad range of sectors including oil and gas, electricity, renewable energy, municipal and land development. She has experience in regulatory hearings before the Alberta Energy Regulator and its predecessors, Alberta Utilities Commission, and the Calgary Subdivision and Development Appeal Board. She has appeared before the Alberta Provincial Court, Court of Queen’s Bench and the Court of Appeal.

Financing Soil Remediation: Exploring the use of financing instruments to blend public and private capital

The International Institute for Sustainable Development (IISD) recently released a report entitled Financing Soil Remediation: Exploring the use of financing instruments to blend public and private capital.

The report makes the statement that governments around the world are looking at opportunities to attract private capital participation in both land remediation and its productive use and redevelopment thereafter. The business case is intrinsically the value capture in the increase in retail price of land and related business opportunities once the remediation is complete. However, where land value capture is lower and related revenue streams remain uncertain, the case for private capital participation is much less compelling. Governments, in this case, have to fund the remediation through public budgets and thereafter seek opportunities to partner with private counter-parties to use the land as “fit for purpose.”

The IISD report presents 17 case studies on a variety of financing instruments that blend public and private capital. Each case study includes a short discussion on the extent to which each instrument could be used to finance the remediation of contaminated soil.  The case studies in thereport demonstrate a variety of financing strategies, from index-linked bonds to savings accounts and from peer-to-peer lending platforms to debt-for-nature swaps.

This report is a part of a series of outputs of a four-year project, Financing Models for Soil Remediation. The overall objective of the project is to harness the full range of green finance approaches and vehicles to manage the associated risk and fund the remediation of contaminated soils.

The series of reports focuses on the financial vehicles available to attract investment to environmental rehabilitation of degraded land and the financial reforms needed to make these vehicles a viable and desirable means of investing in land rehabilitation. The IISD draws on best practices worldwide in funding environmental rehabilitation, with a special focus on the design and use of financial mechanisms to attract private investors, share the risk and offer a clear benefit for the rehabilitated land.

Several lessons emerge from these case studies described in the report in the context of financing the remediation of contaminated land, including the following:

  1. As with all financial arrangements, the risk appetite of different investors has to match the risk profile of
    the investment. It is difficult to crowd in private and institutional investors when projects remain below
    investment grade.
  2. Money follows a good deal. When legal, technological, revenue and other risks are understood and are
    transparent, feasible ways to reduce these uncertainties can be planned and financing strategies can be
    worked upon.
  3. When there is reasonable certainty that the value of the land will increase after remediation and will
    subsequently generate stable and predictable revenues, there is a strong case for blending public and
    private financing.
  4. When, on the other hand, projects have less attractive revenue potential, governments have to step in to
    finance the remediation, or at least a larger part of it.

About the IISD

The International Institute for Sustainable Development (IISD), headquartered in Winnipeg, Manitoba, is an independent think tank championing sustainable solutions to 21st–century problems. The mission of the IISD is to promote human development and environmental sustainability. IISD focuses on research, analysis, and knowledge products that support sound policy making.

When Oil and Water Mix: Understanding the Environmental Impacts of Fracking

Dan Soeder, director of the Energy Resources Initiative  at the South Dakota School of Mines & Technology, has co-authored the cover article titled “When oil and water mix: Understanding the environmental impacts of shale development,” in the recent issue of GSA Today, a magazine published by the Geological Society of America.

The article explores what is known and not known about the environmental risks of fracking with the intent of fostering informed discussions within the geoscience community on the topic of hydraulic fracturing, says Soeder. Soeder’s co-author is Douglas B. Kent of the United States Geological Survey.

In this paper, Soeder and Kent bridge the gap in consensus regarding fracking, providing current information about the environmental impacts of shale development. The article is open access and adheres to science and policy, presenting a complicated and controversial topic in a manner more easily understood by the lay person.

“Geoscientists from dinosaur experts to the people studying the surface of Mars are often asked by the public to weigh-in with their opinions on fracking. We wanted the broader geoscience community to be aware of what is known and not known about the impacts of this technology on air, water, ecosystems and human health.  A great deal has been learned in the past decade, but there are still critical unknowns where we don’t yet have answers,” Soeder says.

Development of shale gas and tight oil, or unconventional oil and gas (UOG), has dramatically increased domestic energy production in the United States and Canada.  UOG resources are typically developed through the use of hydraulic fracturing, which creates high-permeability flow paths into large volumes of tight rocks to provide a means for hydrocarbons to move to a wellbore. This process uses significant volumes of water, sand, and chemicals, raising concerns about risks to the environment and to human health.

In the article, Soeder and Kent address the various potential impacts of fracking and how those impacts are being addressed.  Risks to air include releases of methane, carbon dioxide, volatile organic compounds, and particulate matter. Water-resource risks include excessive withdrawals, stray gas in drinking-water aquifers, and surface spills of fluids or chemicals. Landscapes can be significantly altered by the infrastructure installed to support large drilling platforms and associated equipment. Exposure routes, fate and transport, and toxicology of chemicals used in the hydraulic fracturing process are poorly understood, as are the potential effects on terrestrial and aquatic ecosystems and human health.

Schematic diagram illustrating unconventional oil and gas (UOG) development activities relevant to research on human-health and environmental impacts (not to scale): well-pad construction (1); drilling (2); completion/stimulation (3, 4); production of natural gas (5) and oil (6) with well casings designed to protect drinking-water aquifers; ultimate closure (plug and abandon), illustrating legacy well with leaking casing (7); wastewater disposal (8); induced seismicity (9); landscape disturbance (10); and potential for transport pathways from deep to shallow formations (11). Also represented are water supply wells in shallow and deep aquifers (12). Photographs by Dan Soeder.

 

Did the City of Hamilton overpay for a Brownfield Site

As reported by the CBC, the City of Hamilton recently paid $1.75 million for a brownfield site that once sold for $2.  The property, located at 350 Wenworth Street North, sold for $2 a decade ago and then for $266,000 two years ago.

In the property was purchased in 2013 for $266,000, hundreds of barrels of toxic waste were discovered behind a fake wall.  The barrels contained coal tar byproducts and industrial solvents, and roof tar.  The new owner arranged for the proper disposal of the barrels.  The Ontario Environment Ministry confirmed  in  an e-mail to CBC that the waste had been from the building and it was decontaminated by the fall of 2017.  It also confirmed that the clean-up included the removal of approximately 200,000 litres of liquid waste.

The cleanup of the toxic property has been going on intermittently since 2010 (Photo Credit: Hamilton Spectator) photo

It is not known how much the clean-up of the 800 barrels of toxic waste cost, but the Hamilton Spectator quoted the owner  in 2017 that the clean-up would cost $650,000.

Property records for the building stretch all the way back to 1988, when Currie Products Limited spent a million dollars for 350 Wentworth. Currie ran a tar facility that went out of business there in the late 1990s, and was considered by many to be the company that originally polluted the site. Owner John Currie died in 2013.

Through the years, the building has changed hands multiple times for a wide swath of prices, ranging from that original million dollars, to $610,000 in 2007, to $2 in 2008, to the tax sale in 2016 and now, for $1.75 million. Over that time, building owners fought with each other and the province over who was actually responsible for cleaning up the site, in some cases heading to court in search of a resolution. For each sale, the price of the property reflected what buyers knew about the site at the time.

The city’s purchase of the property is all part of a reshuffling of buildings in the area to create a transit hub for the lower city like the Mountain Transit Centre at 2200 Upper James.

While it appears the city could have saved money by taking over the property when it was up for tax sale, that’s not really the case, officials say. The city does sometimes take carriage of properties after a failed tax sale, but woudn’t do so on a property like this one with environmental issues, Hamilton City Councillor Matthew Green told the CBC.  He added, “The city won’t take on the liability by policy.  The liability is way too big, because you don’t know what you’re buying … you have no idea what could be found or buried.”

The city bought 350 Wentworth St. N., which has required much cleanup over the years. Most recently, 200,000 litres of liquid waste was removed from the site in 2017 (Credit: The Hamilton Spectator)

 

 

 

Brantford Showcases its Brownfield Projects

Known as the Telephone City, Brantford may also become famous as one of the first municipalities in Canada to proudly showcase its brownfield projects.

Instead of hiding from its industrial past, the city is showcasing several brownfield projects and is encouraging residents and visitors to take the self-guided tour.  Eight projects in various stages of remediation or redevelopment are highlighted in the  tour.

Highlights of the the tour are the Greenwich Mohawk Site, Sydenham-Pear Site and Edward Gould Park.  The Greenwich Mohawk Site alone is over 50 acres and was remediated over the course of two years, starting in 2014.

 

 

 

The City is investing $5,000 per year to promote the tour and hopes to attract interested individuals, school groups, and others.  The tour itself provides participants with access to historical photos, newspaper articles and other project details through the tour website.

Users can access the Brownfields Discovery Tour online at Brantford.ca/BrownfieldsTour where they can follow along digitally or print a hard copy of the tour.

“The City of Brantford has become widely recognized as a leader for remediation, redevelopment and public education of brownfields,” said Amy Meloch, chair of the brownfields community advisory committee in an interview with the Brantford Expositor. “The tour is an exciting continuation of the work of the committee to raise awareness to both residents and visitors of the extensive work already accomplished in the city.”

The sites on the tour include those that are municipally and privately owned.  They are:

  • 186 Pearl St. – a 0.38-hectare site located in a residential area, this site was home to Brantford Emery Wheel Co. (1910-1920) and the Brantford Grinding Wheel Co. (1920-1939). Bay State Abrasives was involved in similar manufacturing operations there. The city removed an underground storage tank, removed the existing structures, cleaned the contaminated soil and planted sod at a cost of about $175,000. The property has been converted into a park.
  • 347 Greenwich St. and 22 and 66 Mohawk St. – Referred to collectively as the Greenwich Mohawk Brownfield Site, the companies and industry formerly housed on these properties are a significant part of the city’s history. The 27.9-acre 347 Greenwich property is the former site of Massey-Harris Co., established in 1891. It employed thousands of Brantford employees over the years. A 2005 fire destroyed most of the buildings and the city acquired the property in 2007.
  • 22 Mohawk St. – This 7.25-acre property has been home to Adam’s Wagon Co. and Brantford Coach and Body, later Canada Coach and Body, where military vehicles were manufactured during the Second World War. Later, Sternson Group was there.
  • 66 Mohawk St – The Brantford Plow Works, later Cockshutt Plow Co., was established here in 1877, making high-quality farm implements. The farm division was sold to White Farm Equipment in 1962. That company went bankrupt in 1985. The city acquired all three properties by 2007 and a two-year remediation started in 2014 at a cost of $40.5 million.
  • Sydenham Pearl site – Consists of two properties: 17 Sydenham St., the former Crown Electric, and 22 Sydenham, the former Domtar (Northern Globe) site. The sites served as the main locations for mass industry for almost a century. The city took over the properties 2004 and 2006. Remediation was done in 2015 and 2016 and a soil cap was installed. The site will be green space until next steps are explored by the city.
  • 85 Morrell St. – The city sold the property, once occupied by Harding Carpets Limited, to King and Benton Development Corporation, which cleaned and renovated the 10-acre property to include warehouses and offices for industrial use.
  • 168 Colborne St. West – This 11.5-acre property was the site of the former Stelco Fastners manufacturing plant. In 1999, it was purchased by King and Benton. Work is underway to redevelop the site for mixed uses, including multi-storey residential buildings.
  • 111 Sherwood St. – Home to Brantford Cordage Co. during the early 1900s. At its peak, the twine producer employed 700. It has remained active with a variety of commercial and industrial uses, including a brewery and fitness studio.
  • 232-254 Grand River Ave. – In 1891, this 4.87-acre site was developed as a cotton mill by Craven Cotton Mills Co. It then became Dominion Textiles Co. and then Penman’s Manufacturing Co. Textile manufacturing continued on the site for almost 100 years until it was sold to a land developer in 1984. It is now being remediated for a mix of affordable housing and market-rate townhouses.
  • 180 Dalhousie St. – The 0.52-acre site is a consolidation of four properties, which, over the years, housed various residential and commercial operations, including Castelli Bakery, which closed in 2011. Today, a four-storey student apartment building is there.

Greenwich-Mohawk Brownfield Site circa 2013

Ontario construction groups launch video series on excess soil management

In southern Ontario, the management and use of excess soil is a growing issue.  There has long been concerns of unscrupulous players wrongly classifying contaminated soil as excess soil and managing it incorrectly.  Likewise, there has been long-standing concerns expressed by those wanting to do the right thing of ambiguous and uncertain rules with respect to determining what is excess soil and how to manage it.  As a result, honest industry participants end up hauling excess soil to landfill that could have otherwise been utilized for useful purposes.

According to data compiled by the the Residential and Civil Construction Alliance of Ontario (RCCAO), Ontario’s  construction market generates almost 26 million cubic metres of excess construction soil every year.  About $2 billion is spent annually to manage excess soil – which comes from civil infrastructure projects such as transit, roads, bridges, sewers, watermains and other utilities.  Even though most municipal roadways contain only minor amounts of salt from winter road treatment, large quantities of soil are often hauled up to 100 kilometres away to designated dump sites, rather than being reused on site or at other nearby construction sites.

“Clean excess soil can be more responsibly managed through better upfront planning,” says Andy Manahan, executive director of the Residential and Civil Construction Alliance of Ontario (RCCAO). “That’s why we co-produced a three-part video series to increase awareness that there are alternatives to the ‘dig, haul long distances and dump’ approach.”

RCCAO teamed up with the Greater Toronto Sewer and Watermain Contractors Association (GTSWCA) to produce this video series to inform the public, government and industry on the benefits of using best management practices. It’s called “The Real Dirt on Dirt: Solutions for Construction Soil Management.”

There are a lot of trucks on the road travelling 60 to 100 kilometres to dump excess soil as a waste material – and that is completely wrong, says Giovanni Cautillo, executive director of GTSWCA.

“It’s not a waste – it’s a reusable resource,” Cautillo says. “When municipalities provide guidance to contractors about where soil from local infrastructure projects can be reused, the costs of handling and disposing of soil can be dramatically reduced. Wherever possible, soil should be reused onsite, but if this is not possible, having an approved reuse site within a close distance saves taxpayers money.”

When best management practices are used, there are fewer trucks travelling long distances, causing less wear and tear to the roads – and less traffic congestion. Fewer trucks on the road reduces greenhouse gas emissions, creating a cleaner, healthier environment.

The Ministry of the Environment, Conservation and Parks (MECP) is currently reviewing draft regulations to help improve ways to manage soil on building and infrastructure projects across the province. Manahan says that “a multi-ministry approach – environment, municipal affairs, transportation, infrastructure and others – will also help to achieve a more coordinated effort.”

Insight into the Hazardous Waste Management Industry – A Profile of Clean Harbors Facilities

by David Nguyen – Staff Writer

Clean Harbors is a hazardous waste management company operating across North America. Their location in Mississauga is a hazardous waste terminal and transfer station, receiving, handling, and transporting flammable solids destined to the U.S. for incineration.  Non-flammable solids and liquid hazardous waste is sent to their facility in Lambton, Ontario.  The Lambton facility includes a hazardous waste landfill and a liquid hazardous waste incinerator.

Clean Harbors coordinates hazardous waste management solutions across the Canada-U.S. border.  It is makes business sense for the company to transport flammable solids that are hazardous to its U.S. incinerator instead of having a facility in Canada.  “Liquid injection incinerators are a lot cheaper,” says Mike Parker, Vice President, Canadian Environmental Compliance. “There really isn’t a strong enough market to support [hazardous solid incineration] in Canada.”

Mississauga Site Activities

Carriers bring the hazardous waste to the transfer station, where the manifests and documentation are reviewed to ensure that the facility is permitted to receive the material. Receiving times are typically planned ahead of time to prevent surges of shipments on site. Once off loaded, the waste is sampled to confirm the material profile noted in the manifest and then staged for further processing. The entire staging area is built over sealed drains leading to a blind sump to prevent any spills from leaving the site. “All the liquids from our sumps, even if it’s just rain water… get put into tanks and go down for incineration,” says Parker.

Every drum the facility receives has its contents verified, sampled, and tested. Samples are analyzed for PCBs, pH, ignitability/ flashpoint, sulfide, chloride, oxidation, cyanide, and water reactivity in order to get a profile for the waste, after which a code is attached to the drum to indicate its destination and disposal.

Staging Area (photo by David Nguyen)

This information is stored in their management system that tracks the inventory at their various facilities, including the shipping information and profiles of all items. The information is removed for approval to be received on site. The system also tracks the manifests for the generator, carrier, receiver, and the ministry, internal inspections, and monthly reports to be sent to the ministry.

After sorting and sampling, the waste is safely sorted into various streams for consolidation, bulking, or blending.

“It has to be in the same waste class to mix and match. We can’t mix something flammable with something non-flammable,” says Parker.

“Even if they are in the same waste class, we take samples from each drum, mix it together, and if nothing happens, we can do it” says Erica Carabott, Facility Compliance Manager.

Liquid waste is bulked in tank farms until there is enough to fill a taker truck to be sent to Lambton for incineration. Solid waste is loaded into pits where the material is shredded up, bulked, and mixed with a solidifying agent to take up any free liquids in the solid waste streams.

Lambton Facility Activities 

Many of the materials received at the Mississauga Transfer station are transported to the Clean Harbors Lambton facility offers services including waste neutralization, incineration of hazardous waste, inorganic pre-treatment of hazardous waste, thermal desorption of solid and sludge, and landfill disposal of hazardous waste.

Liquid waste is blended in a controlled neutralization process at the acid and alkali plant before being fed to the incinerator. The liquid waste injection incinerator operates 24 hours a day, 7 days a week, consisting of a fix unit incinerator, a semi-dry spray dryer absorber, and a four-compartment baghouse. The site capacity is about 100 000 tonnes per year and can process pumpable material that does not contain PCBs, pathogens, radioactives, and cylinders.

Lambton Incinerator (Photo Credit: Clean Harbors)

The landfill is situated in natural clay, and accepts a variety of hazardous waste excluding explosives, PCBs, radioactive, pathological wastes, or compressed gasses. Due to the Land Disposal Restriction prohibiting the disposal of untreated hazardous waste on land, Clean Harbors has an inorganic solid pre-treatment processing plant which mixes inorganic waste (primarily metal bearing solids) with reagents to prevent the metals from becoming leachable.

Furthermore, a thermal desorption unit is used to condense and recover water and organics from organic solid waste. The waste is fed into a kiln that heats the waste to 400-450 degrees Celsius to strip the organics from the waste. The vapours are condensed to remove liquid organics during the process, with the remaining emissions vented to the incinerator. The residual solids are then tested for any remaining organics or metals, and then disposed of in the hazardous landfill on site.

“You can understand why it takes a lot of money to treat the stuff in the landfill. It cooks it for about a half hour – that’s a lot of heat and a lot of money” says Parker. “With testing at the front and testing at the end,” adds Carabott .

Clean Harbor’s Lambton Hazardous Waste Landfill (Courtesy: Clean Harbors)

These facilities and processes allow Clean Harbors to work with their clients to develop cost effective solutions to handling and disposing of hazardous waste materials throughout the Great Lakes Basin in both Canada and the United States. In addition, Clean Harbors conducts regular outreach programs with the local community regarding the safe operations and reporting conducted at the Lambton facility.

Special thanks to Mike Parker and Erica Carabott for taking the time to speak with me and show me around the Mississauga Transfer station.

Can a Saskatoon brownfield be transformed into fertile green space?

The City of Saskatoon, Saskatchewan is in the process of implementing a Brownfield Renewal Strategy that it deems essential to growth in its main corridors. The initiative aims to assess and prioritize redevelopment potential of abandoned, vacant, derelict, or underutilized properties along the City’s major corridors that may have or do have perceptions of contamination.

The results of the brownfields evaluation will lead to the formulation of an incentive program that will help overcome financial and environmental barriers for redevelopment, as well as provide contamination management plans for future development.

One recent brownfield development in Saskatoon was initiated by a not-for-profit organization called CHEP Good Food.  CHEP has been promoting food security in Saskatoon for nearly 30 years. The organization is currently working toward restoring a plot of contaminated land to an agricultural plot of land.

The non-profit group, which works to promote food security, has already won a grant from CN Rail that will help them plant native trees and bushes at another brownfield site in Saskatoon and to restore the soil.   The project received the CN EcoConnexions grant through Tree Canada / Arbres Canada and Canadian National Railway Company to plant native trees and shrubs on the site.

The Askîy Project grows crops on brownfield land in Saskatoon using re-purposed containers. (CBC)

A previous fruit and vegetable garden project by CHEP began in 2014 under a different name as rooftop gardens at the University of Saskatchewan. The project relocated to the brownfield site  in 2015 and was renamed the Askîy Project — which means “Earth” in Cree.

The latest CHEP project is more ambitious than the existing Askîy Project.  It involves growing trees and bushes directly in the soil as well as remediation the site.  A professor from the University of Saskatchewan, Susan Kaminskyj, will oversee experimental bio-remediation at the site.

The bio-remediation will consist of utilizing native a fungi that will assist the plants in growing but will also biodegrade the petroleum hydrocarbon contamination at the brownfield site.

Professor Kaminskyj explained in an interview with CBC, that the microbe is a common fungus, but one with “unique abilities.”  A property in the fungus allowed plants to grow and thrive on coarse Oil Sands tailings.  In early field trials, Professor Kaminskyj’s team found more than 90 per cent of dandelion seeds treated with the fungus sprouted on coarse tailings while no untreated seeds sprouted. The researchers also found the fungus was able to grow with diesel, crude oil and similar materials as its only nutrient source.

 

 

 

Brownfield Remediation Success in Hamilton

A recent report by the City of Hamilton has revealed that significant progress has been made over the last 10 years to reduce the number of brownfield sites in the municipality.

According to Brownfield Inventory Report, there were 91 vacant brownfield sites listed by the City in 2008.  As of early 2018, 51 of the sites had been developed representing over 72 ha. Of the 40 sites still considered vacant and contaminated, approximately 13.2 ha are within the Bayfront Industrial Area.

Hamilton is one of the oldest and most heavily industrialized cities in Canada and includes a large number of brownfields in Hamilton’s older industrial areas, downtown, and throughout the urbanized area.

Part of the success in Hamilton in brownfield’s redevelopment is the Environmental Remediation and Site Enhancement Community Improvement Plan (ERASE) (CIP) which began in 2001.

Since the ERASE CIP was approved, approximately 145 property owners and potential
property owners have been approved for Environmental Study Grants. A number of
these studies have led to brownfield sites being redeveloped. A total of 47 projects
have been approved by City Council for ERASE Redevelopment Grants. These
projects once complete will result in:

  • Over 380 acres of land studied;
  •  Total assessment increase due to Environmental Remediation Grant in excess of
    $129,029,379;
  • Every $1 contributed by the City has generated $11.10 in private sector
    construction; and,
  • Remediation and redevelopment approval of approximately 210 acres of Brownfield land 123 acres (59% of approved land area) remediated to date.

In its 16 years, the ERASE CIP has proven to be very successful in providing the
financial tools needed to promote the remediation and redevelopment of Brownfield
sites. There is consistent support for the expansion of programming and updating of
policy in order to meet the significant challenges associated with Brownfield
redevelopment.

Two noteworthy recent brownfield remediation projects have included the Freeman Industrial Park, located at the site of former Otis Elevator and Studebaker plants, and the former Consumers Glass property.

The Freeman Industrial Park is the site of the old Otis Elevator and Studebaker plants.  It is the largest brownfield development project in the City of Hamilton to date.  the developer, UrbanCore Developments, has City approval to divide the 10.5-hectare property into 18 lots and build a road through the property.

440 Victoria Street, Hamilton (former Otis Elevator Building)

The Freeman Industrial Park property is zoned K, which allows nearly any type of heavy industry from fertilizer production to a coke oven.  UrbanCore has prospective buyers for about half of the lots.

Initiated in 2014, the site clean up and remediation program on the Freeman Industrial Park is now complete.

On the Consumers Glass property, the City has plans to build a sports field.  The property at Lloyd Street and Gage Avenue North is the future home of an outdoor sports facility, which will be an $8-million project that will replace the former Brian Timmis Field.  In 2015, it was used as a parking lot for the Pan Am Games.

With respect to the existing inventory of brownfield sites, consideration by Hamilton city Counsel with respect to the viability of contaminated land to be used
for purposes such as the growing/harvesting of medical marijuana, given the concerns
expressed with respect to this industry placing pressure on current viable farm land.

Staff reviewed the prospect of using brownfield land for growing medical marijuana and noted that under Regulation 153/04, cultivation of marijuana would be treated as an agricultural operation, and therefore, deemed a more sensitive operation if located on former industrial or commercially used lands.  On this basis, a mandatory filing of a Record of Site Condition would be required and the threshold for site remediation would be one of the most onerous to conform.