Proposed Alberta Bill gives Municipalities the power to offer tax breaks for brownfield development

The Alberta government recently introduced a Bill in the legislature (Bill 7) entitled the Municipal Government (Property Tax Incentives) Amendment Act. The government claims it has been introduced to help municipalities attract investment and development by giving them the power to offer stronger property tax incentives to business and industry.

A proposed new law would allow Alberta municipalities to offer tax breaks for up to 15 years to businesses willing to set up in commercial or industrial areas of their town or city.

If passed, Bill 7 would allow each municipality to decide if and how to implement the tax incentives by passing a single bylaw that would:

  • offer incentives to reduce, exempt or defer the collection of property taxes for non-residential properties for up to 15 years, with the option for renewal
  • establish an eligibility criteria and application process to streamline tax incentive offers, instead of requiring a separate council resolution or bylaw for each property

“This will give municipalities the tools they need to bring to reduce the regulatory burden on businesses, bring investment back into our communities and restore the Alberta advantage for all,” said Municipal Affairs Minister Kaycee Madu, at a news conference Tuesday in Sherwood Park.

Right now, municipalities can only cancel, refund or defer taxes based on hardship, with decisions made on a case-by-case basis.

The government said it hopes municipalities can use these new powers to encourage economic development in non-residential areas — including vacant, derelict or under-utilized commercial or industrial property which are, or may be, contaminated.

Elsewhere in western Canada, Saskatchewan allows property tax incentives for up to five years and B.C. allows them for up to 10.

Respondents to Alberta Urban Municipalities Association Brownfield Impact Assessment were asked how many of each type of brownfield sites exist in their municipalities?

$250 million Canadian Fund for Technology Companies that can modernize Industries

BDC Capital, the investment arm of BDC recently launched the $250 million Industrial Innovation Venture Fund to invest in tech companies and entrepreneurs accelerating the transformation of core Canadian industries including agriculture and food technologies, resource extraction technologies and advanced manufacturing.

The Industrial Innovation Venture Fund will invest in early to late stage firms with the genius and ambition to drive marked improvements in productivity and competitiveness across the value chains of the core competitive industries that are the backbone of the Canadian economy, through combinations of innovative and transformative technologies, processes, and business models.

“BDC Capital is excited to be a first mover again, this time supporting innovation and technology adoption among core competitive industries like ag-tech, resource extraction and advanced manufacturing with our new venture capital fund, said Jérôme Nycz, Executive Vice President, BDC Capital. “This fund is complementary to our existing work with the Industrial, Clean and Energy Technology (ICE) Venture Fund, and by launching the Industrial Innovation Venture Fund, we are doubling down on developing transformative solutions for Canadian industries.”

The goal of the Industrial Innovation Venture Fund is to enable technology innovation and commercialization in key Canadian industrial sectors like ag-tech, advanced manufacturing, oil and gas as well as mining tech.

BDC Capital is the investment arm of BDC- Canada’s only bank devoted exclusively to entrepreneurs. With over $3 billion under management, BDC Capital serves as a strategic partner to the country’s most innovative firms. It offers a full spectrum of risk capital, from seed investments to transition capital, supporting Canadian entrepreneurs who wish to scale their businesses into global champions. Visit bdc.ca/capital.

Ontario Environmental Protection Act and Regulatory Changes: More Brownfields Open for Business

Written by F.F. (Rick) Coburn and Barbora Grochalova, Borden Ladner Gervais LLP (“BLG“)

On May 2, 2019, the Government of Ontario introduced Bill 108, the More Homes, More Choice Act, 2019. Bill 108 makes several amendments to the Environmental Protection Act (EPA), such as enhancing the enforcement powers available to the Ministry of the Environment, Conservation and Parks (the Ministry), and broadening the scope of use of administrative monetary penalties.

The Ministry has also proposed amendments to the Records of Site Condition Regulation (O. Reg.153/04, Brownfields Regulation), with the stated purpose of enhancing the economic viability of brownfield projects by reducing delays, enhancing clarity, and providing certainty for redevelopment. The proposed regulatory amendments are provided on the Environmental Registry.

Brownfields and Redevelopment

Brownfields are properties that have become contaminated as a result of prior industrial or commercial use. Brownfield properties are often left vacant or underutilized, and may be located in areas where redevelopment would otherwise be desirable.

The Brownfields Regulation governs the process of redevelopment of contaminated properties and converting them into more sensitive types of use. Part XV.1 of the EPA only allows the change of use of a property from those that are potential sources of contamination to the types of use that are more sensitive (e.g., residential, agricultural, community, or institutional use) upon first completing and filing a Record of Site Condition (RSC). An RSC summarizes the environmental condition of the RSC property, describes any contaminants that are found to exceed the applicable standard, and reports any remediation measures that were done, including the removal of contaminated soil from the RSC property.

Proposed Exemptions to the Requirement to File a Record of Site Condition

The proposed regulatory amendments exempt certain redevelopment from the requirement to file an RSC.

  • Low-rise buildings changing from commercial or community use to a mixed use adding either residential and institutional use would be exempt, as long as the residential and institutional use is limited to floors above the ground floor. This exemption would only apply to properties that have never been in industrial use, or as a garage, a bulk liquid dispensing facility, a gas station or a dry cleaning operation, and if the building envelope will not be changed during the redevelopment.
  • Properties which are not otherwise included in the exemption described above may be exempt in situations where a part of a building is already in residential or institutional use and another part is used for commercial or community use, and the property is converted for a more sensitive use. This exemption would similarly be applicable only to properties that have never been in industrial use, or as a garage, a bulk liquid dispensing facility, a gas station or a dry cleaning operation, and the building envelope will not be changed during the redevelopment.
  • The definition of community use is proposed to be amended by removing from the definition temporary roads that are required only during the early phases of construction. The effect of this change is that an RSC would not be required once the temporary roads are converted to residential use when the buildout is completed.  
  • The conversion of indoor places of worship to residential use is also proposed to be exempt from the requirement to file an RSC.
  • Indoor cultivation of crops using hydroponics or other cultivation methods that do not rely on soil from the property is proposed to be defined as industrial use, as opposed to the more sensitive agricultural use, if the building was previously in industrial, commercial, or community use.

Additional Situations Deemed not to Exceed the Standard

The brownfields regime requires that if the RSC property is contaminated, the concentrations of each contaminant must be sampled and evaluated against the generic site condition standard. If certain contaminants exceed the applicable standard, the owner of the RSC property must either undertake further remediation, or prepare a risk assessment that provides a site-specific plan to address the risk posed by the exposure to those substances.

The Brownfields Regulation already included a provision by which exceedances resulting from the application of road salt or other de-icing substances were deemed to be within the standard. The deeming provision was previously restricted only to road salt use on a highway by the Ministry of Transportation and road authorities, but that restriction would be removed by the proposed amendments. Three new situations are proposed to be added where exceedances on any property are deemed to meet the standard:

  • Exceedances resulting from a discharge of treated drinking water;
  • Exceedances in fill material where a contaminant exceeds the applicable standard but does not exceed the naturally occurring concentration typically found in the area; and
  • Exceedances that arise from the deposit of excess soil onto the subject property, if the concentrations are in accordance with the standards established as part of the proposed On-Site and Excess Soil Management Regulation. (This proposed regulation would establish a comprehensive excess soil management regime, and will be discussed in more detail in a future update.)

Reduced Requirement to Delineate Contaminants

The Brownfields Regulation prescribes the requirements for phase one and phase two environmental site assessments. One of the elements required of a phase two study has previously been the full delineation, vertically and laterally, of contaminants which exceed the applicable site condition standards.

The proposed amendments introduce a “non-standard delineation”, which would not require the delineation of the full extent of a contaminant on the phase two property in situations where a risk assessment for that property has been accepted by the Ministry. The phase two study must instead show that appropriate steps have been taken to locate the maximum concentration of each contaminant found on the property, and that any additional efforts to delineate the contaminant are unlikely to contribute significant or meaningful information.

The proposed amendments to the Brownfields Regulation also introduce other technical changes to how phase one, phase two, risk assessment and other environmental studies are to be completed.

While the Brownfields Regulation are not part of Bill 108, these proposed amendments are an important piece in the larger landscape of changing environmental and land-use laws in Ontario. The majority of the amendments are proposed to come into force on the day the regulation will be filed. The proposed regulatory amendments are provided on the Ontario Environmental Registry.


About the Authors

Rick Coburn is a partner in the Toronto office of Borden Ladner Gervais LLP. Rick practises in the area of environmental law with an emphasis on environmental aspects of major development initiatives and transactions involving heavy industry, transportation, energy and infrastructure projects. With members of BLG’s litigation practice groups, he also acts as defence counsel on regulatory prosecutions and in civil actions.

Barbora Grochalova

Barbora Grochalova is an associate in the Environmental, Municipal, Expropriation and Regulatory Group in our Toronto office. Barbora is member of the Canadian and Ontario Bar Associations and acted as Counsel for the Canadian Environmental Law Association prior to joining BLG. She has had exposure to many different areas of law, with a focus on environmental, administrative, and regulatory matters before the Ontario Municipal Board (OMB) and the Environmental Review Tribunal (ERT).

Amendments to the Canadian TDGR (Emergency Response Assistance Plan)

Recent amendments to the Transportation of Dangerous Goods Regulations (the Regulations) seek to enhance response to releases of dangerous goods; to ensure more effective, timely responses to incidents and clarify expectations of handlers and transporters of dangerous goods.

  • Those who “handle” or “transport” dangerous goods exceeding specified quantities are subject to the Emergency Response Assistance Plan (ERAP) requirements if there is no one “offering for transport” or “importing” the dangerous goods.
  • Applications for approval of an ERAP will now require a “potential incident analysis” that includes, at minimum, the four scenarios set out in s. 7.3 of the Regulations.
  • A person with an approved ERAP can authorize another to use it if authorization is provided in writing, without notifying Transport Canada.
  • A person who holds an ERAP must implement it when there is a release or anticipated release that endangers public safety.
  • A person who is required to report a release or anticipated release of dangerous goods must telephone the ERAP telephone number to report the incident if the expected or actual quantity of the release is in excess of the specified quantities.
  • Whenever an ERAP is implemented, an ERAP implementation report must be filed with CANUTEC at 1-888-CANUTEC (1-888-226-8832).
  • An incident report must be made in the event of a release or anticipated release of dangerous goods.

Background

In Canada, the transportation of dangerous goods is regulated under the Transportation of Dangerous Goods Act, 1992 (TDG Act), the Transportation of Dangerous Goods Regulations (TDG Regulations), and standards incorporated by reference into the TDG Regulations. The TDG Act and TDG Regulations comprise the regulatory framework for the ERAP program.

The TDG Act requires any person importing or offering for transport certain higher risk dangerous goods (for example chlorine, propane, crude oil) in quantities specified by the TDG Regulations to have an approved ERAP. In cases where no person is importing or offering for transport, persons handling or transporting these dangerous goods require an ERAP.

The scale of transportation incidents involving the release or anticipated release of dangerous goods and the danger they present require a different approach and strategy than most local authorities are trained to deal with. An ERAP is intended to assist emergency responders by providing them with specialized expertise, equipment, or response teams when needed. It also ensures that the risks associated with transporting these dangerous goods are well understood, and that appropriate measures are in place.

Between 2007 and 2017, TC recorded approximately 360 transportation incidents involving the implementation of an ERAP. There are currently over 1 000 ERAPs approved by the Minister covering nearly 400 dangerous goods.

A number of recommendations from the ERTF were related to improving the ERAP program. These recommendations focused on clarifying the processes for implementing an ERAP and collecting meaningful data to foster the continuous improvement of the ERAP program.

The primary objectives of the Regulations Amending the Transportation of Dangerous Goods Regulations (Emergency Response Assistance Plan) are to address the recommendations of the ERTF to improve the ERAP program and enhance public safety in the event of an incident during the transportation of dangerous goods. These objectives support the overall strategy to promote a safe, secure and efficient transportation system that contributes to Canada’s economic development and security objectives.

Economic Impact of Amendments

According to Transport Canada, these amendments will not result in nationwide cost impacts greater than $1 million annually, and they will not result in costs for small businesses that are disproportionately high. The small business lens will therefore not apply to these proposed amendments.

View more information on these amendments

U.S. EPA Seeks Comments On Draft Interim Recommendations For Addressing Emerging Contaminants PFOA And PFOS In Groundwater

Written by Todd W. Billmire, Bradford A. De Vore, and Richard E. Morton,
Womble Bond Dickinson

The United States Environmental Protection Agency (U.S. EPA) has released its Draft Interim Recommendations for Addressing Groundwater Contaminated with Perfluorooctanoic acid (PFOA) and Perfluorooctane sulfonate (PFOS) for public review and comment as part of the Agency’s PFAS Action Plan commitments.

EPA developed the draft recommendations based on the Agency’s current scientific understanding of per- and polyfluoroalkyl substances (PFAS) toxicity. The recommendations are intended to provide clear and consistent guidance for federal cleanup programs, including the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly referred to as “Superfund”). The recommendations are also intended to aide state and tribal cleanup programs, and in carrying out other federal regulatory authorities (e.g., federal facility cleanup programs and approved state Resource Conservation and Recovery Act corrective action programs). When finalized, the recommendations will provide guidance to responsible parties as they make site-specific characterization and cleanup decisions for PFOA and PFOS.

Installations with reported DOD action on elevated levels of firefighting foam chemicals, August 2017 (Source: U.S. Government Accounting Office)

The guidance provides recommendations on:

  • Screening levels, which are used to determine if levels of contamination may warrant further investigation;
  • Preliminary remediation goals (PRGs) to inform site-specific cleanup levels for PFOA and PFOS contamination of groundwater that is a current or potential source of drinking water. PRGs are initial targets for cleanup, which may be adjusted on a site-specific basis as more information becomes available.

EPA is seeking comments on all parts of the recommendations, including the use of EPA’s Lifetime Drinking Water Health Advisory level of 70 ng/L or parts per trillion as the recommended PRG for groundwater, or whether higher or lower values would be supported.

The 45-day public comment period will close on June 10, 2019.

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


About the Authors

Todd W. Billmire is a skilled litigator that defends companies in environmental litigation and related administrative and regulatory matters. His clients value his thoughtful problem solving approach to complex environmental matters and his environmental consulting background.

Todd represents a variety multinational manufacturers, energy companies, utilities, and municipalities in environmental litigation and compliance matters. Todd also has counseled and represented individuals and businesses in a wide range of business litigation matters, including class action litigation, securities litigation, and corporate and commercial disputes.

Brad De Vore is the Team leader of the Environmental and Toxic Tort practice at Womble Bond Dickinson. Toxic torts and high-stakes environmental litigation involve complex legal and technical issues, and multi-million-dollar liability exposure. Such cases can create media concerns and governmental enforcement actions that transcend the individual dispute. Environmental enforcement matters also can present significant business risks, perhaps crippling or even shutting down a company.

When clients face such threats they choose Brad for his and his top-drawer team’s experience and ability to tackle even the most complicated problems. Brad has spent more than 30 years developing a leading practice that includes extensive toxic tort and environmental litigation experience for many domestic and multinational clients in sectors such as energy, chemicals, electronics, construction and real estate development.

Brad’s experience with the fate and transport of chemicals and environmental agents, and their impact on human health and the environment, has led to successful results in many toxic tort, environmental and enforcement matters.

Richard E. Morton is a recognized leader in the environmental regulatory and litigation defense practice at Womble Bond Dickinson.  When clients face multi-million dollar environmental claims and regulatory enforcement challenges they turn to Ric because of his insight, tenacity and ability to untangle even the most complicated matters. Ric counsels companies in federal and state regulatory compliance and dispute resolution. His practice focuses on environmental regulatory compliance, litigation and enforcement defense, as well as toxic tort and products liability litigation.

Ric is particularly experienced in defending clients against bet-the-company damage claims related to chemical exposure; this includes public properties such as wastewater treatment systems. This work includes defending clients in various toxic tort and class action claims for personal injury and property damage from alleged contamination by benzene, chlorinated solvents, metals, particulates, petroleum constituents and other substances.

Global Emergency Spill Response Market forecast to reach $3.8 billion by 2025

Cognitive Market Research recently published their 17th edition of their Emergency Spill Response Market Report: Top Companies, Sales, Revenue, Forecast and Detailed Analysis. The report provides a comprehensive outlook of the Emergency Spill Response Market globally.

The Cognitive Market Research report gives a thorough examination of the market and, provides the market size and CAGR value for the forecast period 2019-2026, taking into account the past year as the base year. The study offers the major key aspects related to industry driving factors, opportunities, challenges, market threats, restraints, new products launch, geographical analysis and competitive tactics developed by key players in the competitive market.

A similar report published in 2018 by Research Trades estimated the global emergency spill response market size was $2.530 billion (USD) in 2018 and it is expected to reach $3.8 billion (USD) by the end of 2025, with a CAGR of 5.2% during 2019-2025.

The 2018 Research Trades report, Emergency Spill Response Market discusses the size, industry status and forecast, competition landscape and growth opportunity. It also provides analysis of the global emergency spill response market by companies, region, type and end-use industry.

The market is expected to have significant growth in the coming years owing to stringent environmental regulations across world to reduce the environmental pollution from spills.

Skimmers held the largest share of the market based on product type
Skimmers held the largest market size, in terms of product, primarily due to the increased demand for mechanical recovery methods for spill recovery. Unlike other methods, the mechanical recovery methods remove the spill material from the spill environment. Thus, skimmers are more effective in mitigating the environmental impact of the spills.

Major players in the global emergency spill response market includes Clean Harbors, Veolia Environnement, OSRL, Desmi A/S, US Ecology, Briggs Marine & Environmental Services and others.

Summary of Environmental Enforcement in British Columbia for 2018

The Province of British Columbia recently released its quarterly environmental enforcement summaries for the third and fourth quarters of 2018 to provide transparency on action taken against polluters.

The summaries detail a total of 1,728 environmental enforcement actions taken by the provincial government during this time period, along with $885,907 in associated penalties and fines.

In total, the Province issued 62 orders, 139 administrative sanctions, 31 court convictions, 14 administrative penalties and 2,412 violation tickets totalling $1,092,465 in fines in 2018. The most frequently contravened acts were the Wildlife Act with 1,040 violations, the Fisheries Act (Canada) with 375 violations and the Off-Road Vehicle Act with 344 violations.

To date, nearly 33,000 enforcement actions have been published in the summary and entered into the ministry’s environmental violations database.

Notable enforcement actions, for this period, include:

  • Radium Resort Group Ltd. was fined $200,000 for introducing waste-causing pollution and open burning of prohibited construction materials. Of that total, $190,000 was directed to Habitat Conservation Trust Fund.
  • Mackenzie Pulp Mill Corporation received penalties of $81,100 for failure to maintain a recovery boiler and failing to comply with permit limits for bivalent sulphur compounds and particulate matter.
  • Canadian Pacific Railway Limited received a penalty for $31,500 for failure to comply with an effluent discharge permit for its rail yard in Golden.
  • Savage Creek Golf Course Ltd. received a penalty of $70,000 for significantly exceeding fill-level maximums, while developing an 18-hole Richmond golf course expansion in the Agricultural Land Reserve.

In addition, B.C. conservation officers issued 95 violation tickets related to activities that could spark a wildfire in the third quarter of 2018. The Province has taken a strong stance to protect forests and communities in the face of one of the worst fire seasons in British Columbia’s history, with more than 1.3 million hectares burned. Fines for these violations were $1,150 each and totaled $108,900 during this same period.

To view the full quarterly environmental enforcement summary, visit British Columbia Natural Resource Compliance & Enforcement website.

Investment Firm commits $1 billion toward innovative companies building a sustainable economy

Generation Investment Management LLP, with offices in London and San Francisco, recently announced the close of its $1 billion Generation IM Sustainable Solutions Fund III. The monies in the fund will be invested in innovative companies with high-growth potential. Investments will be in the range of $50-150 million.

“We believe that we are at the early stages of a technology-led sustainability revolution, which has the scale of the industrial revolution, and the pace of the digital revolution,” said Al Gore, Chairman and Co-Founder.

The Generation Sustainable Solutions Fund will focus on investments in growth-stage businesses with well-established technology and commercial traction in three areas:

1. Planetary health: low carbon solutions transforming mobility, food, energy, and enterprise

2. People health: enabling health outcomes and a lower-cost, accessible healthcare system

3. Financial inclusion:supporting accessto finance and an equitable future of work.

“Sustainability is about both what a company does (the products and services it sells) and how
a company operates,” said Lila Preston, Partner and Co-Head of the Growth Equity platform.
“A hallmark of our investment approach is that we take a systems-level view and leverage our
long-term horizon and deep industry insights.”

Generation Investment Management LLP is dedicated to long-term investing, integrated sustainability research, and client alignment. It is an independent, private, owner-managed partnership established in 2004 and headquartered in London, with a US office in San Francisco. Generation Investment Management LLP has approximately $22 billion of assets under management.

New Brunswick Marine Research Centre to study impact on spill clean-up chemicals on aquatic life

The Canadian Ministry of Fisheries, Oceans and the Canadian Coast Guard recently announced that it is investing $2.4 million in scientific research at the Huntsman Marine Science Centre in New Brunswick.

With this investment, the Centre will study how spill response measures, such as the use of dispersant chemicals, affect fish and other aquatic species of interest. The goal of the project is to ensure the use of effective response measures, without harming ocean life in the event of a spill.

The Huntsman Marine Science Centre is located in St. Andrews, New Brunswick. The Centre is engaged in a broad range of marine science and applied research initiatives.

Huntsman Marine Science Centre (Source: huntsmanmarine.ca)

British Columbia’s New Groundwater Protection Model

The British Columbia Ministry of Environmental Protection and Sustainability recently posted a renewed version of the Province’s Groundwater Protection Model (GPM). The latest model version has been posted to the ministry’s webpage at: Policies & Standards – Province of British Columbia. Users will need to download the new model version to conduct calculations under Protocol 2 – Site-Specific Numerical Soil Standards (SSS) and Protocol 13 – Screening Level Risk Assessment.

Questions regarding the GPM and associated Technical Guidance 13 should be directed to George.Szefer@gov.bc.ca andAnnette.Mortensen@gov.bc.ca.

Also, the B.C. Environment Ministry has posted a draft version of seventeen new analytical methods for public comment. The analytical methods can be found at “Methods Posted for Review”.

Public comment on the new methods will be accepted until June 17, 2019. All public comments should be direct to  Joyce Austin, Senior Provincial Laboratory Specialist, Knowledge Management Branch at Joyce.Austin@gov.bc.ca.

Technical questions regarding the proposed new methods should be directed to Mark Hugdahl (BCELTAC Chair) atMark.Hugdahl@alsglobal.com.