New U.S. Requirements to Impact Hazardous Waste Generators in 2017

According to an Special Alert from the U.S. based law firm Manko, Gold, Katcher, Fox LLP (“MGKF”), the rules of the road applicable to facilities generating hazardous waste will change significantly in 2017 due to promulgation by the U.S. Environmental Protection Agency (“U.S. EPA”) of the final Hazardous Waste Generator Improvements Rule, which was published in the Federal Register on November 28, 2016 (81 Fed. Reg. 85372).

The Hazardous Waste Generator Improvements Rule represents the first major overhaul of the generator regulatory program, which has evolved piecemeal since the 1980s.  The U.S. EPA has reorganized the regulations to make them easier to navigate.

This rule finalizes a much-needed update to the hazardous waste generator regulations to make the rules easier to understand, facilitate better compliance, provide greater flexibility in how hazardous waste is managed, and close important gaps in the regulations.

Two key provisions where EPA is finalizing flexibility are:

  • Allowing a hazardous waste generator to avoid increased burden of a higher generator status when generating episodic waste provided the episodic waste is properly managed; and
  • Allowing very small quantity generator (VSQG) and small quantity generators to maintain their existing generator category subject to certain conditions despite an unusual “episodic” event that would otherwise bump the facility to a higher category.

In addition to finalizing key flexibilities, the rule enhances the safety of facilities, employees, and the general public by improving hazardous waste risk communication and ensuring that emergency management requirements meet today’s needs.  These changes impact areas such as making hazardous waste determinations, managing waste in satellite and central accumulation areas, labeling containers and tanks, and developing emergency planning and preparedness procedures.

In the enforcement context, the rule distinguishes between violations of “independent requirements” applicable to facilities simply by virtue of being generators, and failures to satisfy “conditions for exemption” that allow a facility to avoid obtaining a hazardous waste permit.  Facilities found to have neglected exemption conditions – many of which (like labeling a drum) appear relatively minor on their face – could experience significant consequences if deemed to be operating without a permit.

Further, the EPA is finalizing a number of clarifications without increasing burden including a reorganization of the hazardous waste generator regulations so that all of the generator regulations are in one place.

The rule becomes effective on May 30, 2017.  States authorized to implement the hazardous waste program will be required to adopt changes in the rule that are more stringent than the current federal program, and will have the option of adopting less stringent changes.

MGKF recommends facilities take time over the next few months to become familiar with the rule and be prepared to make any necessary adjustments before regulatory agencies begin enforcing the new requirements.

Canadian Government’s proposed Asbestos Regulations

The Canadian federal government recently introduced proposed Asbestos Regulations.  It also issued a Notice to manufacturers, importers, exporters, and users of asbestos and asbestos-containing products.

Under the proposed asbestos regulations, a prohibition would be placed on all future activities respecting asbestos and asbestos-containing products, including the manufacture, use, sale, offer for sale, import and export.

The Canadian federal Government Notice required industry to submit information on the manufacture, import, export, and use of asbestos and products that contain asbestos.  The information gathered will be used to inform the development of the proposed regulations and will ensure that future decision making is based on the best available information.

As a first step in the consultation process, interested parties were given the opportunity to submit comments on the approach set out.  Subsequently, interested parties will also be consulted in the spring of 2017, and additional information will be available on an asbestos information web page: Interested parties will have another opportunity to make written comments specific to the regulatory proposal during the mandatory consultation period that will follow the publication of the proposed regulations in December 2017.

Asbestos (Chemical Abstract Service Registry Number (CAS RN) 1332-21-4) is a commercial term given to six naturally occurring minerals that are incombustible and separable into filaments.

Historically, asbestos was mainly used for insulating buildings and homes against cold weather and noise. It was also used for fireproofing. While many uses have been phased out and alternatives are available, asbestos may still be found in products like:

  • cement and plaster
  • industrial furnaces and heating systems
  • building insulation
  • floor and ceiling tiles
  • house siding
  • car and truck brake pads
  • vehicle transmission components, such as clutches

The Government of Canada recognizes that breathing in asbestos fibres can cause cancer and other diseases, such as asbestosis, mesothelioma and lung cancer.

More information about the health impacts of asbestos can be found at Mesothelioma and Asbestos Awareness Center web site.


U.S. pipeline regulator issues rule to speed up notification time

The U.S. Pipeline and Hazardous Materials Safety Administration (PHMSA) recently issued a rule to improve pipeline operational safety, including a requirement for faster notification following a spill.

The rule says the operator must electronically or telephonically report notice of an accident or incident within one hour of confirmation, PHMSA said in a statement.

There have been growing concerns regarding the safety of pipelines transporting hazardous liquids, after activists spent months protesting plans to route the $3.8 billion Dakota Access Pipeline beneath a lake near the Standing Rock Sioux reservation, saying the project poses a threat to water resources and sacred Native American sites.

PHMSA’s rule also includes provisions for operator qualification, cost recovery and other pipeline safety changes and will become effective 60 days from the date of its publication in the Federal Register. It is scheduled to be published in the Federal Register on Jan. 23, 2017.

PHMSA said the rule also amends drug and alcohol testing requirements.  It now requires drug testing of employees after an accident and will allow exemption only when there is sufficient information that establishes the employees had no role in the accident.

The proposed changes come after incidents such as in 2010 when an Enbridge Energy Partners pipeline spill near Michigan’s Kalamazoo River leaked crude oil for about 17 hours before it was confirmed by control room operators.

Pipeline leak detection systems typically relay information to a control room, where trained operators are often required to distinguish between false alarms and real leaks.

Ontario Government to handle contaminated land at Stelco

As recently reported in the Hamilton Spectator, the Ontario Government stated it will assume the environmental legacy issues associated with contamination at the Stelco property in the north end of Hamilton.  The reason for the decision by the Ontario Government is to make it easier for the sale of the company and keep steelworker jobs.

U.S. Steel Canada (Stelco) is the current owner of the steelworks and is in negotiations to sell the company to Bedrock Industries, an American investment fund.  As part of the sale-purchase agreement, Bedrock Industries was reportedly willing to put forward $80 million in a one-time payment that would partially fund the clean-up.

The environmental clean-up costs at the Stelco property is unknown but could be astronomical.  As a point of reference, the Canadian and Nova Scotia governments committed $400 million in 2007 to clean-up contamination from the steel plant in Sydney, Nova Scotia.

The commitment by the Province of Ontario to backstop the future environmental clean-up costs in order to aid in the sale of a company is a first in the Province.  The reasoning behind the decision is that it makes the Stelco and the lands it sits on a potentially valuable investment.  Any costs bore by the Province in clean-up would be balanced by the taxes and other benefits accrued with the infusion of new ownership in Stelco and redevelopment of unused lands at the property.

As reported in the Hamilton Spectator, the land deal would work like this:

  • All 325 hectares of Stelco property off Wilcox Street would be turned into a land trust administered by the province, union representatives and probably other parties such as the city and the Hamilton Port Authority.
  • The land trust then would lease 120 hectares back to Stelco. The company would then be able to operate without fear of costs associated with the contaminated ground it is operating on.
  • The remaining 200 hectares or so would then be remediated to an industrial use standard with the contribution from Bedrock and potentially other funds. That land would then be sold or leased.
  • Profits from the sale or lease would then be used to assist in shoring up pension funds for Stelco workers as well as to help finance benefits to pensioners.

The land proposal is part of a larger deal that as part of U.S. Steel’s Companies’ Creditors Arrangement Act (CCAA) proceedings that have been continuing for two years.  CCAA has been compared proceedings under “Chapter 11” of the “Bankruptsy Code” in the United States.  If successful, Stelco will emerge from creditors’ protection under Bedrock ownership with a new lease on life.

Training Requirements in Ontario – Waste Transport Vehicles

The Ontario Ministry of the Environment and Climate Change (MOECC) recently updated the Guideline for Training Requirements for Drivers of Waste Transportation Vehicles (Guideline C-12, PIBS 7914e01).  The driver training guidelines are applicable for drivers who transport municipal waste, liquid industrial waste or hazardous waste.

Ontario’s General – Waste Regulation (Ontario Regulation 347) under the Ontario Environmental Protection Act ensures that wastes are effectively managed from the point of their generation to where they are ultimately processed or disposed of.  To provide this necessary control, the regulation includes definitions for different waste types and detailed requirements for a range of waste management activities.  The updated guideline deals with one of the major responsibilities for the transportation of municipal waste, liquid industrial waste or hazardous waste: driver training.

The Guidelines outline the major areas that drivers of vehicles used for the transportation of municipal waste, liquid industrial waste or hazardous waste need to be trained on which includes:

  • The operation of the vehicle and waste management equipment,
  • Relevant waste management legislation, regulations and guidelines,
  • Major environmental concerns for the waste to be handled,
  • Occupational health and safety concerns for the waste to be handled, and
  • Emergency management procedures.

For more information on driver training requirements, contact the John Nicholson, the editor of Hazmat Management Magazine.

Major Fine for Oil Spill in Alberta

As reported in the Edmonton Sun, the Alberta Energy Regulator (AER) recently fined Murphy Oil Company, based in Calgary, with environmental fine as a result of an incident in which oil spilled from an oil pipeline in 2015 near the Peace River.

AER issued a $172,500 administrative penalty to Murphy Oil Company after in concluded that an undetected spill about 490 km northwest of Edmonton released 1,429 cubic metres, or 1,429,000 litres, of condensate into the environment from approximately January 15 to March 1, 2015.

An AER investigation found that Murphy Oil failed to take reasonable action to ensure the leak detection system on the pipeline was capable of detecting early leaks, failed to evaluate operating or discontinued pipelines, failed to report the release of condensate, and failed to clean the spill, which caused damage to public lands, including soil, and a water body.

The company has been found in breach of a number of provincial legislation’s, including the Public Lands Act and the Environmental Protection and Enhancement Act.

The pipeline has since been repaired as Murphy Oil continues to clean the impacted area.


Emergency Response Training Exercises Conducted in Quebec

As reported by Canadian Underwriter, Transport Canada (TC) and Defence Research and Development Canada (DRDC) recently conducted a field exercise designed to improve Canada’s response capabilities in the event of an incident involving a train carrying flammable liquids, such as crude oil.

TC and DRDC, an agency of the Department of National Defence, conducted Exercise Athéna on Feb. 25 and 26 in Lévis, Que.  The exercise provided a “unique forum for petroleum and railway industry experts and the first response community to improve effectiveness when responding to incidents involving a train carrying flammable liquids,” a TC backgrounder explained.

On the first day, first responders attended in-class and field training where they learned about the Emergency Response Assistance Plan program and resources available from industry and TC.  They also received information on the appropriate practices, strategies and tools to use when responding to a train derailment, including how to conduct a comprehensive site assessment; how to identify railcars that can carry hazardous material and dangerous goods placards (i.e. labels that appear on the side of train tankers which identify the hazardous substance or flammable liquid that is being transported); and an overview of basic railway operations during an incident, and specialized industry response strategies and tactics.

On the second day, first responders were able to practice the skills and knowledge they received on the first day by participating in an exercise comprised of three rotations, with “industry instructors” providing guidance at each of the stations.  The stations involved either a virtual reality application or a real life scenario.

In particular, in the first scenario, participants faced a simulated train derailment.  Using tablets, they had to conduct a comprehensive site assessment, including the following aspects: identifying the type of railcar based on its physical features and using the markings to identify the contents; making a preliminary damage assessment from a safe distance; and developing a risk assessment that takes into account the risk to life, health, property and the environment.

In the second scenario, participants were faced with an actual fire using a replicated railcar prop. Participants were tested for the appropriate response strategies, techniques and procedures to use when dealing with this type of fire.

The third scenario consisted of a combination of three interactive activities related to the government’s Emergency Response Guidebook 2016, gas detection and air monitoring methods and exposing responders to the different types of industry response equipment.

The event will build on those from Exercise Vulcan in March in Maple Ridge, B.C.  The most recent exercise is one activity supported by the Government of Canada to improve response capabilities following the 2013 train derailment in Lac-Mégantic, Que.

The project is led by Transport Canada and funded through the Canadian Safety and Security Program, a federally-funded program led by DRDC’s Centre for Security Science, in partnership with Public Safety Canada.

Partners in the exercise included: first responders from rural Quebec, Association des chefs en sécurité incendie du Québec, École nationale des pompiers du Québec, l’Institut maritime du Québec, International Safety Research, Suncor Energy, CN Rail, CP Rail, Railway Association of Canada, Genesee and Wyoming Canada Inc., Emergency Response Assistance Canada, MD-UN, GHD Canada, Williams Fire and Hazard Control, Inc.

Environmental Fine for Dry Cleaner in Mississauga, Ontario

The owner of a dry cleaning establishment in Mississauga, Ontario recently plead guilty in the Ontario Court of Justice to one count of contravening the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations made pursuant to the Canadian Environmental Protection Act, 1999.



An inspection of the dry-cleaning facility, conducted in January 2016 by enforcement officers from Environment Canada and Climate Change, revealed that a container, in which a residue containing tetrachloroethylene was found, did not have a secondary containment system, which is in contravention of the Tetrachloroethylene (Use in Dry Cleaning and Reporting Requirements) Regulations.

The owner, Mr. Samy Iskander, was fined $5,000, which will be directed to the Environmental Damages Fund.

Tetrachloroethylene, also known as perchloroethylene or PERC, is a chemical used in Canadian dry cleaning.  Tetrachloroethylene can enter the environment through the soil, where it can damage plants, and it can find its way into ground water.

On March 29, 2000, tetrachloroethylene was added to “Schedule 1: List of Toxic Substances” of the Canadian Environmental Protection Act, 1999.  According to section 64 of the Act, a substance is classified as toxic if it may have an immediate or long-term harmful effect on the environment or if it may constitute a danger, in Canada, to human life or health.

Environment Canada warns that human exposure to high concentrations of PERC can inflict a host of health issues, including eye irritation, memory loss and even liver and kidney damage.  The department says PERC primarily enters the environment through the atmosphere, where it can damage plants, but it can also find its way into water systems, putting aquatic creatures at risk.

Between 2005-06 and 2008-09, Environment Canada conducted more inspections for PERC than anything else. The substance remains legal in Canada, but users must follow regulations and keep machines in good condition.

British Columbia Amendments to the Contaminated Sites Regulation (CSR)

The British Columbia government recently re-issued Administrative Bulletin 3 which prescribes the administrative process for legal instrument applications being submitted during the regulatory transition period ending October 31, 2017, when the new numerical standards under the Stage 10 Amendment to the Contaminated Sites Regulation (CSR) will come into force.

Legal instruments covered by Administrative Bulletin 3 include the following:

  • Determinations of Contaminated Site (whether a site is contaminated or not);
  • Approvals in Principle;
  • Certificates of Compliance; and
  • Contaminated Soil Relocation Agreements

The new CSR standards are those included in CSR B.C Reg. 375/96 including amendments up to B.C. Reg. 253/2016, October 27, 2016.

The Administrative Bulletin 3 bulletin applies to applications for legal instruments submitted to the Ministry of Environment (ENV) and to the Contaminated Sites Approved Professionals (CSAP) Society of British Columbia for high and non-high risk sites respectively. The CSAP Society of B.C. is an independent organization that accredits professionals to review environmental certification applications.

The B.C. Ministry of the Environment recently made available the PowerPoint presentations and audio recordings from webinars it hosted on the amendments to the Contaminated Site Regulation and how they impact stakeholders involved in contaminated sites.

Currently in B.C., there are over 14,000 contaminated sites being tracked in government records. This includes sites that are still going through the screening process (and are not yet confirmed as contaminated or not), sites being cleaned up, and sites confirmed as clean.  Information on a specific site can be found by accesses the province’s database map of site investigations and clean-ups.

B.C. contaminated soil landfill loses Environmental Permit

The British Columbia (B.C.) Ministry of the Environment (MOE) recently canceled the environmental permit for Cobble Hill Holdings for the operation of its contaminated soil landfill.  The landfill, located near Shawnigan Lake in British Columbia, had been use as a quarry.  A consortium of companies own and manage the landfill.  The companies include South Island Aggregates (SIA), Cobble Hill Holding (CBH), and South Island Resource Management (SIRM).  The permit, issued by the B.C. Environment Ministry permits the disposal of approximately 5 million tonnes of contaminated soil at the landfill.

In a written statement, Mary Polak, the B.C. Minister of the Environment stated, ““Effective immediately, I am cancelling the waste discharge permit for Cobble Hill Holdings because the company has failed to meet the requirements outlined in my Jan. 27 letter.

“The company was given 15 business days to provide three required documents and submitted only two prior to the deadline given. Specifically, the company failed to provide the Province with adjusted financial security in the form of an irrevocable letter of credit.

In the written statement, the Minister Polak further states that the company failed to respond to outstanding non-compliances and missed deadlines with respect to the permit.

The letter further states that B.C. MOE are taking actions to ensure material on the property is managed in a way that does not present a risk to human health or the environment.  The letter does not specify the exact nature of the actions.

The minister’s letter of cancellation and reasons for decision can be found at:

The cancellation of the permit by the Minister of the Environment follows the January 24th release of a judicial review of the permitting process in which Justice Robert Sewell documented misrepresentation during the approval process including conflict of interest and “false and misleading information.”

South Island Aggregates/Cobble Hill Holdings was granted a permit back in 2013 under the B.C. Environmental Management Act (EMA) to receive contaminated soils and ash and process it through bioremediation or landfilling, and discharge treated effluent to an ephemeral stream.  The permit is specific to contaminated soil management activities. There has been fierce opposition to the landfill since that time.

Sonia Furstenau, the Cowichan Valley regional director who led the fight against the landfill, said, “We are happy the government cancelled the permit, but the cancellation leaves a lot of unanswered questions about the cleanup.”

The landfill operation is occurring at a quarry operated by South Island Aggregates.  The quarry operations are regulated by the B.C. Ministry of Energy and Mines under the B.C. Mines Act.

There are approximately 100,000 to 200,000 tonnes of contaminated soil landfilled at the site.  The Minister of the Environment would not comment on if it threatened local health and the environment.  She said MOE technical staff would determine what would need to be removed.