Company fined $564,000 for violating VOC limits in CEPA Regulations

An automotive parts supplier based in Quebec, Les Entrepôts A.B. inc., was recently fined a total of $564,000 after pleading guilty, on October 4, to three counts of contravening the Canadian Environmental Protection Act, 1999 and the Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations, which are part of the Act.

An investigation by Environment and Climate Change Canada (ECCC) enforcement officers revealed that the company had imported, offered for sale, and sold automotive refinishing products that contained volatile organic compounds in excess of the allowable limit. The company also failed to comply with an environmental protection compliance order issued by an enforcement officer, under the Canadian Environmental Protection Act, 1999.

The company received two fines of $125,000 for importing and selling the products, respectively, totaling $250,000, and a fine of $150,000 for failing to comply with an environmental protection compliance order. In addition to the fines on the three counts, the company received an additional $164,000 fine for financial gains. This amount represents the profits generated by the sale of non-compliant automotive refinishing products. The total fines will be directed to the Environmental Damages Fund.

In addition, the judge ordered the confiscation and destruction of the automotive refinishing products seized at the company’s expense, as well as the publication of an article in Le Carrossier magazine (Autosphere.ca) within six months. The article must contain the facts of the offence and the details of the sentence.

As a result of this conviction, the company’s name will be added to the Environmental Offenders Registry.  The Environmental Offenders Registry contains information on convictions of corporations registered for offences committed under certain federal environmental laws.

Volatile organic compounds are primary precursors to the formation of ground-level ozone and particulate matter, the main components of smog. Smog is known to have adverse effects on human health and the environment.

It is estimated that over 5 kilotonnes of VOCs are emitted each year from coatings and surface cleaners used in automotive refinishing operations in Canada. The Volatile Organic Compound (VOC) Concentration Limits for Automotive Refinishing Products Regulations are expected to reduce the annual VOC emissions from these sources by approximately 40%.

The Automotive Refinishing Products Regulations set concentration limits of volatile organic compounds for 14 categories of automotive refinishing products identified in the schedule of the regulations.

The Regulations are aligned with limits set by the California Air Resources Board suggested control measure (CARB SCM) for automotive refinishing products. During regulatory development, it was determined that the greatest potential reduction in Canada would be achieved by establishing VOC concentration limits similar to the CARB SCM. Other jurisdictions in the United States, as well as the European Union, have either already established similar limits or are considering them. Therefore, aligning the Regulations will facilitate consistency across North America, provide a level playing field to manufacturers and importers of automotive refinishing products, and provide consistent treatment across jurisdictions.

 

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).

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.

Ontario’s Proposed Excess Soil Regulations: Effects & Benefits

Written by Abimbola Badejo, Staff Writer

Where do the soils excavated from our
basements go? Our backyards, neighbors’ backyards or into our drinking water?

Background

Soil is an important natural resource that needs to be conserved for sustainability and hygienic reasons. Numerous activities and projects such as construction, mining, contaminated site remediation, expansive archaeological projects, etc., require soil excavation.

The excavated soil is used to refill the vacant land or removed from the project site as “excess soil” left over from a project. The disposal of excavated soil however, posses a challenge for the contractors undertaking the projects as the receiving sites or facilities for excess soils are either far, unavailable or result in expensive transportation costs.

In certain instances, this problem has resulted in illegal dumping of excess soils onto farmers fields and vacant lands across Ontario, without the appropriate consideration of soil quality or dumping location. A 2018 CBC story on illegal dumping estimated the amount of illegal soil dumped in Ontario could annually fill Rogers Centre, home of the Toronto Blue Jays, sixteen times.

Aerial view of Rogers Centre, Toronto (Photo by Tim Gouw from Pexels)

Previous Government Reactions

To tackle the problem of illegal excess soil dumping, the Ontario Environment Ministry released a guidance document titled: “Management of Excess Soil – A Guide For Best Management Practices.” There was no obligation for compliance to the guidance document and thus the illegal practice continued.

With illegal dumping continuing in the province, the Environment Ministry released of a legal document which required compliance. The legal document, Regulatory Framework on Excess Soil Management, was made to clarify the responsibilities of excess-soil generators and a list of requirements guiding the sampling and analysis, soil characterization, tracking and dumping of excess soils. The Excess Soil Management proposal was posted on the Environmental Registry of Ontario for public comments from concerned stakeholders for two months in 2017; and afterwards an amended proposal implementing changes influenced by the comments was released.

The Latest Regulatory Proposal

With the Ontario election in the June of 2018 resulting in a change of government, the regulatory proposals for excess soil management were put on hold. On May first, the government issued its an updated proposal for the management of excess soil.

The proposed Excess soil regulatory proposal and amendments to Record of Site Condition (Brownfields) Regulation have the following features:

  • A revised approach to waste designation, where excess soil is
    considered waste and should be treated as one according to Part V of the Environmental Protection Act 1990 (Waste
    Management); unless the relocated excess-soil is reused in an appropriate way
    or is deposited at a final receiving site that has appropriate approval
    documents,
  • Reduced regulatory complexity, where waste related approvals
    for low-risk soil management activities may no longer be required, provided
    certain requirements are met,
  • Flexibility for soil reuse through a beneficial Reuse
    Assessment Tool to develop site-specific standards and to provide a better
    understanding of environmental protection,
  • Improving safe and appropriate reuse of excess soil by
    quality soil testing, tracking and registration of soil movements for larger
    and riskier generating and receiving sites,
  • Landfill restrictions on clean soil deposit unless it is
    required for cover.

Once promulgated, the transition phase into the new regulations will take place over the period of 2 to 3 years, where the more flexible excess-soil reuse regulations, such as the amended Record of Site Conditions (O. Reg. 153/04), are already in effect. Other amendments, such as excess soil management planning and landfilling restrictions will come into effect between 2020 and 2022, to allow time for the production of alternative excess soil reuse approaches.

Benefits of
Policy

From an environmental perspective,
the proposal’s call for some regulatory key points are quite sustainably
beneficial. Registering and tracking the excess soil movement from excavation
source to receiving site or facility will minimize illegal dumping.
Transporting and illegal dumping of the excess soils is a source of concern
because excavated soil is a source of trapped Greenhouse Gases (GHG).
Inappropriate tipping of a considerable amount of excess soil will result in
the release of a significant amount of GHG in the atmosphere. Moreover,
vigorous testing and analysis of the excess soils meant for landfill will
ensure that contaminated soil is properly disposed of as hazardous waste,
instead of illegally covering it up at a landfill where is poses a threat as a
potential source of contamination to ground water.

Excess Soil
Market Impact

Economically, implementing the excess soil management policy will be beneficial to contractors and will encourage them to be more proactive in making their Excess Soil Management Plan (ESMP) in favor of excess soil reuse. This will assist in developing alternative, better and cheaper ways of reusing their excess soils; or selling off some (or all) of the excavated soils to a buyer,  who will put it to good use.

In addition, there has been a report of excess soil “black market” emergence in the industry; where contractors are avoiding the higher costs of tipping at provincially regulated designated facilities in exchange for illegal tipping at ignorant landowners’ fields. These landowners are receiving the excess soils at a small fee from the contractors, without consideration for the quality of the soil and possible environmental effect in the future. Implementation of the policy will minimize the expansion of this market, especially because of the registration and tracking requirements of the excess soil load and the approval documents required of the receivers.

Repeal of the Ontario Toxics Reduction Act, 2009

The Ontario government recently announced that it will repeal the Ontario Toxics Reduction Act, 2009 and revoke its associated regulations on December 31, 2021.

The purpose of the Toxics Reduction Act, 2009 is to prevent pollution by reducing the use and creation of toxic substances and inform Ontarians about those substances. Under the statute, industry is required to develop toxic reduction plans, and report publicly each year. Implementation of plans is voluntary.

The decision to revoke the statute was reached by the government following consultation with stakeholders and in keeping with the government’s Ontario Open for Business Action Plan. During the consultation period, the government received a total of 431 comments from various stakeholders.

The reason given by the government for the planned repeal was that the Toxics Reduction Program has not achieved meaningful reductions. The government stated that results indicate an overall reduction of only 0.04% of substances used, created and released for all regulated facilities.

This graph illustrates the number of substances as reported to the Ontario Environment Ministry under the Toxics Reduction Regulations by facilities for 2013

In repealing the Toxics Reduction Act, 2009 in 2021, the Ontario government believes that it will eliminate duplication and overlap with the federal government’s Chemicals Management Plan program under the Canadian Environmental Protection Act 1999.

Regulated facilities in Ontario still have to maintain reporting under the Toxics Reduction Act, 2009 and its associated regulations until December 31, 2021.

Existing facilities with current plans for substances that meet reporting thresholds are required to report annually on:

  • the amounts of those substances used, created, contained in product; and
  • the progress in reducing those substances.

Until the repeal, facilities can continue to voluntarily amend their plans. Summaries of amended plans must also be made available to the public.

Southern Railway pleads guilty to Canadian TDGA violations

New Brunswick Southern Railway recently pled guilty to two of the 24 charges that had been laid against it under the Canadian Transportation of Dangerous Goods Act (TDGA). The charges deal with the mislabeling of tank cars by untrained staff.

The case stems from a Transport Canada investigation triggered by the Lac-Mégantic derailment and fire that killed 47 people in Quebec in July 2013.

Although that train the derailed at Lac-Mégantic  belonged to another railway — Montreal, Maine and Atlantic — and was travelling on that company’s track, the crude rail cars were destined for Saint John, New Brunswick and were to travel on NB Southern Railway track.

“The offences that we had in this case has no relation to Lac-Mégantic whatsoever,” federal prosecutor Denis Lavoie told reporters outside the courthouse following the guilty pleas made by Southern Railway

Investigators found that 6,800 tank cars of crude sent out prior to the Lac-Mégantic disaster had incorrect documentation prepared by untrained and uncertified NB Southern staff.

Twelve of the initial charges, under the Transportation of Dangerous Goods Act, related to failing to create proper shipping documents for the purpose of transporting petroleum crude oil. The other 12 charges related to having unqualified personnel complete the documentation.

Through a settlement, New Brunswick Southern Railway agreed to pay $10,000.00 in fines and $40,000 to be invested in improving the safety of the transportation of dangerous goods in Canada.

The Honourable Marc Garneau, Minister of Transport, stated the following in a press release: “As Minister of Transport, my thoughts continue to go out to the community of Lac-Mégantic and all those affected by this tragedy. Today, we close another chapter in this tragic event through a settlement that we have reached with New Brunswick Southern Railway.”

Quebec to Track Contaminated Soil Movement in Real Time

The Quebec Government recently announcement that it will adopt the regulation that will include the implementation of a system in which the movement of contaminated soil will be tracked in real time. Under the tracking system, the site owner, project manager, regulator, carrier, and receiving site, and other stakeholders will be able to know where contaminated soil is being shipped from, where it’s going, its quantity and what routes will be used to transport it.

Contaminated soil will be tracked in real time, starting from its excavation, through a global positioning system. The system, Traces Québec, is already in place in Montreal as part of a pilot project launched last March.

Traces Quebec , an initiative of Réseau Environnement in partnership with WikiNet , offers the first integrated traceability solution for contaminated soils in Quebec. Performing on a web platform, the Traces Quebec traceability system allows contaminated soil owners to follow in real time the movement of their materials and to have an encrypted, confidential and archived trace of the displaced materials. In an era of transparency and eco-citizenship, Traces Québec allows contaminated soil owners to demonstrate beyond any doubt their exemplary management of these materials.

Combining the Internet of Things (IoT) and artificial intelligence, Traces Quebec is an independent application that allows complete traceability of materials to their destination. Transactions are encrypted, unalterable and private, and compatible with smart phones and conventional GPS fleet systems.

With a system such as Traces Québec, all players in the field in Quebec will benefit from increased traceability and responsible management of transported excavated materials, particularly treatment, transfer stations and landfills, which will increase the volume materials shipped to their sites. Owners of these materials concerned with their good management, including municipalities, will also come out winners and can easily testify to their good management. Management in compliance with the laws and regulations concerning the protection of the environment; this is the essential contribution of Traces Québec.

The Quebec government also intends to increase he number of inspections on receiving sites. Furthermore, fines will be increased for those taking part in illegal dumping — from $350 to $3 million depending on the gravity of the offence, the type of soil and if they are repeat offenders, among other criteria.

How the GPS tracking system works

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

Written by by Lawrence E. Culleen, Arnold & Porter

Prioritization of Chemicals

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

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

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

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

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

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

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

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

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

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

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

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

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

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


*Camille Heyboer also contributed to this Advisory.

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

About the Author

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

Time To Clean Up: Alberta’s Revamped Remediation Regulation

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

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

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

1. Deadlines for completing remediation and submitting reports; and

2. Obtaining remediation certificates.

Deadlines for Remediating Contamination and Submitting Reports

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

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

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

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

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

Remediation Certificates and Tier 2 Compliance Letter

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

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

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

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

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

Conclusions and Further Thoughts

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

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

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

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

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


About the Authors

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

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

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

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

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

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

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

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

British Columbia intends to improve waste soil relocation regulations

by Max Collett, Norton Rose Fulbright

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

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

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

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

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


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

About the Author

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