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

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

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

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

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

SITE-BASED REMEDIATION CERTIFICATE

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

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

NEW REPORTING REQUIREMENT

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

APPLICATION OF TIER 1 VERSUS TIER 2 GUIDELINES

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

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

TIER 2 COMPLIANCE LETTER

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

NEW REMEDIAL MEASURES TIMELINE

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

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

NEXT STEPS

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

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


About the Authors

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

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

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

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

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

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

Are you ready for Ontario’s Excess Soil Management Regulation Changes?

by David Ngugan, Staff Writer

A breakfast and seminar session organized by ECOH Management Inc. was held on June 20th in Mississauga, Ontario.  The seminar included a presentation by Vice President Jeff Muir titled “Digging Deep – Are you ready for Ontario’s Excess Soil Management Regulation Changes?” about the upcoming changes to the Excess Soil Management Regulations. He spoke about the implications of the new regulations, including cost, the depletion of sites with capacity to accept waste soils, illegal dumping and lack of tracking, and inconsistent oversight and criteria for the management of excess soils.

Jeff Muir, VP Environmental, EHOS

Jeff spoke about the current 2014 guidelines – “Management of Excess Soil – A Guide for Best Management Practices” that gives options for the management of excess soils both onsite and offsite,  as well as best management practices for project leaders. These include having an excess soil management plan to indicate where the soil will go and a sampling and analysis plan, including soil characterization and characterization of the receiving site.

He also pointed out some issues with the guidelines, particularly in the lack of clarity regarding who is responsible for the excess soil, as the term “project leader” is loosely defined. In addition, the requirements for proper characterization of soils are not clearly defined, such as a minimum number of samples required for a specific volume of soil. Jeff added that currently, many receiving sites are usually managed by municipalities that issue permits for the receiving of excess soil, and this presents opportunities for inconsistencies between various sites.

The proposed regulations enhance the responsibility and accountability of the generators of excess soil, as well as requiring an Excess Soil Management Plan (ESMP) for high risk or high volumes of soil. Under the proposed regulations, a ESMP should consist of a description of the project area and description and ownership, the names of qualified persons and contractors, excess soil sampling plan and characterizations, a list of receiving sites, a soil tracking system, and a record of the cumulative amount of soil moved.  The new regulations will also establish a registry where ESMPs will be submitted.

Jeff concluded his presentation by stressing the importance of preplanning – have all the costs, receiving sites, and estimated volumes of soil prepared ahead of time, as well as to focus on working with ESMPs well ahead of the promulgation of the regulations.  It is anticipated that the regulations will be promulgated this calendar year.

Canadian Government Introduces Amendments to Fisheries Act: Initial Thoughts

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

McCarthy Tétrault LLP

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

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

A Quick Summary

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

Salmon Spawning (Photo Credit: D. Herasimtschuk)

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

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

A Closer Look

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

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

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

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

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

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

 

Protection of all fish and fish habitat.

 

 

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

 

 

Provided Indigenous traditional knowledge must inform habitat decisions.

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

 

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

 

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

 

No provisions regarding the independence of inshore licence holders.

 

 

 

 

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

Enabling regulations to support independent inshore licence holders.

 

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

 

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

 

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

 

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

 

 

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

 

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

 

No legal requirements related to rebuilding fish stocks.

 

 

 

 

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

Enabling regulations respecting the rebuilding of fish stocks.

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

 

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

 

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

 

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

 

Insufficient capacity to enforce provisions under the Act.

 

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

 

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

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Photo Credit: Nature Canada