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Setting New Legal Standards And Timelines: Alberta’s Remediation Regulation

Article by Alan Harvie, Norton Rose Fullbright Canada LLP

Alberta Environment and Parks (AEP) has amended regulations that will require all contamination caused by spills that are reported to regulators after January 1, 2019 to be delineated and assessed as soon as possible through a Phase 2 environmental site assessment that meets AEP’s standards and that is then either remediated within two years or subject to an approved remedial action plan with an approved final clean-up date. These are significant departures from the current requirements.

On June 1, 2018 the Remediation Certificate Amendment Regulation was passed into law under the Environmental Protection and Enhancement Act (EPEA). It amends the existing Remediation Certificate Regulation in a number of important ways, including changing the name to the Remediation Regulation.

Groundwater monitoring wells

The Remediation Regulation will be administered by the Alberta Energy Regulator (AER) for contamination at upstream oil and gas sites, such as wells, pipelines and facilities, and by AEP for all other sites.

Under the EPEA, a person responsible for the release of a substance into the environment that causes or has the potential to cause an adverse effect is under a legal duty, as soon as they know about the release or ought to have known about it, to report it to regulators. They must also, as soon as they know or ought to have known about the release, take all reasonable measures to repair, remedy and confine the effects of the substance, remove or otherwise dispose of the substance in such a manner as to effect maximum protection to human life, health and the environment and restore the environment to a condition satisfactory to the regulators.

Although persons have always been legally required, under the EPEA, to clean up spills, historically there was no legal requirement as to how a person was to assess contamination or any specific time limit as to how long a person could take to remediate the spill as required by the EPEA. This has now changed.

New timelines

The Remediation Regulation requires that a person responsible for a spill that is reported after January 1, 2019 must:

  • As soon as possible, either remediate the spill to meet the criteria set out in the Alberta Tier 1 and 2 Soil and Groundwater Remediation Guidelines and submit a report to the regulators about the remediation or undertake a Phase 2 environment site assessment of the site that meets the requirements of AEP’s Environmental Site Assessment Standard.
  • If the site cannot be remediated to the satisfaction of the regulators within two years, then the person responsible for the spill must submit a remedial action plan (RAP) that complies with AEP’s Alberta Tier 1 and Tier Soil and Groundwater Remediation GuidelinesEnvironmental Site Assessment StandardExposure Control Guide and Risk Management Plan Guide.
  • The RAP must include a period of time for completion of the remediation that is acceptable to the regulators.
  • The person responsible must take the remedial measures set out in the approved RAP by such time.

New legal standards

The Remediation Regulation previously incorporated into law the requirements to use the Tier 1 and 2 Soil and Groundwater Remediation Guidelines for obtaining a remediation certificate under the EPEA. It now requires that the Guidelines also be followed for assessing contaminated sites and therefore eliminates some historical practices in which persons responsible for spills used other clean-up guidelines or criteria.

The Remediation Regulation also requires the use of the Environmental Site Assessment Standard. The Standard sets out how contamination is to be vertically and horizontally delineated and assessed. The Remediation Regulation requires that this work be done within two years.

If the spill cannot be remediated within two years, then a RAP which meets the Exposure Control Guide and the Risk Management Plan Guide, and which has been approved by the regulators, must be in effect at the end of the two-year period. For some large contaminated sites, it may be challenging to fully delineate the contamination, develop a RAP and have the regulators approve it within two years. Furthermore, the clean-up under the RAP must have a stated end point.

Abandoned oil well equipment

These changes diverge from historical practices where, in some cases, contamination delineation has taken several or more years, and remedial actions, if any, have not been well planned and have had no fixed end point.

Implications

The implications of the Remediation Regulation for persons responsible for contamination are such that they will no longer be able to ignore or may only be able to slowly proceed with assessing contamination or simply monitor it over the long term. Concrete steps must now be taken according to set time periods and such steps must comply with AEP’s guidelines and standards.

Next steps

As mentioned, the new requirements to delineate and remediate a site apply only to spills reported on or after January 1, 2019. Before then, AEP is expected to release further guidance, host stakeholder workshops and potentially amend the Remediation Regulation.

 

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

This article was first published on the Norton Rose Fulbright Canada LLP Website.

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About the Author

Alan Harvie is a senior partner at Norton Rose Fulbright Canada LLP and practices out of the Calgary office.  He has practised energy and environmental/regulatory law since 1989 and regularly deals with commercial, operational, environmental and regulatory issues, especially for the upstream oil and gas, energy, waste disposal and chemical industries. He is a member of our energy and environmental departments.

Mr. Harvie also has significant legal experience in acting for the oil and gas industry in commercial transactions and regulatory matters, including enforcement proceedings, common carrier and processor applications, forced poolings, downspacings and holdings, rateable take, and contested facility, well and pipeline applications. He has also dealt extensively with commercial, environmental and regulatory issues concerning thermal and renewable power plants, electrical transmission and distribution lines, tourism and recreation projects, forestry, mining, agriculture, commercial real estate, industrial facilities, sewage plants, hazardous waste landfills and treatment facilities, transportation of dangerous goods and water storage reservoirs.

Mr. Harvie regularly advises clients about environmental assessments and permitting, spill response, enforcement proceedings, contaminated site remediation, facility decommissioning and reclamation, chemical compliance (DSL, NDSL, MSDS and HMIRC), nuclear licensing, crude-by-rail projects and product recycling and stewardship requirements.

 

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.

BC Seeks Feedback on Second Phase of the Spill Response Regime

WRITTEN BY:

Bennett Jones LLP

David Bursey, Radha Curpen, and Sharon Singh

[co-author: Charlotte Teal, Articling Student]

Phase-2 to BC’s Spill Response Regime

The British Columbia government is moving forward with the second phase of spill regulations, announcing further stakeholder engagement on important elements, such as spill response in sensitive areas and geographic response plans. The government will also establish an independent scientific advisory panel to recommend whether, and how, heavy oils (such as bitumen) can be safely transported and cleaned up. While the advisory panel is proceeding, the government is proposing regulatory restrictions on the increase of diluted bitumen (dilbit) transportation.

The second phase engagement process follows the first phase of regulatory overhaul introduced in October 2017, when the Province established higher standards for spill preparedness, response and recovery.

Photo Credit: Jonathan Hayward/Canadian Press

Feedback and Engagement

The Province is planning an intentions paper for the end of February 2018 that will outline the government’s proposed regulations and will be available for public comment.

In particular, the Province will seek feedback on:

  1. response times, to ensure timely responses to spills;
  2. geographic response plans, to ensure that resources are available to support an immediate response that account for the unique characteristics of sensitive areas;
  3. compensation for loss of public and cultural use of land, resources or public amenities in the case of spills;
  4. maximizing application of regulations to marine spills; and
  5. restrictions on the increase of dilbit transportation until the behaviour of spilled bitumen can be better understood and there is certainty regarding the ability to adequately mitigate spills.

What this means for industry

This second phase was planned follow up to the October 2017 regulations. Many of the proposed regulatory changes have been part of ongoing stakeholder discussions for the past few years. However, the prospect of permanent restrictions or a ban on the increased transportation of dilbit off the coast of B.C. and the prospect of further regulatory recommendations from the independent scientific advisory panel creates uncertainty for Canada’s oil sector.

The government’s emphasis on environmental concerns related to bitumen and its recent initiatives to restrict oil exports to allow time for more study of marine impacts will further fuel the national discourse on how to export Canada’s oil to international markets from the Pacific Coast.

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This article was first published on the Bennett Jones LLP website.

About the Authors

New spill reporting, response and recovery requirements in British Columbia

As reported by Norton Rose Fulbright, the Province of British Columbia recently brought into force a new land-based spills regime and three new regulations requiring transporters of liquid petroleum products to have provincial spill response plans, to test such plans and to report and clean up spills. The new regulations apply to two categories of people:

  • “regulated persons,” which are rail and highway transporters in possession, charge or control of 10,000 litres (62.898 barrels) or more of liquid petroleum products and pipeline operators with any quantity of liquid petroleum products in their pipeline; and
  • “responsible persons,” which are persons in possession, charge or control of a substance when a spill occurs or is imminent.

The three new regulations are the Spill Contingency Planning Regulation, the Spill Preparedness Recovery Regulation and the Spill Reporting Regulation.

Spill contingency planning

Regulated persons are required to develop and maintain spill contingency plans based on a worst-case scenario spill. Investigations, tests and surveys must be undertaken to determine the magnitude of the risks to human health, the environment and infrastructure from a worst-case spill. Pipeline and rail transporters must have their spill contingency plans in place by April 30, 2018, while trucking firms have until October 30, 2018.

Spill response efforts have failed to contain an estimated 110,000 litres of diesel and other petroleum products from the tugboat Nathan E. Stewart, which ran aground Oct. 13 in the Seaforth Channel near Bella Bella. (Photo Credit: Ian McAllister/CBC)

It is important to note that, while the spill planning obligations may resemble transportation of dangerous goods-type plans, they impose new requirements.

Spill reporting

New spill reporting requirements require a responsible person to immediately report any intentional or unintentional spill of a substance into the environment that may cause, is causing or has caused an adverse effect to water, the environment, human health or property if the volume of the substance exceeds the amounts set out in a schedule to the Spill Reporting Regulation or if the substance has or is likely to enter a body of water, regardless of the volume. Natural gas spills greater than 10 kg and releases from breakages of pipelines or fittings operated above 100 psi must also be reported.

The new regulation expands the scope of spills that must be reported, as it removes the previous volume/quantity threshold for spills to water.

It also expands the information that must be reported.

If a spill occurs or is imminent, a verbal report must immediately be made to the BC Provincial Emergency Program’s spill reporting hotline (1-800-663-3456) by the responsible person. New requirements stipulate the initial report must include the name of the owner of the spilled substance and a description of the source of the spill.

Starting on October 30, 2018, a written report must also be made within 30 days of the spill, or as soon as practicable on the minister’s request. An end-of-spill report must also be made within 30 days of the end of a spill’s emergency response activities.

Spill response

A responsible person must ensure persons with the skill, experience, resources and equipment arrive at the spill site within a prescribed period and activate an incident command system. They must also ensure actions are taken to address the threat or hazard caused by the spill, including assessing, monitoring and preventing the threat or hazard; stabilizing, containing and cleaning up the spill; identifying the immediate and long-term risks and impacts of the spill; and taking steps to resolve or mitigate such risks and impacts.