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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.

Forecast for U.S. Federal and International Chemical Regulatory Policy 2019: Hazardous Materials

The ACTA Group of Bergeson & Campbell PC recently wrote an article in the National Law Review (NLR) forecasting the U.S. federal and international chemical regulatory policy related to hazardous materials for the coming year. The two major areas covered are hazardous materials transportation and trade.

Under hazardous materials transportation, the NLR article predicts that the
The U.S. Department of Transportation’s (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) will face the challenge of a growing burden on it as the scope and complexity of its mission grows. The article predicts this pressure will require the PHMSA to fundamentally rethink how it will use data, information, and technology to achieve its safety goals.

The article states that new information and research will drive much of what PHMSA undertakes in 2019. Advances in technology, enhanced commerce, and a rapidly evolving global trade in hazardous materials must be matched by PHMSA if it is to satisfy its mandates. At this point, PHMSA appears to recognize these new challenges and is poised to maintain its highly honed edge on hazardous materials transportation.

Specific actions that PHMSA will undertake in 2019 include the following:

  • Legislative requirements in the Fixing America’s Surface Transportation (FAST) Act, especially as it applies to high hazard flammable trains – PHMSA is slated to promulgate a final rule pursuant to the FAST Act that will expand the applicability of comprehensive oil spill response plans based on thresholds of liquid petroleum that apply to an entire train ;
  • Transportation of lithium batteries by air;
  • Conversion of special permits;
  • International standards harmonization; and
  • Identifying research gaps and determining priorities.

The NLR article states that PHMSA can be expected to continue to promulgate rules in compliance with its statutory mandates but it also recognizes the need to shore up gaps and to keep pace with an accelerating array of products that are transported in commerce. New information and research will drive much of what PHMSA undertakes in 2019. Advances in technology, enhanced commerce, and a rapidly evolving global trade in hazardous materials must be matched by PHMSA if it is to satisfy its mandates.

With respect to U.S. trade with other countries, the NRL article discusses the five pillars of U.S. trade policy:

  1. Trade Policy that Supports National Security Policy;
  2. Strengthening the American Economy;
  3. Negotiating Trade Deals that Work for All Americans;
  4. Enforcing and Defending U.S. Trade Laws; and
  5. Strengthening the Multilateral Trading System.

Specific trade actions are discussed in the NRL article that apply hazardous materials including the new agreement that replaces the North American Free Trade Agreement and the new focus of the U.S. on bi-lateral trade agreements.

Is Ontario “Open for Business” when it comes to Excess Soil Management?

by  Grant Walsom, XCG Consultants

Since the 2013 call for a review in the regulatory gaps surrounding the ability for enforcement on mismanagement of excess soils in Ontario, the Ministry of Environment (now called Ministry of Environment, Conservation and Parks – MECP) has tirelessly worked towards a proposed Excess Soil Regulatory package for Ontario.  The efforts have included an unprecedented process of stakeholder listening sessions, consultations and engagement group meetings and inter-Ministerial reviews over the past 5 years.

The proposed Excess Soil Regulatory Package was formed through 2 separate postings on the Environmental Bill of Rights (EBR) and is reportedly ready for Cabinet Approval.  Further, the regulatory package is formulated with general overall acceptance by the construction and development industry in Ontario as well as the supporting industries (i.e., legal, consulting, laboratories) and municipalities.  It is generally agreed that the proposed Regulation outlines possible opportunities for beneficial reuse with sustainable considerations (examples would be reduced truck traffic and reduced greenhouse gases creation).

We are coming to understand that the current Conservative Provincial Government is strongly opposed to a majority of initiatives created by the previous Liberal Government.  The Conservatives are in favour of the red-tape reduction, streamlining operations and fiscal responsibility.  In fact, there is now a Deputy Minister of Red Tape and Regulatory Burden Reduction in the Ontario Cabinet.  His job is to make Ontario “Open for Business.”  Any new Regulation such as those being reviewed by MECP could certainly be viewed as counter-productive in terms of red-tape reduction.    However, with the release of the Made-in- Ontario Environment Plan on November 29, 2018, it appears that Excess Soil Regulation will be enacted in some form in the not-to-distant future.  There will no doubt be some changes to the proposed Regulatory package, but it is good to see that Regulation will proceed.

To date, one of the biggest challenges that the enforcement regime of the Environment Ministry had was the gap in how excess soil (impacted with contaminants or not) could be classified as a “waste material” if it’s not managed properly or if it’s illegally dumped.  We have all seen the extensive media coverage of a number of illegal dump sites, innocent property owners mislead on the quality of the fill they are accepting, and private air-fields who have capitalized on the regulatory gaps in Ontario where excess soil is concerned.  Enforcement against illegal dumping or misrepresentation of the soil quality is not clear or easily achieved under the current Environmental Protection Act and regulations such as Regulation 347 (Waste Management).  Minor amendments to Regulation 153/04 (Brownfields Regulation) have also been proposed to assist in streamlining and simplifying filing of Records of Site Condition and redevelopment of Brownfield properties.  Further definitions of soil, waste and inert fill are also forthcoming in the new proposed Excess Soil Regulatory package.

One of the main benefits of the proposed Excess Soil Regulation is the clarity it provides in the expectations of appropriate management of excess soil along with the steps that would be followed to provide the level of certainty that the public would expect.  It puts a heavy onus on the generator of the excess soil (or the source site) to assess the quality against a set of new standards.  The Standards were developed as a subset of the O. Reg. 153/04 Brownfield Standards, aimed at assisting in identifying acceptable and beneficial re-use of the excess soil.

Beneficial reuse of excess soil has a strong consideration for soil quality in terms of chemical testing to assess for contaminants; however, Ontario soils are highly variable with respect to the geotechnical quality for engineered reuse (i.e., silt, clay, sands, gravels and poor quality mixed fill).  Recovered excess soil may require some screening/grading to classify the geotechnical qualities prior to identifying an appropriate engineered and beneficial reuse.  Market-based solutions and opportunities for excess soil supply and demand services are sure to be identified as creative Ontarians have historically shown innovation in finding geotechnical solutions for excess soil.  The new regulatory package allows for this to happen to the benefit of both sender and receiver parties. Increasingly, clients are also choosing to avoid moving soils by employing methods to limit or even eliminate the amount of soils that have to be moved from a poor fill site with things like landscaped architectural features or ground improvement to treat soils in place.

Another benefit of the proposed excess soil regulation is the placement of the responsibility to ensure and “certify” the quality of the excess soil and the appropriate handling and re-use of the material by the source site or generator.  This requires a shift in the thinking around management of any excess soil materials to be assessed and pre-planned at the beginning of a project, versus at the last minute and left to the excavation contractor, as has historically been done.  The shift in thinking and pre-planning may take time, but with the assistance of the “Qualified Person” community in Ontario, the planning can be simplified.  The industry is already starting to shift to a more responsible management of excess soils, with the knowledge of potential Regulatory changes. The proposed Excess Soil Regulatory package has a well-defined transition period of two full years to be fully enacted, giving the construction and development industry time to become used to the shift in thinking and pre-planning as well as the procurement groups to ensure that the appropriate assessment and characterization activities are completed.

The benefits of many aspects of the proposed Excess Soil Regulatory package are clear and are desired in Ontario.  The business community has hoped that the current Conservative Government in Ontario understands that the Excess Soil Regulatory package has been requested by the citizens of Ontario, and formulated through an exhaustive consultation and engagement of the various stakeholders in the Province. It has also been hoped that the current Provincial Government sees the value in many aspects of the proposed regulatory package for management of excess soils.  With reference to Excess Soil Regulation in the Environment Plan, it certainly appears that the current Provincial Government does see the value.  Further, the complimentary minor amendments to the soil and waste definitions are needed as are the proposed amendments to the Brownfield Regulation.

Since the June 2018 election, the construction and development industries in Ontario have been patiently waiting for clarity on how the current Provincial Government plans to proceed.  It is clear that this new legislative change will help to make Ontario open for business and it appears that the current Provincial Government agrees.  We will now see what changes to the proposed Regulatory Package will be made, hopefully, sooner than later.

This article was first published in the Geosolv website.

About the Author

Grant Walsom, P.Eng., is a Partner at XCG Consulting Limited and recognized as a Qualified Person in Ontario under the Record of Site Condition Regulation (O. Reg. 153/04). He proudly serves on the Board of Directors at the Ontario Environment Industry Association (ONEIA) and the Canadian Brownfields Network (CBN). Grant can be reached at grant.walsom@xcg.com.

Canada takes final steps to ban Asbestos

by Paul Manning, Manning Environmental Law

Environment and Climate Change Canada, along with Health Canada, published the Prohibition of Asbestos and Products Containing Asbestos Regulations in the Canada Gazette, Part II on October 17, 2018.

These new regulations apply to any person who manufactures, imports, sells or uses asbestos or products containing asbestos.

Thetford, Quebec open pit asbestos mine

The regulations prohibit the import, sale and use of all forms of asbestos as well as the manufacture, import, sale and use of products containing asbestos, with a limited number of exclusions:

  • ongoing exclusions for
    • the transfer of physical possession or control of asbestos or a product containing asbestos to allow its disposal
    • the re-use of asbestos in existing road infrastructure into new road infrastructure or in asbestos mining site restoration
    • the import, sale or use of military equipment serviced overseas with a product containing asbestos if there were no technically or economically feasible asbestos-free alternatives available
    • the import, sale or use of asbestos and products containing asbestos for display in a museum or for use in a laboratory
  • exclusions until
    • December 31, 2022 for the import, sale or use of products containing asbestos to service equipment in nuclear facilities, or to service military equipment, if there are no technically or economically feasible asbestos-free alternatives available,
    • December 31, 2029 for the import and use of asbestos for chlor-alkali facilities using asbestos diaphragm technology

The regulations include:

  • permit provisions for unforeseen circumstances where asbestos or a product containing asbestos is used to protect human health or the environment, if there is no technically or economically feasible asbestos-free alternative available
  • permit provisions for the import and use of products containing asbestos to service military equipment and equipment in a nuclear facility, if there is no technically or economically feasible asbestos-free alternative available
  • provisions requiring the submission of reports from museums, laboratories, and military, nuclear and chlor-alkali facilities, as well as permit holders, who import, use or display asbestos or products containing asbestos. The preparation and implementation of an asbestos management plan is also required in most cases

The regulations do not apply to:

  • asbestos integrated into a structure or infrastructure before the day on which the Regulations come into force (such as asbestos integrated into buildings and civil engineering works), or to products containing asbestos used before the day on which the regulations come into force (such as equipment installed in a facility, vehicles, ships, and airplanes)
  • asbestos and products containing asbestos in transit through Canada
  • mining residues, except for certain high risk activities which are prohibited, including:
  • the sale of asbestos mining residues for use in construction and landscaping activities, unless authorized by the province, and
  • the use of asbestos mining residues to manufacture a product that contains asbestos

In addition to these regulations, the existing Export of Substances on the Export Control List Regulations (ESECLR) and Schedule 3 to the Canadian Environmental Protection Act, 1999 were amended to prohibit exports of asbestos, with a limited number of exceptions.  These provisions ensure that Canada continues to meet its export obligations under international conventions, including the Rotterdam Convention. The regulations and related amendments to the ESECLR come into force on December 30, 2018.

This article is republished and first appeared on the Manning Environmental Law website.

_________________________________

About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Upper Canada. Paul has been selected as one of the world’s leading Environmental Lawyers by Who’s Who Legal: 2016.

Paul advises clients on a wide range of environmental law issues and represents them as counsel before tribunals and the courts. His practice focuses on environmental, energy, planning and Aboriginal law.

Paul holds a Masters degree in Environmental Law and obtained an accreditation in the UK as an expert in Planning Law. He is on the Executive Committee of the National Environmental, Energy and Resources Law Section of the Canadian Bar Association. Paul has a special interest in renewable energy and climate change regulation and holds a Certificate in Carbon Finance from the University of Toronto.

Amendments to Canada’s Hazardous Products Regulations

The Canadian government recently made amendments to the Hazardous Products Regulations (HPR) under the Hazardous Products Act.

The objective of the recent amendment of the HPR is to provide industry with the option to use prescribed concentration ranges to protect the actual chemical ingredient concentrations or concentration ranges on Safety data sheets (SDSs) for hazardous workplace products in Canada rather than submitting CBI applications under the Hazardous Materials Information Review Act (HMIRA).

SDSs, which accompany hazardous products sold or imported for use in Canadian workplaces, must disclose the concentrations or concentration ranges of the ingredients in a product that present health hazards in accordance with the Hazardous Products Regulations (HPR).  This information could be considered confidential business information (CBI) to industry.  CBI for workplace hazardous products can be protected by filing an application with Health Canada under the (HMIRA) and paying the associated fee.

Regulated parties proposed that they should have a means to protect the concentrations or concentration ranges of ingredients without having the burden and cost of the HMIRA application process.

Health Canada is responsible for the administration and enforcement of the Hazardous Products Act (HPA) and its regulations.  The purpose of the HPA is to protect the health and safety of Canadians by regulating the sale and import of hazardous products for use in the workplace.

Ontario Transitioning Municipal Hazardous Waste Program

The Ontario Minister of the Environment and Climate Change recently issued direction to Stewardship Ontario (SO) to wind up the Municipal Hazardous or Special Waste Program by December 31, 2020. This wind up will allow the transition of materials collected under the program to individual producer responsibility under the Resource Recovery and Circular Economy Act, 2016.

The Minister’s letters can be found at:

Information related to the program wind up and future consultations will be posted to the Program Wind Up page when available. Until the wind up date, the Municipal Hazardous or Special Waste Program will continue to operate without disruption. This includes the operation of the Industry Stewardship Plans managed by the Automotive Materials Stewardship, the Product Care Association and SodaStream.

The Ontario Municipal Hazardous or Special Waste Program recycles or properly disposes of paint, antifreeze, batteries, fertilizers and other hazardous or special materials.  These wastes will continue to be managed in Ontario, but under a new program.  The winding down of the existing program is part of the provinces attempt to shift to a circular economy – a new waste management approach where waste is seen as a resource that can be recovered, reused and reintegrated into the production stream.

Ontario’s new waste management framework includes new legislation and a strategy to guide progress that will protect the environment, drive innovation, performance and competitiveness, and stimulate economic growth and development.

 

New spill rules tag transport companies with response, recovery costs in B.C.

As reported by Dirk Meissner of the Canadian Press, the Government of British Columbia has introduced pollution prevention regulations to hold transport companies moving petroleum products across the province responsible for the costs of responding to and cleaning up spills.

Environment Minister George Heyman said recently that the new regulations will take affect at the end of October and apply to pipeline, railway and truck company owners and transporters moving more than 10,000 litres of liquid petroleum products.

The rules increase responsibility, transparency and accountability for operators who transport potentially dangerous products through B.C., he said.

“I would hope that business doesn’t believe that individual members of the public through their tax dollars should be responsible for cleaning up spills they incur in the course of doing business and making a profit.”

The aim of the new rules is to prevent spill sites from being left contaminated for months and sometimes years, Heyman said, noting companies will be required to submit spill response and recovery plans ahead of moving their products.

“Most people subscribe to the polluter pay principle,” he said. “These regulations also require that spill contingency plans be put into place and that recovery plans and reporting plans be implemented in the case of a spill. That’s just reasonable.”

CN Rail said in a statement that it continues to work with the B.C. government and its industry partners on emergency response and preparation plans. The railway transports oil and numerous other products, including grain, across B.C.

“Emergency and spill response preparation and training is an important part of our business,” the statement said. “CN has in place emergency response plans and conducts spill and emergency response training with stakeholders across our network.”

The B.C. Trucking Association said in a statement that it supports the province’s new rules.

“We have been actively engaged in working with the government on the development of these regulations because the safety of our drivers, the public and the environment is our number one priority,” the statement said.

New pollution prevention regulations will hold transport companies and pipeline operators moving petroleum products across British Columbia responsible for spill response and recovery costs. A pipeline at the Westridge Marine Terminal in Burnaby, with an oil tanker in dock on Burrard Inlet.

Last spring, the previous Liberal government amended the Environmental Management Act to include some of the new regulations, but Heyman said he further tweaked the polluter pay regulations to ensure annual public reporting by the government.

He said he also shortened the deadline for operators to put their spill contingency plans in place to one year for trucking companies and six months for railways and pipelines.

The new rules do not apply to marine vessels carrying petroleum products along the B.C. coastline.

“Marine spills are regulated by the federal government but there is some jurisdiction for the province if a marine spill ends up washing onto the shoreline of B.C.’s jurisdiction or the seabed,” Heyman said.

The province is developing a strengthened marine response and recovery program that complements federal spill regulations, he added.

The new regulations come on the one-year anniversary of a fuel spill off B.C.’s central coast, where a tug sank, spilling more than 100,000 litres of diesel into waters near the Great Bear Rainforest.

Marilyn Slett, chief of the Heiltsuk First Nation, said the sinking of the tug, Nathan E. Stewart, has had devastating social and economic impacts on her community.

A valuable fishing area remains closed a year after the spill and many Heiltsuk face the prospect of a second year without revenue from the area’s valuable shellfish species, she said.

by Dirk Meissner, The Canadian Press