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Proposed Alberta Bill gives Municipalities the power to offer tax breaks for brownfield development

The Alberta government recently introduced a Bill in the legislature (Bill 7) entitled the Municipal Government (Property Tax Incentives) Amendment Act. The government claims it has been introduced to help municipalities attract investment and development by giving them the power to offer stronger property tax incentives to business and industry.

A proposed new law would allow Alberta municipalities to offer tax breaks for up to 15 years to businesses willing to set up in commercial or industrial areas of their town or city.

If passed, Bill 7 would allow each municipality to decide if and how to implement the tax incentives by passing a single bylaw that would:

  • offer incentives to reduce, exempt or defer the collection of property taxes for non-residential properties for up to 15 years, with the option for renewal
  • establish an eligibility criteria and application process to streamline tax incentive offers, instead of requiring a separate council resolution or bylaw for each property

“This will give municipalities the tools they need to bring to reduce the regulatory burden on businesses, bring investment back into our communities and restore the Alberta advantage for all,” said Municipal Affairs Minister Kaycee Madu, at a news conference Tuesday in Sherwood Park.

Right now, municipalities can only cancel, refund or defer taxes based on hardship, with decisions made on a case-by-case basis.

The government said it hopes municipalities can use these new powers to encourage economic development in non-residential areas — including vacant, derelict or under-utilized commercial or industrial property which are, or may be, contaminated.

Elsewhere in western Canada, Saskatchewan allows property tax incentives for up to five years and B.C. allows them for up to 10.

Respondents to Alberta Urban Municipalities Association Brownfield Impact Assessment were asked how many of each type of brownfield sites exist in their municipalities?

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.

Amendments to the Canada Shipping Act, 2001 and Marine Liability Act

by Joanna Dawson, McMillan LLP

On December 13, 2018, Bill C-86, A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures, otherwise known as the Budget Implementation Act was given royal assent.  This Bill, which was first introduced on October 29, 2018, predominantly pertains to amendments of budget-related legislation, but also proposes significant amendments to both the Canada Shipping Act, 2001(“CSA”) and the Marine Liability Act (“MLA”). The amendments to the CSA were introduced to allow the federal government to regulate for environmental reasons and specifically “to deliver on commitments made under the Oceans Protection Plan to enable the Government to respond to marine pollution incidents faster and more effectively, and to better protect marine ecosystems and habitats”. The amendments provide significant new powers and authority that potentially change the marine safety and environmental protection framework in Canada.

Canada Shipping Act, 2001

With a focus on marine environmental protection, environmental response, enhanced enforcement and support for marine research, the amendments to the CSA include the following:

  • The amended Section 10(1)(c) sets out that the Minister of Transport or the Minister of Fisheries and Oceans may enter into agreements or arrangements respecting the administration or enforcement of any provision of this Act or the regulations and authorize any person or organization – including a provincial government, local authority, council or other entity authorized to act on behalf of an Indigenous group – with whom or which an agreement or arrangement is entered into to exercise the powers or perform the duties and functions under this Act that are specified in the agreement or arrangement.
  • The new Section 10(2.1) provides that the Minister of Transport may exempt any person or vessel or class of persons or vessels from any provisions of the CSA or the regulations if the exemption would allow the undertaking of research and development to enhance marine safety or environmental protection.
  • The new Section 10.1 provides that the Minister of Transport may make an interim order if he or she believes that immediate action is required to deal with a direct or indirect risk to marine safety or to the marine environment. Such interim order has effect from the time that it is made and remains in effect for a period one year, or any shorter period that may be specified in the interim order.  However, the interim order may be extended by the Governor in Council for a period of no more than two years after the end of the applicable period.
  • The new Section 35.1 provides that the Governor in Council may, on the recommendation of the Minister of Transport, make regulations respecting the protection of the marine environment from the impacts of navigation and shipping activities, including regulations with respect to, among other things:
    • design, construction, manufacture and maintenance of vessels or classes of vessels and inspections and testing thereof;
    • specifying the machinery, equipment and supplies that are required or prohibited on board vessels or classes of vessels;
    • design, construction, manufacture, maintenance, storage, inspection, testing, approval, arrangement and use of the machinery, equipment and supplies of vessels or classes of vessels;
    • regulating or prohibiting the operation, navigation, anchoring, mooring or berthing of vessels or classes of vessels; and
    • regulating or prohibiting the loading or unloading of a vessel or a class of vessels.
  • New penalties for non-compliance by the amendment in Section 40.1 which provides for a fine of not more than $1,000,000 or to imprisonment for a term of not more than 18 months, or both.
  • The amendments to Sections 168.3, 175(2) and 180(1) allow the Minister or the Minister of Fisheries and Oceans who believes on reasonable grounds that a vessel or an oil handling facility has discharged, is discharging or may discharge a pollutant, to take measures that he or she considers necessary to repair, remedy, minimize or prevent pollution damage from the vessel or oil handling facility.

Marine Liability Act

With a focus on “modernizing Canada’s Ship-Source Oil Pollution Fund”, the amendments to the MLA include the following:

  • The amended Section 101(1.1) provides that the Ship-source Oil Pollution Fund is liable for the costs and expenses incurred by the Minister of Fisheries and Oceans or any other person in respect of measures taken under subsection 180(1) of the Canada Shipping Act, 2001 with respect to oil, or for loss or damage caused by those measures, for which neither the owner of a ship, the International Fund nor the Supplementary Fund is liable by reason of the fact that the occurrence or series of occurrences for which those costs and expenses were incurred did not create a grave and imminent threat of causing oil pollution damage.
  • The addition of Section 114.1 imposes levies on receivers and exporters of oil to be used to replenish the Ship-source Oil Pollution fund when depleted.
  • New penalties for non-compliance by the addition of Section 130.01 which provides for a fine of $50,000 per individual and, in the case of any other person, $250,000.

Going Forward

While these amendments are intended to improve maritime safety and environmental protection, it is not yet clear as to the impact these provisions will have upon the current Canadian marine and environmental framework.  It seems that some of the provisions are ambiguous or will be challenging to apply. Without further guidance on how these new measures will be implemented, and clarity on who has the regulatory authority to enforce or take action provided thereunder, the uncertainty will ultimately lead to litigation with the courts left to determine the appropriate outcome.  It will be interesting to see how the amendments to the CSA and the MLA will affect and bring about change to the maritime industry.


A cautionary note: The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

This article is republished with the permission of the author. It was first posted on the McMillan LLP website.

About the Author

Joanna is a senior associate in the Business Law Group and the Transportation Group in the firm’s Vancouver office.  She practices in the areas of corporate, commercial and maritime law. Joanna routinely advises companies in the marine industry and a wide range of other industries on general corporate and commercial matters, including mergers and acquisitions, sales and purchases of businesses and marine assets, business structuring and organization, corporate restructuring and reorganization, and preparation and negotiation of agreements and contracts.

Joanna’s clients turn to her for day-to-day advice on their company operations and appreciate her practical and business-minded legal advice. She brings to her practice a depth of knowledge in the marine and transportation sectors acquired through her experience in working with ferry operators, shippers, ship owners and charter parties, and ship builders, locally and internationally.

Are New United States Regulations Coming for Accidental Releases into Air?

By Louis A. Ferreira, Willa B. Perlmutter, and Guy J. Thompson, Stoel Rives LLP

On February 4, 2019, a federal court ruled that the U.S. Chemical and Safety Hazard Board must issue regulations within one year that set forth reporting requirements for accidental releases of hazardous substances into the ambient air. This requirement has been part of the Board’s statutory mandate since its inception in 1990 pursuant to Section 112(r)(6)(C)(iii) of the Clean Air Act (“CAA”). Nevertheless, the Board has never issued any such regulations.

Four non-profit groups and one individual filed a one-count complaint against the Board, seeking declaratory relief and an injunction to compel the Board to promulgate reporting requirements as required by the CAA. Plaintiffs claimed that the Board had violated the Administrative Procedure Act by not issuing any regulations. Plaintiffs further asserted the lack of reporting requirements have impaired their respective abilities to collect information that would help prevent future releases and the harm caused from such releases.

The United States District Court for the District of Columbia agreed with the plaintiffs and ruled that the Board must issue regulations within one year. In reaching its decision, the Court rejected the Board’s defenses that the delay in promulgating regulations was reasonable given the Board’s limited resources, small staff size, and other required functions. “[I]f that is the case,” the Court said, “the solution to its resource constraints is not to ignore a congressional directive[,] [i]t is to return to Congress and ask for relief from the statutory requirement.” The case is Air Alliance Houston, et al. v. U.S. Chem. & Safety Hazard Investigation Bd., D.D.C., No. 17-cv-02608, February 4, 2019.

The Court’s decision appears to follow a similar one issued in August 2018 in which some of the same plaintiffs brought a complaint against the U.S. Environmental Protection Agency. In that case, the plaintiffs petitioned the D.C. Court of Appeals for review of the EPA’s decision to delay for 20 months the effective date of a rule designed to promote accident safety and enhance the emergency response requirements for chemical releases. The Court rejected all of EPA’s defenses justifying the delay in a strongly-worded opinion that held the agency strictly to the letter of the CAA. That case is Air Alliance Houston, et al. v. EPA, 906 F.3d 1049 (D.C. Cir. 2018).

The same directness is evident in this recent decision.

Ultimately, the practical effect of the ruling is not clear. There are already laws in place that require companies to report accidental releases to state and federal authorities. It is possible the Board will promulgate regulations that align with its current practice of deferring reporting requirements to other agencies. If the Board took that approach, there likely would not be a noticeable difference in reporting requirements from the current practice.

On the other hand, the two recent decisions discussed above suggest that a trend may be forming in which the courts are pushing back when the government steps off its clear statutory path.


This article has been republished with the permission of the authors. The original post of this article can be found on the Stoel Rivers LLP website.

About the Authors

Lou Ferreira is a senior partner with more than 27 years of complex trial experience.  His practice focuses on commercial litigation, insurance coverage and environmental, safety & health issues.  A seasoned litigator, Lou has significant experience in high-stakes litigation including successfully defending a class action filed against a utility by residents of a town in Washington asserting that the utility was liable for flooding as a result of the operations of its upstream dams.  Lou  successfully defended a port in Washington from a $20 million lawsuit brought by developers alleging breach of contract to develop a large mixed-use waterfront project on the Columbia River. 

Willa Perlmutter has more than 30 years of experience as a litigator, focusing for the last 20 on defending mine operators across all sectors of the industry in administrative enforcement proceedings brought by the Mine Safety and Health Administration (MSHA) for alleged violations of the Mine Act.  In addition, she regularly counsels clients on a broad range of issues that affect their mining operations, from personnel policies and actions to compliance with a broad range of federal statutes. Willa regularly defends companies and individuals facing investigations and formal legal proceedings for alleged safety and health violations under both the Federal Mine Safety and Health Act of 1977 and the Occupational Safety and Health Act of 1970, whether those arise out of a catastrophic event, such as an accident, or in the course of a regular inspection by MSHA or Occupational Safety and Health Administration (OSHA). She has successfully defended a number of mining companies in whistleblower cases brought under the Mine Act.

Guy Thompson is a litigator and advisor on a wide-range of insurance matters. His practice focuses on insurance coverage litigation, including natural resources/environmental insurance coverage, and a wide variety of risk management issues. Guy helps policyholders obtain the recovery they deserve from their insurers and has helped recover millions of dollars from insurance companies for his clients. Guy is skilled at getting insurance carriers to cooperate in paying claims and often secures settlements with insurers without the need for litigation. Recently, he helped recover over $1.65 million from multiple insurance carriers for a Portland company that was required to perform environmental cleanup by the Oregon Department of Environmental Quality.

U.S. PHMSA Study Will Assess Aligning U.S. and International Regulations for Aerosol Containers

by Bergeson & Campbell

The U.S. Department of Transportation (DOT) Pipeline and Hazardous Materials Safety Administration (PHMSA) routinely reviews and amends the Hazardous Materials Regulations (HMR) to harmonize the HMR with international regulations and standards.  In February 2019, PHMSA’s Office of Hazardous Materials Safety (OHMS) contracted with the Cambridge Systematics (CS) Team to conduct a risk assessment for the transportation of aerosol containers to align U.S. and international regulations.  The study is intended to determine whether the United Nations Recommendations on the Transport of Dangerous Goods — Model Regulations (Model Regulations) definition of aerosols maintains an equivalent level of safety to the definition in the HMR and to assess the risk associated with aligning the definitions.  The study is expected to be completed in February 2020, and any rulemaking to align the definition of aerosol containers would be issued after that.

Federal law and policy favor the harmonization of domestic and international standards for hazardous materials transportation.  In a November 27, 2018, proposed rule to amend the HMR to maintain alignment with international regulations and standards, PHMSA notes that it was directed by the federal hazardous materials law “to participate in relevant international standard-setting bodies and requires alignment of the HMR with international transport standards to the extent practicable.”  While federal hazmat law allows PHMSA to depart from international standards to promote safety or other overriding public interest, “it otherwise encourages domestic and international harmonization.”

The Model Regulations define aerosol or aerosol dispenser as “an article consisting of a non-refillable receptacle meeting the requirements of 6.2.4, made of metal, glass or plastics and containing a gas, compressed, liquefied or dissolved under pressure, with or without a liquid, paste or powder, and fitted with a release device allowing the contents to be ejected as solid or liquid particles in suspension in a gas, as a foam, paste or powder or in a liquid state or in a gaseous state.”  The HMR, in 49 C.F.R. Section 171.8, defines aerosol as “an article consisting of any non-refillable receptacle containing a gas compressed, liquefied or dissolved under pressure, the sole purpose of which is to expel a nonpoisonous (other than a Division 6.1 Packing Group III material) liquid, paste, or powder and fitted with a self-closing release device allowing the contents to be ejected by the gas.”  Unlike the Model Regulations, the HMR permits only an aerosol with a liquid, paste, or powder.  Industry has petitioned PHMSA to align the definitions and permit certain non-refillable gas containers with or without a liquid, paste, or powder to be transported without needing a Special Permit.

Commentary

Since the study is not expected to be completed until February 2020, there will be no immediate impact for U.S. manufacturers of aerosol products.  The study will likely conclude that the definition of aerosols in the Model Regulations ensures an equivalent level of safety to the definition in the HMR, and that there is no risk associated with aligning the definitions.  Should this be the outcome, PHMSA would then initiate a rulemaking.  We would expect the rulemaking to align the HMR definition with the Model Regulations and permit certain non-refillable gas containers with or without a liquid, paste, or powder to be transported without needing a Special Permit.  Stakeholders may wish to keep an eye on the study and, of course, any ensuing rulemaking and comment as appropriate.


This article has been republished with the permission of Bergeson & Campbell, P.C. The original post can be found at the Bergeson & Campbell, P.C. website.

Bergeson & Campbell, P.C. (B&C®) is a Washington D.C. law firm providing decades of experience in the manufacture, handling, and transport of conventional, biobased, and nanoscale industrial, agricultural, and specialty chemicals, including product approval and regulation, product defense, and associated business issues. www.lawbc.com.

Proposed Changes to Ontario’s Toxics Reduction Program

The Ontario Ministry of the Environment, Conservation Parks (MOECP) recently issued a proposal that will change the regulation (O. Reg. 455/09) under the Toxics Reduction Act , 2009. Under the proposed regulatory amendments, the following changes would be implemented:

  • facilities with existing toxics reduction plans would no longer be required to conduct reviews of those plans;
  • certain facilities would be exempt from all future planning and reporting obligations for certain substances; and
  • facilities with existing plans would still be obligated to maintain annual reporting requirements.

The proposed exemptions would apply to the following facilities:

  • Facilities that have never planned or reported under the program, but now meet the reporting threshold for one or more toxic substances; or
  • Facilities that have been out of the program for three or more years for a toxic substance, but are coming back into the program because they meet a reporting threshold again; or
  • Facilities that are currently planning and reporting under the program, and now meet the reporting thresholds for a new toxic substance at the facility.

With respect to substances, the proposed exemptions would apply to the following obligations:

  • Creating a toxic reduction plan;
  • Tracking and quantifying toxic substances;
  • Annual Reporting on planned reductions; and
  • Reviewing the toxic reduction plan.

The rationale for the proposed changes to the regulation is that it overlaps with federal reporting requirements. The Ontario Toxics Reduction Program requires industry to report publicly on their use of toxic substances, and identify options to reduce those substances through toxic reduction plans. The Canadian federal Chemicals Management Plan requires industry to reduce the use and/or release of certain toxic substances. The federal approach is more comprehensive than the existing provincial program.

Another rationale for amending the regulation is that the MOECP claims that the Toxics Reduction Program has not achieved meaningful reductions. Preliminary results compiled by the MOECP indicate an overall reduction of 0.04% of substances used, created and released for all regulated facilities.

A costing analysis was carried out by the MOECP in conjunction with the Ministry of Economic Development, Job Creation and Trade, and it was found that the annual average net savings of this proposal will far exceed the annual average administrative costs.

The MOECP cost analysis estimated that the regulatory proposal will cost current facilities an annual average administrative cost of $818,000 to learn about the changes to the regulations and to continue reporting on existing toxics substances until 2021. These costs are offset by the total annual average administrative net savings of approximately $4 million for all facilities to stop planning and for the program to end in 2021 (when the federal government has completed its chemical assessments and taken action on many toxic substances). All cost analysis was calculated as Average Annual Present Value costs discounted at 2.5% over 10 years.

Toxics Reduction Program Map

The Ontario government maintains a website that shows the locations of facilities subject to the Toxics Reduction Act, 2009, the number of facilities with plans to reduce toxics use, and information on the number of toxics reported. Users of the website can search for for and access information from Ontario facilities that use, create, release, dispose and recycle toxic substances. They can also learn more about these substances and how facilities are taking action to reduce their creation and use to protect the environment and human health. Finally, users of the website can search by location, facility, or public health unit and use the advanced search filters such as year, sector or substance to improve your search results.

Public Comment Period Ends January 20th

The MOECP is accepting public comments to the proposal until January 20th, 2019. Comments can be submitted online or to Michael Friesen of the MOECP (416-314-0131).

Ontario Government’s Plans on the Environment: Impact on Brownfield Development

The Ontario Government released a Made-in-Ontario Environment Plan in late 2018 in partially in response to criticism that it had no plan for addressing climate change after it cancelled the greenhouse gas (GHG) cap-and-trade program of the previous government. The plan includes several proposals that should be on interest to persons involved in brownfield development.

The Ontario government 52-page document (entitled (“Preserving and Protecting or Environment for Future Generations: A Made-in-Ontario Environment Plan”) commits to protecting air, lakes and rivers; addressing climate change; reducing litter and waste; and conserving land and greenspace. Many of the measures establish a direction but the details will have to be further developed.

With respect to contaminated sites and brownfields, the document talks about the “polluter pay”, and engaging environment business and entrepreneurs. However, it is lacking in details.

Generating GHG from Brownfield Projects

The Ontario government’s proposed replaced to the scraped GHG trading regulation is the Creating the Ontario Carbon Fund. While details are to be worked out, the plan proposes to use $400M of government funding with the aim of leveraging additional private funds on a 4:1 basis to support “investment in clean technologies that are commercially viable.” The fund will also support a “reverse auction” model whereby emitters will “bid” for funding to support their GHG reduction projects.

There is a possibility that developers involved in brownfield redevelopment could be eligible for government funding depending on if clean technologies are employed in the clean-up and GHG reductions are realized versus the traditional dig-and-dump approach to site clean-up.

2010 Photo of the former Kitchener Frame Building (Photo Credit: Philip Walker/Record staff)

Streamlined environmental approvals

The Made-in-Ontario Plan notes that environmental approvals should be prioritized for businesses that want to implement low GHG technology or approaches. This is the latest promise from the Ontario government to speed up the approval process.

Seasoned veterans in the environmental sector remember similar promises made the government on fast-tracked approvals. There are still those who remember the Environmental Leaders Program in which speedy approval was promised to companies that committed to above-compliance environmental activities and targets.

With respect to this latest promise on speedy approvals, the document is silent on if “speed” will be applied to the Environment Ministry review of site specific risk assessments (SSRA’s) that are submitted to the Ontario Environment Ministry for approval instead of following the generic clean-up standards.

Measures to promote healthy, clean soils

The Made-in-Ontario Plan plan commits to “revise the brownfield regulation and record of site condition guide” as part of a basket of measures to promote clean soils. Again, the document is lacking in details.

The previous Ontario government had proposed reasonable changes to the Record of Site Condition Regulations (O. Reg. 153/04). One important aspect of the proposed change is related to road-salt impacts on a property. As the regulations currently stands, road salt-related impacts can only be exempted from clean-up if it can be proven they are related to the application of de-icing salts on a public highway. Under the proposed changes to the regulations, the exemption will include road salt applied to a property ‘for the purpose of traffic and pedestrian safety under conditions of snow/ice’. This one change, if implemented, would save thousands of dollars in clean-up costs at many sites undergoing redevelopment in Ontario.

The previous Ontario government had also proposed a much-need excess soil regulation. There has been extensive consultation on the proposed regulation over a five-year period. If implemented, the regulation would address the gaps surrounding the ability for enforcement on mismanagement of excess soils in Ontario. It would also open up the opportunity for beneficial reuse of excess soil.

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.

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.

 

Transport Canada amends TDGR – Marine Requirements and other miscellaneous changes

As reported by the Compliance Center, the December 13, 2017 edition of the Canada Gazette II contains the expected rewrite of Part 11 “Marine” requirements of the Transportation of Dangerous Goods Regulations (TDGR). In addition, there are related changes in other parts, as well as some unrelated miscellaneous changes in other areas.

Marine Amendment

The most wide-reaching change, although perhaps of relatively minor significance to the general regulated community, is the replacement of the term “ship” with “vessel”. This, among other changes, is to update the TDGR to current Canada Shipping Act (CSA, and related regulations) terminology. Many aspects of Part 11 related to the CSA had not been updated since 2008.

Note: Interestingly, the referenced definition of “vessel” in the CSA includes all “means of propulsion”:
http://laws-lois.justice.gc.ca/eng/acts/C-10.15/page-1.html#h-2

This differs from the TDGR definitions for road and rail vehicles which expressly exclude “muscle power” as a means of propulsion. 

Other definition changes include elimination of the reference to “short run ferry”, previously defined in TDGR Part 1.3 as operating between points “not more than 3 km apart”. TDGR 1.30 special case exemption now refers only to “Ferry,” but describes within the exemption that it’s applicable to operating between two points “not more than 5 km apart.

The definition of an “inland voyage” now cites the CSA Cargo, Fumigation and Tackle regulations (CFTR):
http://laws-lois.justice.gc.ca/eng/regulations/SOR-2007-128/index.html

; which, in turn, defer to the Vessel Certificate regulations (VCR):
http://laws-lois.justice.gc.ca/eng/regulations/SOR-2007-31/

Other aspects of dangerous goods vessel shipment are also found in these CSA regulations.

One more definition that’s been changed to a citation is the one for a roll-on/roll-off (ro-ro) ship. The vessel is still referred to as a “ship”- since the definition cites the IMDG Code. For those without ready access to the IMDG, the current Ed. 38-16 version reads, in Chapter 1.2 (s. 1.2.1 Definitions):

“…Ro-ro ship (roll-on/roll-off ship) means a ship which has one or more decks, either closed or open, not normally subdivided in any way and generally running the entire length of the ship, carrying goods which are normally loaded and unloaded in a horizontal direction.”

Additional requirements now apply also to ferries regarding passenger vessel limitations, location of shipping documents and incident reporting.

Vessel Restrictions & Exemptions

Schedule 1 Column 8 restrictions regarding carrying DG on passenger vessels is further clarified by TDGR Part 1 sections 1.6 and new special case 1.10.

Gasoline and propane now have a Part 1 special case exemption 1.30.1 to facilitate fuel deliveries and reduce the need for equivalency certificates.

UN3156 is also now permitted in 25 L quantities on passenger vessels.

Mercurous chloride (calomel) is no longer included in the s. 1.46 special case exemption list.

The requirement to mark the flash point on packages with Class 3 contents (s. 4.13) has been removed as it was never an IMDG requirement.

IMDG v. TDGR

Additionally, the often-confusing reference to “Home Trade Voyages” in determining the applicability of the IMDG Code, versus the “standard” TDGR extension of ground requirements, has been replaced by a direct, simplified explanation. Voyages where the vessel (oops – I almost said ship!) is within 120 nautical miles – i.e. 222 km- from shore are considered non-IMDG unless the vessel travels south of the ports of New York or Portland, Oregon, or to another foreign destination. Thus, vessel transport of dangerous goods to St. Pierre and Miquelon (territories of France), despite being within 20 km or so from Newfoundland, require compliance with IMDG.

Inland (mostly “fresh water”) voyages between Canada and other countries – e.g. Great Lakes or rivers to the US – remain excluded from mandatory IMDG compliance. Conversely, vessels registered in Canada but transporting between two foreign destinations, remain under IMDG requirements.

Other Amendments

Changes not directly related to Part 11 topics include correction of some typographical and miscellaneous errors in the TDGR or website html information.

Examples include re-entering the PG II information for UN1790, UN2734 on the website; editing SP 159 to clarify that the new Class 9 Lithium Battery label illustration is only used for labels and not used for placarding purposes – standard Class 9 placards are used (as is the case in air, ocean and US 49 CFR); and updating ICAO references in Part 12.

The Table in 5.16 has been repealed due to the updates in the referenced CSA standards.

Transition:

The changes are effective as of the December 13th CG II publication date and have a transition period of 6 months for mandatory implementation. The CGII document which includes a discussion of the changes in the RIAS (Regulatory Impact Analysis Statement) is found at:

http://canadagazette.gc.ca/rp-pr/p2/2017/2017-12-13/html/sor-dors253-eng.html