Ontario’s Proposed Excess Soil Regulations: Effects & Benefits

Written by Abimbola Badejo, Staff Writer

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

Background

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

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

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

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

Previous Government Reactions

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

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

The Latest Regulatory Proposal

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

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

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

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

Benefits of
Policy

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

Excess Soil
Market Impact

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

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

Diving deep into Redwater – Supreme Court Says Trustee in Bankruptcy can’t cherry pick Environmentally Clean Assets

Written by John Stefaniuk and Scott Birse, Thompson Dorfman Sweatman LLP

The Supreme Court of Canada released its much anticipated decision in Orphan Well Association v. Grant Thornton Limited (a case more commonly known as Redwater) on January 31, 2019. You might recall our article on the Alberta Court of Appeal’s decision in the same case.

In Redwater, the courts had to decide whether bankruptcy law trumped provincial regulatory orders issued in Alberta. Redwater Energy Corporation (Redwater) was an oil and gas developer.  It held a number of development properties under the authority of the Alberta Energy Regulator (AER).  With the slump in oil prices, Alberta Treasury Branches (ATB), Redwater’s primary lender, called its loan. ATB appointed Grant Thornton Ltd. first as receiver and subsequently as trustee in bankruptcy of the estate of Redwater under the federal Bankruptcy and Insolvency Act (BIA).

In the course of examining Redwater’s realizable assets, Grant Thornton became aware of outstanding environmental reclamation obligations that were associated with some of Redwater’s non-producing properties.  Grant Thornton decided to put the valuable, producing wells and other “clean” assets up for sale, and to walk away from the remaining assets by renouncing them under the BIA. That resulted in putting the reclamation in the lap of the Orphan Well Association (OWA), an industry-funded organization set up in Alberta to administer a fund established for the purpose of reclamation of “orphan” properties.

The AER refused to allow the transfer of the productive licences. It issued abandonment orders requiring clean-up or posting of security for clean-up costs in relation to the renounced assets. The parties headed to court to see what would become of the value that could be realized for the retained assets. Both the trial court and the Alberta Court of Appeal would have allowed Grant Thornton to leave the liabilities behind.

In the majority decision written by Wagner C.J., the Court applied a three-part test found in another Supreme Court of Canada case decided in 2012, Newfoundland and Labrador v. AbitibiBowater Inc. The majority of the Court held that the reclamation claims were not  a debt, liability or claim owing to a creditor and that they were too remote to attach a monetary value. That meant that two of the three criteria in the Abitibi test were not met. The Court therefore held that the bankruptcy did not have the effect of undoing the orders and the trustee could not cherry-pick the valuable assets while renouncing the rest.

This was a bit of a surprise to many environmental law practitioners, including most of the ones I attended a conference with just a few weeks prior to the decision.

What then, is the upshot?

Ostensibly, this is good news for provincial regulators. It is more likely that their enforcement orders will be found to continue to be binding upon corporations in bankruptcy. While it does not make receivers or trustees in bankruptcy personally responsible for rehabilitation costs, it does mean that the proceeds of sale of the valuable assets may have to be put toward satisfying those orders before any of it is available to lenders and other creditors. That means less costs potentially borne by the provinces (and their taxpayers). Predictably, lenders do not seem to garner a lot of public sympathy.

On the other hand, (assuming no changes to the BIA) the decision means that lenders and other creditors will have to pay closer attention to the borrower’s unfunded clean-up and closure costs when extending and monitoring credit. If the lender no longer has the ability to deal with valuable assets and leave the “dirty” behind, it means that credit in environmentally sensitive sectors may become tighter, reporting requirements may become more onerous, and some lenders may become skittish.

The dissenting minority decision written by Côté J. said the majority decision was not based on “polluter pays”, but instead resulted in a regime of “lender pays”.  After all, it is always open to the provinces to require permittees and licensees to post better (and more) security to fund rehabilitation costs, and to carry out better monitoring and inspections to ensure that the security is really adequate to fund clean-up. On top of that, who is in a better position to monitor environmental compliance and reclamation costs, the regulator or the bank? Surely, the regulators have better expertise and, assuming proper funding from government, better resources to carry out the work. Indeed, the regulators also wield the bigger stick – fines and penalties – whereas the most that the lender can do is either refuse to lend, lend less, or call in a loan where potential trouble is spotted. By the time that issues are obvious, the lender may choose to let things ride, so long as payments are being made, rather than force a realization that could put its security at risk. It is difficult to see how that serves environmental protection.

In some respects, the decision can be seen as a bit of a “Get out of Jail Free” card for the provinces and their resource and environmental regulators. No doubt that is the way that ATB felt about it.

This article has been republished with the permission of the authors. It was first published on the TDL Law website.


About the Authors

John Stefaniuk engages in a broad practice with emphasis on environmental law, real estate and development law, natural resources and energy, commercial law and municipal law matters. He has particular experience in relation to contaminated sites, mining and mine rehabilitation, wind power development, natural resource development, environmental approvals and licensing, commercial real estate, leasing, financing and development, municipal approvals, taxation and assessment and business acquisitions. He appears regularly before government licensing bodies and administrative tribunals including the Manitoba Clean Environment Commission and Municipal Board, municipal councils, provincial legislative committees and in all levels of court in Manitoba and in the Federal Court in connection with environmental, resource, regulatory municipal, and property issues.

Scott Birse has a broad practice with a particular emphasis on environmental law, municipal law, real estate and development law, regulatory compliance, commercial law and related litigation. He has particular experience assisting clients in the areas of environmental liability in real estate transactions and business acquisitions, municipal planning and approvals, contaminated sites liability, environmental assessments, commercial real estate development and civil litigation. Scott has appeared before municipal tribunals, the Manitoba Court of Queen’s Bench and the Manitoba Court of Appeal. He has also advised clients with respect to municipal and environmental matters in Saskatchewan and British Columbia.

Demystifying Occupational Hygiene

Written by Abimbola Badejo, Staff Writer

At the recent Partners in Prevention 2019 Health and Safety Conference, Ontario, Canada; organized by Workplace Safety and Prevention Services (WSPS) Ontario, Canada, Dave Gardner of Pinchin Ltd. delivered a presentation on Demystifying Occupational Hygiene. Mr. Gardner is Senior Occupational Hygiene and Safety Consultant with Pinchin Ltd. Below is a summary of his presentation.

WHAT IS OCCUPATIONAL HYGIENE?

Occupational hygiene has been
defined by the United States Department of Labour Occupational Safety and
Health Administration as “that science
and art devoted to the anticipation, recognition, evaluation, and control of
those environmental factors or stresses arising in or from the workplace, which
may cause sickness, impaired health and well-being, or significant discomfort
among workers or among the citizens of the community.
1.   Simply
put, the goal of Occupational hygiene is to ensure the safety and protection of
a worker at his or her workplace, provided the worker follows a set of
guidelines  that have been put in place
to safeguard his/her health and safety. Occupational hygiene concerns fall under the remit of human resources departments, who can use HR Software to ensure that appropriate monitoring, reporting, and training opportunities are put into place. 

Typical occupational hygiene
principles include written standards, procedures and practices; workers
training as part of a knowledge management program; logical thinking on the
part of the creator; a combination of actions with words learned from the
written standards; and total compliance with associated regulations.

WHY IS OCCUPATIONAL HYGIENE PROGRAM
IMPORTANT?

An Occupational Hygiene
program is of great importance as its negligence leads to occupational injuries
and diseases. Occupational diseases are considered more significant due to
factors associated with it; which include

  • Diseases
    caused by exposure to either chemical, physical or biological agents at the
    workplace
  • Sources
    such as exposure to airborne asbestos particles, confined spaces, noise,
    construction projects, etc.
  • Categories
    namely Long Latency Illness, Noise Induced Hearing Loss (NIHL), Chronic
    Exposure and effects and Acute Exposure and effects
  • Observable
    effects which are not seen until after a long duration of exposure
  •  75% of fatalities in diseases, attributed to
    occupational origins

The Ontario Workplace Safety
and Insurance Board (WSIB) reported that approximately 130 thousand claims were
filed, and about $940 million benefit costs were released, between 2008 and
2017. Occupational diseases with long latency are mostly serious and these
account for only three percent of the occupational diseases with benefits.

Based on these factors (and
those not mentioned), reviews have been made by the Human Resources and Skills
Development Canada (HRSDC) and Labour Canada. These reviews include updates
made to the Occupational Exposure Limits (OEL) of chemicals, training workers
on the safe usage of materials and the equipment at the workplace, thorough
knowledge of the materials and substances used at the workplace, compulsory and
proper use of Personal Protective Equipment (PPE), alertness of workers to the
state of their own health and compulsory medical check-ups in relation to
workplace risk assessment.

CASE FOCUS: SUMMARY OF RISKS AND SURVEYS REPORTED FOR
WORKERS IN THE CONSTRUCTION INDUSTRY

A survey made by the Center
for Construction Research and Training regarding occupational diseases in the
construction industry reported that the workers in this industry are:

  • twice
    as likely to have chronic obstructive lung diseases, five times more likely to
    have lung cancer, thirty-three times more likely to have asbestosis
  • inclined
    to suffer a 50% increase in Lung Cancer related deaths
  • predisposed
    to noise induced hearing loss (NIHL) (50% of workers)
  • susceptible
    to elevated levels of lead in their blood (17% of workers)
  • exposed
    to the allowable 8-hour exposure limit for Manganese during welding processes.
    This was observed with workers involved in boiler making (75%), iron-working
    (15%) and pipe-fitting (7%)).

In addition, a nationwide report has disclosed that 40% of WSIB
costs are for construction occupational diseases, more construction workers die
from a combination of occupational diseases and traumatic injuries and that 2
to 6 construction workers are more likely to develop occupational lung disease
and NIHL.

As observed, most of the occupationally related diseases can
be prevented by simple tasks such as hand-washing, proper use of PPE and
correct compliance to defined regulations.

LEGISLATIONS
GOVERNING OCCUPATIONAL HYGIENE

To ensure the protection of workers in various Canadian
industries, regulations and guidelines have been put in place; some of which
require compliance by either the employee or the employer. The legislations and
related codes/standards guiding occupational hygiene in workplaces include:

Some of the provided
regulations and guidelines are specific while others are general in application.
The key to correct interpretation is to apply the correct regulation to the
right workplace situation.

An example of a proper
legislation application: Silica is
an inert substance and an irreplaceable material in most products and buildings
in the world today.  As the second most
abundant mineral on the planet, silica is used in numerous ways. Getting the
substance to the usable state requires processing, which exposes the worker to
the respirable crystalline form. The regulation (O. Reg 490/09), listing silica
as a designated substance, does not apply to the silica infused products but to
the respirable fractions which the processing worker is exposed to. The
regulation specifies an occupational exposure limit (OEL) for respirable
crystalline silica as 0.05 mg/m3 of air (cristobalite silica) and
0.1 mg/m3 of air (quartz and tripoli silica) for an 8-hour/day or
40-hour weekly exposure. This regulation, however, does not apply to the
employer or some other workers on a construction  project; but the employer’s responsibility
will be to protect the worker’s health in compliance to section 25 (2)(h) of
the OHSA, requiring employers to take every reasonable precaution in the
circumstances to protect a worker.

FUNDAMENTALS OF OCCUPATIONAL HYGIENE

Before initiating an
occupational hygiene program, a clearer understanding of basic terms is ideal.

Industrial
Hygiene
: this
is an exercise devoted to the anticipation, recognition, evaluation, and
control of those environmental stresses arising from the workplace, which may
cause the impairment of a worker’s health.

Toxicology: the study of how chemical,
physical and biological agents adversely affect biological systems. The adverse
effects include irritation, sensitization, organ failure, diseases or cancer.

Disease,
dose and exposure
:
Disease / response is caused by an agent dosage. Dosage is measured in relation
to the exposure of the worker to an agent. Mathematically, exposure is
calculated as the agent concentration multiplied by duration of exposure
(concentration x time). Therefore, sampling surveys are simply estimating the
exposure of the worker to a specific concentration of the agent. Exposure routes
may be through inhalation, ingestion, contact or skin absorption.

Threshold
Limit Values (TLV)
:
TLVs are general concentration limit values for specific chemicals, to which a
healthy adult worker can be exposed. 
However, TLVs does not adequately protect all workers as their
susceptibility levels to various chemicals are unique to them. TLVs are used by
regulators as guidelines or recommendations to assist in the control of
potential workplace hazards.

Time-Weighted
Average (TLV-TWA)
:
TWA concentration for a conventional 8-hour/day or 40-hour/week , to which a
worker may be repeatedly exposed.

Short-Term
Exposure Limit (TLV-STEL)
:
This is a 15-minute TWA exposure that should not be exceeded.

Ceiling
(TLV-C)
: This
is a concentration that must not be exceeded during any part of working
exposure

Air
Monitoring
:
This is a process of sampling the air in the workplace, on a regular basis. The
monitoring  may be qualitative (risk
assessments, hygiene walkthroughs and training) or quantitative (air, noise and
wipe sampling) in perspective.

RISK ASSESSMENT

The first focus of an
occupational hygiene program is to conduct a risk assessment of the workplace
processes.  A risk assessment shows that
20% of the activities or tasks  carried
out, leads to 80% of  risks. Carrying out
a risk assessment, focuses on the adverse effects of  a hazardous agent and the associated level of
risk if a worker is exposed to it. Approaches to risk assessment include
Critical Tasks Analysis (where stepwise task and risk inventories are made with
the focus on worker’s safety), Process Safety (where the focus is on the
process, controlling the risk to keep the worker safe) or a combination of both
approaches. Risk assessment, therefore, is done 
as thus:

  1. Making a list of the agents
    the worker is exposed to,
  2. Identifying the routes of
    entry,
  3. Identifying a relative risk
    level (low, medium or high),
  4. Documenting the control in
    place and its effectiveness.

Table 1. Requirements of a
Hazard Reviewer. Scores are used to dictate the skill level required to assess
and develop control strategies.

Risk
Score
Risk
Level
Minimum Requirements
<10 Low to Medium low Any trained employee
>10 to <20 Medium Health and Safety Department
or a contracted Health and Safety Consultant
20 & above High Certified Health and Safety Professional or Industrial Hygienist (CRSP, CSP, CIH, ROH)

DEVELOPING AIR SAMPLING
STRATEGIES

A preliminary survey is
initially conducted using simple and common tools such as human senses (sight,
taste, hear, smell, taste and gut-feelings), video camera, photo camera, tape
measure and a notebook. Optional tools include velometer and smoke tubes.

Next, all knowledge and
processes related to the hazardous agents are sought out using the central
dogma of risk assessment (Recognition, Evaluation and Control).

The sampling itself should be
done using standardized and validated methods (NIOSH, EPA, ASTM, etc.).

The extent of sampling should
be determined, whether personal (breathing zone) samples or area samples.

Next, the duration of sampling
should be determined, which could be  a
whole day, full-shift, partial shift, single samples, sequential samples, grab
or composite samples.

The worker to be sampled
should be with the worker with the 
highest exposure potential or a group of workers with similar exposure
due to the similarity of their tasks at the workplace.

The amount of samples taken
should also be determined.

The time of sampling should be
determined (day or night shift, winter or summer season, etc.)

Documentation should be made
at every sampling point; and this should include start and stop times,
environmental conditions, chronological log of work tasks, quantified
conditions during production, duration of shifts and break periods, use of PPE,
engineering controls, housekeeping habits and the state of workplace
ventilation.

PROGRAM DEVELOPMENT

Occupational hygiene programs
are made with several guidelines governing it. According to the province of
Ontario, all control programs must provide engineering controls, work practices
and hygiene facilities  to control a
workers exposure to a designated substance; methods and procedure should be put
in place to monitor airborne concentrations of designated substances and
measure workers exposure to the same; training programs should be organized for
supervisors and workers on the health effects of the designated substance and
the respective controls required. A typical Occupational Hygiene program,
therefore, should  include the following:

  • Version
    history
  • Purpose
    / objectives
  • Scope
    and application
  • Distribution
  • Definitions
    and abbreviations
  • Roles,
    responsibilities and accountabilities
  • Program
    management (Resources, commitment and program coordinator)
  • Risk
    assessments
  • Exposure
    monitoring plans
  • Occupational
    hygiene surveys (sampling strategy development, analytical services,
    documentation and reporting )
  • Occupational
    hygiene controls
  • Training
  • Related
    document / appendices
  • Quality
    assurance
  • Maintenance
    of standard operating practices (SOPs)
  • Annual
    summary report.

CONCLUSION

An occupational hygiene program is an important component of
workplace management. This ensures the protection of workers’ health, which
leads to better and greater productivity at the workplace.  The foundation of occupational hygiene
programs is to understand the principles that govern the program and knowing
how to apply the principles to various situations at the workplace. Proper
application and effective controls will assist in achieving the goal of
establishing a safe environment for workers to operate.

REFERENCES

  1. https://www.osha.gov/dte/library/industrial_hygiene/industrial_hygiene.pdf

Ontario Plans To Amend Excess Soil and Brownfields Regulation

Written by Paul Manning, Manning Environmental Law

Ontario is proposing changes to the excess soil management and brownfields redevelopment regime.

The changes are designed to “make it safer and easier for more excess soil to be reused locally…while continuing to ensure strong environmental protection” and to “clarify rules and remove unnecessary barriers to redevelopment and revitalization of historically contaminated lands…while protecting human health and the environment.

Opponents will see this as a deregulation which will primarily benefit business interests at the cost of environmental protection, notwithstanding these assurances.

Excess Soil

The changes will include the development of a new excess soil regulation supported by amendments to existing regulations including O. Reg. 347 and O. Reg. 153/04 made under the Environmental Protection Act supports key changes to excess soil management.

Proposed changes include:

  • clarifying that excess soil is not a waste if appropriately and directly reused;
  • development of flexible, risk-based reuse excess soil standards and soil characterization rules to provide greater clarity of environmental protection;
  • removal of waste-related approvals for low risk soil management activities;
  • improving safe and appropriate reuse of excess soil by requiring testing, tracking and registration of soil movements for larger and riskier generating and receiving sites;
  • flexibility for soil reuse through a Beneficial Reuse Assessment Tool to develop site specific standards;
  • landfill restrictions on deposit of clean soil (unless needed for cover).

Record of Site Condition

Under O. Reg. 153/04, a Record of Site Condition must be filed on the Ministry’s public registry if there is a change in property use from an industrial, commercial or community use to a more sensitive use, such as residential, institutional, agricultural, or parkland.

The Ministry is proposing amendments to O. Reg. 153/04 including reduced requirements to fully delineate contaminants (i.e. additional sampling) for properties going through the Risk Assessment process when contamination is already well understood.

The amendments would also provide flexibility on meeting standards where exceedances are caused by the use of a substance for safety under conditions of snow and ice, discharges of treated drinking water, and the presence of fill that matches local background levels.

Other proposed amendments would remove the requirement for a Record of Site Condition for specific low risk redevelopment situations, including converting:

  • Low-rise commercial buildings to mixed-use residential with commercial on main floor;
  • Temporary roads in construction areas to residential;
  • Indoor places of worship to residential; and
  • Industrial or commercial to indoor agriculture in or on the same building.

The proposal is posted for comment on the Environment Registry until May 31, 2019. To read the full proposal, click here.

This article has been republished with the permission of the author. It was first published here .

This article is provided only as a general guide and is not legal advice. If you do have any issue that requires legal advice please contact Manning Environmental Law.


About the Author

Paul Manning is the principal of Manning Environmental Law and an environmental law specialist certified by the Law Society of Ontario. He has been named as one of the World’s Leading Environmental Lawyers and one of the World’s Leading Climate Change Lawyers by Who’s Who Legal.
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.

Ontario Government Budget & the Environment

Written by John Nicholson, M.Sc., P.Eng., Editor

The Ontario government recently issued its budget for the 2019 fiscal year.  The budget was considered in some circles as not favouring the environment. One environmental activist organization went as far as calling it ““the most anti-environmental budget in Ontario” since Mike Harris was in power in the 1990’s.

For starters, the government cut $300 million from the budget for the Ontario Ministry of Environment, Conservation, and Parks. The cuts
from that Ministry’s budget come from the end of programs funded by the cap-and-trade system, as well as the cancellation of the Drive Clean program for passenger vehicles.

If one looks closely enough at the budget, there was some good news to professionals that work in the environmental sector, including the following:

  • A province-wide climate vulnerability assessment.  The Government will assess the best science and information to better understand where the province is vulnerable and understand which regions and economic sectors are more likely to be impacted.  Such an assessment is typical in the insurance industry and major companies.  The findings from the assessment will feed into the Province’s Climate Plan announced in November 2018.
  • Clean technology incentives.  The Government has taken steps to encourage private investments in clean technologies. Through the Ontario Job Creation Investment Incentive, the Province is paralleling the Federal Government in allowing businesses to immediately write off investments made in specified clean technology capital equipment. This incentive will make investments in clean energy generation and energy conservation equipment more attractive.
  • Industrial emissions performance standards.  The Government is currently developing emissions performance standards for industries to achieve further greenhouse gas reductions.  When the new standards are promulgated in a regulation, each industrial facility will be required to demonstrate compliance annually.

The budget included these and other sections that are encouraging indications the the Ontario government understands that value of the environmental and cleantech industries.

Get Rid of Outdated Hazmat Compliance Materials

Written by Hazmat University

Spring is in the air! And along with that comes the pleasant and incessant urge to clean closets, declutter the house, and scrub the whole thing down!  Something that we may overlook, however, is that Spring is also a perfect time to do a Hazardous Materials refresh – and it doesn’t involve washing walls!  

Spring Clean and Keep Current Hazmat Compliance Materials

Spring is also an ideal time to do a Hazardous Materials refresh. Many people avoid this kind of clean-up because they don’t know what they should keep and for how long. But hazmat compliance is dependent on maintaining current knowledge and current practices. Now really is an excellent time to make sure that your hazardous materials are current, relevant, and not overly burdensome for the people that need them to properly do their jobs.

Out With The Old, Hold On to the Current

Do you have a tendency to hold on to outdated materials, forms, or labels? If you are, stop immediately. Hazmat compliance materials are detail-oriented to begin with, so the simpler, clearer and less cluttered, the better. You’ll be happy you did it. Outdated materials present the danger of actually being used by someone and causing an issue. Good riddance, old subsidiary risk labels!

Which Important Documents Should You Keep?

As regulations for shipping dangerous goods increase in complexity, there’s no reason to keep information laying around that could increase your risk for non-compliance, including stopped shipments, supply chain delays, fines and more.

The industry makes sweeping changes all the time, making it all the more important to only have up-to-date regulations on hand. If your printed copies of 49 CFR, IATA DGR, or the IMDG Code are outdated, it may be time to move on to online resources. An example of an online resource is Title 49 CFR   “e-CFR” which is available online, and the Government Publishing Office maintains it so that it is always up-to-date.

Compliance is dependent on maintaining current knowledge and current practices, and this is a perfect time to ensure that your hazardous materials

  • regulations;
  • policies;
  • practices;
  • employee training;
  • training content;
  • training records;
  • packaging closure instructions;
  • internal audits;
  • emergency response provider product information;
  • and more

are current, relevant, and not overly burdensome for the people that rely on them to properly do their job. Hazardous materials transportation compliance is detail-saturated to begin with, so the simpler you can make it, the better – and you’ll be happy that you did.

Making sure you discard old training and compliance documents is crucial, especially if you have new or inexperienced hazmat employees. Remembering all the regulations for various shipping transportation processes can be difficult. That’s part of the reason why it’s crucial to stay up-to-date on regulations.

It’s also critical that hazmat employees have access to transportation regulations at all times in case they need to refer to them. Remembering the most essential aspects of hazmat compliance becomes second nature for most employees, but that happens over time.

Stay Up-to-Date with Hazmat University

Everyone involved in the transportation of hazardous materials in commerce is required by law to be aware and comply with the appropriate regulations. Hazmat University offers several training programs for shipping and handling hazmat by air, ground, and sea. Courses include initial training for novices, recurrent training for those with more experience.

Now we can take a breath of that fresh spring air, and just maybe we have inspired you to clean out those closets too! Happy Spring from the Bureau of Dangerous Goods!

Environmental Liability Risk Faced by Directors of Dissolved Companies – Getting around the Gehring Defence

Written by Una Rodaja, Harper Grey LLP

Once upon a time, you were a director of a company that owned a parcel of land in the Greater Vancouver area.  A dry-cleaner and an auto-repair shop operated on the property, but you were not too concerned about environmental liability.  This was the 80s after all and the rent was good!  Your tenants caused some environmental contamination, which you addressed when your company sold the site in 1990.  You dissolved your company a year later and forgot all about it.

The property is now owned by a developer who is seeking to build a residential tower on the property.  To do so, the developer is required to investigate and remediate contamination that remained on the property after your company sold it.  Standards have changed and the limited remediation your company did years ago no longer meets the applicable standards.  Your old tenants (both sole proprietorships) are long gone and the developer is seeking to hold you personally liable for the costs of remediation.  You did not personally operate on or own the property, so are you really at risk?  A recent BC Supreme Court case says you are.  Here we explain how and why.

Directors of existing corporations are “responsible persons”

Under BC’s Environmental Management Act[1], a director or officer of a company that owns or operates on, or has historically owned or operated on, a contaminated site is a “person responsible for remediation” of that site simply by virtue of their position with the company.[2]  Such directors and officers can be liable to pay reasonable costs of remediation incurred by anyone in respect of the site owned or operated on by their company, if they authorized, permitted or acquiesced to the activity that gave rise to the cost of remediation.[3]

Directors of dissolved corporations are not “responsible persons”

Although the language establishing the categories of “responsible persons” under BC law is very broad, it is not without limit.  For example, it does not include “persons” who have ceased to exist, such as dissolved corporations.  This was made clear by the BC Supreme Court in a seminal decision called Gehring[4].  The case has undoubtedly motivated many corporate dissolutions by directors and officers seeking to shield themselves from personal liability for contaminated sites owned or operated on by the companies they served.

Dissolved companies can be restored – then what?

However, in the recent decision of the BC Supreme Court in Foster v. Tundra Turbos Inc.[5], a director of a long-dissolved corporation that owned and operated on contaminated land faced exposure in an action to recover environmental remediation costs by virtue of an application to restore the company to the corporate registry.  The company in question, Tundra Turbos Inc., was incorporated in 1978, and was dissolved in 2000.  Prior to its dissolution, it had a single director, one Mr. Clarke. The Plaintiff sought to hold Mr. Clarke liable for the costs of remediation incurred in respect of the property, some 17 years after Tundra had dissolved.  The question before the court was whether it was appropriate to restore Tundra and reconstitute Mr. Clarke’s directorship to make it possible for Tundra and Mr. Clarke to be liable for the costs incurred by the Plaintiff in remediating the property owned by Tundra in the late 1980s and early 1990s.  Tundra and Mr. Clarke presented several arguments against the restoration, including that Mr. Clarke would lose the Gehring defence, a substantive right, and that Tundra’s records pertaining to its operations at the property were destroyed, given the length of time involved.  The court rejected these arguments and ordered the restoration.

In the court’s view, there was nothing inherently unfair in the fact that companies and directors may be exposed to liability under BC’s environmental legislation many years after their association with a contaminated property ended.  Further, the right of a company and its directors to avoid liabilities for which they would have been exposed but for the dissolution is not the kind of right protected by legislation.  In fact, a legitimate purpose of restoring a company is to facilitate the imposition of such liabilities.  While destruction of the dissolved company’s records may, in certain circumstances, result in the court rejecting an application to restore, in Tundra’s case there was no prejudice arising from the loss of records because it was clear, on the facts, that had Tundra not been dissolved, it would have been responsible for the costs of remediation.  If anything, the lost records caused more prejudice to the Plaintiff than Tundra’s director, Mr. Clarke, who had personal knowledge of Tundra’s activities on the site.

In addition, the fact that Mr. Clarke could potentially face personal liability even without Tundra being restored (on the basis that he personally had the right to control, was in control of or responsible for any operation on the site in question) did not have a bearing on the restoration application.  The court recognized that it was easier to hold Mr. Clarke liable if he was responsible solely by virtue of his status as director, which could only be done if the company was restored.

Implications of the Tundra Decision

The Tundra case is an important example of creative counsel work to get around the Gehringdefence.  However, notwithstanding the outcome in that case, there are arguments to be made in future cases to avoid the restoration and, ultimately, responsible persons status for the director in question.  Existence of a limitation defence and loss of evidence that would assist in the defence of the director in question, or unreasonable delay of the Plaintiff in bringing the restoration application, may well result in the application being denied.

For lawyers advancing cost recovery claims, the Tundra case is a good reminder of the need to look at dissolved corporations and their directors and officers, and the need to apply for restoration, in a timely fashion.  For those defending these claims, and restoration applications, finding prejudice, beyond the mere loss of the Gehring defence, will be key.

[1] S.B.C. 2003, c. 53 (“EMA”)

[2] EMA, ss. 39(1), 45

[3] EMA, ss. 47(5); Contaminated Sites Regulation, s. 35(4)

[4] Gehring v. Chevron Canada Ltd., 2006 BCSC 1639, para. 55

[5] Foster v. Tundra Turbos Inc., 2018 BCSC 563

About the Author

Una Rodaja is a partner in Harper Grey’s Commercial Litigation and Environmental Regulation & Disputes practice groups. Una frequently lectures on various aspects of contaminated sites law for the Pacific Business and Law Institute, BC Environmental Industry Association, the Environmental Managers Association, and the BC Continuing Legal Education Society.  She is the co-author of BC Environmental Management Legislation and Commentaryand the recipient of the 2017 Lexpert® Leading Lawyers Under 40 award. Una is recognized by the 2018 Canadian Legal Lexpert® Directory as a Leading Lawyer to Watch in the area of corporate commercial litigation and by Benchmark Canada® as a Future Litigation Star. She has also been recognized by Best Lawyers® in Canada 2019 as a “Leading Lawyer in the area of Environmental Law.

Expanding Redwater Beyond Oil And Gas: Can Other Regulators Enforce Orders In An Insolvency?

Written by Alan Harvie, Norton Rose Fulbright Canada LLP

The Supreme Court of Canada recently released its decision in Orphan Well Association v Grant Thornton Limited, (Redwater). The majority ruled that a bankrupt oil company’s estate remained liable for well closure and environmental obligations in priority to the company’s creditors, including its secured creditors.

Although Redwater dealt with the Alberta Energy Regulator’s (AER) powers to order a bankrupt oil company to close oil and gas wells, the decision can likely be used by regulators in other industries to ensure compliance with environmental and other laws.

Provable claims

The concept of a provable claim is central to Canadian insolvency law. Once insolvency proceedings start, a regulator trying to enforce a compliance order that is considered a provable claim against the insolvent company is typically stayed by the court (i.e. stopped) from enforcing it. Conversely, a non-provable claim is not stayed and can be enforced.

In Redwater, the company entered receivership proceedings and the AER ordered the company to abandon and permanently close various wells by pumping cement down the well bore, cutting and capping the top of the well and removing surface equipment so as to leave the well in a safe state in perpetuity. The receiver argued the abandonment orders were stayed and sought to sell a package of Redwater’s assets to a third party and use the proceeds to pay the secured creditor.

The matter ended up in the Supreme Court, which considered the historical test of what constituted a provable claim by a regulator in an insolvency set previously by it in Newfoundland and Labrador v AbitibiBowater Inc., namely that there must be a debt, liability or obligation to a creditor, that it be incurred before the bankruptcy and that it must be possible to attach a monetary value to the debt, liability or obligation.

The Supreme Court in Redwater noted that although a regulator can be a creditor with a provable claim, a regulator exercising an enforcement power is not always one. The court noted the AER’s abandonment orders did not require the company to pay the AER, but instead to do something, namely to permanently close the wells. It was not sufficiently certain that the AER would itself perform the well abandonments if the company failed to do so and then advance a claim for reimbursement of the costs. Indeed, the AER was not in the business of abandoning wells and had no statutory duty to do so.

The Supreme Court distinguished AbitibiBowater by noting in that case the provincial government had expropriated a number of AbitibiBowater’s properties without compensation. The company entered creditor protection and responded to the expropriation by filing a NAFTA claim for compensation. The province then issued environmental clean-up orders that the government hoped to use to set off against the NAFTA claim.

The court clearly saw the province as seeking a direct financial benefit from the clean-up orders. It pointed out the orders’ timelines were not realistic, showing the province did not intend the orders to be complied with. The company also could not access some of the properties to undertake the work due to the expropriation. The court felt the ultimate purpose of the clean-up orders was not to have the properties remediated, but to create a set-off in response to the NAFTA compensation claim. Hence, the company owed a debt to the province to which monetary value could be attached.

In Redwater, the court found the regulator was acting in a bona fide regulatory capacity and did not stand to benefit financially from the abandonment orders. Unlike in AbitibiBowater, the AER had no ulterior motives in issuing the orders. It was acting in the public interest and for the public good. It was not enforcing a debt but was instead enforcing a general law of the province.

The court found that bankruptcy was not a license to ignore the rules, and the bankruptcy trustee was bound by and must comply with valid provincial laws. Hence, the abandonment orders were not provable claims in the bankruptcy and were not stayed. The court ordered the proceeds of sale of Redwater’s assets in the bankruptcy proceeding be used to pay for the well abandonment costs to the preference of the company’s secured and other creditors.

Other regulators are likely paying attention

Regulators in other industries trying to enforce environmental protection legislation against insolvent companies are undoubtedly paying attention and considering if they can enforce their legislation in preference to an insolvent company’s creditors. It appears many have the power to do so.

For instance, Alberta Environment and Parks (AEP) has the authority to issue environmental clean-up orders in response to a spill under Alberta’s Environmental Protection and Enhancement Act. Such orders can require the company to investigate, take any action specified, minimize and remedy the effects of a spill and restore the environment. Although AEP can in certain instances claim costs incurred in enforcing the legislation, there is no requirement for it to do so.

Similarly, in British Columbia the director under the Environmental Management Act can issue a pollution abatement order in response to a spill event to any of the person who controlled the substance that caused the spill, the person who owns or occupies the land on which the substance was located prior to the spill, or a person who caused or authorized the pollution. The director may also issue a remediation order against one or more responsible persons for a site to undertake remediation.

Likewise, under Ontario’s Environmental Protection Act a director with the Ministry of the Environment, Conservation and Parks may order a person who discharges a contaminant into the environment to repair injury or damage to land, water, property, animal life, plant life or human health. The order can include requiring the person to construct and install devices, equipment and facilities, and to develop and implement plans to remediate contamination. Although the ministry may require a polluter to pay the ministry’s costs and expenses in responding to a spill, the ministry does not have to do so.

When faced with an environmental problem caused by an insolvent company, it is reasonable to expect provincial and federal environmental regulators to try to use their enforcement powers such that they fall under Redwater rather than AbitibiBowater by crafting their enforcement orders so as not to create a provable claim.

It is also reasonable to assume regulators concerned with issues besides environmental ones in the Alberta oil and gas industry are taking a close look at Redwater. Regulators of mining, forestry, transportation, agriculture, fishing and numerous other regulated industries and activities in Canada come to mind.

Secured creditors across Canada should take note

Time will tell if Redwater will be applied more broadly than to environmental obligations of an insolvent oil company. We assume regulators will try to use Redwater when faced with an insolvent company with regulatory obligations.

Secured creditors in many other instances and industries in Canada should consider what the potential shift in traditional priorities to a bankrupt’s estate might mean to repayment of their secured loans. Borrowers should consider the implications of lenders less willing to provide financing. It is also likely that lenders will want a comprehensive understanding of a borrower’s regulatory obligations and will expand their lending due diligence to understand a borrower’s assets retirement obligation and require stricter covenants in loan agreements.

The ultimate outcome of a borrower in a regulated industry becoming insolvent will be governed by the facts of each case and the particular enforcement strategies regulators use to prevent enforcement orders being provable claims and having their orders stayed upon an insolvency. It is clear, however, that Redwater will have future implications to lenders, other creditors and borrowers in many industries.


About the Author

Alan Harvie 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 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. 

About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world’s preeminent corporations and financial institutions with a full business law service. We have 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

What is the Cost of An Asbestos Test?

Written by Robert B. Greene, PE, PG, CIH, LEED AP, GLE Associates Inc.

The presence of asbestos can be hazardous to workers and building occupants during renovations and even in the course of daily business, and the only way to know if it is a problem is to test for it. You may now be wondering whats an asbestos survey and do you need one?

What Is Asbestos and Why Is It a Problem?

Asbestos is a heat-resistant silicate fiber that is frequently present in building materials. Contrary to common understanding, it is still used in building materials today and can be present in any building of any age.

It becomes a problem when asbestos-containing materials are disturbed and the fibers enter the air. The fibers lodge themselves in the lungs of anyone who breathes them in and can cause mesothelioma, lung cancer, and other acute and long-term health problems, up to and including death.

How and When Should You Test for Asbestos?

An asbestos test (also called an asbestos survey) should be conducted prior to any renovation or demolition activities in any building of any age. In fact, an asbestos survey is required by law prior to these activities for any building materials which may be disturbed.

You should also be concerned about the ongoing presence of asbestos in older buildings, where asbestos-containing materials may have deteriorated over time. This can cause them to release asbestos fibers into the air, creating a hazard for building occupants. An asbestos survey is a relatively inexpensive way to ensure your buildings are safe for tenants and employees.

How Does an Asbestos Test Work?

A qualified asbestos company will bring in an experienced team to collect samples of potential asbestos-containing building materials. The samples will be sent to a lab for testing, and a report will be generated based on the results.

How Much Does an Asbestos Test Cost?

An asbestos survey is a relatively inexpensive precaution and may be mandated by law prior to even small renovation projects. The cost to conduct asbestos testing will vary widely based on a number of factors, including:

  • The type of facility. The more complex the building, the more time it will take to collect an adequate number of samples from all the relevant types of materials. It will also cost more to have more samples tested in the lab. For example, an asbestos survey of a hospital would be much more expensive than the same size open warehouse.
  • Type of survey. For example, a survey for a renovation of a small portion of the building, affecting a limited number of building materials, will generally cost substantially less than a building demolition survey which will affect all of the building’s components and materials.
  • Square footage. A larger facility will likewise require more time and a larger number of samples, all else being equal.
  • Facility use. If the facility is currently in use, the cost of testing will increase to account for accommodations and protections necessary for the safety and comfort of your occupants. In some cases, such as hospitals, extra care will be required to minimize disruption and ensure safety, which can further increase the cost.
  • Accessibility. If asbestos surveyors have to crawl into tight spaces, remove walls or ceiling materials, climb to high spaces, or use ladders and scaffolding to reach potential asbestos-containing materials, those factors will increase the cost of testing.

It’s hard to know exactly what your cost for an asbestos survey will be without a qualified quotation. Ultimately, if asbestos is found in your property, then seeking out a firm that specialises in asbestos removal Brisbane, or asbestos removal wherever you are is essential.


About the Author

Robert B. Greene, PE, PG, CIH, LEED AP has served in the engineering, environmental consulting, construction and remediation arenas for more than 36 years, including president of GLE since 1989. He has managed numerous consulting and contracting projects for public and private sector clients throughout the United States with construction and environmental remediation costs exceeding $100 million.

In 1987, the governor appointed Mr. Greene to the Florida Asbestos Committee, which was responsible for developing state asbestos regulations. He has also served as an expert witness for litigation for environmental and construction related issues.

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

Written by by Lawrence E. Culleen, Arnold & Porter

Prioritization of Chemicals

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

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

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

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

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

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

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

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

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

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

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

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

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

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


*Camille Heyboer also contributed to this Advisory.

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

About the Author

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