Ontario: Hazardous and Special Products Producers Reporting Deadline is January 31st

Producers and producer responsibility organizations (PROs) of category A (oil filters and non-refillable pressurized containers), category B (oil containers, antifreeze, pesticides, refillable pressurized containers, solvents, paints and coatings) and category C (mercury-containing barometers, thermometers and thermostats) are required to submit a 2022 Interim Report to the Ontario Resource Productivity & Recovery Authority (RPRA) by January 31, 2022.

What information must be submitted in the 2022 Interim Report?

Category A and B producers

Producers of oil filters, oil containers, antifreeze, pesticides, refillable pressurized containers, non-refillable pressurized containers, solvents, paints and coatings are required to report the following information:

  • a list of all collection services provided, including collection sites, collection events, call-in collection services (call-in collection is only applicable to Large producers, see FAQ below to confirm if you are considered a large producer) and curbside pickup for the transitional period of October 1, 2021, to December 31, 2022
  • the name and contact information of each processor, hauler and disposal facility that is part of the collection and management system

Category C producers

All producers of mercury-containing barometers, thermometers and thermostats are required to report the following information:

  • a list of call-in collection services, and if applicable, collection sites and collection events that began as of October 1, 2021
  • the name and contact information of each processor, hauler and disposal facility that is part of the collection and management system

Working with PROs

Producers can enlist the services of a PRO to file this reporting (e.g. establishing and operating a collection and management system) on their behalf. The RPRA recommends that producers who have signed up with a PRO confirm with them directly that they will be submitting the 2022 Interim Report on their behalf. If you have not engaged the services of a PRO and wish to do so, you can find a list of PROs here.

Producers can also choose to establish and operate their own collection system. If you are establishing and operating your own collection and management system, you are required to send an email to [email protected] and a Compliance Officer will send you a template for completion. If you retained the services of a PRO after registering with the RPRA, you need to send an email to [email protected] indicating which PRO will be reporting on your behalf.

PROs submitting reports on behalf of producers

PROs who are reporting on behalf of their producer clients must use the 2022 Interim Reporting form that was sent to them by the Compliance and Registry Team.

About the Regulation

The Hazardous and Special Products (HSP) Regulation under the Resource Recovery and Circular Economy Act, 2016 (RRCEA) designates automotive materials (oil filters, oil containers and antifreeze), solvents, paints and coatings, pesticides, fertilizers, mercury-containing devices (barometers, thermometers and thermostats) and pressurized containers (non-refillable pressurized containers, refillable pressurized containers, refillable propane containers), under Ontario’s individual producer responsibility (IPR) regulatory framework.

As of October 1, 2021, following the wind up of the Municipal Hazardous or Special Waste (MHSW) Program operated by Stewardship Ontario on September 30, 2021, HSP producers are individually accountable and financially responsible for requirements set out under the HSP Regulation.

Ontario excess soil registry requirements take effect Jan. 1, 2022

Written by Alex Sadvari, Gowling WLG (Canada) LLP

The next phase in Ontario’s new excess soil regime is fast approaching. The Excess Soil Registry website goes live on Dec. 1, 2021 and the requirement to submit notices to document and track excess soil takes effect on Jan. 1, 2022.[1]

Many of the requirements for the handling and reuse of excess soil under the On-Site and Excess Soil Management Regulation, O. Reg. 406/19 (the “Excess Soil Regulation” or the “Regulation“) are already in force. The implementation of the tracking system is the next step and is intended to ensure that each regulated project’s soil reaches its preapproved soil reuse destination(s).

Background on the Excess Soil Regulation

In December 2019, the Ministry of the Environment, Conservation and Parks (“MECP“) released the Excess Soil Regulation under the Environmental Protection Act. The Ministry was concerned that clean soil from construction sites was being wasted and that contaminated soil was not being tracked. As a result, the Regulation requires both soil sampling and tracking, so that clean soil excavated from one site in Ontario is reused beneficially at another site in Ontario, and contaminated soil does not end up at a soil reuse site.

The Regulation adopts by reference a document setting out risk-based rules and standards for excess soil: Rules for Soil Management and Excess Soil Quality Standards, which is divided into two parts: “Part 1: Rules for Soil Management” and “Part II: Excess Soil Quality Standards” (referred to in the Regulation as the “Soil Rules” and the “Excess Soil Standards“, respectively).

Under the Regulation, a Qualified Person (“QP“), is required to assess the quality of excess soil, through sampling and analysis, as well as soil characterization, and determine potential reuse. In order to promote increased reuse of excess soil, the Regulation also allows a QP to develop site-specific standards for a reuse site and incorporates by reference a Beneficial Reuse Assessment Tool.

In drafting the Regulation, the Ministry took a phased approach so that different requirements come into effect at different times. The first phase, which includes the majority of the requirements, came into effect on Jan. 1, 2021. As noted above, we are now about to enter the second phase which requires soil tracking in the Excess Soil Registry as of Jan. 1, 2022.

The third phase is intended to take effect on Jan. 1, 2025 with additional restrictions on depositing soils at a “landfilling site or dump”.[2] Finally, on Jan. 1, 2026, the grandfathering provision for contracts that existed before the Regulation came into force will cease to apply.[3]

The Excess Soil Registry: What you need to know

  • Excess soil tracking using the Excess Soil Registry is required as of Jan. 1, 2022.
  • You can access the Excess Soil Registry online as of Dec. 1, 2021 and begin filing your notices ahead of the Jan. 1, 2022, effective date.
  • The filing fees are not yet finalized, but the fee proposal is posted here.
  • Project leaders, and owners and site operators of reuse sites must use the Excess Soil Registry to file (or assign an authorized person to file) notices for sites[4] where excess soil is produced and deposited:
    • a project leader must file a project area notice when a project generates 100 m3 or more of excess soil;[5] and
    • an owner or operator of a soil reuse site receiving 10,000 m3 or more must file a reuse site notice.[6]
  • Schedule 1 of the Regulation sets out the information required in a project area notice,[7] and Subsection 19(4) sets out the information required in a reuse site notice.[8]
  • The Resource Productivity & Recovery Authority (the “RPPA“) developed and will operate the Excess Soil Registry, but the Ministry will continue to be responsible for compliance with and enforcement of the Excess Soil Regulation.
  • The RPPA has a helpful FAQs page to assist with the Excess Soil Registry and has been offering training sessions.
  • As noted above, the threshold for project registration is generally 100 m3,[9] i.e., proponents of projects that generate 100 m3 or more of excess soil that cannot be reused onsite, are required to submit the required notices, unless the project fits under one of the exemptions under the Excess Soil Regulation.
  • Non-application provisions are set out in Section 2 of the Regulation and exemptions from registration are set out in Schedule 2. For example, the Regulation does not apply to the operation of a pit or quarry, including the excavation of topsoil, under the Aggregate Resources Act.[10] However, the Regulation does apply to excess soil placed at a pit or quarry for reuse, including for rehabilitation.[11]

Next steps

If your soil excavation activities are already caught by the Regulation and you are ultimately responsible for making the project decisions (i.e., the “project leader”), then you should become familiar with the Excess Soil Registry now and start submitting notices as soon as possible before the notice and tracking requirements come into effect on Jan. 1, 2022.

If you are not sure if your activities are caught, and you think that they may fall under one of the non-application provisions or exemptions, we invite you to contact Gowling WLG to determine your obligations under the Regulation and whether you need to register. We would also be happy to assist with reviewing and amending construction contracts to incorporate the Regulation requirements, where applicable.


[1] On-Site and Excess Soil Management Regulation, O. Reg 406/19, s. 30(2) (the “Excess Soil Regulation” or the “Regulation“): “Sections 8 to 16 and 19 and subsections 29 (2) and (3) come into force on Jan. 1, 2022.”

[2] Ibid., s. 30(3): “Section 22 comes into force on Jan. 1, 2025.”

[3] Ibid., s. 30(4): “Subsection 29 (1) comes into force on Jan. 1, 2026” and will replace subsection 8(2) which exempts project leaders from registration “in respect of a project and its project area” if the project leader entered into a soil management contract before Jan. 1, 2021.

[4] In the Regulation, a “project” is defined very broadly as “any project that involves the excavation of soil and includes, (a) any form of development or site alteration, (b) the construction, reconstruction, erecting or placing of a building or structure of any kind, (c) the establishment, replacement, alteration or extension of infrastructure, or (d) any removal of liquid soil or sediment from a surface water body” and “project area” is defined as “a single property or adjoining properties on which the project is carried out” (Ibid., s. 1(1)).

[5] A “project leader” is defined as “…the person or persons who are ultimately responsible for making decisions relating to the planning and implementation of the project” (Ibid., s. 1(1)). Subsection 8(1) of the Regulation sets out the requirement for a project leader to file a notice with the information set out in Schedule 1. Exemptions from the requirement to register and file notices are set out in Schedule 2 (Ibid., s. 8(2)). As long as you excavate and remove less than 100 m3 of soil then you do not need to register as long as: “[t]he excess soil is directly transported to a waste disposal site that is not a Class 2 soil management site” or “[t]he soil is being deposited at a local waste transfer facility” (Ibid., Schedule 2, ss. 2 and 7).

[6] Ibid., s. 19.

[7] Ibid., Schedule 1: “INFORMATION TO BE SET OUT IN NOTICE (SECTION 8 OF THE REGULATION)”, which includes “1. A description of the project. 2. A description of the project area… 3. The name, mailing address, postal code, telephone number and email address of each project leader for the project… 8. An estimate of how much excess soil will be removed from the project area, broken down by any applicable Table in the Excess Soil Standards that the excess soil meets, if it is to be finally placed at a reuse site… 10. The location of each Class 2 soil management site and local waste transfer facility at which excess soil is intended to be deposited and temporarily managed… 14. The location of each Class 1 soil management site, landfilling site or dump at which excess soil is intended to be deposited… 16. A declaration by the project leader…”

[8] As of Jan. 1, 2022, “hauling records” are also required under s. 18 of the Regulation: “18. (1) A person who is operating a vehicle for the purpose of transporting excess soil shall ensure that a record including the following information is available at all times during the transportation:…”

[9] Ibid., Schedule 2, ss. 2 and 7, as long as the other conditions under these subsections of Schedule 2 are met as set out in the footnote above.

[10] Ibid., s. 2(1).

[11] Ibid., s. 2(2).


NOT LEGAL ADVICE. Information made available on this website in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Gowling WLG professionals will be pleased to discuss resolutions to specific legal concerns you may have.

 This article was published with the permission of Gowling WLG LLP.  It was first published here on the Gowling WLG (Canada) website.

About the Author

Alex Sadvari is a lawyer in Gowling WLG‘s Toronto office, practising in the areas of environmental, land use planning, and development law. She advises corporate, municipal, and Indigenous clients, providing strategic regulatory advice and representation. Gowling WLG has more than 1,500 legal professionals and a presence in Canada, the UK, Europe, the Middle East, Asia and South America. The firm provides clients with in-depth knowledge in key global sectors and a suite of legal services at home and abroad.

Researchers use Biochar to treat arsenic from mine waste

Written by Erin Matthews, Lightsource.ca

Researchers used synchrotron light to determine that plant waste could be an ideal, cost-effective method for preventing arsenic in mine waste from polluting our water.

The mining industry plays a key role in the North American economy and the wider global market. Precious metals like copper are crucial to several industries, including home construction and vehicle manufacturing. While we rely on precious metals for continued innovation, we also need to find ways to prevent environmental contamination from mining.

A program at the University of Arizona is working to reclaim landscapes that have been impacted by mining waste to create a more sustainable mining industry. Its researchers recently published findings on how reducing environmental impacts through remediation processes that are both efficient and cost effective.

Jon Chorover, a professor and head of the Department of Environmental Science at the University of Arizona, wants to clean up acid mine drainage that contains substantial amounts of heavy metals like arsenic and lead. These top priority pollutants are released when rock materials are exposed to oxygen and rain. The toxic compounds can leak into the ground and contaminate water used for drinking and farming, which can be detrimental to human health.

SM beamline
The SM beamline at the CLS that the team used for scanning transmission X-ray microscopic analyses.

“We have a strong interest in being able to treat acid mine drainage to remove the arsenic with something that’s relatively low cost,” said Chorover.

Using beamlines at the Canadian Light Source (CLS) at the University of Saskatchewan and the SLAC National Accelerator, Chorover and colleagues analyzed the molecular interactions that occur when biochar is introduced to acid mine drainage.

Created naturally when plant matter is burned, biochar can also be engineered. And it may be the perfect solution for the mining industry if the environmental conditions are just right. It’s also a waste product of the logging industry, made from the woody plant materials that are left behind and it can be used as a remedial tool in the presence of iron.

“Synchrotron based X-ray spectroscopy is essential for being able to get a mechanistic understanding of what we can measure in the lab,” Chorover said. “The only way you can really get a handle on the long-term capacity for the material to retain that arsenic is if you know what bonded structures are formed.”

A man standing over scientific equipment
Co-author Dr. Rob Root conducting synchrotron work at SSRL.

Iron, another mineral found in mine drainage, interacts with the biochar to form a crystal-like structure. As these crystals grow, they attract the arsenic — similar to a magnet — and form very tight bonds. This allows the arsenic to be safely removed from the environment.

Using the SM beamline at the CLS, Chorover and his team were able to visualize the surface chemistry of the biochar and reveal the fine details of these complex interactions.

“We saw that biochar is not a perfectly homogenous material, but it actually has patchy locations that are highly reactive to the growth of these crystals and as those crystals grow, they sequester the arsenic,” Chorover said.

Chorover believes their research will provide companies and regulators with the information necessary to maintain the environment and reduce impact on communities located near mining operations.

Quebec cargo-handling company sentenced to pay $675,000 for Fisheries Act violation

The Compagnie d’Arrimage de Québec Ltée recently pleaded guilty in the Court of Quebec in the District of Québec to one count of contravening the Fisheries Act. The company was fined $100,000. In addition to the fine, the Court ordered the company to pay an amount of $575,000.

The guilty plea and fine arise from incident on December 10, 2017.  On that date, the Compagnie d’Arrimage de Québec Ltée, while unloading a ship at the Port of Québec, failed to take all necessary measures to prevent the discharge of an estimated 500 kilograms of fertilizer into the St. Lawrence River, contrary to the provisions of subsection 38(6) of the Fisheries Act.

 

Ammonia-Nitrogen Spill results in $500,000 fine for Quebec Intermunicipal Board

The Régie intermunicipale du centre de valorisation des matières résiduelles du Haut-Saint-François et de Sherbrooke, also known as Valoris, recently pleaded guilty in the Sherbrooke, Quebec courthouse to one count of contravening subsection 36(3) of the Fisheries Act, which prohibits the discharge of a deleterious substance into waters frequented by fish.

The guilty plea was the result of investigation by officers of Environment and Climate Change Canada. Between March 13, 2014, and October 12, 2016, Valoris released effluent containing ammonia nitrogen, which is lethal to rainbow trout, from its leachate-treatment system at its sanitary landfill site and from its composting platform, into the Bégin stream, a tributary to the Saint-François River.

Valoris was fined $500,000, which will be directed to the Government of Canada’s Environmental Damages Fund.  In addition to the fine, the court ordered Valoris to take action to ensure its water-treatment system is closely monitored.

Environment and Climate Change Canada administers the Environmental Damages Fund, which is a Government of Canada program that was created in 1995. The Fund follows the polluter pays principle and ensures that court-awarded penalties are used for projects that will benefit the environment.

 

University of Saskatchewan Researcher awarded $2.5 million to optimize contaminated site remediation approaches

Over the last five years, University of Saskatchewan soil scientist and Industrial Research Chair (IRC) Steve Siciliano and his team have developed techniques that can reduce hydrocarbons in the soil by more than 90 per cent.  

Now, the Natural Sciences and Engineering Research Council (NSERC) and Federated Co-operatives Limited (FCL) are each providing $1.25 million to renew the five-year term to build on this success and further optimize soil remediation approaches. 

“The overall goal of this innovative research program is to improve how we clean up and manage these impacted sites in a safe and sustainable manner,” said Dr. Siciliano.  

USask soil scientist and Industrial Research Chair (IRC) Steve Siciliano. (Photo: University of Saskatchewan)

“Over the next five years, we will further develop and validate our approach of using naturally occurring biological stimulants and nutrients to further increase hydrocarbon degradation, particularly at sites where traditional approaches have proven ineffective, and reduce hydrocarbons in soil to minimal levels.”  

Canada has more than 30,000 sites contaminated with hydrocarbons or other pollutants. These sites pose significant social and economic costs to cities, towns, and villages.  

NSERC and FCL invested a combined $2 million during the IRC’s five-year first term (2015-2020). Researchers introduced environmentally friendly solutions to impacted soils to stimulate microbial populations that naturally break down petroleum molecules.  

The traditional method of cleanup involves excavating impacted soils and relocating them to a landfill or treatment site. Reducing contamination on site is safer, cheaper and more sustainable as the environment is not disturbed and existing business can continue without disruption. 

The research has proven to be successful and FCL has already applied the findings outside of the initial six locations, said FCL’s Vice-President of Strategy Pam SkotnitskyOur investment demonstrates our responsibility and commitment to the overall health and well-being of our communities. We continue to work together with our academic and industry partners to find innovative solutions that are openly shared and have long-term, widespread benefits.” 

IRCs are funded jointly by NSERC and industry and must be in an area of high priority for both the university and the industrial partner. The funding supports salaries for students and other research personnel, equipment and materials. 

“NSERC is proud to support research endeavours aimed at creating a better future for all Canadians,” said NSERC Vice-President (Research Partnerships) Marc Fortin. This renewed collaboration will support the development of new techniques to remove hydrocarbon pollution from the soil of contaminated sites, resulting in cleaner soils across our country. This research will allow Dr. Siciliano and his team to continue to be leaders in the field of soil remediation, and create positive impacts on our environment.” 

In addition to its share of the matched funding, FCL will provide $1.9 million of inkind support. USask in-kind contributions include $1 million. More than 50 USask undergraduate and graduate students will contribute to the research. 

SOURCE: University of Saskcatchewan

Is Hazardous Waste Management Part of the Circular Economy?

Written by Supreet Kaur, ALTECH Environmental Consulting Ltd. and John Nicholson, Editor, Hazmat Management Magazine

There is a growing movement from every sector of the economy that recognizes that there needs to be a focus on a sustainable future by minimizing waste and maintaining natural resources. With the increase in industrialization, the main problem in the management of hazardous waste is that it poses a harmful impact on environment and human health.

The term “circular economy” is a new buzzword and has been identified as part of society’s move toward a sustainable future with the inclusion of the 3Rs and extended producer responsibility.  Can you apply circular economy practices to the management of hazardous waste?

Hazardous waste is the potentially dangerous by-product of a wide range of activities, including manufacturing, farming, water treatment systems, construction, automotive garages, laboratories, hospitals, and other industries. The waste contains chemicals, heavy metals, radiation, pathogens, or other materials. These wide range of toxic chemicals affecting environment and human health and involving several routes of exposure, depending on types of waste. Some toxins, such as mercury and lead persist in the environment for many years and accumulate over time.

Hazardous waste disposal is a challenge for many businesses and industries. Almost every size of industry, and some commercial enterprises, generate hazardous waste. The need for efficient hazardous waste management and disposal is important in order to minimize the risks to lives and the environment.

It has been demonstrated that it is possible to recycle some specific hazardous waste streams.  In fact, recycling is best way to manage hazardous waste to minimize the amount of hazardous waste.

The circular economy is aimed at continual use of resources and eliminating waste. Many industries are focusing on the circular economy to reduce their carbon footprints, reusing their products, and cost-effective methods of waste management.

At the point when waste is reused, everybody benefits in view of lower energy use, diminished ozone depleting substance, characteristic asset preservation, lower removal costs and, frequently, more effective creation by utilizing reused materials.

An example of an important industrial chemicals that eventually becomes a hazardous waste are natural and inorganic solvents. Solvents are incorporated in paints and cements, cleaners and degreasers, drugs and many other products. Solvents are also used in a wide assortment of businesses including hardware, car, drug and paint manufacturers. Many companies are require the safe management of their spent solvents.

Chemical Recycling in Canada

Fielding Environmental, headquartered in Mississauga, Ontario, is an example of a chemical recycler in Canada. It has been serving industry clients for over 55 years, specializing in the recovery of solvents, glycols and refrigerants from automotive, coating and paint, printing and pharmaceutical industries. It is the most accredited solvent recycler in Canada. Moreover, it is largest Canadian recycler company in recycling waste ethylene and waste propylene glycol.

Fielding has technologies which not only collect waste from several industries but also extract the best from these resources. They recover all the positive qualities in it and transform waste into new products. Fielding is able recycle waste solvents to a purity that allows the same organization to reuse it without limitations. If a customer prefers not to take back a recycled solvent, Fielding uses it as a feedstock in the synthesis of new products that is sold nationally as well as internationally.

The company not only focuses on waste management but mainly works on waste optimization. Waste optimization is to change the waste into new product or use it as fuel. “If we want to build circular economy, we have to change the waste paradigm”, Ellen McGregor, CEO of Fielding environmental.

If any solvent is unsuitable for recovery, Fielding utilizes it as a fuel. In this way, all incoming waste is either recycled or has its energy value recovered (sometimes referred to as the 4th R – reduce, reuse, recycle, and recover [energy]). Fielding believes this is the best approach to managing incoming hazardous waste.

“We need to redefine the 3R (reduce, recycle, reuse) waste management hierarchy. A hierarchy put disposal and incineration in the same pyramid.  We need to break these things apart.  We need to include energy recovery us the pyramid.” Ms. McGregor added.

Ms. McGregor stated that all levels of government have a role to play in encouraging the 3Rs with respect to hazardous waste and in respecting the important role of hazardous waste companies in communities.  “Government has to play role in whole notion of procurement. There must be X-percentage of recycling components in products manufactured. Also, government has to ensure that companies in circular economy are welcomed in community. Recyclers need to be in urban areas so they have access to quality roads and other facilities,” She added.

“Fielding is all about the waste optimization we are trying that our material does not find their way to our soil, air and water,” Ms. McGregor said.  “98% of our business serves the circular economy.”

Emergency Preparedness and Prevention under the U.S. Hazardous Waste Generator Improvements Rule

Written by Ryan W. Trail, Williams Mullen

Generators of hazardous waste have long understood the importance of emergency preparedness and prevention to regulatory compliance and facility safety.  Contingency planning and coordination with emergency service providers have been requirements of United States Resource Conservation and Recovery Act (RCRA) regulations for many years.  For states that have adopted the Hazardous Waste Generator Improvements Rule (HWGIR), however, new and more stringent requirements for emergency preparedness and prevention now apply.  These states include Virginia, North Carolina and South Carolina, as well as 28 other states.  All authorized states are required to adopt most aspects of the HWGIR, including those aspects discussed below, but many have not yet done so.

Under the old regulations, generators of hazardous waste (both small and large quantity) had to make arrangements with local emergency response entities, which may be called upon in the event of a release, fire, or explosion involving hazardous waste at the facility.  Facilities were required to make the emergency responders familiar with the layout of the site, the risks associated with the type(s) of hazardous waste onsite, the locations where employees would likely be throughout the site, and possible evacuation routes.  While not specified in the regulations, many facilities accomplished this by inviting local emergency response personnel to tour the facility.

Under the HWGIR, generators must still make arrangements with emergency response personnel. However, the associated recordkeeping requirements have changed.  Previously, there was no affirmative duty to document the arrangements.  Generators who were unable to make the necessary arrangements were required to document this shortcoming, but otherwise no recordkeeping obligation existed.  The HWGIR added a requirement that the generator must keep documentation of the fact that it made arrangements with local emergency responders.  The arrangements must be noted in the facility’s operating record.

Hazardous waste contingency plans are another essential element of emergency preparedness and prevention under both the prior regulations and the HWGIR.  A contingency plan ensures facility and emergency response personnel have complete and accurate information to respond safely and efficiently to an emergency involving hazardous waste.

The HWGIR created new obligations for facilities with hazardous waste continency plans.  One significant update is the requirement to produce a Quick Reference Guide as part of the contingency plan.  The Quick Reference Guide is intended to summarize the broader contingency plan and must include eight elements essential for local responders when an emergency occurs:

  1. Types/names of hazardous wastes and the hazard associated with each;
  2. Estimated maximum amount of each hazardous waste that may be present;
  3. Identification of hazardous wastes where exposure would require unique or special medical treatment;
  4. Map of the facility showing where hazardous wastes are generated, accumulated and treated and routes for accessing these wastes;
  5. Street map of the facility in relation to surrounding businesses, schools and residential areas for evacuation purposes;
  6. Locations of water supply (e.g., fire hydrant and its flow rate);
  7. Identification of on-site notification systems (e.g., fire alarm, smoke alarms); and
  8. Name of the emergency coordinator(s) and 7/24-hour emergency telephone number(s) or, in the case of a facility where an emergency coordinator is on duty continuously, the emergency telephone number for the emergency coordinator.

A facility that became a large quantity generator after the date the HWGIR became effective in its state must submit a Quick Reference Guide of its contingency plan to local emergency responders at the time it becomes a large quantity generator.  However, for large quantity generators in existence on the effective date of the HWGIR in their state, the Quick Reference Guide need only be submitted when the contingency plan is next amended.  A facility is required to amend its contingency plan if any of the following occur:

  • Applicable regulations are revised;
  • The plan fails in an emergency;
  • The facility changes—in its design, construction, operation, maintenance, or other circumstances—in a way that materially increases the potential for fires, explosions, or releases of hazardous waste or hazardous waste constituents, or changes the response necessary in an emergency;
  • The list of emergency coordinators changes; or
  • The list of emergency equipment changes.

Violations for inaccurate, incomplete or deficient hazardous waste contingency plans are common among RCRA enforcement actions.  With the HWGIR now in effect in many states, facilities may soon be amending their contingency plans.  New requirements for documenting arrangements with emergency responders and creating and maintaining a Quick Reference Guide could easily be overlooked.  It is important for hazardous waste generators to review emergency preparedness and prevention requirements of the HWGIR carefully to ensure continued compliance.

Hazardous Waste Generator Improvements Rule81 Fed. Reg. 85732 (Nov. 28, 2016)

__________________________

About the Author

Ryan Trail represents companies facing complex environmental regulatory issues in the industrial, manufacturing, real estate and banking industries. He helps companies maintain compliance with constantly evolving environmental laws and regulations, and he counsels landowners, potential purchasers and lenders on environmental liabilities related to contaminated real estate. Ryan also helps clients obtain and comply with numerous environmental permits, including industrial wastewater discharge permits, stormwater permits and air permits.

Here’s the Deal: New Directions in Environmental Enforcement Under Biden?

Written by Gerald F. GeorgeDavis Wright Tremaine LLP

On December 23, 2020, the federal government published its inflation-adjusted civil penalties for a variety of environmental statutes, including the Clean Air Act (CAA) and the Clean Water Act (CWA). Those $25,000 per day or per violation penalties in the original statutes have now reached substantially higher levels, mostly in the $50,000-$60,000 range, but CAA penalties could reach $100,000.

That is a predictable change. What is less predictable is how enforcement will play out in the coming year with a new administration. Will the annual inflation adjustment to civil penalties be accompanied by greater enforcement?

The Trump Administration ended the year the same way it started its term in 2017, by attempting to roll back the environmental regulations and policies applied previously. The near-term result for enforcement is unclear, in part, because virtually every change made by the Trump Administration has been challenged in court, with a uniquely low success rate for the federal government.

With many of those challenges still pending, one wonders how the Biden Administration will approach these cases. The more important question for the regulated community is the approach the Biden Administration will take toward enforcement in general. Even with the Trump changes, the incoming administration retains a lot of regulatory authority.

Two reactions seem obvious. One is resurrection of an unspoken principle for challenging regulation: be careful. You may win this case, but you will still have to deal with the regulator when the case is over. Taking a hard-nosed approach can backfire if it means the regulators will be hanging on you like a cheap suit for the next four years, or you need agency approval for an essential expansion.

More optimistically, we are almost certain to see a resurrection of Supplemental Environmental Projects (SEPs), environmentally beneficial projects implemented by a violator in connection with a settlement. SEPs have been used in EPA settlements since 1984 to create semi-win-win resolutions for alleged environmental violations.

A violator might pay a penalty, but would offset some, if not most, of that by funding an environmentally friendly project. The community and the environment would benefit from the project; the company might even pay more out of pocket, but will see its money used for something positive, not just dumped into the U.S. Treasury general fund.

While questions about the propriety of SEPs have been raised over the years, the issue had always been resolved in favor of authorizing settlement projects directly related to the violations—part of the remedy, not unappropriated “free money” for boat ramps at the local reservoir. The Trump Administration took a harder line, resulting in the EPA and Department of Justice (DOJ)’s ending the use of SEPs in settlements.

The issue of SEPs then arose in the courts in two contexts. In Michigan, the federal government settled a long-running CAA case with the violator for a civil penalty. The private plaintiff in the case settled separately with the defendant, committing to further steps to improve air quality and to implementation of an SEP. The federal government objected to the settlement, but lost last year in the district court in U.S. v. DTE Energy Co.

In an unrelated case arising in Massachusetts, an environmental group challenged the implementation of the DOJ policy. In Conservation Law Foundation v. William Barr, the federal government argued not that SEPs were barred, but whether or not the government’s acceptance of an SEP in a settlement was within its discretion.

Whether one agrees with the policy, the prosecutorial discretion position makes sense. It also means that a decision favorable to the federal government would not bar it from reverting to its prior policy authorizing SEPs.

SEPs are extremely useful in structuring settlements. A minor loss of income to the U.S. Treasury is more than offset by the environmental benefits to the public, and the parties focus their discussions on addressing environmental problems, not on trying to save a few dollars in penalties.

Further, SEPs are particularly attractive in suits involving public agencies, where cash-strapped facilities can at least put their limited funds to work on real environmental problems important to their constituencies. It is galling to see a municipality paying money into the U.S. Treasury for failure to implement treatment improvements it cannot afford, making the cost of future compliance even more unaffordable.

In any event, fights over the size of penalties are a crapshoot for everyone and may well end up costing more than they save. E.g., Citgo’s effort to defeat a major penalty demand in connection with a spill from its refinery in Louisiana ($8 million penalty at District Court reversed by a Court of Appeals, $81 million penalty imposed on remand).

The next four years of environmental enforcement litigation will be interesting to watch. But aside from the litigation over old and new regulations, I predict enforcement will look more like what existed pre Trump, if not more aggressive.

It would behoove the regulated community to be ready to return to use of the traditional tools for defense of claims involving strict liability statutes. Watch the bottom line of your business, and avoid a hostile relationship with your (we hope) friendly, but ever present regulator.

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About the Author

Gerald George is a seasoned environmental attorney and litigator, with extensive experience in successfully resolving federal and state enforcement actions, natural resource damage actions, and citizen suits. Gerald also advises on regulatory matters involving air, water, waste, and environmental impact review laws. He has more than 40 years’ experience in civil lawsuits, including 30 years of handling major environmental litigation throughout the country.

Latest News on Site Remediation Regulations in British Columbia

The British Columbia Ministry of Environment and Climate Change Strategy recently made changes to the site identification process in the Environmental Management Act and Contaminated Sites Regulation that come into effect on February 1, 2021. These changes aim to streamline the legal regime by making the process clearer and more predictable and will improve the ministry’s ability to carry out compliance verification and enforcement.

As part of implementing these changes, ten protocols have been revised and posted for comment. The ministry requests stakeholder feedback on the draft protocols by Monday, January 11, 2021. The ministry is also reviewing and updating guidance documents and procedures related to the protocols.

The full amendments can be found here:

Environmental Management Amendment Act, 2019 (Bill17): https://www.leg.bc.ca/parliamentary-business/legislation-debates-proceedings/41st-parliament/4th-session/bills/third-reading/gov17-3

Contaminated Sites Regulation OIC 0368/2020: https://www.bclaws.ca/civix/document/id/oic/oic_cur/0368_2020