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.

_________________________

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

 

 

Soil and Groundwater Remediation Technologies: A Practical Guide

This book offers various soil and water treatment technologies due to increasing global soil and water pollution. In many countries, the management of contaminated land has matured, and it is developing in many others. Topics covered include chemical and ecological risk assessment of contaminated sites; phytomanagement of contaminants; arsenic removal; selection and technology diffusion; technologies and socio-environmental management; post-remediation long-term management; soil and groundwater laws and regulations; and trace element regulation limits in soil. Future prospects of soil and groundwater remediation are critically discussed in this book. Hence, readers will learn to understand the future prospects of soil and groundwater contaminants and remediation measures.

Key Features:

  • Discusses conventional and novel aspects of soil and groundwater remediation technologies
  • Includes new monitoring/sensing technologies for soil and groundwater pollution
  • Features a case study of remediation of contaminated sites in the old, industrial, Ruhr area in Germany
  • Highlights soil washing, soil flushing, and stabilization/solidification
  • Presents information on emerging contaminants that exhibit new challenges

This book is designed for undergraduate and graduate courses and can be used as a handbook for researchers, policy makers, and local governmental institutes. Soil and Groundwater Remediation Technologies: A Practical Guide is written by a team of leading global experts in the field.

About the Book’s Authors

Yong Sik Ok, PhD, is a Full Professor at and Global Research Director of Korea University in Seoul, Korea. He currently serves as Director of the Sustainable Waste Management Program for the Association of Pacific Rim Universities (APRU).

Jörg Rinklebe, PhD, is Professor for Soil and Groundwater Management at the University of Wuppertal, Germany. Recently, Professor Rinklebe was elected as Vice President of the International Society of Trace Element Biogeochemistry (ISTEB).

Deyi Hou, PhD, is an Associate Professor at the School of Environment of Tsinghua University.

Daniel C.W. Tsang, PhD, is an Associate Professor in the Department of Civil and Environmental Engineering at the Hong Kong Polytechnic University and Honorary Associate Professor at the University of Queensland.

Filip M.G. Tack, PhD, is Professor in Biogeochemistry of Trace Elements at the Department of Green Chemistry and Technology at Ghent University. He is Head of the Laboratory of Analytical Chemistry and Applied Ecochemistry of Ghent University.

Chemical Spill by Quebec Mining Company results in $350,000 Fine

Breakwater Resources Limited, which operates the Langlois Mine, recently pleaded guilty in the Val‑d’Or, Quebec courthouse to one count of violating the Fisheries Act. The company was fined $350,000.

The incident that lead to the eventual fine occurred on February 28th, 2018.  A 500-litre spill of flocculent from the Langlois mining site in Lebel‑sur‑Quévillon resulted in a discharge of acutely lethal effluent into the Wedding River. The discharge of acutely lethal effluent into water frequented by fish is a violation of subsection 36(3) of the Fisheries Act.

The Langlois mine is located is located in the James Bay Territories, in northwest Québec, approximately 50 km north east of the town of Lebel-SurQuévillon and 213 km north of Val-d’Or.  The mine produces zinc and copper concentrates with lesser values of silver and gold by-products.

In October 2019, the mine’s owner announced it putting the mine down on “care and maintenance”, effectively shutting down production. The company said that rock conditions at the mine have deteriorated to the point that continued mining is not economical.

The $350,000 fine will be directed to the Government of Canada’s Environmental Damages Fund.  The company’s name will be added to the Environmental Offenders Registry.

Repurposing: Another Tool to address Alberta’s Backlog of inactive and abandoned oil and gas sites?

Written by David McGillivary, Lorne Rollheiser, and Natasha Tames, Gowling WLG

The current path to land use reclamation of legacy oil and gas sites in Alberta is often a long one, imposing specific requirements on regulatees during the suspension, abandonment, remediation and reclamation stages of the process.   Companies often hold wells in abandonment status to avoid or delay clean-up costs and many such companies are struggling financially.  Despite having undergone reform, this regime has resulted in approximately 97,000 inactive wells, 71,000 abandoned wells, and 2950 orphan wells.

However, there are potential land uses that should be considered in respect of assessing (or reassessing) the status of these wells and associated infrastructure within the reclamation process.  These new and emerging land uses may represent alternative solutions with a number of environmental and economic benefits.  Some potential land uses that may result from repurposing include:

  1. Geothermal power generation:

Thousands of the inactive and orphan wells in Alberta have been identified as having appropriate proximity to existing infrastructure and having heat properties that could be used in electricity generation, industrial heat, or as direct heat sources.  Progress in this industry continues to be made and momentum appears to be increasing with Alberta’s 7 October 2020 announcement of its intention to “clear hurdles to the development of clean geothermal energy”[1].

  1. Exploration and extraction of other substances (such as hydrogen, helium or lithium) using legacy oil and gas infrastructure:

Another alternative that may transform old wells from liabilities to productive assets is the combination of existing technologies in oil extraction that have been altered and applied to extract hydrogen in a near zero-emissions process.  As an example, Proton Technologies continues to develop its process for hydrogen production[2], a two-step process of heating the reservoir to create free hydrogen and extracting pure hydrogen gas.  Proton continues to test and refine its technologies and has described its patented combination of heating reservoirs with Oxinjection wells and harvesting the hydrogen with Hygeneration wells. Both types of wells adapt existing equipment to a new purpose.

Subject to the growth of the hydrogen economy, these technologies have the possibility of being quickly implemented utilizing existing infrastructure, minimizing land use burdens.

  1. Carbon Capture and Storage (“CCS”):

Inactive or abandoned wells and associated infrastructure may also be repurposed to assist with carbon emission reductions through the application of CCS technology. The use of wellsites (with the appropriate technical alterations) for CCS is appealing as another tool to assist in confronting climate change. However, repurposing wellsites for CCS presents certain risks and repurposing activities are likely to be carefully scrutinized on a case-by-case basis to minimize risks and to ensure the integrity of a potential storage reservoir.

The increased use of CCS in Alberta also gives rise to potential spinoff commercial opportunities for the use and marketing of carbon dioxide as a commodity.  Carbon dioxide has some potential for use and marketability in support of climate change goals including through the displacing of products with higher life cycle emissions or in connection with products that have a permanent carbon retention component. [3]

  1. Production of biogas/upgrading into renewable natural gas for distribution through existing pipeline networks or for power generation:

The production of biogas, which may then be modified to produce renewable natural gas (“RNG”), represents a further opportunity for the repurposing of inactive or abandoned oil and gas sites and associated infrastructure.  Biogas primarily consists of methane (~60%) and carbon dioxide (~29%) and arises from the breakdown of organic matter generated from agriculture, forestry, landfill, or wastewater operations in an oxygen starved environment. This process is often done through use of an anaerobic digestor or by thermochemical means such as gasification. Biogas has a number of practical and commercial uses, including as a fuel source for farming operations and as a feedstock for power generation.  Upgrading biogas to RNG (i.e. increasing the methane content to 95-99%) results in a renewable equivalent to conventional natural gas.  RNG produced from biogas can be comingled with conventional natural gas, shipped, and stored using existing conventional natural gas infrastructure, often requiring few to no alterations.

Conclusion

The above options for land repurposing each give rise to potential environmental and economic benefits. From an environmental perspective, each is consistent with public policy objectives for the reduction of GHGs, advancing energy transition and decarbonization, and reducing the need to utilize undisturbed or valuable agricultural land for future development while awaiting regulatory closure on legacy oil and gas sites with uncertain timelines. Economically, repurposing turns a long-standing liability into an asset, supports economic diversification, and creates opportunity for collaboration and growth across a number of different industries and sectors.

However, each of the land uses discussed for site repurposing also entails certain risks from the application of new or emerging technologies to existing, aging infrastructure. Furthermore, the use of sites that are not fully reclaimed brings the prospect of unknown or lingering environmental issues.  Broad acceptance and investment in repurposing as an alternative to standard reclamation processes likely requires further dialogue among industry (across multiple sectors), government, and thought leaders to determine how repurposing initiatives may proceed as an additional option for handling Alberta`s backlog of inactive and abandoned wellsites and associated infrastructure to environmental and economic advantage for the province and the country. Some issues that warrant additional consideration include:

  • With reforms to Alberta`s liability management framework underway, is there a willingness on the part of government and regulators to accept repurposing as an alternative to full fledged reclamation? If so, what requirements apply for a site to be considered eligible for repurposing? How is liability in such cases to be managed and allocated?
  • What, if any, legislative modernizations or reforms are warranted to facilitate repurposing of sites for the land uses discussed above? Considerations may include streamlining of regulatory requirements and oversight, site access issues, and development of royalty and rental regimes.
  • What, if any, financial incentives or funding opportunities are needed to make repurposing projects economical?

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 republished with the permission of Gowling WLG.  It was originally posted on the JWN Energy website.

About the Authors

David McGillivary is an associate in Gowling WLG’s Advocacy Group. He focuses his practice on multiple facets of administrative law, with an emphasis on energy and environmental regulation, as well as Indigenous law.
Lorne Rollheiser is a partner at Gowling WLG and the head of the firm’s Oil and Gas Industry Group in Calgary, Alberta.
Natasha Tames is an associate in the Advocacy Department in Gowling WLG’s Calgary office. She practises in the areas of commercial litigation, insurance and professional liability.

Ontario: Proposal to Provide Additional Flexibility for Excess Soil Reuse

As a result of the COVID-19, the Ontario Ministry of Environment, Conservation and Parks (MECP) is proposing to extend the grandfathering for infrastructure projects and provide additional flexibility for excess soil reuse.  Under the proposal, amendments to the Excess Soil Regulation (O. Reg. 406/19) and other regulations are to be made so that technical assessments are not repeated, delayed projects can proceed, and soil can be managed more flexibly.

Proposal details

In December 2019, Ontario made a new On-Site and Excess Soil Management Regulation (O. Reg. 406/19), supported by risk-based standards that will make it safer and easier for industry to reuse more excess soil locally.

In response to the COVID-19 pandemic and to provide further clarity and flexibility to support appropriate beneficial reuse of excess soil, the MECP is now proposing amendments to O. Reg. 406/19 and O. Reg. 153/04 under the Environmental Protection Act. The proposed changes include:

  • extending the date applicable to the grandfathering provisions by which construction projects must be entered into by one year, from January 1, 2021 to January 1, 2022, to accommodate projects that are close to starting construction but delayed due to COVID-19
  • clarifying the scope of grandfathering provisions to include geotechnical studies completed by January 1, 2022, to ensure these studies do not have to be repeated
  • replacing waste-related Environmental Compliance Approvals with standard rules for operations processing excess soil for resale as a garden product, and operations managing clean soils for residential development projects
  • providing added flexibility to soil management rules such as those for soil storage and reuse of soil impacted by salt
  • enabling Environmental Compliance Approvals to specify alternative soil management requirements to provide project-specific flexibility
  • updating O. Reg. 406/19 and the Protocol for Analytical Methods Used in the Assessment of Properties under Part XV.1 of the EPA (Analytical Procedure) with the modified Synthetic Precipitation Leaching Procedure (mSPLP)
  • clarifying that the excess soil registry to be used for filing notices will be delivered by the Resource Productivity and Recovery Authority and expand the registry’s purposes to also include integration with other third-party systems supporting reuse of excess soil, such as tracking systems, soil matching systems and other non-regulatory programs, considering cost, security and other relevant matters.

If the proposed changes are adopted, they would:

  • reduce construction costs associated with managing and transporting excess soil
  • limit the amount of soil being sent to landfill
  • lower greenhouse gas emissions from the sector
  • continue to ensure strong protection of human health and the environment

These proposed amendments support delivery of actions in Ontario’s “Made-In-Ontario” Environment Plan including:

  • recognizing excess soil as a resource
  • developing clear rules to support beneficial reuses of excess soil and to help address issues of illegal dumping

Deadline for Public Comment

The deadline for comments on the proposal is November 19th, 2020.